Opinion
J. A03039/15 No. 2181 MDA 2013 No. 2182 MDA 2013
06-09-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ROBERT CARAVELLA, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence October 28, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division No(s).: CP-40-CR-0001431-2011
Appeal from the Judgment of Sentence October 28, 2013
In the Court of Common Pleas of Luzerne County
Criminal Division No(s).: CP-40-CR-0002500-2011
BEFORE: MUNDY, STABILE, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant appeals from the judgment of sentence entered in the Luzerne County Court of Common Pleas following a jury trial held on April 23, 2012 ("Case Number 1") and his convictions for Involuntary Deviate Sexual Intercourse with a Child, Aggravated Indecent Assault of a Child, Corruption of Minors, Endangering Welfare of Children, and Unlawful Contact with a Minor.
In this case, Appellant was found guilty of various crimes against his minor nieces, M.H. and S.H.
He also appeals from the judgment of sentence entered on the same date in the Luzerne County Court of Common Pleas following a jury trial held on December 12, 2012 ("Case Number 2") and his convictions for Criminal Conspiracy (Rape of a Child), Corruption of Minors, and Endangering the Welfare of Children. These cases were consolidated by the trial court for sentencing and sua sponte by this Court for appeal.
Appellant was tried with his co-defendant, the child's Mother. See N.T., 12/12/12.
Although the first jury trial ended on April 25, 2012, sentencing was continued, upon Appellant's request, in order for the second trial to proceed involving another victim. N.T., 10/28/13, at 4-5.
Appellant contends in Case Number 1 the court erred in (1) refusing to have the child victims undergo psychological and psychiatric examinations to determine their competency to stand trial and (2) not instructing the jury that the child's testimony was suspect because of a lack of a prompt complaint and considerable period of silence. He claims the "totality of the circumstances" of this case denied his right to a fair trial.
In Case Number 2, Appellant contends the court erred in (1) refusing to have the alleged child victim, C.C., undergo psychological and psychiatric examinations to determine his competency to testify; (2) permitting the child to testify where records and reports of his interviews provided by the Commonwealth contradicted accusations previously made concerning the instant charges; (3) refusing to dismiss charges or in allowing the child to testify after the Commonwealth produced records indicting the child was promised he "would be able to testify in a private room alone" if he agreed to testify against his parents; (4) permitting the Commonwealth to introduce evidence that the child had killed cats; (5) refusing to instruct the jury that the testimony of the child was suspect due to a lack of a prompt complaint; (6) denying his motion for discovery of records involving Patricia "Patsy" Paci; (7) violating his right to due process in denying his right to impeach the credibility of witnesses; and (8) permitting the child victim and Patricia "Patsy" Paci to testify after it was disclosed the child complained she had inappropriately communicated with him. We affirm.
We adopt the facts set forth by the trial court's opinion in Case Number 1 and Case Number 2. See Trial Ct. Op., 6/2/14, at 4-9. On October 28, 2013, Appellant was sentenced to an aggregate total of thirty-five and one-half to seventy-one years' imprisonment. Appellant did not file post-sentence motions. This timely appeal followed. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on appeal in both cases and the trial court filed a responsive opinion addressing Case Number 1 and Case Number 2.
At sentencing, the court advised him, inter alia, as follows: "You have the right to file a post-sentence motion with me ten days from today. Any post-sentence motions must be filed within ten days." N.T., 10/28/13, at 80.
Appellant raises the following issues on appeal in Case Number 1:
1. Was [Appellant] denied his right to a fair trial by the [l]ower [c]ourt's error in refusing to have the alleged child victims undergo psychological and psychiatric examinations to determine their competency to testify?Appellant's Brief at 4-5.
2. Did the [c]ourt below err in not instructing the jury that A) the testimony of the child was rendered suspect because of lack of prompt complaint and that it is a factor that the jury must consider as to the sincerity of the child's complaint, and may justifiably produce doubt as to
whether the offense indeed occurred, or whether it was a recent fabrication of the [c]hild and that B) a child's motive in making the complaints against [Appellant] following a considerable period of silence was relevant as affecting the child's veracity?
3. Under the "totality of the circumstances" of this specific case, was [Appellant] denied his right to a fair trial by of jury of his peers?
