Com. v. Mays, R. ( 2021 )

J-A05040-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT MAYS :
:
Appellant : No. 352 EDA 2020
Appeal from the Judgment of Sentence Entered May 2, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002270-2017,
CP-51-CR-0002271-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT MAYS :
:
Appellant : No. 353 EDA 2020
Appeal from the Judgment of Sentence Entered May 2, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0002270-2017,
CP-51-CR-0002271-2017
BEFORE: OLSON, J., NICHOLS, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: Filed: May 13, 2021
Appellant, Robert Mays, appeals from the judgment of sentence entered
in the Court of Common Pleas of Philadelphia County after a jury found him
guilty of multiple sex offenses committed against two minor girls with whom
____________________________________________
* Former Justice specially assigned to the Superior Court.
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he lived. On appeal, he contends the verdict was against the weight of the
evidence and challenges several evidentiary rulings made by the court. We
affirm.
This case arose from Appellant’s persistent sexual abuse of his
girlfriend’s daughters and niece in the family home during their pre-teen and
early teenage years. Appellant, who was in his mid-twenties at the relevant
times, was the live-in boyfriend of P.T., and prior to committing the offenses
in question, he had gained the love and respect of P.T.’s three daughters, son,
and niece by assuming a dependable parental role in their lives when P.T. was
often less reliable. At Appellant’s February 2019 trial, however, the girls
lamented over how they lost this stable presence in their lives when
Appellant’s behavior changed from caring and protective to harassing, lewd,
and predatory.
The trial court opinion aptly sets forth the pertinent testimonies given
at Appellant’s trial on charges that he abused two of the four girls in his care,
as follows:
As a child, [witness] N.T.M lived with her twin sister [], brother,
mother, and Appellant . . . in Philadelphia. [In 2015, when N.T.M.
was in sixth grade] [t]hey moved to [a different Philadelphia
neighborhood]. Id. at 2/11/19 at 42. N.T.M.’s younger sister,
Complainant M.T.M., resided with her grandmother but would
spend weekends at [N.T.M’s] house. Id. at 62.
Shortly after moving to [their new residence], N.T.M. came home
one evening and Appellant was the only one there. Id. at 47.
Appellant was naked and approached [ ] N.T.M., asking her if she
thought his penis was larger than a can of air freshener. Id. at
48. Over the next several weeks, Appellant continued to expose
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himself to N.T.M., as well as to her friends when they were over
at the house. Id. 49-52, 55.
[According to N.T.M,] in the weeks following these incidents, [she]
would wake up with her underwear pushed down and Appellant in
her bed attempting, often successfully, to perform oral sex on her
. . . or penetrating her vagina with his penis. Id. at 57-61. N.T.M.
[testified that] she often observed Appellant perpetrating similar
sex acts against her twin sister [ ], who shared a room with her.
Id. N.T.M. also [testified that she] observed Appellant attempting
to sexually assault her cousin, [S.T.], in a similar manner when
[S.T.] would sleep over the house. . . . Id. at 75. [N.T.M also
claimed] Appellant continued to force N.T.M. into various sex acts
for approximately two years. Id. at 61.
[Complainant S.T. testified that] Appellant also had an “uncle like”
role in her life. N.T., 2/12/19, at 16. S.T. would occasionally
come to the [new residence] occupied by Appellant . . . to visit
her [younger] cousins[,] . . . staying for an entire summer in 2015
and sharing a bedroom with [the twin sisters]. Id. at 12. S.T.
was 14 or 15 years old [that] summer. . . . Id. at 17. [According
to S.T.], [a]lmost every day that summer, Appellant would come
into the girls’ bedroom and expose his penis to S.T. and often to
her cousins in the room. Id. at 20. On one occasion, Appellant
came up behind S.T. in the kitchen and pressed his erect penis
against her and asked, “Do you think you’re ready now. You think
you would be able to handle me.” Id. at 22. On a separate
occasion, Appellant approached S.T. when she was sitting down
and touched her vaginal area, telling her “your pussy is fat.” Id.
at 23. Appellant would often tell S.T. what he wanted to do to her
sexually, or how he wanted to have sex with her. Id. at 26.
