J-S60034-16
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ERIC ROSADO, :
:
Appellant : No. 3333 EDA 2015
Appeal from the Judgment of Sentence September 24, 2015
in the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0002264-2014
BEFORE: SHOGAN, OTT, and STRASSBURGER,* JJ.
MEMORANDUM BY: STRASSBURGER, J.: FILED OCTOBER 21, 2016
Eric Rosado (Appellant) appeals from the judgment of sentence
entered on September 24, 2015, after he was found guilty of indecent
assault, endangering the welfare of a child, corruption of minors, and
unlawful contact with a minor. We affirm.
The pertinent factual history of this case was summarized by the trial
court as follows.
On February 21, 2014, seven[-]year-old M.F. was visiting
[Appellant], her step-grandfather, at his house in the Poconos.
On this evening, while M.F.’s maternal grandmother, [A.Q.], and
[her] brother [] were upstairs, [Appellant] asked M.F. to sit on
his lap on a stool in the kitchen. While M.F. sat on his lap,
[Appellant] reached underneath her and rubbed her vaginal area
through her clothes. Immediately after she got down from
[Appellant’s] lap, M.F. went upstairs where she told her
grandmother what had happened. [A.Q.] confronted [Appellant]
about the situation and eventually demanded that he leave the
house. [A.Q.] took M.F. home to her mother, [T.C.], in
*Retired Senior Judge assigned to the Superior Court.
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Delaware the next morning and, after further discussions
between M.F., her mother, and her grandmother, it became
apparent that this was not the only incident where [Appellant]
touched M.F. in this fashion. This conduct had been occurring
with frequency at [Appellant’s] apartment in New York City over
the preceding two years. M.F. reported the New York incidents
to her grandmother after this latest occurrence because she
recently watched a video in school about not keeping bad
secrets.
Trial Court Opinion, 1/27/2015, at 1-2 (footnote omitted).
Following several pre-trial motions filed by both the Commonwealth
and Appellant, the case proceeded to a jury trial. Appellant was found guilty
of the aforementioned crimes on June 9, 2015. On September 24, 2015,
Appellant received an aggregate sentence of not less than 30 months and no
more than 72 months of incarceration. This timely-filed appeal followed.1
Appellant raises the following claims for our review.
1. Whether the trial court erred, pre-trial and during trial, when
it allowed the Commonwealth to submit prior bad acts
evidence of previous instances of sexual abuse of the alleged
victim by [Appellant], despite the extreme, unfairly prejudicial
nature of these statements and the relative lack of probative
value for the charges at issue?
2. Whether the trial court erred, at trial, when it allowed the
Commonwealth’s expert to testify to matters outside the
scope of her pre-trial proffer and where the defense did not
then have a chance to rebut such testimony with an opposing
expert witness or have notice to prepare for such testimony
via an expert report?
3. Whether the trial court erred at trial, when it overruled
defense counsel’s objections to personal commentary by the
Commonwealth during cross-examination of [Appellant] and
1
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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where the trial court, in front of the jury, seriously
compounded that error by going on to effectively suggest that
[Appellant] was being dishonest?
4. [Whether the] trial court erred, at trial, when it refused to
instruct the jury that it could consider the lack of promptness
of the complaint as a factor in assessing credibility?
5. [Whether the] trial court erred, at trial, when it denied the
motion for mistrial based upon the Commonwealth’s attorney
[sic] expressing a personal opinion on witness credibility
during summation?
6. Whether the trial court erred as a matter of law and abused
its discretion in rendering an excessive sentence, at the top of
the standard range on all charges when it:
a. improperly and unreasonably failed to consider the
effects of Megan’s Law registration in crafting the
sentence;
b. improperly and unreasonably considered as a
sentencing factor that the criminal act evinced [sic]
[Appellant’s] threat to the community, which is true of
every instance of the crime for which [Appellant] was
convicted, and which is repetitive to the sentencing
guidelines consideration of the crimes already?
Appellant’s Brief at 8-10 (emphasis omitted).2
We first address Appellant’s issue that the trial court erred in finding
prior incidents of sexual abuse by Appellant against M.F. permissible
evidence under Pa.R.E. 404(b). Appellant avers the prejudice to him caused
by the introduction of this evidence outweighed the probative value.
