Com. v. Ross, E.
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Opinion
J-S18036-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWARD ROSS : : Appellant : No. 1772 EDA 2022
Appeal from the Judgment of Sentence Entered May 16, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001450-2020
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 18, 2023
Edward Ross appeals from the May 16, 2022 aggregate judgment of
sentence of 28 to 66 years’ imprisonment, followed by 8 years’ probation,
imposed after a jury found him guilty of rape of a child, endangering the
welfare of children, indecent assault of a person less than 13 years old,
unlawful contact with a minor, attempted aggravated indecent assault,
corruption of minors, and five counts of involuntary deviate sexual intercourse
with a child (“IDSI”).1 Appellant was also ordered to undergo lifetime
registration under revised Subchapter H of the Sex Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.10-9799.42. After careful
review, we affirm in part, vacate in part, and remand with instructions. ____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3121(c), 4304(a), 3126(a)(7), 6318(a)(1), 3121(a), 6301(a)(I)(ii), and 3123(b), respectively. J-S18036-23
The trial court summarized the relevant facts of this case as follows:
[On March 28, 2020,] Victim, who at the time of trial was twelve years old, while spending time with her cousin, revealed a big secret. She told her cousin Appellant did bad things to her and put his private part in her mouth and made her do things she didn’t want to do; she had never told anyone before because she was scared after Appellant warned her she would get in trouble by him if she did tell. She told her cousin not to tell anybody but the next morning at her first opportunity the cousin told her mother.
On April 3, 2020 Victim was interviewed at the Children’s Advocacy Center by Crystal Gray. Victim stated, her mom’s boyfriend TJ (Appellant), made her do “bad things” with him on more than one occasion. Victim stated in the beginning Appellant would “ask” Victim if she wanted to do it; Victim would say no but Appellant still made her do it. Victim said she would hide in her closet, under her bed, or under the covers, but he would always find her, grab her, and make her do it. Appellant would wait for her mom to leave for work, and then come for her, and they would go into her mother and Appellant’s room. Victim described he forced her to “suck his private part” twice a day. Victim said she was five years old when the assaults began and they continued for a few years. Victim said Appellant would take his clothes off and lay in the bed and tell her to get on the bed and do it. Victim said she could see Appellant’s private parts, chest, and legs. Appellant would make her suck on his private part. If Victim didn’t do what Appellant said, he would scream at her and this would upset her. Victim said she would use her hands or her mouth and Appellant would yell at her if he could feel her teeth. Victim described Appellant’s private part like a bottle with two circles at the bottom and it was dark brown. Victim described white stuff would gush out from a hole on Appellant’s private part, and sometimes it would gush into her mouth and Appellant told her to hold it in; also sometimes it would get on her hands and it was gooey. Victim said she would have to rub
-2- J-S18036-23
his private parts and it was Appellant’s idea. Victim said Appellant would be lying on the bed looking at his phone and there would be moaning sounds coming from the phone. Victim said Appellant promised rewards, but she didn’t want them; Victim just wanted it to stop. Once, Appellant gave her a dollar and some candy and Appellant told her to keep the game a secret. Victim stated Appellant would give her a high score the faster she would go, and she knew she would get a high score when he would scream out yes three times and she would get a reward. Victim also said Appellant “tried to go into her butt but it wouldn’t fit” and she was crying because it “was wiggling and it hurt” and Appellant yelled “you stupid girl, it didn’t fit.” Victim said Appellant had his phone, a silver Samsung, and held it like he was recording. Victim said Appellant did these things when her mother was at work and she tried to tell her mom but Appellant would interfere; Victim said she tried to write a note and put it in the mail. Victim recalled these assaults went on for years.
Trial court opinion (redacted), 10/31/22 at 1-3 (paragraph break added).
The pertinent procedural history, as gleaned from the certified record,
is as follows: Appellant was subsequently arrested and charged with rape of
a child, IDSI, and a litany of related offenses. A search warrant executed at
Appellant’s residence resulted in the recovery of various electronic devices
whose search history revealed visits to over 200 pornography websites related
to father-daughter or stepfather-stepdaughter sex. Notes of testimony,
1/26/22 at 189-224. On January 24, 2022, Appellant filed a motion in limine
to preclude any evidence extracted from these electronic devices. The trial
court denied Appellant’s motion that same day.
-3- J-S18036-23
On January 24, 2022 jury selection commenced. During jury selection,
prospective juror number 42 indicated that her former brother-in-law had
been convicted of “a similar crime” against her niece. The trial court denied
Appellant’s motion to strike prospective juror number 42 for cause, and
Appellant utilized a peremptory strike. Notes of testimony, 1/24/22 at 129-
133.
On January 25, 2022, Appellant proceeded to a jury trial before the
Honorable Richard M. Cappelli. Following a three-day trial, Appellant was
found guilty of rape of a child, endangering the welfare of children, indecent
assault of a person less than 13 years old, unlawful contact with a minor,
attempted aggravated indecent assault, corruption of minors, and five counts
of IDSI. Following the completion of Sexual Offender Assessment Board
evaluation, the trial court sentenced Appellant to an aggregate term of 28 to
66 years’ imprisonment, followed by 8 years’ probation, on May 16, 2022.
Appellant subsequently filed a timely post-sentence motion that was denied
by the trial court on June 1, 2022.
Thereafter, on June 30, 2022, Appellant filed a timely notice of appeal.
On July 22, 2022, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
Appellant was granted an extension and ultimately filed his timely concise
statement on September 1, 2022. The trial court filed a comprehensive, 54-
page Rule 1925(a) opinion on October 31, 2022.
-4- J-S18036-23
Appellant raises the following issues for our review:
I. Whether the trial court erred in denying Appellant’s motion to strike for cause Prospective Juror #42, since the panelist is closely related to the victim of a crime similar to those alleged herein and could not commit to being fair and impartial?
II.
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J-S18036-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : EDWARD ROSS : : Appellant : No. 1772 EDA 2022
Appeal from the Judgment of Sentence Entered May 16, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001450-2020
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED AUGUST 18, 2023
Edward Ross appeals from the May 16, 2022 aggregate judgment of
sentence of 28 to 66 years’ imprisonment, followed by 8 years’ probation,
imposed after a jury found him guilty of rape of a child, endangering the
welfare of children, indecent assault of a person less than 13 years old,
unlawful contact with a minor, attempted aggravated indecent assault,
corruption of minors, and five counts of involuntary deviate sexual intercourse
with a child (“IDSI”).1 Appellant was also ordered to undergo lifetime
registration under revised Subchapter H of the Sex Offender Registration and
Notification Act (“SORNA”), 42 Pa.C.S.A. § 9799.10-9799.42. After careful
review, we affirm in part, vacate in part, and remand with instructions. ____________________________________________
* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3121(c), 4304(a), 3126(a)(7), 6318(a)(1), 3121(a), 6301(a)(I)(ii), and 3123(b), respectively. J-S18036-23
The trial court summarized the relevant facts of this case as follows:
[On March 28, 2020,] Victim, who at the time of trial was twelve years old, while spending time with her cousin, revealed a big secret. She told her cousin Appellant did bad things to her and put his private part in her mouth and made her do things she didn’t want to do; she had never told anyone before because she was scared after Appellant warned her she would get in trouble by him if she did tell. She told her cousin not to tell anybody but the next morning at her first opportunity the cousin told her mother.
On April 3, 2020 Victim was interviewed at the Children’s Advocacy Center by Crystal Gray. Victim stated, her mom’s boyfriend TJ (Appellant), made her do “bad things” with him on more than one occasion. Victim stated in the beginning Appellant would “ask” Victim if she wanted to do it; Victim would say no but Appellant still made her do it. Victim said she would hide in her closet, under her bed, or under the covers, but he would always find her, grab her, and make her do it. Appellant would wait for her mom to leave for work, and then come for her, and they would go into her mother and Appellant’s room. Victim described he forced her to “suck his private part” twice a day. Victim said she was five years old when the assaults began and they continued for a few years. Victim said Appellant would take his clothes off and lay in the bed and tell her to get on the bed and do it. Victim said she could see Appellant’s private parts, chest, and legs. Appellant would make her suck on his private part. If Victim didn’t do what Appellant said, he would scream at her and this would upset her. Victim said she would use her hands or her mouth and Appellant would yell at her if he could feel her teeth. Victim described Appellant’s private part like a bottle with two circles at the bottom and it was dark brown. Victim described white stuff would gush out from a hole on Appellant’s private part, and sometimes it would gush into her mouth and Appellant told her to hold it in; also sometimes it would get on her hands and it was gooey. Victim said she would have to rub
-2- J-S18036-23
his private parts and it was Appellant’s idea. Victim said Appellant would be lying on the bed looking at his phone and there would be moaning sounds coming from the phone. Victim said Appellant promised rewards, but she didn’t want them; Victim just wanted it to stop. Once, Appellant gave her a dollar and some candy and Appellant told her to keep the game a secret. Victim stated Appellant would give her a high score the faster she would go, and she knew she would get a high score when he would scream out yes three times and she would get a reward. Victim also said Appellant “tried to go into her butt but it wouldn’t fit” and she was crying because it “was wiggling and it hurt” and Appellant yelled “you stupid girl, it didn’t fit.” Victim said Appellant had his phone, a silver Samsung, and held it like he was recording. Victim said Appellant did these things when her mother was at work and she tried to tell her mom but Appellant would interfere; Victim said she tried to write a note and put it in the mail. Victim recalled these assaults went on for years.
Trial court opinion (redacted), 10/31/22 at 1-3 (paragraph break added).
The pertinent procedural history, as gleaned from the certified record,
is as follows: Appellant was subsequently arrested and charged with rape of
a child, IDSI, and a litany of related offenses. A search warrant executed at
Appellant’s residence resulted in the recovery of various electronic devices
whose search history revealed visits to over 200 pornography websites related
to father-daughter or stepfather-stepdaughter sex. Notes of testimony,
1/26/22 at 189-224. On January 24, 2022, Appellant filed a motion in limine
to preclude any evidence extracted from these electronic devices. The trial
court denied Appellant’s motion that same day.
-3- J-S18036-23
On January 24, 2022 jury selection commenced. During jury selection,
prospective juror number 42 indicated that her former brother-in-law had
been convicted of “a similar crime” against her niece. The trial court denied
Appellant’s motion to strike prospective juror number 42 for cause, and
Appellant utilized a peremptory strike. Notes of testimony, 1/24/22 at 129-
133.
On January 25, 2022, Appellant proceeded to a jury trial before the
Honorable Richard M. Cappelli. Following a three-day trial, Appellant was
found guilty of rape of a child, endangering the welfare of children, indecent
assault of a person less than 13 years old, unlawful contact with a minor,
attempted aggravated indecent assault, corruption of minors, and five counts
of IDSI. Following the completion of Sexual Offender Assessment Board
evaluation, the trial court sentenced Appellant to an aggregate term of 28 to
66 years’ imprisonment, followed by 8 years’ probation, on May 16, 2022.
Appellant subsequently filed a timely post-sentence motion that was denied
by the trial court on June 1, 2022.