We note that Appellant raised twenty-four errors in his Rule 1925(b) statement. Rule 1925(b)(4)(iv) provides that "the number of errors raised will not alone be grounds for finding waiver." Pa.R.A.P. 1925(b)(4)(iv). Moreover, our Supreme Court instructed that with respect to lengthy Rule 1925(b) statements, no violation is sufficient to find waiver of issues unless the trial court finds that the appellant acted in bad faith. PHH Mortg. Corp. v. Powell , 100 A.3d 611, 614 (Pa. Super. 2014) (some citations omitted). Although his Rule 1925(b) statement was not concise, we decline to find waiver because the trial court did not find that he acted in bad faith. See id. Additionally, despite raising three issues, Appellant raises sixteen averments of error in the argument section of his brief, thus violating Pa.R.A.P. 2119(a), which mandates that "arguments shall be divided into as many parts as there are questions to be argued." See Pa.R.A.P. 2119(a). Appellant has failed to comply with Pa.R.A.P. 2119(c). "If reference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appear[.]" Pa.R.A.P. 2119(c). We decline to quash. See Powell , 100 A.3d at 615 (refusing to quash appeal despite numerous violation of appellate briefing rules; see also Commonwealth v. Briggs , 12 A.3d 291, 343 (Pa. 2011) ("The briefing requirements scrupulously delineated in our appellate rules are not mere trifling matters of stylistic preference; rather, they represent a studied determination by our Court and its rules committee of the most efficacious manner by which appellate review may be conducted so that a litigant's right to judicial review as guaranteed by Article V, Section 9 of our Commonwealth's Constitution may be properly exercised.").
First, Appellant contends "[t]he [c]ourt erred in denying [Appellant's] Omnibus Pre-Trial Motion that the [c]ourt order psychological and psychiatric examinations of the alleged child victims to assess their competency to testify in this case." Appellant's Brief at 15-16. This is the sole averment in support of this claim of error. Our Pennsylvania Supreme Court has stated: "[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." Commonwealth v. Johnson , 985 A.2d 915, 924 (Pa. 2009). However, in Appellant's second claim of error, he comingles this claim of competency with his averments that the court erred in denying the pre-trial motion for a psychological and psychiatric examination of the child victims to assess their reliability as fact witnesses. We will decline to find issue one waived and address them together as they are interrelated.
In Appellant's third claim, he baldly asserts the copies of records and reports of interviews which were provided to him by the District Attorney's Office indicate the alleged child victims contradicted previous accusations concerning the charges against Appellant, thus the court erred in finding the child victims competent to testify. Id. at 18. Although Appellant cites no law in support of this claim, we will address it as it is interrelated to the competency of the children raised in issue two.
Appellant avers he "had reason to doubt the competency of the alleged victims. Significant questions were reasonably posed concerning their mental state and the undue influence imposed upon them by their Father, the police and caseworkers. Here, the case for examination was more so required, as the children's Mother did not believe their claims." Appellant's Brief at 16. We find no relief is due.
Our review of this issue is governed by the following principle. "The question of a person's competency to be a witness is vested within the sound discretion of the trial court." Commonwealth v. Alston , 864 A.2d 539, 548 (Pa. Super. 2004) (en banc). Pennsylvania Rule of Evidence 601 provides:
(a) General Rule. Every person is competent to be a witness except as otherwise provided by statute or in these Rules.Pa.R.E. 601.
(b) Disqualification for Specific Defects. A person is incompetent to testify if the Court finds that because of a mental condition or immaturity the person:
(1) is, or was, at any relevant time, incapable of perceiving accurately;
(2) is unable to express himself or herself so as to be understood either directly or through an interpreter;
(3) has an impaired memory; or
(4) does not sufficiently understand the duty to tell the truth.
In Commonwealth v. Boich , 982 A.2d 102 (Pa. Super. 2009) (en banc), this Court reversed the trial court and held the defendant did not show a compelling need existed for an involuntary psychiatric examination of the victim's competence to testify. Id. at 104. The Boich Court opined that Rule 601
is expressly intended to preserve existing Pennsylvania law. "In general, the testimony of any person, regardless of [her] mental condition, is competent evidence, unless it contributes nothing at all because the victim is wholly untrustworthy. Thus, in Pennsylvania, [a witness is] presumed competent to testify, and it is incumbent upon the party challenging the testimony to establish incompetence."FN6 Above all, given the general presumption of competency of all witnesses, a court ought not to order a competency investigation, unless the court has actually observed the witness testify and still has doubts about the witness' competency.
