J-S18006-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee
v.
OSCAR CABAN,
Appellant No. 1208 MDA 2015
Appeal from the Judgment of Sentence June 17, 2015 In the Court of Common Pleas of Cumberland County Criminal Division at No(s): CP-21-CR-0000675-2014
BEFORE: BOWES, LAZARUS AND STRASSBURGER,* JJ.
MEMORANDUM BY BOWES, J.: FILED MARCH 04, 2016
Oscar Caban appeals from the judgment of sentence of six to twenty-
three months imprisonment, a concurrent two year probationary term, and a
consecutive year of probation. The sentence was imposed after a jury
convicted Appellant of two counts of indecent assault and one count of
corruption of a minor. We affirm.
E.F., the victim, called Appellant Cocoa.1 N.T. Trial, 12/1-3/14, at 43.
Appellant was the step-grandfather of the victim’s twin half-brothers. E.F.,
____________________________________________
1 E.F.’s nickname for Appellant is spelled as Cocoa in the trial transcript and Coco in the transcript of a competency hearing and affidavit of probable cause for Appellant’s arrest. We will utilize the spelling that appeared in the trial transcript.
* Retired Senior Judge assigned to the Superior Court. J-S18006-16
who was eight years old at the time of trial, told the jury that, when she was
being babysat by Appellant and his wife, Shirley, Appellant “touched bad
body parts of mine” while they were in the computer room. Id. at 45. E.F.
said that she and Appellant were alone in that room with the door slightly
ajar and were playing a game on the computer when the conduct occurred.
E.F. delineated that, by bad body parts, she meant “[w]here you go to the
bathroom” as well as your “chest” and your “butt.” Id. at 47, 54.
The victim reported that she was wearing a shirt and leggings at the
time and then delineated that Appellant, “put his hand up my shirt and
touched my body part,” and that he also touched “[w]here I go to the
bathroom” by placing his hand underneath her leggings. Id. at 48, 54. The
girl specified that Appellant was touching her skin and moved his hand
“down and touched” where she urinates. Id. 55. Appellant then rubbed
her stomach. When Shirley indicated lunch was ready, Appellant ceased his
actions. The abuse occurred for fifteen to twenty minutes. The victim was
angry, disgusted, and scared by Appellant’s activities.
Although E.F. could not remember when the incident occurred, J.W.,
E.F.’s mother, explained that it was around August 6, 2013, when E.F. was
six years old. J.W. testified to the following. Appellant and his wife Shirley
babysat E.F. and J.W.’s twin sons while J.W. was at work. In August 2013,
J.W. was separated from E.F.’s father. E.F. had been at Appellant’s house
on a Thursday, and then went to her father’s house for his period of
-2- J-S18006-16
custodial visitation. The following Tuesday night, before E.F. was due to
return to Appellant’s house to be babysat, E.F. told J.W. “she was
uncomfortable returning to [Appellant and Shirley’s] home to be baby-sat
while I worked.” Id. at 95-96. J.W. again told her daughter that they would
discuss it in the morning. J.W. said that E.F. then “woke up in the middle of
the night and again told me that she did not want to go back there.” Id. at
97. J.W. said that they would talk about it in the morning. J.W. testified
that, when E.F. “woke up the next morning, she again told me that she did
not want to go there. And at this time with her persistence, I thought it was
very abnormal, so I asked her why.” Id. at 98.
E.F. responded, “Cocoa had touched her stomach.” Id. When J.W.
asked E.F. what she meant, E.F. said that she was embarrassed to talk
about it. J.W. informed her daughter, “[Y]ou don't have anything to be
embarrassed about. It's just you and mommy here, and you can talk to
mommy about anything.” Id. at 98-99. Then, E.F. “leaned back on the
couch, and she took her hand and put it down her pants and touched her
vagina and said he went like this.” Id. at 99.
J.W. contacted the Pennsylvania ChildLine and scheduled an
appointment for E.F. with the Pinnacle Health Children's Resource Center in
Harrisburg. Megan Leader, who had specialized training in questioning child
abuse victims, interviewed E.F. on August 13, 2013. The tape of that
interview was played to the jury. While the transcript of the interview is not
-3- J-S18006-16
contained in the certified record, the affidavit of probable cause for
Appellant’s arrest indicates that E.F. “freely spoke and communicated in a
clear and understandable voice.” Affidavit of Probable Cause, 1/23/14, at 1.
