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[U] Commonwealth v. Work

Superior Court of Pennsylvania

March 5, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
DANIEL C. WORK, JR., Appellant

NON-PRECEDENTIAL DECISION

Appeal from the Judgment of Sentence July 30, 2012 in the Court of Common Pleas of Lancaster County Criminal Division at No.: CP-36-CR-0005372-2010

BEFORE: DONOHUE, J., OTT, J., and PLATT, J. [*]

MEMORANDUM

PLATT, J.

Appellant, Daniel C. Work, Jr., appeals from the judgment of sentence entered July 30, 2012, following his jury conviction of rape of a child, involuntary deviate sexual intercourse with a child, and corruption of minors.[1] For the reasons discussed below, we affirm.

The record reflects that the victim, D.H., was Appellant's next-door-neighbor, and Appellant, whom the victim referred to as "Uncle Dan, " sometimes cared for him when his mother was unavailable. (N.T. Trial, 3/05/12, at 54-55). The victim testified that, on many occasions, while Appellant and the victim were naked, Appellant would have the victim touch his penis and would touch his penis to the victim's anus, sometimes going inside, which hurt. (See id. at 57-59). The victim further testified that Appellant wanted him to suck his penis and told the victim not to tell anybody. (See id. at 59-60).

The victim's birth mother agreed that she lived next door to Appellant from 2005-2008. (See id. at 93). She confirmed that "Uncle Dan" would babysit the victim. (See id. at 94). The birth mother testified that, in June 2007, the victim told her that "Uncle Dan" would suck his "winky, " the term the victim used to refer to his penis. (See id.). The birth mother admitted that she never contacted police to report the sexual assault and that she lost custody of the victim three days after this disclosure. (See id. at 95).

The victim's adoptive mother testified that he came to live with her in June 2008; in September 2009, she walked in on the victim and saw him sitting on the floor sucking his penis. (See id. at 111-12). When she asked him what he was doing, the victim stated that he was playing "cheek butts" and had to play by himself because Appellant was not there to play with him. (Id. at 112). The adoptive mother stated that she arranged for sexual abuse counseling and that, subsequently, the victim has told her many times that Appellant touched him inappropriately. (See id. at 112-13).

Keri Stanley, supervisor of the Lancaster County Children's Alliance (Alliance), testified regarding her September 14, 2009 recorded interview[2]with the victim. (See id. at 85). Stanley testified about the Alliance's interview structure, which stresses rapport building, developmental assessment, and open-ended questions. (See id. at 82).

Caryn Wildin, the victim's therapist, testified that, during her eighth session with the victim, he disclosed that on many occasions he and Appellant would take off their clothes and that Appellant put his penis in the victim's mouth and urinated in the victim's mouth. (See N.T. Trial, 3/06/12, at 148-49). She also stated that the victim told her that Appellant put his penis near the victim's buttocks. (See id. at 149). Wildin said that the victim told her that the abuse happened many times, more than he could count. (See id.).

Appellant took the stand and testified in his own defense. He confirmed that he lived next door to the victim and would sometimes babysit him. (See id. at 228-29). Appellant averred that on one occasion he had to bathe the victim and during that bath scrubbed his bottom and penis. (See id. at 229-31). However, Appellant denied ever sexually assaulting the victim. (See id. at 234).

On March 7, 2012, the jury convicted Appellant of the afore-mentioned charges. On July 30, 2012, the trial court sentenced Appellant to an aggregate term of incarceration of not less than ten nor more than twenty years. On August 8, 2012, Appellant filed a post-sentence motion challenging the weight of the evidence. The trial court denied the motion on October 25, 2012. The instant, timely appeal followed.[3]

On appeal, Appellant raises five questions for our review:
A. Whether the lower cou[r]t erred in denying [Appellant's] motion for new trial when the verdict of the jury finding [Appellant] guilty of rape of a child, involuntary deviate sexual intercourse and corruption of minors was against the weight of the evidence?
B. Whether the court erred in permitting the Commonwealth to introduce hearsay declarations by the alleged victim to various individuals when the time, content and circumstances of the statements did not provide sufficient indicia of reliability as required by 42 Pa.C.S.A. § 5985.1?
C. Whether the court erred in sustaining the Commonwealth's objection and prohibiting [Appellant] from questioning the child victim concerning any medications he was consuming when such cross-examination was relevant to impeach the credibility of the victim by showing defects in memory and/or perception?
D. Whether the court erred in overruling defense objections and in permitting Caryn Wildin to testify concerning various techniques used by her when interviewing the alleged victim and impermissible and highly prejudicial opinions?
E. Whether the lower court erred in overruling the defense objection and permitting the replay of the tape of the forensic interview during jury deliberations when the replay of the tape emphasized a particular portion of the evidence which was favorable to the Commonwealth and prejudicial to [Appellant]?

