Com. v. Soto, R.

J-S08037-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD SOTO :
:
Appellant : No. 1053 MDA 2021

Appeal from the Judgment of Sentence Entered February 25, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0002599-2014

BEFORE: BOWES, J., NICHOLS, J., and McCAFFERY, J.

MEMORANDUM BY McCAFFERY, J.: FILED AUGUST 09, 2022

Richard Soto (Appellant) appeals from the judgment of sentence entered

in the Dauphin County Court of Common Pleas, following his jury convictions

of rape of a child1 and related offenses. Appellant argues the trial court erred

in: (1) denying relief on his Brady violation claim;2 (2) permitting the minor

victim to testify with a comfort dog; and (3) not charging the jury charge as

to the victim’s admission that she lied at the preliminary hearing. We affirm.

I. Facts & Procedural History

The Commonwealth charged Appellant with rape of a child and related

offenses, arising from his repeated sexual abuse of M.M. (the Victim), the then

____________________________________________

1 18 Pa.C.S. § 3121(c).

2 See Brady v. Maryland, 373 U.S.83 (1963).
J-S08037-22

five-year-old daughter of his live-in paramour.3 At a first trial in November of

2015, the jury found Appellant guilty of rape of a child and related offenses,

and the trial court subsequently imposed an aggregate sentence of 20 to 40

years’ imprisonment. In April of 2017, on direct appeal, this Court affirmed

the judgment of sentence.4

Appellant then filed a timely Post Conviction Relief Act5 petition, raising

several claims of trial counsel’s ineffectiveness. Following a hearing, the PCRA

court denied relief. On appeal, however, a panel of this Court reversed,

concluding trial counsel was ineffective for not calling character witnesses.6

This Court vacated the judgment of sentence and remanded for a new trial.

The new trial commenced on November 2, 2020. The Commonwealth

first called Diane Higgins, the Victim’s learning support teacher in 2013. At

that time, the Victim was eight years old, was in second grade, but was

generally “functioning intellectually” a year behind, as if “on a first grade

level.” N.T. Jury Trial Vol. I, 11/2/20, at 39-40. Around Halloween of that

year, Higgins directed the class to “complete a drawing of a monster.” Id. at

____________________________________________

3 M.M. was born in May of 2005. N.T., Jury Trial Vol. II, 11/3/20, at 86.

4Commonwealth v. Soto, 840 MDA 2016 (unpub. memo.) (Pa. Super. Apr.
13, 2017).

5 42 Pa.C.S. §§ 9541-9546.

6Commonwealth v. Soto, 170 MDA 2019 (unpub. memo. at 22) (Pa. Super.
Sept. 13, 2019).

-2-
J-S08037-22

45. The Victim complied with the assignment but covered the paper with her

hand. Id. at 46, 49. Higgins described the monster, drawn by the Victim, as

having “a penis with yellow stuff coming out of it.” Id. at 48. Higgins

immediately reported this drawing to the school guidance counselor, Anna

Smith. See id. at 50.

Guidance Counselor Smith testified to the following: she talked with the

Victim the next day. N.T., 11/2/20, at 66. When asked what was between

the monster’s legs, the Victim responded, “[I]t was a pipe that went over the

toilet that pee came out of.” Id. at 68. Upon further questioning, the Victim

“said she had a secret,” which “had to do with sex.” Id. at 68. The Victim

stated “her mom’s boyfriend Rich . . . put his winky in her mom and that he

put it in her.” Id. at 69. The Victim explained: a “winky” “was his private

part[;]” “he put it in her parties [sic]” and “moved it back and forth,” “put the

winky in her mouth and . . . move[d] it with his hands,” and “put his winky in

her butt[;]” and “green stuff” came out of “the hole of his winky[.]” Id. at

69-70. The Victim also told Smith “that she tried to tell her mom,” but “[h]er

mother didn’t believe her and . . . whooped her.”7 Id. at 72. Smith reported

these allegations to the authorities. Id. at 75.

____________________________________________

7 Following the report, the Victim lived with her grandmother, while the
Victim’s two younger siblings remained with their mother. The Victim’s
mother testified as a defense witness at the first trial in 2015; she did not
believe the abuse occurred, denied that the Victim told her about the abuse,
(Footnote Continued Next Page)

-3-
J-S08037-22

At the beginning of the second day of trial, Appellant’s counsel advised

he had learned the Victim would testify with a comfort dog, and objected.8

N.T., 11/3/20, at 83. He argued it would be “unfairly prejudicial,” would send

“a signal that [Appellant] is somebody who was feared[,]” and would bolster

Victim’s credibility. Id. Appellant also cited “due process grounds,” without

any further explanation. Id. The Commonwealth responded: therapy dogs

were “routinely allowed” in Dauphin County; the jurors would not “even see

the dog,” who would be behind a barrier; and it was “traumatic” for the 15-

year old Victim to testify about sexual abuse at the hands of Appellant. Id.

