Com. v. Long, F. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
FRANKLIN D. LONG :
:
Appellant : No. 3214 EDA 2017
Appeal from the Judgment of Sentence March 16, 2017
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0002941-2016
BEFORE: OTT, J., DUBOW, J., and STEVENS*, P.J.E.
MEMORANDUM BY DUBOW, J.: FILED JUNE 26, 2019
Appellant, Franklin D. Long, appeals from the March 16, 2017 Judgment
of Sentence entered in the Delaware County Court of Common Pleas following
his jury conviction of two counts of Involuntary Deviate Sexual Intercourse
with a Child (“IDSI”) and one count of Indecent Assault of a Person Less than
13 Years of Age.1 After careful review, we affirm Appellant’s convictions, but
vacate his Judgment of Sentence and remand for resentencing.
Appellant is the former step-grandfather of the victim.2 On October 22,
2015, the victim reported to Swarthmore Borough police officers that
Appellant had sexually assaulted him on two occasions between April 1996
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1 18 Pa.C.S. §§ 3123(b) and 3126(a)(7).
2 Appellant and the victim’s grandmother divorced in 2001.
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* Former Justice specially assigned to the Superior Court.
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and July 2001, while the victim was a child.3 The victim, who by the time he
reported these incidents was in his early twenties, alleged that Appellant had
assaulted him in the victim’s family’s home in Swarthmore while Appellant and
the victim’s grandmother were overnight guests. Based on the victim’s report,
police arrested Appellant and charged him with the above crimes.
On July 29, 2016, Appellant filed an Omnibus Pretrial Motion to Quash
the Bills of Information for failing to specify the dates of the offenses with
reasonably sufficient particularity and seeking a competency hearing to
consider the victim’s tender years at the time of the offenses. The trial court
denied Appellant’s Motion.
Following Appellant’s three-day jury trial and subsequent conviction, the
trial court sentenced Appellant to two consecutive terms of five to 10 years’
incarceration, followed by an aggregate probationary period of seven years.
Appellant filed a Post-Sentence Motion, which the trial court denied.
This timely appeal followed. Both Appellant and the trial court complied
with Pa.R.A.P. 1925.
Appellant raises the following eight issues on appeal:
[1.] Did not the lower court err and abuse its discretion, and
violate [Appellant’s] Fifth and Fourteenth Amendment rights
under the Federal Constitution, and Article I, Section 9 of the
Pennsylvania Constitution, by overruling defense objections to the
prosecutor’s comments in the opening and closing statements that
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3The victim was born in July 1993. Thus, during the period in which Appellant
assaulted him, the victim was between two and seven years old. Appellant
was approximately 68 years old at the time of the crimes and 83 years old at
his March 16, 2017 sentencing hearing.
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undermined [Appellant’s] right not to testify and impermissibly
shifted the burden of proof?
[2.] Did not the lower court err and abuse its discretion, and
violate [Appellant’s] right of confrontation under the Federal and
State constitutions, by permitting several witnesses to testify to
hearsay statements purportedly corroborating the incidents; and
further, did not the lower court err, and abuse its discretion, by
allowing a police officer to testify to her opinion about the
credibility of the complainant in violation of Pa.R.E. 701?
[3.] Did not the lower court err in refusing to quash the
information based on the lack of adequate notice under the State
and Federal Constitutions, where the dates of the two criminal
incidents was alleged to have been on some unknown date at least
fifteen years earlier, within a period of over five years?
[4.] Did not the lower court err in refusing to grant a hearing, to
permit [Appellant] to challenge the complainant’s competency to
communicate, observe[,] remember, and comprehend the duty to
speak the truth, at the time of the incidents?
[5.] Did not the lower court err in refusing to declare a mistrial
after the Commonwealth presented highly prejudicial evidence
that the complainant was treated for anxiety and depression, after
defense counsel prejudicially relied upon the Commonwealth’s
representation that he had never received treatment?
[6.] Did not the cumulative impact of the numerous errors
infecting [Appellant’s] trial prejudice him, and deny him due
process and a fair trial under the Pennsylvania and United States
Constitutions?
