February 21, 2014
COMMONWEALTH OF PENNSYLVANIA Appellee
MATTHEW ALLEN LAWTON Appellant
Appeal from the Judgment of Sentence September 10, 2012 In the Court of Common Pleas of Potter County Criminal Division at No(s): CP-53-CR-0000187-2010
BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.
Matthew Allen Lawton appeals from the judgment of sentence imposed by the Court of Common Pleas of Potter County after a jury convicted him of multiple counts of rape of a child, involuntary deviate sexual intercourse, aggravated indecent assault of a child, indecent assault of a person less than 13 years of age, and corruption of minors. We affirm.
This appeal stems from an incident that occurred over the July Fourth holiday in 2010. On July 3, the victim, then 10-years-old, and her family, visited the home of Lawton, who was 18-years-old, and his family. While the parents were on a motorcycle ride, Lawton sexually assaulted the victim. The victim's younger brother witnessed the assault and tried, unsuccessfully, to stop it. After the assault, the victim's family continued their stay with the Lawtons for two more days. On July 5, Lawton admitted to inappropriately touching the victim, and the victim's mother called the police, who arrested Lawton.
On January 31, 2011, at the Commonwealth's request, the trial court conducted an in camera hearing related to witnesses who were minors. On February 3, 2011, the court issued a memorandum opinion and order in which it held that some of the testimony and evidence from the in camera hearing would be admissible at trial and some would not. On February 8, 2011, the Commonwealth filed a notice of appeal to this Court, which on December 23, 2011, reversed the trial court's decision on the evidentiary issues.
On March 1, 2012, a jury trial commenced before the Honorable Stephen P.B. Minor. On April 2, 3012, the jury found Lawton guilty on all counts. On September 10, 2012, Judge Minor sentenced Lawton to an aggregate term of incarceration of 242 to 480 months. This timely appeal followed.
On appeal, Lawton raises the following issues for our review:
1. During a trial of an adult for involuntary deviate sexual intercourse with a minor, was a Children and Youth caseworker employed by the County Human Services department properly permitted to testify that after conducting an investigation, he found that sexual abuse had occurred?
2. During the investigation of an alleged rape of a 10-year-old girl, her mother produced from a laundry basket and gave to a police officer an undergarment that the victim allegedly wore during the event. Subsequent testing revealed a small amount of semen of insufficient volume for DNA testing. Given the garment's uncertain origin, the possibility of contamination, and the fact the semen could not be linked to [Lawton], did the trial court err by allowing evidence of it at trial?
3. Did the trial court err when it (1) announced to the jurors that a witness who briefly took the stand had, in a colloquy held in their absence, exercised his Fifth Amendment right against self-incrimination and (2) refused to give the jury any curative or "neutralizing" instruction?
Brief of Appellant, at 5-6 (order of issues changed).
Lawton's first two issues on appeal concern the admissibility of evidence. The "[a]dmission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Washington, 63 A.3d 797, 805 (Pa. Super. 2013) (citation omitted). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa. Super. 2013) (citation omitted). Finally, Pennsylvania Rule of Evidence 704 states, "[a]n opinion is not objectionable just because it embraces an ultimate issue. Id.
In his first issue, Lawton argues that the trial court improperly permitted CYS Agent, Bert Ianson, to testify that sexual abuse had occurred. We disagree, and find Lawton's arguments regarding the language used by Ianson waived. Defense counsel objected to Ianson's testimony at trial; however, at no point did counsel state an objection to interchanging the words "indicated" and "founded." Nor did counsel request a jury instruction clarifying the distinction between the two terms. See Commonwealth v. Strunk, 953 A.2d 577 (Pa. 2008) (specific objection required to give trial court and opposing counsel opportunity to address matter at trial level and avoid appeal; also, failure to request remedy constitutes waiver of issue). Accordingly, we find this argument waived.
Even if the issue was not waived, the trial court did not err in permitting Ianson's testimony that abuse had occurred At trial, Ianson was qualified as an expert witness in the field of child sexual abuse investigations. As a qualified expert, Ianson was permitted to opine about the ultimate issue of whether victim was abused. See Pa.R.E. 704. The trial court determined that Ianson's testimony was both relevant and helpful to the jury in light of the fact that defense counsel based his defense strategy, in part, on placing into question the credibility of both the victim and her younger brother. Therefore, the trial court did not abuse its discretion in permitting Ianson's testimony that, in his opinion, abuse had occurred. See Washington, supra. Moreover, the court instructed the jury that it was free to accept or disregard this testimony as it deemed fit; thus, Lawton was not unduly prejudiced. See Serrano, supra.
In his second issue, Lawton argues that the trial court erred when it admitted the victim's undergarment into evidence. Again, we disagree. "Evidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable, or supports a reasonable inference or presumption regarding a material fact." Commonwealth v. Edwards, 903 A.2d 1139 (Pa. 2006) (citation omitted). The trial court determined that the victim's undergarment was relevant because it supported the victim's claim that she had been sexually assaulted, even if the semen could not be directly linked to Lawton. Because this evidence made the probability that sexual abuse occurred more likely, its admission was within the trial court's discretion. See Washington, supra.
In his third issue, Lawton contends that when the trial judge told the jury that Gerald Lawton, Matthew Lawton's brother, exercised his right against self-incrimination, the judge committed an error of law. In determining questions of law, our standard of review is de novo and the scope of review is plenary. Commonwealth v. Folk, 40 A.3d 169, 172 (Pa. Super. 2012). Such a remark is prejudicial when:
[I]t is of such a nature or substance or delivered in such a manner that it may reasonably be said to have deprived the defendant of a fair and impartial trial. Moreover, it must be determined from all the circumstances whether a remark has a prejudicial effect; there is no fixed rule applicable to every case.
Commonwealth v. Sullivan, 820 A.2d 795, 800 (Pa. Super. 2003).
Courts must be wary of the danger that a witness' refusal to testify on Fifth Amendment grounds will be taken by some jurors, improperly, as evidence of guilt See Commonwealth v. Greene, 285 A.2d 865 (Pa. 1971). However, this danger was not present here.
After Gerald took the stand, it quickly became clear that he was in danger of perjuring himself. The trial judge asked a public defender to speak with Gerald and his parents regarding his Fifth Amendment right against self-incrimination. Following an in-chambers meeting, the trial judge alerted the jury that, "Mr. [Gerald] Lawton will not be testifying in this matter. He exercised his Constitutional right to not testify and so he'll not be testifying." N.T. Trial, 3/28/12, at 232. In light of the circumstances surrounding the trial judge's announcement that Gerald would not testify, we do not find that the remark deprived Lawton of a fair and impartial trial.
Even if the trial court committed an error in advising the jury that Gerald Lawton would not testify, the error was not prejudicial. An error may be deemed harmless, inter alia, where the properly admitted and uncontradicted evidence of guilt is so overwhelming and the prejudicial effect of the error is so insignificant by comparison that the error could not have contributed to the verdict. See Commonwealth v. Young, 748 A.2d 166, 193 (Pa. 2000). Here, the properly admitted and uncontradicted evidence of guilt was overwhelming against Lawton, and the judge's remark that Gerald was exercising his Constitutional right did not prejudice Lawton and would not have provided a basis for the jury to find him not guilty. Judgment of sentence affirmed.