The trial court permitted the comfort dog. We note its sole explanation to the

jury was, “[A]s you can see, there’s a service dog here. The dog’s name is

Dublin, and the dog’s handler, Cathy, will be seated behind.” Id. at 84. No

further mention about the dog was made, and the trial transcript does not

indicate any disruption caused by or related to the dog. See id. at 85-145.

The Victim then testified to the following: at the time of trial, she was

15 years old. N.T., 11/3/20, at 86. She was five years old when Appellant

____________________________________________

and was still engaged to Appellant. Soto, 170 MDA 2019 at 6. Appellant also
testified at the first trial.

Neither the mother nor Appellant testified at the second trial in 2020.
At that time, the Victim was living with her grandparents, while her mother
and younger siblings were living in Louisiana. N.T., 11/3/20, at 89-90.

8On appeal, Appellant’s counsel avers he did not know about the comfort dog
until they walked into the courtroom that day. Appellant’s Brief at xiii.

-4-
J-S08037-22

moved in with her family. Id. at 93. Approximately two weeks thereafter,

she was watching television with her two younger siblings when Appellant told

her to go to his bedroom. Id. at 95-96. Appellant told her to pull down her

pants and lay on the bed, and he unbuckled his pants and “put his penis” in

her vagina. Id. at 96-98. The Victim laid still on her back while Appellant

“rocked with his penis.” Id. at 99-100. On another occasion, Appellant “made

[the Victim] go on the bed like a doggie[,] and started pushing [his penis]

forward and backwards into [her] butt.” Id. at 102. Additionally, twice

Appellant put his penis in the Victim’s mouth “and green stuff came out.” Id.

at 105. Appellant also touched the Victim’s vagina with his hands and

“lick[ed]” her vagina. Id. at 110.

The Victim further testified she once told her mother about these

incidents. N.T., 11/3/20, at 113-14. The Victim stated her mother “didn’t

believe” her, “was upset with” her, but did not do anything. Id. at 114.

However, upon being shown her own prior testimony in this matter, 9 the

Victim stated her mother “spanked” her, and the following day, Appellant told

the Victim that “if [she told] again he will kill” her. Id. at 116.

____________________________________________

9 While the transcript indicates this prior testimony was given “seven years”
earlier, there was no further explanation about the hearing in which it was
given. See N.T., 11/3/20, at 115. We note that on cross-examination,
defense counsel showed the Victim her preliminary hearing testimony of May
7, 2014. Id. at 135.

-5-
J-S08037-22

Relevant to Appellant’s Brady claim, we note that although the

Commonwealth had, on its witness list, the lead detective in this matter —

Middletown Police Detective Mark Hovan, — it chose not to call him before

resting its case-in chief. Appellant, however, called Detective Hovan to testify

as if on cross-examination. N.T. Jury Trial Vol. III, 11/4/20, at 235-36.

Pertinently, Detective Mark Hovan stated he was “retired” from the police

department. Id. at 237.

Appellant also called two character witnesses, but did not testify himself.

The jury found him guilty of rape of a child, involuntary deviate sexual

intercourse with a child (IDSI), aggravated indecent assault of a child,

indecent assault of a child under 13 years of age, corruption of minors, and

unlawful contact with a minor.10

Thereafter, on November 19, 2020, Appellant filed a motion for

extraordinary relief, alleging the Commonwealth committed a Brady violation

by not disclosing Detective Hovan had been suspended from the police

department, and had resigned “instead of accepting the suspension.”11

Appellant’s Motion for Extraordinary Relief due to Prosecutorial Misconduct,

11/19/20, at 2 (unpaginated). Appellant averred, “News report indicate that

____________________________________________

10 18 Pa.C.S. §§ 3123(b), 3125(b), 3126(a)(7), 6301(a)(1).

11The trial court explained that Detective Hovan was suspended in January of
2018, which was after Appellant’s first trial, but before the second trial. See
Trial Ct. Op., 7/6/21, at 5.

-6-
J-S08037-22

Detective Hovan . . . conduct[ed] personal business such as attending church

services while clocked in at work[,]” was “warned not to do this [but]

disobeyed a direct order from the police chief[.]” Id. Appellant stated he was

not aware of this history at the time of trial, and thus could not examine the

detective about the suspension. Id. at 3 (unpaginated). Upon the trial court’s

direction, the Commonwealth filed an answer.

