J-A30017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
BERNARD G. SHERO
Appellant No. 2164 EDA 2013
Appeal from the Judgment of Sentence June 12, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003529-2011
BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*
MEMORANDUM BY MUNDY, J.: FILED MARCH 24, 2015
Appellant, Bernard G. Shero, appeals from the June 12, 2013
aggregate judgment of sentence of eight to 16 years’ imprisonment,
followed by five years’ probation, after he was found guilty of one count
each of rape of a child, involuntary deviate sexual intercourse (IDSI),
endangering the welfare of a child (EWOC), corruption of minors, and
indecent assault.1 After careful review, we affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3121(c), 3123(b), 4304(a)(1), 6301(a)(1)(i), and
3126(a)(7), respectively.
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The victim’s parents, J.G. (hereinafter “Father”) and
S.G. (hereinafter “Mother”) married in 1981 and had
two sons, J.G., Jr. (hereinafter “Brother”) and the
victim “D.G.” The victim and his family resided in
the northeast section of Philadelphia. Father was a
police sergeant, and Mother was a nurse. Both
parents had attended Catholic school and wanted to
provide their sons with a similar education. They
enrolled D.G. and Brother at St. Jerome’s School, the
Archdiocese parochial school located within walking
distance of their home.
D.G. began attending St. Jerome’s School in
kindergarten. Physically, D.G. was small for his age.
Despite this, D.G. was very active in school sports
and he participated in many extra-curricular
activities at St. Jerome’s, including serving as altar
boy. Mother recalled that D.G. was an active and
rambunctious young boy. D.G.’s classmate and
fellow altar boy, [J.S.P.], remembered D.G. as a
“happy kid [who] was always joking.”
When D.G. was in seventh and eighth grades
at St. Jerome’s, however, some of his friends noticed
a marked change in D.G.’s demeanor. According to
[J.S.P.], D.G. became “real dark,” and secluded
himself from everybody. Another friend and
classmate, [R.B.], confirmed this change in D.G.’s
personality, testifying that D.G. became a “loner”
and “did not talk to too many people.” During this
same time period, D.G. complained of testicular pain.
D.G. was examined by a pediatrician and a urologist
but the cause of the pain was never determined.
According to Mother, around this time D.G.’s appetite
diminished and he lost weight. Defense witnesses,
including St. Jerome’s teachers, testified that they
did not recall any change in D.G.’s behavior.
After graduating from St. Jerome’s, D.G.
attended Archbishop Ryan High School where his
behavior quickly spiraled out of control. D.G.
became a heavy drug abuser and was expelled from
Archbishop Ryan for possession of drugs and
weapons. After his expulsion, D.G. attended the
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International Christian High School where he became
good friends with fellow student [L.H.]. Early in their
friendship, D.G. and [L.H.] were socializing in D.G.’s
basement when D.G. confided to [L.H.] that two
priests and a teacher had sex with him when he was
in the 5th and 6th grades. [L.H.] was stunned by
this revelation, but D.G. did not want to discuss
further details of the incident at that time.
[L.H.] testified that there was a teacher at the
International Christian High School whom neither he
nor D.G. liked because the teacher was “really
touchy, feely” and because of “weird vibes that came
from him all the time, weird sexual-type vibes.”
Shortly after the conversation in D.G.’s basement,
D.G. and [L.H.] were in a classroom at school when
the teacher exhibited what they deemed “creepy”
behavior. On this occasion, D.G. again mentioned
the prior sexual abuse to [L.H.].
D.G.’s high school years were a nightmare for
D.G. and his parents. According to Mother, D.G. cut
his wrists, drew images of a gun to his head, and
wrote suicide notes. He obtained psychiatric help at
an in-patient psychiatric facility, but the treatment
did not help and “things continued to get worse and
worse.” D.G.’s drug addiction worsened as he
continued to use drugs including marijuana,
Percocet, Oxycontin, LSD, and ultimately became a
“full blown heroin addict.” Over the years, D.G. was
treated at over twenty drug rehabilitation clinics.
During this same time period D.G. was arrested
several times for offenses including retail theft and
possession of drug paraphernalia. D.G.’s most
recent arrest for possession of heroin occurred in
November 2011.
D.G.’s parents could not understand the
complete change in their son’s behavior and
personality and became concerned that there were
serious issues at the root of the problem. Mother
and Father pleaded with D.G. to open up to them but
D.G. refused. When D.G. was eighteen or nineteen
years old, however, he suddenly confessed to his
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parents that a priest had sexually abused him. After
that revelation, D.G. immediately “shut down” again
and refused to discuss it further with his parents. It
was apparent to Mother and Father that D.G. was
not ready or willing to reveal his entire story. Out of
concern for D.G.’s fragile and agitated state, and
fearing that he would disappear and overdose on
drugs, Mother and Father decided not to report this
revelation to the police.
The underlying issues driving D.G.’s self-
destructive behavior finally began to emerge in detail
in January 2009, when D.G. was approximately 20
years old. While undergoing treatment for his heroin
addiction at a drug rehabilitation facility called SOAR,
D.G. broke down during a group therapy session and
revealed to his drug counselor the fact that he had
been sexually abused while a young student at St.
Jerome’s. On January 30, 2009, with the
encouragement of his drug treatment counselor,
D.G. called the Philadelphia Archdiocese hotline to
officially report the abuse. That day, D.G. spoke
with Louise Hagner, the victim assistance coordinator
for the Archdiocese. Hagner’s duties included
receiving reports from victims alleging sexual abuse
and working to begin providing services to the
victims.
D.G.’s initial phone call to the Archdiocese
hotline ultimately led to investigations by the
Philadelphia District Attorney’s Office and Grand
Jury. These investigations brought to light the
details of the sexual abuse of D.G. at the hands of
Appellant, a lay teacher at St. Jerome’s, and two St.
Jerome’s priests, Charles Engelhardt and Edward
Avery. All three men were indicted and warrants
were issued for their arrests.
Appellant had agreed to surrender himself to
police immediately following the issuance of his
arrest warrant. When Appellant failed to surrender
himself to authorities as planned, Police Detective
Drew Snyder and other members of law enforcement
went to Appellant’s apartment to apprehend him.
