J-A25009-14
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : ANTHONY SULLIVAN, : : Appellant : No. 3003 EDA 2012
Appeal from the Judgment of Sentence September 17, 2012, Court of Common Pleas, Philadelphia County, Criminal Division at No. CP-51-CR-0003098-2010
BEFORE: DONOHUE, WECHT and PLATT*, JJ.
MEMORANDUM BY DONOHUE, J.: FILED NOVEMBER 06, 2014
Anthony Sullivan (“Sullivan”) appeals from the judgment of sentence
entered by the Court of Common Pleas, Philadelphia County, following
convictions of incest, 18 Pa.C.S.A. § 4302(a), and endangering the welfare
of a child as a felony of the third degree, 18 Pa.C.S.A. § 4304(a). For the
reasons that follow, we affirm.
A summary of the relevant facts and procedural history of this case is
as follows. Sullivan is the biological father of 10 children, including V.T., a
daughter. V.T. lived with her mother but would visit Sullivan at his two-
bedroom apartment. In 2004, when V.T. was 14, Sullivan began talking to
her about boys and sex. V.T. was a virgin at the time and Sullivan would
often talk to her about losing her virginity. After a couple of months, V.T.
lost her virginity and Sullivan was the first person she told.
*Retired Senior Judge assigned to the Superior Court. J-A25009-14
Shortly thereafter, V.T.’s mother could no longer care for V.T. because
of a substance abuse problem and an abusive husband. As a result, V.T.
moved in with Sullivan. After V.T. moved in with him, Sullivan became
strict, overprotective, and jealous. He then began to sexually abuse her.
Sullivan started by sucking on V.T.’s breasts and neck, leaving “passion
marks” on her neck. Sullivan would ask V.T. to take her socks off while she
watched TV and begin masturbating and would also masturbate while
watching her shower. Eventually, Sullivan and V.T. began to engage in oral
sex and sexual intercourse. Sexual activity occurred daily. At one point,
Sullivan told V.T. he wanted her to have his baby.
Sullivan used sex as a control mechanism. If V.T. refused to have sex
with him, Sullivan would deny her food and clothing and would ignore her.
Sullivan would also tell V.T. about his sexual activity with three of her sisters
in an attempt to bribe her and would tell her what positions each sister
preferred. Sullivan displayed pictures of V.T.’s sisters in lingerie in the living
room along with naked pictures of other women. On one occasion, while
V.T. was in the kitchen, Sullivan got his camera and told her to take off all of
her clothes. Sullivan told her how to position her body as he took pictures of
her, asking her to point her toes and arch her back. Sullivan also asked her
to take naked pictures of him as well as photograph him as he got an
erection. Sullivan uploaded the pictures to his computer. V.T. viewed naked
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pictures of her sisters on his computer, including pictures of her sisters
laying in Sullivan’s bed naked.
After approximately two years, at the age of 16, V.T. moved back to
her mother’s house. V.T. did not tell her mother or anyone else about the
sexual abuse. In 2009, however, V.T. became concerned about her seven-
and eight-year-old sisters who were living with Sullivan. V.T. contacted the
Department of Human Services (“DHS”) to report Sullivan for sexual abuse.
V.T. initially attempted to report the sexual abuse anonymously. When DHS
told V.T. that she had to disclose her name in order for DHS to act, she
provided her name. DHS assigned a caseworker, Vivian Boyll (“Boyll”), to
work with V.T. and investigate the allegations. After V.T. informed Boyll of
the abuse that occurred, Boyll contacted the police. Detectives from the
Philadelphia Police Department’s Special Victims Unit (“SVU”) contacted V.T.
and interviewed her at the station.
On January 8, 2010, detectives, along with the SWAT team, went to
Sullivan’s apartment to execute a search warrant. The detectives recovered
cameras, DVDs, disk transfer flash adaptors, audio cassettes, wireless USB
adaptors, CDs, a DVD drive, a photo album, VHS tapes, and a computer.
Sullivan was not at the apartment. Approximately five to six hours after
police executed the search warrant, however, Sullivan turned himself in to
the police. Sullivan was arrested and charged with rape, involuntary deviate
sexual intercourse, unlawful contact with a minor, statutory sexual assault,
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sexual assault, incest, endangering the welfare of a child, indecent assault,
and sexual abuse of children.1
Nearly two months after Sullivan was arrested, Simone Brown
(“Brown”), who had been romantically linked to Sullivan at the time of his
arrest, contacted the SVU to inform them that prior to his arrest, Sullivan
asked Brown to take a white iPhone, a black iPhone, and other electronics,
including a laptop from his car, to her house. She also informed them that
while he was held at a correctional facility, Sullivan made several phone calls
to her and directed her, using coded language that referenced the Disney
movie, “Up,” to destroy his laptop and the iPhones. Sullivan also informed
Brown that he had thrown his other laptop computer in the East River in
New York. After examining the two iPhones, Brown discovered several nude
and partially nude photographs of Sullivan’s adult daughters and other
unrelated adults, as well as photographs of a minor girl in a bikini and in a
bra. Disturbed by her findings, Brown contacted the SVU to report that she
had the devices.
On March 4, 2010, a detective went to Brown’s house, recovered the
items, and took a statement from Brown. A forensic analysis of these
devices revealed 261 photographs on the laptop, 19 photographs on the
1 18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 6318(a)(1), 3122.1, 3124.1, 4302, 4304(a), 3126(a)(8), 6312(b).
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white iPhone, and 281 photographs on the black iPhone, depicting nude or
partially nude individuals.
