Com. v. Corliss, J. ( 2017 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
JUSTIN CORLISS, : No. 108 EDA 2017
:
Appellant :
Appeal from the Judgment of Sentence, October 7, 2016,
in the Court of Common Pleas of Monroe County
Criminal Division at Nos. CP-45-CR-0001749-2013,
CP-45-CR-0002173-2013
BEFORE: LAZARUS, J., MOULTON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED DECEMBER 08, 2017
Appellant, Justin Corliss appeals, pro se, from the October 7, 2016
judgment of sentence in the Court of Common Pleas of Monroe County.
After careful review, we affirm.
A previous panel of this court recited the following factual history:
[Appellant] operated a pet store in Monroe County.
In 1993, [appellant] commenced a romantic
relationship with his coworker, K.V. Shortly
thereafter, [appellant] moved in the residence K.V.
shared with her minor daughter, R.V. In 1995, when
R.V. was approximately nine years old, [appellant]
began to molest R.V. At first, [appellant] would
tickle R.V. when they played together. [Appellant’s]
behavior escalated, however, and he began placing
his hands down R.V.’s pants. [Appellant] digitally
penetrated R.V. on multiple occasions between 1995
and 1997. The abuse occurred at K.V.’s residence,
often while K.V. was in another room. On one
occasion, [appellant] inappropriately touched R.V.
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during a car trip to New York. The molestation
continued until 1997, when [appellant] moved out of
K.V.’s residence. R.V. did not immediately report the
abuse.
In 1996, fourteen-year old [D.B.1] began to work at
[appellant’s] pet store. [D.B. ]’s father was a regular
customer at the pet store, and [appellant] had
known [D.B.] since she was eleven years old. After
[D.B.] started working at the pet store, [appellant]
would tickle her. [Appellant’s] behavior escalated,
and he began placing his hands down [D.B.]’s pants.
Eventually, [appellant] and [D.B.] engaged in sexual
intercourse. [Appellant] also performed oral sex on
[D.B.] on multiple occasions.
The abuse occurred at the pet store during regular
business hours. On two occasions, [D.B.]’s twelve-
year-old friend witnessed the sexual activity.
[Appellant] also fondled [D.B.] during car trips to
New York. [D.B.] testified that [appellant] took her
on these trips “almost every single Monday” to pick
up supplies for the pet store. In addition to the
liaisons at work, [appellant] molested [D.B.] at
K.V.’s residence at least once. In 1997, [D.B.]’s
mother learned about the abuse and immediately
informed the police.
At No. 743 of 1997, the Commonwealth charged
[appellant] with multiple offenses related to the
molestation of [D.B.] Following a trial in 1998, a
jury convicted [appellant] of two (2) counts of
statutory sexual assault and one (1) count each of
aggravated indecent assault, indecent assault, and
corruption of minors. On August 20, 1998, the
[trial] court sentenced [appellant] to an aggregate
term of four (4) to ten (10) years’ imprisonment.
This Court affirmed the judgment of sentence on
November 30, 1999. See Commonwealth v.
1 At the time of appellant’s 1998 trial, D.B. was known as D.G. For the
purposes of continuity, we will refer to her as D.B. throughout this
memorandum.
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Corliss, 750 A.2d 366 (Pa.Super. 1999)
(unpublished memorandum).
Prior to the start of the 1998 trial, [appellant] met
C.T. at the pet store. [Appellant] and C.T. married,
and C.T. became pregnant before [appellant’s]
sentencing hearing. C.T. gave birth to [appellant’s]
daughter, C.C., in 1999 while [appellant] was
incarcerated. [Appellant] remained incarcerated
until 2008. Upon his release, [appellant] returned to
live with C.T. and C.C. C.T. had no concerns about
[appellant] being around C.C., because [appellant]
had convinced C.T. that he was actually innocent of
the charges pertaining to [D.B.]
When [appellant] would play with C.C., C.T. noticed
that [appellant] tickled the child and scratched the
child’s back. The tickling started to bother C.C., and
she asked [appellant] not to touch her, but C.T. did
not intervene. [Appellant’s] relationship with C.T.
ended in 2010, after C.T. discovered that [appellant]
was having an affair with another teenager. In
2013, C.C. informed C.T. that [appellant] had
molested her. C.C. claimed that [appellant] would
put his hands down her pants and touch her vagina,
exposed his penis to C.C., and attempted to force
the child to perform oral sex on him.
Police arrested [appellant] for the offenses against
C.C. in July 2013. The media reported on
[appellant’s] arrest, and R.V. saw the coverage.
R.V. decided to contact police and inform them of the
abuse she suffered from 1995 until 1997. At
No. 1749 of 2013, the Commonwealth charged
[appellant] with sex offenses committed against C.C.
