Com. v. Carrington, K.

• Court: Superior Court of Pennsylvania
• Decided: November 6, 2015
• Docket: 3127 EDA 2014
• Status: Unpublished

Opinion

J-S65027-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee

v.

KIRK CARRINGTON,

Appellant No. 3127 EDA 2014

Appeal from the Judgment of Sentence October 2, 2014 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006608-2012, CP-51-CR-0006609- 2012

BEFORE: BENDER, P.J.E., SHOGAN, and JENKINS, JJ.

MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 06, 2015

Appellant, Kirk Carrington, appeals from the judgment of sentence

entered October 2, 2014. We affirm.

The voluminous factual history of this matter is well known to the

parties and is comprehensively restated by the trial court in its opinion filed

February 26, 2015; thus, there is no need to restate it here. To briefly

summarize, however, this case involves Appellant’s sexual abuse of his

niece, A.C., over the course of seven years. On March 9, 2012, Appellant

was arrested and charged with rape, attempted rape, involuntary deviate

sexual intercourse (IDSI), unlawful contact with a minor, aggravated

indecent assault, indecent assault, incest, endangering the welfare of a child

(“EWOC”), contempt for violation of a protection order, and violations of J-S65027-15

Megan’s Law. Following a four-day jury trial, Appellant was convicted of

incest, EWOC, contempt for violation of a protection-from-abuse order, and

violations of Megan’s Law.1 The Sex Offender Assessment Board conducted

an assessment of Appellant and found him to be a sexually violent predator

on November 15, 2013. The trial court agreed with that finding; however,

on October 2, 2014, the jury’s finding of guilt on the charges of failure 1) to

comply with the registration requirement and 2) to provide accurate

information was vacated by agreement after Megan’s Law III2 was found to

be unconstitutional.3

On October 2, 2014, Appellant was sentenced to four to eight years of

imprisonment for incest followed by a two-and-one-half-to-five-year term of

incarceration for EWOC. The court imposed no further penalty for contempt.

Thus, the total aggregate sentence was six and one-half to thirteen years of

____________________________________________

1 Appellant was acquitted of rape of a child less than thirteen years old, attempted rape of a child less than thirteen years old, involuntary deviate sexual intercourse of a child less than thirteen years old, aggravated indecent assault of a child less than thirteen years old, indecent assault of a child less than thirteen years old, and unlawful contact with a minor. 2 Act of November 24, 2004, P.L. 1243 (Act 152), commonly known as Megan's Law III. Coppolino v. Noonan, 102 A.3d 1254, 1258 n.2 (Pa. Cmwlth. 2014) (en banc). 3 See Commonwealth v. Neiman, 84 A.3d 603, 613-616 (Pa. 2013) (holding that adoption of Megan’s Law III was violative of the “single subject” rule of Article III, Section 3 of the Pennsylvania Constitution, and finding “that the proper remedy for this violation of our Constitution is to strike [Megan’s Law III] in its entirety.”

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imprisonment. Appellant filed a counseled notice of appeal on October 31,

2014. Both Appellant and the trial court complied with Pa.R.A.P 1925.

Appellant raises the following three issues in his brief:

I. Is [Appellant] entitled to a new trial as the evidence is insufficient to establish the crime of Incest?

II. Is [Appellant] entitled to a new trial where the [c]ourt erred in admitting 404(b) evidence where the evidence was irrelevant and if relevant should have been excluded as it was grotesquely and unfairly prejudicial to [Appellant] and where [Appellant] did not receive a fair trial as a result thereof?

III. Is [Appellant] entitled to a new trial as a result of the [c]ourt’s error in admitting hearsay?

Appellant’s Brief at 3.

Appellant’s first issue relates to the sufficiency of the evidence. 4 In

reviewing the sufficiency of the evidence, we must determine whether the

evidence admitted at trial and all reasonable inferences drawn therefrom,

viewed in the light most favorable to the Commonwealth as verdict winner,

were sufficient to prove every element of the offense beyond a reasonable

doubt. Commonwealth v. Diamond, 83 A.3d 119 (Pa. 2013). It is within

the province of the fact-finder to determine the weight to be accorded to ____________________________________________

4 Appellant failed to ensure that the certified record was complete, and this Court was forced to seek transcripts from August 14, 2013 (Volume 1) and August 13, 2013. See Commonwealth v. Griffin, 65 A.3d 932, 936 (Pa. Super. 2013 (The appellant has the duty to ensure that the record is complete for purposes of appellate review). Moreover, we note that the transcript for the afternoon session of August 14, 2013, is mislabeled as “Preliminary Hearing Volume 1.”

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each witness’s testimony and to believe all, part, or none of the evidence.

Commonwealth v. Tejada, 107 A.3d 788, 792–793 (Pa. Super. 2015).

The Commonwealth may sustain its burden of proving every element of the

crime by means of wholly circumstantial evidence. Commonwealth v.

Vogelsong, 90 A.3d 717 (Pa. Super. 2014), appeal denied, 102 A.3d 985

(Pa. 2014). Moreover, as an appellate court, we may not re-weigh the

evidence and substitute our judgment for that of the fact-finder.

Commonwealth v. Rogal, 120 A.3d 994 (Pa. Super. 2015).

In his Pa.R.A.P. 1925(b) statement, Appellant merely averred that the

“evidence is insufficient” and the “verdict is based on speculation, conjecture

and surmise.” Pa.R.A.P. 1925(b) Statement, 1/23/15, at 1. Rule 1925

requires that an appellant “concisely identify each ruling or error that the

appellant intends to challenge with sufficient detail to identify all

pertinent issues[.]” Pa.R.A.P. 1925(b)(4)(ii) (emphasis added). “When a

court has to guess what issues an appellant is appealing, that is not enough

for meaningful review.” Commonwealth v. Allshouse, 969 A.2d 1236,

1239 (Pa. Super. 2009). “When an appellant fails adequately to identify in a

concise manner the issues sought to be pursued on appeal, the trial court is

impeded in its preparation of a legal analysis which is pertinent to those

issues.” Id.

Specifically, we have stated that “[i]n order to preserve a challenge to

the sufficiency of the evidence on appeal, an appellant’s Rule 1925(b)

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statement must state with specificity the element or elements upon

which the appellant alleges that the evidence was insufficient.”

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013)

(emphasis added). Failure to identify what specific elements the

Commonwealth failed to prove at trial in a Rule 1925(b) statement renders

an appellant’s sufficiency-of-the-evidence claim waived for appellate review.

Id. Thus, we conclude that Appellant’s claim assailing the sufficiency of the

evidence is waived.

Even if the issue was not waived, we would find it lacks merit. The

relevant statute setting forth the crime of incest is as follows:

§ 4302. Incest

(a) General rule.--Except as provided under subsection (b), a person is guilty of incest, a felony of the second degree, if that person knowingly marries or cohabits or has sexual intercourse with an ancestor or descendant, a brother or sister of the whole or half blood or an uncle, aunt, nephew or niece of the whole blood.

(b) Incest of a minor.--A person is guilty of incest of a minor, a felony of the second degree, if that person knowingly marries, cohabits with or has sexual intercourse with a complainant who is an ancestor or descendant, a brother or sister of the whole or half blood or an uncle, aunt, nephew or niece of the whole blood and:

(1) is under the age of 13 years; or

(2) is 13 to 18 years of age and the person is four or more years older than the complainant.

18 Pa.C.S. § 4302. Sexual intercourse includes, “[i]n addition to its ordinary

meaning, . . . intercourse per os or per anus, with some penetration

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however slight; emission is not required.” 18 Pa.C.S. § 3101. Appellant

asserts in his argument that “[t]he Commonwealth did not prove that

[Appellant] and complainant were uncle/niece by the whole blood” or “that

there was sexual intercourse between the parties.” Appellant’s Brief at 8, 9.

We disagree.5

A.C. testified that Appellant was her uncle and her “mother’s brother.”

