Opinion
J-S63010-19 No. 3124 EDA 2018
01-17-2020
COMMONWEALTH OF PENNSYLVANIA Appellee v. T.L. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered September 20, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003991-2017 BEFORE: GANTMAN, P.J.E., MURRAY, J., and STRASSBURGER, J. MEMORANDUM BY GANTMAN, P.J.E.:
Retired Senior Judge assigned to the Superior Court.
Appellant, T.L., appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas, following his jury trial convictions for rape, involuntary deviate sexual intercourse ("IDSI") with a child, IDSI with a person less than 16 years old, incest, unlawful contact with a minor, and endangering the welfare of a child ("EWOC"). We affirm in part, vacate in part, and remand with instructions.
18 Pa.C.S.A. §§ 3121(a)(1), 3123(b), 3123(a)(7), 4302(a), 6318(a)(1), and 4304(a)(1), respectively.
In its opinion, the trial court correctly sets forth most of the relevant facts and procedural history of this case. Therefore, we have no need to restate them in full. Procedurally, we add that the trial court conducted a pre- trial status hearing on June 11, 2018, the day before trial began. During the hearing, Appellant challenged the proposed testimony of the Commonwealth's expert witness, Dr. Marita Lind, a pediatrician who had conducted a physical exam of Victim several weeks after Victim had reported Appellant's sexual abuse. Specifically, Appellant claimed Dr. Lind could not testify it was medically possible that Victim had been repeatedly raped, even though her hymen was intact, because: (i) Dr. Lind was unqualified to render that opinion; and (ii) Dr. Lind's expert report did not address the significance of the intact hymen. Appellant also indicated he believed he needed his own expert to oppose Dr. Lind's proposed testimony, but Appellant did not request a continuance to procure a defense expert. On the day trial began, June 12, 2018, Appellant moved to preclude Dr. Lind's proposed expert testimony on the effect of intercourse on the hymen. In the motion, Appellant did not ask for a continuance to obtain his own expert witness on the subject. The court denied Appellant's motion.
At trial, Appellant sought to challenge Victim's credibility by cross-examining her about disciplinary actions her school took against her in the past. In particular, Appellant wanted to introduce and question Victim about school records showing her school had sanctioned her in November 2012 and June 2013. Appellant asserted he had threatened to transfer Victim to a different school in light of the school's disciplinary actions, but Victim did not want to leave her school, so she allegedly fabricated the allegations against Appellant. The Commonwealth objected to the school records. The trial court sustained the objection, reasoning the school records constituted inadmissible character evidence.
The trial court sentenced Appellant on September 20, 2018, to an aggregate term of twenty-two (22) to forty-four (44) years' incarceration. The court also notified Appellant of his requirement to register and report for life as a "Tier III" sex offender under "Megan's Law."
The Sexual Offender Assessment Board ("SOAB") concluded Appellant met the criteria of a sexually violent predator ("SVP"), but the trial court did not impose SVP status on Appellant.
Appellant raises the following issues for our review:
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN THE COURT DENIED [APPELLANT]'S REQUEST FOR A CONTINUANCE OF THE TRIAL SUCH THAT HE MAY HIRE AN EXPERT WITNESS[?](Appellant's Brief at 11).
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN THE COURT PRECLUDED [APPELLANT] FROM QUESTIONING [VICTIM] ABOUT SPECIFIC INCIDENTS, WHICH ESTABLISHED A MOTIVE FOR [VICTIM] TO FABRICATE THE TESTIMONY[?]
WHETHER THE TRIAL COURT ABUSED ITS DISCRETION AND COMMITTED REVERSIBLE ERROR WHEN THE COURT DENIED [APPELLANT]'S POST-SENTENCE MOTION, WHICH CHALLENGED THE WEIGHT OF THE EVIDENCE[?]
