Com. v. Weaver, S. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEPHEN EDWARD WEAVER,
Appellant No. 255 WDA 2014
Appeal from the Judgment of Sentence September 23, 2013
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000207-2011
CP-05-CR-0000286-2011
BEFORE: BOWES, DONOHUE, AND FITZGERALD,* JJ.
MEMORANDUM BY BOWES, J.: FILED DECEMBER 08, 2015
Stephen Edward Weaver appeals from the judgment of sentence of
nineteen to fifty-six years imprisonment that was imposed after he was
convicted by a jury of one count each of rape, involuntary deviate sexual
intercourse by forcible compulsion (“IDSI”), and aggravated indecent assault
and twenty-one counts of indecent assault. We affirm.
This appeal concerns two criminal cases, which were consolidated for
purposes of trial. At criminal action number 207 of 2011, Appellant was
convicted of rape, IDSI, and twenty counts of indecent assault. These
charges arose from his sexual abuse of his stepdaughter, A.B., when she
was fourteen to sixteen years old. At criminal action number 286 of 2011, a
jury found Appellant guilty of aggravated indecent assault, and indecent
*
Former Justice specially assigned to the Superior Court.
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assault based on an incident involving his biological daughter S.W. The trial
court aptly summarized the evidence supporting the convictions in question.
As to A.B., the evidence was as follows:
[A.B.] testified she was born in 1987 and was raised in the
Defendant’s residence with her Mother and younger sister.
Beginning with her 14th birthday in 2001 the Defendant became
increasingly physical in his contact with her. (T. 12/10/12, page
69). Eventually it led to the Defendant licking and touching her
breasts as a daily event. (T. 12/10/12, page 77). During those
times the witness testified that the Defendant told her that her
Mother would not have sex with him anymore; that the
Defendant said he felt unwanted and without him “we were kind
of up the creek.” (T. 12/10/12, page 76, line 9 and 10). That
after she turned 16 the Defendant began to treat her like “his
live-in girlfriend the wife didn’t know about.” (T. 12/10/12, page
77). [A.B.] stated the Defendant frequently discussed having
sex with her (T. 12/10/12, page 80), and encouraged her to
engage in sexual intercourse with her boyfriend. (T. 12/10/12,
page 81). The Defendant told her if she had sex with her
boyfriend he then could have sex with her. The Defendant
explained that her first time “you should do that with somebody
you love.” (T. 12/10/12, page 81, line 7). Finally the witness
submitted in August of 2003 when she engaged in intercourse
with her current boyfriend. Upon her return home, the
Defendant was alone in the house and asked her about the
experience. [A.B.] stated she was sore. The Defendant then
immediately removed her clothing and performed oral sex on
her. (T. 12/10/12, page 86, lines 22-24). The witness conceded
she did not shove the Defendant away, but had in the weeks
prior to the encounter told the Defendant he was her father and
“people don’t do this.” (T. 12/10/12, page 89). On her return
home[,] she told the Defendant she was “swollen” and sex would
be “painful”. (T. 12/10/12, page 89). When the Defendant did
not heed this argument the witness stated[,] “I just didn’t know
how to solve it”. (T. 12/10/12, page 89, line 19-20). After
performing oral sex[,] the Defendant then engaged in vaginal
intercourse. The Defendant did not wear a condom and
ejaculated on the witness’s leg. (T. 12/10/12, page 90-91). The
Defendant told her “we’re all in trouble now, and if your mother
found out she would get really sick.” (T. 12/10/12, page 92).
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This comment was directed to the fact the witness’s mother
suffers from rheumatoid arthritis which was made worse by
stress. After that first occasion[,] the Defendant and the witness
engaged in penile vaginal intercourse and oral sex on a regular
basis but the witness could only recall additional incidents
specifically. However, the witness was confident that she had
submitted to the Defendant 20 times in each case consisting of
oral sex following by vaginal intercourse with the Defendant’s
penis. (T. 12/10/12, page 101, line 11-20). The witness stated,
“it was very much kind of a routine.” (T. 12/10/12, page 10,
line 22-23).
Trial Court Opinion, 10/29/14, at 5-6.
There was a single incident involving S.W., who testified as follows:
Likewise with the younger sister, [S.W.] testified that when she
was 16 years of age[,] the Defendant engaged her in a
conversation regarding a lack of sexual activity between himself
and the witness’s mother. The Defendant asked her to do
“certain things” for him and she refused. The Defendant and the
witness argued about the subject for approximately 15 minutes
until she noticed the Defendant was becoming angry. The
witness then stated, . . . “so, I just went along with it out of
fear.” The Defendant told her to give him a “hand job” and
when she replied she didn’t know how to do that he put her hand
on his penis. The Defendant then had the witness lean back and
inserted two fingers in her vagina. The witness told the
Defendant his actions were causing her discomfort. The
Defendant continued for approximately 20 minutes, until a car
door slammed outside and the Defendant stopped. As noted,
when the Defendant stated his desire to initiate the contact the
witness told him it was wrong, that it was incest and that she
didn’t want to it. (T. 12/10/12, pages 204-205). The witness
told [A.B.], her sister, the next day; subsequently she was
confronted by the Defendant who told her that [A.B.] had
confronted him about the incident. The Defendant reminded her
that if he was forced to leave the home the family would be
without a paycheck and her mother would lose her health
insurance. (T. 12/10/12, pages 209-210). Based on the above
testimony[,] a jury could fairly conclude that the Defendant used
psychological and intellectual force plus a display of anger to
compel the witness’s submission after she had clearly stated her
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opposition to the acts. The jury could conclude she reacted out
of fear. Based on the cases described above the evidence was
sufficient to show both compulsion and non-consent.
Id. at 7-8.
In addition, Appellant made an inculpatory statements to police. See
N.T. Trial (2nd day), 12/11/12, at 43-46. Specifically, Appellant admitted
that he had a sexual relationship with his stepdaughter A.B, but insisted
that A.B. initiated the sex and that it was consensual. Appellant also
confessed to the sexual contact with S.W., but maintained that he examined
her vagina after she told him that she had a lump on it and asked him to
check it. Appellant claimed that S.W. grabbed his penis and stroked it while
he was checking for the lump.
Following his convictions, Appellant was referred to the Sexual
Offenders Assessment Board (“SOAB”). Thereafter, he was adjudicated a
sexually violent offender and sentenced to nineteen to fifty-six years
incarceration. This appeal followed denial of Appellant’s post-sentence
motion. Appellant raises these issues for our review:
[1.] Whether or not the evidence presented was sufficient to
convict the Appellant with regard to each element of the crimes
charged as well the charged dates of said crimes, as argued on
pages 196-208 of Day 3 of the trial transcript?
[2.] Whether the guilty verdicts were against the weight of the
evidence?
[3.] Whether or not the trial court erred when it denied
Appellant’s motion to suppress the initial statement of the
Appellant when his waiver of rights was involuntary due to
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coercion by the government in the form of being gassed,
starved, and not having slept for a period of 36 hours?
[4.] Whether the subsequent statement of the Appellant should
have been suppressed as fruit of the poisonous tree because
Appellant’s first statement was involuntary?
[5.] Whether the trial court erred by permitting the
Commonwealth to consolidate the criminal information at cases
numbers 207 and 286 for 2011 violations of Pennsylvania Rule of
Evidence 404 and in violation of Pennsylvania Rule of Criminal
Procedure 563 and 582?
[6.] Whether the trial court erred in permitting the
Commonwealth in introducing evidence of the Defendant’s failure
to come out of his home in violation of the Defendant’s 5 th
Amendment right not to incriminate himself as set forth in the
U.S. Constitution and Article I, Section 9 of the Pennsylvania
Constitution which affords greater rights to individuals? Further,
the trial court erred in failing to declare a mistrial when the
Commonwealth cross examined the Defendant regarding his
right not to incriminate himself as argued by trial counsel on
pages 166-167 of the trial transcript on Day 3 of trial?
