J-S62025-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

CHRISTOPHER MICHAEL STANFORD

                            Appellant                 No. 527 WDA 2015


           Appeal from the Judgment of Sentence February 24, 2015
                in the Court of Common Pleas of Butler County
             Criminal Division at No(s): CP-10-CR-0000833-2014


BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*

MEMORANDUM BY JENKINS, J.:                       FILED DECEMBER 03, 2015

        Appellant Christopher Michael Stanford appeals from the judgment of

sentence entered in the Allegheny County Court of Common Pleas following

his jury trial convictions for rape of a child,1 statutory sexual assault,2

involuntary deviate sexual intercourse with a child,3 aggravated indecent

assault – complainant less than 13 years old,4 aggravated indecent assault –


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(c).
2
    18 Pa.C.S. § 3122.1(b).
3
    18 Pa.C.S. § 3123(b).
4
    18 Pa.C.S. § 3125(a)(7).
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complainant less than 16 years old,5 endangering the welfare of children,6

and corruption of minors.7 After careful review, we affirm.

        After meeting the victim’s mother on-line, Appellant lived with the

victim, her brother, and her mother for a number of years. Appellant began

sexually assaulting the victim when she was five years old.     The assaults

continued until the victim was approximately ten years old.     Not knowing

Appellant’s behavior was wrong, the victim did not report the assaults until

years after the abuse had ceased.

        On October 23, 2014, a jury convicted Appellant as discussed supra.

On February 18, 2015, the trial court sentenced Appellant to an aggregate

sentence of 288 to 376 months’ incarceration. On February 24, 2015, the

trial court filed an amended sentencing order amending the sentence to

reflect an aggregate maximum incarceration period of 576 months.

Appellant filed a post-sentence motion on February 26, 2015, which the trial

court denied on March 2, 2015. Appellant filed a timely notice of appeal on

March 27, 2015.           Both Appellant and the trial court complied with

Pennsylvania Rule of Appellate Procedure 1925.

        Appellant raises the following issues for our review:


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5
    18 Pa.C.S. § 3125(a)(8).
6
    18 Pa.C.S. § 4304(a).
7
    18 Pa.C.S. § 6301(a)(1)(ii).



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       1. Did the [c]ourt err when it determined that [Appellant] was
       not entitled to a dismissal of the complaint by virtue of 42
       Pa.C.S.[] § 9101[?]

       2. Did the [c]ourt err when it denied defense counsel the
       opportunity to fully examine the complaining witness regarding
       her prompt complaint of the alleged sexual predations?

                                           ***

       4. Did the [c]ourt inappropriately deny the defense the jury
       instruction of prompt complaint?

Appellant’s Brief, p. 6.8

       Appellant first claims the trial court erred by denying his “Motion to

Dismiss Charges in Violation of 42 Pa.C.S.A. § 9101, Article IV (Interstate

Agreement on Detainers)”.           See Appellant’s Brief, pp. 9-12.     Appellant

asserts that the Commonwealth’s lodging of a detainer triggered Article IV of

the Interstate Agreement on Detainers (“IAD”), which then required the

Commonwealth to bring him to trial within 120 days.           Id.      In essence,

Appellant argues the Commonwealth failed to bring him to trial within the

120-day speedy trial limit set forth in Article IV of the IAD.         We do not

agree.

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8
 Appellant’s Statement of the Questions Involved in this Appeal also raises
another claim:

       3. Did the [c]ourt inappropriately allow[] testimony regarding
       alleged sexual predations that were outside the range of the
       criminal information?

Appellant’s Brief, p. 6. Appellant concedes that this claim lacks merit. See
Appellant’s Brief, p. 13. Accordingly, we do not discuss it herein.



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      When evaluating speedy trial issues, our standard of review is whether

the trial court abused its discretion. Commonwealth v. Booze, 953 A.2d

1263, 1272 (Pa.Super.2008).         Our Supreme Court defines “abuse of

discretion” as follows:

      An abuse of discretion is not merely an error of judgment, but if
      in reaching a conclusion the law is overridden or misapplied, or
      the judgment exercised is manifestly unreasonable, or the result
      of partiality, prejudice, bias, or ill-will, as shown by the evidence
      or the record, discretion is abused.

Commonwealth v. Chambers, 685 A.2d 96, 104 (Pa.1996), cert. denied,

522 U.S. 827 (1997).

      Our Supreme Court has described the IAD as follows:

      The IAD is an agreement between forty-eight states, the District
      of Columbia, Puerto Rico, the Virgin Islands, and the United
      States, that establishes procedures for the transfer of prisoners
      incarcerated in one jurisdiction to the temporary custody of
      another jurisdiction which has lodged a detainer against a
      prisoner. Unlike a request for extradition, which is a request
      that the state in which the prisoner is incarcerated transfer
      custody to the requesting state, a detainer is merely a means of
      informing the custodial jurisdiction that there are outstanding
      charges pending in another jurisdiction and a request to hold the
      prisoner for the requesting state or notify the requesting state of
      the prisoner’s imminent release.

