Com. v. Kelley, T. ( 2019 )

J-S27004-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
THOMAS F. KELLEY :
:
Appellant : No. 455 WDA 2018
Appeal from the Judgment of Sentence March 5, 2018
In the Court of Common Pleas of Washington County Criminal Division at
No(s): CP-63-CR-0000259-2016
BEFORE: OLSON, J., OTT, J., and COLINS*, J.
MEMORANDUM BY OLSON, J.: FILED SEPTEMBER 11, 2019
Appellant, Thomas F. Kelley, appeals from the judgment of sentence
entered on March 5, 2018, following his jury trial convictions for rape of a
person less than 13 years of age, statutory sexual assault, sexual assault,
incest, endangering the welfare of a child, corruption of minors, indecent
assault, and aggravated indecent assault.1 Upon review, we affirm.
We briefly summarize the facts and procedural history of this case as
follows. On October 26, 2015, Trooper Daniel Boyd of the Pennsylvania State
Police filed a criminal complaint against Appellant alleging multiple crimes
involving sexual misconduct related to three minor female victims identified
as B.H., T.K., and M.K. Relevant to this appeal, the affidavit of probable cause,
____________________________________________
1 18 Pa.C.S.A. §§ 3121, 3122.1, 3124.1, 4302, 4304, 6301, 3126, and 3125,
respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S27004-19
attached to the criminal complaint, set forth the following factual allegations
regarding alleged misconduct with B.H., as follows:
During the course of the investigation, victim B.H. who has a
family relationship with [Appellant], reported [] that she was
raped by [Appellant] when she was [six] years old[.] B.H.
indicated that she was spending the night at [Appellant’s]
residence and he came into the room where she was sleeping,
used force to hold her down and put his penis in her vagina. [B.H.]
also indicated that [Appellant] put his fingers inside of her vagina
on one occasion when he was giving her a bath.
Affidavit of Probable Cause, 10/26/2015, at 1, ¶ 3. On May 26, 2016, the
Commonwealth filed a criminal information setting forth 24 criminal charges
against Appellant. However, the criminal information failed to include a
criminal count for aggravated indecent assault, pertaining to the purported
digital penetration while bathing B.H. as set forth in the above-quoted affidavit
of probable cause that was bound over by the magisterial district judge at the
preliminary hearing before a magisterial district judge.
On September 1, 2016, Appellant filed an omnibus pre-trial motion
requesting, inter alia, that the trial court sever the criminal charges into
separate trials for each victim. The Commonwealth conceded to severance
and, on March 30, 2017, the trial court granted Appellant relief. This case,
pertaining exclusively to victim B.H., proceeded to jury selection on October
23, 2017. Between jury selection and the start of trial, Appellant filed a motion
in limine to preclude proposed Commonwealth expert witness, Mary Volkar,
from testifying at trial. The trial court denied relief.
-2-
J-S27004-19
On October 31, 2017, prior to the start of trial, Appellant filed an
additional pre-trial motion, seeking to preclude the Commonwealth from
presenting evidence of two specific prior bad acts concerning B.H. More
specifically, Appellant sought to preclude testimony regarding two separate
incidents pertaining to B.H. wherein: (1) Appellant exposed himself and
showered in front of the victim when she was between the ages of five and
seven and (2) Appellant digitally penetrated the victim while bathing her when
she was six- or seven-years-old. The trial court initially granted Appellant
relief based upon the Commonwealth’s failure to file a required bad acts notice
under Pa.R.E. 404(b). Following a brief recess, however, the Commonwealth
requested reconsideration of the Rule 404(b) decision and sought to amend
the criminal information to include the offense of aggravated indecent assault.
The Commonwealth asserted that Trooper Boyd previously charged the
incident involving digital penetration in the October 26, 2015 criminal
complaint and the offense was bound over for trial by the magisterial district
judge, but it was omitted inadvertently from the criminal information. As
such, the Commonwealth argued Appellant’s criminal information should have
included the charge of aggravated indecent assault. The trial court granted
Appellant a continuance and discharged the jury.
On November 7, 2017, the Commonwealth filed notice pursuant to
Pa.R.E. 404(b) that it intended to introduce evidence that Appellant exposed
himself and showered in front of the victim. In response, Appellant filed
another motion in limine to preclude the Commonwealth’s proffered prior bad
-3-
J-S27004-19
acts evidence. The trial court granted partial relief, precluding the prior bad
acts evidence from opening statements and reserving its ruling on the
admissibility of specific acts at trial. On November 9, 2017, the
Commonwealth amended its criminal information to include one count of
aggravated indecent assault alleging Appellant digitally penetrated B.H.
A two-day jury trial commenced on November 14, 2017. At its
conclusion, the jury convicted Appellant of all charges included in the amended
criminal information. On March 5, 2018, the trial court sentenced Appellant
to an aggregate term of 18 to 36 years of imprisonment, followed by 10 years
of probation. This timely appeal resulted.2
On appeal, Appellant presents the following issues for our review:
1. [Whether t]he trial court erred in allowing the [Commonwealth]
[to use an irrelevant and prejudicial] photo[] of the alleged
victim as a child [during opening statements?]