2
Included in Appellant’s statement of questions involved are several issues
that were raised within his concise statement of errors complained of on
appeal (Concise Statement) and subsequently addressed by the trial court.
Appellant now seeks to withdraw these issues. Therefore, they will not be
presented herein or addressed by this Court. See Appellant’s Brief at 8-9.
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Appellant’s Brief at 28. Specifically, Appellant contends “there was no actual
purpose in admitting the evidence beyond accumulating a sense of outrage
in the jury and encouraging judgment based upon propensity.” Id.
In determining whether the trial court properly allowed testimony of
these prior incidents, we are mindful that “[e]vidence of crimes other than
the one in question is not admissible solely to show the defendant’s bad
character or propensity to commit crime.” Commonwealth v. Collins, 703
A.2d 418, 422 (Pa. 1997); see also Pa.R.E. 404(b)(1) (“Evidence of a
crime, wrong, or other act is not admissible to prove a person’s character in
order to show that on a particular occasion the person acted in accordance
with the character.”).
Nevertheless, “[t]his evidence may be admissible for another purpose,
such as proving motive, opportunity, intent, preparation, plan, knowledge,
identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2); see
also Commonwealth v. Ross, 57 A.3d 85, 103 (Pa. Super. 2012) (quoting
Commonwealth v. Elliott, 700 A.2d 1243, 1249 (Pa. 1997)) (“Under
Pennsylvania law, evidence of prior bad acts is admissible to prove ‘a
common scheme, plan or design where the crimes are so related that proof
of one tends to prove the others.’”); Commonwealth v. Dillon, 863 A.2d
597, 601 (Pa. Super. 2004) (“In trials involving sexual assault, res gestae
evidence [known as the “complete story” exception] is of particular
importance and significance to the fact-finder. By their very nature, sexual
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assault cases have a pronounced dearth of independent eyewitnesses, and
there is rarely any accompanying physical evidence.”); Commonwealth v.
Dillon, 925 A.2d 131, 137 (Pa. 2007) (“[Our Supreme] Court has
recognized a res gestae exception to Rule 404(b) which allows admission of
other crimes evidence when relevant to furnish the context or complete
story of the events surrounding a crime.”).
In its 1925(b) opinion, the trial court offered the following analysis:
As to the New York incidents, this case is exactly the type
of case to which the res gestae exception is meant to apply. The
evidence proffered and then submitted by the Commonwealth
demonstrated that [Appellant] took advantage of his position of
trust to surreptitiously touch and sexually abuse his young step-
granddaughter here and in New York. The incidents of touching
and abuse in New York were clearly part of a connected chain
and sequence of criminal events that formed the history of this
case and led to the assault that occurred in the home in the
Poconos. Evidence of the New York incidents also provided
context for and the complete story of the abuse charged in this
case. For many of the same reasons, evidence about the
incidents that occurred in New York was also admissible under
the common plan or scheme exception. Specifically, the crimes
committed here and those perpetrated in New York were so
similar and related that proof of one tends to prove the others.
Further, there is no question that the evidence was relevant.
Given the facts and circumstances of this case it is equally clear
that the probative value of the evidence outweighed its
prejudicial effect. As the cited cases indicate, since the evidence
fell under exceptions to Pa.R.E. 404(b) and was more probative
than prejudicial, we were not required to sanitize the trial to
eliminate all unpleasant facts from consideration. Finally, we
gave required limiting instructions.
Simply, [Appellant’s] prior acts toward M.F. fit under the
res gestae and common plan or scheme exceptions to Pa.R.E.
404(b), were more probative than prejudicial, and required
limiting instructions were given. Accordingly, [Appellant’s]
complaint has no merit.
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Trial Court Opinion, 11/24/2015, at 9-10 (citations omitted).
Upon review, we wholly agree with the trial court’s thoughtful analysis,
and conclude that the evidence allowed by the trial court was permissible
under Pa.R.E. 404(b). In doing so, we disagree with Appellant that the
incidents that occurred in New York provided no probative value. As aptly
stated by the trial court, the prior incidents “clearly fell within the res gestae
[and common scheme exception] in that they furnished context for the
crimes charged and helped to provide the complete story of events as they
showed a natural progression and development which culminated in the
crime charged in this case.” Trial Court Opinion, 11/24/2015, at 8. No relief
is due.