The trial court then conducted a sentencing hearing on February 25,

2021. Appellant first argued in support of his Brady claim. The court denied

the motion for extraordinary relief, without prejudice for Appellant to re-raise

the issue in a post-sentence motion. N.T. State Sentence, 2/25/21, at 8. The

court then imposed two consecutive terms of 10 to 20 years’ imprisonment,

on the rape of a child and IDSI counts, as well as concurrent sentences on the

remaining counts. Appellant’s aggregate sentence, 20 to 40 years, was thus

identical to the prior aggregate sentence, imposed in 2016. Finally, Appellant

was directed to register for life as a Tier-III offender under the Sex Offender

Registration and Notification Act (SORNA).12 Id. at 25.

Appellant filed a timely post-sentence motion, again presenting a claim

of a Brady violation, as well as challenging the presence of the comfort dog

____________________________________________

12 42 Pa.C.S. §§ 9799.10 to 9799.75. See 42 Pa.C.S. §§ 9799.14(d)(2)
(conviction of rape, 18 Pa.C.S. § 3121, is a Tier III sexual offense),
9799.15(a)(3) (individual convicted of a Tier III sexual offense shall register
for life).

-7-
J-S08037-22

at trial. The trial court held a hearing on June 8, 2021. The Commonwealth

had submitted Detective Hovan’s police disciplinary records for the court’s in

camera review. N.T. Post-Sentence Hearing, 6/8/21, at 3. The

Commonwealth also called the trial prosecutor, Erin Varley, Esquire, who

testified, inter alia, that when she was assigned the underlying criminal matter

in January of 2020, she was not aware Detective Hovan had any disciplinary

issues, and she did not learn of it until after trial, when defense counsel

contacted her. N.T. Post-Sentence Hearing, 6/8/21, at 6.

The trial court denied the post-sentence motion on July 6, 2021.

Appellant filed a timely notice of appeal, and following a timely request for an

extension of time, complied with the court’s order to file a Pa.R.A.P. 1925(b)

statement of errors complained of on appeal.13

II. Statement of Questions Involved

Appellant presents the following issues for our review:

I. Whether the trial court erred in denying the motion for
extraordinary relief and post-sentence motions seeking a new trial
where the Commonwealth committed a Brady violation by failing
to disclose that the affiant had been disciplined for conducting
personal business while on the clock as a police officer and in
____________________________________________

13 The trial court’s Rule 1925(b) order was entered on August 12, 2021, but
the corresponding docket entry states notice to the parties was not given until
the next day, August 13th. The 21-day period for filing the statement thus
did not commence until the later date, and ended August 3rd. See
Pa.R.Crim.P. 114(C)(2)(c) (docket entries shall contain date of service).
Appellant timely filed his request for an extension of time on August 3rd, and
subsequently filed the Rule 1925(b) statement before the court’s new deadline
of October 4th.

-8-
J-S08037-22

response to the discipline, the affiant had resigned and sued the
police department[?]

II. Whether the trial court erred in reviewing the disciplinary
record for the assigned detective ex parte in chambers instead of
requiring the Commonwealth to provide a copy of the records to
the defense[?]

III. Whether the trial court abused its discretion in permitting the
complainant to testify with the aid of a comfort dog where the trial
court did not comply with any of the procedures required by
Commonwealth v. Purnell, 259 A.3d 974, 986 (Pa. 2021), such
as providing advance notice and holding a hearing, minimizing the
ability of the jurors to see the dog, providing a cautionary
instruction, and holding an individualized hearing to determine
whether the complainant in fact needed the dog in order to testify
truthfully[?]

IV. Whether the trial court erred in failing to instruct the jury as
to certain testimony subject to special scrutiny, Pennsylvania
Standard Criminal Instruction 4.06, because the complainant
testified at the preliminary hearing that she had lied under oath
about the allegations in this case[?]

Appellant’s Brief at viii-ix.14

III. Brady Violation

In his first issue, Appellant reiterates the Commonwealth committed a

Brady violation, for which he is entitled to a new trial. Our review of a Brady

violation ruling “presents a question of law, for which our standard of review

____________________________________________

14Appellant raised an additional issue in his Rule 1925(b) statement — that
the trial court erred in denying his motion in limine to preclude admission of
the Victim’s monster drawing. However, he has abandoned this issue on
appeal.

