Com. v. Lassiter, A.

J-S37028-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALBERT LASSITER :
:
Appellant : No. 3081 EDA 2018

Appeal from the Judgment of Sentence Entered May 25, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010473-2015

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ALBERT LASSITER :
:
Appellant : No. 3082 EDA 2018

Appeal from the Judgment of Sentence Entered May 25, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0010472-2015

BEFORE: SHOGAN, J., NICHOLS, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY NICHOLS, J.: FILED DECEMBER 23, 2020

Appellant Albert Lassiter appeals from the judgment of sentence

imposed following his convictions for rape of a child and related offenses.1

Appellant challenges the trial court’s evidentiary rulings on hearsay testimony

____________________________________________

1 18 Pa.C.S. §§ 3121(c), 3123(b), 6318(a)(1), 4304(a)(1), 6301(a)(1)(ii),
3126(a)(7).
J-S37028-20

and also argues that the trial court erred by denying his motion to sever and

his motion for a mistrial. We affirm.

We adopt the summary of facts set forth in the trial court’s opinion. See

Trial Ct. Op., 6/13/19, at 1-3. Briefly, Appellant was charged with three

counts of rape of a child and related offenses based on allegations that he

sexually abused his two biological daughters, T.L., A.L., and his girlfriend’s

daughter, M.P.B. All three complainants were under the age of thirteen at the

time of the alleged abuse. Id.

The Commonwealth moved to consolidate the charges for trial, arguing

that the evidence of each offense would be admissible in separate trials

“because the similarities between the various incidents reveal a common plan

or scheme” by Appellant. Commonwealth’s Mot. to Consolidate, 12/7/16, at

4. Appellant moved to sever, arguing that the charges were not sufficiently

similar and that a joint trial would result in undue prejudice. See N.T. Pretrial

Hr’g, 12/20/17, at 3. Following a hearing on December 20, 2017, the trial

court denied Appellant’s motion.

On January 10, 2018, the trial court conducted a hearing on the

Commonwealth’s request to admit A.L.’s testimony under the Tender Years

exception to the hearsay rule. At the hearing, the trial court heard testimony

from A.L., along with her mother, Ms. B., and Ms. P., a family friend to whom

A.L. initially reported the abuse. N.T. Tender Years Hr’g, 1/10/18, at 1-9, 12-

47. At the conclusion of the hearing, the trial court found that A.L. was

“unavailable” for purposes of the Tender Years exception, in that she “did

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suffer serious emotional distress [that] substantially impairs her ability to

reasonably communicate.” Id. at 11. Additionally, the trial court concluded

that based on the testimony from Ms. B. and Ms. P., “the hearsay statements

are both reliable and relevant.” Id. at 48.

At trial, the Commonwealth made two attempts to present M.P.B. as a

witness. See N.T. Trial, 1/10/18, at 119, 186. Both times, M.P.B. became

agitated and refused to answer questions about the abuse. Id. The

Commonwealth then filed a motion to conduct M.P.B.’s direct examination at

a separate location via closed-circuit television. N.T. Trial, 1/11/18, at 6.

Appellant opposed the Commonwealth’s motion and also requested a mistrial,

arguing that M.P.B. had already refused to testify, but was then “dragged back

in the courtroom” while the jury heard her “screaming . . . in the hallway.”

Id. at 7. The trial court denied Appellant’s motion for a mistrial and granted

the Commonwealth’s motion to conduct direct examination outside of the

courtroom. Id. at 43. Ultimately, after M.P.B. again refused to testify

regarding the abuse, the trial court granted Appellant’s motion for judgment

of acquittal on those charges. Id. at 128.

During closing argument, the Commonwealth made a reference to T.L.’s

testimony about the allegations involving M.P.B. N.T. Trial, 1/12/18, at 70.

