J-S34021-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : MICHAEL CRAIG PHILLIPS : : Appellant : No. 1246 WDA 2022
Appeal from the Judgment of Sentence Entered November 5, 2021 In the Court of Common Pleas of Beaver County Criminal Division at No: CP-04-CR-0001529-2020
BEFORE: LAZARUS, J., STABILE, J., and MURRAY, J.
MEMORANDUM BY STABILE, J.: FILED: February 18, 2025
Michael Craig Phillips (Appellant) was found guilty, following a jury trial,
of 12 sexual offenses against the minor child, D.M. Three of the counts
stemmed from D.M.’s allegation that Appellant showed her a video depicting
“gay pornography.”1 To corroborate that claim, the Commonwealth was
permitted to introduce into evidence a photograph of Appellant performing
____________________________________________
1 Appellant was convicted of Count 1 - Involuntary Deviate Sexual Intercourse,
18 Pa.C.S.A. § 3123(b); Count 2 - Unlawful Contact with a Minor, 18 Pa.C.S.A. § 6318(a)(1); Counts 3 and 4 - Aggravated Indecent Assault, 18 Pa.C.S.A. § 3125(a)(7); Count 5 - Indecent Assault, 18 Pa.C.S.A. § 3126(a)(7); Count 6 - Endangering Welfare of Children, 18 Pa.C.S.A. § 4304(a); Count 7 - Corruption of Minors, 18 Pa.C.S.A. § 6301(a)(1)(ii); Count 8 – Criminal Use of Communication Facility, 18 Pa.C.S.A. § 7512(a); Count 9 – Indecent Assault, 18 Pa.C.S.A. § 3126(a)(7); Count 10 – Disseminating Explicit Sexual Material to a Minor, 18 Pa.C.S.A. § 5903(c)(1); Count 11 – Indecent Assault, 18 Pa.C.S.A. § 3126(a)(8); and Count 12 – Indecent Assault Without Consent, 18 Pa.C.S.A. § 3126(a)(1). Appellant was charged with Counts 7, 8, and 10 based on his display of the pornographic video to D.M. J-S34021-23
fellatio on another man. The photo was never shown to the minor, and it was
admitted solely to corroborate that other explicit media depicting homosexual
acts was shown to the child, and to demonstrate the sexual relationship
between Appellant, Appellant’s wife (Sydni Phillips), and the other man in the
photo, Z.T. Appellant now contends in this appeal that the entire verdict was
compromised because the photo was both irrelevant and highly prejudicial.
Finding merit in Appellant’s claims, we vacate the judgment of sentence so
that he may receive a new trial.2
Appellant met Sydni Phillips in 2015, and they married in 2017. The
minor victim in this case, D.M., is Phillips’ daughter from a prior marriage. At
all relevant times, D.M. resided with Phillips and Appellant on weekends and
with her biological father on weekdays.
During their marriage, Appellant encouraged Phillips to seek out other
sexual partners. See N.T. Trial, 7/8/2021, at 106-07. He even drafted a “sex
contract” to formalize the “rules and expectations” of such extramarital
encounters. Id., at 47-48. The terms of this contract explicitly specified that
Appellant “approved enthusiastically” of the arrangement. Id.
2 This case returns to us on remand from the Pennsylvania Supreme Court,
pursuant to its per curiam order entered on September 25, 2024. In that order, our Supreme Court vacated this Court’s earlier memorandum decision entered on February 13, 2024, and directed us to specifically consider the prejudice caused to Appellant by the admission of the Commonwealth’s photographic exhibit. We previously found waiver on this issue. Both parties were permitted to file supplemental briefing on that sole issue.
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In fact, Appellant more than insinuated his own sexual interest in other
men. A condition in the contract was the non-use of a condom during
intercourse with Phillips so that Appellant would have “a little memento of
your time together.” Id., at 49. Appellant also demanded that Phillips’
partners send him “pictures, videos, or whatever else” they could provide. Id.
Appellant’s penchant for recording and viewing sexual acts was the
unintended catalyst of the present case. In December 2019, D.M.’s step-
sister, E.P., admitted to her mother that D.M. had shown her videos on Phillips’
phone of Appellant and Phillips having sex.3 E.P., who was six years old at
the time, had gotten uncomfortable playing a “sexy game” with a friend, and
she had learned that behavior from the explicit material D.M. had shown her.