[7.] Whether the trial court erred in permitting the
Commonwealth, over the Defendant’s motion to suppress and
objection, to introduce evidence of the observations of police
when they entered and searched the Defendant’s home without
probable cause and without a warrant and there were no exigent
circumstances and no reason to believe the Defendant was in the
home.
[8.] Whether the trial court erred pursuant to Pennsylvania
Rule of Evidence 403 in allowing testimony that was more
prejudicial than probative in regard to the facts and
circumstances of the Defendant’s arrest; specifically, tear
gassing of the residence, the make shift wall, etc., and all
testimony related thereto?
[9.] Whether the trial court erred in allowing testimony and
allowing the Commonwealth to introduce all of the Defendant’s
weapons (guns and machetes) found in his home because:
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a. said evidence and testimony was irrelevant in a
sexual assault trial? And
b. said evidence and testimony was more prejudicial
than probative pursuant to Pennsylvania Rule of
Evidence 403?
c. Said evidence was admitted in violation of Pa.R.E.
404, as it was used to prove Defendant’s criminal
character?
[10.] Whether the trial court erred in its failure to declare a
mistrial after the Defendant was seen in custody by jurors at
jury selection and, more specifically, by at least one juror who
was ultimately selected to decide Defendant’s guilt or innocence?
[11.] Whether the trial court erred in allowing statements of the
victim in regard to alleged physical, and intellectual, moral,
emotional or psychological force either expressed or implied in
pressuring her to have sex as argued by trial counsel on pages
152 through 157 of the trial transcript on Day 1 of the trial and
further, in failing to grant a mistrial after allowing said
statements?
[12.] Whether the trial court erred in permitting the
Commonwealth to introduce evidence of the Defendant’s arrest
as consciousness of guilt and further allowing the jury to be
given an instruction regarding the alleged consciousness of guilt?
[13.] Whether the trial court erred in deeming the Defendant a
sexually violent predator by clear and convincing evidence?
[14.] Whether the trial court erred in failing to merge counts 1
and 21 which arose out the same act and whose elements were
identical; further, the verdict slip over Defendant’s objection did
not differentiate between what act constituted rape in count 1
and what act constituted IDSI in count 21; thus, the jury did not
have the ability to differentiate the two?
[15.] Whether the trial court erred in allowing or not allowing
the jury charges over Defendants request or objection on pages
190-198 of the trial transcript Day 3 of the jury trial regarding
the following:
a. Forcible compulsion (charged allowed)?
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b. Circumstantial Evidence (charged allowed)?
c. Defendant special interest (charged allowed)?
d. Consciousness of guilt (charged allowed) (also
addressed in issue F above)?
e. False in One/False in All (charge not allowed)?
[16.] Whether the trial court erred in denying a mistrial when
the Commonwealth indicated to the jurors it was their job to find
the Defendant guilty? Further, the Commonwealth admitted it
was a mistake and the court indicated it would give a curative
instruction on page 263 of the trial transcript Day 3 following
closing arguments and never did?
Appellant’s brief at 6-9.
Appellant’s first contention is a sufficiency claim. We observe: “In
reviewing a challenge to the sufficiency of the evidence, we must determine
whether, viewing the evidence in the light most favorable to the
Commonwealth as verdict winner, together with all reasonable inferences
therefrom, the trier of fact could have found that each and every element of
the crimes charged was established beyond a reasonable doubt.”
Commonwealth v. Leatherby, 116 A.3d 73, 79 (Pa.Super. 2015).
Appellant raises three distinct issues as to the sufficiency of the
evidence supporting his convictions: 1) the evidence was insufficient to
support the jury’s finding that he committed the forcible compulsion element
of the crimes of rape, IDSI, and indecent assault by forcible compulsion; 2)
the dates of the offenses, as outlined in the informations, were too broad to
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permit him to defend these cases; and 3) the evidence established that the
offenses were committed outside of the dates set forth in the criminal
informations.
Appellant, as noted, challenges the sufficiency of the evidence as to
one element of his rape, IDSI and indecent assault convictions. Appellant
was convicted of rape under 18 Pa.C.S. § 3121(a)(1), which states, “A
person commits a felony of the first degree when the person engages in
sexual intercourse with a complainant . . . [b]y forcible compulsion.” His
conviction of IDSI was pursuant to 18 Pa.C.S. § 3123(a)(1), providing, “A
person commits a felony of the first degree when the person engages in
deviate sexual intercourse with a complainant . . . [b]y forcible
compulsion[.]” Deviate sexual intercourse is, “Sexual intercourse per os or
per anus between human beings and any form of sexual intercourse with an
animal. The term also includes penetration, however slight, of the genitals or
anus of another person with a foreign object for any purpose other than
good faith medical, hygienic or law enforcement procedures.” 18 Pa.C.S. §
3101. Appellant also was adjudicated guilty of committing indecent assault,
which, in pertinent part, is defined as follows:
A person is guilty of indecent assault if the person has indecent
contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the
complainant to come into contact with seminal fluid, urine or
feces for the purpose of arousing sexual desire in the person or
the complainant and:
.....
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(2) the person does so by forcible compulsion[.]
18 Pa.C.S. § 3126 (a)(2). Forcible compulsion is, “Compulsion by use of
physical, intellectual, moral, emotional or psychological force, either express
or implied.” 18 Pa.C.S. § 3101.
All of these convictions pertain to A.B. as a victim. She testified that
Appellant placed his mouth on her vagina and engaged in sexual intercourse
with her on multiple occasions after August 2003. The only question before
this Court is whether the sexual abuse was perpetrated by means of forcible
compulsion, which, according to its express definition, does not require the
use of physical force. Rather, as outlined in the statutory definition,
intellectual, moral, emotional or psychological force can satisfy this element
of a crime.
Our decision in Commonwealth v. Gonzalez, 109 A.3d 711(Pa.Super. 2015), is instructive. Therein, we rejected a defendant’s position
that there was not sufficient proof of forcible compulsion for purposes of his
conviction of rape, even though he was not physically resisted by the victim
and did not physically restrain or strike her. The victim therein was a
paraplegic and told the defendant, whom she was dating, that she did not
want to have sexual intercourse before she was married. When the
defendant began to engage in sexual intercourse with her, she told him no,
and the defendant had to move her legs in order to commit the offense.
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This Court observed that forcible compulsion does not require the use
of physical force. We continued that a “determination of forcible compulsion
rests on the totality of the circumstances,” and that the following list of
factors, which are not exclusive, are used to determine the existence of
forcible compulsion:
the respective ages of the victim and the accused, the respective
mental and physical conditions of the victim and the accused,
the atmosphere and physical setting in which the incident was
alleged to have taken place, the extent to which the accused
may have been in a position of authority, domination or
custodial control over the victim, and whether the victim was
under duress.
Id. at 721 (emphasis in original) (quoting Commonwealth v. Rhodes, 510
A.2d 1217, 1226 (Pa. 1986)). We concluded therein that, given the victim’s
statements and the fact that the defendant had to move her legs, the
element of forcible compulsion was present.
