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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SHIRL D. PEYATT, : No. 655 WDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, January 25, 2017,
in the Court of Common Pleas of Forest County
Criminal Division at No. CP-27-CR-0000053-2015
BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 28, 2017
Shirl D. Peyatt appeals from the January 25, 2017 judgment of
sentence entered in the Court of Common Pleas of Forest County following
his conviction in a jury trial of aggravated indecent assault of a child;
aggravated indecent assault -- complainant less than 13 years of age;
unlawful contact with a minor (sexual offenses); intimidation of witnesses or
victims to refrain from reporting; corruption of minors (sexual offenses); and
indecent assault -- complainant less than 13 years of age.1 The trial court
sentenced appellant to an aggregate term of imprisonment of 144 months to
288 months. We affirm.
1 18 Pa.C.S.A. §§ 3125(b), 3125(a)(7), 6318(a)(1), 4952(a)(1),
6301(a)(1)(ii), and 3126(a)(7), respectively
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The record reflects that on July 13, 2015, the female victim, who was
then 11 years old, and her then 12-year-old stepbrother, Q.P., visited
appellant and his wife, who are Q.P.’s maternal grandparents. That night,
the victim and Q.P. slept in appellant’s living room. The victim slept on a
loveseat, and Q.P. slept on a sofa. The victim testified that she woke up
around 2:00 a.m. because she felt her pants being pulled down and
someone “touching” her. (Notes of testimony, 11/2-3/16 at 108.) She
stated that she knew what time it was because she checked the time on her
tablet, which was sitting beside her. (Id.) After waking up, she pulled her
pants back up. She did not see who was touching her, and she went back to
sleep. (Id. at 109.)
The victim then testified that she woke up once more because she “felt
someone pulling [her] pants down again.” (Id. at 109.) She stated that she
was fully awake and saw and felt appellant touching her “inside [her]
clothing” on her “crotch” and that appellant “stuck his finger inside of it” and
that “it hurt.” (Id. at 110-111.) The victim then stated that she “pulled
[her] pants up” and “went to the bathroom and got dressed.” (Id. at 111.)
The victim further testified that when she went to retrieve her phone,
she saw appellant taking her phone. She then encountered appellant again
in the living room, at which time appellant asked the victim “if he could lick
down there.” (Id.) The victim told him “no.” (Id.) The victim stated that
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appellant then “came up to [her] and handed [her] $20 and told [her] not to
tell anyone” or he “would hurt [the victim’s] brother.” (Id. at 112, 116.)
The record reflects that the only witness called by the Commonwealth
to testify at trial as to appellant’s prior bad acts was T.B.2 The trial court
summarized T.B.’s testimony as follows:
T.B. testified that [a]ppellant was her uncle by
marriage. She and her brother use [sic] to visit
[a]ppellant’s home during the summer recess from
school. The last visit occurred when she was 11 or
12 years old. T.B. testified at the in camera hearing
that she was born in 1993, therefore the last visit
would have been in 2004 or 2005. She would be
accompanied by her brother who was two years
older than her. During the last visit, T.B. and her
brother were alone with [a]ppellant and his wife and
were under their care and supervision. After playing
outside all day T.B. and her brother went to bed in
[a]ppellant’s living room. T.B. slept on the floor and
her brother slept on a couch. T.B. was awoken by
someone touching her. Her pants were down and a
coffee table that she was sleeping next to had been
moved. She saw [a]ppellant walking out of [the]
room. Her brother was still asleep on the couch.
Trial court opinion, 5/23/17 at 3.
2 The record reflects that appellant’s first trial ended in a mistrial. The trial
court ordered a mistrial sua sponte because the prior bad acts testimony of
child witness D.D. diverged from the offer of proof that the Commonwealth
submitted to the trial court and that the trial court relied upon in permitting
D.D. to testify. (Trial court opinion, 5/23/17 at 2-3.)
The record further reflects that the trial court permitted T.B. to testify
at appellant’s first trial. As a result of the mistrial, however, T.B. did not
testify at appellant’s first trial. Prior to permitting T.B. to testify at
appellant’s second trial, the trial court conducted an in camera hearing to
ensure the admissibility of T.B.’s prior bad acts testimony.
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As stated, a jury convicted appellant of the crimes set forth above.
Following imposition of sentence, appellant filed a timely post-sentence
motion, which the trial court denied. Appellant then filed a timely notice of
appeal to this court. Subsequently, the trial court ordered appellant to file a
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Appellant complied. Thereafter, the trial court filed its Rule 1925(a) opinion.