On April 26, 2012, the Commonwealth presented a motion in limine to
the trial court to introduce the photographs recovered from Sullivan’s laptop
and iPhones at trial pursuant to Rule 404(b) of the Pennsylvania Rules of
Evidence. After argument, the trial court granted the Commonwealth’s
motion over Sullivan’s objections.
A jury trial commenced on April 30, 2012. At trial, the Commonwealth
presented the testimony of the SVU detectives, V.T., V.T.’s mother, V.T.’s
sister, L.S., and Boyll. Defense counsel objected to L.S. and Boyll’s
testimony regarding V.T.’s statements to them because they were neither
prompt complaints nor prior consistent statements. The trial court overruled
the objections and permitted L.S. and Boyll to testify.
L.S. testified that she would notice passion marks on V.T.’s neck at
school and also testified that she saw photographs of her sisters in Sullivan’s
apartment that depicted them partially nude. She also testified that when
she was 19 or 20 years old, Sullivan asked her if he could take a picture of
her in her bathing suit. L.S. did not allow him to take her picture. L.S.
further testified that V.T. told her that Sullivan “was putting passion marks
on her, they had sex, and that’s about it.” N.T., 5/2/12, at 232. However,
on cross-examination, L.S. testified that she had conversations with her
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sisters about Sullivan, but never knew that sex was involved before the SVU
contacted her.
During Boyll’s testimony, Boyll recounted the statements V.T. made to
her and testified regarding her attempts to contact Sullivan in the course of
her investigation. Boyll testified that she attempted to call him, but the
phone number she had for him was no longer a working number. Boyll also
testified that she left a notification letter indicating that she wished to speak
with him at his apartment approximately one month before the search
warrant was executed by the SVU detectives and the SWAT team. N.T.,
5/2/12, at 202. Sullivan moved for a mistrial, arguing that Boyll’s testimony
suggested that his failure to respond to Boyll was evidence of his guilt. The
trial court denied Sullivan’s request for a mistrial.
On May 8, 2012, the jury convicted Sullivan of incest and endangering
the welfare of children. The jury found Sullivan not guilty of sexual abuse of
children, and could not reach a verdict on the remaining charges. On
September 17, 2012, the trial court sentenced Sullivan to a term of
incarceration of 13 years and four months to 27 years.
Sullivan timely filed a notice of appeal, a concise statement of matters
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and a supplemental
statement of matters complained of on appeal. On appeal, Sullivan raises
the following issues for our review:
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1. Did not the trial court abuse its discretion in granting the Commonwealth’s motion to introduce photographic evidence under Pennsylvania Rule of Evidence 404(b) because: (1) the photographs were not sufficiently shown to be the acts of [Sullivan]; (2) the photographs did not prove a common plan, scheme, or design; (3) the photographs did not prove a motive or intent; (4) the photographs were neither used to coerce nor related to the coercion of the complainant as she did not observe the majority of the photographs; (5) the photographs are not relevant to rebut a claim of fabrication where the purported photographic acts do not regard the specific crime alleged but rather improperly introduced character evidence; and (6) the prejudicial effect of the photographs outweighs any probative value, especially in those instances where the record does not establish that [Sullivan] took or showed the complainant the pictures?
2. Did not the trial court abuse its discretion in permitting L.S. and Vivian Boyll to testify regarding the complainant’s statements to them pursuant to Rule of Evidence 613, regarding prior consistent statements, or otherwise as prompt complaint testimony, where the statements were not prompt, arose after the motive to fabricate, and did not rebut any impeachment of the complainant?
3. Did not the trial court abuse its discretion in denying [Sullivan’s] motion for a mistrial because statements regarding attempts to contact [Sullivan] and his lack of response raised an impermissible inference of his failure to speak in violation of his right to remain silent?
Sullivan’s Brief at 3-4.
For his first issue on appeal, Sullivan argues that the trial court abused
its discretion when it “improperly allowed the Commonwealth to introduce,
discuss and publish to the jury hundreds of photographs” under Rule 404(b)
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of the Pennsylvania Rules of Evidence. Id. at 15. These photographs
included:
1. Photographs depicting E.B.[, a minor cousin of Sullivan’s daughter,] and other clothed minors;
2. Photographs depicting V.T.’s adult sisters in various stages of undress;
3. Photographs depicting unrelated adults in various stages of undress;
4. Photographs of Sullivan nude with unrelated adults[;]
5. Photographs depicting appropriately clothed members of Sullivan’s family or irrelevant physical objects (such as a motorcycle).
Id. at 17-18 (footnote omitted).
Our well-settled standard of review of a trial court’s admission of
evidence is as follows:
Admission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court abused its discretion. Admissibility depends on relevance and probative value. Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact.
Commonwealth v. Reese, 31 A.3d 708, 716 (Pa. Super. 2011) (internal
citations omitted).
Rule 404(b)(1) provides that “[e]vidence of other crimes, wrongs, or
acts is not admissible to prove the character of a person in order to show
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actions in conformity therewith.” Pa.R.E. 404(b)(1). However, evidence of
prior crimes, wrongs, or acts “may be introduced for other limited purposes,
including, but not limited to, establishing motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or accident,
common scheme or design, modus operandi, and the natural history of the
case.” Pa.R.E. 404(b)(2); Commonwealth v. Kinard, 95 A.3d 279, 284
(Pa. Super. 2014) (citing Commonwealth v. Brookins, 10 A.3d 1251,
1256 (Pa. Super. 2010), appeal denied, 22 A.3d 1033 (Pa. 2011)). The trial
court may admit the evidence for these limited purposes if the probative
value of the evidence outweighs its potential prejudicial effect. Pa.R.E.
404(b)(2).
In this case, the Commonwealth presented a motion in limine seeking
to introduce all of the complained-of photographs at trial as circumstantial
evidence to prove that Sullivan had sexual relationships with his daughters
and that Sullivan took nude photographs of V.T. N.T., 4/27/12, at 9-10.