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Detective Snyder found the Appellant in his home
under the influence of what was described as
sleeping pills. During a search of Appellant’s
apartment, no prescription bottle or other evidence
was found to indicate what type of pills Appellant
had taken. However, Detective Snyder found an
envelope addressed to Appellant’s parents that
contained a letter, a cashier’s check, and cash. This
letter was determined to be a suicide note in which
Appellant apologized to his parents for the “burden
[his] situation” had caused. The letter also described
the location of Appellant’s various assets and
personal effects. An ambulance transported
Appellant to the hospital for medical treatment and
observation. After a few hours of observation in the
hospital’s emergency department, Appellant was
released into police custody.
D.G.’s accounts of the sexual abuse committed
by Appellant and the priests varied at different
stages of the investigations. A large portion of the
jury trial consisted of the defense presenting
witnesses and evidence highlighting the
inconsistencies and generally attacking D.G.’s
credibility. The prosecution provided evidence and
witnesses to account for the inconsistencies and
corroborate D.G.’s allegations. The jury, as fact-
finders [sic], ultimately made a credibility
determination in favor of D.G. and found Appellant
guilty. The following description of Appellant’s
sexual abuse of D.G. reflects D.G.’s consistent sworn
testimony before the Grand Jury and during the jury
trial.
One afternoon during the spring of his 6th
grade year, D.G. was serving school detention.
Appellant was the detention supervisor that day and
offered to give D.G. a ride home. D.G. got into the
car with Appellant and told him where he lived.
Appellant, however, drove in the opposite direction
to a secluded parking lot in Pennypack Park in
northeast Philadelphia. Appellant parked, and D.G.
recalled that they “sat there and [Appellant] talked
to [D.G.] for a minute” and asked if “[he] ‘messed’
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with girls.” Appellant urged D.G. into the back seat
of the car and Appellant joined him. Once in the
backseat, Appellant started to rub D.G.’s back and
undress him. They both began to caress each
other’s legs and genitals, and D.G. testified that
Appellant had D.G. “give [him] a hand job.”
Appellant next had D.G. perform oral sex on him and
then attempted to have anal sex with D.G. D.G.
screamed and struggled when Appellant attempted
to have anal sex, at which point Appellant had D.G.
continue to perform oral sex on him instead.
Appellant ultimately ejaculated on the floor and
demanded that D.G. get dressed, get out of the car,
and walk home. No other incidents of sexual abuse
occurred between Appellant and D.G. beyond this
one incident.
Trial Court Opinion, 12/17/13, at 2-6 (internal citations and footnotes
omitted).
On April 12, 2011, the Commonwealth filed an information, charging
Appellant with the above-mentioned offenses, as well as one count each of
aggravated indecent assault and criminal conspiracy.2 On January 14, 2013,
Appellant proceeded to a lengthy, joint jury trial with Charles Englehardt.3
At the conclusion of which, on January 30, 2013, the jury found Appellant
guilty of one count each of rape of a child, IDSI, EWOC, corruption of
minors, and indecent assault. The aggravated indecent assault charge was
____________________________________________
2
18 Pa.C.S.A. §§ 3125(a)(7) and 903, respectively.
3
Engelhardt’s appeal is currently pending before this Court at 2040 EDA
2013. As discussed infra, Avery pled guilty to certain charges in exchange
for a lighter sentence. Appellant agreed to be tried jointly with Engelhardt.
Commonwealth’s Brief at 5 n.2.
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nolle prossed, and the criminal conspiracy charge was quashed. On June 12,
2013, the trial court imposed an aggregate sentence of eight to 16 years’
imprisonment, followed by five years’ probation.4 On June 19, 2013,
Appellant filed a timely motion for modification of sentence, which the trial
court denied without a hearing on July 9, 2013. On July 11, 2013, Appellant
filed a timely notice of appeal.5
On appeal, Appellant raises the following six issues for our review.
I. Did the trial court abuse its discretion in
allowing the Commonwealth to present
evidence of Appellant’s inappropriate behavior
with other school children?
II. Did the trial court abuse its discretion in
allowing the jury to hear a doctor testify that
the victim’s testicular pain was consistent with
sexual abuse?
III. Did the [trial] court abuse its discretion in
refusing to grant relief to [] Appellant from
claims of prosecutorial misconduct in the
[Commonwealth]’s closing speech to the jury?
IV. Did the trial court abuse its discretion in
allowing the [Commonwealth] to cross-
____________________________________________
4
Specifically, the trial court sentenced Appellant to eight to 16 years’
imprisonment for rape of a child, eight to 16 years’ imprisonment for IDSI,
three-and-one-half to seven years’ imprisonment for EWOC, five years’
probation for corruption of minors, and five years’ probation for indecent
assault. The terms of imprisonment were to run concurrently to each other.
The two probationary terms were to run concurrently to each other, but
consecutive to the aggregate term of imprisonment.
5
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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examine Father Edward Avery with references
to other student victims in order to paint Avery
as a serial child offender and overcome Avery’s
denial of guilt as to D.G.?
V. Did the [trial] court abuse its discretion in
imposing a sentence of 8 to 16 [years’]
imprisonment upon Appellant?
VI. Should Appellant’s motion for remand to [the
trial] court based upon newly discovered
evidence be granted?
Appellant’s Brief at 3. In Appellant’s supplemental brief, he raises the
following additional issue.6
[Whether this] Court should remand this matter to
the [trial court] to allow an evidentiary hearing
because the prosecution denied him the due process
of law to which [] Appellant was entitled under the
federal and state constitutions by reason of the
Commonwealth’s failure to inform his trial counsel
that Judy Cruz-Ransom, whom we now know (from
her deposition) had been interviewed by the
prosecutors prior to the criminal trial, had provided
information which was material and favorable to the
defense, to wit, that the testimony provided by social
worker Louise Hagner regarding her interview with
complainant D.G. on January 30, 2009 was
corroborated and confirmed by another witness, i.e.,
Judy Cruz-Ransom[?]
Appellant’s Supplemental Brief at 4-5. Appellant’s first, second, and fourth
issues pertain to the trial court’s evidentiary rulings during the trial. We
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6
On July 29, 2014, this Court accepted Appellant’s “Application … to Amend
Brief and Reproduced Record for Appellant” as a supplemental brief.
Superior Court Order, 7/29/14, at 1.
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begin by noting our well-settled standard of review regarding evidentiary
issues.