At No. 2173 of 2013, the Commonwealth charged
[appellant] with sex offenses committed against
R.V.[Footnote 1] On September 24, 2013, the
Commonwealth informed [appellant] that Nos. 1749
and 2173 of 2013 would be joined for trial.
[Appellant] filed counseled pretrial motions on
October 3, 2013, including a motion to sever the
cases. Ultimately, the [trial] court granted
[appellant’s] motion to sever the cases for trial.
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[Footnote 1:] At No. 1748 of 2013, the
Commonwealth also charged [appellant]
with offenses related to his failure to
register with state police pursuant to
Megan’s Law. The matters of No. 1748
of 2013 are not at issue in this appeal.
Commonwealth v. Corliss, No. 2091 EDA 2014, unpublished
memorandum (Pa.Super. filed July 14, 2015).
The trial court provided the following procedural history:
[Appellant] was convicted by a jury on June 1, 2016
of various offenses following a trial in which these
two (2) cases were consolidated. In case #1749 CR
2013, [appellant] was convicted of Count 1,
Involuntary Deviate Sexual Intercourse With a Child;
Count 2, Criminal Attempt Involuntary Deviate
Sexual Intercourse With a Child; Count 3, Indecent
Assault; Count 4, Indecent Exposure; Count 5,
Incest; Count 6, Endangering the Welfare of a Child;
and, Count 7, Corruption of a Minor.[2 Appellant]
was convicted in case #2173 CR 2013 of Court 1,
Aggravated Indecent Assault;[3] and Count 2,
Aggravated Indecent Assault. . . .
[Appellant] was deemed a sexually violent predator
(“SVP”) on September 29, 2016 following a hearing,
which subjects him to mandatory lifetime sexual
offender registration requirements. [Appellant] was
then sentenced on October 7, 2016 in case #1749
CR 2013 to a total confinement of 360 months
(30 years) minimum to 720 months (60 years)
maximum. [Appellant] was sentenced on October 7,
2016 in case #2173 CR 2013 to a total confinement
of 108 months (9 years) minimum to 216 months
(18 years) maximum. The sentence in case #2173
2 18 Pa.C.S.A. §§ 3123(b), 901, 3126, 3127, 4302, 4304, 6301, and 3125,
respectively.
3 18 Pa.C.S.A. § 3125.
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was run consecutive to case #1749 for a total period
of incarceration of 468 months (39 years) to
936 months (78 years). [Appellant] has filed timely
post-sentence motions.
[Appellant] was initially represented in these matters
by private counsel, Robert Saurman, Esquire, who
filed omnibus pre-trial motions on behalf of
[appellant. Appellant] then fired his legal counsel
and proceeded pro se following a hearing in which a
colloquy was given to [appellant] concerning his
right to counsel, a listing of the offenses and
maximum penalties if convicted, and that [appellant]
was making a voluntary waiver of counsel. The
Court also appointed stand-by counsel for [appellant.
Appellant] then represented himself pro se in filing
various motions and appeals to Orders. The matter
was set for trial and [appellant] then retained private
counsel prior to the start of trial.
[Appellant] terminated the services of his trial
counsel soon after the trial, and again proceeded to
represent himself following a hearing on his motion
to proceed pro se. [Appellant] was given another
colloquy on his pro se representation at that time.
[Appellant] represented himself at sentencing held
on October 7, 2016. Following sentencing,
[appellant] filed post-sentence motions pro se. He
then retained counsel to represent him on the post-
sentence issues and counsel was afforded additional
time to file any additional post-sentence motions.
Counsel timely filed additional post-sentence
motions. [Appellant] then filed a motion to proceed
pro se once again, and his counsel also filed a
motion to withdraw. Following a hearing held on
November 23, 2016, and a colloquy placed on the
record, [appellant] was allowed to proceed pro se on
his post-sentence motions.
Trial court opinion, 12/15/16 at 1-3.
The trial court granted appellant’s post-sentence motions in part and
denied appellant’s post-sentence motions in part. Specifically, appellant’s
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motion to reconsider his sentence for endangering the welfare of a child was
granted, and his sentence was reduced from 2-4 years’ incarceration to be
served concurrently with his other sentences to 1-2 years’ incarceration to
be served concurrently with his other sentences. (Notes of testimony,
10/7/16 at 84; trial court order, 12/15/16).
Appellant filed a notice of appeal on January 3, 2017. The trial court
ordered appellant to produce a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b) on January 4, 2017. Appellant timely
complied with the trial court’s order on January 20, 2017. On January 23,
2017, the trial court issued an opinion pursuant to Pa.R.A.P 1925(a).