E.P. stated further that D.M., who was then nine years old, “had licked her
vagina while they were in their bed.” N.T. Trial, 7/7/2021, at 77, 81. When
questioned further by her mother, E.P. relayed being told by D.M. that
Appellant “touches her vagina.” Id., at 84.
The children’s statements were reported to the police. Soon after that,
the Beaver County Children and Youth Services agency (CYS) arranged for a
forensic interviewer to speak with D.M. and E.P. In her interview with a CYS
caseworker, D.M. stated that Appellant would sometimes “lick” her vagina,
3 E.P. is a daughter from Appellant’s prior marriage who resided at all relevant
times with her mother. Appellant and Phillips also had two children together, neither of whom were involved in the present case.
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and she recounted one occasion, when she was about five years old, in which
Phillips caught Appellant in the act of touching her genitals. See N.T. Trial,
7/9/2021, at 20-24.
She recalled that on another occasion in 2017, when D.M. was about
seven years old, Appellant reportedly showed her “gay pornography” on his
cell phone. See id., at 25. Finally, D.M. described a third incident, when she
was about nine years old, in which Appellant touched her vagina while the two
were in a bed. Id., at 28. The police contacted Appellant and Phillips after
the interview, and both denied that the incidents described by D.M. had ever
occurred.
In February 2020, while D.M.’s claims were still being investigated by
the police, Appellant and Phillips met a man named Z.T., who moved into their
home in March of that year. The three of them began a relationship in
accordance with the above-mentioned “sex contract” which Appellant had
drafted. In July 2020, Phillips and Z.T. moved out of Appellant’s home. During
that period, Z.T. pressed Phillips to contact the police and substantiate D.M.’s
allegations that Appellant had sexually abused her.
That same month, in July 2020, the police contacted Phillips for another
interview, and she acquiesced. Phillips retracted her earlier statements,
asserting that, in 2016, she once had caught Appellant abusing D.M. in their
home, just as D.M. had described; she also had been told about the incident
in which the child was shown a pornographic video. See N.T. Trial, 7/8/2021,
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at 72-76, 80-81. Despite fearing for D.M.’s safety, Phillips was reluctant to
report the incidents because she was financially dependent on Appellant. See
id., at 23-24.
Soon after Phillips’ second interview, the police obtained a warrant to
search Appellant’s cell phone. The phone contained pornographic photos and
videos depicting Phillips and Appellant taking part in various sexual acts. One
series of photos created on March 16, 2020, showed Appellant and Phillips
engaged in oral sex with Z.T.
Prior to trial, the Commonwealth sought to admit one of the electronic
images. The proffered evidence, labeled “Commonwealth’s Exhibit 4,” was a
full-color print-out of a digital version of a photo downloaded from Appellant’s
phone. The image (referred to below as “Exhibit 4, or “the photo”) was blown
up from a digital image on Appellant’s phone, and it completely filled an 8.5
by 11-inch sheet of paper. The photo, taken well after the 2016 and 2017
incidents, depicted Appellant and Phillips performing fellatio on Z.T. together.
The Commonwealth argued that the photo was relevant because several
of the charges, i.e., corruption of minors (Count 7), criminal use of a
communication facility (Count 8), and disseminating explicit sexual material
to a minor (Count 10), arose from D.M.’s claim that Appellant had shown her
a pornographic video of two men. It was impossible for Exhibit 4 to have been
shown to D.M. as it was taken after the alleged offenses occurred, and yet,
the Commonwealth suggested, somewhat disingenuously, that an explicit
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image of Appellant and another man corroborated D.M.’s allegation because
it demonstrated Appellant’s “sexual interest” in that kind of sexual activity:
But [Phillips] is going to testify, I anticipate that she’s going to say that this has been a sexual interest of [Appellant’s] for years including the relevant time period in which [D.M.] was shown a photo, and then the photo just corroborates that it’s a continuing sexual interest of his.
Otherwise, it, it seems unlikely for a man, who is married to a woman, for us to say that he’s watching gay pornography and showing it to a child when the natural thought process from that is that that’s not even a sexual interest of his.
N.T. Trial, 7/6/2021, at 10 (emphasis added).
The case then proceeded to trial. In its opening statement, the defense
attempted to impeach Phillips’ credibility by asserting that she was motivated
to change her story and implicate Appellant so that she could pursue an
exclusive relationship with Z.T. a few months after he had moved into
Appellant’s house: “[Z.T.’s] moved into their home, and there is a sexual
relationship there. Around the beginning of June of 2020, [Phillips] kicks
Michael out to carry on a relationship with [Z.T.].” N.T. Trial, 7/7/2021, at
41.