-9-
J-S08037-22

is de novo and our scope of review is plenary.” Commonwealth v. Bagnall,

235 A.3d 1075, 1084 (Pa. 2020).

Appellant avers the following: “There is no question the Commonwealth

knew about the evidence[,]” it “affirmatively misrepresented that Detective

Hovan had ‘retired’” from the police force, and it knowingly failed to disclose

the correct information. Appellant’s Brief at 2, 5-6. He insists the trial court

erred in concluding “the defense should have uncovered this information on

its own,” where “the entire burden of Brady falls on the Commonwealth[, the]

defense has no duty to seek out material[,]” and it was “immaterial” whether

the evidence was a matter of public record. Appellant’s Brief at 6, 7, citing,

inter alia, Dennis v. Sec’y, Pa. Dep’t of Corr., 834 F.3d 263, 284 (3d Cir.

2016) (en banc). Furthermore, the Brady evidence was material because it

would have impeached Detective Hovan, who was “at least the second most

important witness.” Appellant’s Brief at 9. The defense theory at trial was

“that Detective Hovan had done a solid investigation which did not undercover

any other evidence of sexual assault because the assault had not occurred.”15

Id. Had the Brady evidence been provided, the defense strategy “likely would

have changed,” as the credibility of both Detective Hovan and the

investigation would have been in doubt. Id. at 10. “[T]he jury would have

____________________________________________

15 Appellant also avers, however, that Detective Hovan “was not particularly
credible on the stand.” Appellant’s Brief at 9.

- 10 -
J-S08037-22

heard that [the Victim] was interviewed by a detective who cannot follow

police directives[ ]” and was terminated due to misconduct. Id. at 12.

In his second issue, Appellant argues in the alternative that he “should

be permitted to inspect Detective Hovan’s disciplinary records, so that [he]

can brief the issues with access to the actual facts.” Appellant’s Brief at 14.

Appellant maintains that a defendant “is entitled to review records where [they

have] articulated a reason to believe that the records may contain exculpatory

information.” Id. at 16. We conclude no relief is due.

Our Supreme Court has explained:

Brady and subsequent precedent . . . impose[ ] upon a prosecutor
the obligation to disclose all favorable evidence that is material to
the guilt or punishment of an accused, even in the absence of a
specific request by the accused. [T]o establish a Brady violation,
a defendant has the burden to prove that: (1) the evidence at
issue was favorable to the accused, either because it is
exculpatory or because it impeaches; (2) the prosecution has
suppressed the evidence, either willfully or inadvertently; and (3)
the evidence was material, meaning that prejudice must have
ensued.

Bagnall, 235 A.3d at 1085-86 (citations omitted).

We further note:

“[I]mpeachment evidence is material, and thus subject to
obligatory disclosure, if there is a reasonable probability that had
it been disclosed the outcome of the proceedings would have been
different.” In analyzing whether a defendant has demonstrated a
reasonable probability of a different outcome, “[t]he question is
not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in its
absence he received a fair trial, understood as a trial resulting in
a verdict worthy of confidence.” Stated differently, a defendant
shows a “reasonable probability” of a different outcome when the

- 11 -
J-S08037-22

government’s suppression of evidence “undermines confidence in
the outcome of the trial.”

Bagnall, 235 A.3d at 1087 (citations omitted).

However, “no Brady violation occurs where the parties had equal access

to the information or if the defendant knew or could have uncovered such

evidence with reasonable diligence.” Bagnall, 235 A.3d at 1091 (citation

omitted). See also Commonwealth v. Sandusky, 203 A.3d 1033, 1062

(Pa. Super. 2019) (“Brady is not violated when the appellant knew or, with

reasonable diligence, could have uncovered the evidence in question, or when

the evidence was available to the defense from other sources.”) (citation

omitted).

Detective Hovan was suspended from the police department in January

of 2018, “nearly five years after the underlying incident” occurred. Trial Ct.

Op., 7/6/21, at 5. Appellant ignores trial prosecutor Attorney Varley’s

testimony that she was not aware of it when she was assigned this case in

January 2020 and, importantly, the trial court’s crediting this testimony. See

N.T., 6/8/21, at 6; Trial Ct. Op., 7/6/21, at 7. See also Commonwealth v.