2. [Whether t]he [trial] court erred in allowing the Commonwealth
to present testimony of [Appellant’s] prior bad acts, the subject
matter of which did not qualify for a permitted use under
Pa.R.E. 404(b), and without providing reasonable notice in
advance of trial to the defense[?]
3. [Whether t]he [trial] court erred in denying [Appellant’s]
motion in limine to preclude or limit the expert testimony of
Mary Volkar[?]
____________________________________________
2 Appellant filed a notice of appeal on March 28, 2018. On April 4, 2018, the
trial court filed an order directing Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b). After securing an
extension from the trial court, Appellant timely complied. The trial court
issued an opinion pursuant to Pa.R.A.P. 1925(a) on August 3, 2018.
-4-
J-S27004-19
4. [Whether t]he [trial] court erred in denying defense counsel’s
objection to questions relating to [Appellant’s] marital
history[?]
5. [Whether t]he [trial] court erred in denying [Appellant’s]
request for the “hypothetical question” jury instruction
regarding expert Mary Volkar’s testimony[?]
6. [Whether t]he [trial] court erred in allowing the Commonwealth
to amend the criminal information on the eve of trial[?]
Appellant’s Brief at 7 (superfluous capitalization omitted).3
Appellant’s first four issues concern the publication and admission of
evidence at trial. Our standard of review regarding such claims is well-settled:
This Court evaluates the admission of evidence by an abuse of
discretion standard. An abuse of discretion is not merely an error
of judgment. Rather, discretion is abused when the law is
overridden or misapplied, or the judgment exercised is manifestly
unreasonable or the result of partiality, prejudice, or ill-will, as
shown by the evidence of record.
Commonwealth v. Brown, 200 A.3d 986, 990 (Pa. Super. 2018) (internal
citations omitted).
In his first issue presented, Appellant argues the trial court erred by
allowing the Commonwealth to display, during its opening argument, a
“poster-sized photograph” depicting the victim when she was six years old.
See Appellant’s Brief at 13-15. Appellant contends that he “objected to the
use of the photo and argued that it was more prejudicial than probative,
making it inadmissible evidence[,]” but the trial court erroneously overruled
his objection. Id. at 13. Moreover, Appellant argues that because the
____________________________________________
3 We have reordered Appellant’s issues for ease of discussion.
-5-
J-S27004-19
photograph was not subsequently entered into evidence and because he
objected to its relevance, the trial court failed to abide by our Supreme Court’s
directives in Commonwealth v. Parker, 919 A.2d 943 (Pa. 2007). Id. at
14. As such, Appellant argues:
The enlarged photo of the victim as a child served no purpose but
to influence the jury and predispose the jury to find the accused
guilty of the crimes charged. The argument that the photo was
used to prove [Appellant’s] age at the time of the incidents was
pretext, especially given the fact that the photograph was never
offered into evidence. There was nothing apparent from the
photograph that would connect it to the crimes charged or place
them in the same time period. The photograph was used to
inflame the passions of the jury by showing them an adorable
young child juxtaposed with the description of disgusting incidents
of abuse. Its use was unfairly prejudicial, which outweighed any
probative value of the photo.
Id. at 15.
Initially, we note that the trial court determined:
At the close of evidence, no request for a limiting instruction
regarding the photo used in the Commonwealth’s opening
statement was made. Neither party raised the issue that the
Commonwealth had neglected to formally authenticate and offer
the photograph into evidence.
Trial Court Opinion, 8/3/2018, at 13.
Because Appellant failed to object or raise the issue before the trial
court, Appellant has waived his present challenge to the Commonwealth’s
display of the victim’s photograph during opening statements. See
Commonwealth v. Poplawski, 130 A.3d 697, 728 (Pa. 2015), citing
-6-
J-S27004-19
Pa.R.A.P. 302 (preservation of issue must be made with a timely and specific
objection; appellant may not raise an issue for the first time on appeal).
Additionally, we reject Appellant’s reliance on our Supreme Court’s
decision in Parker. In Parker, our Supreme Court examined whether it was
error to display a handgun to the jury during opening statements, when the
prosecution later admitted the handgun into evidence during trial. Our
Supreme Court stated:
The purpose of an opening statement is to apprise the jury how
the case will develop, its background and what will be attempted
to be proved; but it is not evidence. [Our Supreme Court has]
acknowledged that as a practical matter the opening statement
can often times be the most critical stage of the trial, because
here the jury forms its first and often lasting impression of the
case. The prosecution, as well as the defense, is afforded
reasonable latitude in presenting opening arguments to the jury.
Such latitude is not without limits.
A prosecutor's statements must be based on evidence that he
plans to introduce at trial, and must not include mere assertions
designed to inflame the jury's emotions. A prosecutor's opening
statements may refer to facts that he reasonably believes will be
established at trial.
[…N]o statute, rule of procedure, or case law in Pennsylvania
specifically precludes a prosecutor from displaying a tangible piece
of evidence to the jury during an opening statement as long as
that evidence will eventually be admitted without objection. [Our
Supreme Court saw no reason] to create a rule barring tangible
pieces of evidence from being displayed during an opening
statement []. Indeed, where the tangible piece of evidence falls
within the scope of material the prosecutor intends to introduce
at trial and its display during the opening argument does not
inflame the passions of the jury, the display of that piece of
evidence is wholly proper. Accordingly, [there was no abuse of
discretion in] allowing the prosecutor to display to the jury a
tangible piece of evidence [] where the evidence was within the
-7-
J-S27004-19
scope of the evidence the prosecutor intended to introduce at trial,
and where there was no question as to its admissibility.