In this case, the victim of the rape, IDSI, and indecent assault by
forcible compulsion was A.B. There was a vast age difference between A.B.,
who was fourteen when the abuse started and sixteen when Appellant began
to repeatedly engage in oral sex and rape the girl. Appellant had been her
stepfather from birth and thus had, for all her life, been in a position of
authority, domination, and custodial control over A.B. She told Appellant
that people did not have sex with their family, thus informing him that she
did not want to engage in the activity. A.B. also reported that she and her
mother were economically dependent upon Appellant and that Appellant
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reminded her of that fact. Appellant pressured A.B. to submit to his sexual
activities due to her mother’s purported lack of interest in them. The victim
therefore was under financial and emotional duress to allow Appellant to
perform these activities. Thus, all of the pertinent factors were present
herein, and we conclude that the evidence was sufficient to sustain the
element of forcible compulsion as to the convictions in question.
We now address Appellant’s complaint that the offenses occurred
outside the dates outlined in the information. As to A.B., Appellant was
convicted of one count each of rape and IDSI and twenty counts of indecent
assault. The information in that action stated that offenses occurred
between April 11, 2001, and April 11, 2005. A.B. testified that Appellant
began to touch and lick her breast every day after she turned fourteen, on
April 11, 2001. A.B. also stated specifically that Appellant engaged in oral
sex and sexual intercourse with her in August 2003, immediately after she
had consensual sex for the first time with her boyfriend. Therefore, the
offenses were not committed outside the time period outlined in the
information.
The information as to S.W. charged Appellant with one count of
aggravated indecent assault and indecent assault by force and stated that
the acts occurred between September 3, 2005, and September 3, 2006,
when S.W. turned seventeen. That victim testified that the sexual abuse
occurred after she turned sixteen. Thus, Appellant’s conviction of the
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offenses of indecent assault by force and aggravated indecent assault as to
S.W. were within the dates outlined in the information.
Appellant next complains that the prosecution failed to fix the date of
the offenses with sufficient particularity so that he could defend this case.
Appellant relies upon Commonwealth v. Devlin, 333 A.2d 888 (Pa. 1975),
which holds that due process requires the prosecution to fix the date of the
commission of the offense with reasonable certainty. In Devlin, the
defendant was accused of one count of IDSI with a mentally-challenged
man. The information stated that this single offense occurred at some point
during a fourteen-month period.
In concluding that due process was violated by the lack of specificity in
the information as to the date of the offense, the Devlin court observed that
this broad timeframe rendered it impossible for the defendant to level an
alibi defense and also severely impaired the defendant’s ability to impeach
the victim. However, our Supreme Court also observed that there is
flexibility in this area:
[W]e cannot enunciate the exact degree of specificity in the
proof of the date of a crime which will be required or the amount
of latitude which will be acceptable. Certainly the
Commonwealth need not always prove a single specific date of
the crime. Any leeway permissible would vary with the nature of
the crime and the age and condition of the victim, balanced
against the rights of the accused. Here, the fourteen-month
span of time is such an egregious encroachment upon the
appellant's ability to defend himself that we must reverse.
Id. at 892 (footnote and citations omitted).
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The critical factor in Devlin was that there was a single instance of
abuse. In Commonwealth v. Groff, 548 A.2d 1237 (Pa.Super. 1988), we
examined Devlin. Therein, the defendant was accused of sexually abusing a
six-year-old once during the summer of 1985. We concluded that the date
of the offense was proven with sufficient particularity and distinguished
Devlin based upon the victim’s youth and the fact that the Commonwealth
had been able to narrow timeframe of the crime to the summer of 1985,
even though the victim lived with the defendant from August 1983 through
September 1985.
Therein, we also observed that under the prevailing law, “the
Commonwealth would clearly prevail if appellant had been convicted of
repeatedly abusing the victim during the summer of 1985. Case law has
established that the Commonwealth must be afforded broad latitude when
attempting to fix the date of offenses which involve a continuous course of
criminal conduct.” Id. at 1242 (citation omitted); Commonwealth v.
Robinson, 462 A.2d 840 (Pa.Super. 1983)). More recently, in
Commonwealth v. G.D.M, Sr., 926 A.2d 984, 990 (Pa.Super. 2007), we
reaffirmed that “the due process concerns of Devlin are satisfied where the
victim . . . can at least fix the times when an ongoing course of molestation
commenced and when it ceased.”
In the present case, A.B. was able to outline when an ongoing course
of molestation began and ended. It started when she was fourteen and
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ended when she was eighteen. S.W. was able to fix the date of molestation
as occurring when she was sixteen years old. Thus, we reject Appellant’s
invocation of Devlin.
Appellant’s second issue is that the verdicts were against the weight of
the evidence. Specifically, he maintains that his actions with A.B. “were
consensual” and the incident involving S.W. was “done for a good faith
medical reason.” Appellant’s brief at 22. Additionally, Appellant maintains
that both the victims were lying about the abuse in order to deprive him of
his property. Id.When we review a weight-of-the-evidence challenge, we do not
actually examine the underlying question; instead, we examine the trial
court’s exercise of discretion in resolving the challenge. Commonwealth v.
Leatherby, 116 A.3d 73 (Pa.Super. 2015). This type of review is
necessitated by the fact that the trial judge heard and saw the evidence
presented. Id. Simply put, “One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that the verdict was or
was not against the weight of the evidence and that a new trial should be
granted in the interest of justice.” Id. at 82. A new trial is warranted in this
context only when the verdict is “so contrary to the evidence that it shocks
one’s sense of justice and the award of a new trial is imperative so that right
may be given another opportunity to prevail.” Commonwealth v.
Morales, 91 A.3d 80, 91 (Pa. 2014).
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Of equal importance is the precept that, “The finder of fact—here, the
jury—exclusively weighs the evidence, assesses the credibility of witnesses,
and may choose to believe all, part, or none of the evidence.
Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011) (citation omitted)
see also Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013)
(“A determination of credibility lies solely within the province of the
factfinder.”); Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super.
2006) (“The weight of the evidence is exclusively for the finder of fact, which
is free to believe all, part, or none of the evidence, and to assess the
credibility of the witnesses. . . . It is not for this Court to overturn the
credibility determinations of the fact-finder.”).
A.B. reported that she did not consent to Appellant’s sexual activity,
and S.W. established that Appellant had no good faith medical reason for
inserting his fingers into her vagina and forcing her to touch his penis. It
was the jury’s function to determine if these two witnesses were credible.
Hence, we conclude that the trial court did not abuse its discretion in
rejecting Appellant’s weight claim and finding that the verdict did not shock
its sense of justice.
Appellant’s third complaint is that the trial court erred in not
suppressing his statement to police at the time of his June 2, 2011 arrest
and he makes that argument together with his fourth contention, which is
that “any subsequent statements should have been suppressed, also.”
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Appellant’s brief at 25. Appellant maintains that, when he was interrogated,
he had not eaten for two days, he was tired, and he was suffering from the
effects of tear gas and that his confession therefore was not voluntary.
The applicable standard of review is as follows:
An appellate court's standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court's factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
prevailed before the suppression court, we may consider only
the evidence of the Commonwealth and so much of the evidence
for the defense as remains uncontradicted when read in the
context of the record as a whole. Where the suppression court's
factual findings are supported by the record, [the appellate court
is] bound by [those] findings and may reverse only if the court's
legal conclusions are erroneous. Where ... the appeal of the
determination of the suppression court turns on allegations of
legal error, the suppression court's legal conclusions are not
binding on an appellate court, whose duty it is to determine if
the suppression court properly applied the law to the facts. Thus,
the conclusions of law of the courts below are subject to [ ]
plenary review.
Commonwealth v. Jones, 2121 A.3d 524, 526-27 (Pa.Super. 2015)
(quoting Commonwealth v. Jones, 605 188, 988 A.2d 649, 654 (Pa.
2010)).