Thereafter, on June 30, 2022, Appellant filed a timely notice of appeal.
On July 22, 2022, the trial court ordered Appellant to file a concise statement
of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b).
Appellant was granted an extension and ultimately filed his timely concise
statement on September 1, 2022. The trial court filed a comprehensive, 54-
page Rule 1925(a) opinion on October 31, 2022.
-4- J-S18036-23
Appellant raises the following issues for our review:
I. Whether the trial court erred in denying Appellant’s motion to strike for cause Prospective Juror #42, since the panelist is closely related to the victim of a crime similar to those alleged herein and could not commit to being fair and impartial?
II. Whether the trial court erred in denying Appellant’s motion in limine and permitting the prosecution to admit evidence allegedly extracted from his electronic devices, including internet search terms and web history, since the evidence is irrelevant, constitutes inadmissible character or other act evidence, and any probative value is outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, and needlessly presenting cumulative evidence?
III. Whether the sentencing court’s imposition of sexual offender registration is illegal and Appellant is entitled to less restrictive Subchapter I requirements, since the jury never made any offense date findings, and in any event, Subchapter H’s more restrictive provisions are unconstitutional?
Appellant’s brief at 7.
I. Motion to Strike Juror
Appellant first argues that the trial court abused its discretion in denying
his motion to strike prospective juror number 42 for cause. Id. at 21.
The decision whether to disqualify a prospective juror is to be made by the trial judge based on the juror’s answers and demeanor and will not be reversed absent a palpable abuse of discretion. Appellate courts defer to the trial court’s assessment of a prospective juror’s answers during voir dire because
-5- J-S18036-23
the trial court is in the best position to assess the [prospective juror’s] credibility and fitness to serve[.]
Most importantly, we should give great weight to the trial court judge’s decision about striking jurors because the trial court judge not only hears the words that the potential juror speaks, but also the manner in which the juror says those words and is in a better position than an appellate court to evaluate the significance of any hesitancy of a potential juror[.]
Commonwealth v. Delmonico, 251 A.3d 829, 839 (Pa.Super. 2021)
(citation omitted; some brackets in original), appeal denied, 265 A.3d 1278
(Pa. 2021).
II. Motion in Limine & Admissibility of Evidence
Appellant next argues that the trial court abused its discretion in denying
his motion in limine and permitting the Commonwealth to admit evidence
“extracted from his electronic devices, including search terms, web history,
legal inquiries, and detailed pornographic title list.” Appellant’s brief at 27.
A motion in limine is used before trial to obtain a ruling on the admissibility of evidence. It gives the trial judge the opportunity to weigh potentially prejudicial and harmful evidence before the trial occurs, thus preventing the evidence from ever reaching the jury. A motion in limine differs from a suppression motion in that a suppression motion is designed to preclude evidence that was obtained in violation of a defendant’s constitutional rights, while a motion in limine precludes evidence that was constitutionally obtained but which is prejudicial to the moving party.
Commonwealth v. Reese, 31 A.3d 708, 715 (Pa.Super. 2011) (citation
omitted).
-6- J-S18036-23
“Questions concerning the admissibility of evidence lie within the sound
discretion of the trial court, and a reviewing court will not reverse the court’s
decision on such a question absent a clear abuse of discretion.”
Commonwealth v. Crosley, 180 A.3d 761, 768 (Pa.Super. 2018) (citation
omitted), appeal denied, 195 A.3d 166 (Pa. 2018). “An abuse of discretion
may not be found merely because an appellate court might have reached a
different conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Id.
Following a thorough review of the record, including the briefs of the
parties, the applicable law, and the well-reasoned opinion of the trial court, it
is our determination that Appellant’s first two claims on appeal warrant no
relief. In its extensive 54-page opinion, the trial court comprehensively
discussed each Appellant’s first two allegations of error and concluded that
they are without merit. We find that the trial court’s conclusions are supported
by competent evidence and are clearly free of legal error.
Specifically, we agree with the trial court that Appellant’s motion to
strike prospective juror number 42 for cause was properly denied, as the
record demonstrated that this juror could be fair and impartial. Trial court
opinion (redacted), 10/31/22 at 30-33. We further agree with the trial court
that its decision to deny Appellant’s motion in limine and admit the evidence
extracted from his electronic devices was warranted, as this evidence was
-7- J-S18036-23
both relevant to the charges at hand and its probative value outweighed any
unfair prejudice to Appellant. Id. at 33, 36-41. Accordingly, we adopt those
relevant portions of the trial court’s October 31, 2022 opinion as our own for
purposes of this appellate review.
III. SORNA Registration
In his final claim, Appellant challenges the legality of the SORNA lifetime
registration requirements imposed on him pursuant to Subchapter H.
Appellant contends that he should be subject to the requirements of
Subchapter I because “the jury never made any determinations regarding the
alleged offense dates” nor specifically found that the offenses occurred after
December 20, 2012. Appellant’s brief at 33. Upon review, we are constrained
to agree.
A challenge to the legality of a sentence “presents pure question of law.
Our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Succi, 173 A.3d 269, 284 (Pa.Super. 2017) (citations
omitted), appeal denied, 188 A.3d 1121 (Pa. 2018).
The General Assembly enacted SORNA II in response to the
determination that aspects of SORNA I were unconstitutional in
Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and Commonwealth
v. Butler, 173 A.3d 1212 (Pa.Super. 2017). 42 Pa.C.S.A. § 9799.51(b)(4).
As relevant to Appellant’s claims, the General Assembly revised Subchapter H
to apply only to individuals who committed a sexually violent offense on or
-8- J-S18036-23
after December 20, 2012. Id. § 9799.12 (defining “sexually violent offense”).
The General Assembly also added Subchapter I, 42 Pa.C.S.A. §§ 9799.51-
9799.75, to address those who committed designated offenses prior to
December 20, 2012, if the offender was subject to registration requirements
on that date. Id. § 9799.52.
Our Supreme Court has recognized that the registration requirements
of Subchapter H, which are based on SORNA I, are more onerous than those
under Subchapter I. Commonwealth v. Lacombe, 234 A.3d 602, 607 n.4,
626 (Pa. 2020) (declaring the Subchapter I registration requirements to be
non-punitive). Nevertheless, based upon his convictions, Appellant would be
subject to lifetime registration under either Subchapter. 42 Pa.C.S.A.
§§ 9799.15(a)(3); 9799.55(b).
Instantly, the record reflects that Victim testified that Appellant’s sexual
abuse of her began when she was around eight years old, or in approximately
2017. Notes of testimony, 1/25/22 at 70. Additionally, Victim’s father
confirmed at trial that she lived at his residence until she was five years old,
meaning the sexual abuse could not have happened any earlier than 2014.
Id. at 139, 164-165. Based on the foregoing, Appellant clearly committed the
aforementioned offenses at some point after the triggering date for
Subchapter H, December 20, 2012. 42 Pa.C.S.A. § 9799.11(c).
Appellant, however, contends that pursuant to this Court’s holding in
Commonwealth v. Alston, 212 A.3d 526 (Pa. 2019), he should be subject
-9- J-S18036-23
to the requirements of Subchapter I because the jury did not specifically find
that the offenses occurred after December 20, 2012. Appellant’s brief at 34-
35. Aston involved a defendant whose offenses occurred between May 28,
2009 to May 1, 2013, and the jury did not determine the dates of the offenses.
Alston, 212 A3d at 530. Relying upon Alleyne v. United States, 570 U.S.
99 (2013), and Muniz, the Alston Court held that absent “a specific finding
by the chosen factfinder of when the offenses occurred, [an offender] is
entitled to the lowest punishment.” Id. Thus, the Alston Court remanded
the case for imposition of the lesser restrictive requirements of Subchapter I.
Id.
Similarly, in the instant matter, although Victim’s testimony clearly
supports that conclusion that Appellant sexually abused her after Subchapter
H’s triggering date of December 20, 2012, the jury’s January 27, 2022 verdict
is silent as to any offense dates. Accordingly, we are constrained to apply the
holding of Alston to the instant case and conclude that Appellant is subject
to Subchapter I. See id. at 529 n.4 (stating, “this Court is bound by existing
precedent and continues to follow controlling precedent unless it is overturned
by our Supreme Court[.]” (citation omitted)).
Based on the foregoing, we vacate the portion of Appellant’s sentence
imposing registration requirements under Subchapter H and remand for the
trial court to amend the sentencing order and to instruct Appellant as to the
- 10 - J-S18036-23
requirements under Subchapter I. Appellant’s May 16, 2022 judgment of
sentence is affirmed in all other respects.
Judgment of sentence affirmed in part and vacated in part; case
remanded with instructions. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 8/18/2023
- 11 - 1_Opinion Circulated dated 07/23/2023 10-31-22 01:33 PM
ORIGINAL IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA CRIMINAL DIVISION
COMMONWEALTH OF CP-23-CR-1450-2020 PENNSYLVANIA VS.
EDWARD ROSS 1772 EDA 2022
Kelly Wear, Attorney for the Commonwealth Steven M. Papi, Attorney for Appellant
OPINION
CAPPELLI, J. October 31, 2022
Appellant appeals from the May 16, 2022 Judgment of Sentence. This appeal
lacks merit and should be dismissed.
I. BACKGROUND AND PROCEDURAL HISTORY
On April 6, 2020 following a report of sexual assault on Child Victim,
Appellant was arrested and charged with 155 violations of the Crimes Code,
including inter alia: 18 Pa.C.S. § 3121 Rape of Child (Felony 1); 18 Pa.C.S. § 6301
Corruption of Minors ( Defendant age 18 or above) (Felony 3); 18 Pa.C.S.§ 3125
Aggravated Indecent Assault ( Felony 1); 18 Pa.C.S. § 4304 Endangering Welfare of
Children ( Felony 3); 18 Pa.C.S. § 3126 Indecent Assault of Person under 13 years
(Misdemeanor 1); 18 I'a.C.S. § 6318 Unlawful Contact with Minor (Felony 1).
Victim, who at the time of trial was twelve years old, while spending time
with her cousin, revealed abig secret. She told her cousin Appellant did bad things to her and put his private part in her mouth and made her do things she didn't want
to do; she had never told anyone before because she was scared after Appellant
warned her she would get in trouble by him if she did tell. She told her cousin not to
tell anybody but the next morning at her first opportunity the cousin told her mother.
On April 3, 2020 Victim was interviewed at the Children's Advocacy Center by
Crystal Gray. Victim stated, her mom's boyfriend TJ (Appellant), made her do "bad
things" with him on more than one occasion. Victim stated in the beginning
Appellant would " ask" Victim if she wanted to do it; Victim would say no but
Appellant still made her do it. Victim said she would hide in her closet, under her
bed, or under the covers, but he would always find her, grab her, and make her do it.
