J-A25009-14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              : IN THE SUPERIOR COURT OF
                                           :      PENNSYLVANIA
                  Appellee                 :
                                           :
            v.                             :
                                           :
ANTHONY SULLIVAN,                          :
                                           :
                  Appellant                : No. 3003 EDA 2012

        Appeal from the Judgment of Sentence September 17, 2012,
                Court of Common Pleas, Philadelphia County,
             Criminal Division at No. CP-51-CR-0003098-2010

BEFORE: DONOHUE, WECHT and PLATT*, JJ.

MEMORANDUM BY DONOHUE, J.:                       FILED NOVEMBER 06, 2014

      Anthony Sullivan (“Sullivan”) appeals from the judgment of sentence

entered by the Court of Common Pleas, Philadelphia County, following

convictions of incest, 18 Pa.C.S.A. § 4302(a), and endangering the welfare

of a child as a felony of the third degree, 18 Pa.C.S.A. § 4304(a). For the

reasons that follow, we affirm.

      A summary of the relevant facts and procedural history of this case is

as follows. Sullivan is the biological father of 10 children, including V.T., a

daughter.   V.T. lived with her mother but would visit Sullivan at his two-

bedroom apartment. In 2004, when V.T. was 14, Sullivan began talking to

her about boys and sex. V.T. was a virgin at the time and Sullivan would

often talk to her about losing her virginity. After a couple of months, V.T.

lost her virginity and Sullivan was the first person she told.




*Retired Senior Judge assigned to the Superior Court.
J-A25009-14


      Shortly thereafter, V.T.’s mother could no longer care for V.T. because

of a substance abuse problem and an abusive husband.           As a result, V.T.

moved in with Sullivan.     After V.T. moved in with him, Sullivan became

strict, overprotective, and jealous.   He then began to sexually abuse her.

Sullivan started by sucking on V.T.’s breasts and neck, leaving “passion

marks” on her neck. Sullivan would ask V.T. to take her socks off while she

watched TV and begin masturbating and would also masturbate while

watching her shower. Eventually, Sullivan and V.T. began to engage in oral

sex and sexual intercourse.     Sexual activity occurred daily.    At one point,

Sullivan told V.T. he wanted her to have his baby.

      Sullivan used sex as a control mechanism. If V.T. refused to have sex

with him, Sullivan would deny her food and clothing and would ignore her.

Sullivan would also tell V.T. about his sexual activity with three of her sisters

in an attempt to bribe her and would tell her what positions each sister

preferred. Sullivan displayed pictures of V.T.’s sisters in lingerie in the living

room along with naked pictures of other women.          On one occasion, while

V.T. was in the kitchen, Sullivan got his camera and told her to take off all of

her clothes. Sullivan told her how to position her body as he took pictures of

her, asking her to point her toes and arch her back. Sullivan also asked her

to take naked pictures of him as well as photograph him as he got an

erection. Sullivan uploaded the pictures to his computer. V.T. viewed naked




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pictures of her sisters on his computer, including pictures of her sisters

laying in Sullivan’s bed naked.

      After approximately two years, at the age of 16, V.T. moved back to

her mother’s house. V.T. did not tell her mother or anyone else about the

sexual abuse. In 2009, however, V.T. became concerned about her seven-

and eight-year-old sisters who were living with Sullivan. V.T. contacted the

Department of Human Services (“DHS”) to report Sullivan for sexual abuse.

V.T. initially attempted to report the sexual abuse anonymously. When DHS

told V.T. that she had to disclose her name in order for DHS to act, she

provided her name. DHS assigned a caseworker, Vivian Boyll (“Boyll”), to

work with V.T. and investigate the allegations. After V.T. informed Boyll of

the abuse that occurred, Boyll contacted the police.    Detectives from the

Philadelphia Police Department’s Special Victims Unit (“SVU”) contacted V.T.

and interviewed her at the station.

      On January 8, 2010, detectives, along with the SWAT team, went to

Sullivan’s apartment to execute a search warrant. The detectives recovered

cameras, DVDs, disk transfer flash adaptors, audio cassettes, wireless USB

adaptors, CDs, a DVD drive, a photo album, VHS tapes, and a computer.

Sullivan was not at the apartment.     Approximately five to six hours after

police executed the search warrant, however, Sullivan turned himself in to

the police. Sullivan was arrested and charged with rape, involuntary deviate

sexual intercourse, unlawful contact with a minor, statutory sexual assault,



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sexual assault, incest, endangering the welfare of a child, indecent assault,

and sexual abuse of children.1

      Nearly two months after Sullivan was arrested, Simone Brown

(“Brown”), who had been romantically linked to Sullivan at the time of his

arrest, contacted the SVU to inform them that prior to his arrest, Sullivan

asked Brown to take a white iPhone, a black iPhone, and other electronics,

including a laptop from his car, to her house. She also informed them that

while he was held at a correctional facility, Sullivan made several phone calls

to her and directed her, using coded language that referenced the Disney

movie, “Up,” to destroy his laptop and the iPhones. Sullivan also informed

Brown that he had thrown his other laptop computer in the East River in

New York. After examining the two iPhones, Brown discovered several nude

and partially nude photographs of Sullivan’s adult daughters and other

unrelated adults, as well as photographs of a minor girl in a bikini and in a

bra. Disturbed by her findings, Brown contacted the SVU to report that she

had the devices.

      On March 4, 2010, a detective went to Brown’s house, recovered the

items, and took a statement from Brown.         A forensic analysis of these

devices revealed 261 photographs on the laptop, 19 photographs on the




1
   18 Pa.C.S.A. §§ 3121(a)(1), 3123(a)(1), 6318(a)(1), 3122.1, 3124.1,
4302, 4304(a), 3126(a)(8), 6312(b).


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white iPhone, and 281 photographs on the black iPhone, depicting nude or

partially nude individuals.

      On April 26, 2012, the Commonwealth presented a motion in limine to

the trial court to introduce the photographs recovered from Sullivan’s laptop

and iPhones at trial pursuant to Rule 404(b) of the Pennsylvania Rules of

Evidence.   After argument, the trial court granted the Commonwealth’s

motion over Sullivan’s objections.

