Appeal from the Judgment of Sentence entered June 22, 2010, in the Court of Common Pleas of Allegheny County, Criminal Division, at No(s): CP-02-CR-0002851-2007.
The opinion of the court was delivered by: Strassburger, J.
BEFORE: BENDER, DONOHUE, and STRASSBURGER,*fn1 JJ.
OPINION BY STRASSBURGER, J.:
Appellant, William Page, appeals from the judgment of sentence of life in prison after a jury convicted him of first-degree murder, kidnapping, aggravated indecent assault of a child, and false reports to law enforcement.*fn2 Appellant has also filed a motion to strike a document from the certified record. After careful review, we deny the motion and affirm Appellant's judgment of sentence.*fn3
The trial court summarized the underlying facts as follows.
In February of 2007, [Appellant] was living with his girlfriend, [D.R.], and her six year old son, [X.H.] and their twenty-three month old daughter, [Victim], [in the Borough of Braddock]. Also living in this house was [Appellant's] mother, Mary Ann Page, her boyfriend, Shauntaz, and [Appellant's] brother, James Page. [Appellant] and [D.R.] shared a bedroom on the third floor and across the hall from them, [X.H.] and [Victim] shared a bedroom. On the second floor, [Appellant's] mother and her boyfriend shared one bedroom and [Appellant's] brother, James, used the other bedroom. The first floor consisted of the living room, kitchen and bathroom. One-half of the basement was used for a laundry room and the other half was used for [Appellant's] "dungeon." [Appellant] had a chair, mattress, television and Play Station games set up in this area and that is where he would go to watch his pornographic movies.
On February 3, 2007, at approximately 7:00 a.m., [X.H.] went into his mother's bedroom and asked her where [Victim] was. [D.R.] told him that [Victim] was in their bedroom and that he should go back to his room. [X.H.] told his mother that [Victim] was not there and then [D.R.] and [Appellant] both got up and got dressed and went through the house looking for [Victim] but were unable to locate her. [Appellant] went outside, went around the premises and could not locate her and then came back in, dialed 911 on a portable phone and then gave the phone to [D.R.] so that she could tell the police that her twenty-three month old daughter was missing.
James Caterino, (hereafter referred to as "Caterino"), a part-time Braddock police officer, was the first police officer to arrive on the scene. Caterino was met by the residents of the house and he noticed that [D.R.] was hysterical about her missing daughter and, yet, [Appellant] seemed emotionless since he had no expression and he did not appear to be upset. Officer Latisha Cassidy, (hereinafter referred to as "Cassidy"), of the Rankin Police Department, arrived on the scene to assist the Braddock Police and she sat with [Appellant] for an extended period of time and she also noted that he appeared to be emotionless. The Braddock Police Department contacted the Allegheny County Police Department and asked for assistance since they did not have sufficient manpower to conduct an intensive search for this missing child. In addition to contacting the Allegheny County Police, the Braddock Police Department put out an Amber Alert for [Victim].
Detectives Dennis Kozlowski, (hereinafter referred to as "Kozlowski"), and Michael Caruso, (hereinafter referred to as "Caruso"), from the Allegheny County Police conducted the initial interviews with residents of [Appellant's] household. In light of the frantic atmosphere in the house, it was decided that it was best to remove all of these individuals from the house so that an extensive search of the house could be made and also to enable them to conduct more in-depth interviews with each of the residents. Before the residents were removed from the house, a cursory search of the house was made. In the dungeon area of the basement, the police found a Steelers' Terrible Towel soaked through with blood. They found a child's t-shirt also soaked with blood. In addition, they found women's underwear soaked with blood and a mattress cover and sheet that covered a mattress also having blood stains. While they were collecting this evidence, [Appellant] told the police that a non-functioning blue electric blanket was missing from the basement area.