The Commonwealth specifically argued that the photographs established
circumstantial proof that the defendant either took the photographs or
knowingly possessed the photographs and that the photographs established
a common scheme or plan by Sullivan. Id. at 16.
The trial court determined that the photographs were admissible under
Rule 404(b) under the common scheme or design exception and the res
gestae exception. Trial Court Opinion, 8/23/13, at 12. The trial court
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opined that the evidence adequately demonstrated that the photographs
were acts of Sullivan because the photographs were on the walls of his
home, on his computer, on his cellphones, were taken inside of his
apartment, and because he planned the destruction of the electronic devices
that contained the photographs. Id. Furthermore, the trial court
determined that the photographs demonstrated “a common design on the
part of [Sullivan] to photograph his daughters in the nude and to create a
sexualized environment within the home,” and that the photographs were
part of the history of the case, “which helped the jury understand the
sequence of events leading to [Sullivan’s] arrest.” Id. The trial court
concluded that it properly admitted the photographs because the
photographs were relevant to the charge of sexual abuse, that the probative
value of the photographs outweighed their prejudicial impact, and because
the evidence was “critically important” “due to the lack of physical evidence
of sexual abuse, [V.T.’s] delay in reporting the abuse, [Sullivan’s]
destruction of evidence, and the defense that V.T. fabricated the
allegations.” Id. at 13.
Sullivan asserts that the trial court erred because the photographs fail
to meet the requirements for admission under Rule 404(b). Sullivan’s Brief
at 18. Specifically, Sullivan argues that the Commonwealth failed to
establish that Sullivan took or knowingly possessed the photographs, and
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that the photographs were not relevant, did not serve a permissible purpose
under Rule 404(b), and were unduly prejudicial. Id. at 19-31.
We begin by addressing the Commonwealth’s assertion that Sullivan
waived his claims relating to the photographs in the last three categories –
those depicting unrelated adults, Sullivan nude with unrelated adults, and
members of Sullivan’s family or irrelevant physical objects.
Commonwealth’s Brief at 16. The Commonwealth argues that Sullivan “fails
to identify any specific photograph that was allegedly improperly admitted
[…] [and that] he raised no objection at trial when these allegedly
objectionable photographs were admitted.” Id.
A review of the record reveals that although Sullivan objected to the
introduction of photographs of V.T.’s sisters during the hearing on the
Commonwealth’s motion in limine, see N.T., 4/27/12, at 7-22, Sullivan
failed to object to the photographs of Sullivan’s appropriately clothed family
members and irrelevant physical objects. With regard to the photographs of
Sullivan and the unrelated adults, Sullivan and the Commonwealth agreed to
address any potential issues with the photographs at trial if the
Commonwealth introduced them. N.T., 4/27/12, at 22-24. When the
Commonwealth introduced these photographs at trial, however, Sullivan did
not object. See N.T., 4/30/12, at 73-76, 79, 115-16. Accordingly, we
conclude that Sullivan’s failure to object to these photographs at either the
hearing on the motion in limine or at trial constitutes waiver and therefore,
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we need not address the merits of these claims. See Blumer v. Ford
Motor Co., 20 A.3d 1222, 1232 (Pa. Super. 2011) (“[I]f the trial court
defers ruling on a motion in limine until trial, the party that brought the
motion must renew the objection at trial or the issue will be deemed waived
on appeal.”); Commonwealth v. Shamsud-Din, 995 A.2d 1224, 1228
(Pa. Super. 2010) (stating, “in order for a claim of error to be preserved for
appellate review, a party must make a timely and specific objection before
the trial court at the appropriate stage of the proceedings; the failure to do
so will result in waiver of the issue”).
With regard to Sullivan’s claim that the trial court erred in admitting
the photographs of a minor, E.B., posing in a bikini, posing with her shirt
open and displaying her bra, and posing while fully dressed, we begin by
noting that all but three of the photographs admitted at trial were taken by
E.B. herself. N.T., 4/27/12, at 5-6; N.T., 4/30/12, at 182. Furthermore, in
the remaining three photographs, which appear to have been taken by
someone else, E.B. was fully clothed. Id. at 182-83. These photographs do
not constitute or suggest that Sullivan committed a bad act and thus do not
warrant exclusion pursuant to Rule 404(b).
We find merit, however, to Sullivan’s argument that the photographs
of E.B. are not relevant for any purpose. Sullivan’s Brief at 31. It is well
settled that “[e]vidence is relevant if it has ‘any tendency to make the
existence of any fact that is of consequence to the determination of the
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action more probable or less probable than it would be without the
evidence.’” Commonwealth v. Williams, 91 A.3d 240, 242 (Pa. Super.
2014); Pa.R.E. 401. According to the Commonwealth’s argument, the
photographs were being admitted as circumstantial evidence to establish
that Sullivan took nude photographs of V.T., thereby proving sexual abuse of
children under 18 Pa.C.S.A. § 6312(b).2 The forensic analysis of Sullivan’s
computer and iPhones did not reveal any photographs of V.T. N.T., 4/30/12,
at 29, 40. Instead, the only evidence offered by the Commonwealth was
V.T.’s testimony that while she was in the kitchen, Sullivan told her to take
off her clothes and then photographed her naked. N.T., 5/2/12, at 56. The
self-taken photographs of E.B. in a bikini or photographs of E.B. fully
dressed do not make it more or less probable that Sullivan took nude
2 Section 6312(b) of the Pennsylvania Crimes Code states:
(b) Photographing, videotaping, depicting on computer or filming sexual acts.— (1) Any person who causes or knowingly permits a child under the age of 18 years to engage in a prohibited sexual act or in the simulation of such act commits an offense if such person knows, has reason to know or intends that such act may be photographed, videotaped, depicted on computer or filmed.
