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IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA CRIMINAL --�-- ---�---�--·····"·· .�,---�---·--··GE>MM0NWE'Al:''fH�eF�PeNNSYt;VANIA----�--·-�·-···-�-cp:o"1:C"R=1·2'4·6:2·o"f5'�-� . . VS. . . g --·! ::··d] - -� I c, TODD RICHARD OYLER t.1
. OPINION PURSUANT TO Pa. R.A.P. 1925{a) C)
Appellant, Todd Richard Oyler, appeals from this Court's August 2, 2016 Order
denying Appellant's Motion to Continue Trial Generally. For the reasons set forth below,
it is respectfully requested that this Court's August 2, 2016 Order be affirmed.
Appellant is charged with two counts of Involuntary Deviate Sexual Intercourse
with a Child, a felony of the first degree1; two counts of Unlawful Contact with a Minor, a
felony_ of the firstdegree2; one count of Unlawful Contact with a Minor, a felony of the
third degree3; one count of Aggravated Indecent Assault of a Child, a felony of the first
degree4; one count of Indecent Assault of a Person Less than 13 Years of Age, a felony
of the third degree5; one count of Corruption of Minors, a felony of the third degree6; one
count of Corruption of Minors, a misdemeanor of the first degree7; one count of Indecent
Exposure, a misdemeanor of the first degree8; one count of Indecent Assault - statutory,
a misdemeanor of the second degree9; and one count of open lewdness, a
misdemeanor of the third degree 1°.
1 18Pa. C.S. § 3123 (B) 1 18 Pa. C. S. § 6318(a)(1) J 18 Pa. C.S. § 63 I 8(a)(l) 4 18 Pa. C.S. § 3125(b) 5 18 Pa. C.S. § 3 I 26(a)(7) 6 18 Pa. C.S. § 6301(a)(l)(ii) 7 18 Pa. C.S. § 630 ! (a)( I )(i) 8 J8 Pa. C.S. § 3127(a) 9 18 Pa. C.S. § 3 I 26(a)(7) 10 18 Pa. C.S. § 5901
1 On November 24, 2015, a preliminary hearing was held in this matter before
�--� - ----· . . . . ,.---���.. . ___..___•.... __. . . . __�--·._. :. . .·-�...................--� ,---·-- --··��---��... Magisterial District Judge Tony Little. At Appellant's preliminary hearing, the .. _.....,.. ... .. ---.,_.� .... -- Commonwealth only presented hearsay testimony of statements made by M.L, the
juvenile victim in this case. All charges were held for court. Appellant filed an Omnibus
Pre-Trial Motion on March 9, 2016 which included a Habeas Corpus Motion, a Motion to
Quash or Dismiss the Criminal Information, and a Motion for Remand for Preliminary
Hearing. This Court denied Appellant's Omnibus Pre-trial Motion in its entirety on April
29, 2016. Appellant filed a second Omnibus Pre-Trial Motion on May 10, 2016 seeking
this Court to preclude the Commonwealth from prosecuting Appellant for Unlawful
Contact With a Minor.11 This Court denied Appellant's Omnibus Pretrial Motion in its
entirety on May 19, 2016. On June 23, 2016, the Commonwealth moved to admit out of
court statements under the Tender Years Hearsay Exception.12 This Court granted that
motion on July 15, 2016. The Appellant then moved to continue trial generally. On
August 2, 2016, this Court denied Appellant's Motion to Continue Trial Generally.
Appellant then filed his Notice of Appeal and Concise Statement on September 1, 2016
and September 22, 2016 respectively13.
In his Concise Statement, Appellant alleges that this Court erred by denying his
Motion to Continue Trial Generally pending the Supreme Court of Pennsylvania's
decision in Commonwealth v. Ricker, 120 A.3d 349 (Pa. Super. 2015). Appellant also
11 18 Pa. C.S. § 6318(c) 12 42 Pa. C.S. § 5985.1 13 It is noted that Appellant has failed to appeal this Court's April 29, 2016 Order or its July 15, 2016 Order, denying Appellant's Omnibus Pre-trial Motions in which Appellant sought remand for a preliminary hearing and attempted to prevent the Commonwealth from admitting M.L's hearsay statements under the Tender Years Hearsay Exception. This Court further notes that as its July 15, 2016 Order states, M. L. was under the age of twelve, made statements describing an offense enumerated in 18 Pa. C.S. Chapter 31, and her statements provided sufficient indicia of reliability. Under the Tender Years Hearsay Exception, M.L. 's statements will be admissible at trial.