The admissibility of evidence is at the discretion of
the trial court and only a showing of an abuse of that
discretion, and resulting prejudice, constitutes
reversible error. An abuse of discretion is not merely
an error of judgment, but is rather the overriding or
misapplication of the law, or the exercise of
judgment that is manifestly unreasonable, or the
result of bias, prejudice, ill-will or partiality, as
shown by the evidence of record. Furthermore, if in
reaching a conclusion the trial court over-rides or
misapplies the law, discretion is then abused and it is
the duty of the appellate court to correct the error.
Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en
banc) (internal quotation marks and citations omitted), appeal denied, 83
A.3d 167 (Pa. 2013).
In his first issue, Appellant avers that the trial court abused its
discretion when it admitted evidence that “Appellant had engaged in
inappropriate behavior with other school children at the different schools
where he was a parochial school teacher.” Appellant’s Brief at 11. The
Commonwealth counters that said evidence became admissible when
Appellant “opened the door” by “put[ting] the issues of his relationship with
… other children and his reasons for leaving St. Jerome’s at issue[.]”
Commonwealth’s Brief at 13.
Pennsylvania Rule of Evidence 404(b) governs admissibility of
evidence of prior bad acts.
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Generally, evidence of prior bad acts or
unrelated criminal activity is inadmissible to
show that a defendant acted in conformity with
those past acts or to show criminal propensity.
Pa.R.E. 404(b)(1). However, evidence of prior
bad acts may be admissible when offered to
prove some other relevant fact, such as
motive, opportunity, intent, preparation, plan,
knowledge, identity, and absence of mistake or
accident. [Id. at] 404(b)(2). In determining
whether evidence of other prior bad acts is
admissible, the trial court is obliged to balance
the probative value of such evidence against
its prejudicial impact. Commonwealth v.
Powell, 956 A.2d 406, 419 (2008).
[Commonwealth v. Sherwood, 982 A.2d 483, 497
(Pa. 2009), cert. denied, Sherwood v.
Pennsylvania, 559 U.S. 1111 (2010)]. The
Commonwealth must prove beyond a reasonable
doubt that a defendant has committed the particular
crime of which he is accused, and it may not strip
him of the presumption of innocence by proving that
he has committed other criminal acts.
Commonwealth v. Stanley, 398 A.2d 631, 633
([Pa.]1979); Commonwealth v. Constant, 925
A.2d 810, 821 (Pa. Super. [2006]), appeal denied,
932 A.2d 1285 (2007).
Commonwealth v. Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (en banc)
(parallel citations omitted), appeal denied, 72 A.3d 603 (Pa. 2013).
In this case, the Commonwealth filed a motion in limine seeking to
admit evidence at trial concerning Appellant’s alleged inappropriate behavior
towards other students at St. Jerome’s and other schools in which he was
employed as a teacher. The trial court denied the Commonwealth’s motion,
but with a caveat that said evidence would become admissible if Appellant
opened the door. Specifically, the evidence at issue was the following.
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Several examples of Appellant’s inappropriate
behavior were presented to rebut, and possibly
explain why students may have harassed Appellant.
[R.B], one of D.G.’s friends from St. Jerome’s
testified that he recalled Appellant giving girls back
rubs and snapping one girl’s bra straps. The parent
of a student at Nazareth Academy, where Appellant
previously taught, testified to being very
uncomfortable and prohibiting her son from
associating with Appellant after Appellant invited her
son and his friends into his home. The parent of a
student at Saint Michael’s School in Levittown,
Pennsylvania, where Appellant also previously
taught, testified to observing Appellant allowing
female students to touch his belt buckle and tie and
taking pictures of female students in the recess yard.
Trial Court Opinion, 12/17/13, at 8 (citations omitted).
At trial, Appellant gave the following opening statement to the jury.
We will present witnesses who will testify as to the
reputation of both of these [d]efendants and those
reputation witnesses will say that they have good
reputations, excellent reputations for being peaceful
and law-abiding people.
…
Now the [Commonwealth] may suggest that
[Appellant] left Saint Jerome’s because he had been
involved in some nasty behavior with [D.G.] but no
allegation was made then. No allegation was made
in 2009.
Why did he leave? He left because the kids were
bullying him. He couldn’t take it anymore. His mom
bought a house in the neighborhood so he wouldn’t
have to drive because he did have a car and we will
show you the car and he has a license. He can drive
but it is not too good because of his vision. He is
legally blind in one eye. The other eye is severely
afflicted.
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So they got him a house and he moves into the
house and in a space of three or four months, he
can’t stay there anymore. Why? Because the kids
from Saint Jerome’s come to his house at night and
throw rocks at his house.
He sees a job advertised at the end of the school
year in another Catholic school and he leaves, not
because he is guilty of a crime, no crime has been
alleged, and is this the kind of guy who would do the
things that [D.G.] alleges?
N.T., 1/14/13, at 113, 119-121. Appellant also presented his mother as a
witness in his own defense, who testified, consistent with Appellant’s
opening statement, that he left St. Jerome’s due to kids throwing rocks at
his home and making him feel uncomfortable. N.T., 1/22/13, at 108, 113.
The trial court concluded that the Commonwealth’s evidence regarding
Appellant’s alleged inappropriate behavior with other students became
relevant based on the following.
During his opening arguments, and throughout
the trial, Appellant’s attorney presented Appellant as
a hapless and non-violent victim of aggressive
students. For example, Appellant’s mother testified
that Appellant told her that the children were
harassing him and throwing rocks at his home.
However, portraying Appellant as a victim was only
part of the picture as it failed to also show how
Appellant’s inappropriate and bizarre behavior
towards the young students may have precipitated
this unwelcome attention from the students.
Appellant attempted to show that he was victimized
by students, but the evidence presented by the
Commonwealth demonstrates that Appellant
victimized the students. Such victimization is clearly
a pertinent trait considering the nature of the
charges against Appellant of victimizing and abusing
D.G. in this case.
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…
It is also important to note that [the trial
c]ourt originally granted Appellant’s pretrial motion
in limine to exclude the [] evidence of Appellant’s
inappropriate behavior with other students and
parents’ concerns. However, once Appellant opened
the door by presenting Appellant’s character as the
victim of bullying and ostracism, and in fact made it
one of the showpieces of his defense, this Court
determined that Appellant’s strange behavior with
other young students was relevant and admissible as
rebuttal evidence by the Commonwealth.