Commonwealth v. Parker, 919 A.2d 943, 950 (Pa. 2007) (internal citations
and quotations omitted).
Moreover, the Parker Court noted:
To be clear, however, permission from the trial court to display a
piece of tangible evidence during a prosecutor's opening
statement will not serve as a license to display tangible evidence
in any way that prosecutor sees fit. While nothing prohibits a
prosecutor from displaying admissible evidence, the manner by
which the prosecutor conducts the display may itself constitute
prosecutorial misconduct or result in a mistrial. For instance,
where the display goes beyond permissible oratorical flair, is done
in a flamboyant, erratic, or frightening manner, or where the
prosecutor effectively converts himself into an unsworn witness,
such actions may well result in a mistrial. By way of example, see
People v. Williams, 90 A.D.2d 193, 196, 456 N.Y.S.2d 1008,
1010 (N.Y.A.D.1982). In Williams, the concealability of a gun
was at issue. To demonstrate that it was possible to hide the gun,
the prosecutor hid the sawed-off shotgun under his clothing and
pulled it out during his opening statement. The Supreme Court of
New York, Appellate Division found this reversible error, holding
that the demonstration converted the prosecutor into an unsworn
witness. That court concluded that the prosecutor's actions
created a substantial likelihood that prejudice resulted that could
never be dispelled from the minds of the jury. Id.Id. at 953 n.9.
In this case, the trial court determined:
[T]he Commonwealth intended to introduce evidence that B.H.
was repeatedly sexually assaulted by her uncle, [Appellant], when
B.H. was between the ages of six (6) and nine (9). A photo
depicting how she appeared at those ages is within the scope of
material the Commonwealth intended to prove at trial.
Trial Court Opinion, 8/3/2018, at 11. Upon review, while the Commonwealth
did not authenticate or enter the photograph into evidence, we agree that the
-8-
J-S27004-19
photograph was within the scope of material the Commonwealth intended to
prove at trial.4
Moreover, we have stated:
Since a photograph is simply a type of demonstrative evidence,
Commonwealth v. Serge, 896 A.2d 1170, 1177 (Pa. 2006), it,
like all other types of evidence, is subject to general relevancy
principles. “All relevant evidence is admissible, except as
otherwise provided by law. Evidence that is not relevant is not
admissible.” Pa.R.E. 402.
Commonwealth v. Vucich, 194 A.3d 1103, 1107 (Pa. Super. 2018).
Generally, a court conducts a two-part test to determine whether to
admit photographs:
First, the court must determine whether the photograph is
inflammatory. This Court has interpreted inflammatory to mean
the photo is so gruesome it would tend to cloud the jury's
objective assessment of the guilt or innocence of the defendant.
Next, if the trial court decides the photo is inflammatory, in order
to permit the jury to view the photo as evidence, it must then
determine whether it is has essential evidentiary value.
Id. (citations omitted).
Recently, in Vucich, our Court was asked to decide whether the trial
court erred by allowing the admission of two photographs depicting a minor
sexual assault victim when he was between the ages of nine and eleven, the
age he was at the time of the alleged crimes. By the time of trial, the victim
in Vucich was twenty-years-old. The photographs were introduced into
____________________________________________
4 Appellant does not challenge the Commonwealth’s assertion that the
photograph was taken during the time of the abuse.
-9-
J-S27004-19
evidence during the testimony of the victim’s mother. Vucich argued that “the
photographs were legally irrelevant and therefore inadmissible.” Vucich, 194
A.3d at 1107. The trial court determined that “[t]he two pictures introduced
by [the victim]'s mother helped the jury to picture [the victim] as a child so
that the jury could better evaluate his testimony.” Id. On appeal in Vucich,
a panel of this Court disagreed. We stated:
The connection between viewing depictions of a witness as a child
and how those photographs can assist in the evaluation of the
victim's in-court testimony is questionable. The parties have not
supplied us with any citation to a Pennsylvania authority
addressing the introduction of a photograph under these
circumstances, where a victim testifies long after the commission
of the crimes. However, numerous cases have addressed the
related context of introducing photographs of a homicide victim.
Id. at 1108. The Vucich Court, examining Commonwealth v. Story, 383
A.2d 155 (Pa. 1978) and Commonwealth v. Rivers, 644 A.2d 710 (Pa.
1994), recognized that the use of a photograph of a homicide victim (taken
when they were alive) to show at trial that they were once “a life in being” is
clearly irrelevant as there is no dispute that they were alive prior to the
discovery of the body. Id. However, we also noted in Vucich that in
Commonwealth v. Smyrnes, 154 A.3d 741 (Pa. 2017), our Supreme Court
held that a photograph of the homicide victim when she was alive “was
relevant, since its evidentiary purpose had some connection to the
Commonwealth's case-in-chief.” Vucich, 194 A.3d at 1109. In Smyrnes,
the victim was scalped and our Supreme Court determined that a photograph
depicting her normal hairstyle was corroborative of testimony regarding the
- 10 -
J-S27004-19
torture she endured preceding the murder. The Smyrnes Court “recognize[d]
that it was by no means essential to the prosecution to place this photograph
before the jury [and] caution[ed] the Commonwealth concerning the value of
restraint in scenarios involving potential prejudice connected with such non-
essential evidence.” Id., citing Smyrnes, 154 A.3d at 754.