Commonwealth v. Leak, 22 A.3d 1036, 1039-40 (Pa.Super.2011) (quoting

Commonwealth v. Davis, 786 A.2d 173, 175 (Pa.2001)).

      IAD Article IV sets forth the protocol by which the requesting state

initiates temporary transfer of a prisoner and provides, in relevant part, as

follows:



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                                ARTICLE IV

      (a) The appropriate officer of the jurisdiction in which an untried
      indictment, information or complaint is pending shall be entitled
      to have a prisoner against whom he has lodged a detainer and
      who is serving a term of imprisonment in any party state made
      available in accordance with Article V(a) hereof upon
      presentation of a written request for temporary custody or
      availability to the appropriate authorities of the state in which
      the prisoner is incarcerated: Provided, That the court having
      jurisdiction of such indictment, information or complaint shall
      have duly approved, recorded and transmitted the request: And
      provided further, That there shall be a period of 30 days after
      receipt by the appropriate authorities before the request be
      honored, within which period the Governor of the sending state
      may disapprove the request for temporary custody or
      availability, either upon his own motion or upon motion of the
      prisoner.

                                    *****

      (c) In respect of any proceeding made possible by this article,
      trial shall be commenced within 120 days of the arrival of the
      prisoner in the receiving state, but for good cause shown in open
      court, the prisoner or his counsel being present, the court having
      jurisdiction of the matter may grant any necessary or reasonable
      continuance.

42 Pa.C.S. § 9101, Article IV(a), (c). Article VI discusses the calculation of

the IAD 120-day time limit:

      (a) In determining the duration and expiration dates of the time
      period provided in Articles III and IV of this agreement, the
      running of said time periods shall be tolled whenever and for as
      long as the prisoner is unable to stand trial, as determined by
      the court having jurisdiction of the matter.

42 Pa.C.S. § 9101, Article VI(a).

      Our Supreme Court has held that “Article IV of the IAD is not triggered

unless the Commonwealth files a detainer against an individual and then



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files a request for custody of that individual.” See Leak, 22 A.3d at 1040

(2011) (citing Davis, 786 A.2d at 176) (emphasis in original). In Davis, the

Commonwealth filed a detainer but did not file a request for custody of the

defendant.    Davis, 786 A.2d at 176.     Instead, the Commonwealth simply

intended to assume custody of the defendant upon the expiration of the

defendant’s out-of-state sentence.     Id.   Under these circumstances, our

Supreme Court found the Commonwealth did not invoke IAD Article IV and

was not subject to the 120-day requirement. Id.; see also Leak, 22 A.3d

at 1040.

      Here, the Commonwealth filed a detainer while Appellant was in

federal custody. As in Davis, the Commonwealth did not file a request for

custody; rather, it assumed custody of Appellant upon the expiration of his

federal custody. Accordingly, the Commonwealth never triggered IAD Article

IV and was not bound by its 120-day time limitation.        See Leak, Davis,

supra.     The trial court did not abuse its discretion in denying Appellant’s

motion to dismiss based on IAD Article IV. Thus, Appellant’s first claim fails.

      Next, Appellant claims the trial court erred by denying him the

opportunity to fully examine the victim regarding her failure to promptly

report the sexual assaults to her school counselor.     See Appellant’s Brief,

pp. 12-13. This claim lacks merit.

      Appellant’s claim alleges the trial court sustained a Commonwealth

objection to a question from defense counsel on cross-examination of the

victim about whether she had divulged her allegations to a school counselor.

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See Appellant’s Brief, pp. 12-13; N.T. 10/21/2014, pp. 90-94.               This is

incorrect.   A review of the transcript reveals that defense counsel broadly

asked the victim to discuss the “kind of things” she confided to her school

counselor.    N.T. 10/21/2014, p. 91.          The Commonwealth objected, and a

sidebar discussion ensued at which defense counsel agreed that his question

was open-ended and overly broad.               Id. at 91-93.   As a result, defense

counsel withdrew the question. Id. at 93. Following the sidebar discussion,

defense counsel rephrased the question to the more specific question of

whether the victim had ever disclosed her allegations of sexual assault to

her school counselor. Id. at 94. The Commonwealth did not object to the

more precise inquiry, and the victim answered.                   Id.   Accordingly,

notwithstanding Appellant’s complaint to the contrary, the trial court did not

preclude defense counsel’s prompt complaint line of questioning by

sustaining the Commonwealth’s objection.9

       Finally, Appellant claims the trial court erred in refusing to give the

jury the prompt complaint instruction found at Section 4.13A of the




____________________________________________


9
  Further, we note that defense counsel successfully cross-examined the
victim on her lack of prompt disclosure not only to her school counselor, but
also to her parents, her grandparents, Appellant’s son, Appellant’s mother,
and her teachers. N.T. 10/21/2014, pp. 94, 101.




