J-S26021-24
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : GERALDO MALDONADO : : Appellant : No. 1453 MDA 2023
Appeal from the Judgment of Sentence Entered September 6, 2023 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000195-2022, CP-36-CR-0005381-2021
BEFORE: PANELLA, P.J.E., OLSON, J., and KUNSELMAN, J.
MEMORANDUM BY OLSON, J.: FILED OCTOBER 01, 2024
Appellant, Geraldo Maldonado, appeals from the September 6, 2023
judgment of sentence1 entered in the Court of Common Pleas of Lancaster
County that imposed an aggregate sentence of 24 to 52 years’ incarceration
after a jury convicted Appellant of multiple sexual offenses committed against
minor children, as detailed infra.2 We affirm. ____________________________________________
1 In his notice of appeal, Appellant purports to appeal from both his May 28,
2023 conviction and his September 6, 2023 judgment of sentence. It is well-settled that Appellant’s appeal properly lies from his judgment of sentence. See Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc) (stating, “[i]n a criminal action, [an] appeal properly lies from the judgment of sentence made final by the denial of post-sentence motions”), appeal denied, 800 A.2d 932 (Pa. 2002).
2 We note that, on October 12, 2023, Appellant filed a notice of appeal at each
of the two trial court dockets. Each notice of appeal listed both trial court docket numbers. Pursuant to Pennsylvania Rule of Appellate Procedure 341, J-S26021-24
The trial court summarized the factual and procedural history as follows:
By criminal information docketed [at trial court docket number] CP-36-CR-0000195-2022 [(“CR-195-2022”)], Appellant was charged with allegedly having committed the offenses of rape of a child, aggravated indecent assault of a child, unlawful contact with a minor [(relating to sexual offenses)], corruption of minors [(relating to sexual offenses)], endangering the welfare of children [(by parent, guardian, or other person supervising the welfare of a child under 18 years of age)], indecent assault[ - complainant less than 13 years of age], and incest[ - complainant less than 13 years of age.3] Said charges stem from alleged criminal sexual ____________________________________________
when a single order “resolves issues arising on more than one docket[,] separate notices of appeal must be filed.” Pa.R.A.P. 341 at Official Comments; see also Commonwealth v. Walker, 185 A.3d 969, 977 (Pa. 2018), overruled in part by Commonwealth v. Young, 265 A.3d 462, 477 and n.19 (Pa. 2021) (reaffirming Walker but holding that Pennsylvania Rule of Appellate Procedure 902 permits an appellate court, in its discretion, to allow correction of a Rule 341 error); see also Pa.R.A.P. 902(a) (effective May 18, 2023) (stating, “[a] notice of appeal must be filed in each docket in which the order has been entered”). This Court recently held that it is of no consequence that a notice of appeal contains more than one trial court docket number, so long as the party files a notice of appeal at each of the trial court dockets. Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020) (en banc), appeal denied, 242 A.3d 304 (Pa. 2020); see also Commonwealth v. Larkin, 235 A.3d 350, 352 (Pa. Super. 2020) (en banc), appeal denied, 251 A.3d 773 (Pa. 2021). In other words, for purposes of perfecting an appeal, this Court is concerned that a notice of appeal is filed at each trial court docket, not whether the notice of appeal contains more than one trial court docket number.
Here, the record reveals that Appellant filed a notice of appeal at each trial court docket. The certified record of each trial court docket was then forwarded to this Court for purpose of appeal. This Court assigned only one docket number to Appellant’s appeal. Based upon our review of Rule 341, Rule 902, Walker, and its progeny, we conclude that Appellant perfected two appeals from the September 6, 2023 judgment of sentence entered at each trial court docket.
3 18 Pa.C.S.A. §§ 3121(c), 3125(b), 6318(a)(1), 6301(a)(1)(ii), 4304(a)(1),
3126(a)(7), and 4302(b)(1), respectively.
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conduct between Appellant and his biological child in Columbia Borough, Lancaster County, Pennsylvania between the years of 2011 and 2015.
By criminal information docketed [at trial court docket number] CP-36-CR-0005381-2021 [(“CR-5381-2022”)], Appellant was charged with allegedly having committed the offenses of aggravated indecent assault of a child, indecent assault[ - complainant less than 13 years of age] (two counts), endangering the welfare of children [(by parent, guardian, or other person supervising the welfare of a child under 18 years of age)] (two counts), corruption of minors [(by any act)] (two counts), and unlawful contact with a minor [(relating to sexual offenses)] (two counts).[4] Said charges stem from alleged criminal sexual conduct between Appellant and two minor children of Appellant's paramour in Lancaster City, Lancaster County, Pennsylvania between the years of 2005 and 2008. It was alleged that Appellant’s actions occurred when he was in a caregiving role for the involved minor children.
