NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA
:
v. :
:
:
DAVID A. STONE :
:
Appellant : No. 1029 WDA 2025
Appeal from the Judgment of Sentence Entered March 28, 2025 In the Court of Common Pleas of Westmoreland County Criminal Division at No(s): CP-65-CR-0003830-2022
BEFORE: SULLIVAN, J., NEUMAN, J., and STEVENS, P.J.E.* MEMORANDUM BY NEUMAN, J.: FILED: August 25, 2026 Appellant, David A. Stone, appeals from the aggregate judgment of sentence of 6 to 23 months’ incarceration, imposed after he was convicted of Indecent Assault, 18 Pa.C.S. § 3126(a)(7), Corruption of Minors (“COM”), 18 Pa.C.S. § 6301(a)(1)(i), and Harassment, 18 Pa.C.S. § 2709(a)(1). We affirm.
At trial, the following testimony was presented. In June 2020, N.C., the victim in this case, went camping at Keystone State Park in Westmoreland County with her legal guardians, K.D. and M.D. N.T. Trial, 12/3/25-12/4/25, at 47-49. It was an annual trip N.C.’s family would take to various state parks throughout Pennsylvania to see extended family, including Appellant and his wife, E.S. Id. at 83-84. As part of the June 2020 trip, N.C.’s family, and
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* Former Justice specially assigned to the Superior Court.
Appellant and E.S., had acquired camping sites right next to each other to place their pop-up campers. Id. at 49. At the time, N.C. was 12 years old and Appellant was over the age of 18. Id. at 48, 131. N.C. testified she enjoyed spending time with Appellant and considered him to be fun. Id. at 46. Over the week they were camping, N.C. testified she spent two or three nights in Appellant’s camper. Id. at 50. She would sleep in the bed at one end of the camper while Appellant and E.S. slept in the bed at the other end. Id. at 51.
N.C. testified that on the last night of the trip at around 9:00 or 10:00 p.m., she was lying in her sleeping bag on her bed in Appellant’s camper. Id. at 55-56. E.S. was on the opposite end of the camper in the other bed, playing a game on her tablet. Id. at 56-57. Appellant was sitting on the couch closest to N.C.’s bed watching an adult TV show on his laptop. Id. 57-58, 155-56. N.C. testified that he started rubbing her shoulder with his right hand before he then “inch[ed] down towards … [her] breast, and … touched [her].” Id. at 59. She further indicated Appellant “cupped” and squeezed her breast for approximately one minute. Id. at 59-60. He then used his right hand to grab N.C.’s left wrist, pulling it down toward his penis, at which point she pulled away before making contact, and rolled onto her right side away from him. Id. at 61-62. N.C. testified Appellant whispered in her ear he was sorry and told her not to tell anyone. Id. at 62. She stated she did not report what had happened because she “did not want to tell anyone, and he told [her] not to say anything.” Id. at 63.
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K.D.’s son, E.D., testified that in June 2021, Appellant reached out asking if they could talk. Id. at 111. E.D. stated that during their conversation, Appellant “mentioned … he was watching a TV show … with [N.C.], and … they had fallen asleep, and his wife, [E.S.] … woke him up saying [‘]your hand is on her chest, remove your hand, that is inappropriate[,’]” and that Appellant told E.S., “oh it must have fallen while I was asleep.” Id. at 112. This was the first time E.D. had heard of any allegation involving N.C. Id. E.D. testified he already had plans to see his parents, so when he got to their place the following weekend, he told his mother, K.D., what had happened. Id. at 113. According to E.D., K.D. was shocked by the allegation and appeared to have no prior knowledge of it. Id. He confirmed he did not talk to N.C. until after she had been officially interviewed. Id. at 113-14. On cross-examination, E.D. was asked if E.S. had also been on the phone call he had with Appellant and E.D. confirmed she was, and that it was on speakerphone. Id. at 116.
K.D. testified she was unaware anything inappropriate had occurred between N.C. and Appellant prior to being informed by E.D. of his conversation with Appellant. Id. at 89-90. She testified she is a mandated reporter, so after taking a day and half to collect herself, she reached out to Childline to report the allegation. Id. at 91-92. Children and Youth Services (“CYS”) contacted her that day about setting up an interview with N.C., and K.D. agreed to let them know when N.C. was on her way home from a day out with
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friends. Id. at 92-93. When N.C. spoke with CYS later that day, she shared what had happened. Id. at 95.
After the Commonwealth rested its case, E.S. testified on behalf of her husband, Appellant. E.S. testified that N.C. had asked Appellant to give her a massage because she was sore from canoeing. Id. at 139. She stated N.C. was on her side facing the wall and Appellant fell asleep giving N.C. the massage. Id. at 142, 145. In recalling the conversation with E.D., E.S. indicated they were discussing the camping trip, including how Appellant had fallen asleep, and E.S. was purely speculating on whether Appellant’s hand could have fallen onto N.C.’s breast when N.C. rolled over, as E.S. had not witnessed anything. Id. at 148. On cross-examination, E.S. confirmed that during the phone call, she had been the one speculating and Appellant had not made a comment about what had happened. Id. at 163. After a lengthy sidebar, cross-examination was allowed to determine if E.S. knew what prompted Appellant to reach out to E.D., and why any speculation was occurring regarding Appellant’s touching N.C. on the camping trip, when no report had even been made by N.C. at that point. Id. at 166-78. Pertinent to an issue raised by Appellant herein, E.S. was asked whether the phone conversation with E.D. “also involve[d] allegations of sexual misconduct by … [Appellant] on other family members[,]” to which E.S. answered “no” and then responded affirmatively to the Commonwealth’s question regarding whether “just the issue with [N.C.] at the camping trip” had come up. Id. at 180. On rebuttal, E.D. testified that E.S.’s recollection of the phone call was incorrect
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and that other allegations of sexual misconduct were the reason the phone call occurred. Id. at 186-87.