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Susan I. Schulman, we conclude Appellant's issues one and three merit no relief. The trial court opinion comprehensively discusses and properly disposes of Appellant's first and third questions presented. ( See Trial Court Opinion, filed April 17, 2019, at 15-18) (finding: (1) in his motion in limine, Appellant challenged only substance of Dr. Lind's proposed expert testimony and requested trial court to preclude her expert testimony; Appellant asserts for first time on appeal Dr. Lind's report was untimely and trial court should have granted continuance to allow Appellant time to procure opposing expert testimony, although Appellant did not request continuance; therefore, Appellant's claim is waived; (3) Appellant's claim that verdict was contrary to weight of evidence fails; only "conflict" in case was Victim's concern her family would be separated if she reported her father's sexual abuse; Victim's testimony was explicit about her personal "conflict"; jury credited Victim's candid testimony; no basis exists to disturb verdict). The record supports the trial court's rationale. Accordingly, we affirm on the basis of the trial court opinion as to Appellant's first and third issues.
In his second issue, Appellant argues he sought to introduce Victim's school records as part of his defense theory that Victim had a motive to fabricate her accusations against Appellant, not to impeach Victim's credibility. Appellant asserts the trial court incorrectly relied upon Commonwealth v. Minich , 4 A.3d 1063 (Pa.Super. 2010) and Pa.R.E. 608 to bar admission of Victim's school records. Appellant contends the school records constituted "reverse Rule 404(b) evidence," admissible under Pa.R.E. 404(b)(2). Appellant maintains the trial court's preclusion of the school records violated his right of confrontation. Appellant concludes this Court should vacate the judgment of sentence and remand for further proceedings. We disagree.
Issues not raised in a Rule 1925(b) concise statement of errors will be deemed waived. Commonwealth v. Castillo , 585 Pa. 395, 403, 888 A.2d 775, 780 (2005) (quoting Commonwealth v. Lord , 553 Pa. 415, 420, 719 A.2d 306, 309 (1998)). "Rule 1925(b) waivers may be raised by the appellate court sua sponte." Commonwealth v . Hill , 609 Pa. 410, 427, 16 A.3d 484, 494 (2011). The Rule 1925(b) statement must be "specific enough for the trial court to identify and address the issue [an appellant] wishe[s] to raise on appeal." Commonwealth v. Reeves , 907 A.2d 1, 2 (Pa.Super. 2006), appeal denied, 591 Pa. 712, 919 A.2d 956 (2007). Instantly, Appellant failed to raise in his Rule 1925(b) statement any issue regarding the violation of his right of confrontation. Thus, to the extent Appellant asserts the trial court violated his right of confrontation when it barred the admission of Victim's school records, that claim is waived for purposes of appellate review. See Castillo , supra.
"The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error." Commonwealth v. Ballard , 622 Pa. 177, 197-98, 80 A.3d 380, 392 (2013), cert. denied, 573 U.S. 940, 134 S.Ct. 2842, 189 L.Ed.2d 824 (2014).
The term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill will.Commonwealth v. Goldman , 70 A.3d 874, 878-79 (Pa.Super. 2013), appeal denied, 624 Pa. 672, 85 A.3d 482 (2014). "To constitute reversible error, an evidentiary ruling must not only be erroneous, but also harmful or prejudicial to the complaining party." Commonwealth v. Lopez , 57 A.3d 74, 81 (Pa.Super. 2012), appeal denied, 619 Pa. 678, 62 A.3d 379 (2013).
As a general rule:
Cross-examination may be employed to test a witness' story, to impeach credibility, and to establish the witness' motive for testifying. A witness may be cross-examined as to any matter tending to show the interest or bias of that witness. It is particularly important that, where the determination of a defendant's guilt or innocence is dependent upon the credibility of a prosecution witness, an adequate opportunity [must] be afforded to demonstrate through cross-examination that the witness is biased.Commonwealth v. Hyland , 875 A.2d 1175, 1186 (Pa.Super. 2005), appeal denied, 586 Pa. 723, 890 A.2d 1057 (2005).
Pennsylvania Rule of Evidence 404 provides in part as follows:
Rule 404. Character Evidence; Crimes or Other Acts
(a) Character Evidence.