Appellant would wait for her mom to leave for work, and then come for her, and
they would go into her mother and Appellant`s room. Victim described he forced her
to "suck his private part" twice aday. Victim said she was five years old when the
assaults began and they continued for afew years. Victim said Appellant would take
his clothes off and lay in the bed and tell her to get on the bed and do it. Victim said
she could see Appellant's private parts, chest, and legs. Appellant would make her
suck on his private part. If Victim didn't do what Appellant said, he would scream at
her and this would upset her. Victim said she would use her hands or her mouth and
Appellant would yell at her if he could feel her teeth. Victim described Appellant's
private part like abottle with two circles at the bottom and it was dark brown. Victim
2 described white stuff would gush out from ahole on Appellant's private part, and i sometimes it would gush into her mouth and Appellant told her to hold it in; also
sometimes it would get on her hands and it was gooey. Victim said she would have
to rub his private parts and it was Appellant's idea. Victim said Appellant would be
lying on the bed looking at his phone and there would be moaning sounds coming
from the phone. Victim said Appellant promised rewards, but she didn't want them;
Victim just wanted it to stop. Once, Appellant gave her adollar and some candy and
Appellant told her to keep the game asecret. Victim stated Appellant would give her
ahigh score the faster she would go, and she knew she would get ahigh score when
he would scream out yes three times and she would get areward. Victim also said
Appellant "tried to go into her butt but it wouldn't fit" and she was crying because it
"was wiggling and it hurt" and Appellant yelled "you stupid girl, it didn't fit". Victim
said Appellant had his phone, asilver Samsung, and held it like he was recording.
Victim said Appellant did these things when her mother was at work and she tried
to tell her mom but Appellant would interfere; Victim said she tried to write anote
and put it in the mail. Victim recalled these assaults went on for years.
The pretrial procedural history of this case is lengthy and extensive due to the
amount of litigation which occurred. On April 6, 2022, acriminal complaint was
filed and asearch warrant executed at Appellant's home; Appellant was arrested and
bail was set at $500,000.00 cash. Appellant did not post bail and was confined at the
3 George W. Hill Correctional Facility. On May 28, 2020 following apreliminary i hearing, the case was bound for trial and bail was reduced to $ 100,000.00 cash. A
review of the record shows the issuing authority required inter alia Appellant "must
have Psycho-Sexual evaluation prior to release". On June 4, 2020 Appellant posted
bail; however Appellant was not released from confinement. The record does not
show the evaluation had occurred as of June 4, 2020. On June 8, 2020 the
Commonwealth filed amotion to increase bail. On June 19, 2020 following ahearing
on the motion, Honorable Anthony D. Scanlon who was assigned miscellaneously
to hear the motion increased bail to $200,000.00 cash.
On June 24, 2020 Appellant was arraigned.
On July 20, 2020 Appellant filed aPetition for Specialized Review of the June
18, 2020 order increasing bail, 82 EDM 2020. On August 7, 2020 Superior Court
entered an order directing the court to file astatement of consideration in support of
the June 19, 2020 order increasing Appellant's bail. On August 19, 2022 Judge
Scanlon filed aresponse to the,order. On September 1, 2020 the Superior Court
entered an order denying the petition for specialized review. On September 3, 2020
Appellant filed aPetition for Allowance of Appeal to the Supreme Court, 484 MAL
2020. On January 25, 2021 the Supreme Court denied Appellant's petition.
On July 22, 2020 Appellant filed an Omnibus Pretrial Motion. On August 7,
2020 the Commonwealth filed a Motion in Limine to Introduce Out of Court
4 Statements of the Complainants. On August 25, 2020 ahearing on the motions were i held. On October 5, 2020 this court entered an order denying Appellant's motion to
quash filed as part of the omnibus pretrial motion, denied Appellant's motion to
reinstate bail, and granted for purposes' of establishing a prima facie the
Commonwealth's motion in limine to introduce hearing out of court statements of
the complainants. On October 30, 2020 Appellant filed an Application for
Amendment of Interlocutory Order. On December 18, 2020 Appellant filed a
Petition .for Permission to Appeal in Superior Court, 142 EDM 2021. On January 5,
2021 Superior Court denied the petition. On January 15, 2021 Appellant filed a
Petition for On Allowance of Appeal in the Pennsylvania Supreme Court, 26 MAL
2021. On December 15, 2021 Pennsylvania Supreme Court denied the petition.
On December 3, 2020 Appellant filed a Motion to Release Defendant
Immediately on Nominal Bail pursuant to Rule 600 and ahearing was scheduled for
December 20, 2020. On December 14, 2020 the case rescheduled until January 4,
2020 1.The motion was held while the appellate courts were deciding issues raised
by Appellant and on January 20, 2022 the motion was denied.
Wthough the record is abit confusing, at this particular point of time in the case, this trial court judge had taken extended medical leave due to unforeseen consequences of the COVIDI9 pandemic; and given the procedural history and number of pre-trial motions and petitions filed in the appellate courts, Honorable James P. Bradley, Judge of the Court of Common Pleas of Delaware County, who was assisting with coverage during the leave deemed it appropriate to relist the case. This judge returned from medical leave to full-time duty during fall 2021.
5 On July 22, 2021 Appellant filed aSupplemental Omnibus Pretrial Motion
and included a motion to reinstate bail and a motion to quash based on
Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2021). On August 31, 2021
Appellant filed a Motion to Quash/Petition for Writ of Habeas Cofpus. On
September 29, 2021 the motion/petition was denied.
On November 8, 2021 ahearing on the Commonwealth Tender Years Motion
was held and on November 17, 2021 the motion was granted.
On January 5, 2022 Appellant filed aPetition for Writ of Habeas Corpus.
On January 20, 2022 Appellant's motion to quash informations and motion for
nominal bail were denied.
On January 24, 2022 Appellant filed aMotion in Limine to Preclude Evidence
of Electronic Device Extraction and the motion was denied.
On January 24, 2022 jury selection commenced. On January 27, following a
three-day jury trial, Appellant was convicted of Rape of Child, Involuntary Deviate
Sexual Intercourse with aChild, Endangering Welfare of Children, Indecent Assault
of Child, Unlawful Contact with Minors, Aggravated Indecent Assault and
Corruption of Minors. Bail was revoked and asentencing hearing was scheduled for
March 29, 2022. On February 1, 2022 an Assessment/Sexual offenders
board/Megan's Law evaluation was ordered. The sentencing hearing was
rescheduled for May 16, 2022 following a request for continuance in order for
6 complete the sexual offender assessment board evaluation to be completed. On May i 16, 2022 this court imposed judgment of sentence upon Appellant to inter alia
confinement in astate correction institution for aminimum term of 28 years to a
maximum term of 66 years, followed by 8years of state probation2:
Rape of Child Felony 1 18 Pa.C.S. § 3121(c) 10 years — 30 years confinement OGS
Involuntary Felony 1 31 Pa.C.S. § 3123(b) 6years — 12 years Deviate Sexual confinement; OGS Intercourse with a consecutive to Child Rape of Child sentence and each other Endangering Felony 3 18 Pa.C.S. § 43Q4(a) 6 months — 12 Welfare of months OGS Children confinement; concurrent with Involuntary Deviate Sexual Intercourse with a Child Indecent Assault Misdemeanor 1 18 Pa.C.S. § 3126(a)(7) 6 months — 12 of Child months concurrent OGS with Involuntary Deviate Sexual Intercourse with a Child Unlawful Contact Felony 1 18 Pa.C.S. § 6318(a)(1) 8 years probation With Minors consecutive to OGS parole
'Additional requirements: Lifetime registration under SORNA; no contact with victim; comply with rules and regulations governing Probation and/or Parole; Submit to DNA Testing; not RRRI eligible; pay costs of prosecution.
7 Aggravated Felony 2 1;8 Pa.C.S. § 1 year — 2 years Indecent Assault concurrent with OGS i 3121(a) Involuntary Deviate Sexual Intercourse with a Child Corruption of Felony 3 18 Pa.C.S. § 6months — 12 6301(a)(I)(ii) months concurrent OGS Minors with Involuntary Deviate Sexual Intercourse with a Child
On May 23, 2022 Appellant filed "Post-Sentence Motion". On June 2, 2022
Appellant's Post-Sentence Motion was denied. On June 30, 2022 Appellant filed a
Notice of Appeal.
On September 1, 2022 following the July 22, 2022 Order directing Appellant
to file aConcise Statement of Matters Complained of on Appeal and August 5, 2022
Order enlarging the time for filing the statement as directed by this Court Appellant
filed a Statement of Matters Complained of on Appeal in which he raises the
following issues:
1. The court erred and misapplied controlling law of the Pennsylvania Supreme Court in Commonwealth v. McClelland, 233 A.3d 717 (Pa. 2020) when it concluded the prosecution established aprima facie case to hold Mr. Ross for trial, even though at the preliminary stage the prosecution never presented the complainant as awitness and relied solely upon hearsay.
2. The court erred in denying Mr. Ross' motion to strike for cause prospective Juror 442, where the panelist was related to the victim of asimilar crime and could not commit to being fair. The trial court's refusal to remove for cause a prospective juror who could not be impartial prejudiced Mr. Ross, since he was forced to use apreemptory challenge to eliminate the unsuitable panelist and exhausted his peremptory strikes in the process. The error resulted in violations of Mr. Ross' rights to due process and afair trial by an impartial jury, as guaranteed by the state and federal constitutions, including PA. CONST. Art. 1 § 9and U.S. CONST. Amends. V, VI, XIV.
3. The court erred in denying Mr. Ross' motion in limine and permitting the prosecution to admit evidence allegedly extracted from Mr. Ross' electronic devices, some of which the prosecution did not provide to the defense until one day prior to trial, since that evidence constitutes mandatory discovery under Pa.R.Crim.P. 573(B)(1), and its introduction violated Mr. Ross' state and federal constitutional rights, including PA. CONST. Art. 1 § 9 and U.S. CONST. Amends. V, VI, XIV.
4. The court erred in denying Mr. Ross' motion in limine and permitting the prosecution to introduce evidence allegedly extracted from his electronic devices, including internet search terms and history. The evidence is irrelevant, constitutes impermissible character or other evidence, and any probative value is outweighed by the danger of unfair prejudice, confusing the issues, and misleading the jury, especially where the prosecution could not establish who entered the information. See e.g. Pa.R.E. 401-404. The court's decision to admit this cumulative evidence also caused undue delay, wasted time, and violated Mr. Ross's state and federal constitutional rights, including PA. CONST. Art. 1 § 9and U. S.CONST. Amends. V, VI, XIV.
5. The court erred in admitting the transcript and audio recording of the complainant's " forensic" interview (Exhibits C7-C7A) since it does not qualify as aprior consistent statement under Pa.R.E.613 (c) do not fit within any exceptions to the rule against hearsay, are unduly prejudicial, and improperly bolster the complainant's testimony. The court's decision to admit this evidence also violated Mr. Ross' state and federal constitutional rights, including PA. CONST. Art. 1 § 9and U.S. CONST. Amends. V, VI, XIV.
6. The court erred in admitting the complainant's notes and drawings (Exhibits C22 A-C) since they do not qualify as prior consistent statements pursuant to Pa.R.E. 613(c), do not fit within any exceptions to the rule against hearsay, are unduly prejudicial, and improperly bolster the complainant's testimony. The court's decision to admit this evidence also violated Mr. Ross' state and federal constitutional rights, including PA. CONST. Art. 1 § 9and U.S. CONST. Amends. V, VI, XIV.
