Com. v. Dejesus-Gonzalez, J.

• Court: Superior Court of Pennsylvania
• Decided: August 8, 2022
• Docket: 909 MDA 2021
• Status: Unpublished

Opinion

J-S10040-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JESUS DEJESUS-GONZALEZ : : Appellant : No. 909 MDA 2021

Appeal from the Judgment of Sentence Entered June 11, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0002608-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : JESUS DEJESUS-GONZALEZ : : Appellant : No. 910 MDA 2021

Appeal from the Judgment of Sentence Entered June 11, 2021 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0005343-2020

BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.

MEMORANDUM BY COLINS, J.: FILED AUGUST 08, 2022

Jesus Dejesus-Gonzalez appeals from the judgments of sentence

imposed following a jury trial in which he was found guilty of two counts of

aggravated indecent assault of a child, aggravated indecent assault of a

person less than thirteen years of age, indecent assault without the

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 Retired Senior Judge assigned to the Superior Court. J-S10040-22

complainant’s consent, indecent assault on an unconscious or unaware

person, indecent assault of a person less than thirteen years of age,

intimidation of witnesses or victims, unlawful contact with a minor, and

corruption of minors as a person eighteen years or older.1 For these offenses,

Dejesus-Gonzalez received an aggregate sentence of ten to twenty years of

incarceration to be followed by three years of probation. On appeal, Dejesus-

Gonzalez presents two issues, which contend that the lower court erred by

admitting inadmissible hearsay and, too, made a mistake by not granting his

request for a mistrial. The latter claim stems from apparently incriminating

testimony given by a detective who attempted to discuss with Dejesus-

Gonzalez the allegations that would form the underpinnings of his convictions.

After a thorough review of each argument, we find no merit to either assertion

and affirm.

Briefly, the victim, who was twelve years old at the time, alleged that

Dejesus-Gonzalez, her uncle, stuck his finger into her vagina while she was

sleeping in the basement with Dejesus-Gonzalez, Dejesus-Gonzalez’s

girlfriend, and the girlfriend’s two daughters. In conjunction with this

allegation, the victim indicated that Dejesus-Gonzalez, among other things,

offered to give her five dollars if she did not tell anyone about what had

happened. ____________________________________________

1 See 18 Pa.C.S.A. § 3125(b), 18 Pa.C.S.A. § 3125(a)(7), 18 Pa.C.S.A. § 3126(a)(1), 18 Pa.C.S.A. § 3126(a)(4), 18 Pa.C.S.A. § 3126(a)(7), 18 Pa.C.S.A. § 4952(a)(1), 18 Pa.C.S.A. § 6318(a)(1), and 18 Pa.C.S.A. § 6301(a)(1)(ii), respectively.

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The next day, the victim confided in a volunteer at Teen Central, a local

nonprofit organization and community center, by the name of Akira Owens.

After Owens received this information, the police were eventually called to

follow up with the victim. Thereafter, the victim was interviewed by Lancaster

County’s Children’s Alliance and a sexual assault forensic evidence exam was

performed.

A detective, Detective Aaron Szulborski, tried to discuss with Dejesus-

Gonzalez the allegations that the victim had made against him and suggested

that Dejesus-Gonzalez go to the police station to facilitate that conversation.

However, Dejesus-Gonzalez declined Detective Szulborski’s offer. Instead, as

the Detective’s testimony would later indicate, Dejesus-Gonzalez told the

Detective that he was asleep all night and had no idea what he was talking

about. Dejesus-Gonzalez then proceeded to back away from the Detective and

continued to walk away.

A little over a month after Dejesus-Gonzalez’s interaction with the

Detective, Dejesus-Gonzalez voluntarily went into the police station for an

interview. There, aligning, at least in part, with the victim’s statements and

timeline of events, he admitted to giving the victim five dollars and sleeping

in the same bed as her. At some point thereafter, testing of the victim’s

clothing the night the assault took place would reveal DNA matching that of

Dejesus-Gonzalez.

Prior to trial, Dejesus-Gonzalez filed a habeas corpus petition, which

resulted in the dismissal of several charges that had been filed against him.

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Despite this dismissal, two of the three dismissed charges would be refiled at

a separate docket number and later be consolidated, for trial purposes, with

the prior charges. Dejesus-Gonzalez’s second habeas petition was denied.