[7.] Did not the lower court err in failing to afford [Appellant] his
right to allocution at his sentencing?
[8.] Did not the lower court impose a manifestly excessive and
clearly unreasonable sentence contrary to the norms that underlie
the sentencing process and the provisions of 42 Pa.C.S. §
9721(b)?
Appellant’s Brief at 6-7.
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Prosecutor’s Statements
In his first issue, Appellant challenges the trial court’s decision to
overrule his objections to comments the prosecutor made during his opening
and closing arguments.
Appellant bases this challenge on three incidents. First, Appellant
objected after the prosecutor made the following statement in his opening
argument:
[T]his process is not like what you see on television. This process
is not going to be like Law and Order. It’s going to take a lot more
than one hour to conclude. We’re probably going to have starts
and stops, unfortunately. I have this old, rickety projector I have
to deal with. It’s not going to be like the fancy things you see on
television. You’re also probably not going to get some teary-
eyed confession from [Appellant] on the stand at the end
of every episode. It’s going to be a difficult decision that you
guys have to weigh. That’s the part of Law and Order they never
show.
N.T., 10/22/16, at 65-66 (emphasis added). Appellant argued to the court at
sidebar that this statement constituted an “allusion to [Appellant] testifying
or not testifying or giving a confession” and implied to the jury that Appellant
“has to say something or talk.” Id. at 66-67. The court overruled Appellant’s
objection and assured counsel that he would give the jury an appropriate
instruction. Id. at 67.
Appellant next objected to the following statement made by the
prosecutor moments later:
It’s going to be a difficult decision. You’re going to have to go
back there and deliberate. It’s not going to be crystal-clear like it
is at the end of a television episode. And also, as I was saying,
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it’s not going to be like CSI. We’re not going to be able to bring
in here some guy in a lab coat to show you some scientific test
that makes your decision easier. This is a credibility case. I’m
not going to lie to you. This is what a lot of people might go[]
around saying is a he said/she said, or in this case, a he
said/he said. It’s a credibility case. And by all of that, of course,
I don’t mean when I said he said/he said, I don’t mean that
[Appellant] has to testify. Of course he doesn’t. He can sit there
silent, because the Commonwealth has the burden of proof. The
Commonwealth will put forth its evidence, and that evidence will
convince you.
Id. at 68 (emphasis added). Appellant objected to this statement, arguing
that it also alluded to Appellant testifying. Id. at 69. The trial court overruled
this objection, finding that Commonwealth clearly clarified to the jury that
Appellant does not have to testify. Id. The Commonwealth then reminded
the jury that the jury’s job is to determine whether the victim’s testimony is
credible. Id. at 70.
Last, following the Commonwealth’s closing argument, Appellant alleged
that the prosecutor had engaged in impermissible burden-shifting when he
stated that there was “nothing in the evidence” to indicate that the victim was
lying or had a motive to lie. N.T., 10/26/16, at 90. Appellant requested a
curative instruction to the jury that Appellant had no burden to show that the
victim had a motive to lie. Id. In response, the court indicated that it would
“charge the jury generally that [Appellant] has no burden whatsoever in
anything,” but that it would not instruct the jury with any more specificity than
that. Id.
At the conclusion of trial, the judge instructed the jury, inter alia, as
follows:
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It is not [Appellant’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 crimes charged, and that
[Appellant] is guilty of those crimes beyond a reasonable doubt.
A person accused of a crime is not required to present any
evidence or to prove anything in his own defense.
***
You’ll [recall] that [Appellant] exercised his constitutional right not
to testify in this matter. It is entirely up to the [d]efendant in
every criminal trial whether or not to testify. The [d]efendant has
an absolute right founded in the constitution to remain silent. You
must not draw any inference adverse to the [d]efendant from the
fact that he exercised his right to remain silent. Under the law,
every [d]efendant is presumed to be innocent and has the right
to remain silent.
Id. at 93-94, 96.