9 7. The court erred in denying Mr. Ross' request for aprompt complaint jury instruction pursuant to Pa. SSJI (Crim) 4.13A, where the complainant's delayed reporting removes assurances of credibility and is arelevant factor for the jury to consider when determining the believability of the allegations. The court's error also violated Mr. Ross' state and federal constitutional rights, including PA. CONST. Art. 1 § 9and U.S. CONST. Amends. V, VI, XIV.
8. The court imposed an aggregate total sentence (including twenty-eight to sixty-six years' confinement plus eight years' probation) that is manifestly excessive, contrary to fundamental norms underlying the sentencing process, based on impermissible factors, and disproportionate to the allegations. The court failed to supply sufficient reasons in support of the penalty, adequately consider Mr. Ross' background, character, rehabilitative needs, or properly account for individualized sentencing.
9. The sentence imposing Act 29 sexual offender registration is illegal. It violates Mr. Ross' substantive and procedural due process rights under the Pennsylvania Constitution and his procedural due process rights under the United States Constitution. It constitutes adisproportionate criminal penalty and violates the separation of powers doctrine by usurping exclusive judicial adjudicatory and sentencing authority. It contravenes U.S. Const. Amends. V, VI, XIV, and the Pennsylvania Constitution's corresponding protections that require ajury must fiend beyond areasonable doubt every fact necessary to support the imposition of mandatory or enhanced punishment. It should be stayed pending resolution of Commonwealth v. Totsilieri, 232 A.3d 567 (Pa. 2020) (awaiting further appeal to Pennsylvania Supreme Court after recent Chester County decision finding Subchapter H unconstitutional).
II. TRIAL SUMMARY
The record of the jury trial in this matter reveals the Commonwealth presented
aclear, compelling, and succinct case for Appellant's guilt and convictions and the
evidence in the case overwhelmingly supports the conviction. The Commonwealth
presented credible testimony from: the child Victim; Kenan Leigh Aldridge,
Victim's father; Octavia Leigh and Aniah Leigh who were notified by Victim of the
10 would get trouble at, id. at 72; Appellant told her about the body parts and the names i i -- bird penis and dick --, id. at 72-73; the first time something like this happened,
Victim wlked home from school and knocked on Appellant's door to tell him she
was home, and Appellant told her if she did s him afavor she would get some candy, i id. at 73; "he took his clothes off, laid them on the bed and showed me how to suck
his penis" and she doesn't remember whether Appellant gave her candy, id.; one
time Appellant tried to put his penis in her but " but it didn't work" and it was painful
on the inside and the outside, id. at 74-75; during this time she was like adownward
dog and Appellant was on top of her, id. at 75; Appellant had told her to put her
pants and underwear on the floor or she would get in trouble, id.; when it didn't work
Appellant became frustrated and he told her to get dressed and get out, id. at 76;
Appellant told her not to tell anybody and to "keep it as asecret" or she would get
in trouble, id. at 76, 79; Victim was scared and Appellant would do alot of scary
things to her, id. at 80; she tried to tell her mom but Appellant always was around
and she was afraid, id. at 81; she tried to write anote to her mom but she threw it
away, id.; this all stopped after she told her cousin about it when they were playing
truth or dare, id. at 82; the next day she told her aunt and then the police and then
her father, id. at 84-85; Victim recalled they wouldn't allow her mother and
Appellant to pick her up and it sounded like fighting and Victim thought she was
going to get in trouble, id. at 85; when the bad things were happening, Victim would
13 hide in her closet, try to climb out of the window, id. at 86; Victim had drawn a i
family picture including afigure Victim calls her monster friend, an imaginary friend
who would watch her most of the time when she was with Appellant, and Victim
made some notes and the messages in the notes are about Appellant (Commonwealth
exhibits A-C), id. at 94; Victim identified Appellant, id. at 96.
On cross-examination, Victim testified: she would frequently visit her father
and Appellant would not be there, id. at 97-98; after Victim told her cousin, she
learned from her aunt "what he was doing was wrong and that he shouldn't be
touching me that way", id. at 99; Victim's dad also told her the difference between a
good touch and abad touch after she told her cousin, id. at 100; Victim's mom
worked as an Uber driver and at an old person's home but she does not know for how
long, id. at 101-102; Victim did not tell her dad, id. at 103; Victim's mom washed .
her clothes and helped with homework, id. at 104; Victim never did tell her mom
but she tried to tell her, id.; Victim thinks she was living with her mom from second
through fourth grade but does not remember the name of her school in second grade,
id. at 105; Victim does know her school was in Chester, id.; Victim had access to a
phone and her mother's phone number and her father's phone number, id. at 106;
Victim had akey to the house and Appellant's mother had aboyfriend, and she
worked, Appellant worked, and Victim's mother worked, id. at 109; sometimes
Victim would go trips with Appellant's mother, and sometimes the boyfriend of
14 i Appellant`s grandmother and the boyfriend's son would come along on the trips, id.
at 110; Victim and appellant's mother shared abedroom, id.; Victim's dad also lived
with her Aunt Tay, her cousin James, Aunt Teen, Aniyah, Zamire, and Marquain,
id. at 111-112; Zamire and Marquain are her aunts sons, and they are alittle older
than Victim, id. at 112; Victim does not remember the name of her teachers in
second, third, or fourth grade, id. at 114; Victim never told her teachers about the
assaults, id. at 115; Victim does not remember too much from the time before she
was living with her mom full-time, id. at 115-117; Victim remembers before she
lived with Appellant's mother she also lived with her mom, Appellant, and
Appellant's father and stepmother, and th6 baby, id. at 116-117; Appellant's mother
also had another boyfriend, id. at 117; Victim doesn't remember the date or day of
the week when Appellant started doing inappropriate things to her but she thinks he
was wearing awife beater and shorts, id. at 118-119; Victim remembers the first
time happened in her parent's room and thinks it was the summer but doesn't
remember if it ever happened anywhere else or whether the door was open or who
went into the room first or whether the door was locked or whether the windows
were open, id. at 119-120; the bad behavior stopped after Victim asked Appellant if
he could get her something to eat and he said if she was hungry to suck his penis and
she said no and ran out, and this is when it stopped, id. at 121; Victim thinks she told
her cousin around 6months later, id. at 121-123; Victim told her cousin but she
15 didn't mention about Appellant trying to put his penis in her butt, or him trying to
touch her vagina with his fingers, how many times it happened, about making it a
game with rewards, or when it stopped, id. at 124; when Victim did tell her aunt she
didn't say anything about Appellant trying to put his penis in her butt but she did tell
her about Appellant trying to touch her vagina and make agame, id. at 127-128;
Victim said the she doesn't know where or when the drawings were found, but she
remembers drawing them and she put them in her drawer, id. at 128; Victim
remembered talking about moving but not where, id. at 129-130.
3. Testimony ofKeenan Leigh Aldridge
Witness Aldridge testified he is Victim's father and when she was born he was
with her mother Marjorie Welsh, id. at 138.139; Victim's mother and he split when
Victim was one year old and he lived with Victim until she was around 5years old,
id. at 139; Witness was told by his cousin Cynthia Fry about the abuse on March 29,
2020, id. at 141, 161; Victim has lived with him since then, id. at 142-143; Victim
said she didn't tell him because she was afraid " what Iwas going to do", id. at 146;
Victim's mother came to his house yelling to "give me my daughter" and Appellant
was in the car, id. at 146, 172; Victim on numerous occasion would not want to go
back to her mother's house after visiting Aldridge, id. at 149, 153, 155; after Victim
told about what was happening, she seemed down and depressed and wasn't as
playful or chipper, id. at 153; Victim sees atherapist and has supervised visitation
16 with her mother, id. at 154; Appellant had met two boyfriend's of Victim's mother
before he met Mr. Ross, id. at 157; witness Aldridge's aunt lives at the house where
he lives, and his cousin Octavia are her three children also lived there, id. at 159; on
July 30, 2020 Detective Bellis came and Witness Aldrige and Octavia Leigh each
gave astatement which was tape recorded, id. at 160; Detective Bellis afew times
has contacted Witness Aldridge to update him on the case, id. at 161; Victim's
mother and Witness Aldrige had an ongoing child custody case in Philadelphia and
had been to court several times but since the time of the accusation, Victim has lived
with Witness Aldridge, id. at 162-164.
4. Testimony ofAniyah .Leigh
Witness A. Leigh testified she and Victim are close in age, January 25, 2022
Notes of Testimony at p. 10; they were playing agame and she asked Victim what
is her biggest secret, and Victim answered she never told this to anyone because
she was scared to tell and then Victim told her what Appellant did to her, id. at 11,
27; Witness A. Leigh said Victim Appellant put his private part in Victim's mouth
and he said if she told she would get in trouble, id. at 11; Victim told her not to tell
anybody but the next morning witness A. Leigh told her mother Octavia Leigh, id.
at 12; Victim was brought over to the house and she told her mother Octavia Leigh
and Victim was crying, id. at 13; her mom, her grandmother, Victim, and Witness
A. Leigh went to police station, id. at 16, 31; she told even though Victims said not
17 to "because that's the right thing to do", id. at 17; Victim and Victim's dad came to
stay with her for awhile, id. at 20.
On cross-examination, Witness A. Leigh also testified no one discussed what
was going on in the trial, id. at 22; she doesn't exactly remember when Victim told
her, id. at 24, 25; Victim said her mother walked in one time, but he stopped, id. at
27; Victim was afraid to get in trouble by Appellant, id. at 28; Victim said this started
happening when she was 5or 6years old, id. at 31.
S. Testimony of Octavia Leigh
Witness O. Leigh testified in relevant part: on March 29, 2020 her daughter
told her about what Victim said Appellant was doing to her, id. at 36; Witness O.
Leigh called Victim's mom and asked if she could come for Victim and she went to
Chester, id. at 38; Witness O. Leigh identified Appellant, id.; she picked up Victim,
id.; she and Victim's mother did not have any kind of relationship, id. at 39; Witness
O. Leigh was anxious, id. at 39, 40; Witness O. Leigh was able to get Victim tell her
about what Appellant was making her do, id. at 40,41; Victim told Witness O. Leigh
she was afraid to tell about Appellant and she had tried to tell her mother, id. at 42;
Victim said she wrote aletter and gave it to her mom but Appellant snatched it and
ripped it up, id.; Vitim was crying and shaking when she told Witness O. Leigh about
this, id.; Witness O. Leigh called her sister who is aLieutenant for the Philadelphia
Police Department, and then took Victim to the police station, id. at 43; Victim's
18 mother came to the house and was yelling, sand Appellant was in the car, id. at 49.