Appellant raises the following issues for our review:
1. Whether a judgment of acquittal or an arrest of
judgment must issue as to six crimes convicted
of when the jury did not render a decision as to
the challenged element of negating the statute
of limitations.
2. Whether the testimony of complainant C.C.
was sufficient to meet the elements of
involuntary deviate sexual intercourse and
incest.
3. Whether testimony of intercourse, that
conflicts with incontrovertible DNA evidence,
and other false testimony suborned by ADA
Rakaczewski from bad acts witness Danielle
Brink, violates the 5th, 6th, and 14th
Amendments to the U.S. Constitution requiring
the conviction to be vacated.
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4. Whether the trial court’s representation of the
exculpatory DNA evidence is violative (sic) of
the right to due process of law.[4]
5. Whether Rakaczewski’s deliberate omission of
exculpatory evidence and known credibility
challenges, as to complainant C.C., violated
[appellant’s] right to due process of law, as
guaranteed through the U.S. Constitution,
warranting that the conviction and sentence be
vacated.
Appellant’s brief at 4.
I.
In his first issue, appellant raises the issue of whether the jury was
provided with proper instructions pertaining to the statute of limitations.
Specifically, appellant avers that the statute of limitations had expired for
the following charges: aggravated indecent assault, indecent assault,
indecent exposure, corruption of minors, and endangering the welfare of
children. (See appellant’s brief at 10-11.)
A statute of limitations defense is properly raised prior to trial in an
omnibus motion to dismiss the charges. Commonwealth v. Corban Corp.,
909 A.2d 406, 411 (Pa.Super. 2006), affirmed, 957 A.2d 274 (Pa. 2008),
citing Commonwealth v. Rossetti, 863 A.2d 1185, 1190 (Pa.Super. 2004),
appeal denied, 878 A.2d 864 (Pa. 2005); Commonwealth v. Groff, 548
A.2d 1237, 1244 (Pa.Super. 1988). “The Commonwealth bears the burden
to establish that a crime as charged was committed within the applicable
4 Issue 4 is identified by appellant as a “subquestion” under his third issue.
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statute of limitations period.” Corban Corp., 909 A.2d at 411, citing Groff,
548 A.2d at 1248. A defendant must raise a statute of limitations defense
pretrial; otherwise, the defense is waived. Id. at 1245 n.8, citing
Commonwealth v. Darush, 459 A.2d 727, 730 n.4 (Pa. 1983).
If the statute of limitations defense poses a question
of law, the judge may decide the issue pretrial or at
an appropriate time during trial. If the statute of
limitations poses a question of fact, the judge should
not decide the question but should present the
question for jury consideration.
Groff, 548 A.2d at 1248, n.8. “Where the date of discovery of criminal acts
is unrebutted, the issue of whether the statute of limitations for prosecution
has run is a question of law for the trial judge.” Corban Corp., 909 A.2d at
410, citing Commonwealth v. Hoffman, 398 A.2d 658, 661 (Pa.Super.
1979).
Upon a review of the record, we find that appellant properly raised a
statute of limitations defense when he filed a pro se amended omnibus
pretrial motion on January 21, 2014, seeking dismissal of the following
charges due to the expiration of the statute of limitations: indecent assault,
indecent exposure, endangering the welfare of children, and corruption of
minors. Accordingly, appellant has sufficiently preserved this issue for
appellate review, and we shall review this issue on its merits.
Appellant, citing 42 Pa.C.S.A. § 5552(a), avers that the
Commonwealth failed to initiate criminal proceedings against appellant
within the statutory two-year time period. Appellant’s reliance, however, is
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misplaced. The Commonwealth charged appellant with four offenses subject
to the exceptions to the two-year statute of limitations found in 42 Pa.C.S.A.
§ 5552(c)(3). Subsection 5552(c)(3) provides, in relevant part,
(3) Any sexual offense committed against a minor
who is less than 18 years of age any time up to
the later of the period of limitation provided by
law after the minor has reached 18 years of
age or the date the minor reaches 50 years of
age. . . .
42 Pa.C.S.A. § 5552(c)(3).
Appellant further avers that the Commonwealth failed to “allege any
statement in the Information as to any claimed tolling or an exception to the
statute of limitations . . . .” (Appellant’s brief at 13.) Our supreme court
has held, however, that the Commonwealth is not required to include any
notice of tolling or exceptions to the statute of limitations in the criminal
information, so long as the defendant is not prejudiced. Commonwealth v.
Stockard, 413 A.2d 1088, 1092 (Pa. 1980). Specifically, the court stated:
The fact that the Commonwealth did not allege in the
[complaint] that it would seek to toll the statute of
limitations is of no consequence [if] there is no
prejudice to [defendant.] The Commonwealth did
inform [defendant] of the tolling of the statute of
limitations when the Commonwealth filed its answer
to [defendant’s] motion to dismiss the complaint.