Appellant objected and the trial court held an off-the-record discussion. Id.

at 71. After the Commonwealth’s closing statement, Appellant moved for a

mistrial and explained:

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I’m objecting and moving for a mistrial for two reasons: On the
behavior of the witnesses both in terms of putting [M.P.B.] up
three times; in terms of the jury hearing [M.P.B.] crying,
kicking[,] and, you know, we could hear that when she was in the
hallway. And then again with the witnesses, you know, loudly
crying only when the Commonwealth is closing, not when I’m
closing, and then leaving and making extremely loud vomiting
noises from the anteroom.

I think that the prejudice goes to both of that. And of these trials
remaining combined when there was absolutely no evidence of
[M.P.B.], [M.P.B.] did not testify, you know, I think a mistrial
should have been granted before, so I’m renewing my motion on
that. And on the behavior of the witnesses in the courtroom is
overly prejudicial in terms of what the jury has now seen.

Id. at 89-90.

The trial court denied Appellant’s motion for a mistrial. Id. at 90.

However, Appellant and the Commonwealth agreed to a curative instruction

regarding M.P.B. Id. at 94. Specifically, the trial court stated:

You heard opening statements and some testimony regarding a
third complainant, [M.P.B]. [M.P.B.] did not testify at this trial
and you are not being asked to resolve any allegations regarding
[M.P.B]. You must not consider any evidence related to what you
heard about [M.P.B.], or her demeanor on the stand and refusal
to testify as evidence that [Appellant] committed the remaining
charges involving [A.L.] and [T.L.].

Id. at 105.

That same day, the jury convicted Appellant of all charges involving T.L.

and A.L. Id. at 131-35. On May 25, 2018, the trial court sentenced Appellant

to an aggregate term of twenty-eight to sixty years’ incarceration. Appellant

filed a post-sentence motion, which the trial court denied. Appellant

subsequently filed a timely notice of appeal at each trial court docket number

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and a court-ordered Pa.R.A.P. 1925(b) statement.2 The trial court issued a

Rule 1925(a) opinion addressing Appellant’s claims.3
____________________________________________

2 In his Rule 1925(b) statement, Appellant preserved his instant claims
regarding the motion to sever and the trial court’s admission of A.L.’s
testimony under the Tender Years hearsay exception. See Rule 1925(b)
Statement, 11/13/18, at 1-2. Appellant also raised a claim that the trial court
erred by denying his motion for a mistrial “following the Commonwealth[’s]
closing arguments to the jury.” Id. at 2.

Additionally, Appellant argued:

Th[e trial c]ourt erred by (i) permitting hearsay testimony into the
record, (ii) permitting evidence of other acts into the record, in
violation of Rule 404(b) of the Rules of Evidence, and (iii) violating
Appellant’s right to confront the witnesses against him, secured
by the Pennsylvania and United States Constitutions, by:

a. allowing [L.P.] to testify;

b. allowing Carolina Castano, of the Philadelphia Children’s
Alliance, to testify that she interviewed M.P.B., a minor;

c. allowing Police Officer Kenya Washington to testify that,
based on information received from [L.P.], he contacted the
Special Victims Unit; and

d. allowing Detective Mark Webb to testify that he received
a report of “an alleged child sexual assault” while at the
home of M.P.B. and her mother, [L.P.]

By allowing each of these witnesses to testify as they did — over
defense objections — the [trial c]ourt allowed the Commonwealth
to make clear that M.P.B. made complaints of sexual assault by
Appellant, though M.P.B. never said as much on the record.

Id. at 2.

3 The trial court concluded that Appellant failed to properly preserve his claim
regarding M.P.B.’s hearsay statements, as he did not “identify which allegation
of error correspond[ed] to each piece of testimony” in his Rule 1925(b)
statement. See Trial Ct. Op. at 11. Therefore, the trial court declined to
address the merits of that issue. Id.

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On appeal, Appellant raises the following issues for our review:

1. Did the [trial] court err in denying Appellant’s motion to sever
the matters regarding the three complaining witnesses?