      A jury trial commenced on April 30, 2012. At trial, the Commonwealth

presented the testimony of the SVU detectives, V.T., V.T.’s mother, V.T.’s

sister, L.S., and Boyll.       Defense counsel objected to L.S. and Boyll’s

testimony regarding V.T.’s statements to them because they were neither

prompt complaints nor prior consistent statements. The trial court overruled

the objections and permitted L.S. and Boyll to testify.

      L.S. testified that she would notice passion marks on V.T.’s neck at

school and also testified that she saw photographs of her sisters in Sullivan’s

apartment that depicted them partially nude. She also testified that when

she was 19 or 20 years old, Sullivan asked her if he could take a picture of

her in her bathing suit.      L.S. did not allow him to take her picture.   L.S.

further testified that V.T. told her that Sullivan “was putting passion marks

on her, they had sex, and that’s about it.” N.T., 5/2/12, at 232. However,

on cross-examination, L.S. testified that she had conversations with her




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sisters about Sullivan, but never knew that sex was involved before the SVU

contacted her.

      During Boyll’s testimony, Boyll recounted the statements V.T. made to

her and testified regarding her attempts to contact Sullivan in the course of

her investigation.   Boyll testified that she attempted to call him, but the

phone number she had for him was no longer a working number. Boyll also

testified that she left a notification letter indicating that she wished to speak

with him at his apartment approximately one month before the search

warrant was executed by the SVU detectives and the SWAT team.              N.T.,

5/2/12, at 202. Sullivan moved for a mistrial, arguing that Boyll’s testimony

suggested that his failure to respond to Boyll was evidence of his guilt. The

trial court denied Sullivan’s request for a mistrial.

      On May 8, 2012, the jury convicted Sullivan of incest and endangering

the welfare of children. The jury found Sullivan not guilty of sexual abuse of

children, and could not reach a verdict on the remaining charges.             On

September 17, 2012, the trial court sentenced Sullivan to a term of

incarceration of 13 years and four months to 27 years.

      Sullivan timely filed a notice of appeal, a concise statement of matters

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and a supplemental

statement of matters complained of on appeal. On appeal, Sullivan raises

the following issues for our review:




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      1.    Did not the trial court abuse its discretion in granting
            the     Commonwealth’s      motion      to     introduce
            photographic evidence under Pennsylvania Rule of
            Evidence 404(b) because: (1) the photographs were
            not sufficiently shown to be the acts of [Sullivan];
            (2) the photographs did not prove a common plan,
            scheme, or design; (3) the photographs did not
            prove a motive or intent; (4) the photographs were
            neither used to coerce nor related to the coercion of
            the complainant as she did not observe the majority
            of the photographs; (5) the photographs are not
            relevant to rebut a claim of fabrication where the
            purported photographic acts do not regard the
            specific crime alleged but rather improperly
            introduced character evidence; and (6) the
            prejudicial effect of the photographs outweighs any
            probative value, especially in those instances where
            the record does not establish that [Sullivan] took or
            showed the complainant the pictures?

      2.    Did not the trial court abuse its discretion in
            permitting L.S. and Vivian Boyll to testify regarding
            the complainant’s statements to them pursuant to
            Rule of Evidence 613, regarding prior consistent
            statements, or otherwise as prompt complaint
            testimony, where the statements were not prompt,
            arose after the motive to fabricate, and did not rebut
            any impeachment of the complainant?

      3.    Did not the trial court abuse its discretion in denying
            [Sullivan’s] motion for a mistrial because statements
            regarding attempts to contact [Sullivan] and his lack
            of response raised an impermissible inference of his
            failure to speak in violation of his right to remain
            silent?

Sullivan’s Brief at 3-4.

      For his first issue on appeal, Sullivan argues that the trial court abused

its discretion when it “improperly allowed the Commonwealth to introduce,

discuss and publish to the jury hundreds of photographs” under Rule 404(b)



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of the Pennsylvania Rules of Evidence.      Id. at 15.    These photographs

included:

            1. Photographs depicting E.B.[, a minor cousin of
            Sullivan’s daughter,] and other clothed minors;

            2. Photographs depicting V.T.’s adult sisters in
            various stages of undress;

            3. Photographs depicting unrelated adults in various
            stages of undress;

            4. Photographs of Sullivan nude with unrelated
            adults[;]

            5. Photographs depicting appropriately clothed
            members of Sullivan’s family or irrelevant physical
            objects (such as a motorcycle).

Id. at 17-18 (footnote omitted).

      Our well-settled standard of review of a trial court’s admission of

evidence is as follows:

            Admission of evidence is within the sound discretion
            of the trial court and will be reversed only upon a
            showing that the trial court abused its discretion.
            Admissibility depends on relevance and probative
            value. 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. Reese, 31 A.3d 708, 716 (Pa. Super. 2011) (internal

citations omitted).

      Rule 404(b)(1) provides that “[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show



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actions in conformity therewith.” Pa.R.E. 404(b)(1). However, evidence of

prior crimes, wrongs, or acts “may be introduced for other limited purposes,

including, but not limited to, establishing motive, opportunity, intent,

preparation, plan, knowledge, identity or absence of mistake or accident,

common scheme or design, modus operandi, and the natural history of the

case.”   Pa.R.E. 404(b)(2); Commonwealth v. Kinard, 95 A.3d 279, 284

(Pa. Super. 2014) (citing Commonwealth v. Brookins, 10 A.3d 1251,

1256 (Pa. Super. 2010), appeal denied, 22 A.3d 1033 (Pa. 2011)). The trial

court may admit the evidence for these limited purposes if the probative

value of the evidence outweighs its potential prejudicial effect.   Pa.R.E.

404(b)(2).

     In this case, the Commonwealth presented a motion in limine seeking

to introduce all of the complained-of photographs at trial as circumstantial

evidence to prove that Sullivan had sexual relationships with his daughters

and that Sullivan took nude photographs of V.T.     N.T., 4/27/12, at 9-10.