The following facts are pertinent. A.B. and S.W. went to police in May
2011, years after the abuse, because A.B. was about to have a baby, and
they wanted to protect the unborn child from Appellant. On May 20, 2011,
Pennsylvania State Trooper Terry L. Summers was assigned the
investigation into the allegations. After interviewing the two victims, in
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accordance with standard protocol, Trooper Summers went to speak with
Appellant to obtain his response. Trooper Summers arrived at Appellant’s
residence at 9:30 a.m. on June 1, 2011. After repeatedly knocking on the
door and receiving no response, he called Appellant’s employer and
discovered that Appellant was scheduled to work at 3:00 p.m. Trooper
Summers left but returned at 2:00 p.m. so he could intercept Appellant on
his way to work. Appellant never left the residence so Trooper Summers
called his employer again, discovering that Appellant had called off work for
personal, family reasons.
Trooper Summers telephoned Donna Weaver, Appellant’s then
estranged wife, who told the trooper that Appellant had been telephoning
the two victims and that they were afraid that he was going to harm them.
Ms. Weaver and the two girls were not at the home, and Ms. Weaver said
that the caller identification on the telephones of A.B. and S.W. indicated
that the calls were emanating from inside Appellant’s residence. Finally, Ms.
Weaver told Trooper Summers to be cautious since Appellant had many
firearms hidden throughout the house. Trooper Summers interviewed
neighbors and ascertained that Appellant owned two vehicles, which were
both parked outside the residence. That police officer concluded that
Appellant was inside the residence and was ignoring him. While other police
watched Appellant’s residence, Trooper Summers obtained an arrest warrant
for Appellant and returned to execute it.
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After hours of asking Appellant to leave the residence through a loud
speaker, a special forces unit of police entered the home the morning of
June 2, 2011, after using remote cameras, a robot, and tear gas. Police
could not locate Appellant, and turned the house over to Donna, who was a
co-owner. She discovered Appellant hiding inside the house behind a false
wall and took him to the police barracks on June 2, 2011.
About ninety minutes after Appellant arrived at the police station,
Trooper Summer read Appellant his Miranda rights, and Appellant said that
he understood them and executed a written waiver. Trooper Summers
reported that, while Appellant appeared to be a little dirty, he was otherwise
fine and did not appear fatigued. Appellant did not ask for the interview to
cease. Appellant made the described statements that he had a sexual
relationship with his stepdaughter A.B. and engaged in the sexual contact
described by S.W.
On appeal, Appellant suggests that his confession should be
suppressed in that he had not eaten, slept or bathed for two days and was
still “suffering from the effects of tear gas.” Appellant’s brief at 28. Our
Supreme Court has enunciated the legal standard for determining whether
an inculpatory statement is voluntary, as follows:
The test for determining the voluntariness, and thus the
admissibility, of an accused's statement is the totality of the
circumstances surrounding the statement. The mere fact that
there is some passage of time between when an accused is
arrested and when he or she gives an inculpatory statement
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does not constitute grounds for suppression of the statement.
Numerous factors should be considered under a totality of the
circumstances test to determine whether a statement was freely
and voluntarily made: the means and duration of the
interrogation, including whether questioning was repeated,
prolonged, or accompanied by physical abuse or threats thereof;
the length of the accused's detention prior to the confession;
whether the accused was advised of his or her constitutional
rights; the attitude exhibited by the police during the
interrogation; the accused's physical and psychological state,
including whether he or she was injured, ill, drugged, or
intoxicated; the conditions attendant to the detention, including
whether the accused was deprived of food, drink, sleep, or
medical attention; the age, education, and intelligence of the
accused; the experience of the accused with law enforcement
and the criminal justice system; and any other factors which
might serve to drain one's powers of resistance to suggestion
and coercion.
Commonwealth v. Martin, 101 A.3d 706, 724–725 (Pa. 2014).
In this case, Appellant had been in police custody for only one and
one-half hours when he made his statement. Trooper Summers said that
Appellant did not appear hungry or sleep deprived. That officer gave
Appellant his Miranda warnings, Appellant said that he understood them,
and Appellant executed a written waiver of his rights. There was no
evidence that Trooper Summers engaged in any type of coercion or duress.
Hence, we conclude that the trial court properly concluded that Appellant’s
June 2, 2011 statements to police were voluntarily given.
Appellant makes the additional assertion that his “second statement
should have been suppressed also.” Appellant’s brief at 28. That phrase is
the extent of his extrapolation on that subject matter. Appellant fails to
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indicate when the statement was made, the contents of the statement, or
why it was involuntary. He also does not cite any case authority on the
subject. As our Supreme Court observed in Commonwealth v. Perez, 93
A.3d 829, 837 (Pa. 2014), the rules of appellate procedure “set forth the
fundamental requirements every appellate brief must meet.” The Court
admonished litigants:
The briefing requirements scrupulously delineated in our
appellate rules are not mere trifling matters of stylistic
preference; rather, they represent a studied determination by
our Court and its rules committee of the most efficacious manner
by which appellate review may be conducted so that a litigant's
right to judicial review may be properly exercised. Thus, we
reiterate that compliance with these rules by appellate advocates
is mandatory.
Id. at 837-38 (citation omitted). Therein, the Court ruled that “to the
extent [an] appellant's claims fail to contain developed argument or citation
to supporting authorities and the record, they are waived[.]” Id. at 838;
see also Commonwealth v. Spotz, 18 A.3d 244 (Pa. 2011) (claim that
consisted of a phrase that contained no argument as to why evidentiary
ruling was erroneous was unreviewable and waived); Commonwealth v.
Tielsch, 934 A.2d 81, 93 (Pa.Super. 2007) (undeveloped assertions are
waived); Commonwealth v. Snyder, 870 A.2d 336, 342 (Pa.Super. 2005)
(“Undeveloped claims are waived.”). The argument relating to Appellant’s
second confession, being wholly undeveloped, is therefore waived.
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Appellant’s fifth allegation is that the two criminal actions were
improperly consolidated. Appellant’s brief at 28. “Whether to join or sever
offenses for trial is within the trial court's discretion and will not be reversed
on appeal absent a manifest abuse thereof, or prejudice and clear injustice
to the defendant.” Commonwealth v. Wholaver, 989 A.2d 883, 898 (Pa.
2010). Pa.R.Crim.P. 582 governs consolidation of separate informations and
provides, in pertinent part:
(1) Offenses charged in separate indictments or
informations may be tried together if:
(a) the evidence of each of the offenses would
be admissible in a separate trial for the other and is
capable of separation by the jury so that there is no
danger of confusion; or
(b) the offenses charged are based on the
same act or transaction.
Pa.R.Crim.P. 582(A)(1).
Appellant complains that the offenses in question would not have been
admissible in a separate trial for the other. We disagree. Evidence of other
crimes is inadmissible at a trial only when that proof is introduced to “show
the defendant's bad character or propensity to commit crime.” Pa.R.E.
404(b)(1). However, evidence of other crimes is allowed to be introduced in
a variety of circumstances, including when offered to prove motive,
opportunity, intent, preparation, plan, knowledge, identity, and absence of
mistake or accident. Pa.R.E. 404(b)(2). Additionally, there is a common
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scheme design or plan exception to the preclusion of prior bad acts
evidence, and we applied that exemption in Commonwealth v. Aikens,
990 A.2d 1181 (Pa.Super. 2010).
In Aikens, we ruled that Appellant’s prior rape of a daughter, who was
an adult at trial, was admissible in his trial for the sexual abuse of his
younger daughter under the common scheme or plan exception. We found
the following similarities between the two crimes rendered the prior rape
properly admitted into evidence. Both victims were the defendant’s
daughters and were of similar ages when the sexual abuse occurred. The
defendant initiated the contact during an overnight visit in his home, and he
began the sexual abuse by showing the girls pornographic movies.