At trial, and relevant to the first issue raised by Dejesus-Gonzalez,

Owens testified that the victim, while crying, told her that she had been

sexually assaulted by Dejesus-Gonzalez. Owens’ testimony conveyed that the

victim indicated that upon her waking up that morning, she felt Dejesus-

Gonzalez’s hand in her underwear, asking if she liked what he was doing.

Ultimately, over an objection, the court ruled that Owens’s testimony in this

regard was admissible as an excited utterance exception to the hearsay rule.

Also at trial, and germane to Dejesus-Gonzalez’s second issue, Detective

Szulborski recounted Dejesus-Gonzalez’s actions when the Detective initially

approached him insofar as he, in the middle of the conversation, proceeded

to walk away. While defense counsel objected to this testimony, too, asserting

a Fifth Amendment privilege against self-incrimination,2 the court issued a

curative instruction simultaneously stating that there is a right not to speak

with police officers and that a use of this right should not be construed as an

admission of guilt.

The jury returned a verdict of guilty at all counts. After sentencing,

Dejesus-Gonzalez filed a timely notice of appeal. All parties have complied

with their respective obligations under Pennsylvania Rule of Appellate ____________________________________________

2Dejesus-Gonzalez would also make a motion for mistrial in this regard, which was denied.

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Procedure 1925, and as such, this appeal is ripe for review.

On appeal, Dejesus-Gonzalez asks:

1. Did the trial court abuse its discretion in permitting the Commonwealth to present testimony of Akira Owens wherein the victim disclosed to her that when she awoke in the morning, she felt her uncle’s hand in her underwear, as the statement was inadmissible hearsay?

2. Did the trial court err in not granting defense counsel’s request for a mistrial after Detective Szulborski testified that after inviting Dejesus-Gonzalez back to the police station to talk about the allegations, Dejesus-Gonzalez refused to come back, back pedaled, continued to walk away, and turned around, where such testimony violated Dejesus-Gonzalez’s Fifth Amendment right against self-incrimination?

See Appellant’s Brief, at 7.

Dejesus-Gonzalez first asserts that the statement made by the victim to

Owens does not qualify under the excited utterance exception to the rule

prohibiting the admission of hearsay. Instead, given “the passage of time …

and the amount of contact with other individuals … [her statement likely] was

influenced by her reflective thought processes.” Id., at 18.

Preliminarily, we note that “[t]he admission of evidence is a matter

vested within the sound discretion of the trial court, and such a decision shall

be reversed only upon a showing that the trial court abused its discretion.”

Commonwealth v. Reid, 811 A.2d 530, 550 (Pa. 2002). However, the trial

court is prohibited from ignoring rules of evidence, and admitting into the

record such evidence that runs afoul of those rules constitutes error. See

Commonwealth v. Franklin, 580 A.2d 25, 31 (Pa. Super. 1990) (citation

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omitted). If an erroneous ruling on an evidentiary issue occurs, we apply the

harmless error standard. See Commonwealth v. Mitchell, 902 A.2d 430,

452 (Pa. 2006) (indicating that “[a]n error will be deemed harmless where the

appellate court concludes beyond a reasonable doubt that the error could not

have contributed to the verdict[]”) (citation omitted).

Hearsay, or an out-of-court statement offered to prove the truth of the

matter asserted, is “generally inadmissible in legal proceedings unless it falls

under a recognized exception.” Commonwealth v. McClelland, 233 A.3d

717, 735 (Pa. 2020). An excited utterance is one of those recognized

exceptions, which our rules of evidence define as a “statement relating to a

startling event or condition, made while the declarant was under the stress of

excitement that it caused,” Pa.R.E. 803(2), and is applicable as an exception

even in situations where the declarant is available as a witness. See id. As to

what constitutes an excited utterance, the declarant must be in the process

of experiencing a startling event or be “so near the occurrence both in time

and place as to exclude the likelihood of its having emanated in whole or in

part from [her] reflective faculties.” Commonwealth v. Murray, 83 A.3d

137, 157 (Pa. 2013) (citation omitted).

Our Supreme Court has previously, yet recurrently, emphasized that

there is no specific time period after the startling event has concluded for a

statement to qualify as an excited utterance. See, e.g., Commonwealth v.

