Opinion
No. 1579 EDA 2020
06-24-2021
COMMONWEALTH of Pennsylvania v. Aaron THOMAS, Appellant
MEMORANDUM BY LAZARUS, J.:
Aaron Thomas appeals from the judgment of sentence entered on May 29, 2020 by the Honorable John P. Capuzzi in the Court of Common Pleas of Delaware County, after a jury convicted him of rape of a child, involuntary deviate sexual intercourse with a child, sexual assault, indecent assault of a person less than 13 years of age, and corruption of a minor. After careful review, we affirm on the basis of the opinion authored by Judge Capuzzi.
18 Pa.C.S.A. § 6301(a)(1-2).
The trial court summarized the factual background as follows:
D.J. is presently fourteen years of age and lives in Wilmington, Delaware, where she is in eighth grade. D.J. lives with her mother and two brothers. D.J. has been living in Wilmington for the past three years; prior to that she lived in Chester, Delaware County. D.J.’s grandmother (S.G.) and her now ex-boyfriend (Greg), D.J.’s aunt (R.G.) and her boyfriend [Thomas], [D.J.’s] uncle and his girlfriend, as well as [D.J.’s] little cousin, reside [together] in Chester, PA. The house [ ], owned by S.G., consists of three floors: the basement; the first floor which contains a kitchen, dining room and living room; and the upstairs where there are three bedrooms and one bathroom.
When D.J. lived in Chester, she would often visit her [S.G.’s house], which is where she first met [Thomas]. It was not unusual for D.J. and her two brothers to often spend the night at the house. [Thomas] met D.J. when she was approximately eight years old; about a year later, when D.J. was nine, the abuse began and continued until D.J. was eleven. About a week before [Thomas] began abusing D.J. he started telling her things of a sexual nature, such as, explanations about boys and girls having different parts that they enjoyed touching on each other and that sex feels good.
One evening, D.J. was downstairs on the basement couch, alone, when [Thomas] came down and started touching her under her shirt. [Thomas] bent D.J.’s body over the arm of the couch, pulled her pants down to her ankles, and put his penis inside of her anus, which caused her pain. As he was doing this, D.J. heard [Thomas] making a grunting noise. When he finally stopped, [Thomas] grabbed some paper towels and walked upstairs to the kitchen.
The second time that [Thomas] abused D.J. she was in the kitchen. Although she doesn't remember exactly what day it was, D.J. was standing in the kitchen leaning over a small counter. [Thomas] came into the kitchen, walked behind D.J., and lifted up her shirt, kissed the back of her neck, and pulled down her pants. From behind, [Thomas] put his penis into D.J.’s anus and then into her vagina, which was incredibly painful for her and she repeatedly told him that it hurt. [Thomas] was grunting and kept telling D.J. to moan for him. D.J. repeated how much it hurt and [Thomas] eventually stopped. Not only was it painful but the vaginal penetration scared her because her grandmother is a very religious woman and has always taught her that premarital sex is a sin. Because of that, D.J. thought that she was going to be in a lot of trouble and go to hell.
On a third occasion, the abuse occurred in the living room of the home. This time, [Thomas] told D.J. to rub his penis with her hands. [Thomas] then told D.J. to get on her knees and put his penis in her mouth. [Thomas] told her she was doing it wrong and to stop biting and suck it like a popsicle. After a bit, [Thomas] told her it was enough and to stop. It wasn't painful, but it was humiliating. D.J. did discuss the abuse with [Thomas] on one occasion and asked him if he felt "a certain way" because she was so young, to which [Thomas] responded, "since you act grown up, that is how I will treat you." [Thomas] told her that if anyone ever found out, they would both be in a lot of trouble.
For approximately two years following the last incident, D.J. remained quiet and did not tell anyone for fear of getting in trouble and because she just wanted to forget about what had happened to her. However, in December of 2018, when D.J. was thirteen it became too much to bear on her own. She found herself becoming really closed off and had a hard time trusting other people; she also felt guilty for lying to her friends and family. While on the phone with her father one evening, he asked her several times if something was wrong and if she was okay; she lied and said she was fine but felt guilty for lying to him. When she hung up the phone, her mother asked her if she was okay; she said she was not but that she did not want to talk about it. After that conversation, it felt like too much of a burden to keep to herself, so, in gym class at school, she told her friends, including her best friend, M.G., what had happened. Her friends immediately told the gym teacher, Ms. Lauren Aherns, that D.J. needed to talk to her. After telling Ms. Aherns, D.J. also spoke with Officer Jones of the Chester Police Department and had a child interview with Ms. Susanne Whiting at the Child Advocacy Center of Delaware County, which was a recorded session in January of 2019.
Trial Court Opinion, 10/21/20, at 2-4 (citations and quotation marks omitted).
Following trial, the jury returned guilty verdicts on all counts. The court sentenced Thomas to an aggregate term of fourteen to twenty-eight years’ imprisonment, followed by 7 years of probation. The court further ordered Thomas to comply with any psychosexual evaluations, complete the state sex offenders’ program, and to comply with all recommendations. Thomas was also ordered to have no contact with the victim and to register as a Tier III sex offender under Pennsylvania's Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10 - 9799.42.