N.T., 8/13/13, at 64–65. Mother testified that Appellant was her “brother”

and the victim, A.C., was her “daughter.” N.T., 8/15/13, at 19. No one

testified that Appellant was Mother’s half-brother or step-brother. Thus, it

was reasonable to infer that Appellant and Mother had the same parents and

that A.C. was Appellant’s niece “of the whole blood.” See Commonwealth

v. Slocum, 86 A.3d 272, 275 (Pa. Super. 2014) (“The Commonwealth may

sustain its burden of proving every element of the crime beyond a

reasonable doubt by means of wholly circumstantial evidence.”). Moreover,

when reviewing a sufficiency claim, “our Court is required to give the

prosecution the benefit of all reasonable inferences to be drawn from the

evidence.” Id. Thus, Appellant’s first claim fails.

5 Due to Appellant’s vague and imprecise Rule 1925(b) statement, while the trial court analyzed the sufficiency of the evidence relating to incest generally, including the occurrence of sexual intercourse, see Trial Court Opinion, 2/26/15, at 17–18, it did not address the specific challenge concerning the relationship between A.C. and Appellant.

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Appellant’s second issue asserts that the trial court erred in admitting

evidence that Appellant had been convicted of the attempted rape of T.J.,

his daughter, when she was eight years old, in violation of Pa.R.E. 404(b). 6

In his third issue, Appellant avers that the trial court permitted inadmissible

hearsay evidence.7

Our review of the complete record, the arguments of the parties, and

the applicable law, compels our conclusion that Appellant’s issues lack merit,

and the trial court correctly and comprehensively addressed them.8

Accordingly, we affirm the judgment of sentence, and we do so on the basis

of the thirty-one-page opinion of the Honorable Genece E. Brinkley filed on

6 Appellant fails to explain that there apparently was a pretrial ruling on the issue, fails to note the rescission and replacement of Pa.R.E. 404 (effective March 18, 2013), and fails to cite to the current version of Rule 404. Moreover, while the docket entries note that the trial court’s order of July 23, 2013, granting the Commonwealth’s motion in limine to present evidence of Appellant’s prior conviction of the attempted rape of T.J., the order is not in the record certified on appeal. 7 Once again, Appellant failed to delineate in his Pa.R.A.P. 1925(b) statement the specific evidence he alleged was inadmissible hearsay, citing solely to a page of a transcript modified by “et seq.” This is not sufficient detail as contemplated by Rule 1925. Nevertheless, we do not find the issue waived. 8 We note that Commonwealth v. Hacker, 959 A.2d 380 (Pa. Super. 2008), cited by the trial court at page twenty-three of its opinion, was reversed on grounds other than the proposition for it was cited, Commonwealth v. Hacker, 15 A.3d 333 (Pa. 2011).

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February 26, 2015.9 We add only that the one additional argument

presented by Appellant under issue one is belied by the record, as previously

discussed.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 11/6/2015

9 The parties are directed to attach a copy of that opinion in the event of further proceedings in this matter.

-8- """' ''' , , ,. . . ,. J - S 6 5 0 2 7 r~'r-ii'Lt\ 1,v rv· ~1 ,~-, \~,~} r: -'.·/j':.\ Circulated 10/23/2015 10:14 AM - • 1 L\.J r~.J

IN THE COURT OF COMMON PLEAS FIRST JUDICIAL DISTRICT OF PENNSYLVANIA CRIMINAL TRIAL DIVISION

COMMONWEALTH CP-5l-CR-0006608-2012 CP-5l-CR-0006609-2012

vs. FILED CP-51-CR-0004492-2012

~EB 2 6 2015 . Criminal ~als U . First JUdfcia/ Districto1iA SUPERIOR COURT KIRK CARRINGTON 3127 EDA 2014

BRINKLEY, J. FEBRUARY 26, 2015

OPINION

Defendant Kirk Carrington appeared before this Court for a jury trial and was found

guilty of incest, endangering the welfare of a child (EWOC), and contempt for violation of a

protection from abuse order. This Court sentenced Defendant to 4 to 8 years state incarceration

on the incest charge and 2~ to 5 years state incarceration on the EWOC charge, to run

consecutively to the incest charge. This Court imposed no further penalty on the contempt

charge. Defendant was thus sentenced to a total aggregate term of 6~ to 13 years state

incarceration. Defendant appealed this judgment of sentence to the Superior Court and raised the

following issues on appeal: (1) whether the evidence was sufficient to find Defendant guilty of

incest and EWOC; (2) whether the verdict was against the weight of the evidence; (3) whether

this Court erred when it allowed the Commonwealth to introduce evidence of Defendant's prior

bad acts; (4) whether this Court improperly admitted hearsay into evidence; (5) whether this

Court erred when it permitted the Commonwealth to introduce a statement made by Defendant

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without giving defense counsel prior notice; and (6) whether this Court erred when it permitted a

Commonwealth witness to testify that he completed an affidavit of probable cause against

Defendant.

PROCEDURAL HISTORY

On March 9, 2012, Defendant was arrested and charged with rape, attempted rape,

involuntary deviate sexual intercourse (IDSI), unlawful contact with a minor, aggravated

indecent assault, indecent assault, incest, EWOC, contempt for violation of a protection order,

and violations of Megan's Law.

From August 13, 2013 to August 16, 2013, a trial was held in the presence of a jury. On

August 19, 2013, Defendant was found guilty of incest, EWOC, contempt, and the violations of .

Megan's Law. On November 15, 2013, the Sex Offender Assessment.Board conducted an

assessment of Defendant and found him to be a sexually violent predator. This Court agreed with

that finding. On October 2, 2014, the jury's finding of guilty on the charges of failure to comply

with the registration requirement and failure to provide accurate information was vacated by

agreement after Megan's Law III was found to be unconstitutional. On that same day, this Court:

sentenced Defendant to 4 to 8 years state incarceration on the incest charge, and 2 ~ to 5 years

state incarceration on the EWOC charge, to run consecutively to the sentence on the incest

charge. This Court imposed no further penalty on the contempt charge. Defendant was therefore

sentenced to a total aggregate sentence of 6Yi to 13 years state incarceration.

On October 31, 2014, Defendant, through counsel, filed a notice of appeal to the Superior

Court. On January 12, 2015, after receiving the notes of testimony, this Court ordered defense

counsel to file a Concise Statement of Errors Complained of on Appeal Pursuant to Pa. R.A.P.

1925(b ), and defense counsel did so on January 23, 2015.

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FACTS

The jury trial began in this matter on August 13, 2013. Defendant was represented at trial

by Thomas Burke, Esquire, while the Commonwealth attorney was Kristen Kemp, Esquir/ The

Commonwealth's first witness was Officer Denise Downs ("Downs"). Downs testified that she

had been a police officer for approximately five years and was currently assigned to the 12'h

District. Downs testified that on February 24, 2012, she responded to a call of an individual

violating a protection from abuse order at 5461 Thomas A venue. Downs further testified that

she arrived at that location, where she met with the complainant, A.C. Downs stated that A.C.

appeared very frightened and withdrawn. Downs testified that A.C. told her that she had an

active protection order against her uncle, Defendant. Downs further testified that A.C. told

Downs that she was coming home from work when she saw Defendant sitting on the steps of a

house directly across the street from her own house. Downs stated that Defendant was not

present when she arrived at the scene. Downs testified that A.C. further told Downs that she

called her brother because she was scared. Downs stated that A.C. 's brother, Amico C.

("Anrico") was present when she arrived on the scene. Downs testified that Anrico told her that

Defendant had come to the house to retrieve something, but he was not allowed to be there.

Downs further testified that she then transported A.C. to Southwest Detectives. Downs stated

that she was not told the reason for the protection order at that time, but was later notified by

Detective James Anderson ("Anderson,,). (N.T. 8/13/2013 p. 44-50).