Once the opening statements had concluded, the Commonwealth, in an
argument we find not to be entirely coherent, relied on the defense’s argument
about Phillips’ motive to present an additional ground for admitting the photo:
The defense in their opening talked about [Phillips’] story changing because she fell in love with [Z.T.], moved him in and started having sex with him. The photographs that the Commonwealth recovered from [Appellant’s] phone is, in fact, [evidence of] a three-way sexual relationship with
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[Appellant, Phillips, and Z.T.]. I believe that door's open now, and I can show that photo, so I believe that door has been opened, and now that I can actually show that photograph to [rebut the theory that] she was cheating on him.
N.T. Trial, 7.7/2021, at 232 (emphasis added).
In response, defense counsel disagreed that Appellant’s sexual
relationship with Z.T. had ever been put at issue. Id., at 233-34. The defense
repeated its earlier stipulation that Appellant and Z.T. had been sexually
involved prior to Phillips’ decision to support D.M.’s accusations against
Appellant. See id. Appellant had never disputed the fact that he had
encouraged, and even facilitated, a three-way sexual relationship between
himself, Philips, and Z.T.
This was entirely consistent with his theory that, after the relationship
had formed in early 2020, Philips and Z.T. decided to become exclusive with
each other, giving Phillips a motive to incriminate Appellant by July 2020. See
id, at 235-37. The trial court overruled the defense’s objection, allowing the
Commonwealth to introduce Exhibit 4 so that Philips could identify Appellant
as the man in the photo performing fellatio on Z.T. See id., at 238.
On the following day of the trial, the defense renewed its objection to
the admission of the photo. See N.T. Trial, 7/8/2021, at 52. After the
objection was again overruled, the defense then requested, and was granted,
a cautionary jury instruction as to the photo’s possible relevance. The trial
court then instructed the jury as follows:
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The photo and reference to the photo is being admitted for the purposes of relating to the witness's relationship with [Z.T.,] as well as with respect to the issue that relates to the alleged incident showing gay porn. Those are the purposes and reasons why this exhibit is being admitted, and that's what you will be considering.
You are, however, not to consider this evidence as probative, meaningful, for any other purpose including whether or not [Appellant] has a sexual interest in children.
Id., at 57 (emphasis added).
Phillips went on to testify at trial about the victim’s allegations, and then
specifically about the arrangement she and Appellant had with Z.T. The
prosecution admitted the photo and had Phillips describe what it depicted –
she and Appellant performing fellatio on Z.T. See id., at 57-60.
In its closing statement to the jury, the Commonwealth again stated
that Exhibit 4 was relevant for “corroboration” of other evidence:
Next in this case, I admitted into evidence a photograph that was referred to by counsel for the Commonwealth as well as for [Appellant]. This photograph was admitted into evidence for the purpose of corroboration. It is not a pleasant photograph to look at necessarily. You should not let it stir up your emotions to the prejudice of [Appellant]. Your verdict must be based on a rational and fair consideration of all the evidence and not on passion or prejudice against [Appellant], the Commonwealth, or anyone else connected to this case.
N.T. Trial, 7/12/2021, at 95-96 (emphasis added).
Appellant was found guilty as charged, and the judgment of sentence
was entered by the Court of Common Pleas of Beaver County (trial court) on
November 5, 2021. Counsel for Appellant filed a timely post-sentence motion
three days later. Counsel also filed a motion for an extension of time to file a
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supplemental post-sentence motion, which the trial court granted, and a
supplemental post-sentence motion was timely filed. The trial court denied
the supplemental post-sentence motion on July 27, 2022, and a timely notice
of appeal was filed on September 15, 2022.4
In compliance with Pa.R.A.P. 1925, the trial court entered an opinion
giving the reasons why the judgment of sentence should be affirmed. See
Trial Court 1925(a) Opinion, 11/14/2022, at 12-15. As to the admission of
the disputed photo exhibit, the trial court first found that it was “highly
probative in corroborating” D.M.’s testimony that Appellant “showed D.M. gay
pornography on his phone.” Id., at 13. The trial court reasoned further that
“without the context provided by this documentary evidence . . . it would be
much easier for the jury to disbelieve D.M.’s testimony that [Appellant] had
been watching gay pornography.” Id., at 14.
