Com. v. Rankinen, J. ( 2019 )

J. A24044/18
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
JOSEPH SCOTT RANKINEN, : No. 320 MDA 2018
:
Appellant :
Appeal from the Judgment of Sentence, September 18, 2017,
in the Court of Common Pleas of Clinton County
Criminal Division at No. CP-18-CR-0000429-2016
BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 31, 2019
Joseph Scott Rankinen appeals from the September 18, 2017 aggregate
judgment of sentence of 15 to 30 years’ imprisonment imposed after a jury
found him guilty of rape, rape of a child, involuntary deviate sexual intercourse
(“IDSI”) with a child, terroristic threats, and indecent assault of a person less
than 13 years of age.1 After careful review, we affirm the judgment of
sentence.
The relevant facts and procedural history, as gleaned from the certified
record, are as follows: On June 23, 2017, a jury found appellant guilty of rape
of a child and related offenses in connection with his sexual assault of a
12-year-old female victim in the bathroom at the Clinton County Fairgrounds
1 18 Pa.C.S.A. §§ 3121(a)(1), 3121(c), 3123(b), 2706(a)(1), and 3126(a)(7),
respectively.
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in the Spring of 2011. As noted, the trial court sentenced appellant to 15 to
30 years’ imprisonment on September 18, 2017.2 On September 28, 2017,
appellant filed a timely post-sentence motion, which was denied by the trial
court on January 22, 2018. This timely appeal followed on February 14, 2018.
On February 15, 2018, the trial court directed appellant to file a concise
statement of errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b),
within 21 days. Appellant filed his timely Rule 1925(b) statement on March 1,
2018, and the trial court filed its Rule 1925(a) opinion on April 17, 2018.
Appellant raises the following issues for our review:
I. Whether the trial court erred by failing to give
the jury an instruction on Lack of Prompt
Complaint as requested by trial counsel?
II. Whether the trial court erred in failing to sustain
trial counsel’s objection and motion for mistrial,
where the prosecutor commented before the
jury on [a]ppellant’s post-arrest,
post-Miranda[3] silence during his closing
argument on the issue of whether [a]ppellant
thought child abuse was normal?
II. Whether the trial court erred in failing to sustain
the objection and grant the motion for mistrial
of trial counsel when, during the course of the
trial, the prosecutor elicited statements from
2 The record reflects that the September 18, 2017 sentencing order was
amended on December 29, 2017, to include an additional restitution payment
to the Victims Compensation Assistance Program in the amount of $444.99.
(See trial court order, 12/29/17 at ¶ 1.) The portion of the September 18,
2017 sentencing order directing appellant to pay $78.90 restitution to the
victim was subsequently vacated by the trial court on January 22, 2018. (See
trial court order, 1/22/18 at ¶ 1.)
3 Miranda v. Arizona, 384 U.S. 436 (1966).
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the alleged victim, consisting of information that
sustained the charge of Involuntary
Deviant [sic] Sexual Intercourse?
IV. Whether the trial court erred in ruling that the
entire forensic interview of the alleged victim
could be used on re-direct examination by the
prosecutor as a prior consistent statement?
V. Whether the trial court erred in failing to sustain
[a]ppellant[’]s objection to the testimony
elicited by the Commonwealth that, upon
custodial interrogation, by Trooper Sweet,
[a]ppellant stated that he was the victim of
sexual abuse?
Appellant’s brief at 3.
I. Prompt complaint jury instruction
Appellant first argues that the trial court erred in denying his request to
give the jury the prompt complaint instruction found at Section 4.13A of the
Pennsylvania Suggested Standard Criminal Jury Instructions. (Id. at 15.)
Appellant avers that the victim failed to report the alleged rape until 4 years
after it occurred and that “[t]here is absolutely no evidence that at the time
of the alleged assault, [the victim], because of her age, did not appreciate or
understand what had happened to her.” (Id. at 15-16.)4
4 In support of his argument, appellant relies primarily upon Commonwealth
v. Jones, 672 A.2d 1353 (Pa.Super. 1996), and Commonwealth v. Lane,
555 A.2d 1246 (Pa. 1989). (See appellant’s brief at 17-18.) In Jones, a
panel of this court reversed the defendant’s conviction of rape and remanded
for a new trial where the victim did not report the rape until nearly 24 hours
thereafter, and the trial court gave an erroneous prompt complaint jury
instruction. Jones, 672 A.2d at 1358. Likewise, in Lane, our supreme court
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“In reviewing a challenge to the trial court’s refusal to give a specific
jury instruction, it is the function of this Court to determine whether the record
supports the trial court’s decision.” Commonwealth v. Buterbaugh, 91
A.3d 1247, 1257 (Pa.Super. 2014) (citation omitted), appeal denied, 104
A.3d 1 (Pa. 2014).