FN6 The presumption of competency also applies to child witnesses. In the case of a child witness, once evidence of corruption is established, the court must make a searching judicial inquiry into the mental capacity of a witness under the age of fourteen; that investigation involves whether the child witness has the following: "(1) capacity to observe or perceive the occurrence with a substantial degree of accuracy; (2) ability to remember the event which was observed or perceived; (3) ability to understand questions and to communicate intelligent answers about the occurrence, and (4) consciousness of the duty to speak the truth." See also Commonwealth v. Delbridge , [ ] 859 A.2d 1254 ([Pa.] 2004) (explaining judicial competency investigations apply in cases where sexual abuse complainants are young children because child's memory is uniquely susceptible to falsely implanted suggestions which may cause child difficulty in distinguishing fact from fantasy when called to testify). "These concerns clearly become less relevant as a witness' age increases, ultimately being rendered totally irrelevant as a matter of law by age fourteen. While the age of fourteen is somewhat arbitrary, it appears to give a sufficient buffer for slow developers such that any issue with
competency at that age would need to be caused by some factor other than immaturity." This same competency standard also applies when a proposed witness suffers from a mental condition. Pa.R.E. 601(b). "If the trial court is presented with credible evidence that a proposed witness is . . . mentally retarded, the court shall conduct a judicial inquiry to determine the testimonial competency of the proposed witness. The factors . . . in making [this] determination are the same factors . . . used in determining the competency of a child witness."
Id. at 109-10 (some citations omitted and emphases supplied).
Claims that a witness' memory has been corrupted by insanity, mental retardation, hypnosis, or taint go to the competency of that witness to testify. The capacity to remember and the ability to testify truthfully about the matter remembered are components of testimonial competency. The party alleging a witness is incompetent to testify must prove that contention by clear and convincing evidence.
Instantly, the trial court opined that Appellant's "request for a psychiatric examination of the child victims, however, was properly denied. As noted by the [c]ourt, other than his request for the examination, [Appellant] failed to provide a compelling reason or a substantial need for the psychiatric examination." Trial Ct. Op. at 10. We agree no relief is due.
At the hearing on the omnibus pre-trial motion, Appellant presented the following argument to the court in support of its request for a psychiatric examination:
Counsel for Appellant: The second motion, Judge, in the omnibus motion is a motion to conduct an independent psychiatric examination. As Your Honor well knows, this may be granted within the sound discretion of the court. [Appellant] has a reason to doubt the competency of theN.T., 2/17/12, at 7-8.
alleged victims in this case. They were both minors at the time of the alleged incidents.
We believe that the alleged victims have been influenced, improperly influenced, by, number one, the father who the two children still live with; the mother does not live with them anymore. Also by various caseworkers from Children and Youth and the police. And this influence, I believe, can only be shown by an independent professional. And in this case, I believe a psychiatrist or a child psychologist who can determine if, in fact, these children have been influenced or tainted in any way.
The court asked counsel if there was "anything specific that leads into a discussion as to why an involuntary psychiatric examination of a witness is compelling" in this case. Id. at 9. The court asked counsel if he had reviewed the records from Children and Youth. Id. at 10. Counsel responded that he did not and the Commonwealth stated that they had not been provided with those records. Id. Counsel for Appellant asked the Commonwealth if they were "using any Children and Youth Records for [the] trial" and the Commonwealth stated they were not. Id. at 10-11. Counsel for Appellant stated: "Then I don't need them. But again . . . ." Id. at 11. The court stated: "Well, if you're trying to put out an argument of taint, wouldn't a review of those records be essential to your need for a psychiatric evaluation . . . ." Id. The court concluded that "without any specificity, I'm not finding any compelling reason that's established that the psychiatric examination, which is intrusive and ordered in very rare circumstances, should even be considered." Id.
Appellant has not provided a compelling reason in support of his claim of error. See Boich , 982 A.2d at 109-10. We discern no abuse of discretion by the trial court. See Alston , 864 A.2d at 548.
Appellant's averments four and five baldly assert the court erred in denying his motion for discovery of certain records and materials in possession of the Luzerne County Child Advocacy Center. Appellant has not provided any citation to relevant authority in support of these claims. Therefore, we find these claims waived. See Pa.R.A.P. 2119(c); Johnson , 985 A.2d at 924.