The Commonwealth called A.C. as its next witness. A.C. testified that Defendant was

her uncle. A.C. further testified that Defendant was the main male presence in her life during her

childhood, as her father was often absent. A.C. testified that Defendant molested her at her home

address of 5461 Thomas Avenue, as well as her grandmother's address at 5232 Greenway

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Avenue. A.C. described her grandmother's house as a three-bedroom house where various

family members, including Defendant, lived. A.C. testified that she never lived at that address,

but she would visit. Id. At 63-67.

A.C. testified that Defendant first molested her at the Greenway address. A.C. stated that

she was in the kitchen with Defendant when he tried to place his penis in her mouth. A.C.

testified that Defendant's penis penetrated her lips and touched her teeth, which she had

clenched. A.C. further testified that Defendant also placed his hand in between her pants and her

underwear and touched her vaginal area with his fingers. A.C. testified that Defendant touched

the outer part of her vagina, but his fingers did not touch the inner part of her vagina. A.C. stated

that she was at most five years old when this happened. A.C. testified that there was one other

incident between her and Defendant that occurred at the Greenway address. A.C. testified that

this incident occurred in Defendant's bedroom, which was located on the second floor of the

house near the front of the building. A.C. stated that Defendant had a safe in his room and, on

this particular occasion, she was trying to open the safe when Defendant approached her from

behind and started to touch her back and chest. A.C. testified that she was not sure how old she

was when this happened. Id. At 68- 72.

A.C. testified that she lived with her mother, Estelle C. ("Estelle,'), at the Thomas

Avenue address. A.C. further testified that her family, including Defendant, would watch

movies at the house. A.C. testified that Defendant would sit beside her on the couch while they

watched these movies. A.C. stated that the two of them would sit underneath a blanket and

Defendant would touch her chest and vagina underneath the blanket. A.C. further stated that

sometimes other family members would be present while Defendant touched her. A.C. testified

that Defendant's fingers penetrated the outer part of her vagina, but did not penetrate the inner

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part of her vagina. A.C. further testified that Defendant touched her in this manner on more than

one occasion. Id. At 72-75.

A.C. testified that the last time Defendant molested her was in the back bedroom on the

second floor of the Thomas Avenue address. A.C. testified that on that occasion Defendant

behaved more aggressively than normal and tried to take off her pants. A.C. further testified that

she was scared because she thought Defendant wanted to go further than he usually did. A.C.

stated she cried and repeatedly asked Defendant why he would do this to her, but he did not

respond in any manner. Id. at 75-77.

A.C. testified that she was born on August 22, 1984. A.C. testified that the first person

she told was Estelle. A.C. stated that she was no more than 14 years old when she told Estelle.

A.C. testified that she told Estelle after the two of them watched a talk show in which a young

woman discussed her sexual abuse at the hands of a family member. A.C. testified that she

started to cry while watching the show, which caused Estelle to ask her what was wrong. A.C.

further testified that initially she would not tell Estelle what had happened but, after Estelle

persisted in asking her, she told Estelle that Defendant had sexually abused her. A.C. testified

that she was scared when she told Estelle, because she was aware that the family had spoken

negatively about her cousin, T.J., after T.J. had accused Defendant of sexual abuse. A.C. stated

that she told Estelle that she would kill herself if Estelle told anyone. A.C. further stated that she

refused to let Estelle call the police. Id. at 79-83.

A.C. testified that she later told her younger sister, Arianna C. ("Arianna"), after

Defendant began spending more time at the family house. A.C. testified that she was afraid for

Arianna's safety and so she told Arianna what had happened to her. A.C. further testified that

she increasingly would visit the house, including staying overnight, to make sure that Arianna

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was safe. A.C. testified Defendant moved into the Thomas Avenue address in 2011. AC.

further testified that, at around the same time, she told her brother, Anrico C. ("Anrico"). A.C.

testified that Anrico was upset because he felt that Arianna was behaving rudely towards

Defendant. A.C. stated that she told Anrico that Arianna was behaving in that manner because

of what Defendant had done to A.C. When Anrico asked A.C. what Defendant had done to her,

she told him. A.C. further testified that Anrico decided that the family would have a meeting,

with Defendant present, to discuss the allegations made by A.C. Id. at 84-87.

A.C. testified that Defendant was made aware at the meeting that A.C. had told other

family members what he had done to her. A.C. further testified that, after the meeting, she talked

with T.J. and, as a result of that conversation, she obtained a protection from abuse order against

Defendant. The Commonwealth then read a stipulation, by and between counsel, that the

protection from abuse order became:: effective on November 29, 2011 and remained in effect until

November 28, 2014. A.C. testified that she specified to police that she obtained the order

"because of threats [Defendant] made at a previous time and because of the things from the

past." A.C. further testified that the order formally evicted Defendant from the Thomas Avenue

address even though Defendant already had moved out of the home by the time she obtained the

order and that Defendant was made aware of the order. There was a further stipulation, by and

between counsel, that Defendant's signature appeared on the order as having notice of the order.

Id. at 102-09.

A.C. testified that she was on her way to the Thomas Avenue address on February 24,

2012 when she saw Defendant coming out of the house. A.C. further testified that she

immediately called Anrico because she was scared. A.C. stated that Anrico told her to go across

the street to a neighbor's house and call the police. A.C. testified that she saw Defendant leave

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the scene shortly after he saw her, and he was no longer present when the police arrived. A.C.

further testified that she told the police what had happened. A.C. testified that she was then

transported to Southwest Detectives, where she spoke with Anderson. A.C. stated that she told

Anderson about the protection order she had obtained against Defendant, and the reason for the

protection order. A.C. testified that, at that time, she told Anderson what Defendant had done to

her. A.C. testified that she was then transported to the Special Victims Unit, where she spoke

with Officer Meissler ("Meissler"). Id. at 110-16.

The Commonwealth called T.J. as its next witness. T.J. testified that Defendant was her

father. T.J. testified that, when she was eight years old, she visited Defendant at the Greenway

Avenue address. T.J. testified that, while she was visiting Defendant, he touched the outside of

her vaginal and anal regions with his penis. T.J. stated that she had been playing video games in

the back bedroom on the second story of the house when Defendant began to molest her. T.J.

testified that Defendant did not touch any other part of her body or say anything to her. T.J.

further testified that she told her mother what had happened. T.J. testified that Defendant only

touched her that one time. T.J. stated that her cousins, including A.C., would visit the Greenway

Avenue address. (N.T. 8/14/2013 pg. 22-28).

T.J. stated that she testified at trial against Defendant. T.J. further stated that other

members of her family, including Estelle, came to the trial and supported Defendant. T.J.

testified that Defendant was found guilty of attempted rape at the trial, and was sent away for a

period of time. T.J. further testified that she later reinitiated contact with Defendant because she

wanted to forgive him. T.J. stated that she did not find out about the accusations made by A.C.

until later. T.J. testified that she talked to Defendant about A.C. T.J. stated that at that time

Defendant threatened to kill A.C. and her family. T.J. further stated that Defendant repeated this

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threat on more than one occasion. T.J. testified that these threats made her feel worried and she

told AC. and her family about them. Id. at 28-33.

The Commonwealth called Anrico as its next witness. Anrico testified that Defendant

was his uncle and had been a father figure to him. Anrico further testified that A.C. was his

sister and T.J. was his cousin. Anrico testified that, when Defendant was on trial for the

attempted rape of T.J., the other members of the family would talk about T.J. and would say that

T.J. was lying, that she had been put up to it by her mother. Anrico further testified that the

family supported Defendant and did not believe that he was guilty, even after he was convicted.

Anrico stated that A.C. was present during some of these conversations. Id. at 55-68.

Anrico testified that he later noticed a change in Arianna's behavior towards Defendant.

