Opinion
502 WDA 2022 J-S09045-23
01-09-2024
COMMONWEALTH OF PENNSYLVANIA v. SHAWN RAY McDonald APPEALLANT
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered October 20, 2021 In the Court of Common Pleas of Beaver County Criminal Division at No(s): CP-04-CR-0000493-2020
BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.
MEMORANDUM
SULLIVAN, J.
Appellant Shawn Ray McDonald ("McDonald") appeals from the judgment of sentence imposed after a jury found him guilty of numerous counts of statutory sexual assault, involuntary deviate sexual intercourse, unlawful contact with a minor, corruption of minors, and indecent assault.We affirm.
The trial court has thoroughly summarized the factual background of this case, see Trial Court Opinion, 10/6/23, at 2-9, and we provide a brief recitation of the trial evidence and procedures relevant to this appeal. In 2018, the victim, M.A., then thirteen years old, was in a relationship with one of McDonald's stepdaughters, P.H., then fourteen years old. M.A. spent time at McDonald's house, where he lived with P.H., two other adult children, and his wife. Beginning in October 2018, McDonald began engaging M.A. in sexually explicit discussions. He later touched M.A.'s breast and digitally penetrating her vagina, when his wife was at work and after he told P.H. to go upstairs. The abuse escalated to oral and then vaginal intercourse. In January 2019, McDonald had anal sex with M.A. while P.H. was present, and McDonald told M.A. to have oral sex with P.H. M.A. and P.H.'s relationship ended shortly thereafter. In November 2019, M.A. disclosed the abuse to a friend, which eventually led to a ChildLine report. Police investigated the report and charged McDonald with the above-stated offenses.
One of the adult children living at the home, A.A., was also McDonald's stepdaughter. As discussed herein, McDonald previously pleaded nolo contendere in 2011 for sexually abusing A.A. when A.A. was a minor. In 2017, A.A. began recanting her reports of McDonald's abuse, but she apparently informed investigators and the Commonwealth that she was willing to testify against McDonald in the present case.
M.A. also testified that McDonald and M.A. had video calls during which McDonald told M.A. to touch herself while he masturbated.
Prior to trial in the instant matter, the Commonwealth filed a motion in limine and Pa.R.E. 404(b) notice of its intent to present prior bad acts evidence. The Commonwealth proffered that in 2010, McDonald sexually abused A.A. when she was between fifteen and sixteen years old, and McDonald pleaded nolo contendere to corruption of minors and indecent assault in 2011. The Commonwealth sought to have A.A. testify at trial concerning that prior abuse. Following a hearing, the trial court ruled A.A.'s testimony concerning McDonald's prior bad acts was admissible under the common plan or scheme exception to Pa.R.E. 404(b)(1).
See Commonwealth v. Moser, 999 A.2d 602, 607 and n.8 (Pa. Super. 2010) (holding that evidence of a nolo contendere plea proceeding is inadmissible but noting the Commonwealth can present related prior bad acts evidence through a witness). During the hearing on the Commonwealth's motion, the Commonwealth stated that A.A. was available to testify. A.A. did not testify at the hearing and the parties and the trial court focused on A.A.'s allegations set forth in an incident report in McDonald's prior cases. The court summarized A.A.'s proposed testimony as follows:
A.A. was the daughter of the [McDonald's] paramour. A.A. initially resided with [McDonald], A.A.'s mother, and two other minors . . .. A.A. stated that all of the encounters occurred inside the home of [McDonald].
A.A. indicated the initial encounter with [McDonald] occurred in [McDonald's] bedroom. At that time, [McDonald] was laying on the bed with A.A. when he put his hand down her pants underneath her underwear and touched her genitals. A.A. was unclear whether any penetration occurred. A.A. reported that she told [McDonald] to stop but he continued. [McDonald] also told A.A. how beautiful she was and not to tell anyone what he was doing.
The second encounter occurred in the bathroom of the residence. A.A. was sitting on the floor in the bathroom when [McDonald] came in and closed the door. He proceeded to put his hands in her pants underneath her underwear and touch her genitals even though A.A. told him to stop. There was digital penetration during that incident.