2 argues that his constitutional right to confront and cross-examine his accuser at his
preliminary hearing was violated. l;..>-6-......... ..�_._,....._,_,-�-�.,,...�-·- .-·-�� · .. --�·-�-.�� ..... ,.y� ...........·�.,-•• _.,,,,,µ.,...-:.r-· ·.-llwa��- ...........,.;� . . .• . .. -
Appellant first alleges that this Court erred by denying his Motion to Continue
Trial Generally until the Supreme Court of Pennsylvania renders an opinion in
Commonwealth v. Ricker. "The Superior Court shall have exclusive appellate jurisdiction of all appeals from final orders of the courts of common pleas." 42 Pa.
C.S.A. § 742. A final order is an order which "disposes of all claims and of all parties; ...
or is entered as a final order pursuant to paragraph (c) of this rule."14 A final order puts
"litigants out of court by either ending the litigation or entirely disposing of the case."
Commonwealth v. Jackson, 849 A.2d 1254, 1256 (Pa. Super. 2004) (quoting
Commonwealth v. Rosario, 615 A.2d 740, 743 (Pa. Super. 1992)). An order that does
not end the litigation or dispose of a case is an interlocutory order. Rosario, 615 A.2d at
743 (quashing an appeal of an order that was not final and therefore an interlocutory
order). "Ordinarily all pre-trial orders are considered interlocutory and not appealable."
Commonwealth v. Bennett, 345 A.2d 754, 755 (Pa. Super. 1975) (citing
Commonwealth v. Rucco, 324 A.2d 388, 389 (Pa. Super. 1974)). Interlocutory orders
may be appealed15 as of right16 or by permission 17. An appellant may appeal an
interlocutory order by permission by seeking certification from the lower court within
thirty days of the lower court's issuance of the order in question.18 An appellant may
14 See PA. R. A. P. 341 15 42,Pa. C.S.A. § 5105(c) 1 '' PA. R. A. P. 31 i 17 PA.R.A.P. l311 andPA.R.A.P.312 18 Pa. R. A. P. 1311
3 request that the lower court add the language pursuant to42 Pa. C.S.A. § 702 (b)19 to
the order being challenged.20
[The Pennsylvania Superior Court's] appellate jurisdiction extends to Non-final orders only where: (a) an appeal from an interlocutory order is authorized by law; (b) a lower court has certified the issue involved in the interlocutory order as 'a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination.of the matter; or (c) the appellee has waived an objection to the jurisdiction of the court.
Rucco, 324 A.2d at 389 (internal quotation marks and citations omitted).
Generally in criminal cases, "a defendant can appeal only from a final judgment
of sentence, and an appeal from any prior Order or judgment will be quashed."
Commonwealth v. Swanson, 225 A.2d 231, 232 (Pa. 1967).
Unless 'exceptional circumstances' are involved, defendants are prohibited from appealing interlocutory orders in criminal cases. Such exceptional circumstances arise (1) where an appeal is necessary to prevent a great injustice to the defendant, or (2) where an issue of basic human rights is involved, or (3) where an issue of great public importance is involved.
Id. at 232. See also Ricker, 120 A.3d at 353.
This Court's Order denying Appellant's Motion to Continue Trial Generally is not
a final order. The Order did not end the litigation or dispose of the case. Therefore,
Appellant has filed an appeal from an interlocutory order. Because a Motion to Continue
Trial Generally is not enumerated as an interlocutory order that is appealable as of
19 "When a court or other government unit, in making an interlocutory order in a matter in which its final order would be within the jurisdiction of an appellate court, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the matter, it shall so state in such order. The appellate court may thereupon, in its discretion, permit an appeal to be taken from such interlocutory order." 42 Pa. C.S.A. § 702 (b). Pa. R. A. P. 1311 -20
4 right21, Appellant is required to file a petition for permission to appeal to the
Pennsylvania Superior Court.22 To date, Appellant has failed to seek certification and
have this Court's Order amended to include the language specified in 42 Pa. C.S.A. §
702. Appellant failed to follow appellate procedure under Pa. R. A. P. 1311 and 42 Pa.
C.S.A. § 702, and the thirty day window to do so has expired.23
The Pennsylvania Superior Court has quashed such appeals in the past. See
Commonwealth v. Fleming, 794 A.2d 385, (Pa. Super. 2002) (quashing an appeal in
which appellant failed to file a petition for permission to file an interlocutory appeal));
Commonwealth v. Wills, 476 A.2d 1362 (Pa. Super. 1984) (quashing an appeal
because appellants failed to petition for permission to appeal, as required by Pa. R. A.
P. 1311)); Rucco, 324 A.2d at 390 (quashing an appeal of an interlocutory order
denying relief of an alleged violation of the '180 day rule').
Appellant's appeal cannot be legitimized by exceptional circumstances either. A
motion to continue trial generally does not fit into any of the categories that would
warrant invoking the exceptional circumstances doctrine. Appellant has not raised an
issue in his appeal claiming that he has suffered a great injustice, a basic human right is
involved, or an issue of great public importance is involved. Therefore, the exceptional
circumstances doctrine does not apply to Appellant's appeal.