In G.D.M., Sr., supra 984, we also applied the common scheme or
plan exception when upholding the trial court’s decision to allow the jury to
hear about a prior criminal conviction. The defendant was being tried for
holding his son’s penis twice and making the victim hold his penis once. The
incidents occurred at the defendant’s residence. The trial court had allowed
proof that the defendant was convicted for sexually abusing his daughter
when she was between thirteen and fourteen years old. Specifically, at his
home, the defendant repeatedly made the girl massage his genital area. We
held that the prior criminal conduct was admissible since the victims were
the defendant’s children, the abuse occurred inside the house, and the abuse
of the boy began shortly after the abuse of the girl ceased.
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Similarly, in Commonwealth v. Luktisch, 680 A.2d 877 (Pa.Super.
1996), the defendant had been convicted of molesting his stepdaughter. At
trial, the court permitted his biological daughter to testify about sexual
abuse that the defendant had perpetrated on her when she was a child. On
appeal, the defendant challenged the admission of his daughter’s testimony.
We concluded that the two incidents were sufficiently similar to be
admissible under the common scheme or plan exception since the pattern of
molestation was the same in the two cases and the victims were similar in
age when it was perpetrated.
These cases apply herein. Appellant sexually abused his stepdaughter,
whom he helped raise from birth, and his daughter. A.B. was sixteen when
she was raped, and S.W. was the same age when Appellant forced her to
touch his penis and placed his fingers inside her vagina. Appellant’s abuse
of S.W. began five months after he stopped assaulting A.B. and occurred
inside the home. Thus, Appellant’s sexual contact with S.W. would have
been admissible at a trial for his abuse of A.B. and vice versa, and, we
conclude that the trial court did not abuse its discretion in allowing the two
criminal cases to be consolidated for trial.
Appellant combines his argument on issues six and twelve. Appellant’s
brief at 31. He avers that the trial court should not have allowed the
Commonwealth to introduce evidence of Appellant’s refusal to exit his house
on June 1, 2011, and to cross-examine him on the fact that he hid from
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police rather than come out and speak with them. He maintains that the
proof and impeachment violated his Fifth Amendment right against self-
incrimination. Appellant also contends that the fact that he hid did not
evidence consciousness of guilt.
Appellant relies upon Commonwealth v. Molina, 104 A.3d 430 (Pa.
2014) (plurality). Therein, a detective, who had been informed that the
defendant was involved in a murder, spoke with the defendant by telephone
and asked him about the victim’s disappearance. The defendant denied
having anything to do with the matter, and, when asked, refused to come to
the police station. That conversation was used as substantive evidence of
the defendant’s guilt. Our Supreme Court ruled that during the call, the
defendant had invoked his right to remain silent under the Pennsylvania
Constitution. The Molina court ruled that use of the defendant’s pre-arrest
silence as evidence of guilt violated the defendant’s right against self-
incrimination.
Molina involves materially different circumstances than the case at
bar. Simply put, Appellant never spoke with Trooper Summers at all. He
certainly never invoked his right to remain silent by saying that he did not
want to speak with police, as was the case in Molina. Rather, Trooper
Summers came to Appellant’s residence in the morning to interview
Appellant so that Appellant could respond to the accusations leveled by his
daughter and stepdaughter. Appellant never answered the door and never
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said he would not come to the police barracks. After Trooper Summers
ascertained that Appellant was inside the house, he obtained an arrest
warrant, which he then executed. Using a loud speaker, police repeatedly
asked Appellant to exit the house, and Appellant again failed to respond. He
did not say he would not speak with police. A special unit of police entered
the house to arrest Appellant. Appellant concealed himself.
The law is clear that, “When a person knows that he is wanted in
connection with a criminal investigation, and flees or conceals himself, such
conduct is admissible as evidence of consciousness of guilt. Evidence of
flight or concealment can be established through eyewitness testimony.”
Commonwealth v. Hudson, 955 A.2d 1031, 1036 (Pa.Super. 2008).
Hence, Appellant’s concealment of his whereabouts was properly admitted
as substantive evidence of guilt, and the Commonwealth was permitted to
cross-examine Appellant about his actions on June 1, 2011. Appellant’s act
of hiding was not an invocation of his right to remain silent, and Appellant
provides no case authority providing that the prosecution may not introduce
evidence of a defendant’s concealment under the Fifth Amendment. Hence,
we reject his sixth and twelfth contentions.
Appellant’s next assertion is that the Commonwealth should not have
been able to introduce evidence of what the police observed when they
entered his house. Appellant’s justification for that position is that the raid
violated his constitutional rights since it was conducted without a search
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warrant and since police had no reason to believe that he was located
therein. Appellant’s brief at 35. We conclude that the facts refute the
existence of a constitutional violation. Police were in possession of an arrest
warrant when they entered Appellant’s residence in order to execute it.
They also knew that he was located in the home. Specifically, Trooper
Summers spoke with Donna Weaver and she told him that Appellant was
calling the victims from the telephone inside the residence. Trooper
Summers also spoke with neighbors who told him that Appellant had two
vehicles, which Trooper Summers observed parked outside the house. Thus,
contrary to Appellant’s contention, police did have a warrant and did have
cause to believe that Appellant was inside the house. Since police were
lawfully attempting to execute the arrest warrant, they were properly inside
the residence.
Appellant presents his argument as to issues eight and nine together.
Appellant’s brief at 35-38. He argues that the trial court erroneously
admitted evidence “of the circumstances of the Defendant’s arrest,”
including that he used a make-shift wall to hide. Id. at 35.1 Appellant’s
specific allegations are that the proof was irrelevant and more prejudicial
than probative. In this section of his brief, Appellant also objects to the fact
____________________________________________
1
Appellant objected to the Commonwealth’s request to introduce all the
evidence of Appellant’s concealment from police. N.T. Trial (1 st day),
10/10/12, at 4.
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that evidence was produced about the weapons discovered inside his house.
He maintains that this proof was irrelevant and prohibited prior crimes
evidence.
We first note that, “A trial court's decision to allow the admission of
evidence is a matter within its sound discretion, and we will reverse that
decision only when it has been shown that the trial court abused that
discretion.” Commonwealth v. Briggs, 12 A.3d 291, 336 (Pa. 2011). The
following facts are pertinent to the concealment issue. In its opening
statement, the Commonwealth told the jury that it was going to hear the
following. Appellant did not answer the door for Trooper Summers, and
Appellant, over the course of many hours, ignored requests that he leave the
house made through loud speakers. A special police unit entered the
residence after a using remote surveillance devices, flash bombs, a robot,
and tear gas. Police did not locate Appellant. Donna Weaver and A.B.’s
biological father entered the house to secure it when they discovered
Appellant hiding behind a fake wall and took him to police. To police,
Appellant admitted, “Yeah, I was there the whole time. I was hiding in the
wall with a gun. I figured [out] why you guys were here, and I was, I didn’t
want you to get me.” N.T. Jury Trial (1st day), 12/10/12, at 48.
The prosecutor told the jury that it could consider the concealment as
consciousness of guilt. Id. at 49. The district attorney maintained that
Appellant “knew he did something wrong. And that’s why he was hiding
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from the police. That’s why he was hidden in a wall. That’s why he’s armed
with a gun.” Id. at 49-50. In response, the defense maintained that
Appellant’s concealment was not consciousness of guilt but instead, he was
terrorized by police actions and hid out of fear. Id. at 54.
After opening remarks, the Commonwealth presented witnesses who
outlined Appellant’s efforts to avoid detection. State Trooper Summers
testified about his efforts, as described supra, to interview and then serve
the arrest warrant on Appellant on June 1, 2011.