. . . As long as a defendant, some reasonable time
before trial, is [apprised] that the Commonwealth
will seek to toll the statute of limitations, the due
process requirements of notice are met.
Id., quoted by Commonwealth v. Morrow, 682 A.2d 347, 349 (Pa.Super.
1996), appeal denied, 693 A.2d 587 (Pa. 1997). In Morrow, similarly to
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the defendant in Stockard, the Commonwealth responded to an omnibus
pretrial motion seeking dismissal on the grounds of the expiration of the
statute of limitations with a written notice of intention to toll the statute. Id.This court found that the defendant was not prejudiced, as he was
“adequately and timely informed of the Commonwealth’s intentions,” prior to
trial.” Id. In Commonwealth v. Russell, 938 A.2d 1082, 1088 (Pa.Super.
2007), appeal denied, 956 A.2d 434 (Pa. 2008), this court reaffirmed that
the Commonwealth satisfies the notice requirement so long as it notifies the
defendant of its intention to toll the statute of limitations at a reasonable
time before trial.
Here, appellant filed an amended omnibus pretrial motion on
January 21, 2014. The Commonwealth subsequently filed a written notice of
tolling of the statute of limitations on February 24, 2014 -- over two years
before the start of trial on May 31, 2016. We, therefore, find that the
Commonwealth provided adequate written notice of its intent to toll the
statute of limitations within a reasonable time before trial. Accordingly,
appellant’s first issue is without merit.
II.
Appellant next challenges the sufficiency of the evidence, particularly
as it pertains to C.C.’s testimony relating to appellant’s convictions of
involuntary deviate sexual intercourse (“IDSI”) and incest.
In reviewing the sufficiency of the evidence, we view
all evidence admitted at trial in the light most
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favorable to the Commonwealth, as verdict winner,
to see whether there is sufficient evidence to enable
[the fact finder] to find every element of the crime
beyond a reasonable doubt. This standard is equally
applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to the
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
Moreover, when reviewing the sufficiency of the
evidence, the Court may not substitute its judgment
for that of the fact finder; if the record contains
support for the convictions, they may not be
disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations
omitted), appeal denied, 89 A.3d 661 (Pa. 2014). The Commonwealth
may satisfy its burden of proving a defendant’s guilt beyond a reasonable
doubt by using wholly circumstantial evidence. Commonwealth v. Diggs,
949 A.2d 873, 877 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009).
This court has also previously stated that the uncorroborated
testimony of a victim of a sexually based offense is sufficient to uphold a
conviction, so long as the testimony is believed by the trier-of-fact.
Commonwealth v. Trippett, 932 A.2d 188, 194 (Pa.Super. 2007), citing
Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa.Super. 2006). A
fact-finder is free to believe all, part, or none of the evidence, including
uncorroborated testimony, presented. Commonwealth v. Mosley, 114
A.3d 1072, 1087 (Pa.Super. 2015) (citations omitted), appeal denied, 166
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A.3d 1215 (Pa. 2017). Therefore, how much credibility and weight is given
to the uncorroborated testimony is fully within the exclusive purview of the
fact-finder.
In the instant case, after reviewing the evidence presented, cast in the
light most favorable to the Commonwealth, as verdict winner, we find that
the evidence is sufficient to warrant the jury’s convictions for IDSI and
incest.
IDSI is defined, in relevant part, as:
(b) Involuntary deviate sexual intercourse
with a child.--A person commits involuntary
deviate sexual intercourse with a child, a
felony of the first degree, when the person
engages in deviate sexual intercourse with a
complainant who is less than 13 years of age.
18 Pa.C.S.A. § 3123(b). The General Assembly defined “deviate sexual
intercourse” as:
[s]exual 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.A. § 3101; see also Commonwealth v. Kelley, 801 A.2d 551,
555 (Pa. 2002), citing Commonwealth v. Lee, 638 A.2d 1006 (Pa.Super.
1994), appeal denied, 647 A.2d 898 (Pa. 1994) (interpreting sexual
intercourse and deviate sexual intercourse to include acts of oral and anal
sex).
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During the trial, C.C. testified that she was born on February 16, 1999,
and was 17 years old at the time of trial. (Notes of testimony, 5/31/16 at
88.) At the time that appellant lived with C.C., C.C. was 10 years old. (Id.
at 89.) C.C. also testified that appellant touched her chest and vagina,
exposed his penis, tried to place his penis in her mouth, and put his mouth
directly on her vagina. (Id. at 94-95.) We find that this testimony supports
the jury’s guilty verdict for IDSI. See generally Commonwealth v.