52; Witness O. Leigh would not allow Victim to leave, id.; Witness O. Leigh
described a raucous situation and Appellant started knocking on the door and
eventually Appellant and Victim's went back out and then Victim's father went
outside, id. at 53, 54; Victim went into therapy, id. at 62; Witness gave recorded
statement to Sergeant Bellis, id. ;
On cross-examination Witness O. Leigh testified: Victim had told her when I she asked Appellant for something to eat, Appellant said he had something for to
chew on, id. at 76; Victim told her Appellant would have his phone out, id.; Victim
said this started when she was around 5and ended when she was around 8, id. at 77 3.
6. Testimony ofBarbara Chaiyachati
Witness testified she is an attending physician at Children's Hospital of
Philadelphia and specializes in child abuse pediatrics, id. at 91; Witness examined
Victim and the findings were normal, id. at 98, 99; Witness explained it is possible
no injury would be visible, id. at 100; Witness stated there are many reasons achild
might not tell right away, id. at 101; Witness stated delayed disclosures are common
in children, id.; Witness stated a normal examination can result even after
penetration of the vagina, id. at 101-107.
'There was considerable discussion on the record during the examination concerning Witness O. Liegh's previous testimony about when the assaults began and when they ended.
19 7. Testimony of Sergeant Kenneth Bellis l Witness Bellis testified he works' for the Delaware County Criminal
Investigation Division, id. at 117; he is the sergeant in charge of the interne crimes
against children unit and forensics lab, id.; he executed a search warrant on
Appellant's home, id. at 120; the search warrant was for electronic devices at the
home and on Appellant including computers, cell phones, id. at 121; Victim's
mother, Appellant, and Appellant's mother were home when the warrant was
executed, id.; Appellant's cell phone was retrieved, id. at 122; Detective Christopher
Tankelewicz examined the phone for its contents, id. at 123; aDell computer was
taken from ahallway closet, id.; Detective Tankelewicz examined the computer for
its contents, id.; another cell phone was found of the .floor of Appellant's bedroom,
id.; this cell phone was examined for content by Detective Tankelewicz, id. at 124;
Witness Bellis testified he documented Appellant's home with photographs and
testified to the photographs and their descriptions, id. at 124-131; Witness Bellis
testified based on what was seen on the phone seized from Appellant, asearch
warrant for google was requested, id. at 131; the gmail account from this phone was
for S1oanKetlerl@gmail.com, and this address was linked to the Dell laptop and the
other phone, id. at 134; Witness Bellis testified concerning additional photographs
and asubpoena for the dropbox account linked to Appellant's phone, id. at 138;
20 witness Bellis took arecorded statement of Victim's father Keenan Aldridge and her
aunt Octavia Leigh, id. at 139.
On cross-examination, witness Bellis testified: concerning the asubpoena for
Drop Box and Google, and the content results of the search, id. at 141-44; several
law enforcement officers were present when the search warrant was executed on
Appellant's residence, id. at 144; alaptop was retrieved form ashelf in the closet, id.
at 144-145; he was not present for the April 4, 2020 Child Advocacy Interview but
he has seen the recording, id. at 145; concerning the law enforcement officers
involved in the preparation of the arrest warrant and search warrants in the case, id.
at 147; concerning his work for the Internet Crimes against Children task force, id.
at 148; no evidence of child pornography was found on Appellant's devices but he
cannot comment on whether the websites on the devices depicted child pornography,
id. at 149; many of the internet websites indicated " daddy/daughter, daughter, stuff
like that, but Idon't know what the actual video depicts", id. at 150; nothing
affirmatively suggests the links lead to child pornography and ageneral back and
forth about pornography searches, id. at 150-153; about his testimony at the May 20,
2020 preliminary hearing, id. at 154; when the search warrant was executed, law
enforcement only seized Appellant's devices, id. at 157; he tried to speak with
Victim's mother Marjorie Welsh but she wasn't cooperative, id. at 159-161; he was
21 aware there was custody litigation, id. at 166; he doesn't remember details
concerning whether disturbing notes being left or found in the house, id. at 167.
On re- cross, Witness Bellis testified: there was evidence of deletions on
Appellant's electronic devices, id. at 168; he documented in Excel spreadsheets the
websites visited and the searches, id. at 169; he was involved with the execution of
the warrant at Appellant's home and he found the corroborating letters, id. at 172; he
cannot comment on when the deletions occurred, id. at 174.
8. Testimony of Christopher Tankelewicz
Witness Tankelewicz was accepted as an expert in digital forensics and
testified: he was involved in the execution of the search warrant at Appellant's home,
examined the seized electronic devices, and made areport, id. at 186; he analyzed
the Samsung phone, laptop, ANS cell phone found in the bedroom, and other items,
id. at 187-190; the first 3devices contained evidentiary value concerning this case,
id. at 189-190; concerning the examination of and recovery of evidence from the
devices, id. at 190-195; to the websites visited including but definitely not limited to
"my daughters suck my dick in the mall bathroom Xvideos.com" visited on
1/2/2020, " feeding my daughter Xvideos" visited on 1/8/2020, "my daughter riding
my on crotch cream pie tight pussy Xvideos.com" visited on 1/8/2020, "teen step-
daughter can be family fucked by step-dad whenever he wants after mom cheats"
visited on 1/11/2020, " daughter asked to suck my dick" visited on 1/20/2020, "my
22 daughter asked if she could taste the cum that made her" and " my daughter blowing I me so proud of her" visited on 1/21/2020, id. at 196-210, 221-223; there were on
March 31, 2020 several Google searches including but not limited to "Is there jail
time for sexual abuse on achild", "where do Ifind the trash on my phone", if accused
of child abuse and the claims are found unsubstantiated what happen", " does child
abuse have to be proven", id. at 214-216; everything he testified to was within a
reasonable degree of technical and scientific certainty at January 27, 2022 Notes of
Testimony at p. 6.
On cross-examination Witness Tankelewicz testified: he did not find any child
pornography in the searches, id. at 8; to searches made before and after the report to
police and Appellant's arrest, id. at 9-13; the user accounts are on each of Appellant's
searched electronic devices, id. at 15; nothing connected Appellant to the user
account, id.; there were over 71,000 images found on the Samsung phone, and more
than 1,800 could not be viewed but they were moved from the phone to the Google
icloud account, id. at 16-17; nothing illegal was found, id. at 18; there were pictures
of Appellant and Victim, id. at 19-23; he tagged 373 websites but there were more
than 14,000 items of web history on the phone, id. at 23; the web history is connected
to whoever possessed the phone at the time of searches, id. at 24; the laptop had not
been used since 2013, id. at 26; there were images on the ANS phone moved to the
23 accused of committing an offense and she has never testified on behalf of someone
who was accused, id. at 57-58.
B. Appellant did not present any witnesses.
III. DISCUSSION
A. This court's determination the prosecution established aprima, facie case against Appellant is correct.
Appellant contends this court erred and misapplied controlling law of the
Pennsylvania Supreme Court in Commonwealth v. McClelland, 233 A.3d 717 (Pa.
2020) when it concluded the prosecution established aprima facie case to hold
Appellant for trial, even though at the preliminary stage the prosecution never
presented the complainant as a witness and relied solely upon hearsay' The
evidentiary sufficiency of the Commonwealth's prima facie case for acharged crime
is aquestion of law and the standard of review is de novo and the scope of review is
plenary. Commonwealth v. Wroten, 257 A.3d 734 (Pa. Super. 2021).
In McClelland the Supreme Court of Pennsylvania was clear when it
determined hearsay evidence alone was insufficient to establish prima facie case at
'Appellant raised this issue several times before trial in motions to quash and petitions for habeas corpus. On October 5, 2020 this court denied Appellant's motion, and Appellant filed aPetition for Specialized Review in Superior Court. When the Petition was denied in Superior Court, Appellant filed aPetition for Permission to Appeal in Supreme Court, which also was denied. And on January 5, 2022 Appellant filed another motion to quash, denied on January 20, 2022 by this court.
25 preliminary hearing. The Court reiterated the primary reason for the preliminary
hearing is to protect an individual's right against unlawful arrest and detention.
Importantly, the court noted the preliminary hearing seeks to prevent aperson from
being imprisoned or required to enter bail for acrime which was never committed,
or for a crime with which there is no evidence of his connection. The Court
recognized their precedents make clear the :full panoply of trial rights do not apply
at apreliminary hearing, but the hearing is nevertheless a critical stage of the
proceedings, and is intended under Pa.R.Crim.P. 542 to be more than a mere
formality. Due process clearly attaches, but due process is a flexible concept,
incapable of precise definition. In McClelland's preliminary hearing, the
Commonwealth relied exclusively and only on evidence the Commonwealth could
not present at trial.
In Appellant's case, the preliminary hearing occurred on May 28, 2020, before
the Supreme Court's McClelland decision was issued, and at that hearing the
Commonwealth's prima facie case against Appellant was determined sufficient to
hold the charges for trial. On July 22, 2020 in response to the Supreme Court's July
21, 2020 McClelland decision Appellant filed an " Omnibus Pretrial Motion" and
included a Motion to Quash/Petition for Habeas Corpus claiming the
Commonwealth relying on only hearsay did not present asufficient primafacie case
at the preliminary hearing, and this violated Appellant's due process rights under the
26 federal and state constitutions, and right to -cross-examine. On August 7, 2020 the
Commonwealth filed a " Motion in Limine to Introduce Out of Court Statements of
the Complainant".
On August 25, 2020 this court held ahearing on inter alia both the Motion to
quash and the Motion in limine. August 25,'2020 Notes of Testimony generally. On
October 5, 2020 this court denied Appellant's Motion to Quash and granted the
Commonwealth's Motion in Limine to Introduce Out of Court Statements of the
Complainants. The issue was raised by Appellant immediately following
McClelland, and this court determined in the interests ofjustice and fairness, and for
judicial economy, the Commonwealth should be afforded the opportunity to
supplement the record using legally competent and admissible evidence, and this
evidence was presented to this court in the form of notes and pictures and arecording
of the forensic interview of the child Victim, admissible under the Tender Years
Statute and an exception to rule against hearsay. Exceptions to the rule against
hearsay are not excluded by the rule against hearsay and constitute admissible
evidence, and this court ultimately concluded aprima facie case was established.
Not content to take no for an answer, on October 30, 2020 Appellant filed an
"Application for Amendment of Interlocutory Order" from the order denying the
motion to quash to include language rendering the order interlocutory. Due to
unforeseen circumstances relating to complications arising from the COVID 19
27 pandemic, this court did not rule on the motion' and the motion was deemed denied
by operation of law. On December 18, 2020 Appellant filed aPetition for Permission
to Appeal in Superior Court 142 EDM 2020 which was denied on January 5, 2021.
Then on January 15, 2021 Appellant fled' aPetition for Allowance of Appeal to
Pennsylvania Supreme Court 26 MAL 2021 which was denied on December 15,
2021. An allegation concerning charges not fully proved at apreliminary hearing I does not establish exceptional circumstances justifying immediate appellate review
of the denial of adefendant's pretrial notion to quash/petition for habeas corpus as
such a claim is subterfuge on the sufficiency of the evidence, and this type of
assertion does not come within the ambit of the exceptional circumstance criterion.
Commonwealth v. Burkett, 507 A.2d 1266 (Pa. Super. 1986).