Based upon the foregoing, the Vucich Court ultimately determined:
There are obvious parallels between the Commonwealth's seeking
to establish through photographic proof what a homicide victim
looked like around the time of his or her death, and the facts sub
judice, in which the Commonwealth sought to show the victim's
appearance near the time of the crimes. Just as such evidence is
generally irrelevant in a homicide prosecution—at least in cases
where the “life in being” element is not in question—so too were
[the victim’s] childhood pictures irrelevant, as [Vucich] did not
contest that [the victim] was actually a child at the times he
testified that the abuse occurred. There was thus no need to prove
to the jury what [the victim] looked like as a child, rendering the
evidence irrelevant.
We further disagree[d] with the Commonwealth's assertion that
the evidence was relevant because the photographs were
necessary to visually depict his appearance at the time the crimes
occurred. It is undeniable that, due to the passage of time in this
case, photographs or some other type of demonstrative evidence
were indeed necessary to establish [the victim’s] appearance at
the time of the crimes. The Commonwealth's argument, however,
beg[ged] the question by assuming that the victim's visual
appearance at the time of the crimes needed to be established in
the first place. Pursuant to the principles in Story and its progeny,
we conclude[d] that the photographs were irrelevant, and
therefore inadmissible.
* * *
[However, w]e [found] that any prejudice was de minimis and
therefore the error was harmless beyond a reasonable doubt.
There [was] a natural overlap between what the photographs
show[ed] and how the prosecution use[d] the photographs, and
any resulting prejudice. In Story, our Supreme Court noted that
- 11 -
J-S27004-19
the photographs were introduced along with testimony of the
victim's family status and other events of a personal nature. [In
Vucich], as the Commonwealth note[d], the photographs were
referenced briefly, and the prosecutor did not revisit or otherwise
draw attention to the photographs following their introduction.
[Those] circumstance[s were] more akin to Rivers, in which our
Supreme Court concluded that introducing the victim's
photograph was harmless beyond a reasonable doubt[.]
* * *
Therefore, while the photographs were irrelevant [in Vucich],
their use was limited, and, according to the parties' descriptions
of the items, the exhibits simply depicted [the victim’s] general
appearance at the time of these crimes. While improperly
introduced, we conclude[d] that any prejudicial effect was de
minimis.
Related to this point, [we also noted] one obvious distinction
between the scenarios in the examined homicide cases and []
circumstances [related to sexual abuse of a minor]. In a homicide
prosecution, but for the introduction of demonstrative evidence of
the victim, the jury will have no frame of reference for the victim's
appearance. In contrast, the jury [is] obviously aware of the fact
that [the sexually abused victim] was once a child, and it takes no
great leap of imagination to imagine what a witness may have
looked like as a child. This point further highlights the de minimis
prejudice.
Finally, we briefly note[d] that our [Vucich] decision [was] limited
to [its] factual circumstances, wherein the photographs were
displayed for no purpose other than establishing [the victim’s]
appearance at the time of the crimes. We [did] not hold[,
however,] that the appearance of a child victim is per se
irrelevant. Cf. State v. Klein, 593 N.W.2d 325, 327 (N.D. 1999)
(finding that photograph depicting twelve-year-old victim at age
six, when the molestation occurred, was relevant; further noting
that the photo “permitted the jury to see what [the victim] looked
like at the age of six when he asserted he had been deathly afraid
of Klein, as opposed to his appearance at the trial when he was
twelve years old and testified he was no longer afraid of Klein”).
Vucich, 194 A.3d at 1109–1111 (quotations and most citations omitted).
- 12 -
J-S27004-19
In this case, while the photograph of the victim at issue was never
admitted into evidence,5 the holding in Vucich is instructive. Despite the
irrelevance of the photograph of the victim as a child, the jury was obviously
aware of the fact that she was once a child and the prejudice to Appellant was
de minimis and harmless. Moreover, the Commonwealth’s limited use of the
photo at issue herein was even less prejudicial than in Vucich because the
Commonwealth did not introduce it into evidence and, thus, the jury only saw
it briefly during opening statements.
Finally, we note that the trial court instructed the jury that, “[o]pening
statements are not evidence.” N.T., 11/14/2017, at 13. The trial court further
instructed the jury that, “[a]rguments by their very nature are not evidence.”
N.T., 11/15/2017, at 2. “It is well settled that the jury is presumed to follow
the trial court's instructions.” Commonwealth v. Cash, 137 A.3d 1262, 1280
(Pa. 2016).
Based upon the foregoing, we conclude that Appellant waived his
challenge that the Commonwealth did not properly enter the photograph of
the victim, shown during opening statements, into evidence. Regardless, we
conclude that there is no merit to Appellant’s claim. Demonstrative evidence
may be used during opening statements where that evidence was within the
scope of the evidence to be introduced at trial. Moreover, any prejudice to
____________________________________________
5 Appellant does not challenge the authenticity of the photograph at issue.
He claims only that the photograph was unfairly prejudicial.
- 13 -
J-S27004-19
Appellant was harmless and de minimis. As such, there is no merit to
Appellant’s first issue.