The Commonwealth specifically argued that the photographs established

circumstantial proof that the defendant either took the photographs or

knowingly possessed the photographs and that the photographs established

a common scheme or plan by Sullivan. Id. at 16.

     The trial court determined that the photographs were admissible under

Rule 404(b) under the common scheme or design exception and the res

gestae exception.   Trial Court Opinion, 8/23/13, at 12.    The trial court



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opined that the evidence adequately demonstrated that the photographs

were acts of Sullivan because the photographs were on the walls of his

home, on his computer, on his cellphones, were taken inside of his

apartment, and because he planned the destruction of the electronic devices

that contained the photographs.              Id.     Furthermore, the trial court

determined that the photographs demonstrated “a common design on the

part of [Sullivan] to photograph his daughters in the nude and to create a

sexualized environment within the home,” and that the photographs were

part of the history of the case, “which helped the jury understand the

sequence of events leading to [Sullivan’s] arrest.”             Id.    The trial court

concluded     that    it   properly   admitted     the   photographs    because     the

photographs were relevant to the charge of sexual abuse, that the probative

value of the photographs outweighed their prejudicial impact, and because

the evidence was “critically important” “due to the lack of physical evidence

of sexual abuse, [V.T.’s] delay in reporting the                 abuse, [Sullivan’s]

destruction    of    evidence,   and   the   defense     that   V.T.   fabricated   the

allegations.” Id. at 13.

      Sullivan asserts that the trial court erred because the photographs fail

to meet the requirements for admission under Rule 404(b). Sullivan’s Brief

at 18.    Specifically, Sullivan argues that the Commonwealth failed to

establish that Sullivan took or knowingly possessed the photographs, and




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that the photographs were not relevant, did not serve a permissible purpose

under Rule 404(b), and were unduly prejudicial. Id. at 19-31.

      We begin by addressing the Commonwealth’s assertion that Sullivan

waived his claims relating to the photographs in the last three categories –

those depicting unrelated adults, Sullivan nude with unrelated adults, and

members       of     Sullivan’s    family      or    irrelevant   physical       objects.

Commonwealth’s Brief at 16.        The Commonwealth argues that Sullivan “fails

to identify any specific photograph that was allegedly improperly admitted

[…] [and that] he raised no objection at trial when these allegedly

objectionable photographs were admitted.” Id.

      A review of the record reveals that although Sullivan objected to the

introduction of photographs of V.T.’s sisters during the hearing on the

Commonwealth’s motion in limine, see N.T., 4/27/12, at 7-22, Sullivan

failed to object to the photographs of Sullivan’s appropriately clothed family

members and irrelevant physical objects. With regard to the photographs of

Sullivan and the unrelated adults, Sullivan and the Commonwealth agreed to

address   any      potential   issues   with   the   photographs    at   trial    if   the

Commonwealth introduced them.               N.T., 4/27/12, at 22-24.         When the

Commonwealth introduced these photographs at trial, however, Sullivan did

not object.     See N.T., 4/30/12, at 73-76, 79, 115-16.             Accordingly, we

conclude that Sullivan’s failure to object to these photographs at either the

hearing on the motion in limine or at trial constitutes waiver and therefore,



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we need not address the merits of these claims.        See Blumer v. Ford

Motor Co., 20 A.3d 1222, 1232 (Pa. Super. 2011) (“[I]f the trial court

defers ruling on a motion in limine until trial, the party that brought the

motion must renew the objection at trial or the issue will be deemed waived

on appeal.”); Commonwealth v. Shamsud-Din, 995 A.2d 1224, 1228

(Pa. Super. 2010) (stating, “in order for a claim of error to be preserved for

appellate review, a party must make a timely and specific objection before

the trial court at the appropriate stage of the proceedings; the failure to do

so will result in waiver of the issue”).

      With regard to Sullivan’s claim that the trial court erred in admitting

the photographs of a minor, E.B., posing in a bikini, posing with her shirt

open and displaying her bra, and posing while fully dressed, we begin by

noting that all but three of the photographs admitted at trial were taken by

E.B. herself. N.T., 4/27/12, at 5-6; N.T., 4/30/12, at 182. Furthermore, in

the remaining three photographs, which appear to have been taken by

someone else, E.B. was fully clothed. Id. at 182-83. These photographs do

not constitute or suggest that Sullivan committed a bad act and thus do not

warrant exclusion pursuant to Rule 404(b).

      We find merit, however, to Sullivan’s argument that the photographs

of E.B. are not relevant for any purpose. Sullivan’s Brief at 31. It is well

settled that “[e]vidence is relevant if it has ‘any tendency to make the

existence of any fact that is of consequence to the determination of the



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action more probable or less probable than it would be without the

evidence.’”    Commonwealth v. Williams, 91 A.3d 240, 242 (Pa. Super.

2014); Pa.R.E. 401.       According to the Commonwealth’s argument, the

photographs were being admitted as circumstantial evidence to establish

that Sullivan took nude photographs of V.T., thereby proving sexual abuse of

children under 18 Pa.C.S.A. § 6312(b).2 The forensic analysis of Sullivan’s

computer and iPhones did not reveal any photographs of V.T. N.T., 4/30/12,

at 29, 40.    Instead, the only evidence offered by the Commonwealth was

V.T.’s testimony that while she was in the kitchen, Sullivan told her to take

off her clothes and then photographed her naked. N.T., 5/2/12, at 56. The

self-taken photographs of E.B. in a bikini or photographs of E.B. fully

dressed do not make it more or less probable that Sullivan took nude


2
    Section 6312(b) of the Pennsylvania Crimes Code states:

              (b) Photographing, videotaping, depicting on
              computer or filming sexual acts.—
              (1) Any person who causes or knowingly permits a
              child under the age of 18 years to engage in a
              prohibited sexual act or in the simulation of such act
              commits an offense if such person knows, has reason
              to know or intends that such act may be
              photographed, videotaped, depicted on computer or
              filmed.