State Police Lieutenant Chris D. Yanoff testified about the deployment
of a special police tactical unit known as the Special Emergency Response
Team, which was used to enter the house. Lieutenant Yanoff was in charge
of the team and explained that it can be activated only after specified
conditions have been satisfied. Lieutenant Yanoff delineated that the unit
was used in this case because Appellant had been inside the house for hours
ignoring demands announced over a loud speaker that he exit the house and
because police were aware both that the house may have been booby-
trapped and that “there were multiple weapons in the house,” including a
machine gun. Id. at 173.
Lieutenant Yanoff continued that, once the team arrived on the scene,
he began to telephone the residence repeatedly. Next, two windows were
broken and police announced that, if Appellant would answer the telephone,
they would provide a surrender plan. Then, the unit used a noise flash
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diversionary device called a flash pan that is used to gain someone’s
attention. Thereafter, they continued to hail Appellant over the loud speaker
and telephone the residence. After breaking two additional windows, police
threw a remote camera inside the house and used a pole camera to surveil
the inside. Neither device detected Appellant. Police continued to telephone
the home and to ask Appellant to exit it through the loud speaker.
Police then used tear gas and sent a robot to breach the front door.
The robot, which was equipped with a camera, examined the first floor and
detected nothing. Police followed but could not locate Appellant. After
Appellant was found by his estranged wife, Lieutenant Yanoff examined the
false wall that had concealed Appellant’s whereabouts. He described the
hiding place to the jury.
Appellant asserts that this concealment evidence was irrelevant and
unduly prejudicial. We disagree. Appellant maintained at trial that the
victims were lying, that the allegations were instigated by his estranged
wife, and that he was innocent of criminal wrongdoing. Appellant engaged
in amazing and successful efforts to avoid police apprehension. He went so
far as to build a hidden compartment inside his house to avoid detection. As
outlined supra, when a defendant conceals his whereabouts from police, that
action is a relevant consideration as it is pertinent to establish that the
defendant was aware that he had committed a criminal act.
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The events surrounding police efforts to locate Appellant and his
successful avoidance of police detection were highly probative of his guilt.
This proof demonstrated that Appellant knew he had committed acts
warranting his arrest. The fact that the evidence was prejudicial to
Appellant did not render it inadmissible. “[E]ven inflammatory evidence
may be admissible if it is relevant and helpful to a jury's understanding of
the facts and the probative value outweighs the prejudicial effect.”
Commonwealth v. Serge, 896 A.2d 1170, 1182 (Pa. 2006). We conclude
herein that the probative value of this proof was not outweighed by its
prejudicial impact, and that the trial court did not abuse its discretion in
permitting the evidence concerning Appellant’s concealment.
In this portion of his brief, Appellant also assails the trial court’s
decision to allow evidence concerning the weapons found on the property.
Appellant notes that he did not use a gun during the commission of the
crimes and argues that the proof was inadmissible as irrelevant and
prohibited prior bad acts evidence. Appellant’s brief at 37-38. We conclude
that Appellant opened the door to the evidence about the weapons. “A
litigant opens the door to inadmissible evidence by presenting proof that
creates a false impression refuted by the otherwise prohibited evidence.”
Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa.Super. 2013).
In opening remarks, Appellant noted that the district attorney had
made “a big deal about this raid on the defendant’s house.” N.T. Trial (1 st
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day), 12/10/12, at 53. He observed that the raid occurred “because Donna
Weaver told the police that [Appellant] was armed and dangerous, and had
guns hidden behind picture frames from the wall and everywhere all over the
house.” Id. Appellant then insisted that police “never found the like” and
did not establish that “he was dangerous.” Id.Then, during his direct testimony, Appellant denied having weapons
and explosive devices throughout the house. N.T. Trial, 12/12/12 (3rd day),
at 61. These statements were factually inaccurate. 2 Pursuant to a search
warrant issued following Appellant’s arrest, police found four handguns, a
shotgun, two rifles, and a MAK-90, which is a variant of an AK 47 machine
gun. Appellant himself described the guns and attempted to cast them as
paltry weapons that were old, patched up, or inoperable. Id. at 62-69. In
response, the Commonwealth was permitted to introduce the weapons into
evidence. Appellant opened the door to this proof by denying that he was
armed and dangerous, maintaining that Donna Weaver was lying when she
told police to proceed with caution since there were guns hidden throughout
the house, and attempting to diminish the significance of the weaponry
____________________________________________
2
We note that Donna Weaver also found ten pipe bombs in the house, called
police, and a bomb unit had to defuse the devices. Appellant was separately
charged with possession of weapons of mass destruction. The trial court
prohibited the jury from hearing about those bombs.
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Hence, we conclude that the trial court did not abuse its discretion in
allowing the guns to be introduced into evidence.
Appellant’s tenth averment is that the trial court erroneously refused
to grant him a mistrial after he “was seen in custody by jurors at jury
selection.” Appellant’s brief at 39. We evaluate this position under the
following standards:
[T]he review of a trial court's denial of a motion for a mistrial is
limited to determining whether the trial court abused its
discretion. An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will
... discretion is abused. A trial court may grant a mistrial only
where the incident upon which the motion is based is of such a
nature that its unavoidable effect is to deprive the defendant of a
fair trial by preventing the jury from weighing and rendering a
true verdict.
Commonwealth v. Manley, 985 A.2d 256, 267-68 (Pa.Super. 2009)
(citations and quotation marks omitted).
Appellant claims entitlement to a new trial because some of the jurors
saw a deputy sheriff when the deputy “escorted the defendant out of the
courtroom[.]” N.T. Jury Selection, 12/4/12, at 136, 193. Appellant
maintains that “the inescapable conclusion was that [Appellant] was in
custody and escorted because he was a criminal.” Appellant’s brief at 39.
“It is settled law that a mere accidental observation of a defendant in
handcuffs outside a courtroom by a juror does not, without more, require
the granting of a mistrial[.]” Commonwealth v. Valerio, 712 A.2d 301,
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302 (Pa.Super. 1998). In this case, Appellant was not even shackled,
handcuffed, restrained, or in prison garb. We conclude that the trial court
correctly denied a new trial due to this brief sighting by jurors of Appellant
walking alongside a deputy sheriff.
Appellant next suggests a mistrial was warranted based on a single
leading question. That inquiry, which was addressed to A.B. was, “In
emotional terms, how would you describe the type of force that [Appellant]
your father, used to compel you to have sex with him?” N.T. Trial,
12/10/12, at 152. The victim responded that it was a question of survival
since the family could not afford to live without Appellant’s income and her
mother would get sick. The question asked the witness to provide pertinent
evidence relative to the issue of forcible compulsion. Thus, the response
adduced from the inquiry did not result in the jury’s consideration of
improper evidence or rendering a verdict on an incorrect basis. One leading
question that produces admissible evidence is not grounds for a mistrial.
Appellant’s thirteenth allegation is that the trial court improperly found
that Appellant was a sexually violent predator (“SVP”).
The determination of a defendant's SVP status may only be
made following an assessment by the Sexual Offenders
Assessment Board (“SOAB”) and hearing before the trial court.
In order to affirm an SVP designation, we, as a reviewing court,
must be able to conclude that the fact-finder found clear and
convincing evidence that the individual is a sexually violent
predator. As with any sufficiency of the evidence claim, we view
all the evidence and reasonable inferences therefrom in the light
most favorable to the Commonwealth. We will reverse a trial
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court's determination of SVP status only if the Commonwealth
has not presented clear and convincing evidence that each
element of the statute has been satisfied.
The standard of proof governing the determination of SVP
status, i.e., “clear and convincing evidence,” has been described
as an “intermediate” test, which is more exacting than a
preponderance of the evidence test, but less exacting than proof
beyond a reasonable doubt.