“Our standard of review for a claim of prosecutorial misconduct is limited
to whether the trial court abused its discretion.” Commonwealth v. Harris,
884 A.2d 920, 927 (Pa. Super. 2005) (citation and quotation marks omitted).
In considering this claim, our attention is focused on
whether the defendant was deprived of a fair trial, not a
perfect one. Not every unwise remark on a prosecutor’s
part constitutes reversible error. Indeed, the test is a
relatively stringent one. Generally speaking, a prosecutor’s
comments do not constitute reversible error unless the
unavoidable effect of such comments would be to prejudice
the jury, forming in their minds fixed bias and hostility
toward [the defendant] so that they could not weigh the
evidence objectively and render a true verdict.
Prosecutorial misconduct, however, will not be found where
comments . . . were only oratorical flair. In order to
evaluate whether comments were improper, we must look
to the context in which they were made.
Id. at 927 (internal citations omitted). See also Commonwealth v. Cash,
137 A.3d 1262, 1273 (Pa. 2016) (same).
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Appellant avers that the prosecutor’s comments “wrongly implicated
[Appellant’s] right to remain silent” and created an expectation that the jury
would hear “two sides to this story.” Appellant’s Brief at 29. He argues that
the prosecutor’s statements “ensured that once [Appellant] did not present
‘his side,’ the jury found that he had not rebutted the accusations and was,
therefore, guilty.” Id. at 30. Appellant further claims that, in stating that
there was no evidence of the victim’s corrupt motive, the Commonwealth
impermissibly shifted the burden of proof to Appellant. Id. Appellant argues
that the court’s curative jury instruction, given at the end of trial, was
insufficient to ensure that the jury would not consider the prosecutor’s
comments. Id. at 31. In sum, Appellant argues that, notwithstanding the
court’s instruction to the jury, the Commonwealth’s references to Appellant
“on the stand,” its use of the term “he said/he said,” its repeated implication
that the jury should expect to hear Appellant testify, and its suggestion that
Appellant presented no evidence of the victim’s corrupt motive, were not
harmless error. Id. at 33.
In its Rule 1925(a) Opinion, the trial court explained that it reviewed
the prosecutor’s opening statement and concluded first that, although the
prosecutor “might be guilty of an inartful use of the colloquial ‘he said/she
said,’” by this statement the prosecutor intended to convey to the jury that
only if it found the victim credible could it find Appellant guilty. Trial Ct. Op.,
1/17/18, at 27. The court also specifically found that the prosecutor did not
intend to reference Appellant’s decision not to testify, and its statement did
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not shift the burden of proof to Appellant. Id. at 28. In evaluating the
prosecutor’s statement in context, the trial court concluded that both the
prosecutor’s intent and the effect of his statement was to “impress upon the
jury that the evidence that must be considered in this ‘real’ trial was much
different than might be seen in a fictional television trial.” Id.
With respect to Appellant’s objection to the prosecutor’s closing
statement, the trial court opined that its jury instruction “eliminated any
possibility that the prosecutor’s comment could jeopardize [Appellant’s]
rights” as the court “directly, clearly[,] and unequivocally instructed the jury
as to the Commonwealth’s burden of proof, the presumption of innocence that
[Appellant] enjoys, his right to remain silent[,] and the constitutional principle
that prohibits the jury from drawing any adverse inference from the fact that
[Appellant] exercised his right to remain silent.” Id. As the court aptly noted,
we presume the jury followed the court’s instructions. Commonwealth v.
Smith, 167 A.3d 782, 790 (Pa. Super. 2017).
We agree with the trial court’s analysis. Following our review of the
prosecutor’s statements, and the context in which he made them, as well as
the court’s instructions to the jury, we find that the trial court properly
exercised its discretion in overruling Appellant’s objections. Accordingly,
Appellant is not entitled to relief on this claim.
Hearsay
In his second issue, Appellant claims the trial court erred in allowing the
victim’s friend, the victim’s mother, and Swarthmore Borough Police Officer
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Ann Marie Bardo to testify about the victim’s revelations of abuse to them over
Appellant’s hearsay objection. Appellant’s Brief at 34.
Our standard of review concerning a challenge to the admissibility of
evidence is as follows:
The admissibility of evidence is a matter for the discretion of the
trial court and a ruling thereon will be reversed on appeal only
upon a showing that the trial court committed an abuse of
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous.
Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and
quotation marks omitted).
Hearsay is an out-of-court statement offered for the truth of the matter
asserted. Pa.R.E. 801(c). It is generally inadmissible unless it falls within one
of the exceptions to the hearsay rule delineated in the Rules of Evidence.
Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012). “An out-of-court
statement is not hearsay when it has a purpose other than to convince the
fact finder of the truth of the statement[,]” such as motive or the effect on
the listener. Id. See also Daniel J. Anders, Ohlbaum on the Pennsylvania
Rules of Evidence § 801.11[1] et seq. (2017 ed.).
Lay witnesses may offer an “opinion [that] is limited to one that is []
rationally based on the witness’s perception; [] helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and
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[] not based on scientific, technical, or other specialized knowledge[.]”
Pa.R.E. 701.
In particular, Appellant complains that the court erred in permitting the
victim’s friend to testify that the victim told him that “some fucked up shit
happened to me between me and my grandfather . . . in a bedroom.”
Appellant’s Brief at 35. He further complains that the court erred in permitting
the victim’s mother to testify that the victim told her “I was sexually abused.”
Id. Appellant argues that in admitting this testimony, the court violated his
constitutional rights to confrontation and due process. Id. He also asserts
that the admission of this hearsay testimony “improperly, and serially,
bolstered the account of the [victim].” Id.
Finally, Appellant baldly claims that Officer Bardo “provided a litany of
‘very detailed’ hearsay, not only from the [victim], but from [the victim’s
mother], and that the trial court violated Pa.R.E. 701 when it permitted Officer
Bardo to give her opinion as to the detail, specificity, and veracity of the
victim’s allegations. Id.
The Commonwealth argues that the trial court properly admitted the
testimony of these three witnesses in response to Appellant’s reference in his
opening statement to the victim’s disclosures. Commonwealth’s Brief at 13.
The Commonwealth avers that it offered the subject testimony to rebut
Appellant’s statement that “at the end of this trial . . . none of us are going to
know what [the victim’s] motivation was to make this story up.” Id. (quoting
N.T., 10/25/16, at 77).
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Contrary to Appellant’s assertions, the statements to which he lodged
objections were not hearsay statements because the Commonwealth did not
offer them for the truth of the matter asserted. Rather, the record reflects
that the Commonwealth offered this testimony to rebut Appellant’s charge
that the victim had fabricated the allegations against Appellant. See
Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004)
(explaining that Pa.R.E. 613(c)(1) allows evidence of a witness’s prior
consistent statement to rebut a charge of “fabrication, bias, improper
influence or motive, or faulty memory”). The trial court considered that the
statements did not contain details of the assaults, but rather pertained
exclusively to the manner in which the victim revealed his sexual abuse. It
then properly held that “the circumstances of the [v]ictim’s revelations as well
as his demeanor” were relevant to the victim’s credibility, which Appellant had
put at issue from the outset. Trial Ct. Op. at 23. Based on our review of the
record and the relevant authority, we agree with the trial court’s analysis. The
trial court did not abuse its discretion in admitting this testimony. Appellant
is, therefore, not entitled to relief on this claim.
Motion to Quash
In his third issue, Appellant claims the trial court erred in not quashing
the Criminal Information, because the “Commonwealth failed to fix with
reasonable certainty the date upon which the two incidents [of abuse]
occurred.” Appellant’s Brief at 41-42 (citing Commonwealth v. Devlin, 333
A.2d 888 (Pa. 1975)). He avers that this violated his constitutional rights and
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violated Pa.R.Crim.P. 560(B)(3). Id. He claims that both the five-year period
during which the alleged offenses occurred and the “exceedingly long over
fifteen-year expanse of pre-accusation delay” were egregious and prejudicial
to him. Id. at 41-42.
Our standard of review in assessing whether a trial court erred in
quashing a criminal information is well settled. We review the trial court’s
decision to grant or deny a motion to quash a criminal information or
indictment for an abuse of discretion. Commonwealth v. Wyland, 987 A.2d
802, 804 (Pa. Super. 2010) (citations and quotation marks omitted). We will
reverse the trial court’s order only where the court has clearly abused its
discretion. Id.Although it “is the duty of the prosecution to fix the date when an alleged
offense occurred with reasonable certainty . . . the Commonwealth does not
always need to prove a single specific date of an alleged crime.”
Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa. Super. 2006) (citations
omitted).
With respect to allegations of child sexual abuse, we afford the
Commonwealth broad latitude when attempting to ascertain the date of the
incidents. See Commonwealth v. Niemetz, 422 A.2d 1369, 1373 (Pa.
Super. 1980) (concluding that time is not of the essence in matters involving
rape, IDSI, indecent assault of children, and corruption of minors);
Commonwealth v. Groff, 548 A.2d 1237, 1241 (Pa. Super. 1998)
(explaining that “the [C]ommonwealth must be allowed a reasonable measure
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of flexibility when faced with the special difficulties involved in ascertaining
the date of an assault upon a young child,” given that when the victim is a
young child it can be almost impossible to ascertain the exact date when a
crime occurred); Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 (Pa.
Super. 2007) (“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 conduct.”).
Appellant relies on Devlin, supra, in support of his allegation that the
Commonwealth’s failure to give him sufficiently specific notice of when the
assaults occurred rendered him unable to prepare a defense. In Devlin, the
Commonwealth charged the defendant with sodomizing a mentally challenged
adult who had the mental ability of a first- or second-grade child and the
emotional stability of an even younger child. The Commonwealth alleged that
the crime occurred at some unspecified time during a 14-month period. The
defendant argued that the Commonwealth’s allegation as to the time of the
crime was so vague that it precluded him from preparing an effective defense
to the charges, and our Supreme Court agreed. Importantly, however, the
Supreme Court declined to adopt a per se rule concerning the length of the
time-period in which the Commonwealth must establish that the defendant
had committed the crime. Devlin, 333 A.2d at 892. The Court emphasized
that a case-by-case inquiry, which considered the nature of the crime and the
age of the victim, was appropriate, and the Commonwealth must only fix the
date of the offense “with reasonable certainty.” Id. at 890-92.
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In this case, the trial court considered the facts and the controlling
authority and concluded that the Commonwealth had fixed the time frame of
the charged offenses with “reasonable certainty” considering the age of the
victim at the time of the alleged crimes. The court observed:
The Commonwealth’s inability to identify with more specificity the
dates on which these assaults occurred did not deprive [Appellant]
of adequate notice in this case. While [Appellant] has alleged a
deprivation of his right to prepare a defense generally, he has not
specified in what ways his defense was hampered. The [v]ictim
was a very young boy. Although he could remember vividly
details of the assault[,] he could not attach an exact age or date,
except that he knew the incidents occurred around the time that
he was in kindergarten or early elementary school. He clearly
knew that they occurred in the house on University Place.
Testimony from his mother confirmed that the family lived there
from 1996 to 2001. The date of the offense is not an element of
the offenses charged. [ ] During the period in question [Appellant]
frequently visited the [v]ictim’s home on holidays and for
overnight visits. The assaults occurred during these periodic
visits. There is no suggestion that an alibi defense was a
possibility give the ongoing familial interactions and the passage
of time. These circumstances[,] however[,] do not protect
[Appellant] from prosecution, nor should they.
Trial Ct. Op., at 18-19.
Following our review, we conclude that given the nature of the crimes,
the age of the victim, and the fact that the date of the offense is not an
element of the charged crimes, we conclude that the trial court did not abuse
its discretion in finding that the Commonwealth gave adequate notice to
Appellant of the dates of the offenses. Appellant’s claim that the court
improperly denied his Motion to Quash, thus, fails.
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Failure to Hold a Competency Hearing
In his fourth issue, Appellant claims that the trial court erred in denying
his request for a hearing to determine the victim’s retrospective competency
to observe and remember the assaults at the time they occurred. Appellant’s
Brief at 47-49. Appellant concedes that there is no “Pennsylvania Supreme
Court precedent addressing the issue of a retrospective competency
determination” in the context of a competent adult reporting and testifying
about his victimization as a child. Id. at 48. Rather, Appellant alleges that
because he could have challenged the minor-victim’s competency at the time
of the offenses if he had reported them contemporaneously, he is similarly
entitled to challenge the victim’s competency at the time of the offenses. Id.