Wholaver, 989 A.2d 883, 906-07 (Pa. 2010). Instead, “the determination is

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factually driven, made on a case-by-case basis.” Id., at 907. “The crucial

question, regardless of the time lapse, is whether, at the time the statement

is made, the nervous excitement continues to dominate while the reflective

processes remain in abeyance.” Id. To that end, the fact-specific inquiry

requires consideration of “among other things, whether the statement was in

narrative form, the elapsed time between the startling event and the

declaration, whether the declarant had an opportunity to speak with others

and whether, in fact, she did so.” Commonwealth v. Carmody, 799 A.2d

143, 147 (Pa. Super. 2002) (citation omitted).

Although we generally agree with Dejesus-Gonzalez that “the passage

of time will tend to diminish the spontaneity of the utterance and increase the

likelihood that the utterance will be influenced by the reflective thought

processes or by contact with others,” Commonwealth v. Vining, 744 A.2d

310, 318 (Pa. Super. 1999) (en banc), we disagree that Vining serves as

analogous support. In Vining, our Court found that a doctor’s questioning of

a victim “approximately ten to twelve hours after the incidents in question and

after [the victim] had been in the company of numerous individuals [such as]

her parents, doctors, police officers and other health care workers” did not

qualify as an excited utterance. Id. Inter alia, “the fact that the utterance

itself was in direct response to questions which presupposed an incriminating

aspect” acted more so as statements from the doctor, rather than the victim

herself. Id. (finding that the doctor asking “who burned you” and “who hit

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you” instead of inquiring as to how the burning occurred transformed the

victim into “the medium by which she could confirm the doctor’s

predetermined conclusions[]”). The interrogative situation in Vining is clearly

not present here.

Instantly, the court found, first, that a startling event happened to the

victim, which, in isolation, does not appear to be refuted by Dejesus-Gonzalez.

The court continued:

A mere twelve hours before [the victim’s] uncle sexually assaulted her and attempted to intimidate her into silence by offering her five dollars. The [v]ictim stated that she did not tell anyone before speaking with … Owens “because as a little girl, and that happens, it is just – you don’t know what a person would do, and it is scary, and I was terrified. While the declaration did not occur immediately after the incident … an appropriate measure of lapse in time from an exciting incident to an excited utterance cannot be determined. In the intervening twelve hours, there was no “confusing force operating upon the recollection of the victim that remove[d] the spontaneity which is the sine qua non of the excited utterance.” As stated by the victim, she was terrified and did not know what to do and twelve hours later when she spoke with … Owens she was visibly upset and crying. Given the circumstances, including the child’s age, the [v]ictim was still under the emotional shock of the incident[.]

Trial Court Opinion, 10/8/21, at 7 (citations to the record omitted) (citation to

authority omitted).

Dejesus-Gonzalez stresses the fact that the victim’s statement to Owens

occurred twelve hours after the incident, that the victim transmitted what had

happened to a friend prior to disclosure to Owens, and that the victim

generally communicated with others earlier that day affected her thought

processes, giving her time to reflect on what had happened. See Appellant’s

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Brief, at 18.

However, neither the elapsing of time nor the events prior to the victim’s

conversation with Owens prove fatal to the court’s adjudication that the

victim’s statement, via Owens’s testimony, qualified as an excited utterance.

As the victim in this case was a child, “[t]he requirements of spontaneity … is

relaxed when the child declarant is the victim of a sexual assault.”

Commonwealth v. McEachin, 537 A.2d 883, 889 (Pa. Super. 1988) (citation

omitted). The relaxation of the rule is predicated on “a young child’s inability

to comprehend … the assault and the possibility of the child’s hesitancy to

discuss the matter for fear of incurring punishment.” Id., at 889-90 (citation

omitted) (alteration in original).

More broadly, “[a]s long as the statement was clearly a product of

overpowering emotion caused by a traumatic and humiliating experience,” id.,

at 890, it is admissible as an excited utterance. Our Court has concluded that

“a six-hour delay is not enough to cast doubt on the spontaneous nature of

the statement,” id., and by applying the aforesaid precepts, “an even greater

delay would not preclude introduction.” Id.