When asked “what has happened,” E.F. responded that Cocoa touched “my
privates.” Id. E.F. additionally related that “she had her clothes on but
Coco[a]’s bare skin touched her vagina underneath her clothes. She also
advised Cocoa “touched her buttocks one time and he touched her breast”
by moving his “hand in a circular motion.” Id. E.F. was shown an
anatomical drawing and “was able to accurately identify her private parts as
her vaginal area, buttocks, and breasts.” Id. E.F. also told Ms. Leader that
“when Coco[a] touched her that she felt scared. She also related when he
touched her privates it felt weird.” Id.
Pennsylvania State Trooper Steven Nesbit, a member of the criminal
investigation unit2 of the Troop H Carlisle Barracks, also testified on behalf of
the Commonwealth. He was contacted by Children and Youth Services
about E.F.’s allegations, and he met with E.F. and her parents as well as
members of the Pinnacle Health Children's Resource Center. He was present
when the August 13, 2013 interview was conducted, and went to meet with
2 A criminal investigator with the Pennsylvania State Police has specialized investigative training and is the equivalent of a detective.
-4- J-S18006-16
Appellant to discuss the accusations leveled by E.F. Appellant and Shirley
allowed him into their home, where there was a computer room.
Appellant agreed to speak with Trooper Nesbit about E.F. Trooper
Nesbit informed Appellant that E.F. had accused Appellant of touching her
and Appellant “immediately said, well then, I could have accidentally
touched her.” Id. at 131. Appellant explained that he held the children in
his lap while they were on the computer and that he could have accidently
touched her chest while E.F. was falling off his lap. Appellant repeatedly
denied placing his hand on E.F.’s vagina but admitted to being alone in the
computer room with her.
Based upon this evidence, the jury convicted Appellant of unlawful
contact with a minor under age sixteen with the perpetrator more than four
years older, two counts of indecent assault, and corruption of a minor. The
case proceeded to sentencing on April 7, 2015, when Appellant was given an
aggregate sentence of ten to twenty-three months imprisonment on the
unlawful contact offense, a concurrent term of six to twelve months in jail on
one count of indecent assault, a concurrent two years of probation on the
other indecent contact offense, and one year of probation on the corruption-
of-a-minor charge that was imposed consecutively to the other sentences.
Thereafter, Appellant filed a post-sentence motion, and the trial court
accorded Appellant partial relief. Specifically, the trial court granted a
judgment of acquittal as to the offense of unlawful contact and vacated the
-5- J-S18006-16
sentence imposed thereon, which reduced Appellant’s jail term to six to
twenty-three months. This appeal followed. Appellant raises five issues for
our review.
A. Whether the evidence in this matter was sufficient to sustain the verdict.
B. Whether the Trial Court committed an error of law and fact when it failed to grant [Appellant’s] request for judgment of acquittal even though the evidence was insufficient for a finder- of-fact to have concluded that [Appellant] committed the alleged crimes.
C. Whether the Trial Court abused its discretion when it failed to grant [Appellant’s] judgment of acquittal even though the adjudication was against the weight of the evidence.
D. Whether the Trial Court, by Order of the Honorable Edward E. Guido, committed an error of law and fact when it determined E.F. to be competent to testify at trial.
E. Whether the Trial Court, by Order of the Honorable Edward E. Guido, committed reversible error when it failed to permit trial counsel, over the Commonwealth’s objection as to relevancy, to question E.F. regarding E.F.’s ability to perceive, remember, and appropriately communicate regarding the events in question.
Appellant’s brief at 7. While this statement indicates that five issues are
raised, in the body of his brief, Appellant advances only three. He combines
argument on questions A and B as well as on issues D and E. See
Appellant’s brief at 14-17, 20-25. Hence, we will address Appellant’ first
and second claims together, both of which challenge the sufficiency of the
evidence supporting his convictions, and we utilize the following principles:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in
-6- J-S18006-16
the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying [the above] test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the [finder] of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Best, 120 A.3d 329, 341 (Pa.Super. 2015) (citation
omitted).
Appellant was convicted of indecent assault pursuant to 18 Pa.C.S. §
3126(a)(7) and (8):
A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:
....
(7) the complainant is less than 13 years of age; or
(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.
-7- J-S18006-16
18 Pa.C.S. § 3126(a)(7), (8). Indecent contact is defined as “[a]ny touching
of the sexual or other intimate parts of the person for the purpose of
arousing or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101.
Corruption of a minor occurs whenever a person, “being of the age of
18 years and upwards, by any act corrupts or tends to corrupt the morals of
any minor less than 18 years of age[.]” 18 Pa.C.S. § 6301(a)(1) “Actions
that tend to corrupt the morals of a minor are those that ‘would offend the
common sense of the community and the sense of decency, propriety and
morality which most people entertain.’” Commonwealth v. Snyder, 870
A.2d 336, 351 (Pa.Super. 2005) (partially quoting Commonwealth v.