Trial Court Opinion, 12/17/13, at 7-8 (internal citations omitted; emphasis in
original).
After careful review of the certified record, we conclude the trial court
did not abuse its discretion. As noted by the trial court, Appellant directly
put his relationship with students at issue from the very beginning of the
trial. The Commonwealth was permitted to rebut Appellant’s evidence, at a
minimum, to give the jury a possible explanation for the harassment he had
received from other students. See, e.g., Commonwealth v. Constant,
925 A.2d 810, 819-820 (Pa. Super. 2007) (evidence of prior confrontation
with officer admissible to rebut defendant’s theory that subsequent shooting
was accidental), overruled on other grounds, Commonwealth v. Minnis,
83 A.3d 1047, 1053 (Pa. Super. 2014) (en banc)7; Commonwealth v.
____________________________________________
7
We note Constant has since received federal habeas relief in the Western
District of Pennsylvania on grounds unrelated to the Rule 404(b) issue
(Footnote Continued Next Page)
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Days, 784 A.2d 817, 821 (Pa. Super. 2001) (evidence of prior conviction
properly admitted to rebut defendant’s evidence that he was a non-violent
person).
Although Appellant avers that the Commonwealth’s evidence was
inadmissible because he did not take the stand at trial, this Court has not
found such a distinction meaningful in the past. See Commonwealth v.
DuPont, 730 A.2d 970, 980-981 (Pa. Super. 1999) (evidence of defendant’s
prior bad acts admissible to rebut defense expert’s testimony);
Commonwealth v. Gelber, 594 A.2d 672, 679-680 (Pa. Super. 1991)
(evidence of prior bad acts admissible to rebut claim of self-defense in
defendant’s written confession), appeal denied, 605 A.2d 332 (Pa. 1992).
To the extent Appellant argues that the Commonwealth’s evidence
should not have been admitted under Rule 403 because its prejudicial effect
outweighed its probative value, we reject this argument as well. Generally,
Rule 403 will exclude otherwise admissible evidence where the “probative
value is outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.
In the case sub judice, as noted above, Appellant first introduced
evidence and argued to the jury that he left St. Jerome’s due to the students
_______________________
(Footnote Continued)
discussed in this Court’s opinion. Constant v. Pa. Dep’t of Corr., 912 F.
Supp. 2d 279, 308 (W.D. Pa. 2012).
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vandalizing his home and harassing him. The Commonwealth’s evidence to
rebut Appellant’s theory was highly relevant. Based on these considerations,
we conclude Appellant is not entitled to relief on his first issue. See
Fischere, supra.
In his second issue on appeal, Appellant avers that the trial court
abused its discretion when it permitted Dr. Gerald Margiotti, D.G.’s
pediatrician, to testify that D.G.’s complaint of testicular pain was consistent
with sexual abuse. Appellant’s Brief at 5. The Commonwealth makes two
arguments in response. First, the Commonwealth urges us to summarily
reject Appellant’s arguments, as said evidence was only admitted against
Engelhardt, not Appellant. Commonwealth’s Brief at 18. Second, even if
this Court were to consider Appellant’s claim, the trial court did not abuse its
discretion. Id.
Our Supreme Court has held that a defendant cannot complain about
evidence admitted only against a co-defendant.
Pennsylvania has long permitted the limited
admission of evidence only as to one party or for one
purpose. See Pa.R.E. 105 (“When evidence which is
admissible as to one party or for one purpose but not
admissible as to another party or for another
purpose is admitted, the court upon request shall, or
on its own initiative may, restrict the evidence to its
proper scope and instruct the jury accordingly.”);
Commonwealth v. Updegrove, 198 A.2d 534, 537
([Pa.]1964) (evidence that “is admissible for one
purpose … is not inadmissible because it does not
satisfy the rules applicable to some other capacity or
even because the jury might consider it in the latter
capacity”) (citation omitted); Commonwealth v.
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Wright, 323 A.2d 349, 351-52 ([Pa. Super. 1974)
(“Evidence which is admissible for one purpose does
not become inadmissible merely because it would be
inadmissible if offered for another purpose.”)
(citation omitted). In fact, it is “common” in joint
trials that “evidence is admissible against one co-
defendant but inadmissible against another.”
Commonwealth v. Travers, 768 A.2d 845, 847
([Pa.] 2001). See also Commonwealth v.
Patterson, 546 A.2d 596, 601 ([Pa.] 1988)
(possible prejudicial effect of introduction of evidence
against only one of two defendants in joint trial was
no “more harmful than the prejudicial effect …
habitually tolerate[d] in joint trials where evidence is
introduced against only one of the defendants”). A
party generally cannot vicariously litigate the claims
of another party.
Commonwealth v. McCrae, 832 A.2d 1026, 1034 (Pa. 2003) (parallel
citations omitted), cert. denied, McCrae v. Pennsylvania, 543 U.S. 822
(2004).
In this case, Dr. Margiotti testified that D.G. complained of testicular
pain in 1999. N.T., 1/22/13, at 39-40. This was one year before D.G.
suffered abuse from Appellant, as D.G. testified that the incident with
Appellant took place in the Spring of 2000. N.T., 1/15/13, at 242. Dr.
Margiotti’s testimony was only relative to incidents involving Engelhardt.
Appellant is not permitted to argue that the trial court abused its discretion
in admitting testimony against Engelhardt. See Commonwealth v. Bond,
652 A.2d 308, 314 (Pa. 1995) (summarily rejecting the appellant’s argument
that “the codefendant’s mother testified that her son had called her from jail
and said ‘Mom, they arrested me for another murder[]’” prejudiced him
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where our Supreme Court held “[a]ny prejudice arising from the testimony
of the co[-]defendant’s mother could only attach to the co[-]defendant, not
appellant[]”). Based on these considerations, we conclude Appellant is not
entitled to relief on this issue. See McCrae, supra.
In his fourth issue, Appellant avers that the trial court abused its
discretion when it permitted the Commonwealth to cross-examine Edward
Avery about other boys Avery had allegedly molested. Appellant’s Brief at
39-40. The Commonwealth counters that the evidence was admissible to
impeach Avery’s credibility and even if it was improper, Appellant did not
suffer any prejudice as a result. Commonwealth’s Brief at 37.
At trial, the Commonwealth called Avery during its case-in-chief.