Appellant's appeal of the interlocutory order is not as of right, he has failed to
comply with Pa. R. A. P. 1311 and 42 Pa. C.S.A. § 702, and a motion to continue trial
generally does not warrant the application of the exceptional circumstances doctrine.
21 See PA. R. A. P. 311 22 See PA. R. A. P. 1311 and PA. R. A. P. 312 2 ' This Court filed the Order.in question on August 2, 2016. Appellant would have had to file for certification on or before September I, 2016,
5 Therefore, Appellant's appeal should be quashed. Even if Appellant properly perfected
his appeal, his claims are meritless.
Appellant next alleges that his constitutional right to confront his accuser at his
preliminary hearing was violated. Both the United States Constitution and the
Pennsylvania Constitution provide that a defendant has the right to confront the
witnesses against him in criminal prosecutions.24 U.S. CONST. amend. VI; PA. CONST.
art. 1, § 9. The right of confrontation triggers when the prosecution seeks to admit
testimonial evidence against the accused, and the right operates to bar admission of the
testimonial statements of witnesses who were not called at trial unless the witness was unavailable at trial and the defendant had a prior opportunity to cross-examine the
· witness. Crawford v. Washington, 541 U.S. 36, 54 (2004). The United States
Supreme Court has held that "the right of confrontation is a trial right." Pennsylvania v. Ritchie, 480 U.S. 39, 53 (1987). See also Commonwealth v. Herrick, 660 A.2d 51, 60
(Pa. Super. 1995).
Pennsylvania Rule of Criminal Procedure 542(E) promulgated by the
Pennsylvania Supreme Court, provides that hearsay evidence alone is sufficient to
establish a prima facie case at a preliminary hearing.25 As the Rule is promulgated by
the Supreme Court, it is deemed to be constitutional. Further, in Commonwealth v.
Ricker, 120 A.3d 349, the Pennsylvania Superior Court has established appellate
authority in this regard.
24 The Sixth Amendment applies to the States via the Fourteenth Amendment. Melendez-Diaz v. Massachusetts, 557 U.S. 305, 309 (2009) (citing Pointer v. Texas, 380 U.S. 400, 403 (1965)). A criminal defendant's rights under the Confrontation Clause of the Pennsylvania Constitution are coextensive with those guaranteed by the Sixth Amendment of the United States Constitution. Commonwealth v. Geiger, 944 A.2d 85, 97 n.6 (Pa. Super. 2008). 25 PA. R. CRIM. P. 542(E)
6 Here, Appellant argues that his constitutional right to confront his accuser was
violated and that right will be lost forever if he is forced to go to trial before the ,., ...... -s ...... _..;:·.-,.· ............·�-- · ��w,_···_. · · ·- · __.."'""""'� ..... --�·«... .:.;....,v-x�... ··-·�.._· • .i..,..o.;,.�·-..,. .,•..... -........ -� ......... ....,_.·· .. �.._ .• ·s�·-·-----�-�··._._4� ...,... ; .... , ....._,�-- ....._..�-"·'1......... _,.,._.:.:....·.....,,.._ ...,.•. _..�......._.._..... ,.-........._�-·....; ...:,....•.. , .•... ,.• , ..
Pennsylvania Supreme Court makes its decision in Ricker. Although the Supreme
Court has gr�nted allocator in that case, at the time of the preliminary hearing, at the
time of the omnibus pretrial hearing, and currently, the Superior Court's published
Opinion in Ricker was good and binding law. This Court did not err in relying on Ricker
and its precedents. Currently, the right to confront witnesses is a trial right; the Pennsylvania Supreme Court has not extended that right.
Accordingly, the hearsay evidence presented at the original preliminary hearing
did not violate Appellant's right to confront the witnesses against him as the law stood at
that point in time and as it stands now. Defendant is not entitled to an additional preliminary hearing as this Court will not ailow for fishing expeditions in our Magisterial
District courts.
Therefore, for all the reasons stated herein, it is respectfully requested that this
Court's August 2, 2016 Order denying Appellant's Motion to Continue Trial Generally be
affirmed.