Appellant also challenges the trial court’s decision to permit expert
testimony elicited by the Commonwealth that was outside the scope of the
pre-trial proffer. As concisely summarized by the trial court:
In the instant case, no expert report was generated as
[Carol Haupt (Ms. Haupt), the Commonwealth’s expert] was
being called to give general testimony regarding victim behavior.
Counsel for [Appellant] was well aware of this from
communications he had with the assistant district attorney and
from discussions and rulings during pre-trial hearings. As there
was not going to be any testimony specific to M.F. or
[Appellant], there was no requirement that a report be
generated. In lieu of a report, [Appellant] was given transcripts
of similar general victim behavior testimony given by Ms. Haupt
in other cases. While the Commonwealth stated that its purpose
for calling Ms. Haupt was to elicit testimony about victim delays
in reporting, there was not an affirmative representation that
this was the only thing this expert could testify to in regard to
general victim behavior.
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At trial, before the Commonwealth called Ms. Haupt,
[Appellant] intentionally elicited testimony on cross-examination
of M.F.’s grandmother [A.Q.] that as a teacher she was a
mandatory reporter for child abuse and that she had received
some child abuse training, including training on signs of child
abuse. She then testified that she had never observed any signs
of child abuse in M.F. When the Commonwealth called Ms.
Haupt, [Appellant] objected to allowing her to testify in regard to
any signs or symptoms (or lack thereof) of child abuse.
[Appellant] claimed that because the Commonwealth stated,
pretrial, their intention to call Ms. Haupt for testimony regarding
a delay in reporting, they were not able to elicit testimony
outside this narrow scope and that doing so prejudiced him.
Trial Court Opinion, 11/24/2015, at 12 (citations omitted).
Appellant argues that he was essentially “ambushed at trial” and that
Appellant’s “cross-examination of a lay witness was of an entirely different
kind than the Commonwealth’s introduction of expert testimony.” Appellant’s
Brief at 30. Disagreeing that he had “opened the door” to this testimony,
Appellant contends the court’s allowance of this testimony was highly
prejudicial. Id. at 30-31.
[T]he admission of expert scientific testimony is an
evidentiary matter for the trial court’s discretion and should not
be disturbed on appeal unless the trial court abuses its
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness,
or partiality, prejudice, bias, or ill-will, or such lack of support so
as to be clearly erroneous.
Commonwealth v. Szakal, 50 A.3d 210, 227 (Pa. Super. 2012) (quoting
Grady v. Frito–Lay, Inc., 839 A.2d 1038, 1046 (Pa. 2003)).
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Opining that it did not err by allowing the Commonwealth to elicit the
aforementioned information from its expert, the trial court offered the
following.
Because [Appellant] raised the issue in his cross-
examination of M.F.’s grandmother we ruled that the
Commonwealth could ask Ms. Haupt general questions regarding
signs of child abuse similar to the questions asked by [Appellant]
of M.F.’s grandmother. In regard to this particular issue, the
Commonwealth asked Ms. Haupt two questions about general
behavior and signs, or lack thereof, of sexual abuse. This
testimony was in direct response to testimony elicited by
[Appellant] from another witness and did not go beyond the pre-
trial proffer of general victim behavior testimony. Furthermore,
assuming arguendo this testimony did go beyond the scope of
the expert testimony as indicated by the Commonwealth,
[Appellant] made only a bald claim of prejudice and, in fact,
there was no prejudice from the few questions asked.
Given the facts and circumstances of this case, the limited
nature of Ms. Haupt’s testimony on the contested subject, and
the fact that [Appellant], not the Commonwealth, interjected the
subject, we believe that we acted well within our discretion in
allowing the testimony. The evidence was relevant, responsive
to questioning conducted by [Appellant’s] attorney, and did not
prejudice [Appellant].
Trial Court Opinion, 11/24/2015, at 12-13 (citations omitted).