(Appellant's Brief, at 5).

In his first claim, Appellant argues that the verdict was against the weight of the evidence. (See id. at 17-18). In reviewing the weight of the evidence, this Court has stated:

The finder of fact is the exclusive judge of the weight of the evidence as the fact finder is free to believe all, part, or none of the evidence presented and determines the credibility of the witnesses.
As an appellate court, we cannot substitute our judgment for that of the finder of fact. Therefore, we will reverse a jury's verdict and grant a new trial only where the verdict is so contrary to the evidence as to shock one's sense of justice. A verdict is said to be contrary to the evidence such that it shocks one's sense of justice when the figure of Justice totters on her pedestal, or when the jury's verdict, at the time of its rendition, causes the trial judge to lose his breath, temporarily, and causes him to almost fall from the bench, then it is truly shocking to the judicial conscience.
Furthermore, where the trial court has ruled on the weight claim below, an appellate court's role is not to consider the underlying question of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Boyd, 73 A.3d 1269, 1274-75 (Pa.Super. 2013) (citation and internal quotation marks omitted). Lastly, we note that, because of this standard, "the trial court's denial of a motion for a new trial based on a weight of the evidence claim is the least assailable of its rulings." Commonwealth v. Diggs, 949 A.2d 873, 879-80 (Pa. 2008), cert. denied, 556 U.S. 1106 (2009).

Appellant argues that the verdict is against the weight of the evidence because the victim's testimony was vague and there was no physical evidence of abuse. (See Appellant's Brief, at 18). The trial court explained its decision to deny Appellant's motion for a new trial based upon the weight of the evidence as follows:

The record in this case clearly demonstrates that the guilty verdicts were not against the weight of evidence. At trial, the victim testified that [Appellant's] private part touched his rear end while both of their clothes were off; he noted that [Appellant's] private part sometimes went inside and "it hurt." The victim further testified that [Appellant] wanted the victim to suck on his private part and told him that he should not tell anyone what happened. The jury also heard testimony from several witnesses, including the victim's birth mother and adopted mother, who all testified to the victim's disclosures regarding the incidents with [Appellant]. Additionally, Dr. Cathy Hoshauer, an expert in the area of child abuse, explained to the jury why it is common to find a lack of physical evidence in cases of sexual abuse. Finally, the jury was presented with a recording of the victim's forensic interview conducted by Keri Stanley where he disclosed the abuse. The jury was free to weigh the credibility of all of this evidence.

(Trial Court Opinion, 1/04/13, at 2-3) (record citations omitted).

This Court cannot substitute our judgment for that of the trier of fact. See Commonwealth v. Holley, 945 A.2d 241, 246 (Pa.Super. 2008), appeal denied, 959 A.2d 928 (Pa. 2008). Further, the jury, sitting as finder of fact, was free to believe the Commonwealth's witnesses and to disbelieve Appellant's testimony. See Commonwealth v. Griscavage, 517 A.2d 1256, 1259 (Pa. 1986). "[I]t is for the fact-finder to make credibility determinations, and the finder of fact may believe all, part, or none of a witness's testimony." Commonwealth v. Lee, 956 A.2d 1024, 1029 (Pa.Super. 2008), appeal denied, 964 A.2d 894 (Pa. 2009) (citation omitted).

Here, the jury heard all of the testimony and, as finder of fact, chose to believe the Commonwealth's version of events. Because Appellant's challenge goes to the weight of the evidence, he necessarily concedes that the evidence is sufficient to sustain the verdict and nothing in the record leads us to believe that the verdict shocks one's sense of justice or that the trial court palpably abused its discretion in denying Appellant's motion for a new trial. Thus, we will not disturb the trial court's findings.

Appellant's next three claims challenge various evidentiary rulings made by the trial court. (See Appellant's Brief, at 18-27). This Court has held that:

[w]ith regard to evidentiary challenges, it is well established that [t]he 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. 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. Furthermore, if in reaching a conclusion the trial court overrides or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error.

Commonwealth v. Serrano, 61 A.3d 279, 290 (Pa.Super. 2013) (citations and internal quotation marks omitted).

Appellant claims that the trial court erred in allowing the Commonwealth to introduce various out-of-court statements made by the victim to his birth mother, his adopted mother, and forensic interviewer Keri Stanley. (See Appellant's Brief, at 19-21). For the reasons discussed below, we find the claim waived.