Appellant proceeded to trial before a jury on May 15, 2023. At the conclusion thereof, on May 17, 2023, Appellant was found guilty of all charged offenses. Following completion of a pre[-]sentence investigation [(“PSI”)] report, Appellant appeared before [the trial] court for sentencing on September 6, 2023. At such time, Appellant was sentenced as follows:
[CR-195-2022:]
Count 1 - rape of a child - not less than 10 nor more than 20 years’ incarceration.
Count 2 - aggravated indecent assault of a child - not less than 10 nor more than 20 years’ incarceration.
Count 3 - unlawful contact with a minor - not less than 8 nor more than 16 years’ incarceration.
Count 4 - corruption of minors - not less than 1 nor more than 5 years’ incarceration.
____________________________________________
4 18 Pa.C.S.A. §§ 3125(b), 3126(a)(7), 4304(a)(1), 6301(a)(1), and 6318(a)(1), respectively.
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Count 5 - endangering the welfare of children - not less than 1 nor more than 5 years’ incarceration.
Count 6 - indecent assault - deemed to merge with Counts 1 and 2.
Count 7 – incest - not less than 3 nor more than 7 years' incarceration.
[CR-5381-2021:]
Count 1 - aggravated indecent assault of a child - not less than 10 nor more than 20 years’ incarceration.
Count 2 - indecent assault - not less than 1 nor more than 5 years’ incarceration.
Count 3 - indecent assault - not less than 1 nor more than 5 years’ incarceration.
Count 4 - endangering the welfare of children - not less than 1 nor more than 5 years’ incarceration.
Count 5 - endangering the welfare of children - not less than 1 nor more than 5 years’ incarceration.
Count 6 - corruption of minors - not less than 1 nor more than 2 years’ incarceration.
Count 7 - corruption of minors - not less than 1 nor more than 2 years’ incarceration.
Count 8 - unlawful contact with a minor - not less than 1 nor more than 5 years’ incarceration.
Count 9 - unlawful contact with a minor - not less than 1 nor more than 5 years’ incarceration.
[At CR-195-2022, the sentence imposed at] Count 7 was ordered to run consecutive[ly] to [the sentence imposed at] Count 1. All remaining [sentences imposed at CR-195-2022] were [set to run concurrently to] Count 1. [At CR-5381-2021, the sentence imposed at] Count 2 was ordered to run consecutive[ly] to [the sentence imposed at] Count 1. All remaining [sentences imposed at CR-5381-2021] were [set to run concurrently to] Count 1. The sentences imposed [at CR-5381-2021] were ordered to run consecutive[ly] to the sentences imposed [at CR-195-2022]. The [aggregate sentence was] not less than 24 nor more than 52
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years’ incarceration. Appellant was ordered to pay the costs of prosecution and restitution as a condition of sentence in the amount of $884[.00 at CR-195-2022] according to a schedule as determined by his paroling authority. Appellant was recommended for participation in [] all relevant programming offered by the [Pennsylvania] Department of Corrections and for any conditions deemed appropriate by the Pennsylvania Board of Probation and Parole. Appellant [was found] not eligible for participation in the recidivism risk reduction incentive [program], motivational boot camp program, state drug treatment program, or short sentence parole program[,] and the [] Commonwealth did not waive any such ineligibility. Appellant [was found to be] eligible for reentry services. In addition, following a hearing prior to the imposition of sentence, Appellant was found to be a sexually violent predator [(“SVP”)] and subjected to the applicable lifetime notification and registration requirements [under Subchapter H of the Sex Offender Registration and Notification Act (“SORNA II”), codified at 42 Pa.C.S.A. §§ 9799.11 to 9799.40].
Appellant filed a timely post-sentence motion on September 13, 2023, which was denied by [the trial court on] September 15, 2023.
Trial Court Opinion, 12/12/23, at 1-4 (extraneous capitalization and original
footnotes omitted). This appeal followed.5
Appellant raises the following issues for our review:
[1.] Did the trial court commit [a] manifest abuse of discretion when it consolidated for trial [CR-5381-2021 and CR-195-2022] when the evidence in each of the offenses would be inadmissible in a separate trial for the other and the offenses charged are not based on the same act or transaction?