Complainant [M.T.M.] is the [youngest] sister[, and though]
initially [she] lived with her grandmother, separate from her
siblings, she would visit her sisters, mother, and Appellant at their
home . . . when she was [between 11 and 13 years old]. Id. at
115-117. Appellant showed M.T.M. a photograph of his penis and
asked her if it should be his screen saver. Id. at 117-118. [M.T.M.
testified that in] a separate incident, when M.T.M. was asleep in
her sisters’ bedroom, Appellant entered the room and penetrated
her vagina with his fingers and touched her breasts. Id. at 125.
[M.T.M. claimed that on] another occasion, Appellant entered the
bedroom and forcefully penetrated M.T.M.’s vagina with his penis.
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Id. at 135. On multiple occasions, [she maintained], Appellant
also attempted to force his penis into her mouth. Id. at 137, 152.
[M.T.M. testified that] Appellant continued to rape her multiple
times [both when she visited and later when she moved in with
the family.] Id. at 137-142. On multiple occasions[, M.T.M.
recounted,] Appellant would also put his penis through a door
knob hole in the [family’s first home], exposing himself to her if
she was in the room on the other side of the door. Id. at 144.
[At the conclusion of Appellant’s jury trial before the Honorable
Mia R. Perez,] with respect to Complainant M.T.M., Appellant was
found guilty of unlawful contact with a minor as a felony in the
first degree, solicitation to commit involuntary deviate sexual
intercourse with a child as a felony in the first degree, endangering
the welfare of a child as a felony in the third degree, and
corrupting the morals of a minor. [He was acquitted of charges
of rape of a child and aggravated indecent assault of a person less
than 13 years of age.]
With respect to Complainant S.T., Appellant was found guilty of
unlawful contact with a minor as a felony in the third degree,
[endangering the welfare of children through a course of conduct,]
corrupting the morals of a minor, and indecent assault without
consent.
On May 2, 2019, with respect to Complainant M.T.M., Appellant
was sentenced . . . to four to 16 years of state incarceration for
unlawful contact with a minor, a consecutive period of four to eight
years for solicitation to commit involuntary deviate sexual
intercourse with a child, and concurrent terms of nine to 16
months for endangering the welfare of a child and nine to 16
months on corrupting the morals of a minor, for an aggregate
sentence of twelve to twenty-four years of state incarceration.
With respect to Complainant S.T., Appellant was sentenced to one
to two years of incarceration for unlawful contact with a minor,
and concurrent sentences of nine to 16 months for indecent
assault without consent and nine to 16 months for corrupting the
morals of a minor, for an aggregate sentence of one to two years
of state incarceration.
Appellant’s total aggregate sentence as to both Complainants
[M.T.M and S.T.] was thirteen to twenty-six years of state
incarceration.
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Trial Court Opinion, 7/29/2020, at 1-4.
Appellant timely filed his notices of appeal on January 16, 2020, and he
submitted a court-ordered Pa.R.A.P. 1925(b) Concise Statement of Matters
Complained of on Appeal on February 7, 2020. In response, the trial court
filed its Rule 1925(a) opinion addressing the issues raised.
In Appellant’s brief, he raises one issue challenging the weight of the
evidence and three related issues asserting that the court erred in sustaining
Commonwealth objections to various questions asked of the witnesses during
cross-examination. Initially, however, we must determine whether we are
required to quash the present appeal.
Appellant has filed two counseled notices of appeal, with each one listing
two trial court docket numbers. On January 29, 2020, this Court issued rules
to show cause why the appeals should not be quashed pursuant to Pa.R.A.P.
341(a) and Commonwealth v. Walker, 185 A.3d 969 (Pa. June 1, 2018).
Specifically, in Walker, the Pennsylvania Supreme Court mandated “that
when a single order resolves issues arising on more than one lower court
docket, separate notices of appeal must be filed,” and the failure to do so will
result in quashal of the appeal. Id. at 977.
On January 30, 2020, counsel for Appellant filed a response to each rule
to show cause. On February 3, 2020, and February 4, 2020, this Court entered
orders withdrawing the rules to show cause, but it informed the parties that
the issue raised in the rules to show cause will be referred to the panel
assigned to decide the merits of the appeals.
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In reviewing this issue, we rely on two recent en banc decisions of this
Court. In Commonwealth v. Jerome Johnson, 236 A.3d 1141 (Pa. Super.
2020) (en banc), the Court held that the filing of multiple notices of appeal,
with each one listing all court of common pleas docket numbers, does not,
alone, require quashal under Walker. Jerome Johnson, 236 A.3d at 1148.