Next, Appellant contends that the trial court erred by allowing the
Commonwealth to present testimony of Appellant’s prior bad acts. Appellant’s
Brief at 15-17. More specifically, Appellant challenges the Commonwealth’s
presentation of “evidence that [Appellant] forced the victim to observe him
showering.” Id. at 16. Appellant argues that the Commonwealth only gave
him six days’ notice that it was proposing to use the aforementioned prior bad
act at trial and “[t]here was no good cause shown for the delay in giving notice
of the prior bad act evidence.” Id. at 17. Thus, Appellant maintains that,
“[t]he trial court abused its discretion in allowing the Commonwealth to
present this evidence and it was harmful and prejudicial to [Appellant].” Id.
This Court has recently stated:
Generally, character evidence is not admissible to prove conduct.
Pa.R.E. 404(b).
Rule 404. Character evidence not admissible to prove
conduct; exceptions; other crimes
***
(b) Other crimes, wrongs, or acts.
(1) Evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to
show action in conformity therewith.
(2) Evidence of other crimes, wrongs, or acts may be
admitted for other purposes, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity
or absence of mistake or accident.
- 14 -
J-S27004-19
(3) Evidence of other crimes, wrongs, or acts proffered
under subsection (b)(2) of this rule may be admitted in a
criminal case only upon a showing that the probative value
of the evidence outweighs its potential for prejudice.
Pa.R.E. 404(b)(1)-(b)(3). There are limited exceptions to the
admission at trial of evidence of other crimes or prior bad acts.
Id.; Commonwealth v. Young, 989 A.2d 920, 924 (Pa. Super.
2010).
One such exception arises in the prosecution of sexual
offenses. Evidence of prior sexual relations between
defendant and his...victim is admissible to show a passion
or propensity for illicit sexual relations with the victim. This
exception is limited, however. The evidence is admissible
only when the prior act involves the same victim and the
two acts are sufficiently connected to suggest a continuing
course of conduct. The admissibility of the evidence is not
affected by the fact that the prior incidents occurred outside
of the statute of limitations.
Id. (emphasis in original). Evidence that provides the factfinder
with the res gestae, or complete history, of a crime holds special
significance. Commonwealth v. Wattley, 880 A.2d 682, 687
(Pa. Super. 2005), appeal dismissed, 924 A.2d 1203 (Pa. 2007).
[T]he trial court is not...required to sanitize the trial to eliminate
all unpleasant facts from...consideration where those facts are
relevant to the issues at hand and form part of the history and
natural development of the events and offenses for which the
defendant is charged.
Res gestae evidence is of particular import and significance in
trials involving sexual assault. By their very nature, sexual assault
cases have a pronounced dearth of independent eyewitnesses,
and there is rarely any accompanying physical evidence.... [In
these] cases the credibility of the complaining witness is always
an issue.
Id. (emphasis in original) (internal citations and quotation marks
omitted).
Commonwealth v. Adams-Smith, 209 A.3d 1011, 1020–1021 (Pa. Super.
2019).
- 15 -
J-S27004-19
Regarding notice of prior bad acts evidence:
In criminal cases, the prosecution shall provide reasonable notice
in advance of trial, or during trial if the court excuses pretrial
notice on good cause shown, of the general nature of any such
evidence it intends to introduce at trial. Pa.R.E. 404(b)(4). The
purpose of this rule “is to prevent unfair surprise, and to give the
defendant reasonable time to prepare an objection to, or ready a
rebuttal for, such evidence.” Pa.R.E. 404, cmt. However, there is
no requirement that the “notice” must be formally given or be in
writing in order for the evidence to be admissible.
Commonwealth v. Mawhinney, 915 A.2d 107, 110 (Pa. Super.
2006).
Commonwealth v. Lynch, 57 A.3d 120, 125–126 (Pa. Super. 2012).
Here, there is no dispute that, six days before trial, the Commonwealth
gave Appellant Rule 404(b) notice of its intention to introduce evidence that
Appellant showered in front of the victim. Hence, Appellant received pre-trial
notice of the Rule 404(b) evidence that would be introduced. Moreover,
Appellant does not explain how he was prejudiced or otherwise unfairly
surprised. Defense counsel cross-examined the victim about the alleged
incident at trial. See N.T., 11/14/2017, at 59-60. Based upon all of the
foregoing, we conclude that the Commonwealth’s Rule 404(b) notice was
reasonable.
Moreover, we discern no abuse of discretion or error of law in permitting
the Commonwealth to introduce the prior bad act evidence at trial. The prior
bad act evidence involved the same victim, suggested a continuing course of
conduct, and showed a passion or propensity for illicit sexual relations with
the victim. The proffered evidence provided the jury with the res gestae, or
- 16 -
J-S27004-19
the complete history, of the crimes against the victim. Hence, Appellant is
not entitled to relief on his second claim as presented.
In his third issue presented on appeal, Appellant claims that the
Commonwealth’s expert on sexual violence, Mary Volkar “bolster[ed] the
testimony of the victim by offering the opinion that the victim should be
trusted, which is not admissible” under 42 Pa.C.S.A. § 5920. Appellant’s Brief
at 18.