[2.] Did the trial court abuse its discretion when allowing out of court hearsay statements made by [Appellant’s biological daughter to one of Appellant’s paramour’s minor children], Karon Melton, [a forensic interviewer,] and [Jessica Higgins, ____________________________________________
5 Both Appellant and the trial court complied with Pennsylvania Rule of Appellate Procedure 1925.
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a detective with the Lancaster Bureau of Police (“Detective Higgins”)] when the statements do not establish sufficient indicia of reliability, were not spontaneous, were not consistent, and the mental state of the declarant was not reliable?
Appellant’s Brief at 4.
Appellant’s first issue challenges the trial court’s order granting the
consolidation of Appellant’s two criminal informations, CR-195-2022 and
CR-5381-2021, into a single trial. Id. at 8-10.
It is well-settled that the decision to consolidate separate criminal
informations rests within the sole discretion of the trial court, and this Court
will only reverse for “a manifest abuse of discretion or [where there is]
prejudice and clear injustice to the defendant.” Commonwealth v.
Shackelford, 293 A.3d 692, 701 (Pa. Super. 2023), relying on
Commonwealth v. Robinson, 864 A.2d 460 (Pa. 2004), appeal denied, 313
A.3d 150 (Pa. 2024); see also Commonwealth v. Lively, 231 A.3d 1003,
1006 (Pa. Super. 2020). “It is the [defendant’s] burden to establish
prejudice.” Shackelford, 293 A.3d at 701.
Pennsylvania Rule of Criminal Procedure 582 provides, in pertinent part,
as follows:
Rule 582. Joinder - Trial of Separate Indictments or Informations
(A) Standards
(1) Offenses charged in separate indictments or informations may be tried together if:
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(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.
Pa.R.Crim.P. 582(A)(1). Pennsylvania Rule of Criminal Procedure 583
provides that a trial court “may order separate trials of offenses or defendants,
or provide other appropriate relief, if it appears that any party may be
prejudiced by offenses or defendants being tried together.” Pa.R.Crim.P. 583.
“Prejudice, for purposes of Rule 583, must be greater than the general
prejudice any defendant suffers when the Commonwealth's evidence links
him[, or her,] to a crime.” Shackelford, 293 A.3d at 701 (citation and original
quotation marks omitted). Prejudice, for purpose of Rule 583, occurs when
“the evidence tend[s] to convict the [defendant] only by showing his[, or her,]
propensity to commit crimes, or because the jury was incapable of separating
the evidence or could not avoid cumulating the evidence.” Id. (citation and
original quotation marks omitted).
Reading these rules together, our Supreme Court established the
following test for determining whether joinder of separate criminal
informations is appropriate:
the [trial] court must [] determine: (1) whether the evidence of each of the offenses would be admissible in a separate trial for the other; (2) whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, (3) whether the defendant will be unduly prejudiced by the consolidation of offenses.
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Id. (citation and original brackets omitted).
Here, Appellant argues that the trial court erred in consolidating his two
criminal informations because the evidence supporting each respective
criminal information was not admissible in a separate trial for the other
criminal information. Appellant’s Brief at 8-9. Specifically, Appellant contends
evidence that he raped his biological daughter and committed acts of incest
against her would be inadmissible in a trial concerning the sexual abuse
committed against his paramour’s daughters, who testified only that Appellant
touched their butts and that they never saw his penis. Id. at 8. Conversely,
Appellant contends evidence that he touched his paramour’s daughters in a
sexual manner would be inadmissible in a trial concerning the rape and incest
committed against his biological daughter. Id. at 9. Appellant argues that
the “[e]vidence provided by [the paramour’s daughters] only acts to lead the
jury to believe that, because Appellant sexually assaulted them, he must have
sexually assaulted [his biological daughter] as well.” Id. Appellant further
argues that “[t]here was no common scheme or plan as [one of the
paramour’s daughters] was touched outside of her clothes in the kitchen of
the home[, the other daughter] was touched under her clothes in the
bedroom[,] and years later [Appellant’s biological daughter] was raped by her
father.” Id. Appellant therefore concludes that consolidated trials on his two
criminal informations allowed the Commonwealth to introduce evidence of
mere criminal propensity activity which, in turn, injected great prejudice into
the proceedings that “vastly outweighed” the probative value. Id. at 8.