Thus, Appellant concludes that “a retroactive competency hearing was
required.” Id.
Appellant avers that Pa.R.E. 601(a)(1) entitles him to “develop and
present such evidence to determine if a young child was competent at the
time of the event.” Id.
Pennsylvania Rule of Evidence 601 does not, however, include a
subsection (a)(1). Pa.R.E. 601(a) provides that “[e]very person is competent
to be a witness except as otherwise provided by statute or in these rules.”
Pa.R.E. 601(a). Pa.R.E. 601(b)(1) provides exceptions to the general rule that
every person is presumed competent. Pa.R.E. 601(b)(1)-(4).
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Generally, we presume that an adult witness is competent to testify,
and the burden falls on the objecting party to demonstrate that a witness is
incompetent. Commonwealth v. Walter, 93 A.3d 442, 451 (Pa. 2014).
However, in Commonwealth v. Smith, 167 A.3d 782 (Pa. Super. 2007), this
Court noted that “the presumption [of competency] does not arise where a
child witness is under age [14].” Smith, 167 A.3d at 789.
Here, the victim was an adult when he testified at Appellant’s trial.
Thus, the law presumes that he was competent to testify. Appellant did not
present evidence to rebut that presumption. Thus, we discern no error in the
trial court’s denial of a competency hearing based on its conclusion that “the
[23-]year old victim’s ability to recall correctly and to remember the events in
question does not raise a question of competency.” Trial Ct. Op. at 14.
Denial of Request for a Mistrial
In his fifth issue, Appellant claims the trial court erred when it refused
to declare a mistrial after the Commonwealth presented evidence that the
victim had received treatment for anxiety and depression. Appellant’s Brief
at 50-51. He argues that the Commonwealth had previously represented that
the victim had not received treatment for those conditions, so that when the
Commonwealth later elicited testimony that the victim suffered from
depression and anxiety, Appellant was unfairly surprised and prejudiced.4 Id.
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4 Appellant avers he suffered prejudice because defense counsel had argued
in his opening statement that the victim had a “lack of treatment for any
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at 52. Appellant concedes that the Commonwealth was not required to
disclose that the victim had received treatment for anxiety and depression.
Id. He argues, however, that pursuant to Pa.R.Crim.P. 573(D),5 once the
Commonwealth learned that the victim had received such treatment, the
Commonwealth had a duty to disclose it. Id. The Commonwealth maintains
that it was not aware that the victim had received treatment for anxiety and
depression before the victim disclosed it at trial, and, thus, it could not have
produced this information to Appellant in discovery. Commonwealth’s Brief at
24-25.
Our standard of review with regard to denial of motion for mistrial is as
follows:
A motion for a mistrial is within the discretion of the trial court. A
mistrial upon motion of one of the parties is required only when
an incident is of such a nature that its unavoidable effect is to
deprive the appellant of a fair and impartial trial. It is within the
trial court's discretion to determine whether a defendant was
prejudiced by the incident that is the basis of a motion for a
mistrial. On appeal, our standard of review is whether the trial
court abused that discretion.
Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa. Super. 2014) (citation
omitted).
The victim testified at trial that he confided in his friend that when he
was in tenth grade he was “suffering from a lot of depression and anxiety.”
____________________________________________
distress of symptoms related to childhood sexual abuse.” Appellant’s Brief at
50. Thus, the victim’s testimony “eviscerated” Appellant’s defense. Id.5 Pa.R.Crim.P. 573(D) provides that a party has a continuing duty prior to and
during trial to disclose additional evidence or material previously requested in
discovery. Pa.R.Crim.P. 573(D).
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N.T., 10/25/19, at 100, 103. The victim also testified that he had told his
mother about his anxiety and saw his pediatrician for treatment. Appellant’s
counsel objected to this testimony because the Commonwealth had not
provided him with the victim’s mental health treatment records and the victim
was not qualified to give an expert opinion. Id. at 101. The court overruled
Appellant’s objection, whereupon Appellant moved for a mistrial. The
Commonwealth represented that it was not aware of any existing mental
health treatment records. The court took the motion under advisement, and
permitted Appellant to put the fact that no records of mental health treatment
existed on the record. Id. at 105.