�b BY THE COURT:
DATE: October 6, 2016 THOMAS R. CAMPBELL COPIES Judge
1-0riginal lDhh� . 1-Court Administrator '-..,. � - � 1-Megan C. Zei, Esquire . 1·.si� t-Gerald A. Lord, Esquire/�· ·. ·· 1-Samuel A. Gates, Esquire .-., �"'(��)�{?A \'12>?>\ 1-Adams County Legal Journal ·�Q)'\\� 1-District & County Reports --- -� H : ... r-. t-rnedia copy - � Circulated 10/22/2018 11:32 AM
IN THE COURT OF COMMON PLEAS OF ADAMS COUNTY, PENNSYLVANIA CRIMINAL
- �····[ Eter �� c:::c:, ... j
COMMONWEALTH OF PENNSYLVANIA CP-01-CR-1246-201:& > �--.,-i, :.j -<: :.,'._:- j vs. N I - ·, : r· TODD RICHARD OYLER c; -.. OPINION PURSUANT TO Pa. R.A.P.1925(a)
Appellant, Todd Richard Oyler (hereinafter referred to as "Appellant"), appeals
the trial verdict of August 2, 2017, this Court's judgment of sentence of October 17,
2017 and this Court's Order of Court dated February 5, 2018 denying Appellant's
Post-Sentence Motion for Reconsideration. For the reasons set forth herein, it is
respectfully requested this Court's judgment of sentence and Order denying
Appellant's post-sentence motion be affirmed.
Testimony developed at the two-day jury trial held August 1, 2017 and August
2, 2017 revealed that the following relevant events occurred. M.L. (hereinafter
"Victim") was born November 2003 and was \3 l years old on the dates of
trial. The Victim testified that her Dad had majority custody and she would go to her
Mom and Appellant's house every weekend. The Victim testified that her Mom and
Appellant initially lived in an apartment in Hanover (York County) and then moved to
a house in New Oxford (Adams County). The Victim identified the Appellant at trial as
Todd Oyler, her stepfather.
The Victim testified that Appellant sexually abused her over a number of years.
The Victim testified that the abuse started when she was four years old and
continued until she was six or seven. The Victim testified that the sexuai abuse
0 started at her Mom and Appellant's apartment in Hanover and continued when her
Mom and Appellant moved to the house in New Oxford. The Victim testified that the
sexual abuse happened every weekend when she visited her Morn and Appellant and
would occur in her bedroom at night while everyone was asleep.
The Victim testified that Appellant called his penis "dragon". The Victim
testified Appellant made the Victim lick his "dragon", Appellant would lick the Victim's
vaginal area and Appellant would make the Victim sit on top of him while he was
laying down and make the Victim rub her vaginal area across Appellant's "dragon".
The Victim testified the Appellant would put his "dragon" inside of her mouth and
Appellant's tongue would lick the crack of the Victim's vaginal area. Appellant also
touched the breasts and vaginal area of the Victim with his hands. The Vtctirn testified
Appellant put his fingers in the hole of the Victim's vaginal area and told the Victim "it
had to stretch", referring to the Victim's vagina.
The Victim testified she did not remember the sexual acts occurring when she
was eight or nine. The Victim also testified these sexual acts stopped after Appellant
was diagnosed with cancer, which occurred when the Victim was in fourth grade. The
Victim testified that the touching resumed when the Victim was in fifth grade, which
coincided with Appellant recovering from cancer. The Victim testified the last abuse
happened in October of fifth grade and April of fifth grade and Appellant touched her
breasts, butt and legs.
The Victim testified that her friend L.D. was the first person the Victim told
concerning the Appellant sexuaily abusing her. This occurred while the Victim and
LD. were in fifth grade. L.D. testified that the Victim told her in April of fifth grade that
2 her stepfather had sex with her and touched her private areas. L.D. told her parents
about the abuse that night. Erin Driesbach testified that in April 2015 she worked for
Adams County Children and Youth Services. Ms. Driesbach had received a referral
concerning sexual abuse of the Victim and interviewed the Victim at her school in
New Oxford on April 10, 2015.
Other trial testimony revealed that Appellant was forty-nine years old on
August 1, 2017. Appellant started dating Christy Oyler, the mother of the Victim, in
2005 and moved in with the Victim's mother tn __ -, Hanover, York
County, Pennsylvania in October 2005. Appellant married the Victim's mother in
February 2007. Appellant and Christy Oyler moved to · , New Oxford,
Adams County, Pennsylvania on November 1, 2010. The Victim turned seven �n · November: ·�\e;. Appellant was diagnosed with cancer June 2013.
The jury convicted Appellant of two counts of involuntary deviate sexual
intercourse, unlawful contact with a minor, aggravated indecent assault, indecent
assault of a child under the age of thirteen and corruption of minors. This Court
ordered a pre-sentence investigation and, based on the charges, an assessment by
the Sexual Offenders Assessment Board. On October 17, 2017 this Court sentenced
Appeliant to an aggregate sentence of sixteen years to forty years in a state
correctional institution. Appellant's appellate counsel (Assistant Public Defender Sean
A. Mott) filed a Post-Sentence Motion for Reconsideration on November 27, 2017.
On February 5, 2018 this Court denied Appellant's Post-Sentence Motion for
Reconsideration. Appellant filed his Notice of Appeal with the Superior Court on
March 5, 2018. On March 5, 2018 Appeliant was ordered to file a Concise Statement
3 of Matters Complained of on Appeal. Appellant filed Concise Statement of Matters
Complained of on Appeal on March 26, 2018.