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In explaining its decision to consolidate Appellant’s criminal
informations, the trial court stated,
the [trial] court found the allegations regarding the three minor victims [] to be of a highly similar nature, despite Appellant’s argument to the contrary. The three minor victims were either Appellant’s biological daughter or daughters of his paramour. The assaults occurred when the children were of a similar age, all between four and ten years of age. The assaults occurred when Appellant was in a position of sole care and at a time when the minor children were vulnerable and outside of the presence of protective family members. The assaults [] occurred at the residence of Appellant, although he resided at two separate locations during the relevant time period. The progression of the assaultive behavior was also quite similar, in that Appellant would start by groping a child outside of [her] clothing, progress to touching the child's genitals under [her] clothing, then digitally penetrating the vagina of the victim. Thereafter, Appellant would “hump” the victims and eventually attempted to have sexual intercourse with his biological daughter. In addition, although there is some uncertainty as to the exact dates of Appellant’s criminal actions, the [trial] court found the various assaults were not of a remote nature. It is noted that the incidents involving his paramour’s children occurred between 2005 and 2008. The incidents involving his biological daughter occurred between 2011 and 2015. Accordingly, there existed as little as three years variance in Appellant’s actions, which [the trial] court weighed against the substantial similarities as noted herein.
In addition to the evidence demonstrative of a common scheme or plan, the facts presented in this matter are interwoven in a tangled web such that trying the cases together was necessary to demonstrate for the jury the history and natural development of the facts. As noted by [] the Commonwealth, Appellant initially assaulted the minor daughters of his paramour. When [the] relationship [between Appellant and his paramour] ended and Appellant was precluded from contact with those minor victims, he began to assault his biological daughter. In addition, there was simply no manner for the Commonwealth to demonstrate the disclosures made by the minor victims had the criminal informations been severed. In this matter, the minor daughters of Appellant’s paramour were aware that each had been assaulted but they made no disclosure of such. Following the assault of
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Appellant’s biological daughter, in a time of crisis, they found portions of a journal detailing [the biological daughter’s] abuse. It was at this time that the disclosures were made. Accordingly, such evidence was highly relevant and necessary for the Commonwealth to adequately explain the delayed reporting and credibility of the minor victims.
...
Next, we must address whether the evidence related to the separate incidents was incapable of separation by the jury. . . . Here, the incidents occurred between 2005 and 2015, involved different victims, and took place at different locations. Therefore, there is no basis to determine that the jury suffered confusion from the presentation of the evidence related to the various offenses. In addition, it is noted that [the trial] court, in both its oral instructions to the jury and on the written verdict slip, created clear delineation between the different counts and victims to aid the jury in understanding the parameters of [the] alleged incidents.
Finally, we conclude that Appellant suffered no prejudice from the consolidation of these matters. [The] evidence of Appellant’s various sexual assaults of his youthful biological daughter and [the] daughters of his paramour did not simply show Appellant’s propensity to commit crimes nor was the evidence unnecessarily cumulative[. R]ather[,] it was a series of distinct instances of similar criminal conduct. The evidence of such criminal activity and the disclosure of such activity was interwoven in a tangled web which cannot fairly be severed and tried in separate trials. Accordingly, Appellant is unable to demonstrate any unfair prejudice.
Trial Court Opinion, 12/12/23, at 8-11 (extraneous capitalization).
Upon review, we concur with the trial court, and the record supports,
that the evidence of each of Appellant’s offenses would have been admissible
in a separate trial of the other offenses, there was no danger of confusion by
the jury, and Appellant failed to establish prejudice as a result of the
consolidation of his criminal informations.
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The determination that evidence of each of Appellant’s offenses would
have been admissible in a separate trial of the other offenses aligns with the
application of our evidentiary rules to the circumstances presented in this
case. Pennsylvania Rule of Evidence 404(b) provides, in pertinent part, as
follows:
Rule 404. Character Evidence; Other Crimes, Wrongs, or Acts
(b) Other Crimes, Wrongs, or Acts.
(1) Prohibited Uses. Evidence of any other crime, wrong, or 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.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b)(1) and (2).