Given the victim’s affect when she reported what had happened to

Owens, which included crying throughout the conversation, her age, and the

unsolicited nature of her bringing forth these allegations, we find that the trial

court, in exercising its discretion, properly admitted Owens’s testimony as an

excited utterance. Clearly, the victim’s declaration to Owens about what had

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happened the night before was derivative of the overpowering emotions she

was still experiencing, which stemmed from an obviously traumatic event. The

fact that her statement came twelve hours after the event or that she confided

in one of her peers before meeting with Owens is of no moment as the

overarching qualifications necessary to demonstrate an excited utterance

have been met.3 As such, Dejesus-Gonzalez’s first claim fails.

In the alternative, to the extent that it was in error for the court conclude

that the victim’s statement to Owens was an excited utterance, other than

making a bald assertion that he was substantially prejudiced and/or that the

probative value of the statement was outweighed by the prejudice he endured,

see Appellant’s Brief, at 18, Dejesus-Gonzalez has not, with any level of

specificity, demonstrated that such an error was harmful. Therefore, he is due

no relief on that basis as well.

In his second contention, Dejesus-Gonzalez avers that he should have

been granted a mistrial because of Detective Szulborski’s allegedly

incriminating testimony about Dejesus-Gonzalez’s actions when the Detective

attempted to question him the first time.

“A mistrial is an extreme remedy that is only required where the

challenged event deprived the accused of a fair and impartial trial.”

3 In any event, as stated, supra, children express hesitancy in discussing sexual assault matters for fear of incurring punishment. The victim confiding in an age-related friend first, rather than an adult, reinforces this premise and does not diminish the spontaneity of what the victim told Owens.

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Commonwealth v. Laird, 988 A.2d 618, 638 (Pa. 2010) (citation and

quotation marks omitted). We review a lower court’s denial of a motion for

mistrial for an abuse of discretion. See Commonwealth v. Tejeda, 834 A.2d

619, 623 (Pa. Super. 2003). However, if the trial court gives adequate

cautionary instructions, “declaration of a mistrial is not necessary.”

Commonwealth v. Bryant, 67 A.3d 716, 728 (Pa. 2013).

“The test to be applied at motion for mistrial is whether improper

evidence was admitted at trial, such as would so compromise the fact finder

that it would be unable to remain impartial, thereby prejudicing appellant

beyond a reasonable doubt.” Commonwealth v. Dean, 445 A.2d 1311, 1313

(Pa. Super. 1982).

After stating that the Detective introduced himself to Dejesus-Gonzalez

and conveyed there was a sexual assault allegation that had been made

against him, the Commonwealth asked:

[The Commonwealth]: What does [Dejesus-Gonzalez] say?

[Detective Szulborski]: He – [Dejesus-Gonzalez] states that he was asleep all night. He doesn’t know what I’m talking about, as he is backing away off the porch, onto the sidewalk, onto the street.

I invited him to come back to the police station to talk about what, you know, what we learned earlier. And he refuses to come back, as he is still back-pedaling. He continues to walk away, turns around and –

N.T., 4/27/21, at 244. Thereafter, Dejesus-Gonzalez’s counsel objected and

motioned for a mistrial. Dejesus-Gonzalez believes that the Commonwealth

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was able to use this pre-arrest silence to imply guilt.

“The Fifth Amendment was enacted to protect against self-incrimination,

whether they are in custody or not, charged with a crime, or merely being

questioned during the investigation of a crime.” Commonwealth v. Molina,

33 A.3d 51, at 63 (Pa. Super. 2013) (citation omitted). “[T]he government

may not use … silence as substantive evidence of guilt when a defendant

chooses not to testify. . . .[That silence] may also not be used against a

defendant who remained silent during the investigation of a crime.” Id.

(citation omitted).

With that in mind, the Fifth Amendment “does not impose a prima facie

bar against any mention of a defendant’s silence.” Id. (emphasis added).

Instead, the Fifth Amendment protects against the prosecution’s exploitation

of a defendant’s right to remain silent. See id. “[A] mere reference to pre-

arrest silence does not constitute reversible error where the prosecution does

not exploit the defendant’s silence as a tacit admission of guilt.”

Commonwealth v. Adams, 104 A.3d 511, 512-13 (Pa. 2014).

Although Dejesus-Gonzalez concedes that there are permissible ways

for the Commonwealth to comment on his pre-arrest silence, such as if he

were to testify and then be impeached or was made in relevant response to

one of the arguments advanced at trial, neither of those situations are present.