Anrico stated that Arianna seemed more aggressive and uncomfortable around Defendant and

that her behavior upset him, because he was close with Defendant. Anrico testified that he

discussed the situation with A.C. and asked her why Arianna was behaving in that manner, at

which point AC. started to cry. Anrico testified that he asked A.C. why she was crying, and she

eventually told him what had happened to her. Anrico further testified that he suggested to A.C.

that the family have a conversation with her and Defendant present. Anrico testified that he was

present at the family meeting, during which A.C. said that Defendant had made threats against

her. Amico testified that he confronted Defendant about those threats after the family meeting

was over. Anrico testified that Defendant acknowledged making threats that he would kill A.C.

and her family, including Anrico. Id. at 68-72, 95.

Anrico testified that on February 24, 2012, he was at the Thomas Avenue address when

Defendant knocked on the door and he opened it, at which point Defendant walked past him into

the house. Anrico testified that he asked Defendant what he was doing at the house, and

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Defendant said to him, "Don't question me ... Don't ever question me on what I'm doing or why

I'm here." Anrico testified that he then went across the street to a neighbor's house, where he

called A.C. and warned her that Defendant was at their house. Anrico further testified that when

A.C. arrived on the scene, Defendant was outside sitting on the stoop area of the house. Anrico

stated that A.C. appeared scared and nervous. Anrico testified that he called Estelle, who told

them to call the police. Anrico stated that they called the police and waited in their neighbor's

house until the police arrived. Anrico testified that Defendant was not present when the police

arrived. Anrico further testified that Defendant's bike was parked near the stoop of the house,

and was not inside the house. Anrico stated that he never told Defendant to come and get his

bike, and he did not invite Defendant into the house when Defendant knocked on the door. Id. at

95-99.

The Commonwealth called Arianna as its next witness. Arianna testified that A.C. was

her older sister, and Defendant was her uncle. Arianna stated that she did not remember whether

she knew her uncle prior to 1996. Arianna testified that, sometime around 2011, she had a

conversation with A.C. about Defendant. Arianna testified that A.C. told her to be aware of her

safety and surroundings. Arianna further testified that when she asked A.C. why she said this,

A.C. told Arianna that Defendant had abused her and that she did not want the same to happen to

Arianna. Arianna further testified that A.C. began to visit her more often at the house to ensure

that she was okay. Arianna stated that, after this conversation with A.C., she became more

distant towards Defendant. Arianna further stated that the family considered her behavior

towards Defendant to be disrespectful, but she did not tell anyone about her reason since A.C.

had asked her to keep their discussion private. Arianna testified that Anrico was especially upset

with how she behaved towards Defendant. Arianna further testified that Anrico talked to A.C.

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about Arianna, at which time A.C. told Anrico what had happened to her previously. (N.T.

8/15/2013 p. 9-12).

The Commonwealth called Estelle as its next witness. Estelle testified that Defendant

was her brother, and A.C. was her daughter. Estelle testified that she attended Defendant's 1996

trial and supported him throughout the proceedings. Estelle further testified that she and other

family members would talk about T.J. in front of A.C. Estelle stated that they would discuss

their belief that Defendant had been set up by T.J.'s mother. Estelle testified that she continued

to support Defendant even after he was found guilty, through the early stages of his

incarceration. Estelle stated that she would send him letters, phone him, and visited him in

prison one time. Estelle testified that, prior to 1996, Defendant lived at their mother's house at

Greenway Avenue. Estelle further testified that she brought her children over to that house quite

often when Defendant was present. Estelle testified that the children would sometimes spend the

night at that house. Id. at 18-24.

Estelle testified that she lived at the Thomas A venue address and that Defendant

regularly visited that address from 1990 to 1996. Estelle testified that the family, including

Defendant, would often watch movies together at that address. Estelle testified that one day she

watched a television program with A.C. in which a young woman described being molested by

her uncle. Estelle further testified that she and other members of the family began to make

derogatory remarks about the young woman, at which point A.C. started crying and ran out of

the room. Estelle testified that she realized something was wrong with A.C. and she followed

A.C. to her bedroom. Estelle further testified that she asked A.C. who had abused her, and A.C.

initially refused to tell her. Estelle stated that A.C. told her, "Nobody would believe me because

he's such a good guy. He's such a good guy and everybody is going to hate me." Estelle ~-

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testified that she then asked A.C. if it was Defendant and A.C. replied, "Yes, but you can't tell

anybody because everybody is going to hate me. They [are] not going to believe me. Nobody

[believed T.J.], they not going to believe me." Estelle testified that A.C. threatened to kill herself

if she told anyone. Estelle testified that she was unsure how old A.C. was when she told Estelle

what had happened to her, but she was not older than 15 years old. Id. at 24-28.

Estelle testified that she stopped communicating with Defendant after A.C. told her what

he had done. Estelle testified that Defendant moved to Maryland and then to Georgia after being

released from custody in 2007, but he returned to Philadelphia sometime prior to 2011. Estelle

.stated that Defendant initially lived with her sister in Philadelphia, before he moved into an

apartment of his own. Estelle testified that she later allowed Defendant to stay with her because

he had lost his apartment and would have had to live in a shelter. Estelle further testified that she

wanted to forgive him and believed that he could be reintegrated into the family. Estelle stated

that, before Defendant began to live at her house, AC. did not come over to her house very often

and visited her only on special occasions. Estelle testified that A.C. began to visit the house

every day after Defendant moved in. Estelle testified that A.C. appeared distressed that

Defendant was living at the house and told Estelle that she was afraid for Arianna's safety.

Estelle testified that she then suggested to A.C. that the family have a meeting to address the

allegations she made against Defendant. Estelle further testified that, after the meeting occurred,

she found out that AC. subsequently obtained a protection from abuse order against Defendant.

Estelle testified that she did not ask Defendant to pick up his bike from her house, nor did he

have permission to pick up the bike. Id. at 29-34.

The Commonwealth then read a stipulation, by and between counsel, that Defendant was

convicted by a jury on June 20, 1997 of attempted rape, indecent assault and corrupting the

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morals of a minor (CMOM). Based on that conviction, Defendant was required to _register for

life as a sex offender. The registration requirements required Defendant to register any address

that he was residing in, as well as if he moved or left the state. Defendant was further required to

report any change in his registration within 48 hours of moving and to register once a year to

update his information. Id. at 75.

There was a further stipulation, by and between counsel, that if Trooper Kohinsky

("Kohinsky") of the Pennsylvania State Police were called to testify, he would testify that he was

custodian of records for the purposes of Megan's Law registration and he had a duty of care to

accurately keep proper records of registrants. Kohinsky would further testify that Defendant was

released from custody in 2007 and registered to the Greenway A venue address. Kohinsky would

testify that Defendant's registration would remain unchanged until February 2009, when

Defendant changed his address to Apartment 1, Angora Terrace in Philadelphia. Kohinsky

would further testify that that residence remained in effect until Defendant registered to the

Thomas Avenue address in August 2011. Kohinsky would testify that Defendant had not

registered any new or additional addresses at the time he was arrested on March 9, 2012. Id. at

There was a further stipulation, by and between counsel, that if a police officer from the

Special Victims Unit was called to testify, he or she would testify that, based on the preceding

information, they obtained an affidavit of probable cause as well as an arrest warrant against

Defendant for the violations of Megan's Law. There was a further stipulation, by and between

counsel, that the warrant was executed on March 9, 2012, and Defendant reported his address at

that time as 4993 Thompson Street, an address that had not been registered with the

Pennsylvania State Police. Id. at 77-78.

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The Commonwealth called Anderson as its next witness. Anderson testified that he had

been assigned to Southwest Detectives since 2002, and had been a police officer for 17 years.

Anderson testified that he was assigned to investigate the alleged violation of the protection from

abuse order. Anderson further testified that he interviewed and took statements from A.C. and

Anrico in the course of his investigation. Anderson testified that he verified that there was a

valid protection order against Defendant and, based on that information, he prepared an affidavit

of probable cause for the violation of the protection order. Anderson further testified that he

asked A.C. why she had obtained a protection from abuse order against Defendant. Anderson

testified that A.C. told him that she was molested by Defendant when she was five years old.