The clear and convincing standard requires evidence that
is so clear, direct, weighty, and convincing as to enable the trier
of fact to come to a clear conviction, without hesitancy, of the
truth of the precise facts in issue.
Commonwealth v. Morgan, 16 A.3d 1165, 1168 (Pa.Super. 2011) (citation
omitted). We are not permitted to re-weigh the factors that are involved in
an SVP determination; our function is to determine if the Commonwealth’s
evidence was sufficient to support the trial court’s conclusion that a
defendant was an SVP. Commonwealth v. Meals, 912 A.2d 213 (Pa.
2006).
In the present case, the Commonwealth presented the testimony of
Herbert Edwin Hays, who had been employed as a member of the Sexual
Offender’s Assessment Board (“SOAB”) for fifteen years. Mr. Hays had
Bachelor of Arts and Masters of Arts degrees in counseling psychology from
Valley Christian University, a Bachelor of Science degree in clinical
psychology from the University of Pittsburgh, and a Master of Arts degree in
counseling from Liberty University. In addition, he had over 2,000 hours of
specialized training in the field of assessment, treatment, and management
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of sex offenders and was a certified sex offender treatment provider. Before
he started to work for the SOAB, Mr. Hays was a therapist specializing in the
assessment, treatment, and management of sex offenders at the Ministries
of Eden and Eden Forensic Institute. After reviewing the facts of these cases
and the pertinent law, Mr. Hays concluded that Appellant was a sexually
violent predator and diagnosed him with paraphilia not otherwise specified.
In challenging the sufficiency of the evidence supporting the trial
court’s adjudication, Appellant merely examines the difference in the
opinions proffered by Mr. Hays and Appellant’s expert witness Dr. Robert
Mark Wettstein and suggests his witness was more worthy of belief than Mr.
Hays. However, the trial court chose to credit Mr. Hays’ testimony, which
was sufficient to support a conclusion that Appellant is an SVP by clear and
convincing evidence. We therefore reject this allegation and affirm the trial
court’s finding based upon its convincing rationale, as expressed at the SVP
hearing:
I'd indicate that I thought the reports of both experts were
very thoughtful. I thought they were very well thought out, and
very complete. I think each expert was expressing their
heartfelt opinion based on the evidence, in the case as they saw
it. They did however differ...
....
Mr. Hays and Dr. Wettstein differ over the finding of
whether there was a diagnosis or a finding of paraphilia NOS in
the case. Dr. Wettstein pointed out he feels it's a finding that's
sometimes overly used. But in reviewing both reports and
reviewing my notes of the testimony, his determination that it
was not appropriate to find Mr. Weaver as suffering from
paraphilia NOS is based in part on his feeling that the evidence
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was too scanty to show that the condition existed for a period
over six months. Now, I think the difference of the experts on
this in part had to do that neither were available at trial. Both
relied on reports and so forth to make their determination.
However, the verdict in this case included 20 counts, 20
convictions for indecent assault. And the witnesses’ testimony at
trial, Commonwealth witnesses supported these criminal actions,
the indecent assault and the other convictions took place over a
period of time well in excess of six months. The doctor's own
definition of paraphilia includes non–consent persons and forcible
compulsion is a basis of each of the offenses. It is one of the
elements in each of the offenses, these convictions. The Court
therefore accepts that the Commonwealth has established by
clear and convincing evidence Mr. Hays' finding of a mental
abnormality, specifically paraphilia NOS, a congenital or acquired
condition.
Further, having accepted that finding it appears clear that
this is a lifetime condition and that the condition overrides Mr.
Weaver's own volitional controls. Given that he committed these
acts with both a biological daughter and a step-daughter, the
Court accepts the opinion of Mr. Hays and his finding that the
conduct is likely to reoccur if the conditions are replicated.
There is, that is there being a situation where Mr. Weaver is in a
situation of trust with young girls.
Finally, as to the predatory nature of the conduct, we are
also persuaded by Mr. Hays by the requisite standard that the
conduct was predatory. Meaning no disrespect to Dr. Wettstein.
We highly respect him, he's an excellent professional. Dr.
Wettstein's definition of grooming seems somewhat limited. His
description of money, bribes, or alcohol or drugs certainly are
means of grooming a child but experience shows what better
method to groom a young girl to have sexual intercourse with an
older man than repeated sexual acts committed on the person
over a period of time. These convictions in this case
demonstrate this was predatory behavior based on sexualization
of the relationship with his conduct with these children.
Therefore, we make a finding that by clear and convincing
evidence [Appellant is an SVP].
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N.T. SVP Hearing and Sentencing, 9/4/13, at 141-45. We further observe
that Mr. Hays did, contrary Appellant’s claim, opine that Appellant would be
at risk for re-offending based upon his mental abnormality. Id. at 79. This
testimony was sufficient on that question. Morgan, supra.Appellant’s next averment is that the crimes of IDSI and rape should
have merged for sentencing purposes. The issue of whether “convictions
merge for sentencing is a question implicating the legality of Appellant's
sentence. Consequently, our standard of review is de novo and the scope of
our review is plenary.” Commonwealth v. Baldwin, 985 A.2d 830, 833
(Pa. 2009). Section 9765 of title 42 outlines when sentences merge:
No crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the statutory
elements of one offense are included in the statutory elements of
the other offense. Where crimes merge for sentencing purposes,
the court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S. § 9765.
As articulated by our Supreme Court in Baldwin, supra at 933: “The
statute's mandate is clear. It prohibits merger unless two distinct facts are
present: 1) the crimes arise from a single criminal act; and 2) all of the
statutory elements of one of the offenses are included in the statutory
elements of the other.”
A person commits rape when “the person engages in sexual
intercourse with a complainant . . . [b]y forcible compulsion.” 18 Pa.C.S. §
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3121(a)(1). IDSI occurs when a “person engages in deviate sexual
intercourse with a complainant . . . [b]y forcible compulsion[.]” 18 Pa.C.S. §
3123(a)(1). Deviate sexual intercourse, includes, inter alia, “Sexual
intercourse per os or per anus[.]” 18 Pa.C.S. § 3101. Rape and IDSI do not
merge because they contain different elements. Rape requires that a vagina
be penetrated by a penis, which IDSI does not, whereas IDSI requires a
vagina to be contacted with a mouth or an anus to be contacted with a
penis, which is not an element of rape.
Additionally, in this case, the rape and IDSI convictions were premised
upon different criminal acts. Appellant raped A.B. when he placed his penis
inside her vagina and he committed IDSI when he placed his mouth on her
vagina. These were separate acts, and the crimes did not merge for
sentencing purposes for that reason as well.
Appellant’s fifteenth complaint is that the trial court erred in refusing
two jury instructions that he requested and in disseminating three improper
instructions. We note that, “A trial court's denial of a request for a jury
instruction is disturbed on appeal only if there was an abuse of discretion or
an error of law.” Commonwealth v. Johnson, 107 A.3d 52, 89 (Pa.
2014).
Herein, Appellant first complains that the trial court failed to instruct
the jury on “significant factors” that are to be used in making a
determination of whether there was forcible compulsion. Appellant’s brief at
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47. Appellant outlines that these factors include the respective ages of the
victim and the defendant, the mental and physical conditions of the victim
and the defendant, the atmosphere and setting where the incident occurred,
the extent to which the defendant was in a position of authority, domination
or custodial control over the victim, and whether the victim was under
duress. Id. However, the trial court did give the exact charge that Appellant
suggests was omitted:
Significant factors to be weighed in determining if there
was sufficient forcible compulsion, or threat of such forcible
compulsion including intellectual moral, or emotional, or
psychological force of compulsion include the respective ages of
the victim and the accused, the respective mental and physical
conditions of the victim and the accused, the atmosphere and
physical setting which the incidents are alleged to have taken
place, the extent to which the accused may have been in a
position of authority, domination, or custodial control over the
victim, and whether the victim was under duress. This list of
possible factors is by no means conclusive, or exclusive, but
provides examples for you to better understand what we mean
by forcible compulsion.