DeWalt, 752 A.2d 915, 918 (Pa.Super. 2000)).
Herein, the evidence established that the victim was six when
Appellant, who was approximately sixty years old, touched the victim’s
vagina and breasts for about fifteen minutes while they were playing a
computer game. Given the nature of the conduct, it could serve no purpose
other than sexual arousal. Hence, that evidence was sufficient to sustain the
convictions for indecent assault. Touching the vagina and rubbing the
breasts of a six-year-old child offends the common sense of the community
and the sense of decency and morality that most people entertain. We
therefore conclude that the evidence also sufficiently supported the offense
of corruption of a minor.
-8- J-S18006-16
Appellant’s first challenge to the sufficiency of the evidence supporting
his convictions is that “E.F.’s testimony was so contradictory and ambiguous
that the jury’s decision could only have been based on conjecture or
speculation.” Appellant’s brief at 15. He points to some inconsistencies in
her testimony. For example, E.F. stated that she was never alone in the
computer room with Appellant but then reported that, when the abuse
occurred, she was with Appellant in the computer room while the door was
ajar and Shirley was in the other room. The victim also was unsure about
whether the incident occurred while she was sitting next to Appellant in a
chair or on his lap. Additionally, the victim could not remember precisely
when the abuse occurred given the lapse of two years.
It is well-established that, “The finder of fact . . . exclusively weighs
the evidence, assesses the credibility of witnesses, and may choose to
believe all, part, or none of the evidence.” Commonwealth v. Sanchez,
36 A.3d 24, 39 (Pa. 2011); see also Commonwealth v. Haney, 2015 WL
9485187, at *8 (Pa. 2015) (rejecting defendant’s position that a witness was
not credible by observing that the “jury was free to find this evidence
credible”); Commonwealth v. Page, 59 A.3d 1118, 1130 (Pa.Super. 2013)
(“A determination of credibility lies solely within the province of the
factfinder.”); Commonwealth v. Blackham, 909 A.2d 315, 320 (Pa.Super.
2006) (“It is not for this Court to overturn the credibility determinations of
the fact-finder.”). Our Supreme Court has further articulated, on numerous
-9- J-S18006-16
occasions, that: “Issues of witness credibility include questions of
inconsistent testimony[.]” E.g. Sanchez, supra at 39.
Herein, E.F. testified at trial about the abuse in an articulate manner.
The critical aspects of the trial testimony were consistent with what she told
her mother soon after the incident occurred. A week later, E.F. reported the
events to Ms. Leader, also in conformity with her trial testimony. Appellant
relies upon minor inconsistencies and a memory lapse on the part of a very
small child as to when the abuse occurred. However, E.F. was not
inconsistent about the essential facts that supported the convictions in
question. Appellant touched her vagina and breasts. We do not view her
testimony as so inherently contradictory and unreliable that Appellant’s
convictions cannot stand. Indeed, Appellant heavily relies upon a Supreme
Court decision wherein the Court stated, “While it is true that [the witness’s]
various statements contained contradictions and some inconsistencies, we
do not conclude that her testimony was so inherently unreliable as to justify
a finding that a verdict based upon it must as a matter of law be set aside.”
Commonwealth v. Smith, 467 A.2d 1120, 1122 (Pa. 1983). No relief is
due.
Appellant also suggests that the evidence was insufficient to establish
that his actions were undertaken for purposes of arousing or gratifying his
sexual desire. Appellant’s brief at 17 (“[T]he record is completely devoid of
any evidence that [Appellant] had contact with E.F. ‘for the purpose of
- 10 - J-S18006-16
arousing sexual desire in the person or the complainant.’”). We disagree.
We have held that, when the actions undertaken by the defendant do “not
occur outside of the context of a sexual or intimate situation,” then the fact-
finder is free to conclude that the contact was “done for the purpose of
arousing or gratifying [the defendant’s] sexual desire.” Commonwealth v.
Evans, 901 A.2d 528, 533 (Pa.Super. 2006). Rubbing a female’s breasts
and touching her vagina does not occur outside of the context of a sexual
situation. Hence, the proof adduced at trial was sufficient to support the
jury’s determination that Appellant’s actions were undertaken for the
purpose of arousing his sexual desire.