Appellants Concise Statement of Matters Complained of on Appeal consisted
of the following issues:
1. The Defendant was deprived of his right to confrontation under the state
and federal Constitutions at his preliminary hearing when the
Commonwealth only presented testimonial hearsay evidence at the
preliminary through a police officer who was not a witness to the alleged
events.
2. The Defendant was denied his due process guarantees when he
requested a bill of particulars pursuant to Pa.R.Crim.P. 572 from the
Commonwealth and subsequent motion to the Court, but never
received it, and acts in York County were alleged for the first time at
trial, for which Defendant was unprepared and which likely affected the
jury's verdict.
3. The Court abused its discretion when it removed a juror, Susan Lang,
on the second day of trial without examining the juror's ability to be fair
and impartial.
4. The evidence presented at trial was insufficient as a matter of law to
convict Defendant at trial.
5. The verdict rendered at trial is contrary to the weight of the evidence.
4 LEGAL STANDARD
The standard of review on a sufficiency of the evidence claim is "whether the
evidence at trial, and all reasonable inferences derived therefrom, when viewed in the
light most favorable to the Commonwealth as verdict [·] winner, are sufficient to
establish all elements of the offense beyond a reasonable doubt." Commonwealth v.
Jones, 904 A.2d 24, 26 (Pa. Super. 2006) (citation omitted) (internal quotations
omitted). "'[T]he facts and circumstances established by the Commonwealth need not
preclude every possibility of innocence."' Commonwealth v. Hartzell, 988 A.2d 141,
143 (Pa. Super. 2009) (quoting Commonwealth v. McClendon, 874 A.2d 1223,
1228-1229 (Pa. Super. 2005)). "Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak and inconclusive that as a
matter of law no probability of fact may be drawn from the combined circumstances ..
. . " Id.
"The Commonwealth may sustain its burden of proving every element of the
crime beyond a reasonable doubt by means of wholly circumstantial evidence."'
Commonwealth v. Bowen, 55 A.3d 1254, 1260 (Pa. Super. 2012) (quoting
Commonwealth v. Muniz, 5 A.3d 345, 348 (Pa. Super. 2010)). '"Finally, the trier of
fact while passing upon the credibility of witnesses and the weight of the evidence
produced, is free to believe all, part or none of the evidence."' Id. "In applying the
above test, we may not weigh the evidence and substitute our judgment for the fact-
finder." Hartzell, 988 A.2d at 143 (internal quotations omitted).
'"A verdict is against the weight of the evidence only when the jury's verdict is
so contrary to the evidence as to shock one's sense of justice.'" Commonwealth v.
5 Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (quoting Commonwealth v. VanDivner,
962 A.2d 1170, 1177 (Pa. 2009)). "[A] determination [of whether a jury's verdict is
against the weight of the evidence] is generally committed to the discretion of the trial
court." Commonwealth v. Bellini, 482 A.2d 997, 999 (Pa. Super. 1984). "A new trial
should not be granted because of a mere conflict in testimony or because a judge on
the same facts would have arrived at a different conclusion." Rivera, 983 A.2d at
1225 (internal quotations omitted). The critical question is whether or not "certain
facts are so clearly of greater weight that to ignore them, or to give them equal weight
with all the facts, is to deny justice." Id.
DISCUSSION
I. Sufficiency of the Evidence and Weight of the Evidence
a. Involuntary Deviate Sexual Intercourse with a Child
"A person commits involuntary deviate sexual intercourse with a child, a felony
of the first degree, when the person engages in deviate sexual intercourse with a
complainant who is less than thirteen years of age." 18 Pa. C.S. § 3123(b). Deviate
sexual intercourse is defined as "[s]exual intercourse per os or per anus between
human beings .... The term also includes penetration, however slight, of the genitals
or anus of another person with a foreign object for any purpose other than good faith
medical, hygenic or law enforcement procedures." 18 Pa. C.S. § 3101.
The criminal information alleges that the incidents at issue occurred between
November 1, 2007 and April 8, 2015. The Victim testified her birthday is November
2003. The Victim testified that the conduct establishing the crime of involuntary
deviate sexual intercourse occurred when she was between the ages of four and
6 seven. The Victim testified this conduct started when she was four at her Mother and
Appellant's apartment in Hanover. The Victim testified that this conduct continued
until she was six or seven. The Victim also testified that this conduct continued after
the Victim's Mother and Appellant moved to the house in New Oxford, located within
Adams County.
The Commonwealth also set forth evidence from which the jury could
determine deviate sexual intercourse between the Victim and Appellant occurred. For
example, the Victim testified that Appellant would have the Victim lick his "dragon"
and would put his penis in the Victim's mouth and Appellant would lick Victim's
vaginal area. She also testified there was penetration as Appellant's penis was inside
her mouth and Appellant's tongue was inside her vagina.
