from the Judgment of Sentence Entered October 5, 2018 In the
Court of Common Pleas of Lancaster County Criminal Division
at No(s): CP-36-CR-0005489-2017
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.
Rafael Saez, appeals from the October 5, 2018 judgment of
sentence imposed by the Court of Common Pleas of Lancaster
County following a jury trial. We affirm.
trial court summarized the facts and procedural history of
this case as follows:
[Appellant] was convicted of involuntary deviate sexual
intercourse, indecent assault, and attempted indecent assault
following allegations made by his step-daughter, J.C. [also
referred to as "Victim"] that he had been sexually
abusing her for two years. In 2013, [Appellant had] moved
into his girlfriend's home, where she lived with her
daughter, J.C., and five sons. J.C. was nine years old when
she first remembered her "step-dad touch[ing her] in a
wrong way." (J.C. Trial Testimony at 69, June 25, 2018).
At that time her room was on the second floor of the house,
though two years later she moved up to an attic bedroom.
During trial, she testified that the assaults started in the
middle room, and then...came to the attic."
(Id. at 71). [Appellant] groped her
"chest" and "where [she] use[s] the
bathroom" in the room on the middle floor, in her attic
bedroom, in the kitchen while she was cooking, and once in
the living room. (Id. at 71, 75, 79). [Appellant]
would approach J.C. during times when her mother was not
home, when she was "at work or out shopping," after
sending the boys outside or upstairs. (Id. at 79).
He repeatedly came to her attic bedroom when she was alone,
took off her underwear, forced her to masturbate him, engaged
in oral intercourse with her, and vaginally raped her.
(Id. at 72-80). At age thirteen, J.C. found the
courage to tell her grandmother [("Grandmother")]
about the abuse. [Grandmother] reported the abuse to the
police and an investigation began.
Through the preparation for trial, other allegations surfaced
about [Appellant], namely from his six-year-old biological
daughter [, A.O., ] that she too had been abused by
[Appellant] in the attic of J.C.'s home. I held a Tender
Years hearing on this matter prior to the trial and found her
competent to testify and the allegations similar enough to
J.C.'s case to permit them into evidence.
A jury trial began on June 25, 2018. After three days, the
jury returned a guilty verdict on all counts. I ordered a
presentence investigation, which was returned, and sentencing
occurred on October 5, 2018. At that time, I sentenced
[Appellant] to a total of 16 to 32 years [of] incarceration.
[Appellant] subsequently filed this timely appeal.
Court Opinion, 3/22/19, at 1-2. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
raises the following issues on appeal:
I. Did the trial court abuse its discretion in finding
[Appellant's] six year old daughter competent to testify?
II. Did the trial court abuse its discretion in permitting
the Commonwealth to present testimony that [Appellant's]
biological daughter had recently accused [Appellant] of
abusing her as this evidence was not admissible under any
permitted uses in P.A. Rule of Criminal Procedure 404(b)(2)?
III. Did the trial court abuse its discretion in not
permitting [Appellant] to cross-examine the victim's
grandmother on how the victim's disclosure to her came
about and the entirety of their conversation?
Brief at 7.
address the first two issues in tandem, as they both concern
the revelations of six-year-old A.O. Appellant avers that the
trial court abused its discretion in finding A.O. competent
to testify. Appellant's Brief at 20. He also contends the
trial court abused its discretion in permitting the
Commonwealth to present testimony that A.O., who did not meet
Appellant "until she was 4 years old," revealed
that Appellant also sexually abused her. Appellant's
Brief at 16; Commonwealth's Notice of Intent to Introduce
Evidence of Prior Bad Acts, 5/16/18, at ¶ 4. The intent
to present A.O.'s testimony developed procedurally when
initially, the Commonwealth filed a Notice of Intent on April
6, 2018, indicating that it would present the testimony of
Appellant's sister, A.S., now age thirty, that Appellant
had been adjudicated delinquent of rape and incest relating
to A.S. in 2001, when A.S. was twelve years old. Following a
hearing on June 14, 2018, the trial court precluded the
evidence "on the basis that . . . it [was] too remote in
time." Trial Court Opinion, 3/22/19, at 5 n.5 (citing
on May 16, 2018, the Commonwealth filed a second Notice of
Intent to Introduce Evidence of Prior Bad Acts, indicating
that it learned that A.O. disclosed to her mother's
friend that Appellant had sexually abused her. Notice of
Intent to Introduce Evidence of Prior Bad Acts, 5/16/18, at
¶4; N.T., 6/26/18, at 204-205. The Commonwealth alleged
that A.O. revealed that Appellant
touched her vaginal area. She was interviewed at the
Lancaster County Children's Alliance on October 16, 2017.
