Com. v. Booth, R.

Opinion

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

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v. :

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:

ROBERT BOOTH :

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Appellant : No. 1303 EDA 2020

Appeal from the Judgment of Sentence Entered February 4, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0005705-2015

BEFORE: BOWES, J., LAZARUS, J., and McLAUGHLIN, J. MEMORANDUM BY McLAUGHLIN, J.: FILED: JUNE 4, 2021 Robert Booth appeals from the judgment of sentence following his convictions for Involuntary Deviate Sexual Intercourse and Sexual Assault.1 He challenges the weight of the evidence, rulings on evidence, and the denial of his request to call a defense witness. We affirm based on the opinion of the Honorable Jeffery Minehart.

The charges at issue stem from Booth’s sexual abuse of his niece, J.L.M.

Before trial, the Commonwealth filed a motion in limine to introduce the testimony of Booth’s former stepdaughter, J.M. – also referred to in the record as “J.G.” – and her cousin, H.L., regarding Booth’s alleged sexual assaults of them. Following a hearing, the court granted the motion because “there [was]

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1 18 Pa.C.S.A. §§ 3123(a)(7) and 3124.1, respectively.

a sufficient nexus and that the facts alluded to in each statement are strikingly similar.” N.T., Motions Hearing, 9/11/18, at 35.

Specifically, all the victims that [Booth] is alleged to have sexually assaulted were young girls and [the abuse] started prior to the child being the age of nine, . . . all of the victims were sexually assaulted or alleged to have been sexually assaulted by [Booth] for several years, all of them had a familial relationship with the defendant or were close family friends, all of the assaults occurred in [Booth’s] home when a child would spend time, reside or spend the night. [Booth]

wore stockings when he was alleged to have sexually abused each victim. [Booth] allegedly showed pornography to each victim, all of the assaults involved similar sexual acts. [Booth] would either be completely naked or wearing just stockings when around two of the victims. Also in each of them, specifically J.G. and H.L., that [Booth] rubbed his penis and testicles against the feet of each girl and all of the assaults occurred when no adults were present. Additionally, the time span of the assaults is similar in time. There is a nexus within the time. Those are the most compelling factors that this [c]ourt has taken in to account under Commonwealth v. Hughes, 521 Pa. 459, which is a 1989 case which the Court directed us to look at factors including age, race, physical appearance of the victims involved, date, location of each crime, relationship to the defendant to each victim and the specific acts the defendant is alleged to have committed with each victim.

Id. at 35-37.

Following a bench trial, the trial court found Booth guilty of the above offenses and sentenced him to two to four years’ incarceration followed by three years’ probation. Booth filed a post-sentence motion, which the trial court denied. This timely appeal followed.

Booth raises the following issues before this Court:

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I. Was the verdict of guilt against the weight of evidence?

II. Did the trial court commit reversible error by permitting the testimony of two other accusers concerning uncharged misconduct?

III. Did the trial court commit reversible error by restricting the scope of cross-examination of the complaining witness on issues of bias and motive?

IV. Did the trial court commit reversible error by precluding the defense from introducing material fact witnesses that would have undermined the credibility of the accusations and exonerated [Booth]?

Booth’s Br. at 8 (suggested answers omitted).

Booth argues that the verdict was against the weight of the evidence because the victim’s testimony was “scant, conflicting, and incompetent[.]” Id. at 21. Booth states that despite the victim’s claims of sexual assault, she “reached out to [Booth] when she needed help, needed things fixed, needed a place to stay, needed a babysitter for her kids and when she needed a vacation.” Id. He argues that “[i]t defies logic that [the victim] would have delved into such involvement with [Booth] had the accusations been true.” Id.