Further, the trial court found that the photo was relevant to corroborate
Phillips’ testimony regarding the nature of her relationship with Z.T., as well
as Appellant’s sexual interest in men. See id. It was noted by the trial court
that the photo “was contrary to the characterization” of the relationship made
by Appellant’s defense counsel in the opening statement. See id.
4 Appellant’s counsel missed the deadline for filing an appeal, but postconviction relief was granted on September 1, 2022, reinstating Appellant’s appellate rights, nunc pro tunc.
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In this appeal, Appellant’s only claim is that he is entitled to a new trial
as to all 12 of his convictions because he was unfairly prejudiced by the trial
court’s erroneous admission of the Commonwealth’s photo exhibit. He argues
that the photo was improperly admitted because under Pa.R.E. 404(b), it was
evidence of a “wrong or other act” that could not be used to prove Appellant’s
character or propensity to commit the charged crimes. See Appellant’s Brief,
at 9-13.5
The Commonwealth responds that the rule relied upon by Appellant
(Pa.R.E. 404(b)) does not apply because the parties had agreed at trial that
the photo did not depict a crime, wrong, or other act, as defined by the rule.
According to the Commonwealth, the photo was properly admitted because it
was relevant to prove issues of material fact, i.e., to bolster the credibility of
D.M. and Phillips, and thereby prove the charges arising from D.M. being
shown a pornographic video.
“The question of admissibility of photographs . . . is a matter within the
discretion of the trial judge, and only an abuse of that discretion will constitute
reversible error.” Commonwealth v. Stein, 548 A.2d 1230, 1233 (Pa.
Super. 1988). An abuse of discretion occurs where the trial court’s ruling
results from “manifest unreasonableness, partiality, prejudice, bias, or ill-will,
5 Appellant also has challenged the verdict as being against the weight of the
evidence. See Appellant’s Brief, at 14. In substance, though, this claim merely reiterates the evidentiary issue, so no additional consideration of the weight challenge is warranted.
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or such lack of support as to be clearly erroneous.” Commonwealth v. Laird,
988 A.2d 618, 636 (Pa. 2010). “Further, discretion is abused when the law is
either overridden or misapplied.” Commonwealth v. Hoover, 107 A.3d 723,
729 (Pa. 2014).
When ruling on a photo’s admissibility, the trial court must apply a two-
step analysis. See Commonwealth v. Hubbard, 372 A.2d 687, 697 (Pa.
1977). First, the trial court must determine whether the photo is
“inflammatory,” which is defined as casting “such an unfair light that it would
tend to cloud an objective assessment of the guilt or innocence of the
defendant.” Hubbard, 372 A.2d at 697. If the photo is found to be
inflammatory, then it may be admitted only if the trial court determines it to
be “of such essential evidentiary value that [its] need clearly outweighs the
likelihood of [it] inflaming the passions of the jurors.” Commonwealth v.
Strong, 563 A.2d 479, 483 (Pa. 1989).
Photos that are found not to be inflammatory are subject to the usual
relevance standard of evidence. See id. “Evidence is relevant if it logically
tends to establish a material fact in the case, tends to make a fact at issue
more or less probable, or supports a reasonable inference or presumption
regarding the existence of a material fact.” Commonwealth v. Spiewak,
617 A.2d 696, 699 (Pa. 1992); see also Pa.R.E. 401. In order for relevant
evidence to be admissible, its probative value must outweigh “its prejudicial
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impact.” Spiewak, 617 A.3d at 699 (citing Commonwealth v. Story, 383
A.2d 155, 160 (Pa. 1978)); see also Pa.R.E. 403.
Moreover, under Pa.R.E. 404(b), “[e]vidence 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.”
Pa.R.E. 404(b)(1). “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.” Pa.R.E. 404(b)(2).
There is no need for a court to weigh the probative value of evidence
against its prejudicial impact when the evidence is completely irrelevant. See
Story, 383 A.2d at 160. On review of the erroneous admission of evidence
that is not relevant, an appellate court must only assess whether the error
was harmless beyond a reasonable doubt. See Commonwealth v.
Robinson, 721 A.2d 344, 350 (Pa. 1998). An error is harmless where:
(1) the error did not prejudice the defendant or the prejudice was de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or (3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Id. When evidence is found to have been erroneously admitted in favor of
the prosecution at a criminal trial, the Commonwealth bears the burden of
proving harmless error. See Commonwealth v. Laich, 777 A.2d 1057,
1062-63 (Pa. 2001).