2. Did the [trial] court err in permitting multiple witnesses to offer
“course of conduct” hearsay in order to allow the
Commonwealth make clear that [M.P.B.] made an allegation of
sexual assault against Appellant, even though there was no
such substantive evidence of that claim?

3. Did the [trial] court err in finding that [Ms. B. and Ms. P.] could
testify as to out-of-court statements made to them by A.L.,
where the statements did not fall within the Tender Years Act?

4. Did the [trial] court err in denying a mistrial where the
prosecutor, in her closing remarks, purposefully embellished
the testimony regarding [M.P.B.]?

Appellant’s Brief at 4-5 (full capitalization omitted).

Motion to Sever

In his first issue, Appellant argues that the trial court erred in denying

his motion to sever. Id. at 16. Specifically, Appellant argues that the charges

involving M.P.B. “stood in stark opposition of those of T.L. and A.L.” Id. at

19. He contends that “[t]he allegations were not of such a great similarity to

permit the proofs of one to be introduced at a trial on the other[s].” Id. at

20. Appellant also asserts that the trial court’s “decision to combine the cases

for trial infected the case with confusion that inevitably led to Appellant

suffering undue prejudice.” Id. at 21. Appellant argues that “no reasonable

juror” could separate M.P.B.’s allegations from the substantive charges

involving the other two complainants. Id. at 22. Further, Appellant claims

that the “Commonwealth three times paraded M.P.B. before the jury only to

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have the child shut down before Appellant’s counsel had an opportunity to

question her. Essentially, the Commonwealth was able to present a child that

appeared to be suffering some anguish, and with a wink and a nod, that M.P.B.

made allegations of sexual assault.” Id. at 23. Under these circumstances,

Appellant argues that the trial court abused its discretion by denying his

motion to sever.

The Commonwealth responds that the trial court properly consolidated

the cases against Appellant. Commonwealth’s Brief at 15. The

Commonwealth asserts that “[t]he evidence of [Appellant’s] crimes would

have been admissible in separate trials to show [his] common scheme, plan,

or design” under Pa.R.E. 404(b)(2). Id. at 17. Further, the Commonwealth

argues that “[t]he trial court’s instructions ensured that the jury would use

the evidence of the other cases only for its admitted purpose, and thus

prevented any potential prejudice from the consolidation.” Id. at 24. Finally,

the Commonwealth contends that Appellant’s “claim of prejudice is based only

on M.P.B.’s inability to testify at trial due to her emotional difficulty. Yet the

trial court could not have predicted that M.P.B. would not be able to testify at

trial when it made its pre-trial ruling on [Appellant’s] motion to sever.” Id. at

24-25.

“Joinder and severance of separate indictments for trial is a

discretionary function of the trial court; consequently, the trial court’s decision

is subject to review for abuse of that discretion.” Commonwealth v.

Brookins, 10 A.3d 1251, 1255 (Pa. Super. 2010) (citations omitted). “The

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critical consideration is whether the appellant was prejudiced by the trial

court’s decision not to sever. The appellant bears the burden of establishing

such prejudice.” Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super.

2010) (citation omitted and some formatting altered).

Pursuant to Rule 582 of the Pennsylvania Rules of Criminal Procedure,

“[o]ffenses charged in separate indictments or informations may be tried

together if . . . the evidence of each of the offenses would be admissible in a

separate trial for the other and is capable of separation by the jury so that

there is no danger of confusion.” Pa.R.Crim.P. 582(A)(1).

Additionally, Rule 583 provides that “[t]he court may order separate

trials of offenses or defendants, or provide other appropriate relief, if it

appears that any party may be prejudiced by offenses or defendants being

tried together.” Pa.R.Crim.P. 583. However, “[u]nder Rule 583, the prejudice

the defendant suffers due to the joinder must be greater than the general

prejudice any defendant suffers when the Commonwealth’s evidence links him

to a crime.” Dozzo, 991 A.2d at 902 (citation omitted).

