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Commonwealth v. Yocolano

Superior Court of Pennsylvania

August 14, 2017


         Appeal from the Judgment of Sentence April 21, 2015 In the Court of Common Pleas of Washington County Criminal Division at No(s): CP-63-CR-0003175-2012



          OLSON, J.

         Appellant, John Yocolano, appeals from the judgment of sentence entered on April 21, 2015, following his jury trial convictions for three counts of indecent assault, two counts of sexual assault, and one count each of rape, kidnapping, involuntary deviate sexual intercourse (IDSI), aggravated assault, simple assault, unlawful restraint, terroristic threats, and false imprisonment.[1] Upon careful consideration, we are constrained to vacate the judgment of sentence and remand for a new trial.

         We summarize the facts as presented at trial as follows. A.A. and Appellant had a tumultuous romantic relationship over the course of several years. In 2010, A.A. and Appellant lived together. On December 19, 2010, police responded to a call stating that Appellant had an altercation with A.A. wherein Appellant kicked in an exterior door, breaking the lock and then chased A.A. around her father's house. A.A. ended her relationship with Appellant, but then resumed it several months later.

         In December 2011, Appellant and A.A. moved in to an apartment together after A.A. found out that she was pregnant. On March 13, 2012, Appellant threatened A.A. with a machete during a verbal altercation. Police responded to the scene, but no criminal charges were filed. Appellant and A.A. continued living together and their son was born in May 2012.

         On July 16, 2012, A.A. called the police in response to another argument, but after the altercation, she continued living with Appellant. On July 27, 2012, police responded to an emergency call from A.A. claiming that Appellant expressed suicidal thoughts and left the residence following an argument between the parties.

         In August 2012, the parties became engaged to be married. On September 1, 2012, A.A. filed a police report claiming Appellant threatened and choked her. Police recommended that A.A. file a petition for Protection from Abuse (PFA), but she did not. On September 19, 2012, Appellant punched A.A. in the head and stomach and threatened to kill her and her family. On September 21, 2012, police responded to a call from Appellant wherein he claimed A.A. and their child were missing for two days. Upon investigation, police found A.A. at her father's house along with the couple's child. On October 4, 2012, A.A. obtained a final PFA against Appellant. In November 2012, the parties again attempted reconciliation, but A.A. and the couple's child moved in with another man.

         In December 2012, A.A. filed a petition to withdraw the PFA against Appellant and a hearing was scheduled in January 2013. When A.A. relayed this information to Appellant, he became angry. At the time, the parties' son was in Appellant's custody and he told A.A. to retrieve the child. A.A. testified that when she arrived at Appellant's residence, he lured her inside, locked the door, punched her in the face, and began strangling her. A.A. stated that Appellant carried her to the bedroom where he tied her wrists and ankles with an electrical cord and forcibly removed her clothes. Over the next few hours, Appellant removed and retied the bindings several times while forcing multiple acts of vaginal and oral intercourse on A.A. Following the assault, Appellant instructed A.A. to shower. When A.A.'s friend came to Appellant's residence to inquire about her whereabouts, A.A. escaped and went directly to local police to report the incident. She was taken by ambulance to the hospital where medical staff documented bruises to A.A.'s neck, face, ankles, and wrists. A rape examination kit was performed which revealed the presence of Appellant's semen and DNA.[2] Appellant was arrested and the Commonwealth filed a criminal information against Appellant charging him with the aforementioned offenses.

         Prior to and during trial, the trial court ruled on several evidentiary matters that are the subject of this appeal. On November 7, 2014, the Commonwealth filed a motion in limine to exclude the report and testimony of Appellant's proffered expert, Cyril H. Wecht, M.D., who opined about the cause and manner of A.A.'s injuries.[3] The Commonwealth's motion claimed that Appellant did not establish that Dr. Wecht qualified as an expert. Moreover, the Commonwealth maintained that Dr. Wecht's report was inadmissible because it offered an opinion on A.A.'s credibility.[4] See Commonwealth's Motion in Limine to Exclude Defendant's Report and Testimony, 11/7/2014, at ¶ 8; id. at Exhibit 1. The trial court held a hearing on the admissibility of Dr. Wecht's report on December 1, 2014. By order entered on December 2, 2014, the trial court granted the Commonwealth's request to preclude Dr. Wecht's report and testimony, concluding "the proposed expert testimony is not necessary to explain injury or lack of injury and that the proposed testimony would invade the province of the jury regarding [A.A.'s] credibility."[5] Order, 12/2/2014, (unpaginated) at 1.

         On December 18, 2014, the Commonwealth filed a notice of intent to permit the use of prior bad acts evidence pursuant to Pa.R.E. 404(b). The Commonwealth sought to use three police reports related to the March 13, 2012, September 1, 2012, and September 21, 2012 incidents, as detailed above. On December 19, 2014, the Commonwealth filed an amended notice of intent to permit the use of additional prior bad acts evidence. Therein, the Commonwealth sought to use two police reports related to the July 16, 2012 and July 27, 2012 incidents, as set forth previously. The Commonwealth also filed a motion in limine to support the admission of evidence relating to the episodes of domestic abuse as prior bad acts under Rule 404(b). Following argument, the trial court entered an order on December 24, 2014, granting the Commonwealth's request to use the prior bad acts evidence. On January 2, 2015, the Commonwealth filed a second amended notice of intent to use prior bad acts. In that filing, the Commonwealth sought to introduce the police report from the December 2010 incident wherein police responded to a call that Appellant chased A.A. after kicking open her father's front door. The Commonwealth also sought to use the October 2012 PFA filed by A.A. against Appellant. The trial court never entered a new order, or amended its December 24, 2014 order, to include the prior bad acts presented in the Commonwealth's second amended Rule 404(b) notice.