(partially overruling Commonwealth v. Creese, 216 A.3d 1142 (Pa. Super.
2019) to the extent Creese erroneously interpreted Walker and Pa.R.A.P.
341 as requiring quashal under such circumstances).
Commonwealth v. Rebecca Johnson, 236 A.3d 61 (Pa. Super. 2020)
(en banc), also involved the filing of three notices of appeal that each listed
all three docket numbers of the court of common pleas. Taking guidance from
its recent decision in Jerome Johnson, the Court observed that its sole
inquiry was “whether [appellant Rebecca Johnson] complied with Walker—
i.e., whether she actually filed separate notices of appeal for each docket
number of the court of common pleas.” Rebecca Johnson, 236 A.3d at 66.
Proof that she fulfilled this requirement, the Court concluded, lay in the
different timing and location of the time stamps on each notice of appeal.
Specifically, the Court noted that while two of the notices included the same
time stamp, the stamps appeared on different locations of each notice, and
the third notice had a different time stamp altogether. Id. Thus, the Court
concluded the appellant Rebecca Johnson complied with Walker by filing
“three separate notices for each lower-court docket number.” Id.
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Reviewing the present record under this precedent, we find the notices
of appeal in the instant case, like those in Commonwealth v. Rebecca
Johnson, contain different time stamps reflecting that separate notices of
appeal for each docket number of the court of common pleas were filed.
Therefore, Appellant’s filing of the two separate notices of appeal bearing both
trial court docket numbers adequately conveyed to this Court that the two
dockets were implicated, thus signaling that separate appellate docket
numbers were required.
Consequently, we retain the ability to exercise discretion to consolidate
the appeals pursuant to Pa.R.A.P. 513, which was one of the purposes cited
by the Walker Court for requiring that separate appeals be filed for each
implicated docket. See Walker, supra at 976 (holding that Rule 341(a) must
be read consistently with the Rules 512 and 513 governing joint appeals, and
that the filing of a single notice of appeal from an order arising on more than
one docket effectively consolidated appeals without either the approval of the
Superior Court or the agreement of the appellees as required in Rule 513).
For these reasons, we find the filing of two separate notices of appeal herein
sufficient under Walker, and we decline to quash these appeals.
Turning, then, to Appellant’s first issue, we see that he contends the
trial court erred when it denied his post-sentence motion seeking a new trial
on the argument that his convictions were against the weight of the evidence.
Support for his claim, he maintains, is found in the aggregate of N.T.M.’s prior
false allegation in an unrelated sexual assault case, the sisters’ contradictory
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testimonies regarding the extent of Appellant’s actions against S.T., character
witness testimony as to Appellant’s reputation for non-violence, the lack of
physical evidence of sexual abuse, M.T.M’s assertion to police that another
man was responsible for the crimes against her, and the jury’s acquittal on
the charges of rape and aggravated sexual assault.
In reviewing a challenge to the weight of the evidence, the trial judge
will not overturn a verdict unless it is “so contrary to the evidence as to shock
one's sense of justice.” Commonwealth v. Diggs, 949 A.2d 873, 879 (Pa.
2008). Our subsequent review, as an appellate court, does not involve
analysis of whether the verdict is against the weight of the evidence, but is
constrained to a determination of an abuse of discretion by the trial court.
Commonwealth v. Wall, 953 A.2d 581, 586 (Pa. Super. 2008) (citations
omitted).
“Because the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest consideration to
the findings and reasons advanced by the trial judge when reviewing a trial
court's determination that the verdict is against the weight of the evidence.”
Commonwealth v. Antidormi, 84 A.3d 736, 758 (Pa. Super. 2014) (quoting
Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa.2013)). As such, a
trial court's decision as to whether a verdict was or was not against the weight
of the evidence is one of the least assailable of its rulings. Diggs, 949 A.2d
at 879-80.
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“The weight of the evidence is exclusively for the finder of fact who is
free to believe all, part, or none of the evidence and to determine the
credibility of the witnesses.” Commonwealth v. Champney, 832 A.2d 403,
408 (Pa. 2003) (citation omitted). “Issues of witness credibility include
questions of inconsistent testimony and improper motive.” Commonwealth
v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (citation omitted). “A new trial
should not be granted because of a mere conflict in the testimony[.]” Clay,
64 A.3d at 1055.
It is well-settled that, “[i]n a prosecution for sex offenses, a verdict may
rest on the uncorroborated testimony of the victim.” Commonwealth v.