Avery previously pled guilty to IDSI and criminal conspiracy and was
sentenced to two-and-one-half to five years’ imprisonment. N.T., 1/17/13,
at 140-141. Relevant to this appeal, during its direct examination, the
Commonwealth read into the record the recitation of the facts from Avery’s
guilty plea hearing.8 Specifically, the factual basis for Avery’s guilty plea to
IDSI was that “sometime during the spring of 1999, [Avery] was 57 years
old at the time. While he was serving as a priest at Saint Jerome’s Parish,
he engaged in oral sexual intercourse with 10-year-old [D.G.]” Id. at 156-
157. Avery acknowledged he knew those were the facts to which he pled
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8
Appellant did not object to the relevance of this testimony when Avery took
the stand at trial, nor does Appellant raise such a challenge on appeal.
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guilty. Id. at 157. However, during questioning by the Commonwealth at
trial, Avery asserted his innocence, despite his guilty plea, and stated that
“[he] had no contact whatever [sic] with [D.G.]” Id. at 161. Avery also
testified that he only pled guilty to get a better sentence. Id. at 160. Avery
repeated these assertions on cross-examination. Id. at 177, 180-181. On
redirect examination, the Commonwealth questioned Avery about six other
complainants, R.F., R.C., H.A., M.M., G.F., and S.L., all of whom had made
claims of sexual abuse against Father Avery. Id. at 208-209. Avery denied
these allegations. Id. at 210. It is this testimony that Appellant objects to,
arguing that it was impermissible under Rule 404 and unfairly bolstered
D.G.’s credibility. Appellant’s Brief at 40.
However, before we may address the merits of this claim, we must
first ascertain whether Appellant has preserved it for our review. It is
axiomatic that “[i]ssues not raised in the lower court are waived and cannot
be raised for the first time on appeal.” Pa.R.A.P. 302(a). In addition,
Pennsylvania Rule of Evidence 103 permits a party to challenge the
admission of evidence if the party timely objects and “states the specific
ground, unless it was apparent from the context[.]” Pa.R.E. 103(a)(1)(B).
This Court has consistently held that “[i]f counsel states the grounds for an
objection, then all other unspecified grounds are waived and cannot be
raised for the first time on appeal.” Commonwealth v. Bedford, 50 A.3d
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707, 713 (Pa. Super. 2012) (en banc) (citations omitted), appeal denied, 57
A.3d 65 (Pa. 2012).
In the case sub judice, Appellant did not object on the basis of Rule
404, or improper bolstering grounds at trial. Rather, the only objection that
was made was that the question pertaining to R.C. “was outside the scope of
everything.” N.T., 1/17/13, 208. Although the trial court responded that
“[i]t is absolutely proper impeachment at this time[,]” Appellant did not note
any additional basis for his objection, despite having the opportunity to do
so. Id. As Appellant may not raise a Rule 404 argument for the first time
on appeal, we deem this issue waived. See Bedford, supra.
In his third issue, Appellant avers that the trial court abused its
discretion when it denied his request for a mistrial after he objected to two
instances in the Commonwealth’s summation that he believes amounted to
prosecutorial misconduct. Appellant’s Brief at 25. Specifically, Appellant
alleges the Commonwealth made an improper remark when it implied that
there were more charges to come against Engelhardt. Id. at 32. Appellant
also avers the Commonwealth misstated that D.G. was absent for three-and-
one-half days from school during the fourth quarter of the school year in
2000. Id. at 25. Appellant argues this was critical to defense strategy
because Appellant “attempted to show that such a dramatic event was not
likely to have occurred since [D.G.]’s report card for that time period showed
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[D.G.] had not missed a single day of school during that reporting period.”
Id.
Our standard of review for a claim of
prosecutorial misconduct is limited to whether the
trial court abused its discretion. In considering this
claim, our attention is focused on whether the
defendant was deprived of a fair trial, not a perfect
one. Not every inappropriate remark by a
prosecutor constitutes reversible error. A
prosecutor’s statements to a jury do not occur in a
vacuum, and we must view them in context. Even if
the prosecutor’s arguments are improper, they
generally will not form the basis for a new trial
unless the comments unavoidably prejudiced the
jury and prevented a true verdict.
Bedford, supra at 715-716.
First, as to the Commonwealth’s reference that no other accusations
had been made against Engelhardt “yet,” the Commonwealth made the
following statements to the jury during its summation.
[Engelhardt’s c]ounsel told you Engelhardt’s picture
was everywhere. You heard him choose his words
carefully, not one child, not one student has come
forward. He picked his words carefully. Sometimes
the subtle is more powerful than the obvious. What
he also didn’t tell you was no child, no student has
come forward yet. No child, no student has had the
courage that [D.G.] has because what he did takes
some guts[.]
N.T., 1/25/13, at 142.
In this case, it is not disputed that this portion of the Commonwealth’s
closing argument was directed at Engelhardt. As noted above, Appellant
cannot vicariously litigate claims of another party. See McCrae, supra.
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Although Appellant “joined” in Engelhardt’s motion for a mistrial on this
issue, it does not alter the fact that Appellant cannot be prejudiced by
remarks that were directed at Engelhardt and not at him, when they did not
implicate Appellant in any way. See id.; Bond, supra.
As to D.G.’s absences, in its summation the Commonwealth stated
that D.G. was absent from school for three-and-one-half days during the
fourth quarter of the 1999-2000 school year. N.T., 1/25/13, at 90, 122,
125-126. The Commonwealth acknowledges that this is not correct. See
Commonwealth’s Brief at 40 (stating, “the prosecutor was mistaken as to
which quarter of the 1999-2000 school year included the victim’s absences
from school[]”). However, the Commonwealth also argues that Appellant is
not entitled to a new trial as he was not prejudiced by this mistake of fact in
the Commonwealth’s closing argument. Id.
Without evidence that the Commonwealth’s misstatement was
intentional, Appellant’s argument cannot succeed. See, e.g.,
Commonwealth v. Simmons, 662 A.2d 621, 639 (Pa. 1995) (concluding a
new trial was not warranted where, “a review of the record does not show
that the prosecutor’s paraphrasing or misquotation of [a witness]’s
testimony was deliberate[]”) (citation omitted), cert. denied, Simmons v.