This Court has set forth the following three-part test for evaluating

whether joinder is appropriate in matters involving different acts or

transactions:

(1) whether the evidence of each of the offenses would be
admissible in a separate trial for the other; (2) whether such
evidence is capable of separation by the jury so as to avoid danger
of confusion; and, if the answers to these inquiries are in the
affirmative, (3) whether the defendant will be unduly prejudiced
by the consolidation of offenses.

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Brookins, 10 A.3d at 1256 (citations omitted).

The trial court’s “initial determination of admissibility is critical to the

court’s disposition of the severance motion; thus, the evidence must be

weighed in no less rigorous a fashion than if it were proffered for admission

at trial.” Id. (citation omitted). Of relevance to this case, Pa.R.E. 404(b)

provides that “[e]vidence of a crime, wrong, or other act is not admissible to

prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character.” Pa.R.E. 404(b)(1). However,

“[t]his evidence may be admissible for another purpose, such as proving

motive, opportunity, intent, preparation, plan, knowledge, identity, absence

of mistake, or lack of accident. In a criminal case this evidence is admissible

only if the probative value of the evidence outweighs its potential for unfair

prejudice.” Pa.R.E. 404(b)(2).

Second, the trial court must determine whether joinder would pose a

danger of confusing the jury. Brookins, 10 A.3d at 1256. Our Supreme Court

has held that where the criminal offenses at issue are distinguishable in time,

place and parties involved, a jury is capable of separating the evidence. See

Commonwealth v. Collins, 703 A.2d 418, 423 (Pa. 1997).

Finally, the trial court must evaluate whether joinder would unfairly

prejudice the defendant. Brookins, 10 A.3d at 1256; see also Pa.R.Crim.P.

583. This Court has explained that

[t]he prejudice of which Rule 583 speaks is . . . that which would
occur if the evidence tended to convict the [defendant] only by
showing his propensity to commit crimes, or because the jury was

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incapable of separating the evidence or could not avoid
cumulating the evidence. Additionally, the admission of relevant
evidence connecting a defendant to the crimes charged is a
natural consequence of a criminal trial, and it is not grounds for
severance by itself.

Dozzo, 991 A.2d at 902 (citation omitted).

Here, the trial court addressed Appellant’s severance claim as follows:

[T]he Commonwealth sought to consolidate three cases involving
sexual abuse committed by [Appellant] against his two daughters,
T.L. and A.L., and [Appellant’s girlfriend’s] daughter, M.P.B. Each
victim was a young female under thirteen years of age. These
incidents occurred during approximately the same time period,
from July 2013 until August 2015. They took place in [Appellant’s]
residences while the victims were in his care. Furthermore, the
assaults typically took place at night. The similarities shared by
these cases evidence a common scheme, and each offense would
have been admissible in a separate trial for the others. Moreover,
the evidence was capable of separation by the jury because the
assaults took place at different times and involved different
victims. Finally, any potential prejudice impact from the
introduction of this evidence did not outweigh the probative value.
The [c]ourt gave the following instruction to the jury:

In this trial, two cases[4] have been consolidated to be tried
together. The law permits this joint trial because evidence
of one case would be admissible in the trial of the other case
as relevant to [Appellant’s] common plan, scheme, or
design. [H]owever, each case is separate and distinct. You
should consider the cases as separate individual cases and
the evidence and the law I give to you as it relates to each
case just as you would in each case alone having been tried
before you. Once again, you [are] trying two separate cases
at one time. For this reason, you have to pay special
attention to the evidence so as to be able to properly
segment it. You can consider with respect to each offense
the evidence presented in support of the other offense for
the limited purpose of establishing [Appellant’s] common
____________________________________________

4As noted previously, the trial court granted Appellant’s motion for judgment
of acquittal on the charges relating to M.P.B.

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plan, scheme, or design. You must not regard this evidence
as showing that [Appellant] is a person of bad character or
has criminal tendencies from which you may be inclined to
infer guilt. If you find [Appellant] is guilty, it must be
because you are convinced by the evidence by proof beyond
a reasonable doubt that he committed each and every
element of the crimes charged.

