Appeal from the Judgment of Sentence March 29, 2012 In the Court of Common Pleas of Chester County Criminal Division at No(s): CP-15-CR-0003593-2010
BEFORE: STEVENS, P.J., PANELLA, J., and COLVILLE, J. [*]
This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Chester County following Appellant's conviction on the charges of Aggravated Indecent Assault on a female child less than 13 years of age, 18 Pa.C.S.A. § 3125 (a)(7), Endangering the Welfare of Children, 18 Pa.C.S.A. § 4304 (a), five counts of Indecent Assault, 18 Pa.C.S.A. § 3126 (a)(7), and Corruption of Minors, 18 Pa.C.S.A. § 6301 (a)(1). Appellant challenges the trial court's ruling that a recorded phone conversation was inadmissible as hearsay and the trial court's determination that Appellant is a sexually violent predator ("SVP") for purposes of Megan's Law. We affirm.
The relevant facts and procedural history are as follows: Appellant was arrested and, on May 9, 2011, represented by counsel, he proceeded to a jury trial. At trial, the victim, L.M., testified that Appellant, who was her mother's paramour at the time, had engaged in multiple instances of inappropriate sexual conduct with her over a two-year period. N.T. 5/9/11 at 10-20. At the start of this two-year interval, the victim was either 8 or 9 years old. N.T. 5/9/11 at 11. The incidents concluded when she was 10. N.T. 5/9/11 at 24. These incidents included Appellant repeatedly fondling private areas of the victim's body, placing her hand on his penis, and in one instance digitally penetrating the victim. N.T. 5/9/11 at 10-20.
The victim did not come forward with information about her molestation for several years. In the summer of 2009, the victim confided in her then-boyfriend, Eric Lochman, that Appellant had abused her. N.T. 5/9/11 at 25. The victim swore Mr. Lochman to secrecy, and he complied until the current case was brought to light. N.T. 5/9/11 at 71. A few weeks after confiding in Mr. Lochman, the victim also informed her mother about the incidents that had taken place with Appellant. N.T. 5/9/11 at 26.
After learning about the incident with her daughter and Appellant (the mother's ex-boyfriend), the victim's mother immediately called and confronted Appellant with these accusations. N.T. 5/10/11 at 98. A few weeks later, the victim's mother contacted Children, Youth, and Families ("CYF"). Id. The matter eventually made it to the Pennsylvania State Police.
After the State Police received the case, Trooper Jones met with the victim. N.T. 5/10/11 at 128. Trooper Jones obtained consent to intercept and record a phone call between the victim and Appellant. N.T. 5/10/11 at 133. The purpose of the call was to try to elicit a confession from Appellant; he did not give one. Id. Charges were then filed against Appellant and the case was scheduled for a preliminary hearing in September of 2010. N.T. 5/10/11 at 128-129. After Appellant failed to appear at his hearing, the victim's mother called him again. N.T. 5/10/11 at 103-104. While speaking with Appellant, the victim's mother testified that Appellant said, "it's [the charges] all your fault. You wanted things to happen between me and L.M. You put her in bed with me. You basically forced things to happen." N.T. 5/10/11 at 104.
At the conclusion of all testimony, Appellant was convicted on the charges indicated supra. Appellant was sentenced to an aggregate of two and a half to five years in prison, along with five years of supervised probation following his release. During the trial, the Honorable Senior Judge Ronald Nagle refused to allow into evidence the intercepted phone call in which Appellant denied the allegations against him. Furthermore, in a later hearing, the trial court determined that Appellant is a sexually violent predator. Appellant filed a timely post-sentence Motion for New Trial in which he contended that the trial court erred as a matter of law by precluding from evidence the recording of the intercepted phone call between the victim and Appellant. The trial court denied this motion. This timely appeal followed, and all Pa.R.A.P. 1925 requirements have been met.
Admissibility of Intercepted Phone Call
Appellant's first contention is that the trial court erred as a matter of law when it precluded from trial an audio recording of the intercepted phone call between Appellant and the victim. Specifically, Appellant believes that the phone call is admissible since it falls into either the "present sense impression" exception to hearsay or the "excited utterance" exception. Appellant's Brief at 8-9.
"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. Kuder, 62 A.3d 1038, 1053 (Pa.Super. 2013) (citations omitted). Abuse of discretion is not merely an error of judgment, but rather 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. Glass, 50 A.3d 720, 725 (Pa.Super. 2012) (citations and quotation omitted). Furthermore, "because the trial court indicated the reason for its decision ... our scope of review is limited to an examination of the stated reason." Commonwealth v. O'Brien, 836 A.2d 966, 968 (Pa.Super. 2003) (citations and quotation omitted).
Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Pa.R.E. 801(c). Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Pennsylvania Supreme Court, or by statute. Pa.R.E. 802. However, certain statements are not excluded by the hearsay rule, even though the declarant is available as a witness. See Pa.R.E. 803.
One of the listed exceptions to the hearsay rule is present sense impression. Pa.R.E. 803(1). Present sense impression is defined as "a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Id. Furthermore, the "declarant need not be excited or otherwise emotionally affected by the event or condition perceived." Comment to Pa.R.E. 803(1). "The trustworthiness of the statement arises from its timing. The requirement of ...