The trial court admitted the statements after a lengthy hearing, which took place on January 9, 2012. Appellant's arguments require reference to that court proceeding to determine the accuracy of his assertions. While the hearing transcript is contained within the reproduced record, the transcript was not included in the certified record. Under the Pennsylvania Rules of Appellate Procedure, any documents that are contained in the reproduced record but are not a part of the official certified record do not exist. See Daniel v. Wyeth Pharmaceuticals, Inc., 15 A.3d 909, 936 n.1 (Pa.Super. 2011) (Fitzgerald, J. concurring), appeal dismissed, --- A.3d ---, 2013 WL 6593000 (Pa. December 16, 2013).

It is long settled that "[w]hen the appellant . . . fails to conform to the requirements of Rule 1911 [relating to transcript requests], any claims that cannot be resolved in the absence of the necessary transcript or transcripts must be deemed waived for the purpose of appellate review." Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007) (citation omitted). Further, it is the appellant's responsibility to make certain that the certified record contains all items necessary to ensure that this Court is able to review his claims. See Commonwealth v. B.D.G., 959 A.2d 362, 372 (Pa.Super. 2008). While Appellant has filed a reproduced record, it is not an acceptable substitute for the original certified record. See Growell v. Maietta, 931 A.2d 667, 676 (Pa.Super. 2007), appeal denied, 951 A.2d 1164 (Pa. 2008); see also Smith v. Smith, 637 A.2d 622, 623-24 (Pa.Super. 1993), appeal denied, 652 A.2d 1325 (Pa. 1993). An appellant's failure to ensure that the original record as certified for appeal contains sufficient documentation to enable the court to conduct a proper review constitutes a waiver of the issue sought to be reviewed on appeal. Growell, supra at 676; Smith, supra at 623-24. Accordingly, we find Appellant's second claim waived.[4]

In his third claim, Appellant argues that the trial court erred in sustaining the Commonwealth's objection to defense counsel's asking the victim whether he remembered to take his medication. (See Appellant's Brief, at 21-23). Appellant avers that this questioning was relevant to demonstrate that the victim had a significant impairment to his memory. (See id. at 23).

A criminal defendant has the constitutional right to confront witnesses against him; this right includes the right of cross-examination. See Commonwealth v. Buksa, 655 A.2d 576, 578 (Pa.Super. 1995), appeal denied, 664 A.2d 972 (Pa. 1995). Cross-examination can be used to test a witness' version of the events, to impeach his credibility, or to establish his motive for testifying. See id.

Here, the record reflects that defense counsel asked the victim several questions concerning whether he had trouble remembering things. (See N.T. Trial, 3/05/12, 64-66). The victim admitted that he sometimes had problems remembering things but, in response to defense counsel's question, stated that he did not take medication to help his memory. (See id. at 64). Defense counsel then asked if the victim remembered to take his medication, and the trial court sustained the Commonwealth's objection to that question. (See id. at 64-65). Appellant argues that this harmed his ability to attack the victim's credibility and he was therefore prejudiced. (See Appellant's Brief, at 21-23). We disagree.

Here, the trial court permitted extensive questioning designed to test the victim's memory both before, and after, sustaining the objection. (See N.T. Trial, 3/05/12, at 64-66). This line of questioning, which largely focused on the victim's ability to remember daily activities, (see id.), makes it apparent that counsel was not attacking a specific memory defect, a cognitive problem, or any medicated condition, but simply attacking the victim's general ability to remember. Defense counsel did not offer any proof that the victim was taking any medication that affected his memory, thus his question was irrelevant. Given this, the trial court did not abuse its discretion in sustaining the Commonwealth's objection to the question regarding medication.

In his fourth claim, Appellant argues that the trial court erred in allowing the victim's therapist, Caryn Wildin, to testify about various techniques she used when providing therapy to the victim. (See Appellant's Brief, at 23-27). Appellant argues that this testimony was impermissible opinion testimony. (See id.).

The record reflects that defense counsel objected to Wildin testifying to anything beyond the statements made to her by the victim. (See N.T. Trial, 3/06/12, at 123-25). The trial court allowed Wildin to testify regarding the nature and practice of the therapy sessions, but prohibited the Commonwealth from eliciting opinion testimony from Wildin. (See id. at 123-25). Counsel then objected that Wildin's later testimony that the victim's failure to disclose sexual abuse until the eighth session was normal, was impermissible opinion testimony. (See id. at 165-66; Appellant's Brief, at 23-27). We disagree.