In her opening statement, the prosecutor also noted the reason
for consolidation of the cases. Therefore, [the trial c]ourt did not
abuse its discretion in granting the Commonwealth’s motion to
consolidate and denying [Appellant’s] motion to sever.

Trial Ct. Op. at 5-6 (some formatting altered).

Based on our review of the record, we discern no abuse of discretion by

the trial court in denying Appellant’s motion to sever. See Brookins, 10 A.3d

at 1255. The trial court properly concluded that the evidence of each offense

would be admissible in a separate trial for the other offenses, as it tended to

establish Appellant’s common plan or scheme. See id.; see also Pa.R.E.

404(b)(2). Further, the evidence was separable by the jury, as the crimes

occurred on different dates and involved different victims. See Dozzo, 991

A.2d at 902; see also Collins, 703 A.2d at 423. Finally, we agree with the

trial court that Appellant failed to establish undue prejudice. See Brookins,

10 A.3d at 1256; see also Commonwealth v. Judd, 897 A.2d 1224, 1232

(Pa. Super. 2006) (concluding that the appellant was not prejudiced by the

trial court’s consolidation of his two cases, where the evidence “constituted an

ongoing course of extremely similar sexual abuse against two youthful

victims,” and was separable by the jury). Accordingly, Appellant is not entitled

to relief on this claim.

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Course of Conduct Hearsay Evidence

In his next claim, Appellant argues that the trial court erred in permitting

several witnesses to testify about allegations involving M.P.B. through “course

of conduct” hearsay testimony. Appellant’s Brief at 23. However, as discussed

previously, the trial court found that Appellant waived this claim, as his Rule

1925(b) statement did not identify “which allegation of error correspond[ed]

to each piece of testimony,” which precluded the court from conducting

meaningful review. Trial Ct. Op. at 11; see also Pa.R.A.P. 1925(b)(4)(ii)

(requiring that a Rule 1925(b) statement “concisely identify each error that

the appellant intends to assert with sufficient detail to identify the issue to be

raised for the judge”). Based on our review of the record, we agree that

Appellant’s claim is waived. See Pa.R.A.P. 1925(b)(4)(vii) (stating that issues

not included in a Rule 1925(b) statement are waived”); see also Pa.R.A.P.

302(a) (stating that “[i]ssues not raised in the lower court are waived and

cannot be raised for the first time on appeal”). Therefore, we decline to

address it on appeal.

Tender Years Exception

Appellant next argues that the trial court erred by allowing Ms. P. and

Ms. B. to testify regarding A.L.’s hearsay statements under the Tender Years

exception. Appellant’s Brief at 31. Appellant asserts that although A.L. was

“uncomfortable testifying,” it “was not proven to be linked to emotional

distress. Indeed, neither of the two adult witnesses at the hearing testified

as to any emotional distress.” Id. at 34. Therefore, Appellant concludes that

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there was insufficient evidence to prove A.L.’s unavailability for purposes of

the Tender Years exception. Id.

Additionally, Appellant argues that the Commonwealth failed to

establish that A.L.’s out-of-court statements were sufficiently reliable. Id. He

asserts that Ms. B. “testified to a substantial amount of uncertainty regarding

the statements made . . . by A.L.” and “[Ms. P.]’s testimony left unclear

whether or not A.L. was disclosing after she learned her sister, T.L., had

disclosed, or what kind of questions [Ms. P.] posed to A.L.” Id. at 34.

Therefore, Appellant concludes that the trial court erred in admitting A.L.’s

statements.

The Commonwealth responds that at the Tender Years hearing, “A.L.

did not provide responses to questions about the abuse and instead looked

down. When asked to identify [Appellant], A.L. began ‘breathing heavily in

and out’ and began to cry.” Commonwealth’s Brief at 33. Further, the

Commonwealth argues that contrary to Appellant’s claim, both Ms. B. and Ms.