Anderson stated that he then asked if Defendant was ever arrested for molesting her, and A.C.

responded that he had not but he had been arrested for molesting his daughter. Anderson

testified that he transported A.C. to the Special Victims Unit after he interviewed her. Id. at 79-

81, 93-95.

The Commonwealth called Meissler as its next witness. Meissler testified that he had

been assigned to the Special Victims Unit for 14 years, and had been a police officer for 27

years. Meissler testified that he was assigned to investigate the sexual abuse allegations made by

A.C. against Defendant. Meissler testified that he interviewed and took a statement from A.C. in

the course of his investigation. Meissler stated that, based on the information he obtained from

A.C., he completed an affidavit of probable cause and an arrest warrant for Defendant. Meiss I er

testified that he personally served the arrest warrant on Defendant. Meissler testified that

Defendant was arrested at 4993 Thompson Street and that Defendant gave that address as his

residence. Id. at 97-101. The Commonwealth then read a stipulation, by and between counsel,

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that Defendant's date of birth was March 12, 1962. Id. at 110. The Commonwealth then rested.

Id.

The defense called Estina Corker ("Corker") as its first witness. Corker testified that

Defendant was her uncle. Corker further testified that A.C. was her first cousin. Corker stated

that, between 1985 and 1990, she lived at the Thomas A venue address with her extended family,

including Defendant and A.C. Corker testified that, in 1991, she moved with her mother to the

Greenway Avenue address, where her grandmother and Defendant were living at the time.

Corker stated that Defendant lived in the downstairs living room. Corker further stated that she

and Defendant remained in the house until 1996. Corker testified that Defendant worked five

days a week on overnight shifts. Corker testified that Estelle would only bring her children over

to the Greenway A venue address for special occasions, and did not bring them over on a regular

basis. Corker further testified that she could not recall a time in which A.C. was by herself in the

house. Corker stated that it was approximately a thirty minute walk from the Thomas A venue

address to the Greenway avenue address, and Estelle did not own a car at the time. Corker

testified that Defendant never babysat Estelle's children. Corker stated that she had a very close

relationship with A.C. and that A.C. was like a sister to her. Id. at 115-21.

Corker testified that she moved to Georgia in 2005. Corker further testified that

Defendant moved to Georgia to stay with her in 2007. Corker stated that Defendant lived with

her in Georgia for approximately six weeks before he returned to Philadelphia. Corker testified

that she would visit Philadelphia on special occasions for family gatherings. Corker further

testified that she returned to Philadelphia in June 2011 for her wedding shower. Corker testified

that Defendant, A.C., Anrico and Arianna were all present at her wedding shower. Corker stated

that she returned to Philadelphia roughly two or three times per year, and she would often see

14 Circulated 10/23/2015 10:14 AM

both Defendant and A.C. together at the Thomas Avenue address. Corker testified that A.C. 's

demeanor around Defendant seemed normal, as though she enjoyed his company. Id. at 121-24.

Corker testified that A.C. lived with her in Georgia from September 2011 to October

2011. Corker stated that A.C. had planned on moving there permanently, but she left to visit

Philadelphia and never returned. Corker testified that, in February 2012, she received a phone

call from Estelle. Corker testified that Estelle told her that Defendant had a bike in front of her

property and that it needed to be removed. Corker stated that Estelle asked Corker to get in

contact with Defendant and have him remove the bike. Corker testified that she then called

Defendant. Id. at 124-28.

The defense called Michelle Davis ("Davis") as its next witness. Davis testified that she

lived on Thomas A venue in the early 1990s with her mother and father. Davis testified that

Estelle was her best friend at that time and that she lived down the street. Davis further testified

that she knew A.C. through Estelle. Davis stated that she visited Estelle's house almost every

day. Davis testified that Estelle would stay at home during the day, and her children went to

school. Davis further testified that she could never recall Estelle taking her children to the

Greenway A venue address or talking about taking them to that location. Davis testified that

Estelle did not drive at that time, and would have had to get a ride from somebody. Davis

testified that she had visited the Greenway Avenue address on two occasions, and Estelle's

children were not present at those times. Davis testified that she knew Defendant through his

family and that she attended Corker's bridal shower. Davis stated that Defendant, A.C. and

Arianna also attended the bridal shower, and she had a conversation with all three of them.

Davis testified that the conversation lasted approximately 30 minutes, and A.C. and Defendant

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were both laughing and joking. Id. at 170-74. After Davis's testimony, the defense rested. Id. at

189 . ., ;\ ISSUES ·; ..

I. WHETHER THE EVIDENCE WAS SUFFICIENT TO FIND DEFENDANT GUILTY OF INCEST AND ENDANGERING THE WELFARE OF A CHILD.

II. WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

III. WHETHER THE COURT ERRED WHEN IT ALLOWED THE COMMONWEALTH TO INTRODUCE EVIDENCE OF DEFENDANT'S PRIOR BAD ACTS.

IV. WHETHER THE COURT IMPROPERLY ADMITTED HEARSAY INTO EVIDENCE.

V. WHETHER THE COURT ERRED WHEN IT ALLOWED THE COMMONWEALTH TO INTRODUCE A STATEMENT MADE BY DEFENDANT WITHOUT GIVING THE DEFENSE PRIOR NOTICE.

VI. WHETHER THE COURT ERRED WHEN IT PERMITTED A COMMONWEALTH WITNESS TO TESTIFY THAT HE COMPLETED AN AFFIDAVIT OF PROBABLE CAUSE.

DISCUSSION

I. THE EVIDENCE WAS SUFFICIENT TO FIND DEFENDANT GUILTY OF INCEST AND ENDANGERING THE WELFARE OF A CHILD.

The evidence presented at trial was sufficient to find Defendant guilty of incest and

endangering the welfare of a child (EWOC).

1. Sufficiency of the Evidence.

A review of the sufficiency of the·evidence to support a conviction requires that the

evidence be reviewed in the light most favorable to the Commonwealth as verdict winner.

Commonwealth v. Walter, 2004 PA Super. 147, 849 A.2d 265, 267 (2004) (citing

Commonwealth v. Rose, 463 Pa. Super. 264, 344 A.2d 824, 825 (1975)). The Commonwealth is

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also entitled to all favorable inferences which may be drawn from the evidence. Commonwealth

v. Sanchez, 2006 Pa. LEXIS 1833 (2006) (citing Commonwealth v. Collins, 550 Pa. 46, 50, 703

A.2d 418, 420 (1997)). The evidence put forth by the Commonwealth will be considered

sufficient if it establishes each material element of the crime beyond a reasonable doubt, even if

by wholly circumstantial evidence. Commonwealth v. Dargan, 2006 PA Super. 74, 897 A.2d

496, ·503 (2006) (citing Commonwealth v. DiStefano, 2001 PA Super. 238, 782 A.2d 574, 582

(2001)).

When determining whether the evidence is sufficient to support a guilty verdict, the

appellate court must examine the entire trial record and consider all of the evidence actually

received. Id. However, the trier of fact is entitled to believe all, part or none of the evidence

received at trial and the appellate court cannot substitute its judgment for that of the fact-finder.

Commonwealth v. Frisbie, 2006 PA Super. 430, 889 A.2d 1271, 1274 (2006) (citing DiStefano,

782 A.2d at 574); Commonwealth v. Kim, 2005 PA Super. 383, 888 A.2d 847, 851 (2005)

(citing Commonwealth v. Champney, 574 Pa. 435, 832 A.2d 403, 408 (2003)). The facts and

circumstances established by the Commonwealth need not eliminate any possibility of the

defendant's innocence; rather, any doubt is to be resolved by the fact-finder unless the evidence

is so weak and inconclusive that, as a matter of law, no probability of fact could be concluded.