Hicks, 151 A.3d 216, 222 (Pa. Super. 2016) (“[T]he trier of fact while passing

upon the credibility of witnesses and the weight of the evidence produced, is

free to believe all, part or none of the evidence.”) (citation omitted). We note

Appellant’s reliance on federal decisions that impose the burden of

ascertaining information solely on the Commonwealth. See e.g. Dennis, 843

F.3d at 293 (“To the extent that we have considered defense counsel’s

- 12 -
J-S08037-22

purported obligation to exercise due diligence to excuse the government’s

non-disclosure of material exculpatory evidence, we reject that concept as an

unwarranted dilution of Brady’s clear mandate.”). However, we apply the

well settled Pennsylvania rule, that “no Brady violation occurs where the

parties had equal access to the information or if the defendant knew or could

have uncovered such evidence with reasonable diligence.” See Bagnall, 235

A.3d at 1091; Sandusky, 203 A.3d at 1062 (Brady is not violated when the

defendant, “with reasonable diligence, could have uncovered the evidence”).

To this end, we agree with the trial court’s reasoning:

A quick Google search [of] Detective Mark Hovan would have
revealed the suspension and could have been readily obtained by
the defense.16
__________________________
16 In fact, it was [Appellant’s] family who discovered the
suspension.

See Trial Ct. Op., 7/6/21, at 6 & n.16. This finding is corroborated by Attorney

Varley’s testimony at the post-sentence hearing, that she “conducted a Google

search” of “Mark Hovan suspension” and found approximately 13 articles. See

N.T., 6/8/21, at 6-7.

Appellant further ignores the trial court’s reasons for finding the

evidence was not material to guilt or punishment. The court found:

There is not a reasonably probability that if evidence that
Detective Hovan was suspended for attending a church service
nearly five years after the alleged criminal activity took place, the
outcome of the proceedings would have changed. Such result is
unfathomable. Additionally, it was the defense who called
Detective Hovan to the stand and introduced him as their
witness.15 . . .

- 13 -
J-S08037-22

__________________________
15 The Commonwealth did have Detective Hovan on their witness
list and Detective Hovan did testify at the first trial. However,
there is nothing to suggest, nor has [Appellant] provided any case
law to suggest that the Commonwealth has to call every witness
on their witness list
__________________________

It is also inconceivable that the entire defense theory of the
case was based on Detective Hovan being a credible police witness
and not on the testimony of the [V]ictim. [T]he
uncorroborated testimony of a sexual assault victim, if believed
by the trier of fact, is sufficient to convict a defendant, despite
contrary evidence from defense witnesses. Here, the [V]ictim
testified to the gruesome details of the rape and the jury was able
to view a drawing by the victim that showed a monster with a
penis and with a “whole bunch of yellow stuff coming out of it at
the end.” Simply put, the [V]ictim’s testimony alone was enough
to convict [Appellant] of the above-mentioned charges.

Trial Ct. Op., 7/6/21, at 6-7 & n.15.

Finally, the trial court credited Attorney Varley’s reasons why she did

not call Detective Hovan to testify at trial: (1) she “usually reserve[s] the

affiant” to testify last “in case there’s anything we need to clean up[,]” such

as the age of the victim or defendant, but here, “[a]ll of those things were

taken care of through other witnesses[;]” (2) she determined Detective

Hovan’s testimony would have “no additional evidentiary value because the

only thing he really did in this investigation was collect sheets and conduct a

recorded interview with” Appellant, and the sheets produced no inculpatory

evidence and Appellant did not admit any wrongdoing in the interview; and

(3) she believed she met her burden of proof. See N.T., 6/8/21, at 8-9. For

all the foregoing reasons, we decline to disturb the trial court’s denial of relief

on Appellant’s Brady claim.

- 14 -
J-S08037-22

IV. Comfort Dog

In his third issue, Appellant alleges the trial court erred in allowing the

Victim to have a comfort dog in the witness box while she testified. He

maintains: (1) “[t]he presence of the dog suggested [the Victim] was indeed

a victim who had to be protected from [Appellant] and that even . . . the

sheriff’s deputies[‘ presence] was not sufficient to ensure her safety;” (2) “the

dog’s presence implicitly expressed a credibility determination in favor of the

[Victim], unfairly prejudiced [Appellant], and denied him his right to due

process[;]” (3) the Victim “had already testified in a prior trial and preliminary

hearing without the aid of a comfort dog[;]” and (4) Appellant suffered

prejudice, because “[a]ll of the charges depended on the credibility of the

[Victim] as there was no other evidence . . . that Appellant committed a

crime.” Appellant’s Brief at 17-20. Appellant further alleges that, in

contravention of Purnell, 259 A.3d 974: (1) the Commonwealth provided no

notice, and there was no evidence “the dog was in any way necessary . . . to

help the [Victim] testify truthfully[;]” and (2) the court failed to provide a

cautionary instruction. Id. at 18-19. We conclude no relief is due.

We first note the trial court’s July 6, 2021, opinion addressed the

Superior Court’s opinion in Purnell,16 which was then binding. See Trial Ct.