P. provided testimony relating to A.L.’s emotional distress. Id. Specifically,

the Commonwealth notes that both Ms. B. and Ms. P. stated that when asked

about the abuse, A.L. “responded exactly as she did at the hearing—by looking

down and playing with her fingers.” Id. Under these circumstances, the

Commonwealth contends that “[t]he trial court was in the best position to

evaluate A.L.’s emotional distress at the hearing, and its finding that A.L. was

unavailable to testify at trial was not an abuse of discretion.” Id.

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With respect to Appellant’s claims regarding reliability, the

Commonwealth responds that Ms. B. “did not exhibit uncertainty that the

sexual assault occurred or about the specific acts described” but instead

expressed uncertainty about when A.L. told Ms. B. about each detail of the

abuse. Id. at 34. The Commonwealth also asserts that contrary to Appellant’s

contention, Ms. P. “specifically testified that she asked A.L., ‘Is anything

happening to you? Are you going through anything? Did anybody touch your

private areas?’” Id. at 35. Under these circumstances, the Commonwealth

concludes that “the trial court did not abuse its discretion by concluding that

the consistent and detailed testimony from [Ms. B.] and [Ms. P.] about A.L.’s

allegations was relevant and reliable.” Id.

“[Q]uestions concerning the admissibility of evidence lie within the

sound discretion of the trial court, and [a reviewing court] will not reverse the

court’s decision on such a question absent a clear abuse of discretion.”

Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa. Super. 2005) (citation

omitted). Likewise, we apply an “abuse of discretion” standard when

reviewing admission of statements under the tender years exception.

Commonwealth v. Curley, 910 A.2d 692, 697 (Pa. Super. 2006) (citation

omitted).

“Generally, an out-of-court statement is inadmissible at trial unless it

falls into one of the exceptions to the hearsay rule.” Hunzer, 868 A.2d at

510; see also Pa.R.E. 803. One such exception is the Tender Years exception,

which “allows for the admission of a child’s out-of-court statement due to the

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fragile nature of young victims of sexual abuse.” Commonwealth v. Fink,

791 A.2d 1235, 1248 (Pa. Super. 2002) (citation omitted).

The Tender Years exception to the rule against hearsay provides, in

relevant part, as follows:

(a) General rule.—

(1) An out-of-court statement made by a child victim or witness,
who at the time the statement was made was 12 years of age or
younger, describing any of the offenses enumerated . . . , not
otherwise admissible by statute or rule of evidence, is admissible
in evidence in any criminal or civil proceeding if:

(i) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and
circumstances of the statement provide sufficient indicia of
reliability; and

(ii) the child either:

(A) testifies at the proceeding; or

(B) is unavailable as a witness.

(a.1) Emotional distress.—In order to make a finding under
subsection (a)(1)(ii)(B) that the child is unavailable as a witness,
the court must determine, based on evidence presented to it, that
testimony by the child as a witness will result in the child suffering
serious emotional distress that would substantially impair the
child's ability to reasonably communicate. In making this
determination, the court may do all of the following:

(1) Observe and question the child, either inside or outside
the courtroom.

(2) Hear testimony of a parent or custodian or any other
person, such as a person who has dealt with the child in a
medical or therapeutic setting.

42 Pa.C.S. § 5985.1.

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“Even though the Act does not mandate the type of evidence upon which

the court must rely, it does require that some concrete evidence of serious

emotional distress be presented.” Fidler v. Cunningham-Small, 871 A.2d

231, 238 (Pa. Super. 2005). “[I]n the absence of expert witnesses, the trial

court’s in camera examination of the child is the better practice in order to

insure that the determination of unavailability is well-founded.” Id.

Additionally, this Court has explained:

The factors to be considered by a trial court in determining
whether the child declarant was likely to be telling the truth when
the statement was made include:

(1) the spontaneity and consistent repetition of the statement(s);
(2) the mental state of the declarant; (3) the use of terminology
unexpected of a child of similar age; and (4) the lack of motive to
fabricate.

Hunzer, 868 A.2d at 510 (citation omitted).