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Here, we note at the outset that the parties stipulated at trial that the
photo’s admissibility was not governed by Pa.R.E. 404(b). The
Commonwealth, Appellant, and the trial court agreed that the photo did not
come under the purview of that rule because Appellant’s sexual contact with
Z.T. was not wrongful or criminal conduct. See N.T. Trial, 7/6/2021, at 11;
N.T. Trial, 7/12/2021, at 25. Accordingly, the trial court admitted the photo
into evidence for reasons other than the permissible purposes enumerated in
Rule 404(b)(2).
The Commonwealth, in its brief, also reiterates that Rule 404(b)(2) does
not apply so as to make the photo admissible for any such purposes. It is
therefore unnecessary for this Court to consider whether the subject photo
was admissible under Rule 404(b).6 Nor do we need to analyze the photo in
the context of the inflammatory evidence standard, as Appellant does not raise
that issue in his briefing.7
6 While Appellant now argues in his brief that the photo was evidence of another “act,” under Rule 404(b)(1), making the photo inadmissible in the absence of an applicable permitted use under Rule 404(b)(2), he acknowledges that this new position is contrary to the one he took at trial. See Appellant’s Brief, at 9. The argument is therefore waived for appellate purposes. See Pa.R.A.P. 302(a) (“Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.”). It must be stressed here, though, that we offer no opinion on the correctness of the assumption undergirding the parties’ stipulation at trial – that a “prior act” under Rule 404(b) must be wrongful or criminal conduct, as opposed to any prior act which is used to establish a defendant’s bad character or criminal propensity.
7 Appellant does not argue that the photo was inflammatory in his brief.
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Since those standards of admissibility do not have to be addressed, the
photo’s admission is subject to the general test of relevance. The
Commonwealth has advanced two alternative ways in which the photo was
relevant. The first proposed basis is that the photo demonstrated Appellant’s
“sexual interest” in other men, tending to make D.M.’s allegation of being
shown “gay pornography” more credible. We find this argument to be entirely
unpersuasive.
D.M. claimed that Appellant once showed her a video of two men
engaged in a sexual act, and the child described the video as “gay
pornography.” The Commonwealth charged Appellant with three offenses
based on that allegation: corruption of minors; criminal use of a
communication facility; and disseminating sexually explicit material to a child.
See 18 Pa.C.S.A. § 6301(a)(1)(ii), 18 Pa.C.S.A. § 7512(a), and 18 Pa.C.S.A.
§ 5903(c)(1), respectively.
While the act of showing a child pornography on an electronic device
would certainly establish material elements of those offenses, the
Commonwealth’s photo exhibit was simply not germane to any issues of
material fact. It was not alleged that the victim was ever shown the subject
photo. The photo was not even taken until after the alleged offenses were
committed. Further, the undisputed fact that Appellant is bi-sexual did not
make it any more or less likely that he committed the above offenses by
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showing the child a pornographic video. The photo’s depiction of Appellant in
a sexual act with another man had no discernable bearing on D.M.’s veracity.
Even if Appellant’s sexuality was somehow relevant, it was never in
dispute such that documentation of it could assist the jury in deciding the
existence of a material fact in this case. Appellant had admitted that he was
bi-sexual, and he did not object to the admission of a “sex contract” in which
he clearly expressed his desire for extramarital sexual relations with other
men, including Z.T. The enlarged and full color photo of Appellant engaged in
a sexual act with other consenting adults was not probative as to whether
D.M. was shown a pornographic video of two men years before that photo was
even taken.
The Commonwealth’s alternative ground for the photo’s relevance is
difficult to describe in a cogent way. The argument seems to be that the photo
rebutted the defense’s theory that Phillips had a motive to testify falsely
against Appellant. In his opening statement, defense counsel suggested that
Phillips had lied about witnessing D.M.’s sexual abuse so that she could “carry
on a relationship with [Z.T.]” N.T. Trial, 7/7/2021, at 41. The Commonwealth
argues that the photo undercuts that claim because it proves Appellant had at
all times consented to the sexual relationship between Phillips and Z.T.