Importantly, '"the uncorroborated testimony of the complaining witness is
sufficient to convict a defendant of sexual offenses."' Commonwealth v. Lyons, 833
A.2d 245, 258 (Pa. Super. 2003) (quoting Commonwealth v. Bishop, 742 A.2d 178,
186 (Pa. Super. 1999)).
A review of the evidence, in the light most favorable to the Commonwealth as
the verdict winner, shows Appellant's sufficiency of the evidence claim for the
involuntary deviate sexual intercourse charge is meritless.
Furthermore, Appellant's claim that the trial verdict is contrary to the weight of
the evidence has no merit. Based on all the evidence presented, the verdict does not
shock one's sense of justice.
7 b. Unlawful Contact with a Minor
A person commits unlawful contact with a minor "if he is intentionally in contact
with a minor ... for the purpose of engaging in an activity prohibited under any of the
following, and either the person initiating the contact or the person being contacted is
within this Commonwealth: (1) Any of the offenses enumerated in Chapter 31
(relating to sexual offenses)." 18 Pa. C.S. § 6318(a) (1). In regards to the grading of
the crime, the statute states "[a] violation of subsection (a) is: (1) an offense of the
same grade and degree as the most serious underlying offense in subsection (a) for
which the defendant contacted the minor; or (2) a felony of the third degree;
whichever is greater." 18 Pa. C.S. § 6318(b) (1)-(2).
The Commonwealth presented testimony which established Appellant
continuously entered the Victim's bedroom at night while the Victim was sleeping and
intentionally contacted the Victim so he could engage in sexual acts with her. The
Commonwealth established that between November 2007 and April 2015, Appellant
had direct contact with the Victim for the sole purpose of engaging in sexual acts with
her. The Victim testified that almost every weekend Appellant would come to her
bedroom, come in, wake her up, and put his "dragon" (penis) in her mouth and lick
and penetrate her vagina with his tongue, while Victim was lying down. The Victim
also testified that Appellant would make the Victim sit on top of him while he was
lying down and make the Victim rub her vaginal area across Appellant's "dragon" .
. Appellant also touched the breasts and vaginal area of the Victim with his hands. The
Victim testified Appellant put his fingers in the hole of the Victim's vaginal area and
told the Victim "it had to stretch", referring to the Victim's vagina.
8 The Commonwealth also presented the Victim's testimony that these sexual
incidents occurred -· _'tin. New Oxford, Adams County, Pennsylvania.
Appellant and the Victim's Mother started living there on November 1, 2010 while the
Victim was six. The Victim visited the house in New Oxford every weekend, starting
when the Victim was six. Thus, both the person "initiating the contact [and] the person
being contacted" were located within the state of Pennsylvania, and within Adams
County.
A review of the evidence, in the light most favorable to the Commonwealth as
verdict winner, establishes Appellant's claim is meritless. The Commonwealth
presented sufficient evidence from which the jury could infer Appellant intentionally
contacted the Victim, a minor, for the purpose of engaging in sexual activities in
violation of 18 Pa. C.S. § 3123(b), 18 Pa. C.S. § 3125(a)(7), and 18 Pa. C.S. §
3126(a)(3).
Furthermore, Appellant's claim that the verdict rendered at trial is contrary to
the weight of the evidence has no merit. Based on all the evidence presented, the
verdict does not shock one's sense of justice.
c. Aggravated Indecent Assault
A person commits aggravated indecent assault, a felony of the second degree,
when "a person who engages in penetration however slight, of the genitals or anus of
a complainant with a part of the person's body for any purpose other than good faith
medical, hygienic or law enforcement procedures commits aggravated indecent
assault if the complainant is less than thirteen years of age." 18 Pa. C.S. §
3125(a)(7).
9 The criminal information alleges that the incidents at issue occurred between
November 1, 2007 and April 8, 2015. The Victim testified her birthday is November
. 2003. The Victim testified that the conduct establishing the crime of aggravated
indecent assault occurred when she was between the ages of four and seven. The
Victim testified this conduct started when she was four at her Mother and Appellant's
apartment in Hanover. The Victim testified that this conduct continued until she was
six or seven. The Victim also testified that this conduct continued after the Victim's
Mother and Appellant moved to the house in New Oxford, located within Adams
The Commonwealth also set forth evidence from which the jury could
determine Appellant engaged in penetration of the vagina of the Victim for any
purpose other than good faith medical, hygienic or law enforcement procedures. For
example, the Victim testified that Appellant touched her vaginal area with his hands,
put his fingers in the hole of the Victim's vagina and told the Victim "it had to stretch",
referring to the Victim's vagina.