(1) Prohibited Uses. Evidence of a person's character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
(2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case:
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(B) subject to limitations imposed by statute a defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted the prosecutor may:
(i) offer evidence to rebut it; and
(ii) offer evidence of the defendant's same trait; and
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Pa.R.E. 404(a)(1), (a)(2)(B), (a)(3), (b)(1-2). Pennsylvania Rule of Evidence 405 states in part as follows:
(3) Exceptions for a Witness. Evidence of a witness's character may be admitted under Rules 607, 608, and 609.
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(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.
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Rule 405. Methods of Proving Character
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(b) By Specific Instances of Conduct. Specific instances of conduct are not admissible to prove character or a trait of character, except:
Pa.R.E. 405(b)(2). "With regard to criminal cases, under Pa.R.E. 404(a)(2)(B), the accused may offer evidence of a pertinent trait of character of the alleged crime victim." Pa.R.E. 405 Comment.
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(2) In a criminal case, when character or a character trait of an alleged victim is admissible under Pa.R.E. 404(a)(2)(B) the defendant may prove the character or character trait by specific instances of conduct.
Additionally, "the defense may introduce evidence that someone else committed a crime that bears a highly detailed similarity to the crime with which a defendant is charged." Commonwealth v. Patterson , 625 Pa. 104, 131, 91 A.3d 55, 72 (2014), cert. denied, ___ U.S. ___, 135 S.Ct. 1400, 191 L.Ed.2d 373 (2015).
Criminal defendants are entitled to offer evidence that some other person committed a similar crime at or around the same time they are alleged to have committed a crime. Evidence to establish this fact is admissible after consideration of two distinct factors that coalesce to establish its relevance and probative value. Those factors: are 1) the lapse of time between the commission of the two crimes; and 2) the resemblance between the methodologies of the two crimes. Thus, even if the time lapse between commission of the crimes is brief..., the evidence is not admissible unless the nature of the crimes is so distinctive or unusual as to be like a signature or the handiwork of the same individual.Commonwealth v. Palagonia , 868 A.2d 1212, 1216 (Pa.Super.2005), appeal denied, 584 Pa. 675, 880 A.2d 1238 (2005)) (internal citations and quotation marks omitted). See also Commonwealth v. Gill , ___ Pa. ___, ___, 206 A.3d 459, 468-74 (2019) (Wecht, J., concurring) (referring to evidence admitted under rubric set forth in Palagonia , supra as "reverse 404(b)" evidence; stating: "'Reverse 404(b)' evidence, as it is has been labeled (or mislabeled) by courts and commentators alike, is evidence of a crime committed by a third party that is similar to the crime for which the defendant stands accused, and that a defendant seeks to admit for the purpose of establishing that the defendant was not the perpetrator of the charged offense") (internal footnotes omitted).
Pennsylvania Rule of Evidence 608 addresses the admissibility of evidence relating to a witness' character for truthfulness or untruthfulness as follows:
Rule 608. A Witness's Character for Truthfulness or UntruthfulnessPa.R.E. 608(b)(1) (emphasis added). In other words, "Pa.R.E. 608(b)(1) prohibits the use of evidence of specific instances of conduct to support or attack credibility." Pa.R.E. 608 Comment.
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(b) Specific Instances of Conduct. Except as provided in Rule 609 (relating to evidence of conviction of crime),
(1) the character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning specific instances of the witness' conduct; ...
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In Minich , this Court analyzed the intersection and applicability of Rules of Evidence 404(a)(2), 405, and 608, where a criminal defendant seeks to introduce character evidence against a victim who offered testimony against the defendant:
[W]hile Pa.R.E. 608 addresses only one character trait (truthfulness or untruthfulness), and prohibits the use of instances of specific conduct to establish the trait, Pa.R.E. 404(a) applies to evidence regarding any "pertinent" character trait and, through the operation of case law codified in Pa.R.E. 405, allows evidence of specific conduct to prove the "pertinent" trait.Minich , supra at 1069-70 (internal footnote omitted) (discussing previous versions of Pa.R.E. 404(a), 405, and 608, provisions of which germane to current appeal remain largely unchanged).