Commonwealth v. Lambert, 2002 PA Super. 82, 795 A.2d 1010 (2002) (citing Commonwealth

v. Cassidy, 447 Pa. Super. 192, 194, 668 A.2d 1143, 1144 (1995)).

2. The evidence was sufficient to convict Defendant of incest.

The evidence presented at trial was sufficient to convict Defendant of incest. A person is

guilty of committing incest of minor if that person knowingly marries, cohabits with, or has

sexual intercourse with a complainant who is an ancestor or descendant, a brother or sister of the

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whole or half blood or an uncle, aunt, nephew or niece of the whole blood, and the complainant

is either under 13 years old or is between the ages of 13 to 18 and the person is 4 or more years

older than the complainant. 18 Pa.C.S.A. § 4302(b ). The statutory definition of sexual

intercourse for purposes of sexual offenses is equally applicable for incest. Commonwealth v.

Fouse, 417 Pa. Super. 534, 612 A.2d 1067, 1069-70 (1992). Sexual intercourse is defined, in

addition to its ordinary meaning, as "intercourse per os or per anus, with some penetration

however slight; emission is not required." Commonwealth v. Chorlton, 2006 PA Super 149, 902

A.2d 554, 561 (2006). As with other sexual offenses, the uncorroborated testimony of the victim,

if believed by the trier of fact, is sufficient to convict a defendant of incest, despite contrary

evidence from defense witnesses. Id. at 562.

In the case at bar, A.C. testified that she was Defendant's niece, and that her mother was

Defendant's sister. A.C. further testified that Defendant inserted his penis into her mouth on one

occasion when she was approximately five years old. A.C. testified that Defendant's penis went

past her lips until it touched her teeth. A.C. 's testimony was corroborated by the testimony of

Estelle, who testified that A.C. became distressed when she watched a talk show in which a

young woman described the sexual abuse she suffered as a chi Id at the hands of her uncle.

Furthermore, Estelle, Arianna and Anrico each testified that A.C. would become very upset

when she would discuss what Defendant had done, and Estelle testified that A.C. tried to commit

suicide after she told Estelle. In addition, Defendant was four or more years older than A.C. The

testimony of A.C. was sufficient in itself to find Defendant guilty of incest if deemed credible by

the jury. The jury found that A.C. 's testimony was credible, and therefore the evidence was

sufficient to find Defendant guilty of incest.

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3. The evidence was sufficient to convict Defendant of Endangering the Welfare of a Child·

The evidence presented at trial was sufficient to convict Defendant of endangering the

welfare of a child (EWOC). A parent, guardian or other person supervising the welfare of a

child under 18 years of age commits the crime of EWOC when he or she knowingly endangers

the welfare of the child by violating a duty of care, protection or support. 18 Pa.C.S.A § 4304.

Pennsylvania courts have established a three-prong test that must be satisfied to prove EWOC;

first, the accused must be aware of his or her duty to protect the child, secondly, the accused was

aware that the child was in circumstances that could threaten the child's physical or

psychological welfare, and, thirdly, the accused has either failed to act or has taken action so

lame or meager that such actions cannot reasonably be expected to protect the child's welfare.

Commonwealth v. Bryant, 2012 PA Super 257, 57 A.3d 191, 197 (2012) (citing Commonwealth

v. Pahel, 456 Pa. Super. 159, 689 A.2d 963, 964 (1997)). As with other sexual offenses, the

uncorroborated testimony of the victim, if believed by the trier of fact, is sufficient to convict a

defendant of EWOC. Commonwealth v. Trippett, 2007 PA Super. 260, 932 A.2d 188, 201

(2007) (citing Chorlton, 902 A.2d at 562).

In the case at bar, A.C. testified that Defendant placed his penis into her mouth on one

occasion when she was approximately 5 years old and thereafter touched her vagina, breasts and

buttocks with his hands on multiple occasions until she was approximately 12 years old. A.C.

testified that, on the last occasion in which Defendant molested her, she believed that he was

going to attempt to penetrate her vagina with his penis. AC. testified that Defendant behaved

more aggressively than usual, which frightened her, and she started to cry and ask him why he

molested her. AC. further testified that Defendant was unresponsive when he molested her, and

would continue to molest her even after she communicated her distress to him. AC. testified

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that some of the incidents occurred when Defendant was babysitting her, and that Defendant was

a father-figure to her because he had assumed the responsibility of caring for her when she was a

child. The evidence therefore showed that Defendant was aware of his duty to protect AC., that

his own actions placed A.C. in considerable physical and psychological distress, and that he not

only failed to take any actions to protect AC. 's welfare but he persisted in taking actions that

endangered AC. 's welfare. Consequently, the evidence was sufficient to find Defendant guilty

ofEWOC.

II. THE VERDICT WAS NOT AGAINST THE WEIGHT OF THE EVIDENCE.

The verdict in this case was not against the weight of the evidence presented at trial.

Under Pennsylvania law, a weight of the evidence claim concedes that the evidence was

sufficient to sustain the verdict. Commonwealth v. Smith, 2004 PA Super. 77, 853 A.2d 1020,

1028 (2004) (citing Commonwealth v. Bennett, 2003 PA Super. 212, 827 A.2d 469 (2003)). The

weight of the evidence is "exclusively for the finder of fact who is free to believe all, part, or

none of the evidence and to determine the credibility of the witnesses." Commonwealth v. Rice,

2006 PA Super. 143, 902 A.2d 542, 546 (2006) (quoting Commonwealth v. Champney, 574 Pa.

435, 832 A.2d 403, 408 (2003)). In addition, "where the trial court has ruled on the weight claim

below, an appellate court's role is not to consider the underlying question of whether the verdict

is against the weight of the evidence, ... rather, appellate review is limited to whether the trial

court palpably abused its discretion in ruling on the weight claim." Commonwealth v. Kim,

2005 PA Super. 383, 888 A.2d 847, 851 (2005) (quoting Champney, 832 A.2d at 408). -An

appellate court cannot substitute its judgment for that of the fact finder; therefore, a verdict will

be reversed only in the extraordinary situation where the jury's verdict is "so contrary to the

evidence as to shock one's sense of justice" and the award ofa new trial is imperative so that

20 Circulated 10/23/2015 10:14 AM

right may be given another opportunity to prevail. Commonwealth v. Tharp, 574 Pa. 202, 830

A.2d 519, 528 (2003) ( citing Commonwealth v. Brown, 53 8 Pa. 410, 648 A.2d 1177, 1189,

(1994)); Commonwealth v. Smith, 580 Pa. 392, 861 A.2d 892, 896 (2005) ( citing

. Commonwealth v. Drumheller, 570 Pa. 117, 808 A.2d 893, 908 (2002)).

In the case at bar, the verdict determined by the jury was supported by the evidence

presented at trial. The jury heard testimony from A.C. which was voluminous and specific about

what Defendant had done to her. This testimony was consistent with what A.C. previously had

described to family members and the police. Furthermore, the testimony was corroborated by

the testimony of the other witnesses, including her family members. A.C. testified that

Defendant would often touch her vagina while the two of them would sit underneath a blanket

and watch horror movies together. A.C. testified that other family members would sometimes be

present while Defendant did this to her. Estelle testified that the family would frequently watch

horror movies together, and Defendant and A.C. would often be present on these occasions. T.J.

testified that Defendant molested her in a similar manner at the same address where A.C.

testified she had been molested by Defendant. The jury's verdict was thus not so contrary to the

evidence as to shock one's sense of justice. Therefore, the verdict was not against the weight of

the evidence and this Court's decision should not be disturbed on appeal.