It is well-established that while “[e]vidence of distinct crimes is
inadmissible solely to demonstrate a defendant’s criminal tendencies[, s]uch
evidence is admissible[] to show a common plan, scheme[,] or design
embracing commission of multiple crimes, [] so long as proof of one crime
tends to prove the others.” Commonwealth v. Keaton, 729 A.2d 529, 537
(Pa. 1999); see also Commonwealth v. Saez, 225 A.3d 169, 178
(Pa. Super. 2019) (stating, “evidence of other crimes or acts may be admitted
if such evidence proves a common scheme, plan[,] or design embracing
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commission of two or more crimes so related to each other that proof of one
tends to prove the others” (original quotation marks and citation omitted)),
appeal denied, 234 A.3d 407 (Pa. 2020). “The degree of similarity is an
important factor in determining the admissibility of other crimes or bad acts
under this exception.” Saez, 225 A.3d at 178. Moreover, “the importance of
the intervening time period is inversely proportional to the similarity of the
crimes in question.” Id. (citation and original quotation marks omitted). “The
longer the time between the crimes, the more similar the crimes need to be.”
Id.
Upon review, we concur with the trial court, and the record supports,
that the evidence supporting each of the criminal informations was admissible
in the trial of the other criminal information because the evidence supporting
each criminal information showed a “common plan or design” to abuse minor
female children who were under Appellant’s care and control. One of the
paramour’s daughters testified that Appellant sexually abused her by
inappropriately touching her “butt” while she and Appellant were at home.
N.T., 5/16/23, at 330-331. The touching occurred while she was clothed and
always occurred when no other adult, i.e., her mother, was present. Id. at
332. The second of the paramour’s daughters explained that Appellant
touched her by rubbing her body while she was clothed and progressed to
placing his hands under her clothing. N.T., 5/17/23, at 376-377. The
daughter also stated that, while placing his hands under her clothing,
Appellant would rub and touch her “private parts” and eventually started to
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digitally penetrate her. Id. at 375, 380. Finally, the daughter stated that
Appellant would lay on top of her and “dry hump” her. Id. at 375. The
daughter said that all of these events occurred at home while her mother was
not present. Appellant’s biological daughter testified that Appellant’s sexual
assaults started with Appellant touching her “butt.” N.T., 5/16/23, at 259.
Appellant progressed to touching his biological daughter “below” and also
placing his hands underneath her clothes. Id. at 257. Appellant’s biological
daughter explained that Appellant would lay with her in bed, touching her
vagina, and that this continued until Appellant removed his clothing and
digitally penetrated his biological daughter. Id. at 260-262. Ultimately,
Appellant inserted his penis into his biological daughter’s vagina during one of
the assaults. Id. at 264. Appellant’s sexual assaults on his biological
daughter occurred within the family home, outside the presence of an adult.
Id. at 257.
As found by the trial court, the record supports that Appellant’s sexual
assaults of the three minor female children were all of a “highly similar nature”
such that the actions constitute a common scheme or plan. The three children
were all of a similar age when the sexual assaults occurred and all of the
assaults occurred at Appellant’s residence while the child was outside the
presence of another adult. The progression of Appellant’s sexual assault on
each of the victims also followed a similar path in that the assaults started
with inappropriate touching through clothing and progressed to rubbing the
victim’s body underneath her clothing. Appellant’s inappropriate touching
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included rubbing the victim’s vagina and progressed to digital penetration.
Finally, in one instance, the assault culminated with Appellant inserting his
penis into the victim’s vagina. These horrible actions by Appellant on minor
female children to which Appellant had a parental relationship clearly
amounted, as the trial court found and the record supports, to an interwoven
and tangled common scheme or plan of sexual abuse. See Saez, 225 A.3d
at 179 (finding that, the fact that both victims were youthful females and that
the abuse occurred in the victim’s bedroom while the victim was away from
protective family members and was vulnerable amounted to a common
scheme or plan); see also Lively, 231 A.3d at 1006-1007 (finding that, a
common scheme or plan existed when the victims were both female, under
the age of ten, and Lively’s nieces and that the abuse occurred in a secluded
room of the victim’s house where Lively would pull down the victim’s pants
and touch her genitals).
In reviewing the second prong of the joinder test, we concur with the
trial court, and the result supports, that the evidence was capable of being
considered separately by the jury as to each of the three victims. Although
the sexual assaults on the three female victims contained commonality and
sufficient similarities to consolidate the criminal informations, the sexual
assaults were also distinct enough to be capable of separation by the jury so
as to avoid confusion. With one of the paramour’s daughters, Appellant’s
sexual abuse culminated with Appellant touching the victim while she was
clothed and no one was around. The sexual abuse of the paramour’s second
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daughter culminated with Appellant digitally penetrating the victim. Finally,
the sexual assault of Appellant’s biological daughter culminated with Appellant
raping his biological daughter. Thus, while the assault of each victim started
with similar criminal conduct and progressed in a similar manner, each victim’s
assault ended differently – touching, digital penetration, and rape. Moreover,
a review of the jury instructions, as well as the verdict slips,6 further separated
the evidence and corresponding criminal charges by each victim so as to avoid
jury confusion. N.T., 5/17/23, at 692-703.