Mawhinney, 915 A.2d 107, 111 (Pa.Super. 2006), appeal denied, 932
A.2d 1287 (Pa. 2007) (finding that the victim’s testimony describing
elements of IDSI is sufficient evidence to warrant conviction).
Appellant next avers that the Commonwealth failed to sufficiently
prove the elements of incest to warrant a conviction. Specifically, appellant
claims that a civil finding by default establishing paternity of C.C. does not
“prove[] paternity beyond a reasonable doubt,” and that such a question
should have been submitted to the jury. (Appellant’s brief at 26.) Upon a
review of the record, however, that question was submitted to the jury.
During the trial court’s jury instructions, the jury was instructed that it was
required to find, beyond a reasonable doubt, that appellant “had sexual
intercourse with a descendant of the whole or half blood. This relationship
includes blood relationships with regard to legitimacy.” (Notes of testimony,
6/1/16 at 86.) Our supreme court has held that juries are presumed to
follow the instructions of the court. Commonwealth v. Brown, 786 A.2d
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961, 971 (Pa. 2001), cert. denied, 537 U.S. 1187 (2003). Our review of
the record reflects that the Commonwealth sufficiently presented evidence
proving beyond a reasonable doubt that C.C. is appellant’s natural daughter,
and appellant’s claim is without merit.
Appellant further avers that incest is a lesser included offense to IDSI,
and that the two offenses merge for sentencing purposes. Incest is defined
as:
(a) General rule.--Except as provided under
subsection (b), a person is guilty of incest, a
felony of the second degree, if that person
knowingly marries or cohabits or has sexual
intercourse with an ancestor or descendant, a
brother or sister of the whole or half blood or
an uncle, aunt, nephew or niece of the whole
blood.
(b) Incest of a minor.--A person is guilty of
incest of a minor, a felony of the second
degree, if that person knowingly marries,
cohabits with or has sexual intercourse with a
complainant who is an ancestor or descendant,
a brother or sister of the whole or half blood or
an uncle, aunt, nephew or niece of the whole
blood and:
(1) is under the age of 13 years . . .
(c) Relationships.--The relationships referred to
in this section include blood relationships
without regard to legitimacy, and relationship
of parent and child by adoption.
18 Pa.C.S.A. § 4302.
A court is precluded “from merging sentences when each offense
contains a statutory element that the other does not.” Commonwealth v.
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Raven, 97 A.3d 1244, 1250 (Pa.Super. 2014), appeal denied, 105 A.3d
736 (Pa. 2014), citing Commonwealth v. Baldwin, 985 A.2d 830, 834 (Pa.
2009). In Commonwealth v. White, this court found that “the
Commonwealth suffered two injuries” through the defendant’s single act
when he engaged in forcible sexual intercourse (rape) and engaged in sexual
intercourse with a descendant (incest). 491 A.2d 252, 256 (Pa.Super.
1985).
Here, we find that appellant’s convictions for IDSI and incest do not
merge for sentencing purposes. Much like the defendant in White, the
Commonwealth suffered two injuries as a result of appellant’s conduct
pertaining to C.C. The Commonwealth first suffered an injury when
appellant engaged in involuntary deviate sexual intercourse, as was
established by C.C.’s testimony. During the same act, the Commonwealth
suffered further injury because appellant engaged in sexual intercourse with
his natural daughter. Accordingly, we find that incest is not a lesser included
offense to IDSI, and that the two convictions do not merge for sentencing
purposes. Accordingly, appellant’s second issue is without merit.
III.
In his third issue for our review, appellant specifically avers that the
Commonwealth “provided no discovery relevant to [D.B’s] anticipated
testimony, and refused to correct her perjury at trial as [the
Commonwealth] actually elicited it.” (Appellant’s brief at 29.) For this
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claim, appellant relies on a report dated March 1, 2017 purporting to
“‘exclude’ [appellant] as the donor of any DNA found in [D.B.’s] underwear.”
(Id. at 36.) Appellant also relies on the fact that he was not convicted on all
charges brought against him by the Commonwealth at the 1998 trial
pertaining to his encounters with D.B.
We shall first analyze appellant’s claim pertaining to the March 1, 2017
DNA report. The report is not found within the record that was certified by
the trial court.
The fundamental tool for appellate review is the
official record of the events that occurred in the trial
court. Commonwealth v. Williams, 715 A.2d
1101, 1103 (Pa. 1998). To ensure that an appellate
court has the necessary records, the Pennsylvania
Rules of Appellate Procedure provide for the
transmission of a certified record from the trial court
to the appellate court. Id. The law of Pennsylvania
is well settled that matters which are not of record
cannot be considered on appeal. Commonwealth
v. Bracalielly, 658 A.2d 755, 763 (Pa. 1995);
Commonwealth v. Baker, 614 A.2d 663, ,672 (Pa.