The premise for the prompt complaint instruction is
that a victim of a sexual assault would reveal at the
first available opportunity that an assault occurred.
The instruction permits a jury to call into question a
complainant’s credibility when he or she did not
complain at the first available opportunity. However,
there is no policy in our jurisprudence that the
instruction be given in every case.
The propriety of a prompt complaint instruction
is determined on a case-by-case basis pursuant
to a subjective standard based upon the age and
condition of the victim.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013) (citations
and internal quotation marks omitted; emphasis added).
In the instant matter, the trial court conducted a review of specific
charging requests by counsel prior to closing arguments. During the course
of this review, the trial court concluded that a prompt complaint instruction
was inappropriate because the victim’s young age and maturity prevented her
held that, “[i]n determining whether or not the delay [in making a prompt
complaint] reflects the insincerity of the complainant, the maturity [of the
child] is merely an additional factor to be considered by the jury in deciding
the question.” Lane, 555 A.2d at 1251.
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from appreciating the offensive nature of appellant’s conduct. The trial court
stated as follows:
[APPELLANT’S COUNSEL]: Judge, are you giving
standard instruction 4.13(A) failure to make a prompt
complaint[?]
THE COURT: I am not.
[APPELLANT’S COUNSEL]: I would ask that you give
that one.
THE COURT: That is denied based on the age of the
child.
....
THE COURT: Jones says where the victim of a sexual
assault is a minor who, quote, may not have
appreciated the offensive nature of the conduct, the
lack of a prompt complaint will not necessarily justify
an inference of fabrication. It’s pretty much what you
said, but that’s what I was relying on to deny your
request.
Notes of testimony, 6/23/17 at 8-10.
In so ruling, the trial court indicated to appellant’s counsel that she could
renew her request for the prompt complaint instruction when the jury
instructions were given. (Id. at 10.) Counsel, however, failed to renew her
motion, and the jury was not instructed on the lack of a prompt complaint.
We find that appellant has waived this issue by failing to specifically
object to the trial court’s jury instructions on this basis before the jury retired
to deliberate. “[T]he failure to make a timely and specific objection before
the trial court at the appropriate stage of the proceedings will result in waiver
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of the issue.” Commonwealth v. Houck, 102 A.3d 443, 451 (Pa.Super.
2014) (citation omitted); see also Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(B). In
Commonwealth v. Pressley, 887 A.2d 220 (Pa.Super. 2006), this court
explained as follows:
Although obligating counsel to take this additional
step where a specific point for charge has been
rejected may appear counterintuitive, as the
requested instruction can be viewed as alerting the
trial court to a defendant’s substantive legal position,
it serves the salutary purpose of affording the court
an opportunity to avoid or remediate potential error,
thereby eliminating the need for appellate review of
an otherwise correctable issue.
Id. at 224 (citation and footnotes omitted). Accordingly, appellant’s first claim
is waived.5
5 We note that even if appellant had properly preserved his claim, it would
warrant no relief. Our review of the record reveals ample support for the trial
court’s decision to deny appellant’s request to provide a prompt complaint
instruction to the jury. At trial, the victim testified that at the time of the
sexual assault, she had never had sex, did not really understand what sex
was, and did not know “what body parts went where.” (Notes of testimony,
6/22/17 at 57-58.) The victim further testified that she “had no clue what
was going on” during the assault and did not understand what the term ‘rape’
meant prior to disclosing the incident to her mother in 2015. (Id. at 86-87,
184.) Based on the foregoing, we agree with the trial court’s determination
that the victim did not appreciate the offensive nature of appellant’s conduct
at the time the assault occurred, and a prompt complaint instruction would
have been inappropriate. See Jones, 672 A.2d at 1357 n.2 (stating, “[w]here
an assault is of such a nature that the minor victim may not have appreciated
the offensive nature of the conduct, the lack of a prompt complaint would not
necessarily justify an inference of fabrication.”).