At the close of Appellant’s trial, the jury convicted him of Indecent Assault and COM, and the trial court found him guilty of Harassment. A presentence investigation report and Sexual Offender Assessment Board (“SOAB”) evaluation were ordered, and on March 28, 2025, he was sentenced to the aggregate term of incarceration set forth supra.1 On April 10, 2025, after the appearance of new counsel, he filed a motion to reinstate his post- sentence motion rights nunc pro tunc, which was granted by the trial court on April 11, 2025.2 On April 15, 2025, he filed a post-sentence motion, and a hearing was scheduled for June 30, 2025. After a hearing, the trial court denied his post-sentence motion on July 16, 2025. On August 13, 2025, Appellant filed a timely notice of appeal, and he and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant states the following five issues for our review:
1. Whether the trial court abused its discretion and committed reversible error when it permitted the Commonwealth to violate its own sequestration rule and Pa.R.E. 615, by
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1 At sentencing, the Commonwealth noted the SOAB evaluation indicated that
Appellant did not meet the criteria for classification as a sexually violent predator. N.T. Sentencing, 3/28/25, at 4. 2 We note Appellant’s jury trial and sentencing were presided over by President
Judge Christopher A. Feliciani. Appellant’s case was then seemingly transferred to Judge Michael J. Stewart II, who reinstated his appeal rights nunc pro tunc, ruled upon his post-sentence motion, and authored the Pa.R.A.P. 1925(a) opinion.
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recalling[,] in its rebuttal case, [E.D.], who remained present in the courtroom after his direct testimony?
2. Whether the trial court abused its discretion and committed reversible error when it permitted the Commonwealth to introduce evidence of other sexual assault allegations by other family members against [Appellant], where such evidence violated Pa.R.E. 404(b) and otherwise denied [him] of his due process right to a fair trial under both the Pennsylvania and United States Constitutions?
3. Whether the trial court committed reversible error by failing to provide any type of cautionary instruction to the jury after it permitted the Commonwealth to introduce testimony about other sexual assault allegations by other family members?
4. Whether the evidence at trial was legally and factually insufficient to establish [Appellant]’s guilt beyond a reasonable doubt on the charges of Indecent Assault and [COM] where there was a lack of evidence to establish any specific intent that any alleged touching was for sexual gratification?
5. Whether a new trial should be granted because the verdict was against the weight of the evidence on both counts?
Appellant’s Brief at 5 (unnecessary capitalization omitted).
Sequestration
In his first issue, Appellant argues “the trial court abused its discretion and committed reversible error when it permitted the Commonwealth to violate the sequestration order by recalling a rebuttal witness, [E.D.], who remained in the courtroom after his direct testimony.” Id. at 13. Appellant contends a new trial is warranted as “the trial court’s sweeping reasoning that rebuttal testimony fell outside the sequestration order and the dictates of [Rule] 615 is unavailing and not the law.” Id. at 18. He maintains that sequestration applies to rebuttal witnesses, as they are not included in the
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four categories of witnesses for whom sequestration is prohibited under Rule 615. Id. Appellant further argues:
[N]owhere did the trial court conduct any inquiry into the relevant facts and circumstances to determine whether the sequestration order was violated and its import. The court did not request, nor did the Commonwealth provide, any proper requisite showing on how this witness’s testimony could impact the sequestration order and the harm it sought to prevent. The trial court failed to consider any of the relevant factors it was required to consider in determining if any sanction was warranted, including the impact on the witness’s testimony and overall impact on the trial.
Id. at 19-20. He also contends that permitting E.D. to violate the sequestration order was incredibly prejudicial because of the repeated reference to other sexual misconduct committed by Appellant, and the likelihood that E.D.’s rebuttal testimony was influenced by E.S.’s testimony. Id. at 20-21.
The Commonwealth argues the trial court properly overruled the objection to E.D.’s testimony because “the alleged violation only occurred after the un-proffered testimony of … Appellant’s sole witness necessitated the rebuttal witness.” Commonwealth’s Brief at 8. The Commonwealth explains that during a lunchtime hearing, Appellant proffered that E.S. would testify regarding the night of the alleged offenses; however, the proffer did not include any mention that E.S. would testify about the phone call with E.D. Commonwealth’s Brief at 7; N.T. Trial at 121. Based on the proffer, the Commonwealth did not anticipate needing a rebuttal witness, and permitted E.D. to remain in the courtroom during E.S.’s testimony. Commonwealth’s
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Brief at 7-8. Therefore, the Commonwealth contends Appellant’s insufficient proffer regarding E.S.’s testimony caused the error he now claims occurred.
When it comes to the sequestration of witnesses, our Supreme Court has explained:
In nearly every criminal case, one side or the other would like to have some or all of the witnesses of his opponent sequestered.
The lack of adequate room space, the long delays which would inevitably be caused by sequestration and other practical considerations, make sequestration of witnesses ordinarily impractical or inadvisable, except in unusual circumstances. For the foregoing reasons the question of sequestration of witnesses is left largely to the discretion of the trial [j]udge and his decision thereon will be reversed only for a clear abuse of discretion.