III. THE COURT DID NOT ERR WHEN IT ALLOWED THE COMMONWEALTH TO INTRODUCE EVIDENCE OF DEFENDANT'S PRIOR BAD ACTS.

This Court did not err when it allowed the Commonwealth to introduce evidence that

Defendant previously was convicted of attempted rape. It is well established that the

admissibility of evidence is solely within the discretion of the trial court and its decision will not

be disturbed on appeal absent an abuse of that discretion. An abuse of discretion is not merely

. l Circulated 10/23/2015 10:14 AM

an error of judgment, but is rather the overriding or misapplication of the law or an 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. Wattley, 2005 PA Super. 272, 880 A.2d

682, 685 (2005) (quoting Commonwealth v. Dent, 837 A.2d 571, 577 (PA Super. 2003)). Where

the trial court has stated a "reason for its decision, the scope of review is limited to an

examination of the stated reason." Commonwealth v. O'Brien, 2003 PA Super. 425, 836 A.2d

966, 968 (2003)(quoting Commonwealth v. Horvath, 2001 PA Super. 227, 781 A.2d 1243, 1246

(2001); Commonwealth v. Minerd, 562 Pa. 46, 753 A.2d 225, 229 (2000)). "A discretionary rule

cannot be overturned simply because a reviewing court disagrees with the trial court's

conclusion." Id. (quoting Commonwealth v. Cohen, 529 Pa. 552, 605 A.2d 1212, 1218 (1992)).

To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful

or prejudicial to the complaining party. Commonwealth v. Lopez, 2012 PA Super 161, 57 AJd

74, 81 (2012) (citing McNanamon v. Washko, 906 A.2d 1259, 1268-69 (Pa.Super.2006)). An

evidentiary error of the trial court will be deemed harmless on appeal where the appellate court is

convinced, beyond a reasonable doubt, that the error could not have contributed to the verdict.

Commonwealth v. DeJesus, 584 Pa. 29, 880 A.2d 608, 614 (2005) (citing Commonwealth v.

Story, 476 Pa. 391, 383 A.2d 155, 164-66 (1979)).

Under Pennsylvania Rule of Evidence 404(b ), evidence of a crime, wrong, or other act is

not admissible to prove a person's character in order to show that on a particular occasion the

person acted in accordance with the character. Pa.R.E. 404(b). However, this evidence may be

admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan,

knowledge, identity, absence of mistake, or Jack of accident. In a criminal case this evidence is

admissible only if the probative value of the evidence outweighs its potential for unfair

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prejudice. Id. Furthermore, the importance of the intervening time period is inversely

proportional to the similarity of the crimes in question. Commonwealth v. Einhorn, 2006 PA

Super 322, 911 A.2d 960, 967 (2006) (citing Commonwealth v. Miller, 541 Pa. 531, 664 A.2d

1310, 1319 (1995)), Moreover, evidence of a common scheme, plan or design involving various

similarly situated victims can be admissible to bolster the credibility of the complainant. See

Commonwealth v. O'Brien, 2003 PA Super 425, 836 A.2d 966, 970 (2003); see also

Commonwealth v. Hacker, 2008 PA Super 239, 959 A.2d 380, 393 (2008). In O'Brien, the

defendant sought to challenge the accuracy of the victim's testimony regarding the sexual abuse

he had suffered as a child, especially in light of the five year span between the assault and the

victim's report to his therapist. The Superior Court held that evidence that Defendant had

previously been convicted of abusing two other boys in a similar manner was properly

admissible to show a common scheme, plan or design and therefore bolster the victim's

credibility against the defense's attacks. O'Brien, 836 A.2d at 970-71.

In the case at bar, the evidence of Defendant's prior molestation ofT.J. was properly

admissible to show a common scheme, plan or design, and to rebut arguments made by the

defense regarding the credibility of A.C. The facts of each offense were similar enough to each

other to suggest a common scheme, plan or design. Both A.C. and T.J. were prepubescent,

African-American females who were roughly the same age when Defendant abused them. Both

A.C. and T.J. were abused contemporaneously with each other, and the abuse took place at the

same address. A.C. and T.J. both shared a similar relationship with Defendant; Defendant was

T.J.'s biological father, while A.C. described Defendant as a father-figure to her. In addition, the

nature of the abuse itself was similar. T.J. testified that she was playing video games when

Defendant suddenly approached her and rubbed his penis against the outer parts of her vagina

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and anus. T.J. further testified that Defendant persisted in attempting to penetrate her vagina and

anus with his penis even after he was initially unable to do so. A.C. testified that she was in the

kitchen when Defendant suddenly approached her and rubbed his penis against the outer part of

her mouth. A.C. further testified that Defendant persisted in attempting to penetrate her mouth

with his penis even after he was initially unable to do so. A.C. and T.J. both testified that

Defendant behaved in a similar manner while he abused them. Both A.C. and T.J. testified that

Defendant would not say anything to them and was generally unresponsive to them while he

abused them. Thus, the facts of each offense were similar enough that each would have been

admissible in the other case to show a common scheme, plan or design. Furthermore, evidence

of Defendant's prior bad acts was critical to corroborate A.C.'s testimony and to deflect the

repeated attempts by defense counsel to attack her credibility. Throughout trial, defense counsel

went to considerable lengths to attack A.C. 's credibility and suggest that she fabricated the

allegations she made against Defendant. Furthermore, as A.C. did not report the abuse until

many years later, her testimony was the sole direct evidence available to the Commonwealth to

prosecute Defendant. Thus, evidence that Defendant had previously abused a similar girl in a

similar manner was vital to deflect defense counsel's repeated attacks on A.C. 's credibility and

corroborate her testimony. Therefore, this Court did not err when it allowed the Commonwealth

to introduce evidence of Defendant's prior bad acts.

IV. THE COURT DID NOT IMPROPERLY ADMIT HEARSAY INTO EVIDENCE.

This Court properly allowed the Commonwealth to introduce evidence of the

conversations of A.C.'s family had regarding T.J. because the statements were not offered for the

truth of the matter asserted therein but instead were relevant to explain A.C. 's course of conduct.

Under Rules 801 and 802, an out-of-court statement is inadmissible as hearsay if it is being

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offered to prove the truth of the matter asserted in the statement. Pa.R.E. 801, 802. An out-of-

court statement is not hearsay when it has a purpose other than to convince the fact finder of the

truth of the statement. Commonwealth v. Busanet, 618 Pa. 1, 54 A.3d 35, 56 (2012). A statement

is not hearsay when it is offered to show the effect on the listener. Id. Any out of court statement

offered to explain the witness's course of conduct is not hearsay. Commonwealth v. Johnson, 615

Pa. 354, 42 A.3d 1017, 1035 (2012) (citing Commonwealth v. Rega, 593 Pa. 659, 933 A.2d 997,

1017 (2007)).

In the case at bar, this Court properly allowed the Commonwealth to introduce out-of-

court statements made by A.C. 's family to Anrico because the statements were not offered for

the truth of the matter asserted in the statement, but were offered to show the effect on the

listener and to explain A.C. 's course of conduct. Anrico testified that he was present when other

members of his family discussed the allegations made by T.J. against Defendant. Anrico testified

that the other members of the family, including Estelle, accused T.J. of lying about what

Defendant had done to her and said that she had been put up to it by her mother. Anrico further

testified that A.C. would sometimes be present during these conversations. The Commonwealth

obviously would not offer these statements for the truth of the matter asserted therein, i.e. that

T.J. had fabricated the allegations she made against Defendant. Rather, the Commonwealth

offered these statements to show the effect that they had on A.C., and to explain A.C. 's course of

conduct. A.C. previously testified that she did not initially report her abuse because she was

afraid that the family would treat her like they had treated T.J. She further testified that, even

after she told Estelle, she threatened to kill herself if Estelle reported the abuse to the police

because of her fear that the family would treat her similarly. Thus, the statements made in the

presence of A.C. by the family members, including Estelle, about T.J. were offered to show the

25 Circulated 10/23/2015 10:14 AM

effect that they had on A.C. and to further explain her course of conduct. Therefore, this Court

properly allowed the Commonwealth to introduce them into evidence because they were not

hearsay.