In averment six, Appellant contends
[t]he [c]ourt erred in denying [his m]otion that the [c]ourt order the release and production of any internal investigations, records, citizen's complaints and/or personnel files of the agents of the Luzerne County Children & Youth Services and the Luzerne County Child Advocacy Center, and should have conducted an in camera examination of prosecution files and reports to determine their relevance within the meaning of the law and what may have been discoverable.Appellant's Brief at 19. In averment seven, Appellant reiterates the claim of error regarding the denial of discovery requests and refusal to conduct an in camera inspection. Id. at 20.
The trial court found Appellant waived these boilerplate allegations of error in paragraphs six and seven for failure to raise the issue or failure to preserve it with an objection. Trial Ct. Op. at 10. We agree no relief is due.
Our review of the record reveals that at the first hearing on the omnibus motions, the court asked counsel for Appellant if he had received the records from Children and Youth and counsel responded that he did not. See N.T., 2/17/12, at 10-11. The court explained "if you want Children and Youth records, there's a process, and you would have to participate. And that doesn't happen instantly because they have to redact and review. So you would have to make that determination as soon as possible." Id. at 11-12. Counsel responded that he understood. Id. at 12. On April 18, 2012, another hearing was held on pre-trial motions. Counsel indicated that it had received the records from Children and Youth. N.T., 3/18/12, at 2-3 (emphasis added). No objection was raised before the trial court. See id. We find the issue waived. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
In averments eight through twelve, Appellant contends the court erred in not instructing the jury regarding the lack of a prompt complaint. Appellant's Brief at 21. Our review is governed by the following principles:
"[I]n reviewing a challenge to the trial court's refusal to give a specific jury instruction, it is the function of this [C]ourt to determine whether the record supports the trial court's decision." In examining the propriety of the instructions a trial court presents to a jury, our scope of review is to determine whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. A jury charge will be deemed erroneous only if the charge as a whole is inadequate, not clear or has a tendency to mislead or confuse, rather than clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error. Consequently, the trial court has wideCommonwealth v. Brown , 911 A.2d 576, 582-83 (Pa. Super. 2006) (citation omitted).
discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the appellant was prejudiced by that refusal.
As a prefatory matter, we consider whether Appellant has preserved any objection to the jury instructions. Appellant has not complied with Pa.R.A.P. 2119(c), nor has he cited any relevant law in support of his claims, other than Pa.R.Crim.P. 647. This rule provides:
(A) Any party may submit to the trial judge written requests for instructions to the jury. Such requests shall be submitted within a reasonable time before the closing arguments, and at the same time copies thereof shall be furnished to the other parties. Before closing arguments, the trial judge shall inform the parties on the record of the judge's rulings on all written requests and which instructions shall be submitted to the jury in writing. The trial judge shall charge the jury after the arguments are completed.Pa.R.Crim.P. 647(a), (b) (emphasis added).
(B) No portions of the charge nor omissions from the charge may be assigned as error, unless specific objections are made thereto before the jury retires to deliberate. All such objections shall be made beyond the hearing of the jury.
Our Supreme Court has opined:
The pertinent rules, therefore, require a specific objection to the charge or an exception to the trial court's ruling on a proposed point to preserve an issue involving a jury instruction. Although obligating counsel to take this additional step where a specific point for charge has beenCommonwealth v. Pressley , 887 A.2d 220, 224 (Pa. 2005) (footnotes omitted). At the conclusion of the charge to the jury, the court inquired whether "either attorney [ha] anything else that we need to add?" N.T., 4/23/12, at 465. Counsel stated: "Nothing, Your Honor. Thank you." Id. Therefore, Appellant has waived this issue for failing to object before the jury retired to deliberate. See Pa.R.Crim.P. 647(b), Pressley , 887 A.2d at 224. Regardless, a review of the record belies Appellant's claim of error in not instructing the jury regarding the failure to make prompt complaint.
rejected may appear counterintuitive, as the requested instruction can be viewed as alerting the trial court to a defendant's substantive legal position, it serves the salutary purpose of affording the court an opportunity to avoid or remediate potential error, thereby eliminating the need for appellate review of an otherwise correctable issue.