Still not taking no for an answer on August 31, 2021 Appellant filed another
Petition for Writ of Habeas Corpus. On September 29, 2021 the motion and petition
were denied. On January 5, 2022 Appellant filed another Petition for Writ of Habeas
Corpus following the Superior Court January 3, 2022 decision in Commonwealth v.
Harris, 269 A.3d 534 (Pa. Super. 2022). On January 20, 2022 this court, finding
Harris inapplicable to the present case because the evidence presented by the
Commonwealth was admissible, denied the petition.
'If this court had ruled on the motion, the motion would have been denied.
28 Contrary to Appellant's claim, this court did not commit error and misapply
controlling law of the Pennsylvania Supreme Court in Commonwealth v.
McClelland, 233 A.3d 717 (Pa. 2020) when it concluded the prosecution established
aprimafacie case to hold Appellant for trial. Appellant also argues at the preliminary
stage the prosecution never presented the complainant as awitness and relied solely
upon hearsay.
The facts in Appellant's case are different than McClelland, and the
recognized fault in McClelland, i. e., the Commonwealth used the testimony of astate
trooper concerning "what he heard during child victim's interview with child
specialist to establish prima facie case at preliminary hearing to bind over defendant
for trial and Commonwealth relied solely and exclusively on evidence that would be
inadmissible at trial", was cured by this Court's order granting the Tender Years'
motion and permitting, as recognized exceptions to the hearsay rule, evidence of the
child Victim's statements to the forensic interviewer and the Victim's pictures and
notes. Appellant's arrest and detention were not unlawful and there was evidence of
Appellant's connection to the crimes.
Appellant's interpretation of and argument concerning McClelland is incorrect
and has been exhausted by the copious proceedings in this case, and Appellant's
claim should be quashed.
29 B. The jury selection process was fair and the jury was fair.
Appellant contends the " court erred in denying Mr. Ross' motion to strike for
cause prospective Juror # 42, where the panelist was related to the victim of asimilar
crime and could not commit to being fair". Appellant's September 1, 2022 Statement
of Matters Complained of on Appeal. Additionally, Appellant argues the "trial
court's refusal to remove for cause aprospective juror who could not be impartial
prejudiced Mr. Ross, since he was forced to use apreemptory challenge to eliminate
the unsuitable panelist and exhausted his peremptory strikes in the process". Id.
Appellant concludes the " error resulted in violations of Mr. Ross' rights to due
process and afair trial by an impartial jury, as guaranteed by the state and federal
constitutions, including PA. CONST. Art. 1 § 9 and U.S. CONST. Amends. V, VI,
XIV". Id.
Appellant is wrong in his characterization of the jury selection process as it
pertains to Juror #42 and his conclusion the court erred in not granting Appellant's
motion to strike resulting in violations of Appellant's rights to due process and afair
trial under the U.S. and Pennsylvania constitutions. When ajuror meets statutory
qualifications the determination whether achallenge for cause should be allowed
rests squarely on the discretion of the trial court and the ruling will not be disturbed
unless the trial court clearly has abused discretion. Commonwealth v. Merrick, 488
A.2d 1 (Pa. Super. 1985). The test for determining whether aprospective juror
30 should be disqualified is whether the juror is willing and able to eliminate the
influence of any scruples and render averdict according the evidence, and this is
answered on an evaluation of the juror's answers to the questions and the juror's
demeanor ... it must be determined whether any biases or prejudices can be set aside
on proper instruction of the court. Commonwealth v. Briggs, 12 A.3d 291 (2011). To
prevail on a claim the trial court erred when it denied a challenge for cause, a
defendant must demonstrate the court's rulings affected the defendant's rights to a
fair and impartial jury, and an incompetent juror was forced upon the defendant. A
complaint is baseless when aparty argues they were compelled to use aperemptory
challenge when their challenge for cause properly is overruled.' The right to an
impartial jury may not even be found to be violated when there is an erroneous denial
of achallenge to ajuror for cause.
The January 24, 2022 Notes of Testimony are clear juror number 42 raised
the issue concerning her ability to be fair and impartial in view of her family
experience of the abuse of her niece at the hands of her ex-brother-in-law. She stated
she,would try to be fair and impartial. 1/24/2020 N.T. at p. 130. When questioned
by the court, as well as the attorneys in the case, the juror did not equivocate in her
answers to the court and clearly stated it was possible she would assess the facts of
6It is error for atrial court to force aparty to use aperemptory challenge on aprospective juror whom the trial court should have excused for cause. .
31 this case on an individual basis. Juror #42 relayed this case might be triggering but
she would hope she would listen to everything that was said but she didn't " want to
say automatically Iwouldn't be more sympathetic'for the victim". Juror #42 agreed
she would hear the testimony of the various parties and then weigh the testimony
and the believability and determine whether the Commonwealth made its case. Juror
#42 stated despite her prior experience she would attempt to separate those issues
from the case and would do her best to be fair and impartial.
Appellant raised achallenge for cause to juror #42. Based on the exchange,
this court concluded Juror #42 could and would follow the court's instructions and
evaluate the facts and evidence in the case, and be afair juror. This court's ruling did
not result in the seating of ajuror who should have been dismissed for cause. The
fact this case is of asensitive nature and the juror's niece was avictim in acase does
not render Juror #42 incompetent to serve, especially when she credibly asserted she
would weigh the evidence and the believability of the testimony. Additionally, even
though Appellant had the opportunity to question Juror #2concerning her particular
biases, Appellant did not probe the nature of the relationship between the juror and
her niece nor whether and what any long term effects of these events had on her.
This court did not restrict the scope of the voir dire of juror #42 and the fact the juror
was related to an individual who was an alleged victim without more is not agrounds
for acause challenge. Admittedly, juror #42 stated it might be somewhat challenging
32 1
but she admitted she would do her best to be fair and impartial and follow the court's
instructions and she definitely did not express afixed or definite opinion concerning
Appellant's guilt or any predisposition concerning the case generally. Juror #42 was
not in this court's view demonstrating she would be incompetent as ajuror. Appellant
doesn't have to like the decision but the motion itself was not based on the law as it
applies to the jury selection process. And the fact Appellant used all his peremptory
strikes is not of consequence when in actuality the denial of the motion to strike was
proper. Additionally, Appellant failed to show any harm or prejudice. Appellant's
right to exercise peremptory challenges was not impaired by this court. This court's
decision to deny Appellant's motion to strike #42 did not constitute error and this
court did not abuse discretion when it denied Appellant's motion to strike for cause
juror #42. The ruling was not in error because Juror#42 could " commit to being fair"
and was a " suitable panelist". This court's denial of Appellant's motion to strike for
cause prospective Juror #42 was proper and did not result in any prejudice;
Appellant's claim should be quashed.
C. The court's decision to deny Appellant's motion in limine admit evidence extracted from Appellant's electronic devices at trial was proper.
On January 24, 2022 Appellant filed "Defendant's Motion in Limine to
Preclude Evidence of Electronic Device Extraction" alleging the Commonwealth
had provided awritten summary and digital analysis of the extractions from the
33 Samsung and ANS phones, adesktop computer, and 3compact discs seized from
Appellant's home during the investigation of this case. The examiner indicated 373
items were identified as important and 11 search terms were found in Google search
history. On January 23, 2023 the Commonwealth sent to Appellant acurriculum
vitae of Detective Christopher Tankelewicz of Delaware Conty Criminal
Investigations Division and a 12 page Forensic Examination report created by
Detective Tankelewicz and 20 pages of spreadsheets associated with the extractions.
Appellant also alleged the Commonwealth had not provided notice of its intent to
call Detective Tankelewicz as an expert during trial. When atrial court's ruling on a
motion in limine is challenged, the standard of review is whether the court committed
abuse odiscretion. Commonwealth v. Stokes, 78 A.3d 644 (Pa. Super. 2013).
1. Discovery
Appellant claims this court erred in denying Mr. Ross' motion in limine and
permitting the prosecution to admit evidence allegedly extracted from Mr. Ross'
electronic devices, " some of which the prosecution did not provide to the defense
until one day prior to trial, since that evidence constitutes mandatory discovery under
Pa.R.Crim.P. 573(B)(1), and its introduction violated Mr. Ross' state and federal
constitutional rights, including PA. CONST. Art. 1 § 9and U. S.CONST. Amends. V,
VI, XIV".
Pa.R.Crim.P. 573(B)(1) provides in relevant part:
34 (B) Disclosure by the Commonwealth.
(1) Mandatory. In all court cases, on request by the defendant, and subject to any protective order which the Commonwealth might obtain under this rule, the Commonwealth shall disclose to the defendant's attorney all of the following requested items or information, provided they are material to the instant case. The Commonwealth shall, when applicable, permit the defendant's attorney to inspect and copy or photograph such items.
(e) any results or reports of scientific tests, expert opinions, and written or recorded reports of polygraph examinations or other physical or mental examinations of the defendant that are within the possession or control of the attorney for the Commonwealth;
Appellant claimed the Commonwealth did not provide notice of its intent to
call or qualify Detective Tankelewicz as an expert witness or advise Appellant
concerning the nature of the expert testimony.
On January 24, 2022 this court held ahearing on AppeIlanfs motion in limine.
During the hearing, Appellant argued he has only been presented several
spreadsheets he had never received before, and he does not know who created them
and they reveal search history results. He also argued this contravenes Pa.R.Crim.P.
573 mandatory disclosure provisions. The Commonwealth responded Appellant was
given all discovery, aphysical extraction of all the devices was provided to counsel
in summer 2021, and an outline concerning the results of the search was provided
and specifically referenced at the preliminary hearing (Commonwealth exhibit C18)
and Detective Tankelewicz is identified in the report as the author, and he is an
35 expert in the field of forensic extractions, and counsel had it. This chain of events
significantly predates trial and serves as adequate notice. The " demonstratives" are
spreadsheets indicating the searches and date they were made. "It's the exact material
taken from the report that was previously provided, as well as the physical
extraction" and the Commonwealth is under no obligation to provide its
demonstratives in advance of trial and we did it as acourtesy. Id. at 9.
Additionally, prior to the hearing and during the hearing, the Court provided
an opportunity to Appellant to continue the trial if Appellant requested, and
Appellant declined. This court having read the motions and listened to argument,
agreed with the Commonwealth the Appellant had adequate notice and denied the
motion in limine concerning discovery. This court did not err or abuse discretion
when it denied Appellant's motion in limine.
2) Relevance
Appellant claims the court erred in denying Appellant's motion in limine and
permitting the prosecution to introduce evidence allegedly extracted from his
electronic devices, including internet search terms and history. Appellant also
contends the evidence is irrelevant, constitutes impermissible character or other
evidence, and any probative value is outweighed by the danger of unfair prejudice,
confusing the issues, and misleading the jury, especially where the prosecution could
not establish who entered the information. See e.g. Pa.R.E. 401-404. "The court's
36 decision to admit this cumulative evidence also caused undue delay, wasted time,
and violated Mr. Ross's state and federal constitutional rights, including PA. CONST.
Art. 1 § 9and U.S. CONST. Amends. V, VI, XIV".