Upon review, we conclude that the trial court acted within its
discretion. The decision to allow Ms. Haupt to offer testimony to rebut
defense counsel’s questioning of M.F.’s grandmother is reasonable, not the
product of “partiality, prejudice, bias or ill will.” Commonwealth v. Hoch,
936 A.2d 515, 518 (Pa. Super. 2007) (citations omitted). Accordingly,
Appellant is entitled to no relief from this Court.
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Next, in addressing Appellant’s issue related to the personal
commentary made during cross-examination by the Commonwealth and trial
court, we first set forth our standard of review.
“Comments by a prosecutor constitute reversible error only where
their unavoidable effect is to prejudice the jury, forming in their minds a
fixed bias and hostility toward the defendant such that they could not weigh
the evidence objectively and render a fair verdict.” Commonwealth v.
Miller, 746 A.2d 592, 601–02 (Pa. 2000). Appellant takes issue with the
following two interactions that occurred when he was cross-examined by the
Commonwealth.
[The Commonwealth:] Okay so when you say eight grandkids –
and again you’re talking [A.Q.’s] kids?
[Appellant:] Yeah, because they’ve been the closest to me all
these years.
[The Commonwealth:] Okay, I just thought it was odd that you
didn’t mention that you have your own grandkids.
[Defense Counsel:] Objection to what the district attorney
thought Your Honor.
[Trial Court:] Overruled.
N.T., 6/9/2015, at 39.
[The Commonwealth:] So what’s the difference then between
[M.F.] sitting on your lap in the Poconos versus all the other
times she sat on your lap? Why is this one time that you’re so
adamant that no, she never did? What’s the difference?
[Appellant:] I don’t get it.
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[The Commonwealth:] Neither do I sir, that’s why I asked the
question.
[Defense Counsel:] Judge, you know, does he have to resort to
this -- those comments? He doesn’t get it? I think everybody
else does.
[Trial Court:] Well we’ll see if they do or not; but the point of it
is that he didn’t answer the question either. So you can ask him
the question again.
[Defense Counsel:] Judge, can he rephrase the question?
[Trial Court:] I think it was an easy question to answer.
[The Commonwealth:] I thought it was an easy question too
Judge.
N.T., 6/9/2015, at 50-51. Appellant argues that these two instances of
“personal commentary,” along with a third occurrence, the objection to
which was sustained by the trial court, exhibit improper expressions of the
prosecutor’s personal opinion. Appellant avers that, “although not explicitly
stated, the meaning” of these comments, including the trial court’s response
to defense counsel’s request to rephrase the question “was perfectly clear.”
Appellant’s Brief at 34. Specifically, Appellant contends “[t]he prosecutor
believed [Appellant] was lying, evinced [sic] by the prosecutor’s sarcastic
string of comments. The [trial court] and the prosecutor then demonstrated
agreement that [Appellant] was evading easy questions, making it seem to
the jury that the [trial court] and the prosecutor were of one mind on
[Appellant’s] testimony.” Id. Such commentary, Appellant argues, “was
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highly prejudicial … and would serve to form a fixed bias in the minds of the
jury so as to taint the fairness and impartiality of the verdict.” Id. at 35.
In response, the trial court concluded the issue was waived. Trial
Court Opinion, 1/27/2015, at 24-25. Specifically, the trial court found it was
“unable to ascertain” what Appellant was referring to3 and Appellant’s failure
to “pinpoint the alleged error within the record” resulted in waiver. Id.
We agree with the trial court that Appellant failed to state with exact
specificity what remarks in the record he was contesting. However, because
we find the issue as written provided enough context to discern which parts
of Appellant’s testimony he was challenging, we decline to find waiver.
In reviewing the applicable portions of the transcript as set forth
above, it appears Appellant only objected to one of the comments made by
the prosecutor. Regardless, to the extent that Appellant properly objected
to both remarks and thus preserved the issue for our review, we discern no
abuse of discretion by the trial court. See Commonwealth v. Cooper, 941
A.2d 655, 668 (Pa. 2007) (citations omitted) (“Not every intemperate or
improper remark mandates the granting of a new trial. Reversible error
occurs only when the unavoidable effect of the challenged comments would
3
In his Concise Statement, Appellant raised the following issue the trial
court deemed waived: “The trial court erred, at trial, when it overruled
defense counsel’s objections to personal commentary by the Commonwealth
during cross-examination with [Appellant] and where the trial court, in front
of the jury, seriously compounded that error by going on to effectively
suggest that [Appellant] was being dishonest.” Concise Statement,
11/24/2015, at 3.