This Court has previously determined:
The admission of expert testimony is a matter of discretion [for]
the trial court and will not be remanded, overruled or disturbed
unless there was a clear abuse of discretion. Expert testimony is
permitted as an aid to the jury when the subject matter is
distinctly related to a science, skill, or occupation beyond the
knowledge or experience of the average layman. Conversely,
expert testimony is not admissible where the issue involves a
matter of common knowledge.
42 Pa.C.S.A. § 5920 provides as follows:
§ 5920. Expert testimony in certain criminal proceedings
(a) Scope.—This section applies to all of the following:
(1) A criminal proceeding for an offense for which
registration is required under Subchapter H of Chapter
97 (relating to registration of sexual offenders).
(2) A criminal proceeding for an offense under 18 Pa.C.S.
Ch. 31 (relating to sexual offenses).
(b) Qualifications and use of experts.—
(1) In a criminal proceeding subject to this section, a
witness may be qualified by the court as an expert if the
witness has specialized knowledge beyond that
possessed by the average layperson based on the
witness's experience with, or specialized training or
education in, criminal justice, behavioral sciences or
- 17 -
J-S27004-19
victim services issues, related to sexual violence, that will
assist the trier of fact in understanding the dynamics of
sexual violence, victim responses to sexual violence and
the impact of sexual violence on victims during and after
being assaulted.
(2) If qualified as an expert, the witness may testify to
facts and opinions regarding specific types of victim
responses and victim behaviors.
(3) The witness's opinion regarding the credibility of any
other witness, including the victim, shall not be
admissible.
(4) A witness qualified by the court as an expert under
this section may be called by the attorney for the
Commonwealth or the defendant to provide the expert
testimony.
42 Pa.C.S.A. § 5920 (footnote omitted).
Commonwealth v. Carter, 111 A.3d 1221, 1222–1223 (Pa. Super. 2015).
Our Supreme Court has held that “[e]xpert testimony on relevant
psychological factors ... does not directly speak to whether a particular witness
was untrustworthy, or even unreliable, as the expert is not rendering an
opinion on whether a specific witness [testified accurately.] ... Rather, such
testimony teaches—it provides jurors with education by which they assess for
themselves the witness's credibility.” Commonwealth v. Smith, 206 A.3d
551, 561 (Pa. Super. 2019), citing Commonwealth v. Walker, 480, 92 A.3d
766, 784 (Pa. 2014).
Here, there is no dispute that Ms. Volkar was qualified, pursuant to
Section 5920, to testify as an expert on the dynamics of sexual violence and
victim responses to sexual violence. See N.T., 11/14/2017, at 98. Ms. Volkar
testified about the “reasons why young people do not come forward after
- 18 -
J-S27004-19
being sexually assaulted.” Id. at 101. She expounded upon some of the
reasons why a child sexual abuse victim may delay in reporting. Id. at
101-108. The certified record, however, confirms that Ms. Volkar did not
testify specifically regarding the victim in this case and did not offer an opinion
as to whether the alleged incidents actually occurred. She did not offer any
opinion regarding the victim’s credibility. Hence, under Section 5920, Ms.
Volkar’s testimony was properly admitted. As such, there is no merit to
Appellant’s third appellate issue.
Next, Appellant claims that the trial court erred by allowing the
Commonwealth to cross-examine him about his marital status. Appellant’s
Brief at 21. In sum, he argues:
It was apparent from the testimony that [Appellant] was married
to his wife throughout the time period in question. The
Commonwealth [] used pretext when asserting that the relevance
of the question regarding [Appellant’s] marital status was whether
he was married at the time of the incident. That fact was already
established. The only credible reason for eliciting information with
such a question was to show that [Appellant] was subsequently
divorced, which is irrelevant and prejudicial. The trial court
abused its discretion in overruling [Appellant’s] objection to this
line of questioning.
Id.
Appellant, however, does not cite any relevant legal authority to support
this proposition. “We have repeatedly held that failure to develop an
argument with citation to, and analysis of, relevant authority waives the issue
on review.” Commonwealth v. Plante, 914 A.2d 916, 924 (Pa. Super.
2006); see also Pa.R.A.P. 2119(a).
- 19 -
J-S27004-19
Assuming arguendo that Appellant did not waive this issue, it is
otherwise without merit. Upon review of the record, Appellant testified on
direct examination that there were numerous people living in the household
at the time of the incidents. N.T., 11/14/2017, at 133. Appellant testified
that he was not the primary caregiver of the victim and that the victim’s
grandmother, mother, and Appellant’s “ex-wife [] usually did those jobs.” Id.
at 132. Appellant claimed that his wife was possibly present in the household
at the time of the incidents. Id. at 138. On cross-examination, the
Commonwealth asked Appellant when he separated from his wife. Id. at 145.
Appellant testified that they separated in 2003 or 2004, seven or eight years
after the victim alleged the abuse occurred. Id. at 146-147.
“[T]he scope of cross-examination is a matter within the discretion of
the trial court and will not be reversed absent an abuse of that discretion.”
Commonwealth v. Leaner, 202 A.3d 749, 781 (Pa. Super. 2019).
Additionally, this Court has stated:
One who induces a trial court to let down the bars to a field
of inquiry that is not competent or relevant to the issues
cannot complain if his adversary is also allowed to avail
himself of that opening. The phrase “opening the door”... by
cross examination involves a waiver. If [an appellant] delves
into what would be objectionable testimony on the part of
the Commonwealth, then the Commonwealth can probe
further into the objectionable area.