Commonwealth v. Kravitz, 161 A.2d 861, 870 (Pa. 1960), cert. denied, 365 U.S. 846 (1961) (footnote omitted). “Moreover, an appellant must demonstrate that he or she was actually prejudiced by a trial judge’s sequestration order before any relief[ ]may be warranted.” Commonwealth v. Stevenson, 894 A.2d 759, 767 (Pa. Super. 2006) (citations and quotation marks omitted), overruled on other grounds by Commonwealth v. Hicks, 208 A.3d 916 (Pa. 2019).
Since the question of whether to sequester witnesses is initially one within the discretion of the trial court, Commonwealth v.
Yount, … 314 A.2d 242 ([Pa. ]1974), [a] fortiori the scope of any order granting sequestration is also within the court’s discretion and its decision to limit the order to testimony received in the cases-in-chief will not be held reversible error absent a clear abuse of discretion.
Commonwealth v. Martin, 388 A.2d 1361, 1365 (Pa. 1978).
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Initially, we note that Appellant fails to point to where in the record he requested the sequestration of any witnesses, and/or where the trial court granted that request. In fact, the only mention of sequestration prior to trial came from the Commonwealth, when the prosecutor stated, “I know that [defense counsel] hasn’t asked for it, [but] I sequestered the witnesses. They are outside the courtroom; so that’s taken care of it he requests that.” N.T. Trial at 12. However, as the Commonwealth concedes the trial court ordered sequestration, we will accept that to be true. See Commonwealth’s Brief at 4.
Nevertheless, no sequestration error occurred. When Appellant rested his case, the trial court inquired into whether the Commonwealth had any rebuttal witnesses, and the Commonwealth indicated it was calling E.D. back to the stand. The following exchange then took place:
[The Commonwealth]: [E.D.], since you’ve testified this morning[,] you have been in the courtroom when other testimony has been presented?
[E.D.]: Yes.
[Defense Counsel]: Your Honor, with that, I am going to object [to] him [being] recalled as a witness. At the beginning of this trial, he was a sequestered witness and [was] sequestered out of the courtroom.
The Court: Right.
[Defense Counsel]: If he’s been present in the courtroom since the sequestration order and him [being] directed to leave the courtroom, he’s been able to observe and see the trial and [that is] precisely why we would sequester witnesses to begin with.
The Court: He is. But he’s already testified, and you have rested, and this is rebuttal testimony; so[,] he would have been permitted
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to remain in the courtroom just as any other witness who had already testified. So[,] the objection is overruled.
N.T. Trial at 185-86. Here, the record reflects that the court considered the scope of its sequestration order as limited to the witnesses’ initial testimony during the parties’ cases-in-chief and, therefore, it concluded E.D.’s remaining in the courtroom after his primary testimony, and then testifying in rebuttal, did not violate the sequestration order it had issued.3 Moreover, unlike the Commonwealth, Appellant was aware of (yet did not reveal during his offer of proof) the intended scope of E.S.’s testimony and could have presumed it might lead to the Commonwealth’s seeking rebuttal testimony by E.D. He was also presumably aware of E.D.’s presence in the courtroom after the court’s lunch break, but he made no request for E.D. to leave the courtroom prior to E.S.’s testimony. Thus, Appellant cannot now complain that E.D. was not properly sequestered. Additionally, Appellant has not established he suffered any prejudice as a result of the trial court’s decision. Given the purpose of rebuttal testimony — i.e., to contradict the
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3 To the extent Appellant argues rebuttal witnesses are subject to sequestration based on the dictates of Rule 615, we conclude his argument is meritless. Although Rule 615 sets forth categories of individuals the courts are prohibited from sequestering, it does not require the court to grant sequestration, stating that “[a]t a party’s request the court may order witnesses sequestered…. Or the court may do so on its own.” Pa.R.E. 615 (emphasis added); cf. Fed.R.Evid. 615 (stating, “[a]t a party’s request, the court must order witnesses excluded”) (emphasis added). As set forth supra, the trial court’s determination regarding sequestration is reviewed for an abuse of discretion.
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testimony of another witness — E.D. would have needed to be informed what E.S.’s testimony was, even if he had not witnessed it himself.
Given the foregoing, we cannot say the trial court abused its discretion in limiting its sequestration order to testimony in the parties’ cases-in-chief, or in overruling Appellant’s objection to E.D.’s testifying in rebuttal. See Commonwealth v. Bellacchio, 442 A.2d 1147, 1152 (Pa. Super. 1982) (holding the trial court did not abuse its discretion by permitting a detective who had not been sequestered to testify in rebuttal about inconsistencies in a defense witness’s testimony).4 Admissibility of Evidence In his second issue, Appellant argues the trial court abused its discretion by allowing the Commonwealth to introduce evidence of other sexual assault claims against Appellant in violation of Rule 404(b). See Appellant’s Brief at 23-31.
In reviewing a challenge to the admissibility of evidence, our standard of review is as follows:
Questions concerning the admissibility of evidence are within the sound discretion of the trial court and we will not reverse a trial court’s decision concerning admissibility of evidence absent an abuse of the trial court’s discretion. An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is
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4 To the extent Appellant argues he suffered prejudice due to the content of
E.D.’s rebuttal testimony, namely the mention of other sexual misconduct, we conclude this argument is subsumed by his second issue, which we discuss infra.