Cody, 584 A.2d 992, 993 (Pa. Super. 1991) (case citation omitted). See
also, Commonwealth v. Diaz, 152 A.3d 1040, 1047 (Pa. Super. 2016)
(holding sexual assault victim’s uncorroborated testimony, if believed by the
jury, is sufficient to convict, despite contrary evidence from defense
witnesses). As provided in Section 3106 of the Crimes Code, “[t]he testimony
of a complainant need not be corroborated in prosecutions under this chapter[,
Sexual Offenses].” 18 Pa.C.S.A. § 3106.
Appellant’s challenge to the weight of the evidence suffers from an
argument that rests on a mere listing of the above-stated reasons for a new
trial without developing a detailed discussion supported by favorable
precedent. Rather than deem his challenge waived for briefing deficiencies,
however, we elect to address several aspects to his truncated claim and
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elucidate how they fail to show how the jury’s credibility determinations shock
the conscience.
Appellant first characterizes N.T.M. as an unreliable witness to his
alleged acts because once, as an eleven year-old alleged victim of rape, she
lied about the age of the young assailants who had lured her away from a
neighborhood block party and into a home where the sexual offenses
occurred. Specifically, on cross-examination, N.T.M. acknowledged that when
she returned home bleeding and crying, she falsely claimed her rapists were
two unidentified, older men because she did not want to get the actual
assailants in trouble. N.T. 2/11/19 at 88-95, 99. Her lie was revealed months
later when DNA testing of her rape kit sample from CHOP was matched with
a younger male who did not correlate with her initial account. N.T. at 99-100.
Consequently, police showed her a photo array from which she identified
the male responsible for the alleged rape, but she indicated she did not want
charges filed. N.T. at 102. As far as she knew at the time of the present trial,
the rape investigation had been discontinued. N.T. at 102. Because of this
falsehood N.T.M. told as an eleven-year-old victim, Appellant contends the
jury could not reasonably credit her testimony regarding his alleged activities
in the family home.
Appellant also states that the witnesses’ conflicting testimonies
concerning Appellant’s conduct toward S.T.—with N.T.M. testifying she
witnessed Appellant having sex with S.T. in the girls’ bedroom, and S.T.
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denying she ever had sex with Appellant—further required the jury to discredit
the sum of such evidence.
Specifically, S.T. testified she rejected two unwelcome sexual advances
initiated by Appellant during the summer when, as a then 14-year-old girl,
she lived with her aunt and cousins. The first took place in the kitchen, when
a fully-clothed Appellant approached S.T. from behind and rubbed his erect
penis against the back of her shorts while asking if she was ready for him and
could handle him. N.T., 2/12/19, at 22. The second took place in the girls’
bedroom, where Appellant had entered uninvited in his customary manner,
placed his hand between S.T.’s legs as she sat on a bed wearing a pair of
shorts, and bit his bottom lip for effect while exclaiming her “pussy was fat.”
N.T. at 23.
S.T. testified that she shared with her twin cousins what Appellant had
done to her, and the three girls eventually relayed the story to P.T. and S.T.’s
mother in late 2015. N.T. at 29-30. S.T. subsequently told a DHS caseworker
about the incident during an interview. N.T. at 33-38. On cross-examination,
S.T. stated that she had not seen Appellant touch the other girls
inappropriately, but she witnessed him speak inappropriately to them. N.T.
at 48.
S.T.’s mother testified that after receiving a call from P.T. and DHS, S.T.
shared with her the allegations of Appellant’s voyeurism and inappropriate
language and touching. S.T.’s mother explained S.T. required therapy for
depression she experienced from the events. N.T. at 82-90.
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As noted above, “[r]esolving contradictory testimony and questions of
credibility are matters for the factfinder,” Commonwealth v. Mikitiuk, 213
A.3d 290, 305 (Pa. Super. 2019) (citation omitted), and the uncorroborated
testimony of a sexual assault victim, if deemed credible, is enough to support
a conviction. Cody, supra.In assessing Appellant’s post-sentence motion, the trial court
acknowledged such precedent and concluded that the jury, acting in its
province as sole finder of fact, was permitted to credit S.T.’s testimony
regarding Appellant’s criminal actions notwithstanding either impeachment
evidence directed at N.T.M.’s credibility or inconsistent testimony to the extent
N.T.M. alleged that S.T. actually endured more severe abuse from Appellant
than S.T. was willing to confirm.