Pennsylvania, 516 U.S. 1128 (1996); Commonwealth v. Mollett, 5 A.3d
291, 311 (Pa. Super. 2010) (stating, “[a] prosecutor’s declaration[s] during
an opening or closing statement constitutes reversible error only if the
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prosecutor deliberately attempts to destroy the objectivity of the jury[]”)
(emphases added), appeal denied, 14 A.3d 826 (Pa. 2011).
In addition, the trial court also carefully instructed the jury regarding
closing arguments as follows.
Please keep in mind … that you are not bound by
[counsels’] recollection of the evidence nor by their
perspective of what the evidence shows. It is your
recollection of the evidence and your recollection
alone that must guide your deliberations.
…
If, in my instructions to you, I refer to some
particular evidence, it is your recollection of that
evidence and yours alone that governs. You are not
bound by recollection of the facts nor by the
recollection of Counsel in their arguments to you nor
are you to conclude that any evidence which I call to
your attention or which Counsel has called to your
attention is the only evidence which you should
consider. It is your responsibility to consider all of
the evidence that you end up thinking is relevant in
deliberating upon your verdict.
N.T., 1/25/13, at 2-3, 160-161.
It is axiomatic that “[t]he jury is presumed to follow the [trial] court’s
instructions.” Commonwealth v. Roney, 79 A.3d 595, 640 (Pa. 2013)
(citation omitted), cert. denied, Roney v. Pennsylvania, 135 S. Ct. 56
(2014). Furthermore, our Supreme Court has held that courts may deem a
prosecutorial misstatement cured by the trial court instructing the jury that
arguments of counsel are not evidence as it did here. Commonwealth v.
Smith, 995 A.2d 1143, 1164 (Pa. 2010) (citation omitted), cert. denied,
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Smith v. Pennsylvania, 131 S. Ct. 518 (2010). As the trial court gave
such an instruction in this case, we conclude the trial court did not abuse its
discretion in this instance. See Bedford, supra.
In his fifth issue, Appellant avers that the trial court imposed a
sentence which is “excessive and unreasonable[.]” Appellant’s Brief at 43.
Specifically, Appellant avers that the trial court’s sentence was especially
unreasonable given that the trial court imposed a sentence that was above
even the aggravated range of the sentencing guidelines. Id.
At the outset, we note that this issue on appeal pertains to the
discretionary aspects of his sentence. It is axiomatic that in this
Commonwealth “[t]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d
663, 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards
an argument pertaining to the discretionary aspects of the sentence, this
Court considers such an argument to be a petition for permission to appeal.
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014)
(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n
[a]ppeal is permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate under the
sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa.
Super. 2013) (en banc) (internal quotation marks and citation omitted).
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Prior to reaching the merits of a discretionary sentencing issue, this
Court is required to conduct a four-part analysis to determine whether a
petition for permission to appeal should be granted. Commonwealth v.
Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) (citation omitted), appeal
denied, 99 A.3d 925 (Pa. 2014). Specifically, we must determine the
following.
(1) [W]hether appellant has filed a timely notice of
appeal, Pa.R.A.P. 902, 903; (2) whether the issue
was properly preserved at sentencing or in a motion
to reconsider and modify sentence, Pa.R.Crim.P.
[708]; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a
substantial question that the sentence appealed from
is not appropriate under the Sentencing Code, 42
[Pa.C.S.A.] § 9781(b).
Id.
In the case sub judice, we note that Appellant filed a timely notice of
appeal. We further observe that Appellant has included a Rule 2119(f)
statement in his brief. Appellant also filed a timely motion for
reconsideration of sentence in the trial court. Therefore, we proceed to
determine whether Appellant has raised a substantial question for our
review.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” See Commonwealth v. Edwards, 71
A.3d 323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d
75 (Pa. 2013). “A substantial question exists only when the appellant
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advances a colorable argument that the sentencing judge’s actions were
either: (1) inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the sentencing
process.” Id. (citations omitted). “Additionally, we cannot look beyond the
statement of questions presented and the prefatory 2119(f) statement to
determine whether a substantial question exists.” Commonwealth v.
Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (citation omitted).
In his Rule 2119(f) statement, Appellant argues “the sentencing court
concentrated solely on the nature of the offense and disregarded mitigating
and statutory factors[.]” Appellant’s Brief at 10. Appellant also argues that
the sentence is unreasonable because it is outside the guidelines. Id. at 9.
We have stated that a failure to consider the required sentencing factors
under 42 Pa.C.S.A. § 9721(b) raises a substantial question. See, e.g.,
Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011)
(stating, “to the extent that [Appellant]’s claim impugns the trial court’s
failure to offer specific reasons for the sentence that comport with the
considerations required in section 9721(b) … we conclude that it raises a
substantial question of the court’s justification in extending standard range
sentences to the statutory maximum[]”). In addition, this Court has
concluded that a substantial question is presented for our review when a
defendant complains of an excessive sentence that was above the
guidelines. Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002)
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(citation omitted), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied,
Griffin v. Pennsylvania, 545 U.S. 1148 (2005). As a result, we grant
Appellant’s petition for permission to appeal the discretionary aspects of his
sentence, and we proceed to address the merits of his claims.
We begin by noting our well-settled standard of review.
Sentencing is a matter vested in the sound discretion
of the sentencing judge, and a sentence will not be
disturbed on appeal absent a manifest abuse of
discretion. In this context, an abuse of discretion is
not shown merely by an error in judgment. Rather,
the appellant must establish, by reference to the
record, that the sentencing court ignored or
misapplied the law, exercised its judgment for
reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)
(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).
As noted above, Appellant argues that the trial court imposed an
excessive sentence that exceeded even the aggravated range of the
sentencing guidelines. Appellant’s Brief at 43. Appellant also argues that
the trial court failed to give consideration to certain sentencing factors
mandated by Section 9721(b) of the Sentencing Code. Id. at 45.
Section 9721(b) addresses the factors that a sentencing court must
consider and provides, in relevant part, as follows.
§ 9721. Sentencing generally
…
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(b) General standards.--In selecting from the
alternatives set forth in subsection (a), the court
shall follow the general principle that the sentence
imposed should call for confinement that is
consistent with the protection of the public, the
gravity of the offense as it relates to the impact on
the life of the victim and on the community, and the
rehabilitative needs of the defendant. The court
shall also consider any guidelines for sentencing ….