At trial, the court instructed the jury as follows:
Another important point, before you may find the Defendant guilty of the crimes charged in this case, you must be convinced beyond a reasonable doubt that the acts charged did, in fact, occur. The evidence provided by [M.H. and S.H.] shows a delay in making a complaint. That delay in making a complaint does not necessarily make her testimony unreliable, but it may remove from the testimony its assurance of—of reliability accompanying the prompt complaint or outcry that a victim of a crime such as this would ordinarily be expected to make. Therefore, the delay in making a complaint by [M. H. and S.H.] should be considered in evaluating their testimony in deciding whether the acts occurred.N.T., 4/23/12, at 448-49. In light of the jury charge on prompt complaint, the issue is meritless.
You must not consider [M.H. and S.H.'s] delay in making a complaint as conclusive evidence that the acts did not occur. These are factors that you should consider as bearing on the believability of their testimony and
should be considered by you in light of all the evidence that was presented in this case.
Next, in averment thirteen, Appellant contends the court erred in refusing to inquire of potential jurors the questions he submitted in writing on voir dire, or to permit him to do so. Appellant's Brief at 23. He states: "The presumption of innocence in this factually disturbing case is difficult for all of us, but without it, [Appellant] did not have a chance of a fair trial." Id. at 24. Appellant argues that there should have been an expanded voir dire because "[v]irtually no other type of criminal case can be compared with these types of crimes; just as any Penn State alumni who has suffered insult as a result of the crimes of Jerry Sandusky." Id. at 25. Appellant requested that prospective jurors, who had been victims of sexual misconduct or whose relatives or close associates had been victims, should have been sequestered to protect their privacy. Id. at 26.
On this issue our standard of review is as follows:
It is well established that the scope of voir dire rests in the sound discretion of the trial court, whose decision will not be reversed on appeal absent palpable error. Similarly, the trial court possesses discretion to determine whether counsel may propose their own questions of potential jurors during voir dire.Commonwealth v. Mattison , 82 A.3d 386, 397 (Pa. 2013) (citations omitted).
Instantly, the trial court opined:
This [c]ourt's refusal to permit the overly specific questions proposed by [Appellant] was not a gross abuse of discretion as this [c]ourt did ask the prospective jurors generally whether they, or a friend or family member had been a victim of a crime, and whether they questioned their ability to be fair because the charges concerned sexual conduct with a minor. Additionally, this [c]ourt explored the possible bias of some of the prospective jurors by questioning them individually at sidebar.Trial Ct. Op. at 13. We agree no relief is due.
There is no question that this [c]ourt's voir dire process was designed to secure a competent, fair, impartial and unprejudiced jury for [Appellant]. For example, the questions asked by this [c]ourt during voir dire and at sidebar of one of the jurors revealed that Juror number 7 suffered from child abuse, her daughter was abused as a child and her granddaughter was raped when she was a senior in high school. Juror number 7 was dismissed for cause. The dismissal of Juror number 7 demonstrates the effectiveness of this Court's voir dire process in dismissing a juror who may not have been fair, impartial and unprejudiced based upon her life experiences.
A review of the record belies Appellant's assertions. Instantly, prospective jurors were questioned at sidebar regarding, inter alia, their expressed reservations during voir dire. The court indicated that counsel could also question the prospective jurors at this time. N.T., 4/23/12, at 54. We discern no abuse of discretion. See Mattison , 82 A.3d at 397.
Appellant has waived the claims raised in averments fifteen and sixteen. He cites no legal authority in support of the claim that the court erred in denying his motion for a change in venue. See Johnson , 985 A.2d at 924. Similarly, Appellant cites no legal authority in support of his objection to the process by which the court found that he was a sexually violent predator. Therefore, this issue is waived. See id.
Finally, Appellant contends he was denied a fair trial by a jury of his peers under the "totality of the circumstances." Appellant's Brief at 13. Appellant did not raise this issue in his Rule 1925(b) statement of errors complained of on appeal, and therefore it is waived. See Pa.R.A.P. 1925(b)(4)(vii) ("Issues not included in the Statement and/or not raised in accordance with the provisions of this paragraph (b)(4) are waived."). Even assuming, arguendo, the issue were not waived, it is meritless based upon Appellant's failure to establish any error by the trial court.
In Case Number 2, Appellant raises the following issues for our review:
1. Was . . . Appellant denied his right to a fair trial by the [l]ower [c]ourt's error in refusing to have the alleged child victim [C.C.] undergo psychological and psychiatric examinations to determine his competency to testify?Appellant's Brief at 5-6.