Appellant raises the following issues for our review:
1. Was the denial of [appellant’s] right to be
present at an evidentiary hearing pursuant to
42 Pa.C.S.[A.] § 5985.1 [(a]dmissibility of
certain statements[)] an error requiring
reversal of his conviction[?]
2. Was the admission of testimony of prior bad
acts at a jury trial, testimony describing prior
acts of sexual misconduct attributed to
[appellant], error requiring reversal of his
conviction[?]
3. Should the conviction of [appellant] on
count 3, 18 Pa.C.S.[A.] § 6318 [(u]nlawful
contact with minor[)] be vacated because
there was insufficient evidence of an act which
could fairly be viewed as one of intentional
contact[?]
Appellant’s brief at 13 (italics and quotation marks omitted).
Appellant first complains that he had a right to be present during those
parts of the evidentiary hearing conducted under the Tender Years Hearsay
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Act (“TYHA”), 42 Pa.C.S.A. § 5985.1,3 in which the trial court heard
testimony from third parties, and because he was not present for this
third-party testimony, his convictions should be reversed. Appellant
concedes that he had no right to be present at the TYHA hearing when the
victim testified. (Appellant’s brief at 26.)
The TYHA provides, in relevant part, that if the trial court “[h]ear[s]
the testimony of a parent or custodian or any other person, such as a person
who has dealt with the child victim[,]” . . .in connection with making a
finding that “the child . . . is unavailable as a witness,” “the defendant, the
attorney for the defendant and the attorney for the Commonwealth have the
right to be present.” 42 Pa.C.S.A. § 5985.1(a)(2)(i), (b)(2) & (c)(2). As
such, a criminal defendant has no statutory right to be present at a
TYHA hearing during third-party testimony when the victim is available as a
witness at trial and subject to cross-examination. Here, the victim was
available as a witness at trial and subject to cross-examination, as were the
third parties that testified at the TYHA hearing. Therefore, appellant’s
substantive right “to be confronted with the witnesses against him,” as
guaranteed by the Sixth Amendment to the United States Constitution and
Article I, Section 9 of the Pennsylvania Constitution was not violated by his
3 The TYHA creates an exception to the hearsay rule for young victims and
witnesses by providing for the admissibility of certain out-of-court
statements to third parties that otherwise may be considered hearsay. See
42 Pa.C.S.A. § 5985.1; see also Commonwealth v. Golphin, 161 A.3d
1009, 1023 (Pa.Super. 2017).
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absence during third-party testimony at the TYHA hearing.4 Consequently,
this claim lacks merit.
Appellant next complains that the trial court abused its discretion by
admitting the testimony of T.B. regarding appellant’s prior bad acts because
the Commonwealth did not allege that the evidence was “necessary” and
because the trial court failed to balance the probative value of the evidence
against its prejudicial impact. (Appellant’s brief at 40, 45.)
“On appeals challenging an evidentiary ruling of the trial court, our
standard of review is limited. A trial court’s decision will not be reversed
absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d
1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not
merely an error of judgment, but rather where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that
the action is a result of partiality, prejudice, bias or ill will.” Id. at
1184-1185 (citations omitted).
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
4 We note that appellant claims that the Commonwealth bore responsibility
for transporting appellant to the TYHA hearing under local rules of court.
(Appellant’s brief at 24-26.) To the extent that appellant requests this court
to address that issue on appeal, we decline to do so because appellant failed
to raise the issue in his Pa.R.A.P. 1925(b) statement of errors complained of
on appeal and, therefore, waived the issue on appeal. See
Pa.R.A.P. 1925(b)(4)(vii) (issues not included in the Rule 1925(b) statement
are waived).
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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. Pa.R.E. 404(b)(2).[ 5]
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.
Id. at 1185 (citations to case law omitted).
5 Rule 404. Character Evidence; Crimes or Other
Acts
....
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. 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.
(2) Permitted Uses. This evidence
may be admissible for another
purpose, such as proving motive,
opportunity, intent, preparation,
plan, knowledge, identity, absence
of mistake, or lack of accident. In
a criminal case this evidence is
admissible only if the probative
value of the evidence outweighs its
potential for unfair prejudice.
....
Pa.R.E. 404(b)(1)-(2).
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In order for prior bad acts to be introduced under this particular
exception, a close factual nexus must exist to sufficiently demonstrate the
connective relevance of the prior bad acts to the criminal charge at issue.
Commonwealth v. Sitler, 144 A.3d 156, 163-164 (en banc) (Pa.Super.