In every case in which the court imposes a sentence
for a felony or misdemeanor … the court shall make
as a part of the record, and disclose in open court at
the time of sentencing, a statement of the reason or
reasons for the sentence imposed. In every case
where the court imposes a sentence or resentence
outside the guidelines adopted by the Pennsylvania
Commission on Sentencing under sections 2154 …
the court shall provide a contemporaneous written
statement of the reason or reasons for the deviation
from the guidelines to the commission, as
established under section 2153(a)(14) (relating to
powers and duties). Failure to comply shall be
grounds for vacating the sentence for resentence
and resentencing the defendant.
42 Pa.C.S.A. § 9721(b). We note that “a sentencing judge may satisfy [the]
requirement of disclosure on the record of his reasons for imposition of a
particular sentence without providing a detailed, highly technical statement.”
Commonwealth v. Hunzer, 868 A.2d 498, 514 (Pa. Super. 2005) (citation
omitted), appeal denied, 880 A.2d 1237 (Pa. 2005).
In this case, the trial court noted that for rape of a child and IDSI, the
guidelines called for a standard range sentence at 54 to 60 months’
imprisonment, with the aggravated and the mitigated range being plus or
minus 12 months. N.T., 6/12/13, at 26. For EWOC, corruption of minors
and indecent assault, the guidelines standard guideline range was
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restorative sanctions to nine months’ imprisonment, with the aggravated
and mitigated range being plus or minus three months. Id. at 26-27.
The trial court gave the following reasons before imposing sentence.
And it’s [the trial court’s] job to weigh the
aggravating and mitigating factors for each of you in
determining what would be an appropriate
punishment. As far as mitigating factors, I do
understand that [Appellant has] no prior record, no
other arrests, [he has] been gainfully employed in
[his life], no histories of violence, except as it relates
to these convictions[.]
When [the trial court] take[s] into account the
nature of these offenses and for the purposes of
sentencing, it’s not just what’s good for [Appellant].
[The trial court has] other considerations, and those
considerations include, in determining the purposes
of sentencing, is punishment; what would be
appropriate deterrents, rehabilitation.
And in weight the aggravating and mitigating
factors and the aggravating factors are just, in and
of itself, the nature of the offenses, it is [the trial
court’s] determination that the standard range
guidelines do not … adequately address the serious
nature of these offenses, the irreparable harm done
to the victims and their families in this case, and nor
would the standard guidelines do anything to
adequately deter others from committing similar
offenses.
…
We cannot allow adults in positions of trust, power
and authority, with whom we entrust the care and
well-being of our children, to abuse that trust and
destroy lives without serious and meaningful
consequences.
N.T., 6/12/13, at 96-98.
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Based on the trial court’s remarks at sentencing, the trial court did not
solely rely on the seriousness of the offense as Appellant claims but rather,
noted that it was the only aggravating factor it considered. See id. The
trial court explicitly listed several mitigating factors it considered when
arriving at what it believed to be an appropriate sentence. In our view, the
trial court’s statement adequately complies with the dictates of Section
9721(b). It does not follow that the trial court gave the mitigating factors
described above “little or no consideration,” as Appellant claims, simply
because the trial court concluded the seriousness of the offense warranted a
higher sentence, outside the sentencing guidelines. Based on these
considerations, we conclude the trial court did not abuse its discretion in
sentencing. See Raven, supra; Hunzer, supra.
In his sixth issue, Appellant argues that this case should be remanded
to the trial court for a hearing on a claim of after-discovered evidence.
Appellant’s Brief at 47. Pennsylvania Rule of Criminal Procedure 720(C)
provides that “[a] post-sentence motion for a new trial on the ground of
after-discovered evidence must be filed in writing promptly after such
discovery.” Pa.R.Crim.P. 720(C). In addition, the comment to Rule 720
states that “after-discovered evidence discovered during the direct appeal
process must be raised promptly during the direct appeal process, and
should include a request for a remand to the trial judge[.]” Id. at cmt. We
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note that in order to satisfy a claim of after-discovered evidence, a
defendant must satisfy the following four-pronged test.
To obtain relief based on after-discovered evidence,
appellant must demonstrate that the evidence: (1)
could not have been obtained prior to the conclusion
of the trial by the exercise of reasonable diligence;
(2) is not merely corroborative or cumulative; (3)
will not be used solely to impeach the credibility of a
witness; and (4) would likely result in a different
verdict if a new trial were granted.
Commonwealth v. Perrin, --- A.3d ---, 2015 WL 138963, at *2 (Pa.
Super. 2015) (citation omitted).
In this case, Appellant highlights “copies of documents that have been
discovered regarding medical and drug treatment records regarding D.G.”
Appellant’s Brief at 48. These were discovered during the discovery phase of
the civil case filed against Appellant. Id. The Commonwealth counters that
the records disclosed in the criminal trial would not have been admissible, as
they are statutorily privileged and would only have served as impeachment
evidence. Commonwealth’s Brief at 51-52.
Our Supreme Court has consistently reminded courts that claims of
after-discovered evidence cannot succeed where the proffered evidence
would only serve the purpose of impeaching the credibility of a trial witness.
Commonwealth v. Chamberlin, 30 A.3d 381, 414-415 (Pa. 2011), cert.
denied, Chamberlain v. Pennsylvania, 132 S. Ct. 2337 (2012);
Commonwealth v. Randolph, 873 A.2d 1277, 1283-1284 (Pa. 2005), cert.
denied, Randolph v. Pennsylvania, 547 U.S. 1058 (2006). In addition,
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our Supreme Court recently concluded that this rule applies regardless of the
degree of impeachment the evidence would allegedly inflict.
We must reject as well [the defendant]’s suggestion
the trial court erred in finding the third prong of the
test was not met; he does so because of the degree
of impeachment he anticipates he would inflict. Even
if his impeachment would “destroy and obliterate” a
witness, it is still impeachment, and the rule does
not quantify the degree of impeachment beyond
which the rule no longer applies.
Commonwealth v. Castro, 93 A.3d 818, 827 n.13 (Pa. 2014).
In the case sub judice, Appellant avers that D.G.’s records will serve to
show that D.G.’s trial testimony “was part of a fantasy of sexual abuse and a
pattern of false statements made by D.G., perhaps to excuse his acts of bad
behavior and criminal misconduct, including selling illegal drugs[.]”