2. Was [Appellant] denied a fair trial when the [l]ower [c]ourt erred in finding the [c]hild competent to testify in this case, even after the District Attorney's Office provided copies of records and reports of interviews wherein the [c]hild contradicted the accusations previously made concerning the instant charges against . . . Appellant?
3. Was [Appellant] denied a fair trial when the [l]ower [c]ourt erred in failing to dismiss the charges or in permitting the [c]hild to testify even after the District Attorney's Office provided copies of records and reports of interviews wherein it was disclosed that the [c]hild was promised that he "would be able to testify in a private room alone" if he agreed to testify against his parents on the current charges?
4. Was . . . Appellant denied a fair trial when the [c]ourt improperly permitted the Commonwealth to introduce evidence that C.C. had killed cats while living with his parents, as a result of his alleged abuse[?]
5. Did the [c]ourt below err in not instructing the jury that A) the testimony of the [c]hild was rendered suspect because of lack of prompt complaint and that it is a factor that the jury must consider as to the sincerity of the [c]hild's complaint, and may justifiably produce doubt as to whether the offense indeed occurred, or whether it was a recent fabrication of the [c]hild and that B) the [c]hild's motive in making the complaints against . . . Appellant following his considerable period of silence was relevant as affecting the [c]hild's veracity?
6. Whether the [c]ourt erred in denying . . . Appellant's Motion for discovery of certain record and materials in the possession of the Wyoming County Children and Youth Services involving Patricia "Patsy" Paci?
7. Did the lower [c]ourt violate . . . Appellant's rights pursuant to due process and confrontation provisions of the Pennsylvania and United States Constitutions provisions, in denying [ ] Appellant's right to impeach the credibility of the [c]hild, Patricia "Patsy" Paci, and other Commonwealth witnesses with the hereinbefore mentioned records of the Luzerne County Child Advocacy Center and Wyoming County Children & Youth Services which may have been reflective of the motive or bias of the [c]hild and/or Patricia "Patsy" Paci?
8. Did the lower [c]ourt err in permitting the [c]hild and Patricia "Patsy" Paci to testify even after it was disclosed that the [c]hild had complained that Patricia "Patsy" Paci, who was charged with the [c]hild's custody and care, was improperly communicating with him concerning the instant case and had to be warned about her interference in this case?
We note Appellant raised twenty-eight issues in his Rule 1925(b) statement. We do not find waiver. See Powell , 100 A.2d at 614. Appellant's brief does not comply with Rule 2119(a), (c). See note 12, supra .
First, Appellant contends the court erred in denying his motion to order psychological and psychiatric testing of the child to determine his competency to testify. Appellant's Brief at 19. Appellant claimed at the taint hearing he made a showing of compelling need for psychological and psychiatric examinations. Id. at 20. In the motion, Appellant averred "[t]he district attorney's office has provided the defense with copies of records and reports of interviews wherein the child contradicts accusations previously made concerning the instant charges against [Appellant]." Def.'s Mot. for a Pre-Trial Hr'g to Establish the Competency of the Alleged Child Victim, 6/18/12, at 3. Appellant contends the records disclosed that the child was promised that he "would be able to testify in a private room alone" if he testified in the instant case. Appellant's Brief at 20. He avers "[t]he defense was also provided with copies of records and reports of interviews wherein it was disclosed that the child has complained that Commonwealth witness, Patricia Paci," an adult charged with his care, improperly communicated with him regarding this case. Id. at 20-21.
Appellant refers to his Motion for a Pre-Trial Taint Hearing to Establish the Competency of the alleged Child Victim, citing the reproduced record at 47a. Appellant's Brief at 20. We note that the reproduced record does not contain pages 34a through 50a. This is of no moment because the motion is included in the certified record on appeal. However, the certified record does not include notes of testimony from a taint hearing. On July 13, 2012, the court denied the motion regarding the issue of taint. Order, 7/13/12.
We review this issue for an abuse of discretion. See Alston , 864 A.2d at 548. After careful consideration of the record, the parties' briefs, and the well-reasoned decision of the Honorable Polachek Gartley, we affirm this issue on the basis of the trial court's decision. See Trial Ct. Op. at 15-18 (holding (1) the child was fourteen years old at the time of trial and presumed competent to testify; (2) no clear and convincing evidence presented for an involuntary psychiatric examination; and (3) no promises were made to child that he could testify in private room).