A review of the evidence, in the light most favorable to the Commonwealth as
the verdict winner, shows Appellant's sufficiency of the evidence claim for the
aggravated indecent assault charge is meritless.
Furthermore, Appellant's claim that the verdict rendered at trial is contrary to
the weight of the evidence has no merit. Based on all the evidence presented, the
10 d. Indecent Assault
"A person is guilty of indecent assault if the person has indecent contact with
the complainant, causes the complainant to have indecent contact with the
person ... for the purpose of arousing sexual desire in the person or the complainant
and the complainant is less than thirteen years of age." 18 Pa. C.S. § 3126(a)(7). In
regards to the grading of the crime, the statute states if any of the following apply, it is
a felony of the third degree: "(ii) there has been a course of conduct of indecent
assault by the person; or (iii) the indecent assault was committed by touching the
complainant's sexual or intimate parts with sexual or intimate parts of the person; or
(iv) the indecent assault is committed by touching the person's sexual or intimate
parts with the complainant's sexual or intimate parts." 18 Pa. C.S. § 3126(b)(3)(ii),
(iii), (Iv).
The criminal information alleges that the incidents at issue occurred between
November 1, 2007 and April 8, 2015. The Victim testified her birthday is November
2003. The Victim testified that the conduct establishing the crime of indecent
assault started when the Victim was four and continued unti! Appellant was
diagnosed with cancer. The Victim testified that this conduct continued after the
Victim's Mother and Appellant moved to the house in New Oxford, located within
Adams County. Appellant's cancer diagnosis occurred when the Victim was going
into fourth grade. The Victim testified the indecent assault started again when the
Victim was in fifth grade. The Victim testified the last incidents of indecent assault
occurred in October and April of fifth grade and Appellant touched her breasts, butt
and legs.
11 A review of the evidence, in the light most favorable to the Commonwealth as
the verdict winner, shows Appellant's sufficiency of the evidence claim for the
indecent assault charge is meritless.
Furthermore, Appellant's claim that the trial verdict is contrary to the weight of
the evidence has no merit. Based on all the evidence presented, the verdict does not
II. Preliminary Hearing, Defendant's Right to Confrontation
Appellant alleges that he was deprived of his right to confrontation under the
State and Federal Constitutions at his preliminary hearing when the Commonwealth
only presented testimonial hearsay evidence through a police officer who was not a
witness to the alleged events.
Adams County Court of Common Pleas Judge Thomas R. Campbell
previously dealt with this issue in an Order of Court dated April 29, 2016 and in Judge
Campbell's Opinion Pursuant to Pa. RP.A. 1925(a), entered October 6, 2016. Judge
Campbell's Order of Court dated April 29, 2016 is attached as Exhibit A to this
Opinion and Judge Campbell's Opinion Pursuant to Pa. RP.A. 1925(a), filed October
6, 2016, is attached to the Opinion as Exhibit B.
Furthermore, since Judge Campbell's Order of Court and 1925(a) Opinion, the
Pennsylvania Supreme Court in Commonwealth v. Ricker, 170 A.3d 494 (Pa. 2017)
dismissed the appeal as having been improvidently granted.
Furthermore, once a Defendant has gone to trial and been found guilty of a
crime, any defect in the preliminary hearing is rendered immaterial. Commonwealth
12 v, Tyler, 587 A.2d 326 (Pa. Super. 1991); Commonwealth v. Worrall, 609 A.2d 851
(Pa. Super. 1992).
Appellant's argument that he was deprived of his right to confrontation at the
preliminary hearing is meritless.
Ill. Bill of Particulars Argument
Appellant contends he was denied due process guarantees when he
requested a bill of particulars from the Commonwealth pursuant to Pa. R.Crim.P. 572
and subsequent motion to the Court, but never received an answer to his request for
bill of particulars.
A review of the docket in the above-captioned matter reveals that Appellant
filed a Request for Bill of Particulars on March 9, 2016. The Commonwealth filed an
Answer to Defendant's Request for Bill of Particulars on March 15, 2016. Appellant
filed no additional request for bill of particulars, nor a motion with the Court for relief
concerning Defendant's Request for Bill of Particulars.
Appellant's argument concerning a requested bill of particulars in violation of
Pa. R. Crim. P. 572 is meritless.
IV. Removal of Juror
Appellant contends this Court abused its discretion when it removed a juror,
Juror #62, on the second day of trial without examining the juror's ability to be fair and
impartial.
Jury selection in the above-captioned case occurred on July 30, 20 \1 before this Court: During jury selection this Court was provided with a list of witnesses or
potential witnesses who may testify at tria! by both the Commonwealth and Appellant.
13 Included was the name Susan Lang, the stepmother of the Victim, who is married to
the Victim's father. During the voir dire process none of the proposed jurors advised
that they knew Susan Lang, including Juror #62.