During that interview, [A.O.] indicated that [Appellant]
would put his hands down her underwear and move his fingers
around. She indicated that he did this more than one time.
The child had not met [Appellant] until she was 4 years old
and began having overnight stays with [Appellant] at that
time. This would occur at night when the child was in bed.
of Intent to Introduce Evidence of Prior Bad Acts, 5/16/18,
at ¶4. Appellant filed a motion in limine that
same day requesting, inter alia, that the trial
court also preclude the testimony of A.O. Appellant urged
that such testimony was inadmissible because no charges
relating to A.O. had been filed against him,  and any probative
value of the testimony was outweighed by the prejudice that
would inure to Appellant. Motion in Limine, 5/16/18,
at ¶¶ 7-9.
testified at a competency hearing on June 14, 2018. Based on
the colloquy, the trial court concluded that A.O. was
competent to testify. At the conclusion of the hearing, the
trial court ruled: "[T]he probative value [of A.O.'s
testimony] does outweigh the potential prejudice [to
Appellant]. There is such a degree of similarity [of the
abuse], and it will be admissible, but I will give counsel an
opportunity to submit proposed cautionary instructions with
regard to [A.O.]" N.T., 6/14/18, at 122.
argues that A.O. was incompetent to testify because her
testimony at the June 14, 2018 hearing was inconsistent.
Appellant's Brief at 21. Appellant underscores, inter
alia, that A.O. did not know the date of her birthday,
she could not define "oath," and she was unable to
elaborate on her use of the word, "stuff."
Id. at 22.
following precepts are applicable herein. The general rule is
that every person is presumed to be a competent witness.
Pa.R.E. 601(a); Commonwealth v. Judd, 897 A.2d 1224,
1228 (Pa. Super. 2006). Before a witness under the age of
fourteen may testify, Pennsylvania requires the examination
of the witness for competency. Commonwealth v.
Pukowsky, 147 A.3d 1229, 1234 (Pa. Super. 2016) (citing
Commonwealth v. Moore, 980 A.2d 647, 649-650 (Pa.
Super. 2009)). 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." Commonwealth v.
Meredith, __A.3d__, __, 2019 PA Super 308, *2 (Pa.
Super. filed October 15, 2019) (emphasis in original) (citing
Commonwealth v. Washington, 722 A.2d 643, 646 (Pa.
1998) (citation omitted)). Our scope of review is plenary.
Meredith, __A.3d at__, 2019 PA Super at *2 (citing
Commonwealth v. Delbridge, 859 A.2d 1254, 1257 (Pa.
2004)). "A party who challenges the competency of a
minor witness must prove by clear and convincing evidence
that the witness lacks 'the minimal capacity . . . (1) to
communicate, (2) to observe an event and accurately recall
that observation, and (3) to understand the necessity to
speak the truth.'" Meredith, __A.3d at__,
2019 PA Super at *2; see also Rosche v. McCoy, 156
A.2d 307, 310 (Pa. 1959) (competency of minor witness must
reveal capacity to communicate, remember events, and reveal a
consciousness of the duty to speak the truth).
June 14, 2018 competency hearing, A.O. initially was
questioned by the Commonwealth and testified, in pertinent
part, as follows:
Q [H]ow old are you?
Q Six years old. Are you in school?
Q What grade were you in?
Q Okay. Did you finish school or are you still in school?
A Yesterday was my last day in school.
Q Okay. So you finished kindergarten yesterday?
A [Affirmative nod.]
Q What grade are you gonna go into next year?
A First grade.
Q Okay. And what school do you go to?
A Price Elementary.
Q Who was your teacher this year?
A Ms. Hammick [phonetic].
Q Do you know who your teacher is gonna be next ...