[A] "pertinent" character trait for purposes of Pa.R.E. 404(a)(2)[] is limited to a character trait of the victim that is relevant to the crime or defense at issue in the case. Therefore, whenever the accused seeks to offer character evidence for purposes of attacking or supporting the credibility of a victim who testifies, the admissibility of such evidence is governed by Pa.R.E. 608 and proof of specific incidents of conduct by either cross-examination or extrinsic evidence is prohibited. To hold otherwise would allow the phrase "pertinent trait of character" in Pa.R.E. 404(a)(2) to modify established case law defining the parameters of permissible evidence to impeach or bolster the credibility of witnesses.
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In the present case, the Commonwealth sought to preclude Minich from introducing evidence of specific instances in which the victim of a sexual assault was caught lying in school about matters wholly unrelated to the allegations against Minich. Based upon its broad interpretation of the phrase "pertinent trait of character," the trial court concluded that such evidence was admissible under Pa.R.E. 404(a)(2)[]. In light of our holding, this determination was in error. Minich intends to use this evidence to challenge the victim's credibility. As such, its admissibility is governed
by Pa.R.E. 608. Capturing Pennsylvania law, Pa.R.E. 608 provides that "the character of a witness for truthfulness may not be attacked...by cross-examination or extrinsic evidence concerning specific instances of the witness' conduct." Pa.R.E. 608(b)(1). As this is the precise purpose for which Minich intends to use this evidence, it is not admissible.Id. at 1072- 73 (internal citation to record omitted) (holding Pa.R.E. 608, not Pa.R.E. 404(a)(2), barred admission of school records showing minor victim had cheated and lied in school, where criminal defendant was on trial for sex offenses against minor victim who would testify against defendant at trial; "evidence of specific instances in which the victim of a sexual assault was caught lying in school about matters wholly unrelated to the allegations against [the defendant]," did not exhibit "pertinent trait of character" of victim under Rule 404(a)(2), but went to victim's character for truthfulness under Rule 608; therefore, Rule 608, not Rule 404(a)(2), governed admissibility of victim's school records and barred their admission into evidence).
Instantly, Appellant was charged with multiple sex offenses resulting from his sexual abuse of Victim, his minor daughter, who testified against Appellant at trial. On cross-examination of Victim, Appellant tried to introduce records detailing school disciplinary actions against Victim in 2012 and 2013. Appellant planned to use the school records in his defense that Victim had fabricated the allegations in retaliation because Appellant had threatened to transfer Victim to a different school and she did not want to change schools. The trial court sustained the Commonwealth's objection to the school records and explained its rationale on the record as follows:
THE COURT: In regard to [Appellant]'s motion to use the [school] log entries 6/12/13 and 11/19/2012 during cross-examination of [Victim], I am sustaining the Commonwealth's objection and said log entries will not be permitted as far as impeachment of [Victim] during cross-examination.(N.T. Motion, 5/14/18, at 76-77). Contrary to Appellant's assertion, the trial court correctly relied upon Pa.R.E. 608 and Minich. See Goldman , supra ; Minich , supra. Additionally, Appellant's characterization of the school records as "reverse 404(b)" evidence is misplaced. See Gill , supra ; Palagonia , supra. The school records did not show some third party had committed sex offenses similar to the offenses charged against Appellant, and Appellant did not intend to admit the school records to show someone else, rather than Appellant, had committed the crimes in this case. See Gill , supra ; Palagonia , supra. Accordingly, Appellant's second issue merits no relief.
The holding of [ Minich , supra ] is directly on point where school records were sought to be introduced by way of cross-examination of a victim to challenge that victim's credibility. And based upon Minich and analyzing Rule 608 as well as Rule 404, both of which govern this issue, ..., the law as the Superior Court has framed it would prevent the character of a witness would hold, rather, that the character of a witness for truthfulness may not be attacked by cross-examination or extrinsic evidence concerning specific instances of the witness' conduct.