V. THE COURT DID NOT ERR WHEN IT PERMITTED THE COMMONWEALTH TO INTRODUCE A STATEMENT MADE BY DEFENDANT WITHOUT GIVING PRIOR NOTICE TO THE DEFENSE.

This Court did not err when it allowed the Commonwealth to introduce a statement made

by Defendant to Anrico without giving prior notice to the defense. In all court cases, on request

by the defendant, and subject to any protective order which the Commonwealth might obtain

under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following

requested items or information, provided they are material to the instant case ... (b) any written

confession or inculpatory statement, or the substance of any oral confession or inculpatory

statement, and the identity of the person to whom the confession or inculpatory statement was

made that is in the possession or control of the attorney for the Commonwealth. Pa.R.Crim.P.

573. The 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. Commonwealth v. Collins, 598 Pa.

397, 957 A.2d 237, 253 (citing Commonwealth v. Boczkowski, 577 Pa. 421, 846 A.2d 75, 97

(2004)). Moreover, a defendant seeking relief from a discovery violation must demonstrate

prejudice. Commonwealth v. Hood, 2005 PA Super 93, 872 A.2d 175, 181 (2005) (citing

Commonwealth V; Causey, 833 A.2d 165, 171 (Pa.Super.2003)).

In the case at bar, Anrico had begun to testify about the family meeting when defense

counsel objected. This Court informed Amico that it previously had ruled that witnesses could

not discuss any admission or denial that Defendant may have made at the meeting regarding the

sexual offenses. Amico asked this Court ifhe would be able to testify that Defendant admitted

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to Anrico immediately after the meeting that he made the threats against A.C. The

Commonwealth then requested that this Court allow Anrico to testify that Defendant admitted to

making the threats. The Commonwealth argued that defense counsel previously had opened the

door to evidence that Defendant had made threats against A.C., and this was an admission of a

party opponent which corroborated that evidence. Defense counsel argued that this was a

statement by Defendant that he was entitled to have been given notice of in advance. This Court

ruled that Anrico could testify that Defendant admitted to making the threats and allowed

defense counsel to take an additional day to prepare for the testimony ifhe would prefer to do so.

Defense counsel declined and, when trial resumed, Anrico testified that Defendant

acknowledged making threats that he would kill A.C. and her family. (N.T. 8/14/2013 p. 72-95).

This Court properly allowed Anrico to testify that Defendant admitted to making the

threats because the Commonwealth did not possess this information prior to Anrico's testimony

and defense counsel was not prejudiced by the admission. As this Court noted, the evidence that

Defendant admitted to Anrico that he made threats only came to light when Anrico himself asked

whether he was permitted to talk about it. Furthermore, the Commonwealth did not possess this

information because this Court previously had ruled that the threats Defendant had made would

not be introduced into evidence. It was only when defense counsel opened the door to the threats

on the day prior to Anrico's testimony that the Commonwealth was allowed to introduce

evidence that Defendant had made the threats. The Commonwealth, therefore, was unaware of

the admission prior to Anrico's testimony and had met their burden of disclosing that which was

in their knowledge. In addition, Defendant was not prejudiced by the Jack of disclosure prior to

trial. As this Court further noted, that in her statement to the police, A.C. stated that she obtained

the protection order because "[Defendant] moved into our house a couple years ago and I have a

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younger sister who is 19 and I was afraid that he might have done something to her and I told her

about what he did to me. [AnricoJ found out and he confronted [Defendant] and [Defendant)

began threatening me and my family." (N.T. 8/14/2013 p. 86-87). Defense counsel was not

prejudiced by Anrico's testimony, therefore, because he had notice prior to trial that Anrico had

confronted Defendant and Defendant subsequently threatened A.C. and her family. Anrico's

testimony was thus merely corroborative of information defense counsel had prior notice of.

Consequently, defense counsel was not prejudiced by the lack of disclosure prior to trial.

VI. THE COURT DID NOT ERR WHEN IT PERMITTED A COMMONWEALTH WITNESS TO TESTIFY THAT HE COMPLETED AN AFFIDAVIT OF PROBABLE CAUSE.

This Court did not err when it allowed Anderson to testify that he completed an affidavit

of probable cause against Defendant. Evidence is relevant if: (a} it has any tendency to make a

fact more or less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action. Pa.R.E. 401. The court may exclude relevant evidence if

its probative value is outweighed by a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence. Pa.R.E. 403. Evidence will not be prohibited merely because it is harmful

to the defendant. Commonwealth v. Kouma, 2012 PA Super 110, 53 A.3d 760, 770 (2012).

Exclusion 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. Id. The court is not

required to sanitize the trial to eliminate all unpleasant facts from the jury's 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. Commonwealth v. Page, 2009 PA

Super 20, 965 A.2d 1212, 1220 (2008). In Commonwealth v. Stokes, the Superior Court of

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Pennsylvania upheld the testimony of a police detective who testified that he submitted a truthful

affidavit of probable cause and then provided the affidavit of probable cause to the district

attorney to ensure that the charges were correct. See Commonwealth v. Stokes, 2011 PA Super

261, 38 AJd 846, 865-67 (2011). In rejecting the defendant's argument that the detective's

testimony impennissibly bolstered the Commonwealth's case and was improper evidence of an

arrest, the Superior Court stated that the testimony did not evade the jury's credibility

determining function and the jury would still have to determine whether the evidence presented

at trial was reliable. Id. at 867.

In the case at bar, defense counsel objected when Anderson was shown the protection

from abuse order. Defense counsel argued that the evidence was irrelevant because it had

already been identified by A.C. and that allowing Anderson to testify that he completed an

affidavit of probable cause improperly bolstered the credibility of the Commonwealth's case.

The Commonwealth argued that the evidence was relevant to show that Defendant was not

allowed to go to the Thomas Avenue address and therefore there was probable cause to arrest

Defendant for the violation of the protection order. Furthermore, the Commonwealth argued that

the evidence was relevant because A.C. told Anderson that Defendant had sexually abused her

during Anderson's investigation of the order, at which time Anderson transported A.C. to the

Special Victims Unit and an investigation into the sexual abuse was begun. This Court permitted

the Commonwealth to question Anderson about the affidavit on the basis that it was relevant to

show the investigation that led to the sexual abuse charges being filed against Defendant.

As in Stokes, Anderson's testimony that he completed an affidavit of probable cause

based on the evidence presented to him did not impermissibly bolster the credibility of the

Commonwealth's case. Rather, the jury was still required to judge the credibility of Anderson

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and the evidence that he relied upon in completing the affidavit of probable cause. Furthermore,

the evidence was relevant to show how the investigation of Defendant progressed from a

violation of a protection order to the sexual abuse charges that were the focus of his trial.

Moreover, the evidence that Anderson completed an affidavit of probable cause to arrest

Defendant on the violation of the protection order was not so prejudicial that it would inflame the

jury to render a verdict based upon something other than the legal propositions relevant to the

case, especially with regard to the separate sexual abuse charges. Thus, this Court properly

allowed Anderson to testify that he completed an affidavit of probable cause against Defendant

for the violation of the protection order.

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CONCLUSION

After a review of the applicable rules of evidence, statutes, case law and testimony, this

Court committed no error. The evidence was sufficient to find Defendant guilty of incest and

EWOC. The verdict was not against the weight of the evidence. This Court did not err in

allowing the Commonwealth to introduce evidence of Defendant's prior bad acts. This Court

properly allowed hearsay into evidence as there was an applicable exception. This Court did not

err when it permitted the Commonwealth to introduce a statement made by Defendant without

giving prior notice to defense counsel. This Court did not err when it allowed a Commonwealth

witness to testify that he completed an affidavit of probable cause. Therefore, this Court's

judgment of sentence should be upheld on appeal.

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