From February 3, 2007 through February 7, 2007, the Braddock Police, the Allegheny County Police, and the FBI, which had been called in as a result of the disappearance of [Victim], repeatedly interviewed [Appellant]. The Braddock Police interviewed [Appellant] at his residence shortly after they arrived after receiving the call about [Victim's] disappearance. After all of the residents were removed from the house, [Appellant] was taken to the Braddock Police Department where Caruso initially interviewed him. [Appellant] was then transported to the Allegheny County Police Headquarters where he was interviewed by Detective Edward Adams, (hereinafter referred to as "Adams"), and later reinterviewed by Detective Edward Fischer, (hereinafter referred to as "Fischer"). All of the other residents of the house were repeatedly interviewed, including [X.H.]. [X.H.] was interviewed because he was the last person to have seen [Victim] alive and during the course of this forensic interview, [X.H.] told Dr. Silver that [Appellant] had touched him inappropriately shortly before [Victim] followed [Appellant] out of their bedroom. County Detectives Gregory Matthews, (hereinafter referred to as "Matthews"), and Fischer observed Dr. Silver's interview of [X.H.] through a two-way glass and as a result of this allegation, decided to reinterview [Appellant].
[Appellant] was brought to the Allegheny County Police headquarters and initially was interviewed by Adams. Prior to asking [Appellant] any questions, Adams advised him of his Miranda*fn4 Rights and had [Appellant] sign the County Miranda Warnings Form. Matthews and Fischer then interviewed [Appellant] approximately two and one-half hours later and these Detectives advised him of the claim made by [X.H.], which claim [Appellant] denied. The Detectives conducted their interview and at the conclusion of that interview, [Appellant] then said to him that he would check the woods by the railroad track. [Appellant] was arrested and charged with the crime of indecent assault of a child and was transported to the Allegheny County Jail. While [Appellant] was being transported to the Allegheny County Jail, he was asked if he would be willing to speak to the FBI and [Appellant] said he would be.
On February 4, 2007, [Appellant] was interviewed by Agent John Kelly, (hereinafter referred to as "Kelly"), of the FBI at the FBI headquarters. Kelly did not Mirandize [Appellant] since he had been advised that [Appellant] had previously been Mirandized. In the course of that interview, [Appellant] told Kelly that he believed that the blue blanket had something to do with [Victim] and he did not believe that a stranger had something to do with this but, rather, he suggested that the FBI should look at friends of his brother or friends of his mother's boyfriend. At the conclusion of this interview [Appellant] put his head down and began to cry; however, Kelly noticed no tears and believed that this was an act put on for his benefit.
While the FBI was interviewing [Appellant], the more than one hundred police officers and volunteers were still canvassing the area in and around [Appellant's] residence in Braddock.
From the command post that had been set up, search teams were dispatched to various areas and were told to work a grid in searching for [Victim]. Allegheny County Police Detective
Timothy Stetzer, (hereinafter referred to as "Stetzer"), was working with five other FBI agents in a grid that had been assigned to him. On the morning of February 4, they found a diaper on the railroad tracks that traversed the grid. They took this diaper into evidence and when it was brought to the command site, it was determined that this diaper was similar to the diapers that [Appellant] and [D.R.] had purchased on February 2, 2007. At approximately 2:00 p.m. on February 4, Stetzer and his team continued their search and as they were walking the grid area, they came to a hollow or ravine and Stetzer discovered a broken, wooden step and staircase that led to a wooded area and overgrown basketball courts that were no longer used. Stetzer and his team began to walk this area when one of the FBI agents yelled out that he thought he saw a blue blanket. Because of Stetzer's location, he was the first individual to arrive at the blanket and they noticed that it was a blue blanket with electrical wires. Since they had been alerted that a blue blanket might be with [Victim], they continued to search this area, only to discover the body of [Victim] facedown, frozen to the ground. She was clad only in a maroon-striped sweater. The temperature during the period of February 2 through February 4, was in the single digits and the wind-chill factor reached minus nine degrees.