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manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record. If in reaching a conclusion the trial court overrides or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error.
Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (citations omitted and formatting altered). Moreover, “evidence of prior bad acts, while generally not admissible to prove bad character or criminal propensity, is admissible when proffered for some other relevant purpose so long as the probative value outweighs the prejudicial effect.” Commonwealth v. Hicks, 156 A.3d 1114, 1125 (Pa. 2017) (citation omitted); see also Pa.R.E. 404(b).
Instantly, the context for the admission of the at-issue evidence regarding Appellant’s prior bad acts can be summarized as follows. During E.D.’s testimony on direct-examination by the Commonwealth, he discussed Appellant’s seeking to contact him and Appellant’s disclosure, during a phone call between the two, that “he was watching a TV show, on either his laptop or iPad, with … [N.C.,] and … they had fallen asleep, and his wife, [E.S.] woke him up saying [‘]your hand is on her chest, remove your hand, that is inappropriate.[’]” N.T. Trial at 112. Then, on cross-examination, defense counsel asked E.D. whether E.S. had also been part of the phone conversation, and E.D. confirmed she had. Id. at 113.
After the Commonwealth rested, defense counsel called E.S. to testify on behalf of her husband. During E.S.’s direct testimony, the following exchange occurred:
[Defense Counsel]: Can you tell us more about maybe what you told [E.D.] about [Appellant’s] being asleep?
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[E.S.]: As far as — he was asleep, he had been massaging [N.C.]’s shoulder. I don’t know what transpired. It was pure speculation.
I never witnessed anything. But it’s — we speculated. It was a hypothesis. Could, … when he was massaging her, … could she [have] roll[ed] over[?] …[C]ould his hand have hit her as it came down when she rolled … over[?] … I don’t know. We don’t know.
It was pure speculation on my part.
[Defense Counsel]: But that’s not what you saw[?]
[E.S.]: No, I did not see that. No. That was pure guesswork, hypothesis.
Id. at 148-49. Based on this testimony, the Commonwealth cross-examined E.S., as follows:
[The Commonwealth]: Now, there’s been some testimony from [E.D.] regarding the fact that … [Appellant] — and you have sort of echoed it to a certain extent — had indicated that maybe he fell asleep and his hand was on [N.C.]’s breast?
[E.S.]: No, my husband never said that.
[The Commonwealth]: Did you say that?
[E.S.]: I speculated, could this have happened[?] … I have no idea. I did not see it. I did not witness it. And it was pure speculation on my part. I brought it up.
***
[The Commonwealth]: … [Y]ou would agree with me [that N.C.]
said nothing about this incident until some period of time after the phone call with [E.D.] Is that incorrect?
[E.S.]: I don’t know when [N.C.] made any allegation.
[The Commonwealth]: So[,] if I was to tell you that the allegation surfaced, or [N.C.] made the allegation and reported it officially to [K.D.] and [CYS], … several days, if not a week[,] after you had a phone conversation with [E.D.], would you have any reason to disagree with that?
[E.S.]: I couldn’t agree or disagree with it because I do not know.
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[The Commonwealth]: So[,] if [N.C.] had never told anybody about … [Appellant]’s hand being on her breast, why is this being raised at this juncture in time?
[E.S.]: I don’t know. I can’t answer that question.
[The Commonwealth]: It was raised, wasn’t it? You guys talked about it on the phone call. You speculated about it, right?
[E.S.]: I speculated it, but it wasn’t raised to — that had not been discussed at all. We were trying to figure out, you know, what could possibly have happened.
***
[The Commonwealth]: The issue with the hand on the breast and your speculation was not raised by [E.D.], it was raised by either you or your husband in that phone conversation, wasn’t it?
[E.S.]: It was raised by me.
[The Commonwealth]: And at this point in time, your testimony is that you never saw anything happen in the camper?
[E.S.]: That’s correct, I didn’t.
[The Commonwealth]: If you never saw anything happen in the camper, was there some desire to discuss an unreported sexual assault with [E.D.]?
[E.S.]: No, that’s not the reason that we talked to [E.D.]
Id. at 163-66.
A lengthy sidebar then occurred where the Commonwealth argued E.S.
was “trying to walk back an allegation that [had not] even been raised yet[,] because they were discussing other allegations involving other family members[,]” and, thus, the Commonwealth should be permitted to explain why there was a discussion regarding an unreported allegation. Id. at 166. The trial court agreed, stating:
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He has to be able to confront her about what made her speculate whenever there had not been any report from the victim in this case. I mean, in a vacuum, there wouldn’t have been a conversation where she just out of nowhere, out of thin air says, well, maybe he fell asleep and his hand fell on her. It just doesn’t make sense. And you called her as a witness. I think at this point, because she’s not answering — … the door has kind of been open[ed].
Id. at 167.
In response, however, defense counsel argued there had not been any additional facts introduced to open the door. Id. at 168-69. The trial court stated:
You called her to establish that she’s the one that brought up this speculative comment about maybe [Appellant] fell asleep and [his] hand fell on her. … His cross is, how would [E.S.] have made that statement without any report having [even] been … made at that point by the victim. And she’s answering just, like, I don’t know. I don’t know. … But she does know because the conversation involved other allegations of sexual misconduct with other female [family] members.
Id. at 169-70. Additional sidebar discussion occurred as follows:
The Court: Why did [Appellant] want to call [E.D.], then?