____________________________________________

16Commonwealth v. Purnell, 233 A.3d 824 (Pa. Super. 2020), aff’d, 259
A.3d 974.

- 15 -
J-S08037-22

Op., 7/6/21, at 4-5. Subsequently, the Pennsylvania Supreme Court issued

its decision in Purnell on September 22, 2021, approximately seven weeks

after Appellant filed his notice of appeal. We apply the Supreme Court’s

decision to this appeal. See Commonwealth v. Chesney, 196 A.3d 253,

257 (Pa. Super. 2018) (“Pennsylvania appellate courts apply the law in effect

at the time of the appellate decision [and] adhere to the principle that, ‘a party

whose case is pending on direct appeal is entitled to the benefit of changes in

law which occur[ ] before the judgment becomes final.’”) (citation omitted).

In Purnell, the Pennsylvania Supreme Court considered “the

appropriate test to apply to a trial court’s determination concerning whether

a witness in a criminal case may utilize a ‘comfort dog’ for support during

[their] trial testimony.” Purnell, 259 A.3d at 977. The Court reasoned, “[I]t

is indisputable that trial courts have broad discretion in controlling trial

conduct.” Id. at 984. To this end, Pennsylvania Rule of Evidence 611(a)

provides:

The court should exercise reasonable control over the mode and
order of examining witnesses and presenting evidence so as to:

(1) make those procedures effective for determining the
truth;

(2) avoid wasting time; and

(3) protect witnesses from harassment or undue
embarrassment.

Purnell, 259 A.3d at 980, 985, quoting Pa.R.E. 611(a)(1)-(3). The Court held

Rule 611 “is sufficiently comprehensive to allow a trial court to consider

- 16 -
J-S08037-22

whether a comfort dog may assist a witness in testifying in a truthful manner

during a trial.[ ]” Purnell, 259 A.3d at 985.

The Court then articulated the standard under which a trial court should

address a witness’ use of a comfort dog during trial:

[W]e conclude that trial courts have the discretion to permit a
witness to testify with the assistance of a comfort dog. In
exercising that discretion, courts should balance the degree to
which the accommodation will assist the witness in testifying in a
truthful manner against any possible prejudice to the defendant’s
right to a fair trial and employ means to mitigate any such
prejudice. We further note that an abuse of discretion occurs
when a court “has reached a conclusion which overrides or
misapplies the law, or where the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.”

Purnell, 259 A.3d at 986–87 (citation omitted). The Court noted:

We find particularly persuasive the requirement that a trial court
seek to minimize any potential prejudice to the defendant by, inter
alia, considering the dog’s training, providing the jury with limiting
instructions, and employing means to limit the jury from viewing
the dog.

Id. at 986.

We note that in Purnell, the Commonwealth filed pre-trial motions,

which explained that an autistic and minor eyewitness17 to a fatal shooting

was afraid to talk and testify about a group of people, who were part of a gang

related to the shooting, as well as the subsequent assault of another

eyewitness. Id. at 977-78. The Commonwealth thus requested the presence

____________________________________________

17 The eyewitness was 13 years old at the time of the shooting, and
approximately 15 years old at trial. See Purnell, 259 A.3d at 977 & n.1.

- 17 -
J-S08037-22

of a “comfort dog” during the eyewitness’s trial testimony. Id. The trial court

conducted a hearing, at which defense counsel argued “the jury would see the

dog and feel sympathy for” the eyewitness. Id. at 978. The court permitted

the comfort dog. Id.

On review, the Supreme Court noted that the balancing test, which it

had just announced, was not in place at the time of the defendant’s trial.

Purnell, 259 A.3d at 986. Nevertheless, the Court concluded the trial court’s

exercise of discretion was consistent with the balancing test. Id. It noted:

(1) “the trial court was put on notice[,]” by way of the Commonwealth’s

pre-trial motions, of the eyewitness’ fear of testifying against the defendant;

and (2) “the court utilized several measures to mitigate against any potential

prejudice the comfort dog could have caused.” Id. (emphasis added).

Pertinently, the trial court

(1) referred to the animal as a “service dog” to lessen the
likelihood that the dog’s presence would engender sympathy from
the jury; (2) required that the dog enter and exit the courtroom
outside of the jury’s presence and that the dog remain hidden
under the witness stand throughout [the witness’] testimony; and
(3) twice instructed the jury not to consider the presence of the
dog for any purpose, not to attribute any sympathy to [the
witness], and not to judge her credibility any differently.

Id.