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prejudice the jurors and form in their minds a fixed bias and hostility toward
the defendant such that the jurors could not weigh the evidence and render
a true verdict.”). No relief is due.
Next, Appellant asserts the trial court erred when it refused to issue a
prompt complaint instruction to the jury.4 Contending the instruction was
essential for assessing the victim’s credibility, Appellant avers the trial
court’s failure to issue this instruction, while allowing testimony of prior
incidents (which were not reported immediately) under the res gestae
exception was extremely prejudicial. Appellant’s Brief at 38-41. Appellant
notes that while the trial court denied Appellant’s request for the instruction,
it expressly permitted the Commonwealth “to present an expert witness that
addressed the victim’s delay in reporting.” Id. at 38. Although
acknowledging the jury was instructed about general witness credibility,
Appellant argues this instruction was “insufficient and misleading to the jury
on the issue of delay in reporting.” Id. at 39.
[I]n reviewing a challenge to the trial court’s refusal to give a
specific jury instruction, it is the function of this [C]ourt to
determine whether the record supports the trial court’s decision.
In examining the propriety of the instructions a trial court
presents to a jury, our scope of review is to determine whether
the trial court committed a clear abuse of discretion or an error
of law which controlled the outcome of the case.
4
Initially, the trial court said it would give a prompt complaint instruction.
However, upon an objection from the Commonwealth and the court’s review
of case law, the court declined to give the instruction. See. N.T., 6/9/2015,
at 67-68, 75-81.
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Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa. Super. 2006)
(citations omitted).
“The prompt complaint instruction is based upon a belief that a victim
of a violent assault would reveal the assault occurred at the first available
opportunity. [T]he purpose of the instruction is to allow a jury to call into
question a complainant’s credibility when he or she did not complain at the
first available opportunity.” Id. (omitted).
The trial court determined that a prompt complaint instruction was not
required, largely on the basis of our Supreme Court’s opinion in
Commonwealth v. Snoke, 580 A.2d 295 (Pa. 1990).
In Snoke, a five[-]year-old girl was sexually abused by her
father. She did not report the abuse for five months. Similar to
M.F. in this case, the child victim’s report in Snoke was made
after she watched a video in school on the difference between
“good touching” and “bad touching.” On appeal, the defendant-
Father argued that the trial court erred by failing to give a “lack
of prompt complaint” instruction. Our Supreme Court disagreed,
stating:
[W]here the actual occurrence of the assault is at
issue in the case, the trial judge is required to charge
the jury as to the relevance of a delay in disclosure
and the significance of a prompt complaint. In such
an assessment the witness’ understanding of the
nature of the conduct is critical. Where the victim
did not comprehend the offensiveness of the contact
at the time of its occurrence, the absence of an
immediate complaint may not legitimately be used to
question whether the conduct did in fact occur.
***
Where no physical force is used to accomplish the
reprehensible assault, a child victim would have no
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reason to promptly complain of the wrong-doing,
particularly where the person involved is in a position
of confidence. Where such an encounter is of a
nature that a minor victim may not appreciate the
offensive nature of the conduct, the lack of a
complaint would not necessarily justify an inference
of a fabrication. As the testimony reveals in this
case, the child had no reason to question the
character of the conduct until her subsequent
viewing of a film depicting this type of conduct. It is
also significant that the party involved in the
behavior was her father whom she would naturally
trust and accept his judgment as to the propriety of
the act.... In this setting the absence of an
immediate outcry would not in and of itself warrant
an inference that the event was a recent fabrication
and, therefore, a charge to that effect was properly
denied by the trial court.
Snoke, 580 A.2d at 298-300.
[The trial court explained its decision to forego the
instruction in this case as follows:] In this case, [Appellant]
argued that M.F. did not make a prompt complaint. Specifically,
he maintained that a “delay” occurred when M.F.’s mother and
grandmother waited for a short period of time before contacting
the police. He also pointed to the fact that M.F. did not disclose
the incidents in New York until she reported the assault that
occurred in this case. However, after examining case law we
determined that neither aspect of [Appellant’s] assertion holds
water.