Instead, “[t]he Detective’s testimony was deliberate, repetitive, detailed and

the reference to … [Dejesus-Gonzalez’s] silence was clear.” Appellant’s Brief,

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at 23. Moreover, the Detective’s elaboration on his physical movements,

specifically with Dejesus-Gonzalez walking away from the conversation,

served no other purpose than to infer guilt.

Here, immediately after the objection and subsequent sidebar had

concluded, the court gave a curative instruction:

[e]veryone has a right … not to talk to the police. Everyone, me, you, the deputy, the attorneys. Anyone has the right not to talk, or not feel compelled, or not talk to a police officer … you will not draw any negative inference against [Dejesus-Gonzalez] because of that initial reaction that he had when he communicated with the officer.

N.T., 4/27/21, at 259; see also id., at 257 (“Everyone, and I mean everyone,

has a right not to speak to the police when the police approach for some type

of contact with them. That being said, the officer did have two other contacts

with [Dejesus-Gonzalez] which [Dejesus-Gonzalez] engaged in voluntarily.”).

“To determine whether a cautionary instruction can cure a reference to

the accused's silence, courts must consider 1) the nature of the reference to

the defendant's silence; 2) how it was elicited; 3) whether the district attorney

exploited it; and 4) the promptness and adequacy of the cautionary

instruction.” Commonwealth v. Pearson, 685 A.2d 551, 554 (Pa. Super.

1996) (internal quotation marks and citation omitted) (allowing for a

cautionary instruction to remove the taint of “what might otherwise be a

reversible error”).

While Dejesus-Gonzalez accepts that the court offered a curative

instruction, he merely asserts that such an instruction “was not adequate to

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cure the violation” of his right against self-incrimination. Appellant’s Brief, at

25. Other than, perhaps, alluding to them in passing, Dejesus-Gonzalez does

not discuss the factors enumerated, supra. In fact, Dejesus-Gonzalez offers

nothing to castigate the inadequacy of the wording used in the court’s

instruction.

We find that the cautionary instruction was sufficient. It was given in

short temporal proximity to the Detective’s statement and fully elaborated on

all people’s inherent ability not to speak with a police officer, such as the one

that was then providing testimony in this case. Moreover, the court underlined

the fact that the jury was to make no negative inference against Dejesus-

Gonzalez for his actions as they were described in the Detective’s testimony.

Other than discussion of the impact the words had themselves, Dejesus-

Gonzalez has not shown any way that the Commonwealth exploited the

Detective’s testimony once it had been elicited.

While the Detective probably could have omitted references to Dejesus-

Gonzalez’s actions and movements throughout their short initial conversation

and still maintained coherency to his recounting of events, we conclude that

“the detective’s testimony was not intended to imply a tacit admission of

guilt[,]” Adams, 104 A.3d at 517, as it provided a description and chronology

of the investigation, which is permissible in the allowance of such testimony.

“[I]t was simply utilized to recount the sequence of the investigation,” “was

contextual and brief[,] and did not highlight [his] silence as evidence of guilt.”

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Id., at 518.

To the extent that the Detective’s statements came into conflict with

Dejesus-Gonzalez’s Fifth Amendment right, the approximately two at-issue

sentences served nothing more than to provide background into what the

Detective’s investigation yielded. Dejesus-Gonzalez, himself, stated that he

slept all night and did not know what the Detective was talking about. If that

is all Dejesus-Gonzalez had to say at that moment, it strains credulity to find

some innate implication ascribed to him by thereafter walking away from the

Detective. Furthermore, the Detective used no adjectives, arguably prejudicial

or otherwise, to describe the nature of Dejesus-Gonzalez’s movements or any

expressions that he made at that point. Instead, the Detective merely stated

that Dejesus-Gonzalez backed away and afterward walked away. Without the

Commonwealth or the Detective attributing anything pejorative to Dejesus-

Gonzalez’s silence, the complained of references provided narrative context.

Furthermore, in the absence of any cogent argument to the contrary, the

court’s curative instruction ameliorated any negative association the jury may

have placed on Dejesus-Gonzalez’s actions. With all of this in mind, we find

no abuse of discretion in the court’s decision to deny Dejesus-Gonzalez’s

motion for a mistrial.

Having found no merit to either of Dejesus-Gonzalez’s claims, we affirm

his judgments of sentence.

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Judgments of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/8/2022

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