Appellant, in statement of issues number four, avers he was denied a fair trial when the court permitted the Commonwealth to introduce evidence that the child had killed cats while living with his parents as a result of the alleged abuse. Appellant's Brief at 5. In the argument section of the brief, Appellant reiterates this claim without any citation to legal authority. Appellant's Brief at 22. We find this issue waived. See Johnson , 985 A.2d at 924.
We note the trial court found the issue was waived and opined:
[Appellant] argues that he was denied a fair trial when the [c]ourt permitted the commonwealth to introduce evidence of the [c]hild killing cats. [Appellant], however, never objected to the Commonwealth's introduction of evidence that [Appellant's] son killed cats while living with his parents as a result of the alleged abuse. Consequently, [Appellant] waived his right to appeal the Commonwealth's introduction of evidence that the [c]hild killed his mother's cats.Trial Ct. Op. at 15. Additionally, Appellant's counsel cross-examined the child regarding his killing of cats. N.T., 12/12/12, at 204-11.
Fifth, Appellant contends the court erred in not instructing the jury that the testimony of the child was suspect because of the lack of a prompt complaint. Appellant's Brief at 22-23. As a prefatory matter, we consider whether Appellant has preserved his objection to the jury instructions. See Pa.R.Crim.P. 647(b); Pressley , 887 A.2d at 224.
These claims of error appeared as averments fifteen through eighteen in Appellant's Rule 1925(b) statement.
As the trial court opined: "As per defense counsel's request, the [c]ourt read the instruction to the jury on the [c]hild's delay in making a prompt complaint." Trial Ct. Op. at 20. The court instructed the jury as follows:
Before you find [Appellant] guilty of the crimes charged in this case, you must be convinced beyond a reasonable doubt that the acts charged did, in fact, occur and that—that the—that they did, in fact, occur. The evidence of [the child's] delay in making a complaint does not necessary [sic] make his testimony unreliable but may remove from it the assurance of reliability accompanying the prompt complaint or outcry that the victim of a crime such as this would ordinarily be expected to make. Therefore, the delay in making the complaint should be considered in evaluating his testimony and deciding whether the acts occurred. You must not consider [the child's] delay in making a complaint as conclusive evidence that the acts did not—did not occur, excuse me. [TheN.T., 12/12/12, at 490-91.
child's] failure to promptly make a complaint in any nature and explanation for not making that complaint more timely are factors bearing on the believability of his testimony and should be considered by you in light of all of the evidence that's presented in this case.
The claim that the court did not give the requested charge is meritless. Furthermore, as the trial court found, Appellant did not object to the jury charge. Trial Ct. Op. at 20. At the conclusion of the charge, the court asked counsel "is there anything else?" Defense counsel responded: "Nothing, Your Honor. Thank you." N.T. at 517. Therefore, the issue is waived. See Pa.R.Crim.P. 647(b).
Issues six, seven and eight in Appellant's statement of the issues on appeal concern the court's discovery rulings regarding the witness Patricia "Patsy" Paci. Appellant contends the court erred in denying his motion for discovery of certain records and materials in the possession of the Wyoming County Children & Youth Services ("WCC&YS") involving Patricia "Patsy" Paci and the Luzerne County Child Advocacy Center. Id. at 24-30. In support of this claim, Appellant avers that he sought the court's approval of a subpoena of records and materials from the WCC&YS for the preparation of cross-examination. Appellant's Brief at 26. "Likewise, the lower [c]ourt denial of the discovery request improperly influenced the Jury's ability to fairly judge [Appellant's] guilt or innocence." Id.
In the argument section of the brief, Appellant denominates these issues as issue II: "Issues relating to Impeachment of commonwealth Witness, Patricia Paci." Appellant's Brief at 24.
Appellant has violated Pa.R.A.P. 2119(a), (c). See note 12, supra.