The first question to consider is whether the evidence sought to be excluded
is relevant, and whether the probative value of the evidence outweighs any unfair
prejudice. If it is determined the evidence was admitted in error the question
becomes whether the error is harmless, i.e., is the admitted evidence unfairly
prejudicial. In order to constitute reversible error, and evidentiary ruling must not
only be erroneous, but also unfairly prejudicial to the complaining party.
Commonwealth v. Robinson, 721 A.2d 344 (Pa. 1998), cert. denied, 528 U.S. (2000).
The rules governing whether evidence is relevant are set forth in the
Pennsylvania Rules of Evidence. Pa.R.E. 401 provides evidence is relevant i£
(a) it has any tendency to make afact more or less probable than it would be without evidence; and
(b) the fact is of consequence in determining the action.
The " Official Commentary" to Pa.R.E. 401 provides in relevant part: whether
evidence has a tendency to make a given fact more or less probable is to be
determined by the court in the light of reason, experience, scientific principles and
the other testimony offered in the case.
Pa.R.E. 402 ( General Admissibility of Relevant Evidence) provides:
Allrelevant evidence is admissible, except as otherwise provided by law. Evidence
37 that is not relevant is not admissible. The " Official Commentary" to Pa.R.E. 402
provides in relevant part: Relevant evidence may be excluded by operation of law,
by statute, by these rules, by other rules promulgated by the Supreme Court or by
rules of evidence created by case law.
Pa.R.E. 403 (Exclusion of Relevant Evidence on Grounds of Prejudice,
Confusion, Waste of Time, or other Reasons" provides in relevant part: The court
may exclude relevant evidence if its probative value is outweighed by adanger of
one or more of the following: unfair prejudice ... The rule defines " unfair prejudice"
as " atendency to suggest decision on an improper basis or to divert the jury's
attention away from its duty of weighing the evidence impartially". Pa.R.E. 403.
Pa.R.E. 404 (b) Character Evidence; Crimes of Other Acts provides in
relevant part:
(1) Prohibited Uses. Evidence of acrime, wrong, or other act is not admissible to prove aperson's character in order to show that in a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. The evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of amistake, 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.
(3) Notice in aCriminal Case. In acriminal case the prosecutor must provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence the prosecutor intends to introduce at trial.
38 Appellant also alleged this evidence and any testimony concerning the search
terms and google search history is not relevant evidence and contravenes Pa.Rs.R.E.
401-401. Appellant argued Appellant's search and viewing of legal adult
pornography has no relevance to this case in which Appellant was charged with
sexually assaulting the child Victim and actually would not assist the jury in
determining whether the allegations are more probable or less probable without the
evidence. Appellant argued the search terms and Google history listed in the
spreadsheets relate to adult pornography and have no relevance to the charges.
Appellant argued they are hearsay and not subject to any exception to the rule against
hearsay, and the Commonwealth is unable to establish who entered the information
of the searches into the devices. Finally Appellant argued the probative value of this
evidence is outweighed by the danger of unfair prejudice and would confuse the jury
and divert its attention away from determining whether the Commonwealth has
presented credible evidence of the crimes. Appellant at the January 24, 2022 hearing
on the motion in limine, and again during trial on January 26, 2022 (see Notes of
Testimony at pp. 175-183) reiterated the same points.
The Commonwealth responded Victim in the forensic interview stated
Appellant would use his phone view pornography during the incidents of abuse and
she could hear moaning from the device, and this corroborates her testimony.
January 24, 2022 Notes of Testimony at p. 9. Additionally, Commonwealth argued
39 the defendant's videos and fantasies are related to child rape and although the actors
in the video may be adults the intent behind it is not changed: the videos are daddy
daughter rape scenarios, daughter giving blow jobs, etc. The Commonwealth argued
Appellant was supposed to be acting as astep-father to Victim, and he watched these
videos at the same time the abusive acts were occurring; evidence can be detrimental
without being unfairly prejudicial, and it does not need to be sanitized; this evidence
is relevant and corroborates Victim's testimony, and it goes to Appellant's motive
and intent, scheme and desire. The Commonwealth pointed out the fact the
Commonwealth was and is intending to use this evidence is not asecret, and it has
been discussed at several previous hearings including all the bail hearings. Id. at 11.
The trial court has broad discretion with regard to the admissibility of
evidence, and it is not required to exclude all evidence that may be prejudicial or
detrimental to Appellant. The standard to be considered by the court is unfairly
prejudial. Appellant does not have to like the fact the court made adecision against
him. The court did not abuse discretion by denying Appellant's motion and making
the determination the Commonwealth could introduce evidence of the electronic
device extraction and the results of the extraction, and Appellant did not suffer unfair
prejudice as aresult of the trial court's decision. Although the testimony/evidence
may have been detrimental to Appellant, even prejudicial, it had probative value and
was not so unfairly prejudicial to warrant exclusion. Additionally, prior to the
40 hearing and during the hearing, the Court provided an opportunity to Appellant to
continue the trial if Appellant requested, and Appellant declined. This court having
read the motions and listened to argument, agreed with the Commonwealth and
denied the motion in limine.
This court did not commit any error, and even if it did, the error is harmless:
no unfair prejudice resulted to Appellant. Appellant's claim should be quashed.
D. The court's decision to admit the transcript and audio recording of the Victim's forensic interview and Victim's notes and drawings was proper.
Appellant claims the court erred in admitting the " transcript and audio
recording of the complainant's " forensic" interview (Exhibits C7-C7A)" and "notes
and drawings (Exhibits C22 A-C)" " since they do not qualify as aprior consistent
statement under Pa.R.E.613(c) do not fit within any exceptions to the rule against
hearsay, are unduly prejudicial, and improperly bolster the complainant's testimony.
The court's decision to admit this evidence also violated Mr. Ross' state and federal
constitutional rights, including PA. CONST. Art. 1 § 9and U. S.CONST. Amends. V,
VI, XIV", Although Appellant timely objected to these items, Appellant is wrong:
these items are admissible as an exception to the rule against hearsay under the
Tender Years Act.
41 An appellate court generally reviews a trial court's decisions concerning
admissibility of evidence for an abuse of discretion standard. Even if it is deemed
not proper, the error is harmless.
Pa.R.E. 613(c) concerning witness's prior consistent statement to rehabilitate
provides:
Evidence of a witness's prior consistent statement is admissible to rehabilitated the witness's credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of:
(1) fabrication, bias, improper influence or motive, or faulty memory and the statement was before that which has been charged existed or arose; or
(2) having made aprior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness's denial or explanation.
Admission of achild's out-of-court statement is admissible under the Tender
Years' Act, 42 Pa.C.S. § 5985.1 which provides for the admissibility of such evidence
as an exception to the rule against hearsay when certain conditions are satisfied. The
statute provides in relevant part:
General rule. An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing physical abuse, indecent contact or any of the offenses enumerated in Pa.C.S. Ch. 31 (relating to sexual offenses) performed with or on the child by another, not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
42 (1) the 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
(2) the child either;
(i) testifies at the proceeding; or
(ii) is unvailable as awitness.
42 Pa.C.S. § 5985.1.
The law recognizes the fragile nature of young victims of sexual abuse. In
evaluating whether the statements are reliable, the court must consider inter alia the
spontaneity and consistent repetition, mental state of person who made the
statement, terminology, lack of motive to fabricate, suggestive interrogation.
Commonwealth v. Hanawalt, 615 A.2d 432 (Pa. 1992), Commonwealth v. Bean, 677
A.2d 842 (Pa. Super. 1996).
On November 8, 2021 this court held aTender Years Hearing. See November
8, 2021 Notes of Testimony generally. In the present case, this court weighed these
considerations determined the out of court statements, i. e., statements made by
Victim to her cousin Aniyah Leigh and her aunt Octavia Leigh, the video and
transcript and notes and drawings, were admissible at trial. Additionally, in this case
Victim was available to testify, and did testify at trial, and was subject to cross-
examination. This court determined the evidence 1) was admissible under the Tender
Years statute as an exception to the rule against hearsay and 2) did not violate
43 Appellant's constitutional rights. Crawford v. Washington, 541 U.S. 36 (2004). On
November 17, 2021 this court entered an order granting the Commonwealth's
Motion in limine to Introduce Out-of-Court Statements of the Complainant including
the transcript and audio recording of the complainant's forensic interview with
Crystal Gray from the Children's Advocacy Center and notes and drawings. In view
of the court's considerations concerning the admissibility of these items and the
abuse of discretion standard of review in this case, this court's decision to admit these
items was proper, and even if Superior Court deems the admission not proper, the
error is harmless. Appellant's complaint should be quashed.
E. This court did not commit error when it denied Appellant's request for the prompt complaint jury instruction.
Appellant complains this " court erred in denying Mr. Ross' request for a
prompt complaint jury instruction pursuant to Pa. SSJI (Grim) 4.13A, where the
complainant's delayed reporting removes assurances of credibility and is arelevant
factor for the jury to consider when determining the believability of the allegations.
The court's error also violated Mr. Ross' state and federal constitutional rights,
including PA. CONST. Art. 1 § 9and U. S.CONST. Amends. V, VI, XIV. Standard of
review is abuse of discretion".
Commonwealth v. Spoke, 580 A.2d 295 (Pa. 1990) addresses whether acourt
is required to instruct a jury for failing to disclose an alleged assault until
significantly later than the time of the assault(s). In Snoke, the issue specifically
44 concerned afive-year-old victim's failure to disclose the alleged assault upon her by
her father until approximately 5 months after the event. The premise of the
contention is the delay in disclosure is of such significance necessitating aspecific
instruction on the lack of aprompt complaint. Under common law the promptness
of a complaint or the "hue and cry" was considered an element for the jury to
consider when weighing the truthfulness of acomplainant. The principle on which
this was based is the victim of aviolent assault would be expected to complain of
the assault at the first safe opportunity, and if acomplaint promptly is made then it
is less likely the victim has had time to fabricate the story and the story is credible.
When acomplaint is delayed substantially without any reasonable explanation, an
inference can be drawn regarding the credibility of that complaint and against
whether the incident in fact occurred. As time progressed, the court recognized
consideration should be given to factors inherent in cases involving minor victims
which may explain adelay without unfavorably reflecting on the minor witnesses'
credibility. The Snoke court stated when "no physical force is used to accomplish
the reprehensible result, achild victim would have no reason to promptly complain
of the wrong-doing, particularly where the person involved is in aposition of
confidence". When a minor victim is involved, a lack of complaint does not
necessarily justify an inference of fabrication.
45 I
In this case, this court properly denied Appellant's request for an instruction i
concerning the delay in making acomplaint to be given the jury. This case did not
necessitate the specific instruction on delay, and this court did instruct the jury
thoroughly upon the general subject of credibility in accordance with the suggested
instruction for witness credibility, and these instructions provided the jury with he
factors properly considered in ascertaining witness credibility and under the facts of
this case this was sufficient to permit the jury to ascertain the truthfulness of the
testimony offered by the minor witness as well as of others who testified in this trial.