It is evident from our review of the record that the Commonwealth has
misconstrued both the defense’s position and the import of the evidence the
prosecution sought to have admitted in rebuttal. The photo now at issue was
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created in March 2020, and Appellant has never disputed that both he and
Phillips were sexually involved with Z.T. at that time. Phillips came forward
to the police and implicated Appellant months after the photo was taken, in
July 2020, which coincided with her decision to live with Z.T. and become
sexually exclusive with him. The fact that Appellant was intimate with Z.T. at
the time the photo was taken (in March 2020) was not at all inconsistent with
the defense’s theory about why Phillips later decided to testify against
Appellant (in July 2020): that she wanted to be exclusive with Z.T. and
therefore changed her story to rid them of Appellant. If in fact Phillips wanted
to be exclusive with Z.T. as of July 2020, an earlier photo showing the three
of them would not corroborate Appellant’s later consent to an exclusive
relationship between Phillips and Z.T., as apparently argued by the
Commonwealth.
In sum, the photo of Appellant performing oral sex on Z.T. was not
probative of any material issue at trial, and the trial court erred in admitting
it into evidence. Having found that the trial court erred in that regard, we
must now determine whether the Commonwealth carried its burden of
showing that the error was harmless beyond a reasonable doubt.
The Commonwealth argues first that any potential prejudice caused by
the photo’s admission was cured by the trial court’s instructions that the jury
could only consider the photo when evaluating D.M.’s veracity and considering
the nature of Appellant’s relationship with Phillips and Z.T. See Appellee’s
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Brief, at 17-18; see also Appellee’s Supplemental Brief, at 3-4. The
Commonwealth argues next that the prejudice caused by the photo was de
minimus because it was cumulative of undisputed evidence that Appellant was
bi-sexual, and the activity depicted in the photo was not a crime. See
Appellee’s Supplemental Brief, at 3-4.
As an alternative ground, the Commonwealth contends that, even if the
photo was not harmless, it could have only been prejudicial as to Counts 7, 8,
and 10 (corruption of minors, criminal use of a communication facility, and
disseminating explicit sexual material to a minor, respectively). Accordingly,
the Commonwealth argues alternatively, that the judgment of sentence
should be affirmed as to the remaining charges, Counts 1, 2, 3, 4, 5, 6, 9, 11,
and 12. See id., at 5.8
We find that the Commonwealth has not shown that the photo’s
admission was harmless beyond a reasonable doubt. First, it was improperly
used to bolster the credibility of the victim. The Commonwealth alleged that
Appellant showed D.M. a pornographic video of two men on his phone, and
8 These remaining counts were as follows: Count 1 - Involuntary Deviate Sexual Intercourse, 18 Pa.C.S.A. § 3123(b); Count 2 - Unlawful Contact with a Minor, 18 Pa.C.S.A. § 6318(a)(1); Counts 3 and 4 - Aggravated Indecent Assault, 18 Pa.C.S.A. § 3125(a)(7); Count 5 - Indecent Assault, 18 Pa.C.S.A. § 3126(a)(7); Count 6 - Endangering Welfare of Children, 18 Pa.C.S.A. § 4304(a); Count 9 – Indecent Assault, 18 Pa.C.S.A. § 3126(a)(7); Count 11 – Indecent Assault, 18 Pa.C.S.A. § 3126(a)(8); and Count 12 – Indecent Assault Without Consent, 18 Pa.C.S.A. § 3126(a)(1).
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the jury was instructed that the photo, Exhibit 4, could be considered “with
respect to the issue that relates to the alleged incident showing [the victim]
gay porn.” N.T. Trial, 7/8/2021, at 57. The jury is presumed to have followed
that instruction, see Commonwealth v. Gease, 696 A.2d 130, 135 (Pa.
1997), making it difficult to see how the jury could have relied on only relevant
evidence when entering its verdict.
In cases like this one, where there is no physical evidence of the charged
crimes, and the credibility of an accuser is central to the prosecution’s case,
the question of harmless error often “poses a close call.” Commonwealth v.
Roman-Rosa, No. 111 MDA 2023, at 22 (Pa. Super. filed December 6, 2023)
(unpublished memorandum). This is because “[t]he uncorroborated
testimony of a sexual assault victim, if believed by the trier of fact, is sufficient
to convict a defendant.” Id. (quoting Commonwealth v. McDonough, 96
A.3d 1067, 1069 (Pa. Super. 2014)). Here, the trial court’s cautionary
instruction essentially advised the jury that the photo was evidence of the
victim’s veracity, causing substantial prejudice.