         A jury trial commenced on January 12, 2015. After A.A. testified, Appellant sought leave to recall her and ask about three statements posted to her Facebook account in the weeks following the incident at issue. The trial court denied Appellant relief. On the fourth day of trial, the Commonwealth sought to use two additional unrelated PFAs (filed against Appellant by women other than A.A.) which the prosecution claimed it had just discovered. The trial court ruled that the Commonwealth could only use these PFAs on cross-examination if Appellant testified. Appellant, however, did not testify. At the conclusion of trial, the jury convicted Appellant of all charges. On April 21, 2015, the trial court sentenced Appellant to an aggregate sentence of 18 to 36 years of imprisonment. This timely appeal resulted.[6]

         On appeal, Appellant presents the following issues[7] for our review:

1. Did the trial judge commit an abuse of discretion by denying [] Appellant his right to rebut the Commonwealth's 404(b)/prior bad act evidence?
2. Did the trial judge commit an abuse of discretion by prohibiting Appellant from re-calling [A.A.] upon the discovery of new evidence, mid-trial, which demonstrated clear motive to lie and which squarely supported [] Appellant's defense?
3. Did the trial judge commit an abuse of discretion by permitting a Commonwealth lay witness to testify to expert opinions [] in clear violation of Pennsylvania Rule of Evidence 701(c)?
4. Did the trial judge commit an abuse of discretion by permitting the Commonwealth's use of two [PFAs] involving other individuals which were produced to the defense for the first time on the 4th day of a 5 day trial - which prevented [] Appellant from testifying in his own defense?
5. Did the cumulative effect of all the errors on evidentiary rulings deprive Appellant of a fair trial?

Appellant's Brief at 6-7.

          All of Appellant's issues challenge evidentiary rulings by the trial court. Thus, our standard of review is as follows:

The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed on appeal only upon a showing that the trial court committed an abuse of discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.
In the event of an erroneous admission of evidence, a verdict can still be sustained if the error was harmless. An error is harmless if it could not have contributed to the verdict, or stated conversely, an error cannot be harmless if there is a reasonable possibility the error might have contributed to the conviction. [Our Supreme Court has] found harmless error where:
(1) the error did not prejudice the defendant or the prejudice was de minimis;
(2) the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence; or
(3) the properly admitted and uncontradicted evidence of guilt was so overwhelming and the prejudicial effect of the error was so insignificant by comparison that the error could not have contributed to the verdict.
The Commonwealth has the burden of proving harmless error beyond a reasonable doubt.

Commonwealth v. Poplawski, 130 A.3d 697, 716 (Pa. 2015) (internal citations and quotations omitted).

         In his first issue presented, Appellant claims that the trial court wrongly prohibited him from refuting or rebutting the Commonwealth's presentation of Rule 404(b) prior bad acts evidence. Appellant's Brief at 19-20. More specifically, Appellant claims that the trial court erroneously barred him from calling witnesses to rebut A.A.'s account of the December 2010 incident wherein police responded to a call that Appellant chased A.A. after breaking down her father's front door. Id. Appellant also argues that the trial court erroneously denied relief when Appellant "offered to call three neighbors who lived in the small apartment complex to testify that they saw [and] heard nothing" to refute A.A.'s claim "that Appellant administered prior beatings to [A.A.] in their apartment and that she would scream for help." Id. at 11. Appellant claims that the trial court allowed the Commonwealth to present Rule 404(b) evidence of past incidents of domestic violence between A.A. and Appellant, ruling that the testimony was probative of the crimes charged. In contrast, the trial court prohibited Appellant's attempts to rebut the accuracy, extent or severity of the episodes, concluding that such rebuttal testimony was collateral. Id. at 9-10. Appellant argues that the same standard should apply to both parties - if episodic prior bad acts evidence is relevant, then evidence relating to the same episodes that rebuts an opponent's proof is also relevant; if the prior bad acts evidence is collateral, then rebuttal evidence would likewise be collateral. Id. at 20. Appellant thus claims that the trial court abused its discretion by precluding rebuttal witnesses who were prepared to testify that A.A. fabricated her assertions of past abuse by Appellant. Id. at 10-11.

         Pennsylvania Rule of Evidence 404(b), pertaining to prior bad acts evidence, provides, in pertinent part:

         (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.
(3) Notice in a Criminal Case. In a criminal case the prosecutor must provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404(b).

         This Court recently determined:

Evidence of a defendant's distinct crimes are not generally admissible against a defendant solely to show his bad character or his propensity for committing criminal acts, as proof of the commission of one offense is not generally proof of the commission of another. However, this general proscription against admission of a defendant's distinct bad acts is subject to numerous exceptions if the evidence is relevant for some legitimate evidentiary reason and not merely to prejudice the defendant by showing him to be a person of bad character.

         Exceptions that have been recognized as legitimate bases for admitting evidence of a defendant's distinct crimes include, but are not limited to:

(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design such that proof of one crime naturally tends to prove the others; (5) to establish the identity of the accused where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other; (6) to impeach the credibility of a defendant who testifies in his trial; (7) situations where defendant's prior criminal history had been used by him to threaten or intimidate the victim; (8) situations where the distinct crimes were part of a chain or ...

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