Indeed, the trial court considered how, at trial, S.T. unequivocally
testified in explicit detail how Appellant repeatedly engaged in sexual conduct
and commentary with the girls while she lived with them. According to her
testimony, Appellant would walk into the girls’ bedroom daily and expose
himself while asking questions like, “Are you ready?” and “Do you like this?”
N.T. 2/12/19 at 21. She testified similarly regarding Appellant’s unlawful
touching of her. Her mother testified that S.T. shared these accounts with
her.
In the same way, the trial court assessed the jury’s guilty verdicts on
charges relating to M.T.M.’s alleged sexual abuse and determined they were
not contrary to the evidence. Specifically, Appellant notes summarily that
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M.T.M admitted at trial that when she was 12 or 13 years old, she initially
gave interviews, conducted by the Philadelphia Children’s Alliance under
observation by Special Victims Unit, in which she stated that she had been
abused not by Appellant but, instead, by a male cousin. N.T. at 156-157.
The record shows, however, that M.T.M., who was 16 at the time of trial,
testified that she gave the interviews in question while she was still living with
Appellant and her mother, P.T., and she had simply obeyed P.T.’s command
that she lie to authorities about the identity of her assailant. N.T. at 156-157,
172. She explained that when she moved to live with S.T. and S.T.’s mother,
she gave her first truthful interview accusing Appellant of abusing her. N.T.
at 162.
On cross-examination, M.T.M. admitted that she never saw Appellant
sexually abuse the other girls. N.T. at 193-94. She also admitted that even
after moving in an abuse-free home with S.T. and S.T.’s mother, she ran away
from home for a number of days and was eventually placed in a foster home.
N.T. at 220-222. The jury, therefore, observed vigorous cross-examination
of M.T.M and considered impeachment and other evidence relating to her
inconsistent statements about the identity of her assailant, and it deemed her
accusation of Appellant credible with respect to most charges.1
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1 Regarding Appellant’s contention that the jury’s split verdict on charges
relating to M.T.M. bears favorably on his weight of the evidence claim, we note
that “[f]ederal and Pennsylvania courts alike have long recognized that jury
acquittals may not be interpreted as specific factual findings with regard to
(Footnote Continued Next Page)
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Based on this record, trial court concluded:
Here, the jury was presented with the consistent, credible, and
compelling testimony of both S.T. and M.T.M., as well as that of
prior bad acts witness N.T.M., that Appellant systematically
abused both Complainants. Both Complainants recalled specific
wording of statements the Appellant made during the course of
the abuse, the timing and location of the incidents and specific
details such as Appellant’s clothing. [N.T., 2/12/19, at 12-26 (as
to Complainant S.T.), 115-144 (as to Complainant M.T.M.).
Appellant was given a full and fair opportunity to cross-examine
all witnesses to elicit additional testimony for the factfinder. And
despite Appellant’s presentation of character witnesses and fact
witnesses who attempted to dispute the evidence offered by the
Commonwealth, the jury chose to believe each complainant’s
testimony regarding Appellant’s sexually abusive behavior. . . .
[T]here was nothing about this [jury’s] verdict that would shock
one’s sense of justice. Thus, Appellant is not entitled to relief on
this claim.
TCO at 6 (unenumerated).
In light of this record, we find no abuse of discretion in the trial court’s
discernment that the jury’s guilty verdicts did not shock the conscience. As
such, Appellant’s weight of the evidence claim fails.
As to Appellant’s remaining issues pertaining to the trial court’s
evidentiary rulings, we note the following standard of review:
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the evidence, as an acquittal does not definitively establish that the jury was
not convinced of a defendant's guilt.” Commonwealth v. Moore, 103 A.3d
1240, 1246 (Pa. 2014) (citations and quotation marks omitted). See also
Commonwealth v. Miller, 35 A.3d 1206, 1209 (Pa. 2012) (“[T]he fact that
the inconsistency [in the verdict] may be the result of lenity, coupled with the
Government's inability to invoke review, suggests that inconsistent verdicts
should not be reviewable.”) (citation omitted). As such, the trial court
properly rejected this argument, as well.