[Defense Counsel]: I will explain. There was a period after June of 2020 — this is a fairly close family as you can see — the family started ignoring him, not returning his calls for a very long period of time. Finally, [Appellant] said, [E.D.] — this is almost a year later — will you please talk to me. So [E.D.] reached out to him, thereabouts, and that’s when [he] —
The Court: So[, Appellant] didn’t know about anything either at that point? That makes it even worse.
[Defense Counsel]: It makes it odd. But [Appellant is]
speculating, trying to figure out what was going on. That’s why I avoided it.
The Court: Listen, if [Appellant] didn’t know anything about it and the family was just ignoring him and his wife didn’t know anything
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about it and just magically[,] she initiates this speculative theory that maybe he fell asleep, that makes it worse. And I think [the Commonwealth] has a right to confront her about that. I don’t know any way around it.
[The Commonwealth]: I can limit it. That’s the best I can do.
The Court: I don’t know any way around [the Commonwealth’s]
being able to — I mean, [the Commonwealth is] entitled to crossexamine her as to why she would have initiated that theory at that stage. What was it about this conversation[?] Maybe she can say that it was because the family was ignoring [Appellant] and I thought maybe he fell asleep and somebody thought he put his hand on — I mean, it’s just so crazy at this point. I don’t know how you are going to do it. [The Commonwealth] has to be able to ask her something, because, right now, the jury is just left hanging with having no understanding of any of it.
And if neither of them — if it was really just … family ignoring [Appellant] that prompted him to want to speak with [E.D.] as to why is the family ignoring [him] without any other specific information of any allegation of sexual misconduct, and this statement comes up during that phone call, it’s pretty damaging.
And I think the door is open for it. I don’t know how else — I don’t believe we can get around it.
Id. at 171-73. Ultimately, the trial court stated:
I am going to try to limit it, but I think the door is opened for the Commonwealth to be allowed to explain to this jury what prompted that phone call and where that statement came from, [or] what would have prompted that statement.
Id. at 176.
The Commonwealth then continued its cross-examination of E.S. as follows:
[The Commonwealth]: And then, eventually, they had a phone conversation. Are you aware of what prompted that phone conversation? What was the reason for the call … [Appellant]
wanted to have with [E.D.]?
[E.S.]: Yes. He was just trying to find out why his mother was not talking — wouldn’t talk to — my husband[. Appellant] had
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reached out to his mother … by phone and text, and she wasn’t returning [his] calls. So[,] he was reaching out to [E.D.] to see if he could find out what was going on, what the issue was.
[The Commonwealth]: And I understand that. But that wasn’t the phone conversation that occurred…. What transpired was a phone call about whether or not your husband had been touching [N.C.]’s breast. Was there any other reason that phone conversation happened aside from there had been no discussion with the mother[,] or they hadn’t been able to contact the mother? Was there something else in that phone conversation that was discussed?
[E.S.]: We were just talking about the camping — you know, [we]
had been camping — the camping trip. That was —
[The Commonwealth]: Did that phone conversation —
[E.S.]: And I think it happened before June. I’m not a hundred percent sure, but I don’t think it happened in June. I believe it happened in May.
Id. at 178-79. When the Commonwealth began its next question, Appellant objected stating, “I’m objecting at this point, Your Honor, because I believe that we might be getting into an issue that would violate our motion in limine that we had presented earlier.” Id. at 179.5 The trial court overruled the objection and allowed the Commonwealth to proceed as follows:
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5 We note the certified record does not contain a motion in limine filed by Appellant, nor is there any record of the trial court’s granting it. The only mention of the motion in limine is prior to trial when the Commonwealth stated:
[T]here was a motion in limine filed by [Appellant] regarding additional allegations and other incidents and matters. I agree with [defense counsel], I don’t intend to get into that. I’ve talked to the witnesses, and I’ve informed them that we’re not going to go into those additional areas. … I have asked [for defense (Footnote Continued Next Page)
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[The Commonwealth]: Did that conversation also involve allegations of sexual misconduct by … [Appellant] on other family members?
[E.S.]: No.
[The Commonwealth]: That never came up?
[E.S.]: No.
[The Commonwealth]: Just the issue of [N.C.] at the camping trip?
[E.S.]: Yes.
Id. at 180.
Once defense counsel had conducted redirect and rested his case, the Commonwealth called E.D. back to the stand on rebuttal, where the following exchange occurred:
[The Commonwealth]: And there was some testimony by [E.S.]
regarding a phone call that occurred in June of 2021 between yourself, herself, and … [Appellant]. Do you recall that testimony?
[E.D.]: Yes, sir.
[The Commonwealth]: Was her rendition of events correct or incorrect as to what that phone call was about?
[E.D.]: I remember it a different way. I would say that was incorrect.
[The Commonwealth]: And during the testimony, [E.S.] indicated there wasn’t any discussion regarding other allegations of sexual misconduct. Was that a correct statement of fact with regard to that conversation you had with … [Appellant]?
[E.D.]: No, sir.
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counsel]’s indulgence to allow me to lead a little bit to avoid those areas in …questioning [those witnesses].
N.T. Trial at 12.
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***
[The Commonwealth]: And during that hour time frame, was there a discussion between you and … [Appellant] and [E.S.] regarding allegations against … [Appellant] of sexual misconduct [by] other family members?
[E.D.]: Yes. That was the reason for the phone call.
Id. at 186-87. It is these references to sexual misconduct that are now challenged by Appellant.