Thomas filed this timely appeal. He raises the following issue for our review:
Whether the trial court erred in failing to grant the defense motion for mistrial made at the conclusion of the Commonwealth's closing argument where the prosecutor argued as fact certain matters that were not in evidence, all of which was extremely prejudicial and served to deprive [ ] Thomas of a fair trial.
Appellant's Brief, at 7.
Our standard of review on an appeal from the denial of a motion for mistrial is limited to determining whether the trial court abused its discretion. Commonwealth v. Chamberlain, 30 A.3d 381 (Pa. 2011).
[T]he remedy of a mistrial is an extreme one. It is primarily within the trial court's discretion to determine whether Appellant was prejudiced by the event that forms the substance of the motion. It must be remembered that a mistrial 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.
Commonwealth v. Risoldi , 238 A.3d 434, 458 (Pa. Super. 2020) (quoting Commonwealth v. Lease , 703 A.2d 506, 508 (Pa. Super. 1997) ).
At the conclusion of the prosecution's closing argument, Thomas made a motion for mistrial in response to remarks made by the prosecution regarding childhood trauma. Thomas argues these remarks amounted to "extra-judicial evidence since here was no testimony, expert [or] otherwise, in the record to support the claim made that [Thomas’] conduct was consistent with how a sexual predator would act or how the victim's response to the alleged assault was consistent with other similarly situated children." Appellant's Brief, at 10. He contends these remarks created bias, affecting the jury's ability to fairly weigh the credibility of the witnesses. Specifically, Thomas points to the following remarks in the prosecutor's closing argument:
[District Attorney]: First of all, I talked to you a little bit about the reality of sexual offenses. These - especially child sexual offenses, these are done in private. It is calculated to be that way. Perpetrators rely on the fact that children are probably not going to report until maybe they're older or that they're scared to report or that they're an authority figure over them. And then lends to certain kinds of evidence. It's very frequent for children to disclose when they finally do become an age where they're able to do so, and especially if it's someone in their life who is an authority figure, like I said, over them.... I first want to go over the corroborative material of the victim's statement that you saw. First of all, the disclosure itself. She goes and she tells her friends first. This is consistent with child sexual abuse. Kids are scared of getting in trouble. Well, sex offenders aren't necessarily careful. They're impulsive. They're doing something extremely risky because they're -- they want it even though it's something that could get them in a lot of trouble. So ask yourself is this the kind of story someone would make up. First of all, she talks about grooming behavior. It was very specific things she said he talked with her about, very unique things that, you know, boys like - like your parts and [girls] like my parts and sex feels good and stuff like that. And what's unique about that as well is that it – it's something apart from the actual abuse. It's something apart from like the physical abuse. And if she's lying, she wouldn't add that extra element to this. That's because she's recollecting that this actually happened, and that fits the behavior of a perpetrator of this abuse, normalizing -- normalizing a child to that kind of behavior, to that kind of incident.
Id. at 13-16 (quoting N.T. Jury Trial, 02/20/20, at 45-62 (internal quotation marks omitted)).
We agree with the trial court that the prosecutor's brief and inconsequential remarks regarding the trauma that child victims often suffer was common sense and an argument that could be inferred from the child's testimony. As the trial court concluded, the child explained in her testimony how the years of being raped by someone close to her family negatively impacted her social, emotional, and physical health. She admitted to feeling agony, shame, fear, and detachment from family and friends as a result of both the incident and maintaining secrecy. Both parties recognize that this case hinges on the victim's word against that of Thomas, since there was no physical evidence presented due to the amount of time that had passed since the alleged incidents. Therefore, the verdict rested on the credibility of the parties’ testimony. The prosecutor's arguments were logical inferences from the testimony. Nothing was said in the prosecutor's closing argument that warranted the testimony of an expert.
Further, the court instructed the jury that they were the finders of fact and that their recollection of the facts ruled over counsel's recollection of the evidence. N.T. Jury Trial, 2/20/20, at 72-74. See Commonwealth v. Cole, 167 A.3d 49, 77 (Pa. Super. 2017) (jurors are presumed to follow court's instructions).
After a thorough review of the record, the parties’ briefs, the applicable law, and Judge Capuzzi's detailed opinion, we agree the jury did not require an expert witness to explain that D.J. suffered in many ways as a result of the rape. We further agree that expert testimony was not required to state what is commonly understood and well known about the trauma that often results from sexual abuse. The remarks in the prosecutor's closing statements did not have an unavoidable effect of depriving Thomas of a fair and impartial trial. Risoldi, supra. The trial court properly exercised its discretion in denying the motion for mistrial. Chamberlain, supra.
We affirm on the basis of Judge Capuzzi's opinion. The parties are instructed to attach a copy of that opinion in the event of further proceedings.
Judgment of sentence affirmed.
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