As to prejudice, the trial court rejected Appellant’s assertion that the
consolidation of the criminal informations would be unduly prejudicial because
evidence of his sexual assaults against the paramour’s daughters only served
to show his propensity to commit sexual assault against his biological
daughter. Trial Court Opinion, 12/12/23, at 11; see also Appellant’s Brief at
9. The trial court found that evidence of Appellant’s sexual assaults against
the three minor female children “did not simply show Appellant’s propensity
to commit [the] crimes” but, rather, showed “a series of distinct instances of
similar criminal conduct” that demonstrated an interwoven and tangled
common scheme or plan of sexual abuse. As we agreed with the trial court
that the evidence of the sexual offenses in one case was admissible in a
6 The jury was provided with two verdict slips, one for each of the two criminal
informations. N.T., 5/17/23, at 693. Although the verdict slips are not part of the certified record before this Court, the trial court described the contents of each verdict slip in detail as part of its jury instructions. Id. at 692-703.
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separate trial for the other sexual offenses to show a common scheme or plan,
we concur with the trial court’s rejection of Appellant’s prejudice claim.
Therefore, we discern no manifest abuse of discretion on the part of the trial
court in consolidating Appellant’s criminal informations.
Appellant’s second issue challenges the admissibility of evidence,
specifically evidence of statements his biological daughter shared with one of
the paramour’s daughters, a forensic interviewer, and an investigating police
detective. Appellant’s Brief at 4, 10-13.
“An appellate court's standard of review of a trial court's evidentiary
rulings, which include rulings on the admission of hearsay, is abuse of
discretion.” Commonwealth v. Rivera, 238 A.3d 482, 492 (Pa. Super.
2020) (original brackets omitted), appeal denied, 250 A.3d 1158 (Pa. 2021).
“Hearsay” is defined as “a statement that [] the declarant does not make while
testifying at the current trial or hearing[, and] a party offers in evidence to
prove the truth of the matter asserted in the statement.” Pa.R.E. 801(c)(1)
and (2). A “statement” is defined as “a person's oral assertion, written
assertion, or nonverbal conduct, if the person intended it as an assertion.”
Pa.R.E. 801(a). “Hearsay generally is inadmissible unless it falls within one of
the exceptions to the hearsay rule delineated in the Pennsylvania Rules of
Evidence.” Rivera, 238 A.3d at 492 (citation and original quotation marks
omitted); see also Pa.R.E. 802.
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The Tender Years Hearsay Act7 creates an exception to the general rule
against hearsay for a statement made by a child, provided the child is “sixteen
years of age or younger” when the statement is made and the statement
relates to, inter alia, a sexual offense enumerated in Chapter 31 of the Crimes
Code. 42 Pa.C.S.A. § 5985.1(a)(1) and (2); see also 18 Pa.C.S.A.
§§ 3101 - 3141. Section 5985.1 of the Tender Years Hearsay Act states, in
pertinent part, as follows:
§ 5985.1. Admissibility of certain statements
(a) General rule. -
(1) An out-of-court statement made by a child victim or witness, who at the time the statement was made was 16 years of age or younger, describing any of the offenses enumerated in paragraph (2) [(which included Chapter 31 – sexual offenses)], not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
(i) the [trial] court finds, in an in[-]camera hearing, that the evidence is relevant and that the time, content[,] and circumstances of the statement provide sufficient indicia of reliability; and
(ii) the child either:
(A) testifies at the proceeding; or
(B) is unavailable as a witness.
42 Pa.C.S.A. § 5985.1(a). As our Supreme Court explained,
the [Tender Years Hearsay Act] concerns the admissibility of out-of-court statements made by a child victim or witness to third
7 42 Pa.C.S.A. §§ 5981-5988.
