J-S55042-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,              :   IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                   Appellee                :
                                           :
           v.                              :
                                           :
JASON LINDERMAN,                           :
                                           :
                   Appellant               :   No. 678 WDA 2015

       Appeal from the Judgment of Sentence Entered April 16, 2015,
             in the Court of Common Pleas of Fayette County,
            Criminal Division, at No.: CP-26-CR-0002052-2013

BEFORE:         FORD ELLIOTT, P.J.E., BENDER, P.J.E., and STRASSBURGER, J.*

MEMORANDUM BY STRASSBURGER, J.:                  FILED NOVEMBER 2, 2015

      Jason Linderman (Appellant) appeals from the judgment of sentence

entered following his convictions for two counts each of rape of a child,

sexual assault, and corruption of minors. Upon review, we affirm.

      The trial court summarized the background underlying this matter as

follows.

            While the exact timeline and locations of these incidents
      were not always clear during trial, the incontrovertible testimony
      of the minor victim, K.S., was that when she was five or six
      years old, [Appellant] raped her on two separate occasions and
      attempted an assault on a third occasion. At the time of trial,
      K.S. was nine years old. The first incident occurred when K.S.
      was living in Point Marion. Living in this house at the time were
      K.S.[;] her mother, [N.S.;] her younger sisters[;] her younger
      brother[;] and [Appellant], who was dating [N.S.] K.S. testified
      that [Appellant] took off her pants and underwear, removed his
      pants and underwear as well, and “put his front part in [her]
      front part” when the two were alone together in the living room.




*Retired Senior Judge assigned to the Superior Court.
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           A second incident occurred in Smithfield at the home of
     [M.S.], who is the uncle of [N.S.] Several people resided at this
     home, including [M.S.] and his children, K.S. and her siblings,
     [N.S.], a number of friends, and [Appellant]. Like the first
     incident, K.S. stated that [Appellant] again removed her pants
     and underwear, removed the same from him, and “put his front
     part in [her] back part” when the two were alone in K.S.’[s]
     bedroom.

            K.S. also recounted an attempted incident that occurred at
     [M.S.]’s house while [N.S.] was also present at the home.
     [N.S.] was upstairs while K.S. and [Appellant] were alone in the
     living room. “There was a bang,” which prompted [N.S.] to
     come downstairs. K.S. recalled that [Appellant] was “trying to
     take off [her] clothes.”    When [N.S.] witnessed [Appellant]
     attempting to remove K.S.’[s] clothes, [N.S.] slapped
     [Appellant].

           Since November 2011, K.S. has resided with her aunt,
     [N.M.] Around the time when K.S. first went to live with [N.M.],
     [N.M.] had K.S. attend counseling sessions because K.S. had
     just been separated from her half siblings.       During these
     counseling sessions, K.S. first disclosed “that [Appellant] had
     hurt her … [] female area.” K.S. indicated that she waited
     several years to talk about what [Appellant] had done to her
     because, as she testified, “I wanted to wait until I could trust
     someone.”

          After a police investigation into the statements made by
     K.S. regarding [Appellant], he was then charged with [the
     aforementioned crimes].

Trial Court Opinion (TCO), 5/21/2015, at 2-4 (citations omitted).

     [A] trial was held from April 9, 2014 to April 11, 2014, which
     ended in a hung jury. [A] second trial occurred on August 4,
     2014 through August 6, 2014. On August 6, 2014, [Appellant]
     was convicted by a jury [on all counts]. On November 17, 2014,
     [Appellant] was sentenced to an aggregate period of
     incarceration of not less than twelve (12) years, nor more than
     twenty-four (24) years….




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             [Appellant] filed [timely a] post-sentence motion, [followed
      by amended post-sentence motions,] alleging that the verdict
      was against the weight of the evidence and that he received an
      illegal mandatory minimum sentence. On April 16, 2015, the
      court held a hearing on [Appellant’s] post-sentence motions,
      denying his second amended motion for a new trial but granting
      the motion to modify sentence.             The court resentenced
      [Appellant] to an aggregate period of incarceration of not less
      than eleven (11) years, nor more than twenty-two (22) years….
      On April 21, 2015, [Appellant] filed a third amended motion for a
      new trial, which the court denied. This timely appeal followed.

TCO, 5/21/2015, at 1-2 (unnecessary capitalization omitted).

      Appellant presents the following issues for our consideration.

      1. Whether the trial court erred in allowing Dr. Mary Carrasco,
         the medical examiner, to explain to the jury the legal
         definition of vaginal penetration?

      2. Whether the trial court erred in allowing the alleged victim to
         testify in regards to the conditions in her various homes?

      3. Whether the trial court erred in allowing [N.M.], the foster
         parent, to testify that the alleged victim was not cared for in
         her home?