1992); Commonwealth v. Quinlan, 412 A.2d 494,
496 (Pa. 1980); Commonwealth v. Young, 317
A.2d 258 (Pa. 1974). Thus, an appellate court is
limited to considering only the materials in the
certified record when resolving an issue.
Commonwealth v. Walker, 878 A.2d 887, 888
(Pa.Super. 2005). In this regard, our law is the
same in both the civil and criminal context because,
under the Pennsylvania Rules of Appellate Procedure,
any document which is not part of the officially
certified record is deemed non-existent—a deficiency
which cannot be remedied merely by including copies
of the missing documents in a brief or in the
reproduced record. Commonwealth v. Kennedy,
868 A.2d 582, 593 (Pa.Super. 2005); Lundy v.
Manchel, 865 A.2d 850, 855 (Pa.Super. 2004). The
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emphasis on the certified record is necessary
because, unless the trial court certifies a document
as part of the official record, the appellate judiciary
has no way of knowing whether that piece of
evidence was duly presented to the trial court or
whether it was produced for the first time on appeal
and improperly inserted into the reproduced record.
Simply put, if a document is not in the certified
record, the Superior Court may not consider it.
Walker, 878 A.2d at 888.
Commonwealth v. Preston, 904 A.2d 1, 6-7 (Pa.Super. 2006), appeal
denied, 916 A.2d 632 (Pa. 2007).
Because the March 1, 2017 report is not part of the certified record,
we cannot consider the contents of the report when deciding appellant’s
third issue.
We next turn to appellant’s contention that the Commonwealth
suborned perjury by presenting testimony from D.B. pertaining to
encounters with appellant in which appellant was acquitted of charges
brought by the Commonwealth. Specifically, appellant relies on the fact that
the 1998 jury, while convicting him of two counts of statutory sexual assault
and one count each of aggravated indecent assault and corruption of minors,
also acquitted him of one count of statutory sexual assault, two counts of
aggravated indecent assault, and three counts each of indecent assault and
corruption of minors. Appellant, accordingly, claims that “an alibi witness
rendered [D.B.’s] claims patently false as that jury rejected sixty-six percent
(66%) of her claims and properly acquitted [appellant] thereof . . .”
(Appellant’s brief at 30.)
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We disagree with appellant’s reliance on the 1998 jury’s verdict. This
court’s decision in Commonwealth v. Ardinger, 839 A.2d 1143 (Pa.Super.
2003), is particularly instructive. In Ardinger, the Commonwealth sought
to introduce testimony from an alleged victim and the victim’s mother in an
attempt to establish evidence of a common plan pursuant to
Pa.R.E. 404(b)(2). Id. at 1144. Both the victim and his mother were to
provide testimony of an incident that occurred in Maryland, for which the
defendant was charged, but not convicted, at the time of the Pennsylvania
proceedings. Id. This court reiterated that “‘Pa. R. Evid. 404(b) is not
limited to evidence of crimes that have been proven beyond a reasonable
doubt in court. It encompasses both prior crimes and prior wrongs and acts,
the latter of which, by their nature, often lack “definitive proof.”’” Id.,quoting Commonwealth v. Lockcuff, 813 A.2d 857, 861 (Pa.Super. 2002),
appeal denied, 825 A.2d 638 (Pa. 2003).
The Ardinger court further explained that it was up to the jury sitting
for Mr. Ardinger’s trial to determine the credibility of the victim and his
mother as they testified regarding the charges pending in Maryland.
Ardinger, 839 A.2d at 1146. Additionally, this court noted that both
witnesses would be subject to cross-examination that could “include
questions which will enable the jury to know that the charges against
[Mr. Ardinger] in Maryland have not yet resulted in a conviction.” Id.- 18 -
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In the instant appeal, it was within the jury’s sole purview to
determine the credibility of D.B.’s testimony. Likewise, appellant’s trial
counsel had the opportunity on cross-examination to include questions that
would enable the jury to know that appellant was not convicted of all
charges against him at the 1998 trial.
Additionally, we disagree with appellant’s claim that his acquittal of
several charges in 1998 is tantamount to the jury finding D.B.’s testimony to
not be credible. This court has previously cautioned that
an acquittal cannot be interpreted as a specific
finding in relation to some of the evidence
presented; and acquittal may represent the jury’s
exercise of its historic power of lenity; and a contrary
rule would abrogate the criminal procedural rules
that empower a judge to determine all questions of
law and fact as to summary offenses.