Having reviewed the matter again in light of this appeal,
we continue to believe that our ruling was correct under the
facts and the law. Initially, M.F. did promptly report the abuse.
Specifically, immediately after the sexual assault here in the
Poconos, M.F. went upstairs and told her grandmother what had
happened. The next morning, after her grandmother drove her
home, M.F. told her mother what had happened. Given these
facts, a prompt complaint instruction was simply not warranted.
***
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[Appellant’s] assertion that M.F.’s delay in reporting the New
York incidents required a lack of [prompt] complaint instruction
is equally meritless in light of Snoke. Given M.F.’s age, the
family relationship between [Appellant] and M.F., the position of
trust [Appellant] enjoyed, the lack of force used to perpetrate
the abuse, and the other considerations discussed above, a lack
of prompt complaint instruction was not warranted based on any
delay attributable to M.F. regardless of whether the assertion of
delay is made in reference to New York incidents, the abuse that
occurred in Pennsylvania, or both. Further, as [Appellant] points
out in other arguments, he was not on trial in this case for the
New York incidents, we allowed evidence of the New York
incidents for limited purposes only, the jury was instructed on
the limitations, and counsel for [Appellant] remained free to
point out and argue the length of time between the occurrence
of the New York incidents and M.F.’s reporting of the assaults.
There was simply no need or requirement to give a lack of
prompt complaint instruction in regard to prior acts that were
admitted for only limited purposes.
Trial Court Opinion, 11/24/2015, at 18-21 (citations omitted, emphasis
in original).
We find the trial court’s explanation for denying Appellant’s request for
a prompt complaint instruction was well-reasoned and in line with our long
standing case law concerning this subject. We find no abuse of discretion or
misapplication of law and wholly agree with the conclusions of the trial court
set forth above.5
5
Furthermore, as correctly cited by Appellant, this Court has held that a
general witness-credibility instruction is sufficient under similar
circumstances when confronted with a trial court’s refusal to grant a prompt
complaint instruction. See Commonwealth v. Sandusky, 77 A.3d 663,
669 (Pa. Super. 2013) (finding the trial court’s credibility instruction
“provided the jury with a sufficient framework to question the victims’
credibility”). See also Commonwealth v. Snoke, 580 A.2d 299-300
(footnotes and citations omitted) (“The trial judge in this case refused to
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In his fifth issue, Appellant contends the trial court erred when it
denied a motion for a mistrial based on comments made by the
Commonwealth during summation. Specifically, Appellant takes issue with
two statements, which he claims express the Commonwealth’s personal
opinion. First, the prosecutor commented on the negative reaction he
witnessed when the victim saw Appellant unexpectedly while she was
testifying via closed circuit television. N.T., 6/9/2015, at 114-16. Defense
counsel objected. In response, the trial court advised counsel not to
interrupt. “You can make objections later. Overruled.” Id. 115. The
second comment followed when the prosecutor stated, “I just can’t wrap my
mind around it,” referring to Appellant’s version of events. Id. at 120. At
the end of the Commonwealth’s closing, Appellant’s counsel requested a
mistrial based upon the aforementioned statements. Id. at 138-42. On
appeal, Appellant contends these statements “would serve to form a fixed
bias in the minds of the jury so as to taint the fairness and impartiality of
the verdict.” Appellant’s Brief at 35.
instruct the jury with a charge specifically addressing the implications of a
delay in making a complaint. The trial judge properly reasoned that the
facts of this case did not necessitate the specific instruction on delay. The
trial judge did instruct the jury thoroughly upon the general subject of
credibility in accordance with the suggested instruction for witness
credibility. … We believe that, under the fact of this case, this was sufficient
to permit the jury to ascertain the truthfulness of the testimony offered by
the minor complaining witness as well as of others who testified in this
matter.”)
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“The decision to declare a mistrial is within the sound discretion of the
court and will not be reversed absent a ‘flagrant abuse of discretion.’”