Initially, we address Appellant’s challenge to E.S.’s testimony, elicited on cross-examination, concerning other allegations of sexual misconduct.
This Court has stated:
One who induces a trial court to let down the bars to a field of inquiry that is not competent or relevant to the issues cannot complain if his adversary is also allowed to avail himself of that opening. The phrase ‘opening the door’… by cross examination involves a waiver. If [a] defendant delves into what would be objectionable testimony on the part of the Commonwealth, then the Commonwealth can probe further into the objectionable area.
Commonwealth v. Stakley, … 365 A.2d 1298, 1299–1300 ([Pa.
Super.] 1976). See also Commonwealth v. Patosky, … 656 A.2d 499, 504 ([Pa. Super.] 1995) … (holding when [a] defendant delves into what would have been objectionable testimony on [the] Commonwealth’s part, [the] Commonwealth can probe into [the] objectionable area); Commonwealth v. Bey, … 439 A.2d 1175, 1178 ([Pa. Super.] 1982) (holding where [a] defendant opens [the] door to what otherwise might be objectionable testimony, [the] Commonwealth may probe further to determine veracity of [the] statement).
Commonwealth v. Lewis, 885 A.2d 51, 54-55 (Pa. Super. 2005). A “litigant opens the door to inadmissible evidence by presenting proof that creates a false impression refuted by the otherwise prohibited
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evidence.” Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa. Super. 2013) (citation omitted).
As set forth supra, the trial court found Appellant opened the door to testimony regarding the purpose behind his and E.S.’s phone call with E.D., and why E.S. was speculating on that call about a yet unreported allegation of sexual assault. It highlighted that Appellant is the one who called E.S. to testify, she was the one who declared she was speculating about how Appellant’s hand could have fallen onto N.C.’s breast, and she was being evasive in her testimony as to why she had speculated. See N.T. Trial at 167- 70. The trial court determined testimony about the actual purpose or content of the call was permissible, even though it delved into prior allegations of sexual abuse by Appellant, because otherwise “the jury [was] just left hanging with having no understanding of any of it.” Id. at 172. Thus, the trial court reasoned “the Commonwealth [had] to be allowed to explain to this jury what prompted that phone call and where that statement came from.” Id. at 176. The trial court instructed the Commonwealth to limit its questioning on the prior allegations and not delve into any details. See id. at 174 (trial court’s instructing the Commonwealth not to get into how the allegations had led to criminal charges); id. at 175 (trial court’s stating “I don’t want to get that far afield”); id. at 176 (trial court’s telling the Commonwealth to “try to limit it without getting into” specifics). The Commonwealth followed the court’s direction in this regard.
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Herein, Appellant maintains he did not open the door to the prior bad acts evidence. He argues “he did not elicit any testimony regarding any other sexual conduct” and “there was no need to bring up any specific reference” when the Commonwealth “could have elicited from the witness that the call was initiated based on some other amorphous basis.” Appellant’s Brief at 30. Appellant claims that “purportedly ‘opening the door[,]’ where [he] did not put his character at issue, [was] not a proper basis to permit this highly prejudicial evidence.” Id. Appellant contends “the subject matter of the other bad act evidence elicited — sexual allegations against a child — are by themselves fundamentally prejudicial[,]” none of the recognized exceptions to Rule 404(b) were present, and the trial court failed to consider whether the probative value of the evidence outweighed its prejudice. Id. at 28-29, 31.
No relief is due. Initially, we agree with the trial court that Appellant opened the door to the testimony regarding the purpose of the phone call and reason for E.S.’s speculation about Appellant’s conduct of touching N.C.’s breast, which had yet to be reported. As set forth supra, Appellant first raised E.S.’s participation in the phone call through his cross-examination of E.D. N.T. Trial at 113. He then called E.S. to the stand and elicited testimony that she speculated about how his hand could have fallen onto N.C.’s breast while he was asleep. Id. at 148-49. When the Commonwealth questioned E.S., she confirmed she was the one that brought up the subject and that it was pure speculation. Id. at 163-64. E.S. was then evasive when the Commonwealth asked why she speculated about an incident that had not been
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reported to anyone. Id. at 165. When pressed by the Commonwealth regarding what actually prompted the phone call with E.D., E.S. testified they were trying to figure out why Appellant’s mother would not return his calls. Id. at 178. When the Commonwealth once again pressed E.S. about how a conversation about Appellant’s mother’s not speaking to him led to a conversation regarding the not-yet-reported allegation involving N.C., E.S. was once again evasive.
Considering this testimony, we conclude Appellant’s witness, E.S., created an impression that her speculation about an allegation of sexual assault involving N.C. was conjured up without any basis. In order to rebut this false impression, the trial court permitted the Commonwealth to inquire whether the conversation with E.D. on the phone call had actually involved other allegations of sexual misconduct, which E.S. explicitly denied. This testimony elicited by the Commonwealth was probative to explain to the jury why E.S. had speculated about a then-unreported allegation. It was a permissible refutation of the impression created by Appellant through his witness. Nypaver, supra. See also Commonwealth v. Kearney, 341 A.3d 774, 780-83 (Pa. Super. 2025) (concluding the trial court’s admission of prior bad acts evidence was not an abuse of discretion where appellant opened the door); Commonwealth v. Powell, 171 A.3d 294, 299-301 (Pa. Super. 2017) (same); Commonwealth v. Lewis, 885 A.2d 51, 54-55 (Pa. Super
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2005) (same).6 E.D.’s testimony was then permissible to refute E.S.’s claim that the call did not involve a discussion of prior allegations of misconduct by Appellant.