Juror #62 was selected as a juror in this case. At the close of court on August
1, 2017, the Commonwealth advised the Court and defense counsel that Susan Lang
recognized Juror #62, that they previously worked together at Adams County
National Bank, that Susan Lang was in a supervisory role to Juror #62 and on at least
one occasion reprimanded Juror #62 for a violation of employment procedure.
The following colloquy occurred on the morning of August 2, 2017 before trial
started:
THE COURT: Good morning, Miss Carey.
JUROR: Good morning.
THE COURT: You're not in trouble so don't worry.
JUROR: Okay.
THE COURT: An issue was raised. It's my understanding in reviewing your questionnaire that you worked at Adams County National Bank for a long time.
JUROR: Yes, I did.
THE COURT: You worked as a teller in the Cashtown branch?
JUROR: Um-hum.
THE COURT: Are you familiar with a Susan Lang?
JUROR: Yes I am and when you read that name the other day it went right over my head. I haven't had any contact with her for about seven years. I've been retired for five and she changed her position two years before that.
14 THE COURT: When you were a teller at Adams County National Bank was she basically the branch manager there'?
JUROR: Yes, she was.
THE COURT: So she would have been your-
JUROR: She was my bosses boss.
THE COURT: I don't want to ask any questions about how you did your job but in the course of her employment as the branch manager at any time did she provide or write you up for anything that you would have done incorrectly in your job?
JUROR: Yes, one time.
THE COURT: Okay, thank you. Based on that in an abundance of caution, I'm sure you could be a fair and impartial juror and I'm sure you would not let that impact you, but in an abundance of caution I am going to dismiss you right now.
JUROR: That's fine because I thought about this yesterday and I wasn't sure who to even tell because I saw her in here yesterday and that's when it just clicked. I know her.
THE COURT: Okay.
JUROR: That's not a problem.
THE COURT: Given the relationship you understand.
JUROR: Yes. That's fine. Not a problem at all.
"The discharge of a juror is within the sound discretion of the court and that
determination will not be reversed absent a palpable abuse of that discretion. We
have recognized that this discretion exists even after the jury has been impaneled
and the jurors sworn." Commonwealth v. Black, 376 A.2d 627, 632 (Pa. 1977).
(citations omitted) (internal citations omitted). The court in Black also stated:
In the instant case, the trial judge dismissed the juror as a precautionary measure to insure an impartial trial, free of outside influences, and to avoid the , appearance of impropriety. While we recognize the
15 relationship of the juror to the witness does not, as a matter of law disqualify that juror, see e. g., Commonwealth ex rel. Fletcher v. Cavell, 395 Pa. 134, 149 A.2d 434 (1959), we do not believe that a judge who, out of an abundance of caution excludes such a juror, abuses his discretion by doing so. "A fair trial in a fair tribunal is a basic requirement of due process." In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955). See also, Withrow v. Larkin, 421 U.S. 35, 95 S.Ct. 1456, 45 L.Ed.2d 712 (1975); Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). This obligation is applicable whether we are considering the rights of the defendant or the interest of the state. While we recognize that these considerations are to some degree dependent upon speculation, the recognition of the possibility of prejudice or bias resulting from such a close relationship is certainly justified and the action of the court in removing this juror to assure fairness is obviously reasonable. Cf. Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965); Commonwealth v. Stewart, 449 Pa. 50, 295 A.2d 303 (1972).
Id at 632.
It is noted that Juror #62 did not disclose her knowledge of a potential
Commonwealth witness, the stepmother of the Victim in this case, during voir dire.
Furthermore, following questioning by the Court, Juror #62 disclosed that she saw
Susan Lang in the courtroom, acknowledged to the Court she knew her, but did not
advise the Court or court personnel of their prior relationship until questioned by the
Court. The juror did acknowledge that Susan Lang, the stepmother of the Victim, had
previously reprimanded her for an employment issue.
Just as in Black, this Court "dismissed the juror as a precautionary measure to
ensure an impartial trial, free of outside influences, and to avoid the appearance of
impropriety." Id at 632. Furthermore, the standard concerning whether a juror should
be removed, even after the jury has been impaneled and the jurors sworn, is not
whether the juror could be fair and impartial. See Commonwealth v. Hetzel, 822
16 A.2d 747, 755 (Pa. Super. 2003). The Court's decision to remove Juror #62 was
based upon a sufficient record of competent evidence to sustain removal.
Therefore, since Appellant has not shown that there was a palpable abuse of
the Court's discretion in removal of Juror #62 and based on this Court's reasoning on
Appellant's other issues, it is respectfully requested that this Court's Judgment of
Sentence and Order denying Appellant's Post-Sentence Motion be affirmed.
BY THE COURT:
Date: May 2, 2018 SHAWN C. WAGNER Judge
nll
Kelley L. Margetas, Esquire Sean A. Mott, Esquire -
Distributio..n
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