The next encounter occurred in the swimming pool behind the building where A.A. and [McDonald] resided. At this time [McDonald] rubbed A.A.'s breasts and genitals overtop [sic] of her bathing suit. There was no penetration.
The following day, the [McDonald] got out of the shower and yelled for A.A. to come see him in his bedroom. When A.A. entered the bedroom, [McDonald] was laying on the bed with a towel on. When A.A. approached [McDonald], he pulled her pants and undergarments down and then he had sexual intercourse with A.A.
The last encounter . . . occurred in A.A.'s bedroom. A.A. was lying on the bed when [McDonald] came in and performed oral sex on A.A. . . . At the time the assaults occurred [A.A.] was between the ages of fifteen and sixteen.Trial Court Opinion, 10/6/23, at 13-15 (footnotes omitted).
McDonald filed a motion in limine to present evidence that in December 2018, M.A. reported another person had sexually abused her (the "other matter"). In his proffer, McDonald asserted that the county children and youth services agency ("CYS") determined M.A.'s report of the other matter was unfounded. At the hearing on McDonald's motion, McDonald argued the evidence would show: M.A. gave inconsistent statements during the investigation of the other matter; CYS concluded the other matter was unfounded; and M.A. failed to report McDonald's then-ongoing abuse despite reporting the other matter. The trial court ruled that McDonald could present evidence that M.A. reported the other matter in December 2018 but did not disclose McDonald's abuse. The court excluded evidence about CYS's investigation of the other matter and its determination the other matter was unfounded.
At trial, M.A. testified in detail about McDonald's abuse. The Commonwealth also called A.A. to testify about McDonald's prior bad acts. A.A. admitted that she previously told police that McDonald had raped her, but denied that the abuse occurred. During continued questioning by the Commonwealth, A.A. indicated that McDonald did things to other people and had other cases against him, including fifteen new cases. McDonald's counsel immediately objected but expressly stated at a sidebar conference that he did not want a mistrial. See N.T., 7/14/21, at 72. The trial court issued a cautionary instruction immediately after the sidebar conference and again when charging the jury. P.H. also testified during the Commonwealth's case, and she denied McDonald had acted inappropriately toward M.A. and denied having had sex with M.A. and McDonald at the same time.
McDonald, in relevant part, called Detective Kevin Burau to testify that M.A. reported the other matter in December 2018, but did not disclose McDonald's abuse. Consistent with the trial court's pre-trial ruling, the defense did not present evidence concerning M.A.'s statements during the investigation of the other matter or CYS's determination that the other matter was unfounded.
The defense cross-examined M.A. about failing to report McDonald's then on-going abuse in December 2018. The defense also called a solicitor for CYS, Dana Kiwidis, to testify that M.A. had contact with CYS on another matter between December 2018 and June 2019, but did not report McDonald's abuse.
The jury found McDonald guilty of all charges, and on October 20, 2021, the trial court sentenced him to an aggregate term of fifty to one hundred years in prison. McDonald timely filed a post-sentence motion, and with leave of the court filed an amended post-sentence motion. The trial court denied post-sentence relief, and this timely appeal followed. Following this Court's remand, McDonald filed a Pa.R.A.P. 1925(b) statement nunc pro tunc, and the trial court filed a responsive Rule 1925(a) opinion.
The trial court sentenced McDonald on October 20, 2021, but filed its sentencing order on October 21, 2021. We have amended the caption in this case to reflect that this appeal lies from the judgment of sentence and the trial court imposed sentence in open court on October 20, 2021.
McDonald raises the following issues for our review, which we have reordered for disposition:
I. Did the trial court abuse its discretion in permitting the Commonwealth to introduce and/or attempt to introduce [Rule] 404(b) evidence regarding alleged prior bad acts previously committed . . . against [A.A.]?
II. Did the trial court abuse its discretion in limiting the testimony of defense witnesses . . . regarding prior statements or omissions to prior statements made to them by M.A. [in the other matter]?