Commonwealth v. Stakley, 365 A.2d 1298, 1299–1300 (Pa.
Super. 1976)[; s]ee also Commonwealth v. Patosky, 656 A.2d
499, 504 (Pa. Super. 1995), appeal denied, 668 A.2d 1128 (Pa.
1995) (holding when defendant delves into what would have been
objectionable testimony on Commonwealth's part,
Commonwealth can probe into objectionable area);
- 20 -
J-S27004-19
Commonwealth v. Bey, 439 A.2d 1175, 1178 (Pa. Super 1982)
(holding where defendant opens door to what otherwise might be
objectionable testimony, Commonwealth may probe further to
determine veracity of statement).
Commonwealth v. Harris, 884 A.2d 920, 928 (Pa. Super. 2005).
In this case, the trial court determined that exploration of Appellant’s
marital status was proper on cross-examination by the Commonwealth
because Appellant “testified that his wife may have been present when the
sexual assault upon [the victim] were alleged by her to have been
perpetrated.” Trial Court Opinion, 8/3/2018, at 20. As such, it was proper to
allow the Commonwealth to probe further to determine the veracity of
Appellant’s statement that his wife may or may not have been present at the
relevant times. As such, we discern no abuse of discretion or error of law by
the trial court and Appellant’s claim regarding questioning about his marital
status, while woefully undeveloped in his appellate brief, also lacks merit.
Next, Appellant asserts that the trial court erred by denying his request
for the “hypothetical question” jury instruction regarding Ms. Volkar’s expert
testimony. Appellant’s Brief at 18-21. Appellant argues that the
Commonwealth asked “Ms. Volkar to assume a situation that might arise
following a sexual assault and to give an opinion about whether that situation
comport[ed] with reality.” Id. at 19. Accordingly, Appellant argues that he
was entitled to “the instruction on hypothetical questions, as it would have
guided the jury to question whether the assumed facts had been proven in
- 21 -
J-S27004-19
order to determine what value and weight to give the expert witness’s
opinion.” Id. at 21.
“[O]ur standard of review when considering the denial of jury
instructions is one of deference—an appellate court will reverse a court's
decision only when it abused its discretion or committed an error of law.”
Commonwealth v. Baker, 24 A.3d 1006, 1022 (Pa. Super. 2011) (citation
omitted). To preserve a challenge to the adequacy or omission of a particular
jury instruction, the defendant must make a specific and timely objection at
trial before the jury deliberates. Commonwealth v. Smith, 206 A.3d 551,
564 (Pa. Super. 2019); Pa.R.A.P. 302(b) (“A general exception to the charge
to the jury will not preserve an issue for appeal. Specific exception shall be
taken to the language or omission complained of.”); Pa.R.Crim.P. 647(C) (“No
portions of the charge nor omissions from the charge may be assigned as
error, unless specific objections are made thereto before the jury retires to
deliberate.”). “[I]n the criminal trial context, the mere submission and
subsequent denial of proposed points for charge that are inconsistent with or
omitted from the instructions actually given will not suffice to preserve an
issue, absent a specific objection or exception to the charge or the trial court's
ruling respecting the points.” Commonwealth v. Hitcho, 123 A.3d 731, 756
(Pa. 2015) (internal quotation marks and citation omitted). Furthermore, “a
defendant waives subsequent challenges to the propriety of the jury charge
on appeal if he responds in the negative when the court asks whether additions
- 22 -
J-S27004-19
or corrections to a jury charge are necessary.” Commonwealth v. Moury,
992 A.2d 162, 178 (Pa. Super. 2010).
Here, Appellant requested a hypothetical question jury instruction at the
charging conference. See N.T., 11/14/2017, at 123-124. However, Appellant
did not object, on the record, to the trial court’s preclusion of a jury instruction
on hypothetical questions. See N.T., 11/14/2017, at 176-177; N.T.,
11/15/2017, at 41-42. Appellant’s mere mention of his requested instruction
at the charging conference is not a timely, specific objection. Appellant had
other opportunities to raise his objection before the jury retired, but he did
not. See Moury, 992 A.2d at 178. Thus, we find Appellant waived his fourth
issue.
Finally, in his last appellate issue presented, Appellant contends that the
trial court erred by allowing the Commonwealth to amend the criminal
information on the eve of trial. Appellant’s Brief at 21-23. More specifically,
Appellant argues that it was error to allow the Commonwealth to amend the
criminal information to include count 25, aggravated indecent assault
pursuant to 18 Pa.C.S.A. § 3125(8), regarding “an incident of digital
penetration while bathing.” Id. at 21-23. Appellant acknowledges that
Trooper Boyd originally included two counts of aggravated indecent assault
pursuant to another subsection of Section 3125, 18 Pa.C.S.A. § 3125(1),6 at
____________________________________________
6 The aggravated indecent assault statute, 18 Pa.C.S.A. § 3125 provides, in
relevant part, as follows:
- 23 -
J-S27004-19
counts 16 and 17 within the original criminal complaint filed on October 26,
2015, but the Commonwealth did not include those charges in the subsequent
criminal information. Id. at 23. Appellant avers that those original counts
from the criminal complaint did not specify the facts supporting the charges,
stating only that “on or about said date, [Appellant] did engage in penetration,
however slight, of the genitals or anus of a complainant [] with part of the
actor’s body for a purpose other than good faith medical, hygienic or law
enforcement procedures, and did so without the complainant’s consent in
violation of Section 3125(a)(1) of the PA Crimes Code.” Id., citing Criminal
Complaint at 9. As such, Appellant argues that he was not given the factual
basis for the amended charge and was not on notice regarding the alleged
criminal conduct at issue. Id. at 23.