              (2) Any person who knowingly photographs,
              videotapes, depicts on computer or films a child
              under the age of 18 years engaging in a prohibited
              sexual act or in the simulation of such an act
              commits an offense.

18 Pa.C.S.A. § 6312(b).


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photographs of V.T. As the photographs of E.B. were not relevant, the trial

court erred in admitting these photographs. Pa.R.E. 402 (“Evidence that is

not relevant is not admissible.”).

      Nevertheless, we find this error to be harmless. An error is harmless

if:

            (1) the prejudice to the appellant was nonexistent or
            de minimis; (2) the erroneously admitted evidence
            was merely cumulative of other untainted,
            substantially similar and properly admitted evidence;
            or (3) the properly admitted and uncontradicted
            evidence 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.

Commonwealth v. Hardy, 918 A.2d 766, 777 (Pa. Super. 2007) (citing

Dent, 837 A.2d 571, 582 n.2 (Pa. Super. 2003)).

      Here, the prejudice to Sullivan was nonexistent or de minimis.      The

Commonwealth did not present extensive testimony or any argument with

regard to the photographs of E.B. See N.T., 4/30/12, at 76-78, 80, 158-59,

184-85. Instead, the record reflects that the only testimony relating to the

photographs of E.B. consisted of brief descriptions of what the pictures

depicted, including what she was wearing in the picture and who appeared

to be taking the picture.     Id.    Moreover, there was no testimony that

suggested Sullivan sexually abused E.B. and the jury acquitted Sullivan of

sexual abuse of a child, N.T., 5/8/12, at 12. As a result, we do not find that

the introduction of the photographs of E.B. prejudiced Sullivan.



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       The remaining photographs depict V.T.’s adult sisters in various stages

of undress. Sullivan’s Brief at 22-31. We first address Sullivan’s claim that

the Commonwealth failed to establish that he took these photographs.

Sullivan’s Brief at 20-21.    The trial court concluded that the evidence

presented at trial demonstrated that Sullivan took the photographs because

the photographs were on the walls of his home, on his computer, on his cell

phones, were taken inside of his apartment, and because he tried to destroy

the electronic devices on which the photographs were saved.        Trial Court

Opinion, 8/23/13, at 12. Sullivan argues that this evidence did not establish

that he took the photographs because many individuals had access to

Sullivan’s apartment, computer, and cell phones. Sullivan’s Brief at 20. In

support of his argument, Sullivan cites to Commonwealth v. Snyder, 870

A.2d 336 (Pa. Super. 2005).

       In Snyder, the defendant was charged with sexually abusing a seven-

year-old child. Id. at 340. At trial, the Commonwealth sought to introduce a

Polaroid photograph of the victim, posed nude in a sexually provocative

manner, that a private investigator found in the defendant’s home. Id. at

343.   Although the Commonwealth did not have direct evidence that the

defendant took the photograph, the trial court admitted the evidence after

finding that circumstantial evidence established that the defendant took the

photograph of the victim. Id. at 344. The trial court provided the following

explanation in support of its conclusion:



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            Here, the photograph was taken by someone who
            had access to the camera in the house. There were
            only two adults in the house, co-defendants in this
            case. The photograph was taken during the time
            frame that the alleged incidents of sexual misconduct
            occurred, i.e. when the child was seven or eight
            years old. The photograph is clearly of a sexual
            nature, with a child laying on the bed looking
            straight at the camera.            Furthermore, the
            photograph was found in a location that the
            Defendant was known to have kept a videotape of
            sexual acts.

Id.

       Sullivan argues that Snyder is inapposite to the case presently before

this Court. Sullivan’s Brief at 20. We disagree. In this case, as in Snyder,

the Commonwealth did not have direct evidence that Sullivan took the

photographs    of   V.T.’s   sisters,   but   presented   testimony   establishing

circumstantial evidence that Sullivan took the photographs of V.T.’s sisters.

V.T. testified that Sullivan told her that he took the photographs of her

sister, M.S. N.T., 5/2/12, at 115. The photographs were taken in Sullivan’s

apartment. Some hung on his walls. Moreover, the photographs of V.T.’s

sisters were found on Sullivan’s computer and cell phones, devices that

Sullivan asked Brown to destroy.        Thus, just as we found in Snyder, we

conclude that the circumstantial evidence presented at trial establishes that

Sullivan took the photographs of V.T.’s sisters.      See Snyder, 870 A.2d at

344.    Accordingly, we find no error in the trial court’s conclusion that

Sullivan was the photographer.




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      Turning to the admissibility of the photographs, Sullivan argues that

the photographs were not admissible as they do not serve a permissible

purpose and they are unduly prejudicial.        Sullivan’s Brief at 22, 31.        The

record   reflects   that   during   argument    on   its   motion   in   limine,   the

Commonwealth asserted that the pictures of V.T.’s sisters were relevant and

admissible under Rule 404(b) to establish a common scheme or plan. N.T.,

4/27/12, at 16.     The trial court agreed, concluding that the photographs

demonstrated “a common design on the part of [Sullivan] to photograph his

daughters in the nude and to create a sexualized environment within his

home.” Trial Court Opinion, 8/23/13, at 12.

      With regard to admitting evidence under the common scheme or plan

exception, this Court has established that

            a determination of whether evidence is admissible
            under the common plan exception must be made on
            a case by case basis in accordance with the unique
            facts and circumstances of each case. However, we
            recognize that in each case, the trial court is bound
            to follow the same controlling, albeit general,
            principles of law. When ruling upon the admissibility
            of evidence under the common plan exception, the
            trial court must first examine the details and
            surrounding circumstances of each criminal incident
            to assure that the evidence reveals criminal conduct
            which is distinctive and so nearly identical as to
            become the signature of the same perpetrator.
            Relevant to such a finding will be the habits or
            patterns of action or conduct undertaken by the
            perpetrator to commit crime, as well as the
            time, place, and types of victims typically
            chosen by the perpetrator. […]




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Commonwealth v. Smith, 635 A.2d 1086, 1089 (Pa. Super. 1993)

(emphasis added) (citing Commonwealth v. Frank, 577 A.2d 609, 614

(Pa. Super. 1990), appeal denied, 584 A.2d 312 (Pa. 1990)). “The degree of

similarity is an important factor in determining the admissibility of other

crimes or bad acts under this exception.” Commonwealth v. Einhorn, 911

A.2d 960, 967 (Pa. Super. 2006) (citing Commonwealth v. Luktisch, 680

A.2d 877, 879 (Pa. Super. 1996)).