So, that is my ruling in regard to these log entries. ...
Nevertheless, the written sentencing order in this case includes sex offender conditions, lifetime registration, and compliance with "all Tier III Megan's Law requirements." ( See Order of Sentence, 9/20/18, at 1.) This directive is inherently inconsistent, because Megan's Law has no "tiers" but does require lifetime registration for Appellant's conviction for rape. On the other hand, SORNA has a Tier III lifetime registration with additional requirements, which are not included in Megan's Law. To the extent Appellant's registration requirements implicate SORNA, recent case law has called into question the validity of applying SORNA registration requirements to offenses committed before the effective date of SORNA (12/20/12). See Commonwealth v. Wood , 208 A.3d 131, 140 (Pa.Super. 2019) (en banc) (holding effective date of SORNA controls for purposes of ex post facto analysis); Commonwealth v. Lippincott , 208 A.3d 143 (Pa.Super. 2019) (en banc) (stating same). Consequently, we elect to review the legality of Appellant's sentence sua sponte. See Commonwealth v . Randal , 837 A.2d 1211 (Pa.Super. 2003) (en banc) (explaining challenges to illegal sentence may be raised by this Court sua sponte, assuming jurisdiction is proper; illegal sentence must be vacated).
Importantly,
Our Supreme Court declared SORNA unconstitutional, to the extent it violates the ex post facto clauses of both the United States and Pennsylvania Constitutions. [ Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189 (2017), cert. denied, ___ U.S. ___, 138 S.Ct. 925, 200 L.Ed.2d 213 (2018)]. The Muniz court determined SORNA's purpose was punitive in effect, despite the General Assembly's stated civil remedial purpose. SORNA also violates the ex post facto clause of
the Pennsylvania Constitution because it places a unique burden on the right to reputation and undermines the finality of sentences by demanding more severe registration requirements. The effective date of SORNA, December 20, 2012, controls for purposes of an ex post facto analysis.Commonwealth v. Alston , 212 A.3d. 526, 528-29 (Pa.Super. 2019) (footnotes and some internal citations omitted). If the defendant's offenses occurred before and after the effective date of SORNA, then the defendant "is entitled to the lower reporting requirements of Subchapter I, absent a specific finding of when the offenses related to the convictions actually occurred." Id. at 530 (emphasis added).
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Following Muniz ..., the Pennsylvania General Assembly enacted legislation to amend SORNA. Act 10 amended several provisions of SORNA, and also added several new sections found at 42 Pa.C.S.A. §§ 9799.42, 9799.51-9799.75. In addition, the Governor of Pennsylvania signed new legislation striking the Act 10 amendments and reenacting several SORNA provisions, effective June 12, 2018. Through Act 10, as amended in Act 29, the General Assembly created Subchapter I, which addresses sexual offenders who committed an offense on or after April 22, 1996, but before December 20, 2012. Subchapter I contains less stringent reporting requirements than Subchapter H, which applies to offenders who committed an offense on or after December 20, 2012.
Instantly, Appellant committed the sex offenses at issue between 2008 and 2017, which time frame straddles the effective date of SORNA. See Wood , supra. When the jury convicted Appellant of rape, IDSI with a child, IDSI with a person less than 16 years old, incest, unlawful contact with a minor, and EWOC, the jury did not find specific dates when Appellant committed the offenses. Without a specific finding from the chosen factfinder of when the offenses occurred, Appellant is subject to the less stringent reporting requirements of Subchapter I of SORNA. See Alston , supra. Accordingly, we affirm the judgment of sentence in part but vacate only that portion of the judgment of sentence regarding Appellant's sex offender registration and reporting requirements. Thus, we remand the case to the trial court to impose the Subchapter I registration and reporting requirements of SORNA and to instruct Appellant on those requirements.
Judgment of sentence affirmed in part and vacated in part solely as to the sex offender registration and reporting requirements; case remanded with instructions. Jurisdiction is relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/17/20
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