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Questions concerning the admissibility of evidence are within the
sound discretion of the trial court[,] and we will not reverse a trial
court's decision concerning admissibility of evidence absent an
abuse of the trial court's discretion. An abuse of discretion is not
merely an error of judgment[ but, rather, is] the overriding or
misapplication of the law, or the exercise of judgment[,] that is
manifestly unreasonable, or the result of bias, prejudice, ill-will[,]
or partiality, as shown by the evidence of record. If in reaching a
conclusion the trial court overrides or misapplies the law,
discretion is then abused[,] and it is the duty of the appellate court
to correct the error.
Commonwealth v. LeClair, 236 A.3d 71, 78 (Pa. Super. 2020) (citation
omitted), appeal denied, 244 A.3d 1222 (Pa. 2021).
“Relevance is the threshold for admissibility of evidence.”
Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super. 2015) (en banc),
appeal denied, 633 Pa. 787, 128 A.3d 220 (2015).
Evidence is relevant if it logically tends to establish a
material fact in the case, tends to make a fact at issue
more or less probable, or tends to support a
reasonable inference or proposition regarding a
material fact. Relevant evidence may nevertheless be
excluded if its probative value is outweighed by the
danger of unfair prejudice, confusion of the issues, or
misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of
cumulative evidence.
Commonwealth v. Danzey, 210 A.3d 333, 342 (Pa. Super. 2019), appeal
denied, ––– Pa. ––––, 219 A.3d 597 (2019) (internal quotation marks
omitted).
Appellant first contends that the court erred when it sustained a
Commonwealth objection “as to the reasons that Complainant(s) were
removed from the home where the crimes allegedly occurred because the
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implication was that Complainant(s) were removed because of Appellant. . . .
Appellant suffered irreparable harm because removal could be seen [as]
attributable to Appellant when this was not the case.” Brief for Appellant, at
17. We disagree.
The ruling to which Appellant refers was issued during the cross-
examination of N.T.M., who had already testified that she was removed from
the home and placed in foster care for reasons having nothing to do with
Appellant. In her own words, N.T.M. explained her removal was “not because
of anything with [Appellant],” but because she “was getting suspended from
school,” “fighting,” “doing a lot of stuff that [she] wasn’t supposed to,” and
because DHS had made a finding of parental “abandonment.” N.T., 2/11/19,
at 105-109. She testified that she had run away from foster care to live with
another family for three years, and voiced her frustration with being placed in
foster care without authorities knowing how circumstances at her family home
contributed to her disruptive and combative behaviors:
DEFENSE COUNSEL: So, they [the other family] were okay with
you staying with them even though you weren’t supposed to be?
N.T.M.: Yes.
Q: And you were a minor?
A: Sorry. The person that I stay with wouldn’t just want to see
nobody on the street, like cold or nothing like that, that way.
Q: But you didn’t have to be on the street?
A: Yes, I did. I didn’t have to be in placement neither because
I didn’t have – why should I have to be in placement if I was
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getting touch on at home, and I’m angry because I was getting
touched on at home, and I’m outside fighting and being
disrespectful because I was getting touch on at home? Why
should I have to go into placement for that? Why? They – Why?
Q: You were being what in the house?
A: I was being touched on, you know, raped, liked that way,
touched.
Q: But that’s not why you were taken out of the home?
PROSECUTOR: Objection.
DEFENSE COUNSEL: [asking N.T.M.] You said that before?
THE COURT: Sustained, [counsel].
N.T.M. I never said that’s why I was taken out of the home.
DEFENSE COUNSEL: I know, but now you’re saying—
THE COURT: Ms. [N.T.M.], I sustained the objection. You
don’t have to answer the question.
N.T., 2/11/19, at 173.
This record shows that N.T.M. had conveyed previously to the jury that
the official reasons for her removal from the family home had nothing to do
with Appellant. Moreover, she reaffirmed this position by responding, “I never
said that’s why I was taken out of the home[,]” despite the court’s ruling
sustaining the Commonwealth’s objection.
Therefore, even assuming, arguendo, that the court erroneously
sustained the objection, no prejudice resulted,2 as the jury heard N.T.M.’s
____________________________________________
2 Regarding harmless error, we have observed:
(Footnote Continued Next Page)
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answer to defense counsel’s question seeking reaffirmance of her previous
testimony, and the court did not strike the answer from the record.
Next, Appellant contends the court erred in sustaining the
Commonwealth’s objections to cross-examination seeking to expound on
N.T.M.’s behavioral problems at school. Specifically, the evidentiary ruling
occurred as defense counsel sought testimony from S.T. regarding N.T.M.’s
behavior while she was living with S.T. and S.T.’s mother:
DEFENSE COUNSEL: Okay. And did anything happen that you
know of that you saw in your house that involved [N.T.M.]?