III. Did the trial court abuse its discretion in failing to grant a mistrial when the Commonwealth elicited testimony from [A.A.] that had been ruled inadmissible?McDonald's Brief at 6 (some capitalization omitted) (reordered).
McDonald's first two issues challenge the trial court's rulings on the parties' motions in limine. This Court reviews a trial court's rulings on motions in limine using the same abuse of discretion standard governing evidentiary rulings. See Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (noting that the admission of evidence is committed to the sound discretion of the trial court). "An abuse of discretion will not be found based on a mere error of judgment, but rather exists where the court has reached a conclusion that overrides or misapplies the law, or where the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will." Commonwealth v. Christine, 125 A.3d 394, 398 (Pa. 2015) (internal citation and brackets omitted). This Court will reverse the trial court's evidentiary ruling only if the appellant sustains his heavy burden to show that the trial court has abused its discretion. See id.
In his first issue, McDonald asserts that the trial court abused its discretion in granting the Commonwealth's motion in limine to have A.A. testify concerning McDonald's prior bad acts.
Pennsylvania Rule of Evidence 404 generally provides that prior bad acts evidence is inadmissible to show that a defendant acted in conformity with those past acts or to show criminal propensity. See Pa.R.E. 404(b)(1). However, prior bad acts evidence may be admissible to prove some other relevant fact, such as motive, opportunity, intent, preparation, plan, knowledge, identity, and absence of mistake or accident. See Pa.R.E. 404(b)(2). One such relevant fact is referred to as the "common plan or scheme exception." Commonwealth v. Gilliam, 249 A.3d 257, 272 (Pa. Super. 2021), appeal denied, 267 A.3d 1213 (Pa. 2021). When considering whether the common plan or scheme exception applies, the trial court must initially examine the details and surrounding circumstances of the prior and current criminal incidents to determine whether the evidence reveals the sufficient similarities and details in the acts committed. See Commonwealth v. O'Brien, 836 A.2d 966, 969, 971 (Pa. Super. 2003) (noting that relevant factors include 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). Next, the court must balance factors to assure that the common plan or scheme evidence is not too remote in time to be probative. See id. at 971. Where the details of each criminal incident are strikingly similar, a lapse of time between the incidents will not require the preclusion of the evidence unless the time lapse is excessive. See id. Finally, the trial court must assure that the probative value of the evidence is not outweighed by its potential prejudicial impact. See id. at 972.
McDonald asserts that the evidence of his prior sexual abuse involving A.A. was too dissimilar to the facts of the instant case and too remote to establish a common plan. He contends the only similarity between A.A. and M.A.'s cases involved the sexual abuse of teenagers. He argues the admission of the evidence was prejudicial and forced him to defend a case-within-a-case. Citing A.A.'s denial of abuse and other issues raised at trial, he concludes that the trial court abused its discretion by allowing the evidence under the common plan or scheme exception.
The trial court, when granting the Commonwealth's motion in limine, thoroughly considered the facts underlying McDonald's prior convictions for offenses committed against A.A., the facts of the present case, and the relevant case law governing the common plan or scheme exception. See Memorandum Opinion and Order, 10/8/20, at 3-15. As the court explained in its Rule 1925(a) opinion:
The comparison between the acts in the instant case and prior acts involving [A.A.] in the 2011 cases leads this court to conclude that a connection between the two sets of acts must have existed in the mind of [McDonald], linking them together for some purpose he intended to accomplish. A comparison of the two crimes yields the following similarities: (1) both crimes involved young females ([A.A] was fifteen to sixteen years old; [M.A.] in this case was thirteen years old); (2) both victims were not related to [McDonald by blood]; (3) the encounters with both victims occurred in the [McDonald's] home; (4) it was [McDonald] who first initiated contact; (5) the assaults occurred when other supervising adults were absent from the home; and (6) the insidious nature of the contact with the victims in both cases evolved by progressing in severity over time . . ..Trial Court Opinion, 10/6/23, at 26-27 (footnotes omitted). Additionally, the trial court found a "striking similarity" between the prior convictions involving A.A. and the present case involving M.A. and upon application of a balancing test concluded that the prejudicial impact did not outweigh the probative value of the evidence. See id. at 27-29.