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parties. The admissibility of this type of hearsay is determined by assessing the particularized guarantees of trustworthiness surrounding the circumstances under which the statements were uttered to the person who is testifying. To determine whether a child's out-of-court statements are admissible under the [Tenders Year Hearsay Act], a trial court must assess the [relevance] of the statements and their reliability in accordance with the test enunciated in Idaho v. Wright, [497 U.S. 805, 821-822 (1990)]. Although the test is not exclusive, the most obvious factors to be considered include the spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age[,] and the lack of a motive to fabricate.
Commonwealth v. Walter, 93 A.3d 442, 451 (Pa. 2014).
Here, Appellant argues that the trial court erred in admitting his
biological daughter’s statements to his paramour’s daughter because the
statements lacked sufficient indicia of reliability. Appellant’s Brief at 10-11.
Appellant asserts that his biological daughter only responded affirmatively to
leading questions and her statements were not spontaneous because the
statements were prompted by the paramour’s daughter, were made without
the requisite mental state because his biological daughter had just run away
from home and was “battling demons,” and did not include graphic sexual
terminology and descriptions. Id. Appellant contends that the trial court
erred in admitting his biological daughter’s statements to a forensic
interviewer because the statements lacked sufficient indicia of reliability. Id.
at 11. Appellant asserts that, initially, his biological daughter replied
negatively when asked by the forensic interviewer if Appellant hurt her body,
touched it inappropriately, or exposed himself to her. Id. at 12. In a later
interview, his biological daughter told the forensic interviewer that Appellant
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had inappropriately touched her. Id. Appellant contends that his biological
daughter’s statements contradict one another and also contradict his biological
daughter’s statement to an investigating police detective, which declared that
Appellant raped her. Id. Finally, Appellant avers that the trial court erred in
admitting his biological daughter’s statements to the police detective because
the statements lacked a sufficient indicia of reliability. Id. Appellant argues
that, initially, his biological daughter only told the police detective that
Appellant inappropriately touched her and did not disclose that he raped her.
Id. Later, in a subsequent interview, his biological daughter told the police
detective that Appellant raped her. Id. Appellant also contends that, at the
time his biological daughter made the statements to the police detective, she
lacked the necessary mental state because she was incarcerated at the
Lancaster County Youth Intervention Center. Id. at 13.
In admitting the statements, the trial court explained,
[Regarding the statements made to the paramour’s daughter, the statements were initially discovered through unintentional means], as both of the paramour’s daughters found the biological daughter’s journal with a song verse referencing the abuse. When the [biological daughter] returned home, the three girls went into [the biological daughter’s] bedroom. There, the paramour’s daughters sought clarification of the meaning of the verse, asking [the biological daughter] if Appellant [] raped her. [The biological daughter] responded [“yes.” One of the paramour’s daughter’s] asked if Appellant had “put it in” her. [The biological daughter] responded [“yes”] but was unwilling to go into further detail at that time. [Both of the paramour’s daughters] sought to console [the biological daughter] to let her know that they too had experienced abuse by Appellant, and that she was not alone.
The next person [the biological daughter] disclosed the abuse to was [the] forensic interview[er] in August [] 2022. [The forensic
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interviewer] had previously met with [the biological daughter] earlier in 2022 for a high-risk behavior assessment related to [the biological daughter’s] repeated attempts at running away. During that assessment, [the biological daughter] did not disclose any abuse. After the discovery of the journal, [the biological daughter] was brought in for a forensic interview with the targeted topic being any abuse she may have suffered. A forensic interview is conducted with the specific policy of not asking the victim[] leading topics or suggesting answers[] but[,] instead[,] aims to prompt narrative answers in which the victim[] only disclose[s] what [he or she] feel[s] compelled to disclose on [his or her] own accord. Once again, [the biological daughter] disclosed that Appellant had touched her private parts.
The last instances of disclosure by [the biological daughter] were made to the investigating [police detective.] In the course of her investigation, [the police detective] met with [the biological daughter] to get a better understanding of where the alleged abuse occurred as both Appellant, [the biological daughter,] and the family of Appellant's former paramour moved frequently during the alleged time period of abuse. As [the biological daughter] recalled where they lived during the abuse, she would often disclose further details about the abuse that occurred in each location. In the midst of one such recollection, [the biological daughter] provided [the police detective] with a more complete account of the rape, recalling where she was, where [the paramour’s daughters] were in the house in relation to her and Appellant, the time of day it occurred, what was playing on the television in the background while it happened, and that [Appellant] had “tried” to rape her because he was unable to fit his penis fully into her vagina after climbing on top of her following Appellant's initial touching [of] her vagina.