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II. References to appellant’s post-arrest, post-Miranda silence
Appellant next argues that the trial court abused its discretion by
denying his motion for a mistrial following the prosecutor’s improper reference
to appellant’s post-arrest, post-Miranda silence to the question of whether
he thought sex abuse was normal. (Appellant’s brief at 18.)
It is well-settled that the review of a trial court’s denial
of a motion for a mistrial is limited to determining
whether the trial court abused its discretion. An abuse
of discretion is not merely an error of judgment, but
if in reaching a conclusion the law is overridden or
misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice,
bias or ill-will . . . discretion is abused. A trial court
may grant a mistrial only where the incident upon
which the motion is based is of such a nature that its
unavoidable effect is to deprive the defendant of a fair
trial by preventing the jury from weighing and
rendering a true verdict. A mistrial is not necessary
where cautionary instructions are adequate to
overcome prejudice.
Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014) (citations
omitted), appeal denied, 118 A.3d 1107 (Pa. 2015).
Instantly, Corporal Matthew Sweet testified that on April 6, 2016, he
took appellant into custody and began to interrogate him following the
issuance of Miranda warnings. (Notes of testimony, 6/22/17 at 197-198.)
Corporal Sweet testified that during the course of this interrogation, appellant
remained silent in response to the question of whether he felt sexual abuse
was normal, as follows:
A. Yeah. He -- part of the things I got into him
with his sexuality, whether he was a virgin, stuff
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like that, trying to get, again, conversation to
keep him talking to possibly get some sort of
admission. He indicated that he lost his virginity
sometime after the 2011 incident, and I guess
at that point I asked him, you know, do you feel
that sexual abuse is normal, you know, the loss
of your virginity. To that he gave no answer.
He remained silent.
Q. So when asked specifically if he thought sexual
abuse was normal, he had no answer?
A: No answer.
Id. at 206. Appellant’s counsel did not object to Corporal Sweet’s testimony
on appellant’s post-arrest, post-Miranda silence.
Thereafter, during the course of his closing argument, District Attorney
David A. Strouse made the following reference to appellant’s silence:
On the other hand, you can choose to believe that [the
victim] made this entire thing up, but to make that
choice you have to also choose to believe a number of
other things about this case. . . . You would have to
choose to believe that Corporal Sweet either wasn’t
being honest when he testified, or you would have to
believe that [appellant’s] responses and comments to
Corporal Sweet were just a coincidence. Like the fact
that during the interview with Corporal Sweet he said
he knew [the victim], but then later said I don’t know
who that is. That [appellant] admitted to his sexual
experimentation. That would just be a coincidence.
It would just be a coincidence that [appellant] said he
had open values, that nudity wasn’t a big deal to him.
It would have to be just a coincidence that
[appellant] would not respond when asked if he
felt sexual assault was normal.
Notes of testimony, 6/23/17 at 40-41 (emphasis added).
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Appellant objected and requested a mistrial, which was denied by the
trial court on the basis that these comments “came out in evidence” and that
appellant had failed to make a timely objection at that time. (Id. at 41-42.)
The record further reflects that the trial court offered to give a cautionary
instruction to the jury, but appellant declined. (Id. at 42.) The trial court
subsequently instructed D.A. Strouse, at sidebar, “that is not a point that you
will revisit at all at any point during your remaining comments.” (Id.)
Upon review, we find that appellant has waived his claim that
D.A. Strouse improperly referenced appellant’s post-arrest, post-Miranda
silence during his summation by failing to timely and specific objection to
Corporal Sweet’s testimony at trial. As noted, the “the failure to make a timely
and specific objection before the trial court at the appropriate stage of the
proceedings will result in waiver of the issue.” Houck, 102 A.3d at
451(citation omitted); see also Pa.R.A.P. 302(a) (stating an issue not raised
in the trial court is considered waived for purposes of appellate review).
III. Victim’s testimony that she was forced to perform oral sex
Appellant next argues that the trial court abused its discretion in not
granting his motion for a mistrial after D.A. Strouse elicited testimony from
the victim that appellant forced her to perform oral sex on him. (Appellant’s
brief at 24.) Appellant contends that because no information about this
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incident was ever provided to the defense in discovery, a new trial is
warranted. (Id. at 25-28.) We disagree.
At trial, the victim testified at great length with regard to the sexual
assault and described how appellant dragged her towards the men’s bathroom
by her wrists, slammed her against the wall, pulled her pants and underwear
down around her knees, and how she felt “a repetitive feeling of pressure” in
her vagina. (See notes of testimony, 6/22/17 at 52-59.) D.A. Strouse then
inquired as to what happened “when [appellant] stopped[,]” and the victim
described in detail how appellant pushed her to the floor, pushed her head
against the wall, and forced his penis into her mouth. (Id. at 61-63.)