Appellant’s next position is that the trial court committed an abuse of
discretion when it rejected his weight-of-the-evidence claim. When we
review a weight-of-the-evidence challenge, we do not actually examine the
underlying question; instead, we examine the trial court’s exercise of
discretion in resolving the challenge. Commonwealth v. Leatherby, 116
A.3d 73 (Pa.Super. 2015). This type of review is necessitated by the fact
that the trial judge heard and saw the evidence presented. Id. Simply put,
“One of the least assailable reasons for granting or denying a new trial 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.” Id. at 82. A new trial is warranted in this context only when the
verdict is “so contrary to the evidence that it shocks one’s sense of justice
- 11 - J-S18006-16
and the award of a new trial is imperative so that right may be given
another opportunity to prevail.” Commonwealth v. Morales, 91 A.3d 80,
91 (Pa. 2014).
In connection with this issue, Appellant again assails E.F.’s credibility
and does so on the same grounds as articulated in his sufficiency position.
However, as set forth supra, E.F.’s credibility was solely for the jury to
assess. E.F. was cross-examined on the inconsistencies now relied upon by
Appellant, and it is simply not our function to overturn the jury’s
determination. For the same reasons outlined above, we cannot conclude
that the trial court abused its discretion in rejecting Appellant’s weight claim.
The third averment presented on appeal is two-fold. Appellant claims
both that the trial court should not have determined that E.F. was competent
to testify and that it committed reversible error when it did not allow
Appellant to delve, on cross examination of E.F., into whether there was
taint, or into the details of the incident.
We have noted, “It is well-settled that the determination of whether a
child is competent to testify is within the sound discretion of the trial court,
and an appellate court should not interfere with the lower court's ruling
absent a manifest abuse of discretion.” Commonwealth v. Hunzer, 868
A.2d 498, 507 (Pa.Super. 2005). When a trial court is determining whether
a child witness is competent to testify, it must take into consideration the
following principles:
- 12 - J-S18006-16
Competency of a witness is presumed, and the burden falls on the objecting party to demonstrate incompetency. When the witness is under fourteen years of age, there must be a searching judicial inquiry as to mental capacity, but discretion nonetheless resides in the trial judge to make the ultimate decision as to competency. In making its determination, the court must inquire whether the child possesses: (1) such capacity to communicate, including as it does both an ability to understand questions and to frame and express intelligent answers, (2) mental capacity to observe the occurrence itself and the capacity of remembering what it is that she is called to testify about and (3) a consciousness of the duty to speak the truth.
Id. (quoting Commonwealth v. D.J.A., 800 A.2d 965, 969 (Pa.Super.
2002)).
Our review of the transcript of competency hearing establishes that
E.F. was articulate in her communications, understood all questions posed of
her, and answered them appropriately and intelligently. She was able to
relate where she went to school, the precise date of when she was going to
be starting third grade, and the last names of her upcoming teacher as well
as her last two teachers. She told the presiding judge she was not married
and that she thought her first and third grade teachers were nice while her
second grade teacher was not nice.
The court also questioned E.F.’s capacity to observe and recall the
occurrence itself. She knew she was present at the proceeding “[b]ecause
Coco[a] did something bad” and that Cocoa was her brothers’ grandfather.
Id. at 4. She correctly told the judge that the first person she told “about
what happened with Coco[a]” was her “mom.” N.T. Competency Hearing,
- 13 - J-S18006-16
8/19/14, at 9. The girl informed the court that after she told her mom, she
stopped going to Appellant’s house and went to “Melissa’s.” Id. When the
trial court asked if Melissa was a counselor, E.F. insightfully responded, “Well
-- I think she’s a therapist.” Id. at 10. Appellant was allowed to cross-
examine E.F. about her ability to recall the events that transpired after she
reported the abuse to her mother. However, the trial court would not permit
him to engage in extensive questioning about the actual events since the
proceeding was to determine the victim’s competency. The court reasoned
that Appellant already had the benefit of a preliminary hearing and “the
opportunity to question her about these [events] at that point in time.” Id.
at 13.
Finally, the trial court ascertained the victim’s ability to distinguish
between fact and fiction and her duty to speak the truth. In this respect,
E.F. articulated that it was “[g]ood to tell the truth, “[bad] to tell a lie,” and
“[y]ou’ll get in trouble” if you lie. Id. at 5. The court asked E.F., “If I told
you that my shirt was white, would that be the truth or a lie?,” and she
responded, “Lie.” Id. It then inquired why that statement was a lie, and
E.F. said, “Because your shirt isn’t white,” as it was blue. Id. Next, she was
asked “If I told you my ears were really, really small, would that be the truth
or a lie?,” and she answered, “A lie” since “they’re not small. They’re big.”