2016) (citations omitted).
Here, the record reflects that the trial court permitted the
Commonwealth to introduce evidence of prior bad acts via T.B.’s testimony
for the purpose of showing motive or a common scheme, plan, or design.
(Trial court opinion, 5/23/17 at 6; see also notes of testimony, 11/2-3/16
at 446.) The trial court set forth the close factual nexus that sufficiently
demonstrated the connective relevance of the 2004 or 2005 assault of T.B.
and the assault that is the subject of this appeal, as follows:
1. T.B. was 11 or 12 at the time she was
sexually assaulted by [a]ppellant. The
victim was 11 years of age when she was
sexually assaulted by [a]ppellant.
2. Both T.B. and the victim were related to
[a]ppellant by marriage. [] Appellant
was T.B.’s uncle by marriage and the
victim’s step-grandfather.
3. T.B. and the victim were both spending
the night at the home of [a]ppellant
without the presence of their parents and
were under the care, custody and control
of [a]ppellant and his wife.
4. The assaults both occurred in the living
room of the same home of [a]ppellant.
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5. The assaults both occurred at nighttime
while the girls were sleeping in the living
room.
6. Both victims were awoken by being
assaulted by [a]ppellant who pulled their
pants down and touched the victims.
7. [] Appellant’s wife was present in the
home on both occasions.
8. Both assaults occurred while a juvenile
male was also asleep on a couch in the
living room.
The unique pattern and circumstances of the
sexual assaults distinguish these two incidents from
what might be called more typical or routine child
sexual abuse fact patterns. In both cases,
[a]ppellant took advantage of a sleeping eleven or
twelve year old female, entrusted to his care for the
night, while the victims were sleeping in his living
room. The nature of the sexual assaults, pulling
down the child’s pants and touching them with his
fingers, was also similar. The fact that a juvenile
male relative was asleep on a couch in the same
room is not some insignificant, coincidental detail
that is common to most cases of sexual assault. It
points to the fact that [a]ppellant is not opposed to
sexually assaulting a young girl even with the risk of
another juvenile sleeping in the same room
awakening to see the assault. The remoteness in
time was greatly outweighed by these significant
similarities. Taken with all of the other similarities
with respect to geographic location, time,
characteristics of the victims and nature of the
attacks, this evidence clearly was properly admitted.
Trial court opinion, 5/23/17 at 4-5 (citation omitted).
Here, appellant does not complain that his assault on T.B. lacked a
close factual nexus that was incapable of demonstrating the connective
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relevance between that assault and the assault that is the subject of this
appeal. Rather, appellant first complains that the trial court abused its
discretion when it admitted T.B.’s prior bad acts testimony because that
evidence was not “necessary,” as the case against appellant was more than
circumstantial. (Appellant’s brief at 40, 45.) In support of his seeming
argument that prior bad acts testimony cannot be admitted unless the
Commonwealth’s case against a criminal defendant is purely circumstantial,
appellant cites to Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017). In
Hicks, however, our supreme court merely reiterated that prior bad acts
evidence is “highly probative when the Commonwealth’s case is otherwise
based largely on circumstantial evidence.” Id. at 1128 (citations omitted).
Therefore, appellant’s contention that prior bad acts evidence is only
admissible in a criminal prosecution based principally on circumstantial
evidence entirely fails to reflect the law of this Commonwealth and must fail.
In his second and final complaint regarding the trial court’s admission
of prior bad acts evidence, appellant claims that he is entitled to a reversal
of his convictions because the trial court failed to balance the probative
value of T.B.’s testimony against its prejudicial effect. (Appellant’s brief at
45-46.) The record, however, belies appellant’s contention.
The record demonstrates that prior to admitting T.B.’s testimony, the
trial court conducted an in camera hearing. (Notes of testimony, 11/2-3/16
at 203-221.) Following T.B.’s examination at that hearing, the trial court
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noted that T.B.’s testimony was consistent with the Commonwealth’s offer of
proof. (Id. at 219.) The trial court also summarized the stark similarities
between T.B.’s testimony and the testimony that had already been given by
the victim. (Id. at 220.) Although the trial court admitted T.B.’s prior bad
acts testimony, it stated at the hearing that it would “give the appropriate
limiting instruction to the jurors before [sending] them to the jury room.”
(Id. at 221.) Prior to deliberations, the trial court gave the following limiting
instructions with respect to the prior bad acts evidence:
You heard evidence tending to prove that
[appellant] may have committed another offense for
which [appellant] is not on trial. I am speaking of
the testimony of [T.B.]