Appellant subsequently objected and moved for a mistrial on the basis that
this information was never provided to the defense. (Id. at 63, 65.) The
following discussion took place at sidebar, at the conclusion of which the trial
court denied his motion for a mistrial:
[APPELLANT’S COUNSEL]: Your Honor, at this time
I’d like Mr. Strouse to explain to me when he knew
this information. This last probably five minutes of
information of testimony is brand new information to
me. It’s a witness statement that was not disclosed
ever, not in the video, not in the police report, it was
not in the interview of the child. This is all new.
THE COURT: Mr. Strouse.
[D.A. STROUSE]: Some of the information I’m
hearing for the first time, Your Honor. Such is the
nature of a sexual assault case and the risk
[appellant] takes if he takes this to trial with a child
victim. The Commonwealth can’t possibly know
everything that was going to be said.
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[APPELLANT’S COUNSEL]: I’d like to know what you
knew because some of this, Mr. Strouse, you clearly
knew based on your line of questioning, and it was not
disclosed to me.
THE COURT: Mr. Strouse.
[D.A. STROUSE]: The only information the
Commonwealth has come into position [sic] with
during preparation of this case was trial preparation
questions of witnesses, that’s it. And to the extent
that there was any additional statements, they were
provided directly during the course of trial preparation
with me, and as such they were work product.
[APPELLANT’S COUNSEL]: If they are work product
then they’re not admissible during trial. You can’t get
statements from a witness and not disclose them to
me.
[D.A. STROUSE]: So we’re clear on the record, I
received no statement from the witness. No
statement. If there was a statement, it would have
been provided.
Id. at 64-65.
Pennsylvania Rule of Criminal Procedure 573 governs pretrial discovery
and inspection and provides, in relevant part, that the Commonwealth must
disclose, at the discretion of the trial court, “all written or recorded
statements, and substantially verbatim oral statements, of eyewitnesses the
Commonwealth intends to call at trial[.]” Pa.R.Crim.P. 573(B)(2)(a)(ii).
Courts in this Commonwealth, however, have continually recognized that
“[t]he Commonwealth does not violate Rule 573 when it fails to disclose to
the defense evidence that it does not possess and of which it is unaware.”
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Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008) (citations omitted;
emphasis added); see also Commonwealth v. Ribot, 169 A.3d 64, 69
(Pa.Super. 2017) (same).
Instantly, we discern no abuse of discretion on the part of the trial court
in denying appellant’s motion for a mistrial. Our review of the record reveals
no evidence that the victim revealed to anyone that appellant forced her to
perform oral sex, or made any statement to this effect. On the contrary, the
victim testified on cross-examination that she had not told anyone about this
incident prior to trial:
Q. Now, you’ve told the jury today that [appellant]
pushed you on the floor, pushed your head
against the wall, and tried to force his penis into
your mouth?
A. Yes.
Q. That’s the first time you’ve told anybody that?
A. Yes, it is.
Q. You’ve not told your therapist that you’ve
worked with for a year?
A. No, I haven’t.
Q. Not told your family?
A. No.
Q. Not told anybody at this table here?
A. No.
Notes of testimony, 6/22/17 at 104-105.
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Accordingly, as there is no evidence demonstrating that the
Commonwealth withheld any statements by the victim with regard to oral sex,
appellant’s claim must fail. See Collins, 957 A.2d at 253; Ribot, 169 A.3d
at 69.
IV. Admission of the victim’s forensic interview as a prior consistent
statement
Appellant next argues the trial court abused its discretion in permitting
the Commonwealth to introduce a video of the victim’s forensic interview as a
prior consistent statement. (Appellant’s brief at 28-31.)
In reviewing a trial court’s ruling on the admissibility of evidence, our
standard of review is one of deference. “[T]he admission of evidence is within
the sound discretion of the trial court and will be reversed only upon a showing
that the trial court clearly abused its discretion.” Commonwealth v.
Fransen, 42 A.3d 1100, 1106 (Pa.Super. 2012) (citation omitted), appeal
denied, 76 A.3d 538 (Pa. 2013).