Here, the trial court addressed Appellant’s claim as follows:

The [trial c]ourt conducted an in camera hearing on January 10,
2018, immediately preceding the commencement of trial, during
which A.L., [Ms. B.], and [Ms. P.] testified. Th[e trial c]ourt
determined A.L.’s statements to [Ms. B.] and [Ms. P.] regarding
the sexual abuse were reliable and relevant. This [c]ourt also
found that A.L. was unavailable to testify based on “serious
emotional distress [] substantially impair[ing] her ability to
reasonably communicate.”

[Appellant] alleges that A.L. was not unavailable to testify. At the
start of the hearing, the prosecutor asked A.L. if she recognized
[Appellant]. She responded that she did. When asked to identify
him, however, A.L. began to cry and look down. It took several
more attempts by the prosecutor before A.L. could point out
[Appellant] in the courtroom. Though A.L. was able to give
appropriate answers to a number of questions, she was unable to
communicate about the sexual abuse. Instead, A.L. looked down

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and was unresponsive. [Ms. B.] also testified that when she first
asked A.L. whether she had been touched inappropriately, A.L.
“put her head down and started playing with her fingers.”
Similarly, [Ms. P.] testified that in response to questions, A.L. did
not immediately respond and looked down. After observing A.L.
inside the courtroom and hearing from [Ms. B.] and [Ms. P.], this
[c]ourt concluded that A.L. was unavailable to testify due to
serious emotional distress that would substantially impair her
ability to reasonably communicate.

[Appellant] also alleges that the out-of-court statements made by
A.L. to [Ms. B.] and [Ms. P.] were not sufficiently reliable. . . .

On August 13, 2015, after speaking to T.L., [Ms. B.] questioned
each of her children individually. At the hearing, [Ms. B.] testified
that when she spoke to A.L., she asked her if anyone had touched
her inappropriately. At first, A.L. looked down and played with
her fingers. [Ms. B.] explained to A.L. that she would call the
police if anyone had touched her body. At that point, A.L. began
to cry and said, “My dad.” She eventually told [Ms. B.] that
[Appellant] placed his “private” inside of her mouth and touched
her with his fingers. The following morning, on the way to the
hospital, A.L. also told [Ms. B.] that [Appellant] applied Vaseline
to her “butt” and then tried to place his “private” inside. A.L.
explained to [Ms. B.] that [Appellant] stopped when she cried.

[Ms. P.] testified that on August 13, 2015, while [Ms. B.] was on
the phone with the police, she spoke to A.L. privately. [Ms. P.]
asked A.L. if anybody had touched her private areas. A.L’s initial
response was to look down. She then said, “Yeah. My dad.”
Eventually, A.L. told [Ms. P.] that [Appellant] touched her “private
parts” with his fingers and placed his “private areas” in her mouth.
Following the testimony, this [c]ourt found that A.L.’s out-of-court
statements were both reliable and relevant. The disclosures to
[Ms. B.] and [Ms. P.] were the first made by A.L. following the
incidents of abuse. Both statements, identifying [Appellant] and
describing his actions, were relevant to establish the elements of
the offenses with which [Appellant] was charged[.] Therefore,
this [c]ourt properly allowed the admission of statements made
by A.L. to [Ms. B.] and [Ms. P.] for use at trial.

Trial Ct. Op. at 8-10.

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Based on our review of the record, we discern no abuse of discretion by

the trial court in admitting A.L.’s hearsay statements under the Tender Years

hearsay exception. See Hunzer, 868 A.2d at 510; see also Curley, 910

A.2d at 697. As noted previously, the trial court conducted an in camera

hearing and had the opportunity to observe A.L., who immediately began

crying when asked about Appellant. See N.T. Tender Years Hr’g, 1/10/18, at

4. Further, the trial court heard testimony from A.L.’s mother, Ms. B., who

described A.L.’s demeanor when she disclosed the abuse. Id. at 13-19. Based

on that testimony, the trial court concluded that A.L. “did suffer serious

emotional distress [that] substantially impairs her ability to reasonably

communicate.” Id. at 11. Therefore, the trial court properly concluded that

A.L. was unavailable for purposes of the Tender Years hearsay exception. See

Hunzer, 868 A.2d at 510.