(2) Any person who knowingly photographs, videotapes, depicts on computer or films a child under the age of 18 years engaging in a prohibited sexual act or in the simulation of such an act commits an offense.
18 Pa.C.S.A. § 6312(b).
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photographs of V.T. As the photographs of E.B. were not relevant, the trial
court erred in admitting these photographs. Pa.R.E. 402 (“Evidence that is
not relevant is not admissible.”).
Nevertheless, we find this error to be harmless. An error is harmless
if:
(1) the prejudice to the appellant was nonexistent or de minimis; (2) the erroneously admitted evidence was merely cumulative of other untainted, substantially similar and properly admitted evidence; or (3) the properly admitted and uncontradicted evidence was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
Commonwealth v. Hardy, 918 A.2d 766, 777 (Pa. Super. 2007) (citing
Dent, 837 A.2d 571, 582 n.2 (Pa. Super. 2003)).
Here, the prejudice to Sullivan was nonexistent or de minimis. The
Commonwealth did not present extensive testimony or any argument with
regard to the photographs of E.B. See N.T., 4/30/12, at 76-78, 80, 158-59,
184-85. Instead, the record reflects that the only testimony relating to the
photographs of E.B. consisted of brief descriptions of what the pictures
depicted, including what she was wearing in the picture and who appeared
to be taking the picture. Id. Moreover, there was no testimony that
suggested Sullivan sexually abused E.B. and the jury acquitted Sullivan of
sexual abuse of a child, N.T., 5/8/12, at 12. As a result, we do not find that
the introduction of the photographs of E.B. prejudiced Sullivan.
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The remaining photographs depict V.T.’s adult sisters in various stages
of undress. Sullivan’s Brief at 22-31. We first address Sullivan’s claim that
the Commonwealth failed to establish that he took these photographs.
Sullivan’s Brief at 20-21. The trial court concluded that the evidence
presented at trial demonstrated that Sullivan took the photographs because
the photographs were on the walls of his home, on his computer, on his cell
phones, were taken inside of his apartment, and because he tried to destroy
the electronic devices on which the photographs were saved. Trial Court
Opinion, 8/23/13, at 12. Sullivan argues that this evidence did not establish
that he took the photographs because many individuals had access to
Sullivan’s apartment, computer, and cell phones. Sullivan’s Brief at 20. In
support of his argument, Sullivan cites to Commonwealth v. Snyder, 870
A.2d 336 (Pa. Super. 2005).
In Snyder, the defendant was charged with sexually abusing a seven-
year-old child. Id. at 340. At trial, the Commonwealth sought to introduce a
Polaroid photograph of the victim, posed nude in a sexually provocative
manner, that a private investigator found in the defendant’s home. Id. at
343. Although the Commonwealth did not have direct evidence that the
defendant took the photograph, the trial court admitted the evidence after
finding that circumstantial evidence established that the defendant took the
photograph of the victim. Id. at 344. The trial court provided the following
explanation in support of its conclusion:
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Here, the photograph was taken by someone who had access to the camera in the house. There were only two adults in the house, co-defendants in this case. The photograph was taken during the time frame that the alleged incidents of sexual misconduct occurred, i.e. when the child was seven or eight years old. The photograph is clearly of a sexual nature, with a child laying on the bed looking straight at the camera. Furthermore, the photograph was found in a location that the Defendant was known to have kept a videotape of sexual acts.
Id.
Sullivan argues that Snyder is inapposite to the case presently before
this Court. Sullivan’s Brief at 20. We disagree. In this case, as in Snyder,
the Commonwealth did not have direct evidence that Sullivan took the
photographs of V.T.’s sisters, but presented testimony establishing
circumstantial evidence that Sullivan took the photographs of V.T.’s sisters.
V.T. testified that Sullivan told her that he took the photographs of her
sister, M.S. N.T., 5/2/12, at 115. The photographs were taken in Sullivan’s
apartment. Some hung on his walls. Moreover, the photographs of V.T.’s
sisters were found on Sullivan’s computer and cell phones, devices that
Sullivan asked Brown to destroy. Thus, just as we found in Snyder, we
conclude that the circumstantial evidence presented at trial establishes that
Sullivan took the photographs of V.T.’s sisters. See Snyder, 870 A.2d at
344. Accordingly, we find no error in the trial court’s conclusion that
Sullivan was the photographer.
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Turning to the admissibility of the photographs, Sullivan argues that
the photographs were not admissible as they do not serve a permissible
purpose and they are unduly prejudicial. Sullivan’s Brief at 22, 31. The
record reflects that during argument on its motion in limine, the
Commonwealth asserted that the pictures of V.T.’s sisters were relevant and
admissible under Rule 404(b) to establish a common scheme or plan. N.T.,
4/27/12, at 16. The trial court agreed, concluding that the photographs
demonstrated “a common design on the part of [Sullivan] to photograph his
daughters in the nude and to create a sexualized environment within his
home.” Trial Court Opinion, 8/23/13, at 12.