At trial, the Commonwealth introduced a video of the forensic interview
of the victim conducted by Sherry Moroz of the Central Susquehanna Valley
Children’s Advocacy Center in 2015. (Notes of testimony, 6/22/17 at
165-166.) Appellant objected to the video arguing that it was inadmissible
hearsay, and the trial court overruled the objection. (Id. at 166.) The trial
court ruled that the forensic interview video was admissible as a prior
consistent statement, pursuant to Pennsylvania Rule of Evidence 613(c), in
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order to rehabilitate the victim’s credibility. (Id. at 166; see also trial court
opinion, 1/22/18 at 4-6.6) Upon careful review of the record, we discern no
abuse of discretion on the part of the trial court in reaching this conclusion.
Pennsylvania Rule of Evidence 613 governs this issue and provides, in
relevant part, as follows:
(c) Witness’s Prior Consistent Statement to
Rehabilitate. Evidence of a witness’s prior
consistent statement is admissible to
rehabilitate the witness’s credibility if the
opposing party is given an opportunity to
cross-examine the witness about the statement
and the statement is offered to rebut an express
or implied charge of:
(1) fabrication, bias, improper influence
or motive, or faulty memory and the
statement was made before that
which has been charged existed or
arose; or
(2) having made a prior inconsistent
statement, which the witness has
denied or explained, and the
consistent statement supports the
witness’s denial or explanation
Pa.R.E. 613(c).
This court has long recognized that “prior consistent statements of child
victim of sexual assault, offered to corroborate in-court testimony, are not
hearsay.” Commonwealth v. Giles, 182 A.3d 460, 461 (Pa.Super. 2018),
6 We note that the trial court’s January 22, 2018 opinion does not contain
pagination; for the ease of our discussion, we have assigned each page a
corresponding number.
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appeal denied, 193 A.3d 888 (Pa. 2018), citing Commonwealth v. Hunzer,
868 A.2d 498, 512 (Pa.Super. 2005), appeal denied, 880 A.2d 1237 (Pa.
2005).
Pennsylvania Rule of Evidence 613(c) permits the
admission of evidence of a prior consistent statement
for rehabilitation purposes if the opposing party is
given an opportunity to cross-examine the witness
about the statement, the statement is offered to rebut
an express or implied charge of fabrication, bias,
improper influence or motive, or faulty memory, and
the statement was made before the fabrication, bias,
etc.
Commonwealth v. Baker, 963 A.2d 495, 504 (Pa.Super. 2008) (citation
omitted), appeal denied, 992 A.2d 885 (Pa. 2010).
In the instant matter, appellant’s counsel attempted to impeach the
victim’s credibility and crossed-examined her extensively on several
statements she made on direct examination that were inconsistent with
statements she had previously made during the 2015 forensic interview. (See
notes of testimony, 6/22/17 at 93-124.) In response, the Commonwealth
introduced the video of the victim’s recorded interview with Sherry Moroz to
rehabilitate her credibility. (Id. at 165-166.) Review of the record indicates
the character of impeachment “was such that the trial court could reasonably
exercise its discretion to permit admission of evidence of prior consistent
statements to corroborate the child victim’s impeached testimony.” Hunzer,
868 A.2d at 513. Accordingly, we find that the trial court did not abuse its
discretion in admitting the minor victim’s forensic interview video as a prior
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consistent statement. See Baker, 963 A.2d at 503-505 (holding that the
recording of a child victim’s interview with a forensic pediatrician who had
interviewed the child at behest of agencies investigating child abuse
allegations was admissible as prior consistent statement, given defense
counsel’s cross-examination insinuating that the child victim had been
improperly induced to fabricate her testimony by the prosecution and her
mother).
V. Admission of appellant’s statement that he was a sexual abuse
victim
In his final claim, appellant contends that the trial court abused its
discretion in permitting Corporal Sweet to testify that appellant acknowledged
during interrogation that he was sexually abused as a child. (Appellant’s brief
at 32.)
At trial, Corporal Sweet was questioned with regard to the tactics he
employed during his interrogation of appellant and testified as follows:
Q. Corporal Sweet, what type of tactics did you use
with respect to your interview with [appellant]?
A. I tried to minimize the actual -- the allegation.
I tried to make it feel like it was something less.
Typically I also try to deflect some of the blame
on maybe the way he was growing up or
brought up or something that had happened in
his past.
Notes of testimony, 6/22/17 at 202-203.