Victim was younger than 10 years, had made several attempts to notify her mother,
attempts which were thwarted by defendant, made drawings and notes.
This court did not abuse discretion when it denied Appellant's request to have
aprompt complaint instruction for Victim's delay in making acomplaint. Appellant's
F. This court did not manifestly abuse discretion when it imposed judgment of sentence and the sentence is not manifestly excessive.
Appellant claims the court imposed an aggregate total sentence (including
twenty-eight to sixty-six years' confinement plus eight years' probation) that is
manifestly excessive, contrary to fundamental norms underlying the sentencing
process, based on impermissible factors, and disproportionate to the allegations. The
court failed to supply sufficient reasons in support of the penalty, adequately
46 consider Mr. Ross' background, character, rehabilitative needs, or properly account
for individualized sentencing.
The scope of review when considering a claim the sentence imposed is
manifestly excessive is an abuse of discretion. In Pennsylvania, imposition of a
proper sentence is amatter vested in the sound discretion of the trial court whose
determination is to be respected unless it constitutes amanifest abuse of discretion.
In deciding the proper disposition of the offender, the sentencing court must not
overlook pertinent facts, disregard the force of the evidence, commit an error of law,
or inflict punishment which exceeds the statutory maximum. The sentencing court
must accord weight to the character of the defendant and the particular circumstances
of the offense in light of the sentencing guidelines, and then impose asentence
consistent with the protection of the public, the seriousness of the offense, and the
rehabilitative needs of the defendant. A sentence is not excessive as amatter of law
unless the sentence exceeds the statutory maximum or is manifestly excessive so as
to inflict too severe apunishment. A court also has discretion to determine whether
to make asentence concurrent with or consecutive to other sentences being imposed.
The. court even has determined asentence outside the guideline was reasonable in
view of the sentencing court's findings concerning the age of victim (7years), the
defendant was in aposition of trust and responsibility, victim was defendant's
47 granddaughter, and defendant characterized his assaults as accidents.
Commonwealth v. Walls, 926 A.2d 957 ( Pa. 2007).
In the present case, this court's reasons for imposing sentence were neither
improper, impermissible, or unreasonable. The record supports this court's reasons
for the sentence. 42 Pa.C.S. § 9721 requires the court to consider certain factors
when determining sentence. This court has adeep understanding of the facts of this
case and the legal proceedings which have occurred since Appellant's arrest. This
court entertained many pretrial motions, presided over the jury trial, and imposed
sentence.
In preparation for Appellant's sentencing hearing, this court reviewed and
recalled the facts and legal proceedings, including the evidence presented and
admitted during the jury trial, read and reviewed the February 15, 2022 Psychiatric
Evaluation report submitted by Dr. Olu Fakiyesi M.D., the February 17, 2022
Psychosexual Evaluation report submitted by Catherine Surbeck Ph.D., the March
9, 2022 Psychological Evaluation report submitted by Gail Martin, Psy.D., the
March 15, 2022 Presentence Investigation report submitted by Avery Singleton-
Keyes, Presentence Investigator and Jeff Roney Deputy Director, both from
Delaware County Adult Probation and Parole Services, the March 25, 2022
Substance Abuse Evaluation report submitted by Jennifer Ma7.7oni O'Connor, M.S.
Drug and Alcohol Evaluator from the George W. Hill Correctional Facility
48 Department of Diagnostic Services, and read and reviewed the Commonwealth's i May 11, 2022 Sentencing Memorandum and Appellant's May 13, 2022 Sentencing
Memorandum. This court considered the assessment from the Sex Offender
Assessment Board, and noted was not determined to be asexually violent predator.
During the sentencing hearing, this court listened to the attorney for the
Commonwealth concerning the reasons for the sentence recommendation including
the gravity of the offenses involved and the period of time over which the criminal
activities occurred and highlighted Victim's tender age at the time of the offenses.
This court also listened to the statement of Victim and the Commonwealth's
presentation of the sentiments of Victim's aunt who was present in the courtroom
and instrumental in notifying Victim's mother and made areport to police. Id. at. 8.
This court also listened to the comments from Appellant's counsel,
highlighting factors for the court's consideration concerning Appellant's age, lack of
criminal history, no previous arrests, work history and education, mental health
issues and issues with marijuana, good behavior while confined, and " the testimony
we heard at trial was that this was one continuing criminal episode". Id. at 14. This
court also considered Appellant's fervent denial of the charges, and the statement
advanced by Appellant for him " to ever be paroled from astate facility he will have
to make certain admissions as far as the truth of the allegations here. So, that's another factor Ithink that should be considered. If we impose asentence of 37 to 70
years Ithink at that point we're looking at almost ade facto life sentence and there's
very little incentive there for an individual to really take full advantage of any
treatment opportunities, make admissions, things like that. Whereas if we, you know,
if there's, in situations where the court can place alight at the end of the tunnel I
think that the likelihood of an individual being rehabilitated and the unlikelihood of
them reoffending Ithink can truly take place. So, again, that's why Ithink the
concurrent time is appropriate in this case and that's why Ithink that a10 to 20 with
a probationary tail is certainly sufficient to satisfy the interests of the
Commonwealth, as well as Mr. Ross' rehabilitative needs." Id. at 17.
To be clear, this court takes offense at Appellant's implications 1) these many
separate assaults on Victim at the hands of Defendant constitute one continuing
criminal episode and 2) the sentence imposed would be tantamount to ade facto life
sentence in the scenario where Appellant could not make parole if he did not make
"certain admissions as far as the truth of the allegations ", i.e., that he repeatedly over
the course of at least 2 years sexually assaulted a child. Appellant's argument
absolutely is unpersuasive with this court. The law regarding sentencing and parole
is not based on hope; it is, rather, based on the sentencing guidelines and the
sentencing statute for the crimes on which aperson was convicted, and it requires
the sentencing court to consider inter alia the protection of the public and the victim,
50 the impact on the victim, and Appellant's rehabilitative needs. This system is
intended to be punitive, and it actually requires Appellant take responsibility and
accountability for the role he played in the case and the decisions he made. This is
not arun of the mill car theft or drug case and the fact of the absolute victimization
of Victim at the hands of Appellant is not overlooked by this court. Moreover,
speculation does not belong in the law. The sentencing statute requires alot but for
sure aside from aminimum term of confinement it does not require speculation on
the part of the court concerning when adefendant might be paroled. The law also
does not require adefendant be happy with the outcome of his case or the sentence
imposed.
Conforming to 42 Pa.C.S. § 9721 this court considered the sentence for total
confinement of 28-66 years was consistent with 42 Pa.C.S. §9725 and the protection
of the public, the gravity of the offense as it relates to the impact on the life of the
victim and the community, the rehabilitative needs of Appellant. This court
considered the sentencing guidelines and stated these reasons for the sentence
imposed. May 16, 2022 Notes of Testimony at p. 4. The sentence imposed by this
court was within the guidelines, and under the totality of the circumstances and the
facts of record in this case, the sentence was not excessive and it was proportionate
to the allegations. Contrary to Appellant's claim, the punitive aspect of the sentence
is appropriate; the sentence is not manifestly excessive, contrary to fundamental
51 norms underlying the sentencing process, based on impermissible factors, or
disproportionate to the allegations. The court on the record provided sufficient
reasons in support of the penalty, adequately considered Appellant's background,
character, and rehabilitative needs, and properly accounted for individualized
sentencing. There was no abuse of discretion. Appellant's claim is erroneous and is
contrary to the record, and should be quashed.
G. This court's requirement for Appellant's lifetime registration underAct 29 Sexual Offender Registration Notification Act (SORNA) is legal.
Appellant claims the sentence imposing Act 29 sexual offender registration is
illegal. He argues the requirement violates Appellant's substantive and procedural
due process rights under the Pennsylvania Constitution and his procedural due
process rights under the United States Constitution and constitutes adisproportionate
criminal penalty and violates the separation of powers doctrine by usurping
exclusive judicial adjudicatory and sentencing authority. Appellant also alleges this
contravenes U.S. Const. Amends. V, VI, XIV, and the Pennsylvania Constitution's
corresponding protections that require ajury must find beyond areasonable doubt
every fact necessary to support the imposition of mandatory or enhanced
punishment. Finally Appellant urges this court to stay the registration requirement
pending resolution of Commonwealth v. Torsilieri, 232 A.3d 567 (Pa. 2020).
52 Appellant's claim concerning the legality of his sentence is flawed as it applies to
registration under SORNA.
Challenges to the constitutionality of Subchapter H under the Eighth
Amendment of the US Constitution can be raised for the first time on appeal.
Commonwealth v. Thorne, 276 A.3d 1192 (Pa. 2022). Sex offender registration
requirements are characterized as collateral consequences of aconviction and their
imposition does not implicate the legality of sentence. Commonwealth v. Strafford,
194 A.3d 168 (Pa. Super. 2018). A legislative act is presumed constitutional and the
court will only find it unconstitutional if it clearly palpable and plainly violates the
constitution. Commonwealth v. Killinger, 888 A.2d 592 (Pa. 2005). At the present
time, revised Subchapter H's registration provisions have not been declared
unconstitutional. Commonwealth v. Torsieleri, 232 A.3d 567 (Pa. 2020).
Appellant was assessed by the Sexual Offender Assessment Board and on
April 20, 2022the assessment was submitted to the Office of the District Attorney.
Appellant was convicted of more than one crime satisfying the Act 29 statutory
requirement for lifetime registration. Additionally Appellant's registration
requirements in this case are considered aconstitutional, non-punitive, collateral
consequence of his conviction, and his claim presented only as achallenge to the
legality of his sentence fails. Appellant's argument the Pennsylvania Constitution's
protections requiring a jury must find beyond a reasonable doubt every fact
53 necessary to support the imposition of mandatory or enhanced punishment is not
applicable. This court's requirement mandating in this case Appellant's lifetime
registration under SORNA is not illegal, does not violate or contravene any
constitutional rights, and should not be stayed based on the present state of
Pennsylvania law, and Appellant's claim should be dismissed.
IV. CONCLUSION
This court did not commit error or abuse discretion concerning: the
determination the Commonwealth established aprima facie case against Appellant;
the decision not to strike Juror #42 for cause; the denial of Appellant's motion in
limine to prohibit admissibility of the forsensic interview recording and transcript or
the notes and drawings; the denial of Appellant's request for aprompt complaint jury
instruction. Additionally this court conformed to the sentencing statute 42 Pa.C.S.
9721 and did not impose a manifestly excessive sentence. Finally this court vC— N
requiring Appellant's lifetime registration under SORNA did not imposAlgillegkt --
sentence. This appeal should be quashed and judgment of sentence; ; tld cye
affirmed.' a
BY THE COURT: R k
li f
RICHARD M. CAPftLLI, J.
cc: Kelly Wear, Assistant District Attorney, Law and Appeals Unit ( via email) Erica Bellino, Law and Appeals Unit Coordinator (via email) Steven M. Papi, Esquire, Attorney for Defendant (via email)
Related
Cite This Page — Counsel Stack
Com. v. Ross, E., Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-v-ross-e-pasuperct-2023.