We review a challenge to the weight of the evidence as follows:

Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial court's determination that the verdict is against the weight of the evidence. One of the least assailable reasons for granting or denying a new trial

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is the lower court's conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (citations omitted). The uncorroborated testimony of a victim, if believed by the factfinder, can be sufficient to convict. Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa.Super. 2006). “It [is] within the province of the . . . fact- finder to resolve all issues of credibility, resolve conflicts in evidence, make reasonable inferences from the evidence, believe all, none, or some of the evidence, and ultimately adjudge [the defendant] guilty [or not guilty].” Id.

Here, the trial court denied Booth’s challenge to the weight of the evidence. Sitting as factfinder, the trial court found the victim’s testimony credible despite the alleged inconsistencies Booth sees in it. Trial Court Opinion, filed Aug. 13, 2020, at 18 (“1925(a) Op.”). As to Booth’s argument that the victim’s continued involvement with him rendered her testimony suspect, the trial court concluded that such actions “did not call into question this [c]ourt’s assessment of the credibility of the complainant.” Id. at 19. The trial court noted that Booth’s violations of the victim occurred when she was young and “family dynamics made her reluctant to accuse [Booth] of molesting her.” Id. Upon review of the parties’ briefs, the certified record, and applicable case law, and the well-reasonable trial court opinion, we affirm on the basis of the trial court opinion.

Next Booth argues that the trial court erroneously allowed the testimony of Booth’s former stepdaughter and her cousin. He maintains that the

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testimony was irrelevant and prejudicial because it “lack[ed] any striking similarities or close factual nexus to the conduct for which [Booth] was on trial[.]” Booth’s Br. at 22.

We review the admission of evidence for an abuse of discretion.

Commonwealth v. Elliott, 80 A.3d 415, 446 (Pa. 2013). “An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record.” Commonwealth v. Santos, 176 A.3d 877, 882 (Pa.Super. 2017) (quoting Commonwealth v. Antidormi, 84 A.3d 736, 749–50 (Pa.Super. 2014)). Rule 404(b) of the Pennsylvania Rules of Evidence bars admission evidence of prior bad acts to establish a person’s character and to prove that the person acted on a particular occasion in conformity with that character. Pa.R.E. 404(b)(1). However, evidence of prior bad acts is permissible for some other, proper purpose, such as to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” Pa.R.E. 404(b)(2). In a criminal case, “this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.” Id.

Here, the trial court granted the motion in limine because the evidence in question was admissible to show a common plan, scheme, or design. See 1925(a) Op. at 23. The court noted that to establish a common plan, scheme, or design, the proponent of the evidence need only show “‘that there are

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shared similarities in details of each crime’ and that these similarities may include the perpetrator’s actions, the location of the crimes, and the commonality in the relationship of the accused and the victims.” Id. (quoting Commonwealth v. Newman, 598 A.2d 275, 278 (Pa. 1991)) (emphasis added).

In the instant case, the trial court concluded that there were multiple similarities in the crimes, including that Booth victimized young female relatives; he wore stockings during some of the assaults; the victims were of similar ages at the times of the assaults; and he used similar methods to make them comfortable.

Instantly, [Booth] victimized young girls each of whom had family ties to him. He used similar methods to make them comfortable, such as the use of video games and pornography, and slowly groomed them to accept his advances. He also took advantage of his position as an adult figure in their lives to silence them and usually acted in the afternoon while serving as a baby sitter of sorts to the victims. In addition, with some of the victims, he wore women’s stockings and with others exhibited a foot fetish.

Also, the victims were similar in age and thus, particularly vulnerable and their families either were related to [Booth]

or friends with him.

Id. at 24.

The trial court also concluded that the probative value of the evidence outweighed the potential for unfair prejudice because Booth was tried before a judge sitting without a jury, and a judge is presumed not to “misuse the evidence or consider it as propensity evidence.” Id. at 27. We discern no abuse of discretion.