With regard to admitting evidence under the common scheme or plan
exception, this Court has established that
a determination of whether evidence is admissible under the common plan exception must be made on a case by case basis in accordance with the unique facts and circumstances of each case. However, we recognize that in each case, the trial court is bound to follow the same controlling, albeit general, principles of law. When ruling upon the admissibility of evidence under the common plan exception, the trial court must first examine the details and surrounding circumstances of each criminal incident to assure that the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator. Relevant to such a finding will be the habits or patterns of action or conduct undertaken by the perpetrator to commit crime, as well as the time, place, and types of victims typically chosen by the perpetrator. […]
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Commonwealth v. Smith, 635 A.2d 1086, 1089 (Pa. Super. 1993)
(emphasis added) (citing Commonwealth v. Frank, 577 A.2d 609, 614
(Pa. Super. 1990), appeal denied, 584 A.2d 312 (Pa. 1990)). “The degree of
similarity is an important factor in determining the admissibility of other
crimes or bad acts under this exception.” Commonwealth v. Einhorn, 911
A.2d 960, 967 (Pa. Super. 2006) (citing Commonwealth v. Luktisch, 680
A.2d 877, 879 (Pa. Super. 1996)).
With a modicum of effort, in most cases it is possible to note some similarities between the accused’s prior bad conduct and that alleged in a current case. To preserve the purpose of Rule 404(b)(1), more must be required to establish an exception to the rule— namely a close factual nexus sufficient to demonstrate the connective relevance of the prior bad acts to the crime in question.
Commonwealth v. Ross, 57 A.3d 85, 104 (Pa. Super. 2012) (en banc)
(emphasis added). The crimes must be “so related that proof of one tends
to prove the others.” Id. at 103.
In Commonwealth v. G.D.M., Sr., 926 A.2d 984 (Pa. Super. 2007),
“a jury convicted the appellant of indecent assault, endangering the welfare
of children, and corruption of minors, in connection with [the] appellant’s
ongoing sexual molestation of his six-year-old son.” Id. at 985. On appeal,
the appellant argued that the trial court improperly allowed testimony of his
prior criminal convictions of indecent assault and endangering the welfare of
children in connection with his ongoing sexual molestation of his 13-year-old
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daughter. Id. at 987. A panel of this Court held that “testimony regarding
[the] appellant’s crimes against his other child was proper as it evinced a
common plan.” Id. at 987-88.
The time frames of the abuse of the other child and of the victim were very close. […] Both molestations occurred in the family home and both involved [the] appellant’s own children. Moreover, the nature of both molestations involved manipulation of the genitals by hand only; there were no allegations of any other type of sexual activity. The earlier offense was quite similar to the latter, and we find no abuse of discretion in the trial court’s finding the probative value of the evidence outweighed the prejudiced incurred in admitting the evidence.
Id. at 988.
The record reflects that Sullivan’s computer and iPhones contained
hundreds of pictures of Sullivan’s daughters. N.T., 4/30/12, at 64, 137.
V.T. stated that Sullivan photographed her in his apartment while she was
naked while she posed in a sexual manner. N.T., 5/2/12, at 56. He
photographed her as a teenager. Id. Likewise, the photographs of V.T.’s
sisters were taken in Sullivan’s apartment, depicted the girls naked or
partially naked, posing in a sexual manner, and there is evidence that at
least one of the sisters was a teenager at the time the photographs were
taken. Id. at 63. This exhibits a pattern by Sullivan, and the photographs
are all in the same general location and are of the same class of victims, his
daughters. See Smith, 635 A.2d at 1089. The crimes are sufficiently
similar to demonstrate a “connective relevance” to the allegations at issue.
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See Ross, 57 A.3d at 104. Accordingly, we find that the trial court did not
abuse its discretion in admitting the photographs of Sullivan’s daughters
under the common plan or scheme exception.
This does not end our analysis. Once a trial court determines that
prior act evidence is admissible for a proper purpose, we must “balance the
need demonstrated by the Commonwealth for this evidence against its
potential prejudice.” Commonwealth v. Ardinger, 839 A.2d 1143, 1146
(Pa. Super. 2003). In Commonwealth v. Weakley, 972 A.2d 1182 (Pa.
Super. 2009), this Court provided guidance on conducting an inquiry into
“whether the probative value of the ‘other crimes’ evidence outweighs its
presumptive prejudice.” Id. at 1191. In Weakley, we stated:
In conducting the probative value/prejudice balancing test, courts must consider factors such as the strength of the ‘other crimes’ evidence, the similarities between the crimes, the time lapse between crimes, the need for the other crimes evidence, the efficacy of alternative proof of the charged crime, and ‘the degree to which the evidence probably will rouse the jury to overmastering hostility.’
Id. (citations omitted).
Applying these factors to the instant matter supports the trial court’s
determination that the probative value of the photographs of V.T.’s sisters
outweighs its presumptive prejudice. As previously discussed, the
photographs of V.T.’s sisters and the photographs V.T. claimed Sullivan took
of her are patently similar as the photographs depicted Sullivan’s nude
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daughters, posed in a sexual manner. N.T., 4/30/12, at 64. Furthermore,
the record reflects the Commonwealth’s considerable need for this evidence
given the absence of the photographs of V.T. and the defense’s insinuation
that V.T. lied about the photographs and the sexual abuse. Id. at 38-39.
The Commonwealth’s only alternative proof of the charges was V.T.’s
testimony, the credibility of which was attacked by the defense. Id. at 37-
40. The Commonwealth’s evidence establishing the charge of sexual abuse
therefore relied upon this circumstantial evidence. As this Court held in
Weakley, “it is the specific purpose of the ‘other crimes’ evidence to give
the jury insight into the significance of these circumstances.” Weakley, 972
A.2d at 1191. We therefore conclude that the trial court did not err in its
conclusion that the photographs were more probative than prejudicial, and
thus, properly admitted the photographs under Rule 404(b).3
For his second issue on appeal, Sullivan argues that the trial court
abused its discretion by permitting L.S. and Boyll to testify to the statements
of sexual abuse V.T. made to them in 2009. Sullivan’s Brief at 31. Sullivan
argues that their testimony improperly bolstered the credibility of V.T. and
that the trial court improperly permitted the Commonwealth to introduce the
prior consistent statements before he made any attempt to impeach V.T.’s
3 Based upon our determination that the photographs were properly admitted as evidence of Sullivan’s common plan or scheme, we need not address Sullivan’s remaining claims that the photographs do not satisfy any other recognized exception under 404(b) including intent, motive, or res gestae.