Following the discovery of [Victim's] body, Detective Andrew Sherman, (hereinafter referred to as "Sherman"), went to the FBI headquarters where [Appellant] was being interviewed for a second time. Sherman had been advised that [Appellant] had been Mirandized again and then told [Appellant] that they had found his daughter and that she was dead. [Appellant] reacted by trying to cry, however, he had no tears. This was noted by all of the individuals who were present in the room with him. [Appellant] then told Sherman what happened. [Appellant] said that in the early hours of February 3, he was down in his dungeon when he encountered [Victim] on the first floor. He told her to get back in bed and when she did not, he hit her and she fell to the floor and went unconscious. [Appellant] ran to the basement to get the Steeler Terrible Towel since [Victim] had a big gash in her forehead. Not knowing what to do, he wrapped her up in the blue blanket, took her outside and then put her by the railroad tracks and returned to his residence. At the conclusion of the interview, Sherman contacted the command post, relayed the information that he had, and he was then advised that [Victim] had no gash on her forehead. Sherman then confronted [Appellant] with the fact that [Victim] had no gash and [Appellant] told him everything that he had just told Sherman was a lie and that he knew they did not find her by the railroad tracks. He then said he just wanted to get this over and that they should sentence him.
The police continued with their investigation and were able to discover a witness who was a neighbor. Ebony Mitchell told police that she was getting ready for work in the early morning hours of February 3 when she looked out her window and saw [Appellant] returning to his house from the direction of the railroad tracks and abandoned playground. In light of [Appellant's] claim that he had hit [Victim], thereby causing a gash to her forehead, the police went back to his residence and put luminol, a chemical that detects blood, in the area where [Appellant] said [Victim] fell and cut her forehead and found no evidence of blood.
On February 6, 2007, [Appellant] was taken from the Allegheny County Jail to Homicide Headquarters where he was interviewed by Detective Lawrence Carpico, (hereinafter referred to as "Carpico"). Before the interview started, Carpico explained [Appellant's] rights and had him execute another Miranda rights form. Carpico ended their interview when [Appellant] said he wanted to speak to his lawyer. On February 7, 2007, Detective Robert Opferman, (hereinafter referred to as "Opferman"), arrested [Appellant] and charged him with the crimes of criminal homicide and kidnapping. [Appellant] then told the police that he wanted to talk to them and once again he was given his Miranda rights and again executed another County Miranda Rights Warnings form. [Appellant] gave both a written and taped statement in which he told the police that he was in the basement of his house at approximately 3:00 a.m. when [Victim] came down the basement steps and took off her diaper and threw it on the floor. He told her to put the diaper back on, she refused to do it, he put the diaper back on and once again, she took it off. [Appellant] then became enraged and kicked her between the legs while he was wearing a Timberland boot.
[Victim] then began to [bleed] and [Appellant] got the Terrible Towel in an attempt to stop the bleeding. He got a t-shirt and women's underwear and tried to dab the blood that was coming from [Victim]. [Appellant] then inserted two of us fingers into her vagina in what he said was an attempt to stop [Victim] from bleeding. He then decided to take her outside and he wrapped her in an electric blanket and he walked to the area of the abandoned basketball courts, which was located in a small ravine and then put her on the ground and walked a short distance away and watched her for ten minutes. [Appellant] then walked home and went back to bed and went to sleep.
[Victim's] body was turned over to the medical examiner and an autopsy was done. During the course of the autopsy no signs of trauma appeared in her vaginal area or either of her thighs. During the course of the autopsy, swabs were taken. Those swabs including rectal swabs, oral swabs and vaginal swabs. The test results of those swabs were not received for several months; however, when they were received it revealed that the vaginal swab was positive for blood. In addition, DNA tests on the articles that were found in the basement also came back and those test results revealed that the blood that was found in the basement was [Victim's] blood. During the performance of the autopsy, no injury was noted in [Victim's] vaginal area.
Trial Court Opinion, 10/18/2011, at 4-11.