Commonwealth v. Barger, 956 A.2d 458, 461 (Pa.Super. 2008)
(en banc), appeal denied, 980 A.2d 109 (Pa. 2009), citing
Commonwealth v. Wharton, 594 A.2d 696, 698-699 (Pa.Super. 1991),
Commonwealth v. Yachymiak, 505 A.2d 1024, 1026-1027 (Pa.Super.
1986).
Therefore, we find that determining the credibility of D.B.’s bad acts
testimony was within the sole purview of the jury sitting in appellant’s 2016
trial, and accordingly, appellant’s third issue is without merit.
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IV.
In his fourth issue for our review, appellant avers that “the trial court’s
representation of the exculpatory DNA evidence is [in violation] of the right
to due process of law. (Appellant’s brief at 40-47.) Appellant, however,
failed to include this issue in his concise statement of errors complained of
on appeal.
[I]t is well-settled that issues not included in an
appellant’s statement of questions involved and
concise statement of errors complained of on appeal
are waived. Krebs v. United Refining Co. of Pa.,
893 A.2d 776, 797 (Pa.Super. 2006) (citations
omitted) (“We will not ordinarily consider any issue if
it has not been set forth in or suggested by an
appellate brief’s statement of questions involved,
and any issue not raised in a statement of matters
complained of on appeal is deemed waived.”). With
respect to issues not included in a concise
statement, our Supreme Court has instructed that
this Court has no discretion in choosing whether to
find waiver. Waiver is mandatory, and this Court
may not craft ad hoc exceptions or engage in
selective enforcement. City of Philadelphia v.
Lerner, 151 A.3d 1020, 1024 (Pa. 2016), quoting
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa.
2011).
In re M.Z.T.M.W., 163 A.3d 462, 466 (Pa.Super. 2017).
We, therefore, find that appellant’s fourth issue is waived, as he failed
to include the issue in his concise statement of errors complained of on
appeal.
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V.
In his final issue, appellant alleges prosecutorial misconduct in that the
Commonwealth deliberately omitted exculpatory evidence and “known
credibility challenges” as to C.C.’s testimony. (See appellant’s brief at
47-55.) In essence, appellant is alleging that the Commonwealth committed
a Brady violation. See Brady v. Maryland, 373 U.S. 83 (1963).
[Our supreme court] summarized the law in Brady
in Commonwealth v. Strong, 761 A.2d 1167 (Pa.
2000):
In Brady, the United States Supreme
Court declared that due process is
offended when the prosecution withholds
evidence favorable to the accused. . . .
The Brady court established the
obligation of the prosecution to respond
affirmatively to a request for production
of exculpatory evidence with all evidence
material to the guilt or punishment of the
accused. Where evidence material to the
guilt or punishment of the accused is
withheld, irrespective of the good or bad
faith of the prosecutor, a violation of due
process has occurred.
Id. at 1171 (citations and footnote omitted).
In United States v. Bagley, 473 U.S. 667, 677
(1985), the Supreme Court concluded that
“impeachment evidence . . . as well as exculpatory
evidence, falls within the Brady rule,” and held that,
regardless of request, favorable evidence is material,
and constitutional error results from its suppression
by the government “if there is reasonable probability
that, had the evidence been disclosed to the
defense, the result of the proceeding would have
been different.” Id. at 682. See Strong, supra at
1771 (“As Brady and its progeny dictate, when the
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failure of the prosecution to produce material
evidence raises a reasonable probability that the
result of the trial would have been different if the
evidence had been produced, due process has been
violated and a new trial is warranted.” (citing
Bagley)); see also Commonwealth v. Moose,
602 A.2d 1265, 1272 (Pa. 1992) (“When the
reliability of a witness may be determinative of guilt
or innocence, non-disclosure of evidence affecting
that witness’s credibility runs afoul of Brady’s
disclosure requirement.”).
In determining whether a reasonable probability of a
different outcome has been demonstrated, “[t]he
question is not whether the defendant would more
likely than not have received a different verdict with
the evidence, but whether in its absence he received
a fair trial, understood as a trial resulting in a verdict
worthy of confidence.” Kyles v. Whitley, 514 U.S.
419, 434 (1995). A “reasonable probability” of a
different result is shown when the government’s
suppression of evidence “undermines confidence in
the outcome of the trial.” Bagley, supra at 678.
The United States Supreme Court has made clear
that Bagley’s materiality standard is not a
sufficiency of the evidence test. Kyles, supra at
434. A Brady violation is established “by showing
that the favorable evidence could reasonably be
taken to put the whole case in such a different light
as to undermine confidence in the verdict.” Kyles,
supra at 435. Importantly, “[t]he mere possibility
that an item of undisclosed information might have
helped the defense, or might have affected the
outcome of the trial, does not establish materiality in
the constitutional sense. Commonwealth v.