N.T. Trial, 10/12/12, at 288. Appellant’s argument is therefore specious.
Appellant also complains about the trial court’s refusal to give an
instruction about “false in one, false in all,” which is premised upon the Latin
maxim “falsus in uno, falsus in omnibus.” Appellant’s brief at 49. The
charge reads in full:
If you decide that a witness deliberately testified falsely
about a material point that is, about a matter that could affect
the outcome of this trial, you may for that reason alone choose
to disbelieve the rest of his or her testimony. But you are not
required to do so. You should consider not only the deliberate
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falsehood but also all other factors bearing on the witness's
credibility in deciding whether to believe other parts of his[/]her
testimony.
Pennsylvania Suggested Standard Jury Instruction (Criminal) § 4.15
Herein, A.B. made conflicting statements about when certain of the
offenses occurred. Additionally, a witness presented by Appellant, Terri
Huntsman, reported that A.B. told her that “at first [the sexual contact
between A.B. and Appellant] wasn’t consensual, then it was consensual.”
N.T. Trial, 12/11/12, at 112. Ms. Huntsman also said that A.B. told her that
Donna Weaver was behind the accusations and that they were all “a whole
bunch of bulls and lies.” Id. at 115.
While the court declined to give the false in one/false in all charge, it
specifically addressed A.B.’s inconsistent statements:
You've heard evidence in this case by a witness that [A.B.]
made a statement on an earlier occasion that was inconsistent
with her present testimony. You may, if you choose, regard this
evidence as proof of the truth of anything that the witness said
in the earlier statement. You may also consider this evidence to
help you judge the credibility and weight of testimony given by
the witness at this trial. When you judge the credibility and
weight of testimony, you're deciding whether to believe the
testimony and how important you think it is.
N.T. Trial, 12/12/12, at 281-82; see Pennsylvania Suggested Standard Jury
Instructions (Criminal) 4.08A.
Additionally, the court disseminated significant instructions about
witness credibility, offering guidance on how to judge the credibility of
witnesses in accordance with the language of Suggested Standard Jury
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Instructions (Criminal) §§ 4.09 and 4.17. See N.T. Trial, 121/12/12, at
278-283. Since these jury instructions encompass the concepts involved in
false in one/false in all charge, a new trial is not warranted.
Commonwealth v. Vicens-Rodriguez, 911 A.2d 116 (Pa.Super. 2006)
(when a full and complete charge is given on how a jury is to assess the
credibility of witnesses, there is no reversible error when a court fails to give
the false in one/false in all instruction).
In connection with his fifteenth issue, Appellant also suggests that the
circumstantial evidence and consciousness of guilt instructions should not
have been given to the jury and that one of the instructions improperly
shifted the burden of proof herein. As analyzed above, the fact that
Appellant concealed his whereabouts did evidence consciousness of guilt
under the applicable law. That proof was also circumstantial evidence.
Hence, those two instructions were properly given.
Appellant’s complaint regarding the burden of proof relates to a charge
that the trial court gave on his credibility. Appellant argues that the trial
court stripped him of the presumption of innocence by noting that he had a
vital interest in this case. Specifically, the court informed the jury, “Mr.
Weaver took the stand as a witness. In considering the defendant’s
testimony you are to follow the general instructions I have you for judging
the credibility of any witness. You should not disbelieve the defendant’s
testimony merely because he is the defendant.” N.T. Trial (3rd day),
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12/12/12, at 282. The court continued that the jury could “consider the fact
that he has a vital interest in the outcome of this trial.” Id.We conclude that this statement did not improperly shift the burden of
proof to the defendant or strip him of the presumption of innocence. The
jury was clearly and unequivocally instructed on the Commonwealth’s
burden of proof and the presumption of innocence. Id. at 269-70 (stating
that a defendant is presumed innocent and that it is the Commonwealth’s
burden to prove otherwise). The trial court was quite explicit in this respect:
It is not the defendant’s burden to prove that he is not
guilty. Instead it is the Commonwealth that always has the
burden of proving each and every element of the crime charged.
And the defendant is guilty of that crime beyond a reasonable
doubt. I’ll repeat that because it bears repeating. It is not the
defendant’s burden to prove that he is not guilty. Mr. Weaver
has no obligation to do that. Instead it is the Commonwealth
that always has the burden of proving each and every element of
the crime charged, and that Mr. Weaver is guilty of that crime
beyond a reasonable doubt.
A person accused of a crime is not required to present
evidence or to present anything in his or her own defense. If the
Commonwealth’s witness’ evidence fails to meet its burden, then
your verdict must be not guilty. On the other hand, if the
Commonwealth’s evidence is not proved beyond a reasonable
doubt that the defendant is guilty, then the verdict should be not
guilty. That is the Commonwealth’s evidence does prove beyond
a reasonable doubt that the defendant is guilty, then your
verdict should be guilty.
Id. at 274-75; see also id. at 275 (defining reasonable doubt). Thus, we
reject Appellant’s claim he was denied the presumption of innocence when
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the trial court noted that the jury could consider Appellant’s special interest
in the case when assessing his credibility.
Appellant’s final position is that the trial court should have granted a
mistrial after the Commonwealth, during summation, mistakenly told the
jury it was their job to find Appellant guilty of the crimes in question. See
id. at 262 (“And your job, as jurors now, is to look at the evidence and find
him guilty of every single crime he’s charged with.”) After Appellant
objected to this remark, the Commonwealth said that, if it did make that
statement, it did so mistakenly. Id. 265. The trial court immediately gave a
curative instruction to jury.
As I told you folks before: Listen to the . . . . arguments of
counsel. If they’re persuasive to you, be guided by them. But
what they tell you about the facts if they disagree with your
recollection of the facts, you’ve got to abide by your own
recollection. What I tell you about the law you must be guided
on points of law. Because I am the Judge of the law.
Id. at 263.
It is settled that prosecutorial error during argument is not grounds for
a new trial “unless the unavoidable effect of the comments at issue was to
prejudice the jurors by forming in their minds a fixed bias and hostility
toward the defendant, thus impeding their ability to weigh the evidence
objectively and render a true verdict.” Commonwealth v. Paddy, 800
A.2d 294, 316 (Pa. 2002). In order to warrant a mistrial due to misconduct,
the event must be prejudicial. As we observed in Commonwealth v. Judy,
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978 A.2d 1015, 1019 (Pa.Super. 2009), “the trial court is vested with
discretion to grant a mistrial whenever the alleged prejudicial event may
reasonably be said to deprive the defendant of a fair and impartial trial. In
making its determination, the court must discern whether misconduct or
prejudicial error actually occurred, and if so, assess the degree of any
resulting prejudice.”
In the present case, the jury was immediately given a curative
instruction that the argument of counsel could not be considered as the
applicable law and that the judge would instruct it on the legal standards to
be employed. Then, the jury was repeatedly told that it had to acquit
Appellant if it found that the evidence was insufficient to establish his guilt
beyond a reasonable doubt. Hence, we conclude that, in light of its
subsequent instructions, the trial court did not abuse its discretion in
refusing to grant a mistrial after the Commonwealth mistakenly told the jury
that its job was to convict Appellant.
Judgment of sentence affirmed.
Judge Donohue joins this memorandum.
Justice Fitzgerald concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2015
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