Second, the photo may have influenced the jury to find Phillips more
credible, or to reject Appellant’s explanation for her testimony. Appellant’s
only means of discrediting Phillips’ allegations was to argue that her affair with
Z.T. gave her a motive to lie. The jury was instructed that the photo was
probative of the parties’ relationship with Z.T. at the relevant times. This was
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harmful to Appellant because, in reality, the timing of the photo’s creation
made it completely irrelevant on that point.
Third, the photo could have led the jury to consider Appellant’s legal
conduct as evidence of his guilt, or a propensity to commit the charged
offenses. It was not a crime for Appellant to possess an explicit image of
himself having sexual contact with another man. The Commonwealth had to
prove, rather, that Appellant showed such material to a child, as this is the
key element of disseminating explicit sexual material to a minor, see 42
Pa.C.S.A. § 5903, as well as corruption of minors, see 42 Pa.C.S.A. §
6301(a)(1)(ii). Carrying out these acts with the use of a cellular phone would
in turn constitute criminal use of a communication facility under 42 Pa.C.S.A.
§ 7512.9
The Commonwealth has not established beyond a reasonable doubt that
the jury avoided making an inference that Appellant showed the victim the
type of material that he had lawfully possessed. That is, the jury could have
9 An element of disseminating explicit sexual material to a child is that the
material must be “obscene.” Such material depicts nudity or sexual conduct; it may also refer to material that “appeals to the prurient interest” under “contemporary community standards.” 42 Pa.C.S.A. § 5903(b)-(c). Similarly, conduct which corrupts a minor is an act which “would offend the common sense of community and the sense of decency, propriety and morality which most people entertain.” See Commonwealth v. Person, 325 A.3d 823, 830 (Pa. Super. 2024) (quoting Commonwealth v. Sebolka, 205 A.3d 329, 339 (Pa. Super. 2019)). At Appellant’s trial, the Commonwealth had the burden of proving the elements of these crimes beyond a reasonable doubt. The admission of Exhibit 4 could have aided the Commonwealth in doing so.
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improperly inferred that Appellant’s possession of home-made pornography
on his phone made it more likely that he displayed similar material to the
victim on the same device.10
Moreover, the photo was not merely cumulative of other evidence, as
the Commonwealth claims. The content of the photo, while not argued as
inflammatory or evidence of a criminal act, was nevertheless salacious. The
photo was enlarged from a digital file and printed in color on an 8.5 by 11-
inch piece of paper. This graphic and gratuitous display of Appellant’s sex act
portrayed him as no other evidence did, and in a manner that would have
made it difficult, if not impossible, for the jury to forget. The emphasis placed
on the photo by the Commonwealth and the trial court also increased the
chance that the jury attached significance to this piece of irrelevant evidence
when entering its verdict.
Finally, we address the Commonwealth’s argument that any prejudicial
error in admitting Exhibit 4 would be limited to only the three offenses which
related to showing the minor victim pornography. This ground is unpersuasive
because the photo was ostensibly admitted for purposes of corroboration in a
10 The jury was advised by the trial court not to consider the photo for any
purposes other than those two which were specifically enumerated: “[Phillips’] relationship with [Z.T.,] as well as with respect to the issue that relates to the alleged incident showing gay porn.” See N.T. Trial, 7/8/2021, at 57. These instructions were vague enough that the danger of a propensity inference remained. See Commonwealth v. Yale, 249 A.3d 1001, 1015 (Pa. 2021) (stressing that the impact of propensity evidence “against a defendant is significant and may be highly prejudicial[.]”
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case where the jury’s central function was to assess the credibility of the
Commonwealth’s witnesses. If Exhibit 4 indeed helped bolster the accounts
of Phillips and D.M. as the Commonwealth intended, then the jury could have
been more likely to accept as true their allegations as to the remaining
charges. Again, all of Appellant’s convictions hinged on the jury finding these
witnesses credible, as there was no physical evidence that any of the alleged
offenses ever took place. See Roman-Rosa, No. 111 MDA 2023, at 22; see
also McDonough, 96 A.3d at 1069.
Thus, we conclude that the erroneous admission of the photo was not
harmless. The error caused more than de minimis prejudice; the photo was
not cumulative of any properly admitted evidence; and the properly admitted
evidence of Appellant’s guilt was not overwhelming. To remedy the trial
court’s error, the judgment of sentence must be vacated in its entirety so that
Appellant may receive a new trial.
Judgment of sentence vacated. Case remanded for further proceedings
consistent with this memorandum. Jurisdiction relinquished.
2/18/2025
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