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Pennsylvania     Suggested      Standard       Criminal   Jury   Instructions.10    See

Appellant’s Brief, pp. 13-15. This claim also lacks merit.

       We review jury instructions with deference to the trial court and may

only reverse the lower court where it abused its discretion or committed an




____________________________________________


10
   Pennsylvania       Suggested      Standard     Criminal   Jury   Instruction    4.13A
provides:

           FAILURE TO MAKE PROMPT COMPLAINT IN CERTAIN
                         SEXUAL OFFENSES

              1. Before you may find the defendant guilty of the crime
       charged in this case, you must be convinced beyond a
       reasonable doubt that the act charged did in fact occur and that
       it occurred without [name of victim]’s consent.

             2. The evidence of [name of victim]’s [failure to complain]
       [delay in making a complaint] does not necessarily make [his]
       [her] testimony unreliable, but may remove from it the
       assurance of reliability accompanying the prompt complaint or
       outcry that the victim of a crime such as this would ordinarily be
       expected to make. Therefore, the [failure to complain] [delay in
       making a complaint] should be considered in evaluating [his]
       [her] testimony and in deciding whether the act occurred [at all]
       [with or without [his] [her] consent].

             3. You must not consider [name of victim]’s [failure to
       make] [delay in making] a complaint as conclusive evidence that
       the act did not occur or that it did not occur but with [his] [her]
       consent.    [name of victim]’s failure to complain [at all]
       [promptly] [and the nature of any explanation for that failure]
       are factors bearing on the believability of [his] [her] testimony
       and must be considered by you in light of all the evidence in the
       case.

PSSJI (Crim) § 4.13A.



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error of law.     Commonwealth v. Hornberger, 74 A.3d 279, 282

(Pa.Super.2013). As this Court has explained:

      In reviewing a challenge to the trial court’s refusal to give a
      specific jury instruction, it is the function of this Court to
      determine whether the record supports the trial court’s decision.
      In examining the propriety of the instructions a trial court
      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. A jury charge
      will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error.     Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties
      and its refusal to give a requested charge does not require
      reversal unless the Appellant was prejudiced by that refusal.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super.2013) (quoting

Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super.2006)); see

also Hornberger, 74 A.3d at 283 (“[W]hen reviewing jury instructions for

error, the charge must be read as a whole to determine whether it was fair

or prejudicial.   The trial court has broad discretion in phrasing its

instructions, and may choose its own wording so long as the law is clearly,

adequately, and accurately presented to the jury for its consideration.”).

      As to the prompt complaint instruction, this Court has explained:

      The premise for the prompt complaint instruction is that a victim
      of a sexual assault would reveal at the first available opportunity
      that an assault occurred. The instruction permits a jury to call
      into question a complainant’s credibility when he or she did not
      complain at the first available opportunity. However, there is no


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      policy in our jurisprudence that the instruction be given in every
      case.

      The propriety of a prompt complaint instruction is determined on
      a case-by-case basis pursuant to a subjective standard based
      upon the age and condition of the victim. For instance, where an
      assault is of such a nature that the minor victim may not have
      appreciated the offensive nature of the conduct, the lack of a
      prompt complaint would not necessarily justify an inference of
      fabrication.

Sandusky, 77 A.3d at 667 (internal citations and quotations omitted). “For

example, where the victim of a sexual assault is a minor who may not have

appreciated the offensive nature of the conduct, the lack of a prompt

complaint would not necessarily justify an inference of fabrication. This is

especially true where the perpetrator is one with authority or custodial

control over the victim.” Thomas, 904 A.2d at 970 (internal citations and

quotations omitted).

      This matter involved a child victim who was five years old when the

abuse began, ten years old when it ceased, and fifteen years old at the time

of trial. At trial, the victim testified repeatedly she did not know Appellant’s

actions were wrong at the time of the abuse, and that Appellant told her not

to tell.   Her testimony also established that, during the period of abuse,

Appellant was her mother’s live-in boyfriend. Accordingly, Appellant was in

a position of confidence over a minor victim who did not appreciate the




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offensive nature of the contact. The trial court did not abuse its discretion or

err in not instructing the jury on prompt complaint.11

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/3/2015




____________________________________________


11
  We note the trial court included in its instructions Pennsylvania Suggested
Standard Criminal Jury Instruction § 4.17 – Credibility of Witnesses.



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