Firstly, as the trial court generally notes, Wildin's testimony was not offered for the purpose of opinion testimony but to explain her course of treatment, because children do not make disclosures to people they do not know and trust. (See N.T. Trial, 3/06/12, at 166; Trial Ct. Op., at 6). Appellant has not explained how this common sense statement prejudiced him.

Further, defense counsel opened the door to this testimony by emphasizing on cross-examination that the victim did not make a disclosure until a couple of months into his treatment and by asking Wildin to tally the number of sessions until the disclosure. (See N.T. Trial, 3/06/12, at 159). Once defense counsel made an issue of the delay in disclosure, it was well within the discretion of the trial court to allow the Commonwealth to ask Wildin on re-direct examination if that was normal.

Further, Pennsylvania Rule of Evidence 701 allows lay witnesses to offer an opinion if it is:

(a) rationally based on the witness's perception;
(b) helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

Pa.R.E. 701. Here, Wildin's testimony regarding the delay in disclosure was helpful to understanding her testimony and did not confuse or prejudice the jury. Furthermore, Appellant requested and the trial court instructed the jury that the victim's delay in making a prompt complaint should be considered in evaluating his testimony to decide whether a sexual assault occurred. (See N.T. Trial, 3/07/12, at 255). Jurors are presumed to follow instructions. See Commonwealth v. Baez, 720 A.2d 711, 721-22 (Pa. 1998). Thus, Appellant has not shown that he was prejudiced by Wildin's testimony or that the trial court abused its discretion in allowing it.

In his fifth and final claim, Appellant contends that the trial court erred in allowing the replay of the forensic interview during jury deliberations. (See Appellant's Brief, at 27-29). Appellant argues that the replay overemphasized a portion of the testimony that was favorable to the Commonwealth and prejudicial to Appellant. (See id. at 27).

The trial court permitted the entire video to be replayed for the jury, explaining in its opinion that:

It was well within the [c]ourt's discretion to permit the jury to replay the forensic interview during its deliberations. The information contained was relevant and specifically requested by the jury. Moreover, the tape of the forensic interview had been previously admitted into evidence. Permitting the replay of the forensic interview did not risk that the jury would be unable to rationally evaluate evidence and reach a reasoned verdict.

(Trial Ct. Op., at 7).

This Court has stated that

Pa.R.Crim.P. 646 governs "Material Permitted in Possession of the Jury." The rule states, in pertinent part, that:
(A) Upon retiring, the jury may take with it such exhibits as the trial judge deems proper, except as provided in paragraph (C).
(C) During deliberations, the jury shall not be permitted to have:
(1)a transcript of any trial testimony;
(2)a copy of any written or otherwise recorded confession by the defendant;
(3)a copy of the information; and
(4) except as provided in paragraph (B), written jury instructions.
Pa.R.Crim.P. 646. Whether an exhibit should be allowed to go out with the jury during its deliberation is within the sound discretion of the trial judge.
The underlying reason for excluding certain items from the jury's deliberations is to prevent placing undue emphasis or credibility on the material, and de-emphasizing or discrediting other items not in the room with the jury. If there is a likelihood the importance of the evidence will be skewed, prejudice may be found; if not, there is no prejudice per se and the error is harmless.
We note that the written statement in question is not specifically prohibited by Pa.R.Crim.P. 646(C), and therefore publication to the jury falls squarely within the discretion of the trial court and, thus, the decision cannot be overturned absent an abuse of discretion.
Pennsylvania courts have permitted a myriad of items to be in the possession of juries during deliberations.
Our courts have rarely found that materials given to juries during deliberations constitute reversible error. In the cases that have found reversible error, however, the prejudicial effect of the evidence in question was severe and readily apparent.

Commonwealth v. Barnett, 50 A.3d 176, 193-94 (Pa.Super. 2012), appeal denied, 63 A.3d 772 (Pa. 2013) (most quotation marks and all citations omitted).

Here, the record reflects that the jury sought to view the videotape for a second time because all or some of the panel had difficulty hearing it when it was played the first time. (See N.T. Trial, 3/07/12, at 275). Given this, Appellant has not demonstrated that the replay over-emphasized evidence favorable to the prosecution, or that there was a "severe" and "readily apparent" prejudicial effect in allowing the jury to have a second look at evidence that they did not hear properly the first time it was presented. See Barnett, supra at 194. Thus, the trial court did not abuse its discretion in allowing the jury to see the video a second time.

Judgment of sentence affirmed. Jurisdiction relinquished.

Donohue, J., concurs in the result.

Judgment Entered.


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