Having reviewed the record, McDonald's arguments, and the trial court's pre-trial ruling, we discern no abuse of discretion in the trial court's determination that the similarities between McDonald's prior acts against A.A. and the instant acts against M.A. were striking. The trial court did not expressly address the eight-to-nine-year gap between the proffered prior bad acts and McDonald's present offenses in its Rule 1925(a) opinion. However, the trial court was entitled to balance the importance of the gap in time with the similarities between the crimes when considering the remoteness of the prior bad acts evidence. See Commonwealth v. Aikens, 990 A.2d 1181, 1186 (Pa. Super. 2010) (noting that a ten-to-eleven-year gap was not determinative of remoteness where the similarities between the prior bad acts and present crimes included the perpetration of abuse in an identical manner against victims with identical characteristics and in an identical setting). McDonald's generalized assertions that the proffered prior bad acts evidence was too dissimilar, too remote, and too prejudicial merit no relief. Furthermore, his reliance on A.A.'s actual testimony at trial fails to establish that the trial court's pre-trial Rule 404(b) ruling on the Commonwealth's motion in limine amounted to an abuse of discretion. Thus, McDonald's first issue merits no relief.
In his second issue, McDonald challenges the trial court's ruling on his motion in limine seeking to admit evidence that in December 2018, M.A. had reported another person had abused her but CYS determined that allegation was unfounded. As noted above, the trial court granted the motion in part and allowed McDonald to present evidence that M.A. had a proper opportunity to report he was abusing her. On appeal, McDonald contends that the trial court abused its discretion when denying his request to present evidence that CYS determined the other matter was unfounded and that M.A. may have made inconsistent statements when reporting the other matter.
The following principles govern our review. Evidence is relevant if it has "any tendency to make a fact more or less probable than it would be without the evidence[]" and "the fact is of consequence in determining the action." Pa.R.E. 401(a)-(b). Pennsylvania Rule of Evidence 608 limits the type of evidence admissible to challenge a witness's character for truthfulness or untruthfulness to evidence of the witness's general reputation. See Pa.R.E. 608(a)-(b)(1); Commonwealth v. Minich, 4 A.3d 1063, 1069 (Pa. Super. 2010). A witness cannot be impeached on a collateral matter. See Commonwealth v. Johnson, 638 A.2d 940, 942 (Pa. 1994); Commonwealth v. Holder, 815 A.2d 1115, 1119 (Pa. Super. 2003).
McDonald vaguely argues his claim without citation to or meaningful discussion of the relevant law or the record. McDonald baldly insists the trial court improperly impeded his ability to challenge M.A.'s credibility and her testimony that she did not disclose the abuse earlier because she was afraid of him.
Although McDonald's failure to develop a meaningful legal argument could result in waiver, we decline to dismiss this claim as the basis of his argument because his nunc pro tunc Rule 1925(b) statement and the trial court's Rule 1925(a) opinion make clear the basis of his argument.
The trial court explained that it admitted the evidence M.A. did not disclose McDonald's abuse when reporting the other matter. See Trial Court Opinion, 10/6/23, at 35-36. However, the court concluded McDonald insufficiently developed his proffer about why CYS determined the other matter was unfounded and further held the results of the investigations were irrelevant to the allegations against McDonald. See id. The court, therefore, precluded the evidence concerning the outcome of the investigation.
Following our review, we conclude the trial court's ruling on McDonald's motion in limine was proper. The trial court permitted the evidence that M.A. did not report McDonald's abuse even when she reported abuse by another person, and the defense cross-examined M.A. on that matter and called witnesses to testify to that effect. The trial court's ruling precluding McDonald from inquiring into M.A.'s report of the other matter has support in the law precluding impeachment on irrelevant and collateral matters. See Johnson, 638 A.2d at 942; Holder, 815 A.2d at 1119. McDonald fails to demonstrate any abuse of discretion in trial court's well-reasoned ruling to allow relevant evidence as to the timing of M.A.'s disclosure but excluding irrelevant and collateral matters to impeach M.A.'s credibility. Thus, McDonald's second issue merits no relief.