Appellant’s Brief at 51. Appellant requests a new trial because a second jury
“will more clearly understand that the testimony of [D.G.] in this case
incriminating … Appellant[] does not support a guilty verdict.” Id.
Assuming, without deciding, that the aforementioned records would be
generally admissible and not privileged, we conclude that Appellant’s own
argument reveals that their sole purpose would be to impeach D.G.’s
credibility. See id. Therefore, we further conclude that Appellant is not
entitled to remand to the trial court for a hearing on his claim of after-
discovered evidence. See Perrin, supra.
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In his seventh issue, Appellant avers that the Commonwealth
committed a Brady9 violation when it withheld that Judy Cruz-Ransom, an
investigator with the Archdiocese of Philadelphia was interviewed by the
Commonwealth and provided the Commonwealth with information that was
favorable to Appellant. Appellant’s Supplemental Brief at 4. The
Commonwealth counters that Cruz-Ransom was known to the defense, and
therefore, the Commonwealth withholding her interview with police from the
defense cannot amount to a Brady violation. Commonwealth’s Brief at 53.
“Under Brady, the State violates a defendant’s right to due process if
it withholds evidence that is favorable to the defense and material to the
defendant’s guilt or punishment.” Smith v. Cain, 132 S. Ct. 627, 630
(2012) (citation omitted). “Thus, to establish a Brady violation, an
appellant must prove three elements: (1) the evidence at issue is favorable
to the accused, either because it is exculpatory or because it impeaches; (2)
the evidence was suppressed by the prosecution, either willfully or
inadvertently; and (3) prejudice ensued.” Commonwealth v. Weiss, 81
A.3d 767, 783 (Pa. 2013) (citations omitted). The Supreme Court has held
that evidence is material under Brady when “the likelihood of a different
result is great enough to ‘undermine[ ] confidence in the outcome of the
trial.’” Smith, supra, quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995).
____________________________________________
9
Brady v. Maryland, 373 U.S. 83 (1963).
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Pursuant to Brady and its progeny, the
prosecutor has a duty to learn of all evidence that is
favorable to the accused which is known by others
acting on the government’s behalf in the case,
including the police. Kyles[, supra at 437].
Pursuant to Kyles, “the prosecutor’s Brady
obligation clearly extends to exculpatory evidence in
the files of police agencies of the same government
bringing the prosecution.” Commonwealth v.
Burke, 781 A.2d 1136, 1142 ([Pa.] 2001).
Moreover, there is no Brady violation when the
defense has equal access to the allegedly withheld
evidence. See Commonwealth v. Spotz, 896 A.2d
1191, 1248 ([Pa.] 2006) (“It is well established 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[]” (internal citation omitted)).
Id. (parallel citations omitted).
In this case, Appellant raises a Brady violation on the basis of the
following evidence purportedly obtained by the Commonwealth from Cruz-
Ransom.
The Superior Court should remand this matter to the
[trial court] to allow an evidentiary hearing because
the [Commonwealth] denied him the due process of
law to which the Appellant was entitled under the
federal and state constitutions by reasons of the
Commonwealth’s failure to inform his trial counsel
that Judy Cruz-Ransom, whom we now know (from
her deposition) had been interviewed by the
[Commonwealth] prior to the criminal trial, had
provided information which was material and
favorable to the defense, to wit, that the testimony
provided by social worker Louise Hagner regarding
her interview with … D.G. on January 30, 2009 was
corroborated and confirmed by another witness, i.e.,
Judy Cruz-Ransom.
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(a) Ms. [Cruz-]Ransom testified at the
deposition of April 9, 2014 at pages 11-
13 that she had spoken with [the
Commonwealth], along with her own
attorney … prior to the criminal trial in
this case.
(b) In said deposition, Ms. [Cruz-]Ransom
testified that she was present with Louise
Hagner on January 30, 2009 when they
interviewed … D.G. regarding his
allegations of sexual abuse while a
student at St. Jerome’s Elementary
School in Philadelphia. Her deposition
testimony directly corroborated and
supported the trial testimony of Louise
Hagner to the effect that [D.G.]’s
demeanor seemed normal, that [D.G.]
was not actually crying and that [D.G.]
did not appear in any way to be under
the influence of drugs or alcohol at the
time of the interview.
(c) Ms. [Cruz-]Ransom further testified at
the deposition that [D.G.] had in fact
directed her, as the person who was
driving the automobile, to drive to the
location at which Appellant … allegedly
assaulted [D.G.], to wit, a “dumpster” in
front of an apartment building (not in
Pennypack Park as was testified to at
trial by [D.G.]). Ms. Ransom also
recalled that [D.G.] stated that
[Appellant] had “choked” D.G. “with a
seatbelt”, a fact which [D.G.] also denied
at the trial.
Appellant’s Supplemental Brief at 5-6.
Assuming arguendo that the Commonwealth was required to disclose
the above statements from Cruz-Ransom, we conclude Appellant has not
established that said statements were material for the purposes of Brady.
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Appellant’s supplemental brief on its face acknowledges that the bulk of
Cruz-Ransom’s statements were merely cumulative evidence, as they would
serve to corroborate Hagner’s testimony. See id. at 5. In addition, the
statements would highlight more inconsistencies in D.G.’s accounts of the
abuse, which were already well-established to the jury by defense counsel
through Hagner’s testimony. See, e.g., N.T., 1/23/13, at 49, 56 (Hagner
testifying that D.G. told her that Appellant’s incident of abuse took place “by
a dumpster[]” and it “was not Pennypack Park[]”); Commonwealth v.
Santiago, 654 A.2d 1062, 1082 (Pa. Super. 1994) (stating, “[s]ince
cumulative evidence is not ‘material to either guilt or punishment,’ the
unavailability of cumulative evidence does not deprive the defendant of due
process[]”), quoting United States v. Sanchez, 917 F.2d 607, 618 (1st Cir.
1990), cert. denied, Santiago v. Pennsylvania, 516 U.S. 995 (1995).
Based on these considerations, we conclude Appellant’s due process rights
were not violated in this case. See Smith, supra; Weiss, supra.
Based on the foregoing, we conclude all of Appellant’s issues are either
waived or devoid of merit. Accordingly, the trial court’s June 12, 2013
judgment of sentence is affirmed.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/24/2015
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Com. v. Shero, B.
Combined Opinion