With respect to reliability, the trial court noted that Ms. B. and Ms. P.

provided similar accounts regarding A.L.’s statements. See N.T. Tender Years

Hr’g, 1/10/18, at 13-19, 43-46. Both witnesses used identical terminology to

describe A.L.’s account of the abuse and also described A.L.’s fragile emotional

state at the time of her disclosure. Under these circumstances, the trial court

properly concluded that the content and circumstances of A.L.’s statements

were sufficiently reliable. See 42 Pa.C.S. § 5985.1(a)(1)(i); see also

Hunzer, 868 A.2d at 510. For these reasons, Appellant is not entitled to relief

on this claim.

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Motion for a Mistrial

In his remaining claim, Appellant argues that the trial court erred by

denying his motion for a mistrial based on statements by the prosecutor

during her closing argument. Appellant’s Brief at 35. Appellant contends that

the Commonwealth engaged in “deliberate falsification of prejudicial and

irrelevant evidence” by misrepresenting T.L.’s testimony. Id. Specifically,

Appellant refers to the Commonwealth’s statement that T.L. testified about “a

time when she was in the room, [Appellant] came in, and he went straight for

the bed, and he went under the covers.” Id. at 36 (citing N.T. Trial, 1/12/18,

at 70). Appellant contends that the Commonwealth intentionally

mischaracterized T.L.’s testimony in order to “embellish the evidence

regarding M.P.B. to make Appellant look guilty of something the

Commonwealth could not prove.” Id. Further, Appellant contends that “[b]y

springing this argument on [A]ppellant when he had no chance to respond,

other than with an objection, the prosecutor placed defense counsel in a

‘heads I win, tails you lose’ proposition.” Id. at 37.

The Commonwealth responds that Appellant failed to preserve his

instant claim at trial or in his Rule 1925(b) statement. Commonwealth’s Brief

at 36. The Commonwealth asserts that although Appellant moved for a

mistrial after the Commonwealth’s closing argument, he did so for different

reasons than the ones he now asserts on appeal. Id. at 35-36. Further, the

Commonwealth contends that although Appellant “objected during the portion

of the prosecutor’s argument about T.L.’s testimony, he did not request a

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mistrial at that point on the record, and argument about the objection and the

court’s ruling were held at sidebar, off the record.” Id. at 36. Therefore, the

Commonwealth asserts that “[b]ased on the record and [Appellant’s] Rule

1925(b) statement, the trial court had no way of responding to [Appellant’s]

claim of prosecutorial misconduct that he raises for the first time in his brief

before this Court. The claim is therefore waived and unreviewable.” Id.

It is well settled that “[i]n order to preserve a claim of prosecutorial

misconduct for appeal, a defendant must make an objection and move for a

mistrial.” Commonwealth v. Sasse, 921 A.2d 1229, 1238 (Pa. Super.

2007).

Here, our review of the record confirms that although Appellant

requested a mistrial after the Commonwealth’s closing argument, he did so

based on (1) M.P.B.’s behavior in the courtroom and (2) the witnesses’

conduct in the courtroom during closing arguments. See N.T. Trial, 1/12/18,

at 89-90. These assertions of error are different from Appellant’s current

claim of prosecutorial misconduct. Therefore, because Appellant did not

properly preserve his instant claim before the trial court, it is waived. See

Pa.R.A.P. 302(a) (stating that “[i]ssues not raised in the lower court are

waived and cannot be raised for the first time on appeal”); see also

Commonwealth v. Rush, 959 A.2d 945, 949 (Pa. Super. 2008) (reiterating

than an appellate court cannot review a legal theory in support of a claim

unless that particular legal theory was presented to the trial court).

Accordingly, Appellant is not entitled to relief.

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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/23/2020

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