To the extent Appellant argues Purnell imposed a requirement on the

Commonwealth to provide pre-trial notice to a defendant, our review of the

decision reveals no such pronouncement. Although the Court discussed the

Commonwealth’s pre-trial motion and hearing, its analysis focused on the

- 18 -
J-S08037-22

proper balancing test to be considered by a trial court. See Purnell, 259 A.3d

at 977-78, 984-86. Furthermore, the only mention of pre-trial notice

pertained to the trial court being on notice, in terms of the court’s response.

See id. at 986 (“The trial court then wisely held a hearing to address the

Commonwealth’s motions[.]”).

Furthermore, although the trial court cited the Superior Court’s opinion

in Purnell, the Supreme Court did not reverse or overrule any holding in the

Superior Court’s decision, and indeed, affirmed its decision. See Purnell, 259

A.3d at 987. In any event, the trial court’s discussion informs our review. It

reasoned:

[The V]ictim had to endure and go through two separate trials
over a period of five years. The first trial took place in 2015 and
the second in 2020. This incident has taken an extreme mental
and physical toll on the [V]ictim. Thus, the use of a comfort dog
was permitted. This Court also tried to minimize the dog’s
presence. The [V]ictim and the dog were already at the witness
stand before the jury was permitted to enter the courtroom. We
simply cannot assume that the dog had a prejudicial impact on
the jurors, much less that it engendered sympathy from them for
the witness merely due to the dog’s presence and not the
impactful testimony presented by the [V]ictim.

Trial Ct. Op., 7/6/21, at 5.

We add the trial court referred to the animal as “a service dog” in front

of the jury. N.T., 11/3/21, at 84. Although the court did not give any

instruction to the jury about the dog as it relates to the Victim’s testimony,

Appellant did not request any such instruction. See id. at 83-84. Finally,

there is no indication, and Appellant does not aver, that the dog caused or

- 19 -
J-S08037-22

was related to any disruption in the trial proceedings. See Purnell, 259 A.3d

at 979 (“We . . . note that there is nothing in the record to suggest that the

comfort dog was in any way disruptive to the trial.”). Considering all the

circumstances presented in this case, we decline to find the trial court abused

its discretion, or acted with partiality, prejudice, bias or ill-will, in permitting

the presence of the comfort dog. See id. at 986–87.

V. Jury Instruction

In his final issue, Appellant asserts the trial court erred in denying his

request for Pennsylvania Suggested Standard Criminal Jury Instruction 4.06,

which charges the jury to

examine closely and carefully and receive with caution the
testimony of [name of witness] . . . if you find that he or she . . .
[admitted that he or she committed perjury at another trial[18.]

Id. at 20, quoting Pa. SSJI (Crim) 4.06.19 We note the instruction itself does

not make any reference to a child witness. However, the subcommittee note

refers to a child “of tender years” and advises:

This instruction may be appropriate when the court wishes to
caution the jury about testimony that falls into a category subject
____________________________________________

18Appellant does not address whether a preliminary hearing comes under the
term “trial,” as it appears in this criminal jury instruction.

19Appellant has preserved this issue for appellate review, as he objected after
the trial court gave the jury instructions, and before the jury retired to
deliberate. See Commonwealth v. Knight, 241 A.3d 620, 634 (Pa. 2020),
(to preserve appellate challenge to jury instruction, defendant must raise
objection after the charge is given but before jury retires to deliberate), cert.
denied, 142 S.Ct. 1226 (U.S. 2022); N.T. Jury Trial Vol. III, 11/4/20, at 337.

- 20 -
J-S08037-22

to special scrutiny, e.g., previously hypnotized witness, admitted
perjurer, paid informer, and, possibly, child witness. . . .

* * *

Child of tender years. When a child of tender years testifies,
it is within the discretion of the trial judge, after observing the
child’s testimony and mental and emotional maturity, whether to
admonish the jury to scrutinize the child’s testimony carefully.
The general charge on credibility will usually suffice. See
Commonwealth v. Barnosky, 400 A.2d 168 (Pa. Super. 1979).

Pa. SSJI (Crim) 4.06, Subcommittee Note (emphases added).

We also note the relevant standard of review:

When reviewing a trial court’s jury instructions, we “will look to
the instructions as a whole, and not simply isolated portions, to
determine if the instructions were improper.”

Additionally, we note that

[a] jury charge will be deemed erroneous only if the
charge as a whole is inadequate, not clear or has a
tendency to mislead or confuse, rather than clarify, a
material issue. A charge is considered adequate unless
the jury was palpably misled by what the trial judge said
or there is an omission which is tantamount to
fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions.

Sandusky, 203 A.3d at 1098 (citations omitted).