During cross-examination, Appellant’s counsel questioned the victim
about the anxiety and depression that he claimed to have suffered. The victim
testified that he did not remember telling the Commonwealth about it prior to
trial.
The trial court found credible the victim’s testimony that he had not
previously informed the Commonwealth that he had sought treatment for
anxiety and depression. Therefore, the trial court concluded that the
Commonwealth did not commit a discovery violation, and denied Appellant’s
Motion for a Mistrial.
Following our review of the record, we find that the trial court properly
exercised its discretion in denying Appellant’s Motion. This claim, therefore,
does not garner Appellant relief.
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Cumulative Impact of Errors
In his sixth issue, Appellant claims that he has been prejudiced and
denied his due process rights owing to the cumulative impact of the numerous
errors alleged supra. Appellant’s Brief at 55. Appellant has failed to support
this claim with citation to any relevant case law. Accordingly, we find this
issue waived. See Pa.R.A.P. 2119(a); Commonwealth v. Perez, 93 A.3d
829, 838 (Pa. 2014) (claims failing to advance developed argument or citation
to supporting authorities and record are waived).
Moreover, even if Appellant had not waived this claim, he would not be
entitled to relief. It is well-settled that “where a claimant has failed to prove
prejudice as the result of any individual errors, he cannot prevail on a
cumulative effect claim unless he demonstrates how the particular cumulation
requires a different analysis.” Commonwealth v. Wright, 961 A.2d 119,
158 (Pa. 2008). Appellant has failed to do so here.
Right to Allocute
In his seventh issue, Appellant contends that we should remand this
case for resentencing because the trial court erred in sentencing Appellant
before offering him an opportunity to address the court. Appellant’s Brief at
56. We are constrained to agree.
Pa.R.Crim.P. 704(C)(1) provides, in relevant part, that “[a]t the time of
sentencing, the judge shall afford the defendant the opportunity to make a
statement[.]” Pa.R.Crim.P. 704(C)(1); see also 42 Pa.C.S. § 9752 (providing
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that the court shall “[a]fford to the defendant the right to make a
statement.”); Commonwealth v. Hardy, 99 A.3d 577, 580 (Pa. Super.
2014) (the trial court’s failure to inform the defendant of his right to allocution
and to afford an opportunity for allocution prior to imposing sentence is
reversible error).
“What effect the exercise of the right of allocution might have on the
subjective process of sentencing can never be known with such certainty that
a reviewing court can conclude there was no prejudice in its absence.”
Commonwealth v. Thomas, 553 A.2d 918, 919 (Pa. 2003). “The
significance of allocution lies in its potential to sway the court toward leniency
prior to imposition of sentence. Permitting the defendant to speak after
sentence has been imposed fails to meet the essence of the right of
allocution.” Commonwealth v. Hague, 840 A.2d 1018, 1020 (Pa. Super.
2003).
In the instant case, the court sentenced Appellant prior to offering him
the opportunity to make a statement. Upon being informed of the oversight,
the court both provided Appellant with the opportunity to make a statement
to the court—and Appellant availed himself of the opportunity—and informed
Appellant that the court would consider Appellant’s statement and “make any
changes I feel might be necessary as a result thereof.” N.T., 3/26/17, at 78.
Notwithstanding the trial court’s attempts to cure its failure to notify
Appellant of his right to allocute prior to sentencing, our case law is clear that
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this failure constituted reversible error. We, therefore, vacate Appellant’s
sentence and remand for resentencing.6
Convictions affirmed. Judgment of Sentence vacated. Case remanded
for resentencing. Jurisdiction relinquished.
Judge Ott joins the memorandum.
President Judge Emeritus Stevens files a Concurring and Dissenting
memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/26/19
____________________________________________
6 In light of our disposition of this issue, we need not address Appellant’s final
claim in which he challenges the discretionary aspects of his sentence.
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