On February 7, 2007, Appellant was charged with one count of criminal homicide, one count of simple assault, one count of kidnapping, and one count of false reports to law enforcement in connection with Victim's death.*fn5 Subsequently, the simple assault count was withdrawn, and counts for aggravated indecent assault, aggravated indecent assault of a child, and aggravated assault were added.*fn6 The Commonwealth filed a notice of intent to seek the death penalty.
On March 20, 2008, the Commonwealth filed a motion to join the two criminal cases related to Appellant. The Commonwealth asserted that the cases were appropriate for joinder because the cases would tell the "complete story." Commonwealth Motion for Joinder, 3/20/2008, at 2 (unnumbered). After a hearing, the trial court granted that motion.
On May 12, 2009, Appellant filed a motion to sever the previously joined cases, a motion to suppress certain statements made during the course of the police interviews, and a motion in limine regarding Appellant's prior bad acts against X.H. On May 27, 2009, the trial court granted the motion to sever and denied both the motion to suppress and motion in limine.
On September 22, 2009, the Commonwealth filed a motion for reconsideration of the trial court's grant of the motion to sever, or in the alternative, to allow the use of evidence of Appellant's prior bad acts against X.H. at trial. After a hearing, the trial court granted reconsideration of the motion to sever, and entered an order allowing both cases against Appellant to be tried together.
From February 18 to March 22, 2010, Appellant was tried before a jury. The jury convicted Appellant of the aforementioned charges related to Victim; however, the jury was unable to reach a unanimous verdict on the charges related to X.H.*fn7 The case immediately proceeded to the penalty phase. Again, the jury was unable to reach a unanimous decision on Appellant's sentence; accordingly, the trial court sentenced Appellant to life imprisonment without the possibility of parole for the murder conviction.
On June 22, 2010, Appellant was sentenced on the remaining convictions. Appellant filed a timely post-sentence motion, which was denied by the trial court. Appellant filed a timely notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
On appeal, Appellant presents four issues for our review:
I. Did the [trial court] err in finding the minor, [X.H.], competent to testify at trial even though the minor had no independent recollection of the events on the night in question and what recollection he had had been indelibly tainted by the repeated questioning of the prosecutor, the man he called "T Rex"?
II. Did the [trial court] err when it denied the motion to suppress statements that had been obtained in violation of [Appellant's] constitutional rights?
III. Did the [trial court] err when it failed to sever the charges relating to an alleged indecent assault of [X.H.] from the homicide charges related to [Victim]?
IV. Did the [trial court] err in permitting Dr. Mary Carrasco to testify as an expert in this case since her testimony lacked indicia of scientific reliability, her methodology is not accepted by her peers, and her conclusions were based upon photographs of other girls, not the Victim...?
Appellant first argues that the trial court erred in concluding that X.H. was competent to testify. Specifically, Appellant contends that "the court should have ruled that [X.H.] was incompetent because he demonstrated that he did not have an independent recollection of the events in question, and because there is a suggestion that his testimony may have been improperly tainted by the Deputy District Attorney." Appellant's Brief at 20. Appellant further argues that X.H. was not competent to testify because "[X.H.'s] grasp of the importance of telling the truth was minimal." Id. at 23.
Our standard of review recognizes that [a] child's competency to testify is a threshold legal issue that a trial court must decide, and an appellate court will not disturb its determination absent an abuse of discretion. Our scope of review is plenary.
Commonwealth v. Pena, 31 A.3d 704, 706 (Pa. Super. 2011).
Instantly, the trial court conducted a competency hearing outside the presence of the jury, which included the following testimony: By [Assistant District Attorney]:
Q. Okay. [X.H.], do you have any brothers or sisters?
Q. Okay, who is your little brother?
Q. Do you know how old he is?
Q. Okay. What was your sister's name?
Q. Okay. Can you tell me, who lived on the top floor of that house?
A. Me, [Appellant], [Victim] and my mom.
Q. Who lived on the second floor of the house?
Q. And did she have a boyfriend?
Q. What was his name, do you remember? What did you call him?
Q. Okay. Did [Appellant] have a brother?