The [trial] court [found] that the congruity of the disclosures, the consistency both in what [the biological daughter was] willing to disclose and in her progression of willingness to disclose, and the credibility of the third-party witnesses provided a sufficient indicia of reliability.
Trial Court Opinion, 12/12/23, at 15-16 (record citation and footnotes
omitted).
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We begin our analysis of the trial court’s evidentiary ruling by
considering the statements made to the paramour’s daughter. Here, the
Commonwealth sought to introduce the biological daughter’s statements to
the paramour’s daughter, in which the biological daughter indicated that she
was “fighting demons” and that Appellant raped her. N.T., 5/16/23, at 201.
The paramour’s daughter explained that she and the biological daughter had
conversations about why the biological daughter was “acting out” and the
biological daughter explained that she was “battling demons and things that
we don’t know about.” N.T., 5/15/23, at 128-129. The paramour’s daughter
also explained that, in an attempt to locate the biological daughter after she
had run away from home, the paramour’s daughter discovered song lyrics the
biological daughter wrote discussing how Appellant inappropriately touched
her. Id. at 130-131. When the biological daughter returned home, she was
questioned by the paramour’s daughter, who asked if Appellant had raped her
and if he “put it in her.” Id. at 133-134. The biological daughter responded
“yes” to both questions without providing further detail. Id.
The Commonwealth also sought to introduce at trial a recording of an
interview the forensic interviewer had with the biological daughter. N.T.,
5/16/23, at 201. The forensic interviewer explained that, during the
interview, the biological daughter stated that she wrote the song lyrics about
Appellant inappropriately touching her, that the lyrics were discovered, and
that, ultimately, that was how others learned of the sexual abuse. Id. at 161.
On cross-examination during the Tender Years hearing, the forensic
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interviewer also testified that, during the forensic interview, the biological
daughter did not disclose that Appellant had placed his penis inside of her.
Id. at 168.
Finally, regarding statements made by the biological daughter to the
police detective, the Commonwealth sought to introduce statements
establishing that Appellant touched his biological daughter, showed his penis
to her, digitally penetrated his biological daughter’s vagina, and inserted his
penis into his biological daughter’s vagina. Id. at 202-203. During an
interview with the police detective, the biological daughter offered information
freely about her sexual abuse, including that, during one Christmas holiday
season, she recalled Appellant coming into her room, touching and digitally
penetrating her vagina, and exposing his penis to her. Id. at 178. During a
second interview, the biological daughter explained to the police detective that
the sexual abuse occurred mostly in the living room of one apartment where
Appellant resided. Id. at 182. Sexual abuse also took place in the bedroom
of another apartment where Appellant resided. Id. at 182. The biological
daughter recalled that, in the living room, Appellant would “touch her vagina
over and under [her] clothing with his hands” and he would place his hands
inside and outside of her vagina. Id. at 182. In the bedroom, the biological
daughter recalled, on one occasion, that when a children’s movie she was
watching ended, Appellant entered the room, pulled down her pants, and
touched her inside and outside of her vagina with his fingers. Id. at 183. The
biological daughter also recalled an incident where Appellant came into her
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bedroom while she was sleeping, pulled down his pants and her pants, and
got on top of her. Id. at 183. The biological daughter explained that Appellant
“tried” to insert his penis into her vagina. Id. at 183-184. As the biological
daughter continued to disclose her recollections of the sexual abuse to the
police detective, the police detective explained that she asked the biological
daughter to “tell me more about that” situation so as to gather further
information without asking leading questions. Id. at 184. The police detective
stated that the biological daughter offered information regarding the rape on
her own accord. Id. at 185. The biological daughter told the police detective
that the sexual abuse started when she was five years old and stopped when
she was nine or ten years old. Id. at 186.
Upon review, we concur with the trial court, and the record supports,
that the statements introduced by the Commonwealth were relevant and
showed a sufficient indicia of reliability. In considering the totality of the
circumstances under which the statements were made, the statements of
sexual abuse were consistent and continued to be more forthcoming as the
biological daughter became more comfortable discussing the abuse and came
to terms with what occurred to her at the hands of her father. Therefore, we
discern no manifest abuse of discretion in the trial court’s admission of these
statements pursuant to the exception to the rule against hearsay which is
expressed in the Tender Years Hearsay Act.
Judgment of sentence affirmed.
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Judgment Entered.
Benjamin D. Kohler, Esq. Prothonotary
Date: 10/01/2024
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