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Booth also argues that the trial court “erred in restricting the scope of the cross-examination of the [victim] on issues of bias and motive.” Booth’s Br. at 30. He maintains that he should have been able to “introduce photographs that would have ultimately exonerated [him] because the evidence would have completely undermined the credibility of [the victim].” Id. These photographs pictured the victim and Booth together after the incidents of abuse. Id. at 32. He alleges that the photographs “would have supported the defense theory that the complaining witness’ bias against, and motive to falsely accuse [Booth] was rooted in being asked to leave [Booth’s] shore house in 2013.” Id.2 The trial court has discretion in determining the scope of cross-

examination, and we do not reverse such determinations absent an abuse of that discretion. Commonwealth v. Largaespada, 184 A.3d 1002, 1009 (Pa.Super. 2018). A trial court may exclude relevant evidence for numerous reasons, including where the evidence is cumulative. See Pa.R.E. 403. Cumulative evidence is “additional evidence of the same character as existing evidence and that supports a fact established by the existing evidence.” Commonwealth v. Flamer, 53 A.3d 82, 88 n.6 (Pa.Super. 2012) (citation omitted).

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2 To the extent Booth makes passing references to the Confrontation Clause,

he waived any claim of a violation of that clause by failing to mention it in either his Pa.R.A.P. 1925(b) statement or his Statement of Questions Involved. See Booth’s Br. at 8, 33.

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The trial court did not abuse its discretion in limiting Booth’s cross-

examination of the victim. Sitting as factfinder, the trial court heard evidence regarding the victim’s continued contact with Booth after the assault. This evidence came by way of the victim herself, such as her testimony that she visited Booth’s shore house long after the sexual abuse, as well as in the form of photographs of her and Booth together. See 1925(a) Op. at 28-29 (citing N.T., Trial, 10/4/19, at 108, 119-120, 123-124, 143-145, 147-148, 203-206); N.T., Trial, 10/4/19, at 149-152. The trial court limited the scope of cross- examination concluding that “no useful purpose would have been served by presenting additional evidence cumulative to what already had been established by previously admitted evidence.” 1925(a) Op. at 29. The additional photographs that Booth wanted to introduce would have merely been cumulative, and the trial court’s ruling was not an abuse of discretion.

Booth’s final claim is that the trial court erred in precluding him from calling a fact witness, the victim’s brother.3 He alleges that the victim’s brother would have testified that the victim “invited [Booth] to her house to do handyman type jobs well after the alleged unlawful acts underlying the case.” Booth’s Br. at 34-35. He maintains that this testimony contradicted the victim’s version of events and would have exposed the victim’s bias and motive.

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3 His Pa.R.A.P. 1925(b) statement identified two additional witnesses; he has abandoned that aspect of this issue.

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This is another challenge to the admission of evidence, which we review for an abuse of discretion. Elliott, 80 A.3d at 446. As discussed earlier, a trial court may exclude relevant evidence that is cumulative of other evidence. See Pa.R.E. 403; Flamer, 53 A.3d at 88 n.6.

Here, as above, the trial court heard testimony, including from the victim herself, that she remained in contact with Booth even after his acts of sexual abuse against her. Therefore, the trial court concluded that the proposed testimony of the victim’s brother would have been cumulative and unnecessary.

[T]he testimony [Booth] wished to present would have been cumulative of testimony and evidence already presented. .

. . . [T]his [c]ourt heard from various witnesses, including the [victim], that the [victim] had contact with [Booth], often at her behest, on numerous occasions and that she wanted to visit [Booth’s] shore house. Additional evidence on that issue therefore was not necessary and would not have either made the point clearer for this [c]ourt or, more importantly, resulted in a different outcome.

1925(a) Op. at 30.

Upon review of the record, we discern no abuse of discretion by the trial court in precluding the testimony of the victim’s brother. The evidence was cumulative. We therefore affirm the judgment of sentence based on the well- reasoned opinion of the Honorable Jeffrey Minehart.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 6/4/21

Circulated 05/14/2021 03:48 PM 0071_Opinion