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Appellant objected, and the trial court overruled the objection. (Id. at
204.) The Commonwealth’s direct examination of Corporal Sweet resumed
and he testified as follows:
Q. What specifically did [appellant] say to you
when you attempted to blame someone else?
A. He indicated that several years ago when he
was younger he was actually -- not necessarily
a victim, but he was also -- there was an older
neighbor boy who had sexually assaulted him
and, you know, again trying to deflect the blame
that perhaps that’s what may have caused some
of this was the answer I got.
Q. And did he describe -- did he indicate whether
or not he had been sexually active at a young
age?
[APPELLANT’S COUNSEL]: Objection, relevancy.
THE COURT: Overruled.
Id. at 205-206.
Appellant avers that “[t]his entire line of questioning regarding [his]
family’s personal sexual habits, [his] background, and whether he has been a
victim of child sexual abuse, was completely irrelevant.” (Appellant’s brief at
33.) Appellant maintains “[t]here was no evidence . . . that any prior assault
or abuse of [a]ppellant in any way drove or was a causative factor in the
conduct charge[d] in this case[,]” and the probative value of this testimony
was outweighed by its prejudicial effect. (Id.) For the following reasons, we
disagree.
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The admissibility depends on relevance and probative
value. 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 supports a
reasonable inference or presumption regarding a
material fact. Evidence, even if relevant, may be
excluded if its probative value is outweighed by the
potential prejudice.
Fransen, 42 A.3d at 1106 (citations and internal quotation marks omitted);
see also Pa.R.E. 401, 403.
Upon review, we discern no abuse of discretion on the part of the trial
court in allowing Corporal Sweet’s brief reference to the fact that appellant
acknowledged during his interrogation that he was sexually abused as a child
to be admitted into evidence. We agree with the trial court that this statement
was relevant to appellant’s then-existing mental and emotional condition and
was admissible pursuant to the state of mind exception to the hearsay rule.
(See trial court Rule 1925(a) opinion, 4/17/18 at 4-5.7) Moreover, we find
that appellant’s acknowledgement that he was sexually abused as a child was
relevant to establish a possible motive for committing the underlying offenses.
Hearsay is defined as “a statement that the declarant does not make
while testifying at the current trial or hearing[, offered] in evidence to prove
the truth of the matter asserted in the statement.” Pa.R.E. 801(c)
(numeration omitted). Hearsay is generally inadmissible at trial unless it falls
7We note that the trial court’s April 17, 2018 Rule 1925(a) opinion does not
contain pagination; for the ease of our discussion, we have assigned each
page a corresponding number.
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into an exception to the hearsay rule. See Pa.R.E. 802. Rule 803 contains
several recognized exceptions to the hearsay rule, including the state of mind
exception:
The following are not excluded by the rule against
hearsay, regardless of whether the declarant is
available as a witness:
....
(3) Then-Existing Mental, Emotional, or
Physical Condition. A statement of the
declarant’s then-existing state of mind
(such as motive, intent or plan) or
emotional, sensory, or physical condition
(such as mental feeling, pain, or bodily
health), but not including a statement of
memory or belief to prove the fact
remembered or believed unless it relates
to the validity or terms of the declarant's
will.
Pa.R.E. 803(3) (emphasis added).
“Where the declarant’s out-of-court statements demonstrate his state
of mind, are made in a natural manner, and are material and relevant,” as is
the case here, “they are admissible pursuant to the exception.”
Commonwealth v. Johnson, 107 A.3d 52, 84 (Pa. 2014) (citations and
emphasis omitted), cert. denied, U.S. , 136 S. Ct. 43 (2015).
Additionally, Corporal Sweet’s brief reference to the fact that appellant
acknowledged during his interrogation that he was sexually abused as a child
was not so unduly prejudicial as to warrant that a new trial be granted.
Evidence is not unduly prejudicial simply because it is harmful to the
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defendant’s case. See Commonwealth v. Page, 965 A.2d 1212, 1220
(Pa.Super. 2009), appeal denied, 74 A.3d 125 (Pa. 2013). On the contrary,
the “exclusion of evidence on grounds that is prejudicial is limited to evidence
so prejudicial that it would inflame the jury to make a decision based upon
something other than the legal propositions relevant to the case[.]”
Commonwealth v. Flamer, 53 A.3d 82, 89 (Pa.Super. 2012) (citation and
parentheses omitted). Accordingly, appellant’s final claim of trial court error
warrants no relief.
For all the forgoing reasons, we affirm the September 18, 2017
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/31/2019
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