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credibility. Sullivan’s Brief at 32-33. The trial court determined that the
testimony by L.S. and Boyll was admissible under Rule 613 of the
Pennsylvania Rules of Evidence as prior consistent statements. Trial Court
Opinion, 8/23/13, at 9; see also N.T., 5/2/12, at 175.4
Rule 613 of the Pennsylvania Rules of Evidence provides, in relevant
part:
(c) Witness’s Prior Consistent Statement to Rehabilitate. Evidence of a prior consistent statement by a witness is admissible for rehabilitation purposes 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 made before that which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness has denied or explained, and the consistent statement supports the witness’s denial or explanation.
Pa.R.E. 613(c) (rescinded and replaced effective March 18, 2013).5
Pursuant to this Rule,
[a]dmission of prior consistent statements on such grounds is a matter left to the sound discretion of the trial court, to be decided in light of the character and degree of impeachment. It is not necessary that the impeachment be direct; it may be implied,
4 The trial court also ultimately determined that V.T.’s statements were not admissible as a prompt complaint of a sexual assault. N.T. 5/2/12, at 175. 5 As Sullivan’s conviction occurred prior to the amendment of Rule 613, we use the pre-amended version here.
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inferred, or insinuated either by cross-examination, presentation of conflicting evidence, or a combination of the two.
Commonwealth v. Baker, 963 A.2d 495, 504 (Pa. Super. 2008) (citing
Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super. 2005)).
“Pennsylvania law has long stated that [in sexual assault cases] the
credibility of the complaining witness is always an issue.” Commonwealth
v. Dillon, 863 A.2d 597, 601-02 (Pa. Super. 2004) (emphasis in original)
(citing Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004)
(en banc)).
In this case, the trial court found that Sullivan’s “entire defense
centered around impeaching [V.T.’s] credibility.” Trial Court Opinion,
8/23/13, at 10; see also N.T. 4/30/12, at 38. “Where, as here, it is
apparent that the defense centers around impeaching the credibility of a
witness, a prior consistent statement may, at the discretion of the trial
court, be admitted before impeachment.” Commonwealth v. Beale, 665
A.2d 473, 475-76 (Pa. Super. 1995) (citing Commonwealth v. Smith, 540
A.2d 246, 258 (Pa. 1988)). Furthermore, as this Court stated in
Commonwealth v. Handfield, 34 A.3d 187 (Pa. Super. 2011), “[our]
Supreme Court allows prior consistent statements to be proved by the
person to whom they were made in order to support the credibility of the
witness.” Id. at 209 (citing Commonwealth v. Hutchinson, 556 A.2d
370, 372 (Pa. 1989)). Accordingly, the trial court did not abuse its
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discretion by permitting the testimony of V.T.’s prior consistent statements
made to L.S. and Boyll.
Sullivan further argues that V.T. made these statements to L.S. and
Boyll after she had a motive to fabricate. Sullivan’s Brief at 33. According
to Sullivan, “V.T.’s motive to fabricate arose in 2007 or 2008 when Sullivan
became strict with her and subsequently threw her out of the house and
changed the locks.” Id.; see also N.T., 5/3/12, at 32-36; N.T., 5/2/12, at
96-102. The trial court found that although Sullivan might be correct in his
assertion that V.T.’s statements to L.S. and Boyll “arose after the motive to
fabricate,” his objection to this was “too late“ because he failed to object to
the prior consistent statements when V.T. offered them during direct
examination, and only objected to the subsequent testimony by L.S. and
Boyll. Trial Court Opinion, 8/23/13, at 10-11. The trial court determined
that precluding testimony from these witnesses may have resulted in the
jury drawing an adverse inference from the absence of their testimony
corroborating V.T.’s account. Id. Thus, in fairness to the Commonwealth,
the trial court permitted L.S. and Boyll to corroborate V.T.’s testimony of the
conversations she had with them. Id.
After a review of the record, we disagree with the trial court’s
conclusion that Sullivan’s objection was untimely. The record reflects that
prior to any testimony on the third day of trial, defense counsel argued that
L.S. and Boyll’s testimony regarding V.T.’s disclosures of abuse was
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inadmissible. See N.T., 5/2/12, at 3-23. Defense counsel conceded to
allowing the Commonwealth to introduce evidence that V.T. disclosed abuse
to others through V.T.’s testimony, but argued that the witnesses to whom
V.T. disclosed the abuse, L.S. and Boyll, were precluded from testifying to
what V.T. disclosed. Id. at 8-14. The trial court ruled that V.T., L.S., and
Boyll were permitted to testify to the disclosures V.T. made in 2009. Id. at
19. The court declined to make a ruling on whether it would give the jury a
prompt complaint instruction until the trial court heard the testimony and
“[saw] how it play[ed] out.” Id. at 20. The following discussion ensued:
MR. LEVANT: Your honor, note my objection properly. To make sure my record is clear, I objected to her [(L.S.)] being called for any of those purposes.
Now that the [c]ourt has made a ruling that she will be permitted to testify for the reasons stated, I feel that I then am put in a position where I have to fully cross-examine and assume all this is going to come in. So I would like to make the record clear on that, that my objection will be that she not be permitted to do any of that. Based upon the [c]ourt’s ruling, I just want to be clear.
THE COURT: Absolutely preserved for appeal and you can go at it.