Commonwealth v. Manley, 985 A.2d 256, 266–67 (Pa. Super. 2009)
(citations omitted). As stated supra “[c]omments by a prosecutor constitute
reversible error only where their unavoidable effect is to prejudice the jury,
forming in their minds a fixed bias and hostility toward the defendant such
that they could not weigh the evidence objectively and render a fair verdict.”
Commonwealth v. Miller, 746 A.2d at 601–02.
Thus, where the prosecutor breaches his duty of fairness and
acts in a manner that deprives the defendant of a fair trial, a
mistrial should be granted. We note, however, that the
misconduct must cause prejudice to the defendant, and if the
prejudice to the defendant is eliminated by subsequent curative
instructions from the court, then no mistrial need be granted.
Commonwealth v. Ashmore, 403 A.2d 603, 604–05 (Pa. Super. 1979)
(citations omitted).
The trial court offered the following analysis.
[The trial court] determined that both the Commonwealth
and [Appellant] had made some personal comments in their
closing[s] but that they did not overly prejudice the jury and
could be cured with cautionary instructions, which we gave to
the jury both before and after closing arguments.[6] A further
examination of the transcript and exact language used by the
prosecutor and complained of by [Appellant] does not reveal
6
Following summation, the trial court re-issued the following cautionary
instruction: “[R]emember that the attorneys’ beliefs aren’t evidence and
they’re not even really arguments so it’s up to you to assess the facts, find
the facts based on all the evidence that was presented regardless of whether
it was mentioned by the attorneys or not and regardless what either of their
beliefs are, and then you apply those facts to the law as I instruct you on
and that’s how you will reach a verdict in this case.” N.T., 6/9/2015, at 146.
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improper personal comments which create a deep and uncurable
prejudice against [Appellant]. Rather it seems to be more along
the lines of appropriate oratorical flair. The words used by the
prosecutor were not improper, or, if they were, they did not
create a fixed bias and hostility toward [Appellant], especially
since appropriate instructions were given.
Trial Court Opinion, 11/24/2015, at 22-23 (citations omitted).
We agree with the trial court’s finding that the statements were not of
such a nature as to form a fixed bias or hostility towards Appellant. In
reviewing the record, we found defense counsel made similar comments
when referring to evidence in the case such as stating “[a]gain, things that
don’t make sense.” N.T., 6/9/2015, at 94. “It is well-established that the
prosecution is permitted to respond to arguments made by the defense.”
Commonwealth v. Thomas, 54 A.3d 332, 340 (Pa. 2012).
Furthermore, in assessing the totality of the evidence presented, we
find the Commonwealth’s comments concerning what he had seen and what
the jury may or may not have seen as they watched M.F. testify via closed
circuit television were cured by the trial court’s cautionary instructions that
the jury was only to consider the facts based on the evidence presented.
“The jury is presumed to have followed the court’s instructions.”
Commonwealth v. Flor, 998 A.2d 606, 632 (Pa. 2010).
Appellant’s final issue challenges the discretionary aspects of his
sentence.
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
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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.
***
When imposing sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (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.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
Here, Appellant timely filed a notice of appeal. We do not have a
2119(f) statement before us, but, as the Commonwealth has not objected to
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its absence, waiver does not apply on that basis. Commonwealth. v.
Brougher, 978 A.2d 373, 375 (Pa. Super. 2009).
Thus, we must consider whether Appellant preserved the issues raised
in his brief by raising them in a post-sentence motion. Those two issues are
that the trial court (1) “failed to consider the effects of Megan’s Law
registration in crafting a sentence;” and (2) “considered as a sentencing
factor that the criminal act evidenced [Appellant’s] threat to the
community,” as such is true in all cases of sex crimes against minors.
Appellant’s Brief at 9-10.
Appellant did not raise either of these claims at sentencing or in his
motion for reconsideration of sentence. Accordingly, the issues are not
preserved for our review. Commonwealth v. Tejada, 107 A.3d 788, 799
(Pa. Super. 2015) (holding discretionary aspects claims not raised at
sentencing or in a post-sentence motion are not subject to our review, even
if raised in 1925(b) statement and addressed in the trial court’s 1925(a)
opinion).
Accordingly, Appellant’s final issue warrants no relief.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/2016
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