____________________________________________
(a) Offenses defined.--Except as provided in sections 3121
(relating to rape), 3122.1 (relating to statutory sexual assault),
3123 (relating to involuntary deviate sexual intercourse) and
3124.1 (relating to sexual assault), a person who engages in
penetration, however slight, of the genitals or anus of a
complainant with a part of the person's body for any purpose other
than good faith medical, hygienic or law enforcement procedures
commits aggravated indecent assault if:
(1) the person does so without the complainant's consent;
* * *
(8) the complainant is less than 16 years of age and the
person is four or more years older than the complainant and
the complainant and the person are not married to each
other.
18 Pa.C.S.A. § 3125(a).
- 24 -
J-S27004-19
We have previously determined:
[W]hen presented with a question concerning the propriety of an
amendment, we consider:
[w]hether the crimes specified in the original indictment or
information involve the same basic elements and evolved
out of the same factual situation as the crimes specified in
the amended indictment or information. If so, then the
defendant is deemed to have been placed on notice
regarding his alleged criminal conduct. If, however, the
amended provision alleges a different set of events, or the
elements or defenses to the amended crime are materially
different from the elements or defenses to the crime
originally charged, such that the defendant would be
prejudiced by the change, then the amendment is not
permitted. Additionally, [i]n reviewing a grant to amend an
information, the Court will look to whether the appellant was
fully apprised of the factual scenario which supports the
charges against him. Where the crimes specified in the
original information involved the same basic elements and
arose out of the same factual situation as the crime added
by the amendment, the appellant is deemed to have been
placed on notice regarding his alleged criminal conduct and
no prejudice to defendant results.
Further, the factors which the trial court must consider in
determining whether an amendment is prejudicial are:
(1) whether the amendment changes the factual scenario
supporting the charges; (2) whether the amendment adds
new facts previously unknown to the defendant; (3) whether
the entire factual scenario was developed during a
preliminary hearing; (4) whether the description of the
charges changed with the amendment; (5) whether a
change in defense strategy was necessitated by the
amendment; and (6) whether the timing of the
Commonwealth's request for amendment allowed for ample
notice and preparation.
In re D.G., 114 A.3d 1091, 1094–1095 (Pa. Super. 2015) (internal citations
omitted).
- 25 -
J-S27004-19
Here, the trial court determined that amending the criminal information
to include one count of aggravated indecent assault under 18 Pa.C.S.A.
§ 3125(8) was proper because “the facts underlying the amendment was well
known to [Appellant] and his counsel.” Trial Court Opinion, 8/3/2018, at 22.
The trial court examined the affidavit of probable cause attached to the
criminal complaint and recognized that Trooper Boyd, the investigating officer
in this matter, recounted that B.H. told him that “[Appellant] penetrated her
vagina with his fingers” and “put his fingers inside her vagina on one occasion
when he was giving her a bath.” Id., citing Affidavit of Probable Cause,
10/26/2015, ¶¶ 2-3. Moreover, the trial court noted that the Commonwealth
established a prima facie showing for the amended charge at Appellant’s
preliminary hearing. Trial Court Opinion, 8/3/2018, at 22. Thus, the trial
court permitted the Commonwealth to amend the criminal information.
Trooper Boyd initially charged Appellant with two counts of aggravated
indecent assault pursuant to Section 3125(a)(1), which pertains to a person
who engages in penetration, however slight, of the genitals or anus of a
complainant with a part of the person's body for any purpose other than good
faith medical, hygienic or law enforcement procedures without the
complainant's consent. (emphasis added). Whereas, the Commonwealth
amended the information to charge Appellant under Section 3125(8) which
applies to a person who engages in penetration, however slight, of the genitals
or anus of a complainant with a part of the person's body for any purpose
other than good faith medical, hygienic or law enforcement procedures if the
- 26 -
J-S27004-19
complainant is less than 16 years of age and the person is four or more
years older than the complainant and the complainant and the person
are not married to each other. (emphasis added).
Upon review, we discern no abuse of discretion or error of law in
permitting the Commonwealth to amend the criminal information. Appellant
was well aware of the factual allegations against him in 2015, as set forth in
the affidavit of probable cause. Moreover, he does not dispute the trial court’s
determination that the Commonwealth established a prima facie case for
aggravated indecent assault at the preliminary hearing, well in advance of
trial. As such, Appellant was on notice regarding his alleged criminal conduct.
The amendment merely permitted the Commonwealth to charge Appellant
under a more appropriate subsection of Section 3125(a), Section 3125(a)(8)
(complainant is less than 16 years of age)7 rather than Section 3125(a)(1)
(without consent). Accordingly, Appellant’s final claim lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/11/2019
____________________________________________
7 There is no dispute that the victim was under 16 years of age at the time
of the incidents.
- 27 -