We reiterate the Victim was eight years old at the time of the preliminary

hearing, and 15 years old at the second trial. At this juncture, we set forth

the following evidentiary context. On cross-examination of the Victim at trial,

defense counsel introduced the following exchanges at the May 7, 2014,

preliminary hearing:

- 21 -
J-S08037-22

[Defense Counsel:] Did you say anything today that wasn’t the
truth?

[The Victim: Y]es, but — no, I didn’t say — I say that it wasn’t
the truth. I said that — no, no. I’m confused.

* * *

Q. . . . I guess the question very simply is, everything you said
today, did it happen?

[The Victim:] No.

* * *

Q. . . . How about your mom, everything that you said your mom
did today here that you told the judge, was that the truth or was
that a lie?

[The Victim:] A lie.

N.T., 11/3/20, at 140,141.20

Appellant avers the trial court’s general credibility instructions were

insufficient, and the court should have also charged the jury to “take special

care in evaluating the testimony of a child witness who has admitted to lying

at a previous hearing,” and it should “consider the child witness’s inability to

distinguish between the truth and a lie at the preliminary hearing.” Appellant’s

Brief at 22. Appellant concludes he is entitled to a new trial. We disagree.

____________________________________________

20 The May 7, 2014, preliminary hearing transcript was not included in the
certified record on appeal. We glean the above exchange from defense
counsel’s reading of that transcript at trial. See N.T., 11/3/20, at 135-41.

- 22 -
J-S08037-22

First, Appellant ignores the Commonwealth’s redirect examination of the

Victim, which presented context to the defense’s reading of isolated

statements from the preliminary hearing transcript. See N.T., 11/3/20, at

142-44 (“I’m going to [read] the parts that the defense didn’t read, okay?”).

Following the Victim’s statement (at the preliminary hearing) that what she

said about her mother “was a lie,” defense counsel asked the Victim, “What

do you mean when you say that was a lie? What happened with mom after

you told her what [Appellant] did?” Id. at 142. The Victim responded (at the

preliminary hearing): “I forgot that part, too. That is not a lie. That is not a

lie.” Id. In reply to defense counsel’s next question, “When you told your

mom what happened with [Appellant], what did she do?,” the Victim stated,

“Spanked me.” Id. at 142-43. Additionally, at the preliminary hearing, when

asked if “[a]ll the things” the Victim said about Appellant were the truth or a

lie, the Victim responded, “That’s the truth.” Id. at 142. Finally, when asked,

“I guess the question very simply is, everything you said today, did it

happen?,” the Victim initially responded, “No,” but immediately “corrected

[her]self and said yes[.]” Id. at 143-44. At trial, the Commonwealth asked

the Victim whether she, eight years old at the time, found the “questions

confusing” and whether the defense asked her “questions in different ways.”

Id. The Victim replied, “Yes,” to both queries. Id.

- 23 -
J-S08037-22

On appeal, Appellant ignores that the jury heard this rehabilitation of

the Victim by the Commonwealth. Meanwhile, the trial court opined that in

this particular trial, the general credibility jury instructions were sufficient:

While this Court did not give the specific “special-scrutiny”
instruction that Appellant requested, this Court explained to the
jury that it must determine the credibility of the witnesses based
upon various factors and even explained to the jury that it was
their province to determine the [V]ictim’s credibility and the
weight that should be given to her testimony in light of evidence
presented that she may have provided differing statements in
prior proceedings. [N.T., 11/4/20, at 321-23.] Moreover, this
Court explained to the jury that it was permitted to discount all a
witness’s testimony if it determined the witness testified falsely
about any material point in this matter. [Id. at 322-23.]

Therefore, in its entirety, this Court’s jury charge repeatedly
emphasized the importance of credibility determinations in the
jury’s deliberation process and provided the jury with more than
enough information and guidance as to how to evaluate the
credibility of all witnesses, including the [V]ictim in this matter.
As a result, denying Appellant’s request for a separate special-
scrutiny instruction did not constitute reversible error.

See Trial Ct. Op., 10/26/21, at 4 (paragraph break added).

As explained above, the Commonwealth presented the testimony

surrounding the Victim’s statement, at the preliminary hearing, that some of

her testimony was a lie. After reviewing the instructions as a whole, “and not

simply isolated portions,” we agree with the trial court’s reasoning and decline

to find any abuse of discretion by the trial court. See Sandusky, 203 A.3d

at 1098. Accordingly, no relief is due.

- 24 -
J-S08037-22

VI. Conclusion

Finding no merit to any of Appellant’s claims, we affirm the judgment of

sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 08/09/2022

- 25 -