This evidence is before you for a very limited
purpose. That is for the purpose of showing motive
or a common scheme, plan or design. This evidence
must not be considered by you in any other way
than for the purpose I just stated.
You must not regard this evidence as showing
[appellant] as a person of bad character or criminal
tendencies from which you might be inclined to infer
guilt.
If you find [appellant] guilty, it must be
because you are convinced by the evidence that he
committed the crimes charged and not because you
believe his is a wicked person or has committed
another offense.
Notes of testimony, 11/2-3/16 at 446.
These instructions, to which appellant took no exceptions, demonstrate
that the trial court balanced the probative value of T.B.’s testimony against
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its prejudicial effect because the trial court appropriately instructed the jury
as to the limited and narrow purpose for which T.B.’s bad acts evidence was
admitted and, therefore, restricted any unfair prejudicial effect. See Hicks,
156 A.3d at 1129 (reiterating that trial court should consider comprehensive
limiting instructions when balancing probative value and prejudicial effect
and provision of such limiting instructions weighs in favor of upholding
admission of other bad acts evidence (citations omitted)). Therefore, this
claim lacks merit.
Appellant finally challenges the sufficiency of the evidence to sustain
his conviction of unlawful contact with a minor.
The standard we apply in reviewing the sufficiency of
the evidence is whether viewing all the evidence
admitted at trial in the light most favorable to the
verdict winner, there is sufficient evidence to enable
the fact-finder to find every element of the crime
beyond a reasonable doubt. In applying the above
test, we may not weigh the evidence and substitute
our judgment for the fact-finder. In addition, we
note that the facts and circumstances established by
the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that
as a matter of law no probability of fact may be
drawn from the combined circumstances. The
Commonwealth may sustain its burden of proof of
proving every element of the crime beyond a
reasonable doubt by means of wholly circumstantial
evidence. Moreover, in applying the above test, the
entire record must be evaluated and all the evidence
actually received must be considered. Finally, the
trier of fact while passing upon the credibility of
witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
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Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)
(citation omitted).
The Crimes Code defines “unlawful contact with a minor,” in relevant
part, as follows:
§ 6318. Unlawful contact with a minor.
(a) Offense defined.--A person commits an
offense if he is intentionally in contact with a
minor, or a law enforcement officer acting in
the performance of his duties who has
assumed the identity of a minor, for the
purpose of engaging in an activity prohibited
under any of the following, and either the
person initiating the contact or the person
being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in
Chapter 31 (relating to sexual
offenses). [These offenses
include: rape, statutory sexual
assault, involuntary deviate sexual
intercourse, sexual assault,
institutional sexual assault,
aggravated indecent assault,
indecent assault, and indecent
exposure.]
18 Pa.C.S.A. § 6318(a)(1). The statute defines “contact” as “direct or
indirect contact or communication by any means, method or device,
including contact or communication in person.” 18 Pa.C.S.A. § 6318.
Here, appellant contends that the in-person contact that appellant had
with the victim falls outside of the parameters of the statute’s intent because
appellant did not engage the victim in conversation so as to entice her to be
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in appellant’s home at the time of the assault and because appellant asked
the victim whether he could “lick down there” after he completed the
physical assault. Appellant is gravely mistaken. This court has explained
that:
“unlawful contact with a minor,” . . . is best
understood as “unlawful communication with a
minor.” By its plain terms, the statute prohibits the
act of communicating with a minor for enumerated
sexual purposes. The communication may take
place in person, on the telephone, via a computer, or
in other ways. 18 Pa.C.S.A. § 6318(c). Because the
crime is complete as of the moment of
communication, it is not necessary for the defendant
to take any further affirmative steps to have physical
contact with the minor, such as driving to a hotel.
Commonwealth v. Rose, 960 A.2d 149, 152-153 (Pa.Super. 2008)
(emphasis omitted; citations omitted).
In this case, the victim testified that after appellant sexually assaulted
her, he then approached her and “asked [her] if he could lick down there.”
(Notes of testimony, 11/2-3/16 at 111.) On the basis of the victim’s
testimony then, the jury could conclude that appellant completed the crime
of unlawful contact with a minor when he asked the victim if he could “lick
down there” because no affirmative steps to have such physical contact with
the victim was required. Therefore, viewing this evidence in the light most
favorable to the Commonwealth as verdict winner, it was sufficient to enable
the fact-finder to find every element of the crime beyond a reasonable
doubt.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/28/2017
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Com. v. Peyatt, S.
Combined Opinion