We note that the trial court indicates that Appellant's motion to obtain records from WCC&YS was denied and that "[d]efense counsel acknowledged that he did not know if the records existed, that the records would have nothing to do with the alleged victim and that the records were from sixteen (16) years ago." Trial Ct. Op. at 19, citing N.T., 7/13/12, at 4-7. Our review of the certified record on appeal in this case did not reveal notes of testimony from this pre-trial hearing. Appellant's motion for discovery of records from WCC&YS is dated October 16, 2012. See [Co-] Defendants' Joint Motion for Discovery of Certain Records and Materials in the Possession of the Wyoming County Children and Youth Services, 10/16/12. Appellant sought discovery of any and all records in Wyoming County regarding Patricia "Patsy" Paci. Id. at 4-5. The trial court scheduled a hearing on this pre-trial motion for November 9, 2012. Order for Pre-Trial Motion, 11/5/12. The record does not contain notes of testimony on this date. On November 9, 2012, the motion for Wyoming County Records was denied "after a full hearing on [Appellant's] Motion for Discovery held on November 9, 2012 . . . ." Order, 11/9/12. The trial court opined as to the request for records from the Luzerne County Child Advocacy Center, "the trial court properly denied [Appellant's] Motion[ ] and informed [him] that the records from [that] agency had to be subpoenaed." Trial Ct. Op. at 19. The trial court refers to the hearing dated July 13, 2012. As previously stated, there are no notes of testimony from the July 13th hearing in the certified record.
The [c]ourt violated [Appellant's] rights pursuant to due process and confrontation provisions of the Pennsylvania and United States Constitutions provisions, in denying [Appellant's] right to impeach the credibility of Patricia "Patsy" Paci with the hereinbefore mentioned records of [WCC&YS] which may have been reflective of the motive or bias of Patricia "Patsy" Paci.Id. (emphasis added).
It is well-established that "[g]enerally, on review of an order granting or denying a discovery request, an appellate court applies an abuse of discretion standard." Boich , 982 A.2d at 109. Instantly, the trial court opined:
With respect to [Appellant's] Motion to obtain records from [WCC&YS] pertaining to the [c]hild's caretaker, the Motion was properly denied. Defense counsel acknowledged that he did not know if the records existed, that the records would have nothing to do with the alleged victim and that the records were from sixteen (16) years ago.Trial Ct. Op. at 19-20 (emphasis added and citations omitted). We agree no relief is due.
Thus, based upon the pre-trial record, the errors raised by [Appellant] . . . have no merit. It is not the responsibility of the [t]rial [c]ourt to conduct discovery for [Appellant] or permit a fishing expedition for records that are remote and protected from disclosure.
In the discovery motion, Appellant requested the court to order WCC&YS to produce the following documents:
—Any and all information contained in the investigatory files of the [WCC&YS] regarding Patricia "Patsy" Paci;[Co-]Defendants' Joint Motion for Discovery of Certain Records and Materials in the Possession of the Wyoming County Children and Youth Services, 10/16/12 at 4-5.
—any material as to whether any cases should be marked as founded, indicated or unfounded in the possession or under the control of the [WCC&YS] regarding Patricia "Patsy" Paci;
—any witness confession or inculpatory statement in the possession of the [WCC&YS] regarding Patricia "Patsy" Paci;
—the transcripts of recordings of any interview or statement of Patricia "Patsy" Paci;
—the videotapes of any interviews or statements of Patricia "Patsy" Paci;
—all written and recorded statements and substantially verbatim oral statements of Patricia "Patsy" Paci in the possession of [WCC&YS].
Appellant contends he needed the records in order to impeach the credibility of Patricia "Patsy" Paci. At trial, Appellant cross-examined Paci and stated to the court "I'm entitled to use this witness [Paci] to impeach [the child's testimony] to see if he was telling the truth." N.T., 12/12/12, at 283. The court responded "Okay." Id. We discern no abuse of discretion. See Boich , 982 A.2d at 109.
In the argument section of the brief, as issue IV, "Other Errors of Law that Alone or Together Acted to Deny [Appellant] of Her [sic] Right to a Fair Trial," Appellant baldly raises several issues. Appellant's Brief at 31-32. Appellant has not provided any discussion of these claims with citation to relevant authority. Therefore, we find these issues waived. See Johnson , 985 A.2d at 924.
The claims on page thirty-one of the brief were raised as averments nineteen and twenty in the Rule 1925(b) statement. The claims on page thirty-two of the brief were raised as averments twenty one, twenty-two, and twenty-four to twenty-six. See Appellant's Concise Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), 12/24/13 at 5, 6. --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/9/2015
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