           With a modicum of effort, in most cases it is possible
           to note some similarities between the accused’s prior
           bad conduct and that alleged in a current case. To
           preserve the purpose of Rule 404(b)(1), more must
           be required to establish an exception to the rule—
           namely a close factual nexus sufficient to
           demonstrate the connective relevance of the
           prior bad acts to the crime in question.

Commonwealth v. Ross, 57 A.3d 85, 104 (Pa. Super. 2012) (en banc)

(emphasis added). The crimes must be “so related that proof of one tends

to prove the others.” Id. at 103.

     In Commonwealth v. G.D.M., Sr., 926 A.2d 984 (Pa. Super. 2007),

“a jury convicted the appellant of indecent assault, endangering the welfare

of children, and corruption of minors, in connection with [the] appellant’s

ongoing sexual molestation of his six-year-old son.” Id. at 985. On appeal,

the appellant argued that the trial court improperly allowed testimony of his

prior criminal convictions of indecent assault and endangering the welfare of

children in connection with his ongoing sexual molestation of his 13-year-old




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daughter. Id. at 987. A panel of this Court held that “testimony regarding

[the] appellant’s crimes against his other child was proper as it evinced a

common plan.” Id. at 987-88.

              The time frames of the abuse of the other child and
              of the victim were very close. […] Both molestations
              occurred in the family home and both involved [the]
              appellant’s own children. Moreover, the nature of
              both molestations involved manipulation of the
              genitals by hand only; there were no allegations of
              any other type of sexual activity. The earlier offense
              was quite similar to the latter, and we find no abuse
              of discretion in the trial court’s finding the probative
              value of the evidence outweighed the prejudiced
              incurred in admitting the evidence.

Id. at 988.

      The record reflects that Sullivan’s computer and iPhones contained

hundreds of pictures of Sullivan’s daughters.        N.T., 4/30/12, at 64, 137.

V.T. stated that Sullivan photographed her in his apartment while she was

naked while she posed in a sexual manner.             N.T., 5/2/12, at 56.   He

photographed her as a teenager. Id. Likewise, the photographs of V.T.’s

sisters were taken in Sullivan’s apartment, depicted the girls naked or

partially naked, posing in a sexual manner, and there is evidence that at

least one of the sisters was a teenager at the time the photographs were

taken. Id. at 63. This exhibits a pattern by Sullivan, and the photographs

are all in the same general location and are of the same class of victims, his

daughters.     See Smith, 635 A.2d at 1089.          The crimes are sufficiently

similar to demonstrate a “connective relevance” to the allegations at issue.



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See Ross, 57 A.3d at 104. Accordingly, we find that the trial court did not

abuse its discretion in admitting the photographs of Sullivan’s daughters

under the common plan or scheme exception.

      This does not end our analysis.        Once a trial court determines that

prior act evidence is admissible for a proper purpose, we must “balance the

need demonstrated by the Commonwealth for this evidence against its

potential prejudice.”    Commonwealth v. Ardinger, 839 A.2d 1143, 1146

(Pa. Super. 2003).      In Commonwealth v. Weakley, 972 A.2d 1182 (Pa.

Super. 2009), this Court provided guidance on conducting an inquiry into

“whether the probative value of the ‘other crimes’ evidence outweighs its

presumptive prejudice.” Id. at 1191. In Weakley, we stated:

            In    conducting    the   probative  value/prejudice
            balancing test, courts must consider factors such as
            the strength of the ‘other crimes’ evidence, the
            similarities between the crimes, the time lapse
            between crimes, the need for the other crimes
            evidence, the efficacy of alternative proof of the
            charged crime, and ‘the degree to which the
            evidence     probably   will  rouse  the    jury  to
            overmastering hostility.’

Id. (citations omitted).

      Applying these factors to the instant matter supports the trial court’s

determination that the probative value of the photographs of V.T.’s sisters

outweighs   its   presumptive   prejudice.      As   previously   discussed,   the

photographs of V.T.’s sisters and the photographs V.T. claimed Sullivan took

of her are patently similar as the photographs depicted Sullivan’s nude



                                    - 20 -
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daughters, posed in a sexual manner. N.T., 4/30/12, at 64. Furthermore,

the record reflects the Commonwealth’s considerable need for this evidence

given the absence of the photographs of V.T. and the defense’s insinuation

that V.T. lied about the photographs and the sexual abuse.      Id. at 38-39.

The Commonwealth’s only alternative proof of the charges was V.T.’s

testimony, the credibility of which was attacked by the defense. Id. at 37-

40. The Commonwealth’s evidence establishing the charge of sexual abuse

therefore relied upon this circumstantial evidence.     As this Court held in

Weakley, “it is the specific purpose of the ‘other crimes’ evidence to give

the jury insight into the significance of these circumstances.” Weakley, 972

A.2d at 1191. We therefore conclude that the trial court did not err in its

conclusion that the photographs were more probative than prejudicial, and

thus, properly admitted the photographs under Rule 404(b).3

      For his second issue on appeal, Sullivan argues that the trial court

abused its discretion by permitting L.S. and Boyll to testify to the statements

of sexual abuse V.T. made to them in 2009. Sullivan’s Brief at 31. Sullivan

argues that their testimony improperly bolstered the credibility of V.T. and

that the trial court improperly permitted the Commonwealth to introduce the

prior consistent statements before he made any attempt to impeach V.T.’s


3
   Based upon our determination that the photographs were properly
admitted as evidence of Sullivan’s common plan or scheme, we need not
address Sullivan’s remaining claims that the photographs do not satisfy any
other recognized exception under 404(b) including intent, motive, or res
gestae.