In his third and final issue, McDonald asserts that the trial court abused its discretion in failing to grant a mistrial. The trial court concludes McDonald has waived this issue. See Trial Court Opinion, 10/6/23, at 31-33.
By way of further background, we note that at trial, A.A. recanted her allegations that McDonald had previously sexually abused her and explained that her biological father pressured her to tell police that McDonald raped her. See N.T., 7/14/21, at 64-66. Thereafter, the Commonwealth attempted to impeach A.A., but the trial court sustained McDonald's objections to the Commonwealth's leading questions and treatment of A.A. as a hostile witness. See id. at 66-71. When the court allowed the Commonwealth to pursue its line of questioning concerning A.A.'s statements to investigators in the present case, the following exchanges occurred:
[The Commonwealth to A.A.]. . . . [B]ack in January of last year, do you remember speaking to Officer [Mark] Murphy?
[A.A.]. Vaguely.
* * * *
Q. And what was the purpose of him coming over to talk to you?
A. About . . . McDonald and this case.
Q. And did you have a conversation with Officer Murphy about that?
A. Yes.
Q. And you would agree with me that moments ago you testified that you made up the accusations?
A . I did.
Q. You said that; right?
A. I agree.
Q. Would you also agree that you said something different to Officer Murphy?
A. Yes.
Q. Tell the jury exactly what you told Officer Murphy.
A. That I didn't know that . . . McDonald, what he did before to other people. Like, he said, he has, like, other cases, 15 new cases.
[McDonald's Counsel]: Objection; Your Honor.
[The Commonwealth]: Let's, let me -
THE COURT: The objection is sustained. Is there a side bar request?
[McDonald's Counsel]: Yes.
(WHEREUPON, the following proceedings were had at side bar:)
[McDonald's Counsel]: Judge, I don't want a mistrial at this point, but that is . . . complete fodder for a mistrial for many reasons.
THE COURT [to the Commonwealth]: . . . [W]hen you're asking this witness these questions and trying to impeach her and you obviously don't, I mean, you don't know what she's going to say, she said these things. Something has to be done with this. I am at least going to give a curative instruction.
[The Commonwealth]: I'd agree, Your Honor. If you give a curative instruction, it was a blurt out. That wasn't something that I elicited from her, and that's not something that she told Officer Murphy based on his report.
[McDonald's Counsel]: That's why we need to shut it down, Your Honor. I mean, come on.
* * * *
[The Commonwealth]: I agree, a curative instruction is appropriate.Id. at 71-73 (emphases added). The court stated that it was not declaring a mistrial, directed the Commonwealth to move on to a different line of inquiry, and issued an immediate cautionary instruction for the jury to disregard A.A.'s last statement. See id. at 73-76. The trial court also issued an instruction in its final charge advising the jury that the Commonwealth failed to produce prior bad acts evidence and instructing it not to consider "any argument or statements that were made concerning that when deciding the credibility of M.A." N.T., 7/15/21, at 126.
When a prejudicial event occurs during trial, a defendant may move for a mistrial when the event is disclosed. See Pa.R.Crim.P. 605(B). A defendant cannot claim for the first time on appeal that a mistrial was required. Commonwealth v. Le, 208 A.3d 960, 978 (Pa. 2019).
In the matter sub judice, McDonald did not request a mistrial when A.A. testified that she was unaware of what McDonald did to other people and was told he had other cases against him. To the contrary, although McDonald's counsel objected to this testimony, and the trial court sustained the objection, counsel immediately informed the court at sidebar that he did not want a mistrial at that point. Under these circumstances, we agree with the trial court and conclude that McDonald's claim is waived, and we will not address it. See id.
Judgment of sentence affirmed.