Id. Appellant was permitted to cross-examine E.F. about her awareness of
her duty to tell the truth. Id. at 6-7. E.F. repeated that it was good to tell
- 14 - J-S18006-16
the truth and bad to tell a lie and that she would probably get into trouble if
she lied in court. Thus, our review of the proceeding establishes that E.F.
satisfied all three aspects of the competency determination, and the trial
court’s ruling on the question was not an abuse of discretion.
Appellant also complains about the curtailment in his questioning of
E.F. about the specifics of the abuse. This issue concerns the trial court’s
ruling on the scope of cross-examination. “The scope and the manner of
cross-examination are within the sound discretion of the trial court and will
not be overturned unless the court has abused that discretion.”
Commonwealth v. Nunn, 947 A.2d 756, 761 (Pa.Super. 2008) (quoting
Commonwealth v. Eichinger, 915 A.2d 1122, 1143 (Pa. 2007)).
In this case, Appellant sought to question the victim about the
specifics of what occurred on the day of the incident in question. A
competency hearing’s purpose is, in pertinent part, to ascertain a victim’s
capacity to observe and remember the event, which Appellant was permitted
to explore. Our Supreme Court noted in Commonwealth v. Delbridge,
855 A.2d 27 (Pa. 2003), that a competency hearing is not a means of
discovery for the defendant. It ruled specifically in that decision that cross-
examination at a competency hearing “on the details of the events at issue”
is permitted only if there is some proof that the witness has “no recall of the
event in question, or the witness's ability to recall the event has been
corrupted.” Id. at 45. E.F. evidenced an uncorrupted ability to recall the
- 15 - J-S18006-16
event, and the trial court herein did not abuse its discretion in refusing to
allow the proposed questioning about the details of the indecent contact.
Appellant also suggests that he was improperly prohibited from
questioning E.F. about taint. Taint is defined as “the implantation of false
memories or the distortion of real memories caused by interview techniques
of law enforcement, social service personnel, and other interested adults,
that are so unduly suggestive and coercive as to infect the memory of the
child.” Id. at 35. “The core belief underlying the theory of taint is that a
child's memory is peculiarly susceptible to suggestibility so that when called
to testify a child may have difficulty distinguishing fact from fantasy.” Id. at
34-35.
The Delbridge Court indicated that the defendant carries the initial
burden of proving taint, emphasizing that, “In order to trigger an
investigation of competency on the issue of taint, the moving party must
show some evidence of taint” by clear and convincing evidence. Id. at 40.
A non-exhaustive list of factors that can be used to assess whether taint
exists include the victim’s age, the circumstances of the questioning, the
child’s relationship with the interrogator, and the types of questions that
were asked. Our Supreme Court ruled examination on taint at a
competency hearing becomes “necessary in those cases where there is some
evidence that improper interview techniques, suggestive questioning,
vilification of the accused and interviewer bias may have influenced a child
- 16 - J-S18006-16
witness to such a degree that the proffered testimony may be irreparably
compromised.” Id. at 39.
In Delbridge, the defendant, at a competency hearing, sought to
explore the possibility that his estranged wife and police, through suggestion
and improper questioning, had implanted the memories of abuse allegations
leveled against him by his children. Despite having significant proof of the
possibility of taint, the trial court precluded any questioning of the children
on the subject. Our Supreme Court reversed, concluding that the defendant
should have been permitted to ascertain whether taint was present.
In this case, there was not a scintilla of proof that E.F.’s testimony was
tainted. She was six years old when the contact occurred and old enough to
appreciate the nature of the actions by displaying appropriate reactions to
them. She said that the incident made her angry, disgusted, and afraid.
There was no indication of the existence of animosity towards Appellant by
E.F. or her parents, and no motive to implant false memories in her. No one
was vilifying Appellant.
E.F. volunteered to her mother that she did not want to go to
Appellant’s house, was asked why, and was hesitant to explain. J.W. did not
encourage E.F. to accuse anyone of abuse; she merely told her daughter
that she could be frank with her about anything. E.F. then mimed what
Appellant had done to her. At a child resource center, E.F. was questioned
by a neutral specialist. Neither Appellant nor E.F. had a relationship with
- 17 - J-S18006-16
Ms. Leader, who was trained in how to examine a child abuse victim.
Appellant produced no proof at the competency hearing that Ms. Leader’s
inquiries were leading or suggestive. As Appellant adduced no evidence of
taint, his questioning on that subject properly was restricted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 3/4/2016
- 18 -