                                    - 21 -
J-A25009-14


credibility.   Sullivan’s Brief at 32-33.    The trial court determined that the

testimony by L.S. and Boyll was admissible under Rule 613 of the

Pennsylvania Rules of Evidence as prior consistent statements. Trial Court

Opinion, 8/23/13, at 9; see also N.T., 5/2/12, at 175.4

        Rule 613 of the Pennsylvania Rules of Evidence provides, in relevant

part:

               (c) Witness’s Prior Consistent Statement to
               Rehabilitate.      Evidence of a prior consistent
               statement by a witness is admissible for
               rehabilitation purposes if the opposing party is given
               an opportunity to cross-examine the witness about
               the statement, and the statement is offered to rebut
               an express or implied charge of:

               (1) fabrication, bias, improper influence or motive, or
               faulty memory and the statement was made before
               that which has been charged existed or arose; or

               (2) having made a prior inconsistent statement,
               which the witness has denied or explained, and the
               consistent statement supports the witness’s denial or
               explanation.

Pa.R.E. 613(c) (rescinded and replaced effective March 18, 2013).5

Pursuant to this Rule,

               [a]dmission of prior consistent statements on such
               grounds is a matter left to the sound discretion of
               the trial court, to be decided in light of the character
               and degree of impeachment. It is not necessary that
               the impeachment be direct; it may be implied,

4
  The trial court also ultimately determined that V.T.’s statements were not
admissible as a prompt complaint of a sexual assault. N.T. 5/2/12, at 175.
5
  As Sullivan’s conviction occurred prior to the amendment of Rule 613, we
use the pre-amended version here.


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              inferred, or insinuated either by cross-examination,
              presentation    of   conflicting  evidence,  or    a
              combination of the two.

Commonwealth v. Baker, 963 A.2d 495, 504 (Pa. Super. 2008) (citing

Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super. 2005)).

“Pennsylvania law has long stated that [in sexual assault cases] the

credibility of the complaining witness is always an issue.” Commonwealth

v. Dillon, 863 A.2d 597, 601-02 (Pa. Super. 2004) (emphasis in original)

(citing Commonwealth v. Bryson, 860 A.2d 1101, 1104 (Pa. Super. 2004)

(en banc)).

     In this case, the trial court found that Sullivan’s “entire defense

centered around impeaching [V.T.’s] credibility.”       Trial Court Opinion,

8/23/13, at 10; see also N.T. 4/30/12, at 38.         “Where, as here, it is

apparent that the defense centers around impeaching the credibility of a

witness, a prior consistent statement may, at the discretion of the trial

court, be admitted before impeachment.” Commonwealth v. Beale, 665

A.2d 473, 475-76 (Pa. Super. 1995) (citing Commonwealth v. Smith, 540

A.2d 246, 258 (Pa. 1988)).          Furthermore, as this Court stated in

Commonwealth v. Handfield, 34 A.3d 187 (Pa. Super. 2011), “[our]

Supreme Court allows prior consistent statements to be proved by the

person to whom they were made in order to support the credibility of the

witness.”     Id. at 209 (citing Commonwealth v. Hutchinson, 556 A.2d

370, 372 (Pa. 1989)).        Accordingly, the trial court did not abuse its



                                     - 23 -
J-A25009-14


discretion by permitting the testimony of V.T.’s prior consistent statements

made to L.S. and Boyll.

         Sullivan further argues that V.T. made these statements to L.S. and

Boyll after she had a motive to fabricate. Sullivan’s Brief at 33. According

to Sullivan, “V.T.’s motive to fabricate arose in 2007 or 2008 when Sullivan

became strict with her and subsequently threw her out of the house and

changed the locks.” Id.; see also N.T., 5/3/12, at 32-36; N.T., 5/2/12, at

96-102. The trial court found that although Sullivan might be correct in his

assertion that V.T.’s statements to L.S. and Boyll “arose after the motive to

fabricate,” his objection to this was “too late“ because he failed to object to

the prior consistent statements when V.T. offered them during direct

examination, and only objected to the subsequent testimony by L.S. and

Boyll.    Trial Court Opinion, 8/23/13, at 10-11.   The trial court determined

that precluding testimony from these witnesses may have resulted in the

jury drawing an adverse inference from the absence of their testimony

corroborating V.T.’s account. Id. Thus, in fairness to the Commonwealth,

the trial court permitted L.S. and Boyll to corroborate V.T.’s testimony of the

conversations she had with them. Id.

         After a review of the record, we disagree with the trial court’s

conclusion that Sullivan’s objection was untimely. The record reflects that

prior to any testimony on the third day of trial, defense counsel argued that

L.S. and Boyll’s testimony regarding V.T.’s disclosures of abuse was



                                     - 24 -
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inadmissible.   See N.T., 5/2/12, at 3-23.     Defense counsel conceded to

allowing the Commonwealth to introduce evidence that V.T. disclosed abuse

to others through V.T.’s testimony, but argued that the witnesses to whom

V.T. disclosed the abuse, L.S. and Boyll, were precluded from testifying to

what V.T. disclosed. Id. at 8-14. The trial court ruled that V.T., L.S., and

Boyll were permitted to testify to the disclosures V.T. made in 2009. Id. at

19. The court declined to make a ruling on whether it would give the jury a

prompt complaint instruction until the trial court heard the testimony and

“[saw] how it play[ed] out.” Id. at 20. The following discussion ensued:

            MR. LEVANT: Your honor, note my objection
            properly.   To make sure my record is clear, I
            objected to her [(L.S.)] being called for any of those
            purposes.

            Now that the [c]ourt has made a ruling that she will
            be permitted to testify for the reasons stated, I feel
            that I then am put in a position where I have to fully
            cross-examine and assume all this is going to come
            in. So I would like to make the record clear on that,
            that my objection will be that she not be permitted
            to do any of that. Based upon the [c]ourt’s ruling, I
            just want to be clear.

            THE COURT: Absolutely preserved for appeal and
            you can go at it.