Furthermore, the trial court clearly weighed the evidence and determined the probative value of not leaving the jury hanging with testimony that did not make sense outweighed the prejudice that would come from limited questioning about the prior allegations. The Commonwealth complied with the trial court’s direction to minimize the prejudicial impact of this testimony by limiting its questioning to include only a vague reference of “sexual misconduct” which contained no details.7 The evidence in this case “did not seek to inflame the jury’s sensibilities with references to matters other than the legal proposition relevant to the case.” Commonwealth v. Antidormi, 84 A.3d 736, 751 (Pa. Super. 2014). As such, we conclude the
trial court did not abuse its discretion in permitting the Commonwealth to ask
____________________________________________
6 We note that although Appellant argues there is no applicable Rule 404(b)
exception, it is clear the Commonwealth not only sought to admit the evidence in question to rebut the false impression given by E.S., but also “to furnish the context or complete story of the events surrounding a crime.” Commonwealth v. Dillon, 925 A.2d 131, 137 (Pa. 2007) (explaining the res gestae exception to Rule 404(b)). See also Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016) (“An exception to Rule 404(b) exists that permits the admission of evidence where it became part of the history of the case and formed part of the natural development of facts.”). As such, the evidence was also admissible on this basis. 7 Despite Appellant’s contention that the subject matter elicited was fundamentally prejudicial as it involved sexual allegations against a child, we note that the record is devoid of any suggestion by the Commonwealth that the sexual misconduct involved another minor child.
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E.S. or E.D. if the conversation involved other allegations of sexual misconduct and, therefore, no relief is due.
Cautionary Instruction
In his third issue, Appellant argues the trial court abused its discretion by not providing a cautionary instruction to the jury after allowing the references to the prior allegations of sexual abuse discussed supra. See Appellant’s Brief at 31-33. We conclude this issue is waived. Our Supreme Court has made it clear that the “[f]ailure to request a cautionary instruction upon the introduction of evidence constitutes a waiver of a claim of trial court error in failing to issue a cautionary instruction.” Commonwealth v. Bryant, 855 A.2d 726, 739 (Pa. 2004) (citing Commonwealth v. Wallace, 561 A.2d 719 (Pa. 1989) (holding trial counsel’s failure to object when the trial court did not issue cautionary instruction following the introduction of evidence of a defendant’s prior incarceration resulted in waiver of any claim of error based upon the trial court’s failure to give a cautionary instruction); Commonwealth v. Jones, 460 A.2d 739 (Pa. 1983) (finding the issue regarding the lack of a curative instruction waived where defense counsel immediately objected to the prosecutor’s conduct but failed to request mistrial or curative instruction)). Here, at no point after E.S.’s testimony about the allegations of other sexual misconduct by Appellant did Appellant seek a cautionary instruction from the court. In fact, he concedes he did not request a cautionary instruction, but argues that to make such a request would have been “entirely fruitless[,]” as the trial court had previously stated, “I
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don’t like to have to do that.” Appellant’s Reply Brief at 5-6; N.T. Trial at 170. Although the trial court did indicate it preferred not to have to provide cautionary instructions, it also stated, “I can give them a curative instruction if it gets too deep in the weeds[.]” N.T. Trial at 173. Therefore, it would not have been ‘entirely fruitless’ for Appellant to make a request after the at-issue testimony had been elicited. Accordingly, the failure to request a cautionary instruction results in waiver of Appellant’s claim.
Sufficiency of the Evidence In his fourth issue, Appellant argues “the Commonwealth’s evidence at trial was legally insufficient to sustain the convictions [of Indecent Assault and COM] because of a lack of intent that any conduct by [Appellant] was for sexual gratification.” Appellant’s Brief at 37. He contends that,
other than the alleged momentary touching of N.C.’s breast on the outside of [her] clothing, there was no evidence of any other indicia of sexual gratification[,] such as [the] removal of clothing, heavy breathing, an erection, or other observable signs of arousal, or any sexually explicit comments by [Appellant]. There was also no testimony of any sexual arousal by N.C.
Id. Appellant maintains there was also no prior history of inappropriate contact with N.C., the circumstances suggested a lack of sexual gratification, and the testimony of E.D. and E.S. showed a lack of intent. Id. at 37-38.
Again, no relief is due. Preliminarily, we note:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and
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substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence.
Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered.
Finally, the finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.
Commonwealth v. Devine, 26 A.3d 1139, 1145 (Pa. Super. 2011) (citation and brackets omitted). Furthermore, “[t]he uncorroborated testimony of a sexual assault victim, if believed by the trier of fact, is sufficient to convict a defendant.” Commonwealth v. Izurieta, 171 A.3d 803, 807 (Pa. Super. 2017). “[I]ntent can be proven by direct or circumstantial evidence; it may be inferred from acts or conduct or from the attendant circumstances.” Commonwealth v. Griffith, 305 A.3d 573, 577 (Pa. Super. 2023).
Here, Appellant’s offense of Indecent Assault is defined as follows:
(a) Offense defined.--A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:
***
(7) the complainant is less than 13 years of age[.]