McGill, 832 A.2d 1014, 1019 (Pa. 2003). “[I]n
order to be entitled to a new trial for failure to
disclose evidence affecting a witness’[s] credibility,
the defendant must demonstrate the reliability of the
witness may well be determinative of his guilt or
innocence.” Commonwealth v. Johnson, 727 A.2d
1089, 1094 (Pa. 1999). In assessing the significance
of the evidence withheld, a reviewing court must
bear in mind that not every item of the prosecution’s
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case would necessarily have been directly undercut
had the Brady evidence been disclosed. Kyles,
supra at 451.
Commonwealth v. Weiss, 986 A.2d 808, 814-815 (Pa. 2009) (citations
reformatted).
Brady, however, does not relieve a defendant of his duty to perform
due diligence and conduct reasonable investigation in his own defense.
Indeed, our supreme court has stated that, “[i]t is well established that
‘no Brady violation occurs where the parties had equal access to the
information or if the defendant knew or could have uncovered such evidence
with reasonable diligence.’” Commonwealth v. Spotz, 896 A.2d 1191,
1248 (Pa. 2006), citing Commonwealth v. Morris, 822 A.2d 684, 696 (Pa.
2003).
Appellant provides the following litany of evidence that he avers was
improperly withheld by the Commonwealth:
a. [Appellant] resided with C.C. from August
2008 until June 10, 2010. Yet, from August
2008 until July of 2013 no claim of indecent
assault or inappropriate sexual conduct is
made to any person whatsoever.
b. After separation from C.C.’s mother, [C.T.], in
June of 2010, a number of legal filings were
made in custody and for a protection from
abuse order that was abandoned.
....
c. When pressed at the preliminary hearing C.C.
admitted:
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“Well, he did ignore me. Like,
mostly, he ignored me in the
beginning, but toward the end he
just ignored everyone.” [N.T.
7/30/13 at 19.]
d. C.C.’s mother [C.T.] made numerous
fraudulent claims in Protection from Abuse
petitions, two of three filings were withdrawn.
e. C.C.’s mother [C.T.] had a pattern of non-
compliance with mandatory notice to the
custody court regarding her living
arrangements, location and schooling of C.C.
and then kidnapped C.C. to Hawai’i.
f. Ultimately, [C.T.]’s fraud in support was
revealed, and no Judge, Higgins vacated a
support order, in [appellant’s] favor, when
asked why she refused to appear at support
master hearings, she lied, claiming C.C. was
sick those days.
g. Only when [appellant] moved to verify [C.T.]’s
fraud to Judge Higgins did the lies get
advanced of inappropriate conduct by
[appellant], in July of 2013.
h. Judge Higgins’ support order aptly reflects
[C.T.]’s lie of C.C. being home sick, upon
subpoena, evidence from C.C.’s school
attendance verifies that [C.T.] lied.
i. While awaiting trial, [C.T.] had kidnapped C.C.
and fled to Hawai’i, when [appellant] petitioned
the custody court over this, [ADA] Rakaczewski
sought free legal representation for her, rather
than properly prosecute her or ensure the
safety of the child.
j. In the affidavit of probable cause C.C.’s story
is that [appellant’s] penis does not enter her
mouth, a claim she repeats on interview at the
child advocacy center and at the preliminary
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hearing; however, at trial she changes her
story and [ADA] Rakaczewski did nothing to
inform the jury of C.C.’s prior claims.
Appellant’s brief at 48-50 (citations omitted).
Appellant fails to enumerate any evidence that the Commonwealth
improperly suppressed to which he did not have equal access and/or could
have obtained by exercising reasonable diligence. Indeed, in several of the
items listed above, appellant avers that the Commonwealth improperly
suppressed information that was obtainable from the transcript of appellant’s
preliminary hearing. Upon an exercise of reasonable diligence, appellant’s
trial counsel could have easily confronted C.C. with any inconsistencies
found in the preliminary hearing transcript.
Appellant also avers that C.T. and C.C. sent him letters and e-mails,
which were improperly suppressed by the Commonwealth. Appellant, as the
recipient of the letters and e-mails in question, had equal access to these
documents, and his trial counsel could have used these documents on
cross-examination.
Finally, appellant avers that the Commonwealth improperly withheld
filings from appellant’s litigation with C.T. pertaining to custody of C.C. As a
party to that litigation, appellant would have been served with any and all
filings from C.T., and accordingly would have had access to those documents
for impeachment purposes during trial.
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We find that appellant had equal access to and/or could have, with the
exercise of reasonable diligence, obtained all of the evidence that he avers
was improperly withheld by the Commonwealth. Accordingly, the
Commonwealth did not violate the rule set forth in Brady, and appellant’s
fifth issue is without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/8/2017
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