N.T., 5/2/12, at 21.

      During trial, defense counsel did not cross-examine V.T. or object to

V.T.’s testimony regarding her prior consistent statements to L.S. and Boyll.

N.T., 5/2/12, at 79, 83.    At the conclusion of V.T.’s testimony, defense




                                    - 25 -
J-A25009-14


counsel again objected to the introduction of L.S.’s testimony regarding

V.T.’s prior consistent statements. Id. at 168-81.

      “Once the court rules definitively on the record--either before or at

trial--a party need not renew an objection or offer of proof to preserve a

claim of error for appeal.” Pa.R.E. 103(b). Here, Sullivan’s attorney made a

specific objection on the record to the trial court’s ruling, which clearly and

definitively allowed L.S. and Boyll to testify to V.T.’s prior consistent

statements to them, leaving only the issue of whether the court would also

classify the statements as prompt complaint for trial. N.T., 5/2/12, at 19-

20.   As Sullivan properly objected to the ruling, he was not required to

renew the objection at trial.

      We conclude, however, that the trial court properly permitted L.S. and

Boyll to testify regarding the prior consistent statements. Although Sullivan

is correct that “[a] prior consistent statement is admissible only if it is made

before the declarant has a motive to fabricate,” Handfield, 34 A.3d at 208,

the record reflects that Sullivan failed to establish that V.T. had a motive to

fabricate at the time she made the disclosures in question.

      During opening statements, defense counsel suggested that V.T. lied

about the sexual abuse allegations because she did not like how strict

Sullivan was and she did not want to follow Sullivan’s rules. N.T., 4/30/12,

at 37-38.     Furthermore, defense counsel elicited testimony on direct

examination from his defense witness that V.T. and Sullivan had a “falling-



                                     - 26 -
J-A25009-14


out” in 2007 because Sullivan accused her of stealing money from his room.

N.T., 5/3/12, at 34-35, 47. The witness further testified that as a result of

this incident, V.T. moved out of the house and Sullivan changed the locks.

Id. at 35, 47. Sullivan asserts that V.T.’s motive to fabricate arose in 2007

or 2008 following these incidents. Sullivan’s Brief at 33.

      In Commonwealth v. Montalvo, 986 A.2d 84 (Pa. 2009), our

Supreme Court stated that “[w]hen considering the admissibility of prior

statements, the importance of timing has often been emphasized.”       Id. at

96. In support of this assertion, the Court cited to Pa.R.E. 613(c) comment,

which provides, “the use of the consistent statement will depend upon the

nature of the explanation and all of the circumstances that prompted the

making of the consistent statement; the timing of that statement, although

not conclusive, is one of the factors to be considered.” Id. (citing Pa.R.E.

613(c), comment).

      At trial, V.T. testified regarding the circumstances that prompted her

to disclose Sullivan’s abuse to L.S. and Boyll. V.T. stated that she told L.S.

about the abuse after she moved out of Sullivan’s home because she knew

that L.S. was starting to go to Sullivan’s apartment more often and she did

not want Sullivan to do the same thing to L.S. that he had done to her.

N.T., 5/2/12, at 79. V.T. similarly testified that she decided to contact DHS

because she became concerned about her younger sisters that were living

with Sullivan. Id. at 81-82, 159.



                                    - 27 -
J-A25009-14


      Although there was no dispute that V.T. made the consistent

statement to Boyll in 2009, the parties did not agree upon the timing of

V.T.’s statements to L.S. Defense counsel stated that V.T. informed L.S. of

the abuse at least three years after the abuse occurred. N.T., 5/2/12, at 4,

6-7. On the other hand, the Commonwealth asserted that L.S. received a

progression of information, with V.T. giving hints and alluding to the abuse

as it was occurring.    Id. at 4.    The parties agreed that full disclosure

occurred in 2009 when DHS became involved, which was approximately two-

and-a-half years after V.T. left Sullivan’s home. Id. at 5-7.

      Sullivan argues that a motive to fabricate the abuse arose from V.T.’s

unhappiness with his rules and strictness when she resided with him, as well

as from the incident wherein Sullivan accused her of stealing money from his

room, which occurred in 2007-2008.           Sullivan’s Brief at 33.   However,

Sullivan fails to establish the connection between these matters and an

alleged motive to fabricate. The disclosures occurred more than three years

after V.T. moved out of Sullivan’s home and one to two years after Sullivan

and V.T. allegedly had a falling out over stolen money. N.T., 5/2/12, at 5-7.

V.T. no longer lived with Sullivan, was no longer under the control of or the

rules of Sullivan, and there was no evidence suggesting that further issues

between Sullivan and V.T. arose after Sullivan accused her of stealing

money and changed the locks. Id. at 74-75. V.T. testified that she stopped

speaking with Sullivan after she moved out, and only spoke with him again



                                    - 28 -
J-A25009-14


when she was 18 years old. Id. at 97-101. Thus, there is no support in the

record for Sullivan’s claim that V.T. made the aforementioned disclosures to

L.S. and Boyll because of Sullivan’s strict discipline as opposed to her stated

concern for her sisters and her hope of shielding them from the same sexual

abuse she suffered at Sullivan’s hands.         Therefore, without more, we

conclude that Sullivan did not show that V.T.’s disclosures post-dated a

motive to fabricate the allegations because there was no temporal

connection between the motive and the disclosure. As a result, we discern

no error in the admission of the prior consistent statements.

      In his third issue on appeal, Sullivan argues that the trial court abused

its discretion in denying his motion for a mistrial based on Boyll’s testimony

regarding her attempts to contact Sullivan prior to his arrest. We begin by

stating our standard of review:

            A motion for a mistrial is within the discretion of the
            trial court. A mistrial upon motion of one of the
            parties is required only when an incident is of such a
            nature that its unavoidable effect is to deprive the
            appellant of a fair and impartial trial. It is within the
            trial court’s discretion to determine whether a
            defendant was prejudiced by the incident that is the
            basis of a motion for a mistrial. On appeal, our
            standard of review is whether the trial court abused
            that discretion.

Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa. Super. 2014) (citing

Commonwealth v. Tejada, 834 A.2d 619, 623 (Pa. Super. 2003)).




                                     - 29 -
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      Sullivan claims that the trial court’s admission of Boyll’s testimony that

she attempted to contact him by telephone and by leaving a notification

letter at his apartment violated his constitutional right to remain silent

pursuant to the Fifth Amendment to the United States Constitution and

Article I, Section 9 of the Pennsylvania Constitution. Sullivan’s Brief at 34.

Sullivan specifically challenges the following portion of Boyll’s testimony:

            Q. Prior to -- specifically calling your attention to
            December 9th of 2009, did you, yourself, make
            attempts to contact the defendant, Anthony Sullivan?

            A. Yes.

            Q. How did you make those attempts to contact him?

            A. I went to his home. I called     the phone number
            that we had for him. I couldn’t     get any answer at
            the apartment building, and I        couldn’t get any
            answer -- the phone was no          longer a working
            number.

            Q. Were there any letters or notes left in order to
            indicate that you wished to speak with him?

            A. Yes.   We left a notification letter, which is
            standard.

            Q. Was this notification left approximately a month
            before you actually entered his home with the SWAT
            Team?

            A. Yes.

N.T., 5/2/2012, at 201-202. Although Sullivan agrees that “[t]he fact that

Sullivan’s phone line was disconnected or that he was not home when Boyll

went to the house do[es] not implicate his right to remain silent[,]” he



                                     - 30 -
J-A25009-14


argues that “the Commonwealth specifically made his silence an issue” by

asking whether Boyll left any letters or notes indicating that she wished to

speak with him. Sullivan’s Brief at 36.

      The trial court found that Boyll’s testimony did not implicate Sullivan’s

right to remain silent. Trial Court Opinion, 8/23/13, at 6. In support of its

conclusion, the trial court noted that the record was devoid of evidence that

Sullivan either communicated with DHS or refused to communicate with DHS

and that Boyll “never testified that the notification letter reached [Sullivan],

nor that it requested or required a response.” Id. Moreover, the trial court

“gave the jury the standard instruction regarding [Sullivan’s] right to remain

silent and instructed the jury that no inference can be drawn from such

silence.” Id. The trial court also determined that to the extent it erred in

permitting Boyll’s testimony regarding the notification letter, the error was

harmless. Id. at 6-7.

      In his brief, Sullivan cites to Commonwealth v. Molina, 33 A.3d 51

(Pa. Super. 2012) (en banc), appeal granted, 51 A.3d 181 (Pa. Aug. 14,

2012), in support of his argument that the trial court erred in denying his

motion for a mistrial. In Molina, the defendant was charged with one count

of criminal homicide for beating the victim to death.         At trial, a detective

testified that while investigating the disappearance of the victim, she

received   information   that   Molina    was   potentially     involved   in   her

disappearance. When the detective went to Molina’s house, an individual at



                                     - 31 -
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the house told the detective that Molina no longer lived there. The detective

left a message with the individual, asking Molina to call her. Id. at 53-54.

Molina called the detective that day and “told her that he did not know

where [the victim] was but it was ‘out on the street’ that he was somehow

involved in her being missing and that was not true.”     Id. at 54.   Molina

initially stated that he had not seen the victim for a year and a half, but

moments later, stated that it had been three months.         Id.   When the

detective asked Molina to come to the police station for an interview, Molina

refused. Id.

     During the Commonwealth’s closing argument, Counsel commented on

Molina’s refusal to come to the police station for an interview. Id. Counsel

for Molina objected to the Commonwealth’s commentary, but the trial court

overruled the objection and refused defense counsel’s request for a curative

instruction. Id. When the Commonwealth resumed, the prosecutor argued

to the jury: “Factor [Molina’s refusal to speak with police] in when you’re

making an important decision in this case as well.” Id.

     On appeal, an en banc panel agreed with Molina that the trial court

erred in overruling his objection to the Commonwealth’s use of his refusal to

participate in an interview in its closing argument.      We held that “the

Commonwealth cannot use a non-testifying defendant’s pre-arrest silence to

support its contention that the defendant is guilty of the crime charged as




                                   - 32 -
J-A25009-14


such use infringes on a defendant’s right to be free from self-incrimination.”

Id. at 62 (citations omitted).

      After a review of the record, we conclude that the case presently

before this Court is distinguishable from Molina. Unlike Molina, neither the

Commonwealth nor Boyll herself implied that Sullivan’s silence constituted

an admission of guilt.        In fact, the record establishes that Boyll never

testified that Sullivan received the letter. Moreover, unlike the prosecution

in Molina, the Commonwealth in this case did not address Boyll’s attempts

to contact Sullivan prior to his arrest during trial or in its closing argument.

      We clarified in Molina that while the Commonwealth cannot use a

non-testifying defendant’s pre-arrest silence as substantive evidence of guilt,

“our finding does not impose a prima facie bar against any mention of a

defendant’s silence.” Id. at 63. Thus, “the mere revelation of a defendant’s

pre-arrest silence does not establish innate prejudice [where] it was not

used in any fashion that was likely to burden defendant’s Fifth Amendment

right or to create [an] inference of admission of guilt.” Commonwealth v.

Guess, 53 A.3d 895, 903 (Pa. Super. 2012) (citations omitted); see also

Commonwealth v. Whitney, 708 A.2d 471, 478 (Pa. 1998) (“[e]ven an

explicit reference to silence is not reversible error where it occurs in a

context not likely to suggest to the jury that silence is the equivalent of a

tacit admission of guilt”).




                                       - 33 -
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       In this case, Boyll’s testimony did not raise an impermissible inference

of guilt or violate Sullivan’s constitutional rights. At most, this case involved

a mere revelation of Sullivan’s pre-arrest silence. See Guess, 53 A.3d at

903.    Accordingly, we conclude that the trial court did not abuse its

discretion in denying his motion for a mistrial.

       Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/6/2014




                                     - 34 -