N.T., 5/2/12, at 21.
During trial, defense counsel did not cross-examine V.T. or object to
V.T.’s testimony regarding her prior consistent statements to L.S. and Boyll.
N.T., 5/2/12, at 79, 83. At the conclusion of V.T.’s testimony, defense
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counsel again objected to the introduction of L.S.’s testimony regarding
V.T.’s prior consistent statements. Id. at 168-81.
“Once the court rules definitively on the record--either before or at
trial--a party need not renew an objection or offer of proof to preserve a
claim of error for appeal.” Pa.R.E. 103(b). Here, Sullivan’s attorney made a
specific objection on the record to the trial court’s ruling, which clearly and
definitively allowed L.S. and Boyll to testify to V.T.’s prior consistent
statements to them, leaving only the issue of whether the court would also
classify the statements as prompt complaint for trial. N.T., 5/2/12, at 19-
20. As Sullivan properly objected to the ruling, he was not required to
renew the objection at trial.
We conclude, however, that the trial court properly permitted L.S. and
Boyll to testify regarding the prior consistent statements. Although Sullivan
is correct that “[a] prior consistent statement is admissible only if it is made
before the declarant has a motive to fabricate,” Handfield, 34 A.3d at 208,
the record reflects that Sullivan failed to establish that V.T. had a motive to
fabricate at the time she made the disclosures in question.
During opening statements, defense counsel suggested that V.T. lied
about the sexual abuse allegations because she did not like how strict
Sullivan was and she did not want to follow Sullivan’s rules. N.T., 4/30/12,
at 37-38. Furthermore, defense counsel elicited testimony on direct
examination from his defense witness that V.T. and Sullivan had a “falling-
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out” in 2007 because Sullivan accused her of stealing money from his room.
N.T., 5/3/12, at 34-35, 47. The witness further testified that as a result of
this incident, V.T. moved out of the house and Sullivan changed the locks.
Id. at 35, 47. Sullivan asserts that V.T.’s motive to fabricate arose in 2007
or 2008 following these incidents. Sullivan’s Brief at 33.
In Commonwealth v. Montalvo, 986 A.2d 84 (Pa. 2009), our
Supreme Court stated that “[w]hen considering the admissibility of prior
statements, the importance of timing has often been emphasized.” Id. at
96. In support of this assertion, the Court cited to Pa.R.E. 613(c) comment,
which provides, “the use of the consistent statement will depend upon the
nature of the explanation and all of the circumstances that prompted the
making of the consistent statement; the timing of that statement, although
not conclusive, is one of the factors to be considered.” Id. (citing Pa.R.E.
613(c), comment).
At trial, V.T. testified regarding the circumstances that prompted her
to disclose Sullivan’s abuse to L.S. and Boyll. V.T. stated that she told L.S.
about the abuse after she moved out of Sullivan’s home because she knew
that L.S. was starting to go to Sullivan’s apartment more often and she did
not want Sullivan to do the same thing to L.S. that he had done to her.
N.T., 5/2/12, at 79. V.T. similarly testified that she decided to contact DHS
because she became concerned about her younger sisters that were living
with Sullivan. Id. at 81-82, 159.
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Although there was no dispute that V.T. made the consistent
statement to Boyll in 2009, the parties did not agree upon the timing of
V.T.’s statements to L.S. Defense counsel stated that V.T. informed L.S. of
the abuse at least three years after the abuse occurred. N.T., 5/2/12, at 4,
6-7. On the other hand, the Commonwealth asserted that L.S. received a
progression of information, with V.T. giving hints and alluding to the abuse
as it was occurring. Id. at 4. The parties agreed that full disclosure
occurred in 2009 when DHS became involved, which was approximately two-
and-a-half years after V.T. left Sullivan’s home. Id. at 5-7.
Sullivan argues that a motive to fabricate the abuse arose from V.T.’s
unhappiness with his rules and strictness when she resided with him, as well
as from the incident wherein Sullivan accused her of stealing money from his
room, which occurred in 2007-2008. Sullivan’s Brief at 33. However,
Sullivan fails to establish the connection between these matters and an
alleged motive to fabricate. The disclosures occurred more than three years
after V.T. moved out of Sullivan’s home and one to two years after Sullivan
and V.T. allegedly had a falling out over stolen money. N.T., 5/2/12, at 5-7.
V.T. no longer lived with Sullivan, was no longer under the control of or the
rules of Sullivan, and there was no evidence suggesting that further issues
between Sullivan and V.T. arose after Sullivan accused her of stealing
money and changed the locks. Id. at 74-75. V.T. testified that she stopped
speaking with Sullivan after she moved out, and only spoke with him again
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when she was 18 years old. Id. at 97-101. Thus, there is no support in the
record for Sullivan’s claim that V.T. made the aforementioned disclosures to
L.S. and Boyll because of Sullivan’s strict discipline as opposed to her stated
concern for her sisters and her hope of shielding them from the same sexual
abuse she suffered at Sullivan’s hands. Therefore, without more, we
conclude that Sullivan did not show that V.T.’s disclosures post-dated a
motive to fabricate the allegations because there was no temporal
connection between the motive and the disclosure. As a result, we discern
no error in the admission of the prior consistent statements.
In his third issue on appeal, Sullivan argues that the trial court abused
its discretion in denying his motion for a mistrial based on Boyll’s testimony
regarding her attempts to contact Sullivan prior to his arrest. We begin by
stating our standard of review:
A motion for a mistrial is within the discretion of the trial court. A mistrial upon motion of one of the parties is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial. It is within the trial court’s discretion to determine whether a defendant was prejudiced by the incident that is the basis of a motion for a mistrial. On appeal, our standard of review is whether the trial court abused that discretion.
Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa. Super. 2014) (citing
Commonwealth v. Tejada, 834 A.2d 619, 623 (Pa. Super. 2003)).
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Sullivan claims that the trial court’s admission of Boyll’s testimony that
she attempted to contact him by telephone and by leaving a notification
letter at his apartment violated his constitutional right to remain silent
pursuant to the Fifth Amendment to the United States Constitution and
Article I, Section 9 of the Pennsylvania Constitution. Sullivan’s Brief at 34.
Sullivan specifically challenges the following portion of Boyll’s testimony:
Q. Prior to -- specifically calling your attention to December 9th of 2009, did you, yourself, make attempts to contact the defendant, Anthony Sullivan?
A. Yes.
Q. How did you make those attempts to contact him?
A. I went to his home. I called the phone number that we had for him. I couldn’t get any answer at the apartment building, and I couldn’t get any answer -- the phone was no longer a working number.
Q. Were there any letters or notes left in order to indicate that you wished to speak with him?
A. Yes. We left a notification letter, which is standard.
Q. Was this notification left approximately a month before you actually entered his home with the SWAT Team?
N.T., 5/2/2012, at 201-202. Although Sullivan agrees that “[t]he fact that
Sullivan’s phone line was disconnected or that he was not home when Boyll
went to the house do[es] not implicate his right to remain silent[,]” he
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argues that “the Commonwealth specifically made his silence an issue” by
asking whether Boyll left any letters or notes indicating that she wished to
speak with him. Sullivan’s Brief at 36.
The trial court found that Boyll’s testimony did not implicate Sullivan’s
right to remain silent. Trial Court Opinion, 8/23/13, at 6. In support of its
conclusion, the trial court noted that the record was devoid of evidence that
Sullivan either communicated with DHS or refused to communicate with DHS
and that Boyll “never testified that the notification letter reached [Sullivan],
nor that it requested or required a response.” Id. Moreover, the trial court
“gave the jury the standard instruction regarding [Sullivan’s] right to remain
silent and instructed the jury that no inference can be drawn from such
silence.” Id. The trial court also determined that to the extent it erred in
permitting Boyll’s testimony regarding the notification letter, the error was
harmless. Id. at 6-7.
In his brief, Sullivan cites to Commonwealth v. Molina, 33 A.3d 51
(Pa. Super. 2012) (en banc), appeal granted, 51 A.3d 181 (Pa. Aug. 14,
2012), in support of his argument that the trial court erred in denying his
motion for a mistrial. In Molina, the defendant was charged with one count
of criminal homicide for beating the victim to death. At trial, a detective
testified that while investigating the disappearance of the victim, she
received information that Molina was potentially involved in her
disappearance. When the detective went to Molina’s house, an individual at
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the house told the detective that Molina no longer lived there. The detective
left a message with the individual, asking Molina to call her. Id. at 53-54.
Molina called the detective that day and “told her that he did not know
where [the victim] was but it was ‘out on the street’ that he was somehow
involved in her being missing and that was not true.” Id. at 54. Molina
initially stated that he had not seen the victim for a year and a half, but
moments later, stated that it had been three months. Id. When the
detective asked Molina to come to the police station for an interview, Molina
refused. Id.
During the Commonwealth’s closing argument, Counsel commented on
Molina’s refusal to come to the police station for an interview. Id. Counsel
for Molina objected to the Commonwealth’s commentary, but the trial court
overruled the objection and refused defense counsel’s request for a curative
instruction. Id. When the Commonwealth resumed, the prosecutor argued
to the jury: “Factor [Molina’s refusal to speak with police] in when you’re
making an important decision in this case as well.” Id.
On appeal, an en banc panel agreed with Molina that the trial court
erred in overruling his objection to the Commonwealth’s use of his refusal to
participate in an interview in its closing argument. We held that “the
Commonwealth cannot use a non-testifying defendant’s pre-arrest silence to
support its contention that the defendant is guilty of the crime charged as
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such use infringes on a defendant’s right to be free from self-incrimination.”
Id. at 62 (citations omitted).
After a review of the record, we conclude that the case presently
before this Court is distinguishable from Molina. Unlike Molina, neither the
Commonwealth nor Boyll herself implied that Sullivan’s silence constituted
an admission of guilt. In fact, the record establishes that Boyll never
testified that Sullivan received the letter. Moreover, unlike the prosecution
in Molina, the Commonwealth in this case did not address Boyll’s attempts
to contact Sullivan prior to his arrest during trial or in its closing argument.
We clarified in Molina that while the Commonwealth cannot use a
non-testifying defendant’s pre-arrest silence as substantive evidence of guilt,
“our finding does not impose a prima facie bar against any mention of a
defendant’s silence.” Id. at 63. Thus, “the mere revelation of a defendant’s
pre-arrest silence does not establish innate prejudice [where] it was not
used in any fashion that was likely to burden defendant’s Fifth Amendment
right or to create [an] inference of admission of guilt.” Commonwealth v.
Guess, 53 A.3d 895, 903 (Pa. Super. 2012) (citations omitted); see also
Commonwealth v. Whitney, 708 A.2d 471, 478 (Pa. 1998) (“[e]ven an
explicit reference to silence is not reversible error where it occurs in a
context not likely to suggest to the jury that silence is the equivalent of a
tacit admission of guilt”).
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In this case, Boyll’s testimony did not raise an impermissible inference
of guilt or violate Sullivan’s constitutional rights. At most, this case involved
a mere revelation of Sullivan’s pre-arrest silence. See Guess, 53 A.3d at
903. Accordingly, we conclude that the trial court did not abuse its
discretion in denying his motion for a mistrial.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 11/6/2014
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