S.T.: No.
Q: No. She was having problems, school problems, behavioral
problems.
[PROSECUTOR]: Objection.
THE COURT: Sustained.
DEFENSE COUNSEL: Did she listen to your mom, if your mom
told her what to do or not to do?
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Harmless error exists if the record demonstrates either: (1) the
error did not prejudice the defendant or the prejudice was de
minimis; or (2) the erroneously admitted [or precluded] evidence
was merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted [or precluded]
evidence; or (3) the properly admitted and uncontradicted
evidence of guilt was so overwhelming and the prejudicial effect
of the error was so insignificant by comparison that the error could
not have contributed to the verdict.
Commonwealth v. Hawkins, 701 A.2d 492, 507 (Pa. 1997).
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[PROSECUTOR]: Objection.
THE COURT: Sustained.
N.T., 2/12/19, at 57.
According to Appellant, N.T.M.’s behavioral issues could have been
related to “another initially-named suspect,”3 and cross-examination could
have revealed fabricated allegations against Appellant “especially because of
the markedly different testimony of N.T.M., who had a prior false report of
rape, and S.T.” with respect to their testimonies regarding sex versus “mere
touching[.]” Appellant’s brief, at 20.
Appellant fails to develop this argument regarding another “initially-
named suspect” any further, nor does he address how he was prejudiced by
the court’s ruling where the jury already had learned about N.T.M.’s false
report in the unrelated rape investigation, her prior misbehaviors in school,
and the difference between her and S.T.’s testimonies regarding the extent of
sexual abuse experienced by S.T. This incomplete argument, therefore,
precludes meaningful appellate review. See Commonwealth v. Knox, 50
A.3d 732, 748 (Pa. Super. 2012) (holding that an appellant's failure to cite
legal authority in support of his argument results in waiver); see also
Pa.R.A.P. 2119(a) (requiring that an argument section contain discussion and
citation of pertinent authorities).
____________________________________________
3 The “initially-named suspect” was N.T.M.’s male cousin, whom M.T.M. falsely
identified as her assailant, pursuant to P.T.’s command.
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In Appellant’s final challenge to the courts’ evidentiary rulings, he posits
that the court improperly precluded cross-examination of N.T.M. and M.T.M.
about whether they and Appellant’s other accusers were “using drugs” during
the time they lived with Appellant. N.T., 2/11/19, at 110; 2/12/19, at 59-60,
196. Because drug use could have affected their ability to perceive and
remember events accurately, Appellant maintains, the question was
appropriate, making the court’s ruling reversible error.
The Commonwealth counters that the trial court correctly excluded such
testimony as unduly prejudicial because it would improperly “‘divert the jury’s
attention away from its duty of weighing the evidence impartially,’ . . . and
would instead focus its attention on the witnesses’ supposed misbehavior or
drug use rather than whether in fact Appellant had sexually abused them.”
Brief of Appellee, at 25-26. (quoting Commonwealth v. Dillon, 925 A.2d
131, 136 (Pa. 2007)). The trial court concurs with the Commonwealth,
opining that the admission of any drug use “would have only served as an
attempt to paint the Complainant in a negative light at trial.” TCO, at 10
(unenumerated).
Upon review of the record, we conclude Appellant has failed to establish
any evidentiary foundation for the proposition that the witnesses, who were
between the ages of 11 and 15 at the relevant times, were in any way
incapable of observing, perceiving, or recollecting Appellant’s conduct that
served as a basis for the charges against him. To the contrary, the detailed
testimony of each complainant, as discussed above in our disposition of
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Appellant’s weight of the evidence claim, reflected a clear memory and firm
understanding of what they had experienced in Appellant’s company.
To have permitted cross-examination as to whether the girls were using
drugs at the time Appellant lived with them would have diverted the focus of
trial inappropriately away from Appellant’s alleged conduct and onto the
personal lives of the alleged victims. The trial court considered the evidence
that had been admitted to that point in trial and concluded that the probative
value of defense counsel’s requested line of questioning was outweighed by
the risk of unfair prejudice. See Dillon, supra. We discern no abuse of
discretion in this ruling.
For the foregoing reasons, we deem Appellant’s issues meritless, and
we affirm judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/13/21
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