18 Pa.C.S. § 3126(a)(7). Indecent contact is defined as “[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing
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or gratifying sexual desire, in any person.” 18 Pa.C.S. § 3101. As noted by Appellant, our Supreme Court has stated that,
whether a part of the body was kissed, stroked, slapped, or poked does not inform whether the body part is intimate, but does speak to whether the touching was for sexual gratification. An example sharpens the point: if someone were to flick a bee off of a woman’s breast, he would have touched what is reasonably considered to be an intimate part of her body, but the manner and purpose — a flicking done to prevent the person from being stung — goes to whether the touching was for sexual gratification.
Commonwealth v. Gamby, 283 A.3d 298, 315 (Pa. 2022).
Here, the Commonwealth’s evidence established N.C. was under the age of 13. N.T. Trial at 48. Further, contrary to Appellant’s contention that a “momentary touching” of N.C.’s breast occurred, N.C. testified he cupped and squeezed her breast for approximately one minute. Id. at 59-60. According to N.C., Appellant then proceeded to grab her wrist, dragging her hand toward his penis, although she pulled away before making contact. Id. at 61-62. Viewing this evidence in the light most favorable to the Commonwealth, we conclude it was sufficient to establish Appellant touched an intimate part of N.C.’s body for the purpose of gratifying his own sexual desires. Therefore, the evidence was sufficient to sustain Appellant’s conviction for Indecent Assault.
Appellant’s offense of COM is defined as follows:
(a) Offense defined.--
(1)(i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age, or who aids, abets, entices or
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encourages any such minor in the commission of any crime, or who knowingly assists or encourages such minor in violating his or her parole or any order of court, commits a misdemeanor of the first degree.
18 Pa.C.S. § 6301(a)(1)(i).
As set forth above, the Commonwealth’s evidence established Appellant, who was over the age of 18, cupped and squeezed the breast of a 12-year- old child, N.C., for approximately one minute, before pulling her hand toward his penis. We conclude this was sufficient evidence to find the Commonwealth proved, beyond a reasonable doubt, every element of COM.
Weight of the Evidence
In his final issue, Appellant argues the guilty verdicts for Indecent Assault and COM were against the weight of the evidence. Appellant’s Brief at 40-42. He asserts that
[t]his entire case rests almost entirely on the testimony of N.C.
and her unbelievable story. By all accounts, prior to this allegation, N.C. had a very good and happy relationship with [Appellant]. He was viewed by her as … “fun…,” she would go on camping trips with [Appellant] and extended family[,] and [she had] often stay[ed] in his camper with him and his wife in the past. [He] was also well-known amongst the family for being proximate, [and] giving massages….
Yet, it was against this normal and loving backdrop that N.C.
claimed [Appellant] sexually assaulted her. Most significantly, according to her, this sexual assault occurred with her guardians sleeping right next door in their camper a few feet away, and with [E.S.] wide-awake and [lying] approximately an arms-length away. It was under these circumstances she claims … [Appellant]
decided to sexually assault her. Finally, it took N.C. over a year to report this incident to anyone.
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Furthermore, [E.S]’s testimony belied N.C.’s account of what transpired that night[,] and [E.S.] denied that any inappropriate sexual touching occurred.
Accordingly, under the circumstances presented here, the evidence was so unreliable that the verdicts were against the weight of the evidence.
Id.
We disagree. Our Supreme Court has explained:
A motion for a new trial alleging that the verdict was against the weight of the evidence is addressed to the discretion of the trial court. An appellate court, therefore, reviews the exercise of discretion, not the underlying question whether the verdict is against the weight of the evidence. The factfinder is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses. The trial court will award a new trial only when the jury’s verdict is so contrary to the evidence as to shock one’s sense of justice. In determining whether this standard has been met, appellate review is limited to whether the trial judge’s discretion was properly exercised, and relief will only be granted where the facts and inferences of record disclose a palpable abuse of discretion. Thus, the trial court’s denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings.
Commonwealth v. Cousar, 928 A.2d 1025, 1035-36 (Pa. 2007). Additionally, this Court has established:
[W]hen a weight challenge “is predicated on the credibility of trial testimony, [appellate] review of the trial court’s decision is extremely limited. Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review.” Commonwealth v. Bowen, 55 A.3d 1254, 1262 (Pa.
Super. 2012). Any conflicts in the evidence or contradictions in testimony are exclusively for the fact-finder to resolve.
Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super.
2012). Finally, we note that, “[b]ecause the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial judge when reviewing a trial
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court’s determination [whether] the verdict is against the weight of the evidence.” Id.
Commonwealth v. Wallace, 244 A.3d 1261, 1276 (Pa. Super. 2021).
Here, in its Rule 1925(a) opinion, the trial court summarized the testimony set forth at trial and then stated:
The jury, as the finder of fact, found the testimony of the victim and the other Commonwealth witnesses to be credible. The jury’s verdict is well supported and not so contrary to the evidence as to shock one’s sense of justice.
See Trial Court Opinion, 10/6/25, at unnumbered 5-7.
The sum and substance of Appellant’s argument is a challenge to the credibility and weight attributed to the testimony and evidence presented at trial. We note the jury was free to believe or not believe the evidence and testimony presented by the Commonwealth. We cannot accept Appellant’s request to substitute our judgment for that of the jury. See Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. Super. 2003) (“The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witness[es]. An appellate court cannot substitute its judgment for that of the finder of fact.”). Accordingly, the trial court did not abuse its discretion in denying Appellant’s post-sentence motion for a new trial based on his challenge to the weight of the evidence.
For these reasons, we conclude Appellant’s claims are waived and/or meritless. As he is not entitled to relief, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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DATE: 08/25/2026