      4. Whether the trial court erred by allowing [Pennsylvania State]
         Trooper [Heather] Clem Johnston to testify that [Appellant]
         told her about an incident when [N.S.], the alleged victim’s
         mother, caught the alleged victim smoking a cigarette and
         watching pornography?

      5. Whether the trial court erred by denying [Appellant’s] motion
         for a new trial when the verdict was against the weight of the
         evidence?

Appellant’s Brief at 3 (unnecessary capitalization omitted).

      In considering Appellant’s first four issues, which present evidentiary

challenges, we apply the following standard of review.



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      The admissibility of evidence is at the discretion of the trial court
      and only a showing of an abuse of that discretion, and resulting
      prejudice, constitutes reversible error. An abuse of discretion is
      not merely an error of judgment, but is rather the overriding or
      misapplication of the law, or the exercise of judgment that is
      manifestly unreasonable, or the result of bias, prejudice, ill will
      or partiality, as shown by the evidence of record. Furthermore,
      if in reaching a conclusion the trial court over-rides or misapplies
      the law, discretion is then abused and it is the duty of the
      appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en

banc) (internal quotation marks and citations omitted).

      We are also mindful of the harmless error doctrine:

      Harmless error exists 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.

Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa. 2002) (quoting

Commonwealth v. Robinson, 721 A.2d 344, 350 (Pa. 1999)).                      “The

harmless error doctrine, as adopted in Pennsylvania, reflects the reality that

the accused is entitled to a fair trial, not a perfect trial.” Commonwealth

v.   Gonzalez,    109    A.3d   711,    731   (Pa.   Super.    2015)    (quoting

Commonwealth v. Hairston, 84 A.3d 657, 671 (Pa. 2014)).

      Appellant first contends that the trial court erred in allowing Dr.

Carrasco to explain to the jury the legal definition of vaginal penetration




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because, as an expert, she was “not permitted to provide a legal conclusion

to the jury.” Appellant’s Brief at 9.

      Appellant’s issue pertains to the following exchange.

      [The Commonwealth:] Let’s define some words that you used.

      [Dr. Carrasco:] Okay.

      [The Commonwealth:] You used the word hymen.

      [Dr. Carrasco:] Yes.

      [The Commonwealth:] And, what is the hymen?

      [Dr. Carrasco:] The hymen is the opening to the vaginal area as
         defined medically.    The medical and legal definitions are
         somewhat different. So, medically, the hymen is the opening
         to the vaginal area, with a thin membrane at the entrance to
         what medically we term the vaginal area. Legally, the vaginal
         area starts the vaginal organ as it is described…

      [Appellant’s counsel]: Objection, Your Honor.           The witness
         cannot give the legal definition.

      THE COURT: She can use the definition of the term as she is
        using it. It will be up to the [c]ourt to justify any legal
        definitions that would be relevant during the course of the
        final instructions.

            You can relate the definition to what you are using the
         term [sic].

            You can proceed.

      BY [the Commonwealth]:

      [The Commonwealth:] You can proceed.




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      [Dr. Carrasco:] The vaginal organ is the labia material, the
         outer lips of the vaginal area, and penetration beyond that is
         considered penetration.

N.T., 8/4/2014, at 46-47.

      Upon review, it is clear that Dr. Carrasco’s testimony did not provide a

“legal conclusion” to the jury. Dr. Carrasco discussed the female anatomy

and offered a description of the term “penetration” as used in the law, which

was substantially similar to that provided by the trial court in its instructions

to the jury.1 That was not the equivalent of stating a legal conclusion that



1
  With respect to the charges of rape of a child and sexual assault, which
require penetration, the court instructed the jury as follows:

            A person commits rape of a child when the person engages
      in sexual intercourse with a child who is less than thirteen years
      of age.

           Sexual intercourse has a particular meaning in criminal
      law. Sexual intercourse occurs if a man’s penis penetrates the
      female sexual organ or the mouth or the anus of that person.

           The slightest degree of penetration is sufficient and no
      emission of semen is required for sexual intercourse to occur….

                                      ***

      In order to find [Appellant] guilty of sexual assault, you must be
      satisfied that the following three elements have been proven
      beyond a reasonable doubt:

             First, that [Appellant] had sexual intercourse with the
      victim…. Again, that would involve some penetration however
      slight.

N.T., 8/5/2014, at 164-65.


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the jury should make, such as “the evidence shows that Appellant raped K.S.

by penetrating her labia.” Thus, Appellant’s argument is without merit.

     We    now   address together     the   evidentiary issues that remain.

Appellant challenges certain testimony from K.S., N.M., and Trooper Clem

Johnston, pertaining to K.S.’s living conditions and care prior to her being

placed in the custody of N.M.

     In his second issue, Appellant contends that the trial court erred in

allowing the following testimony from K.S.:

     [The Commonwealth:] Okay. These places that you lived …
        were they nice places or were they like where the place is
        you live now with [N.M.]?

     [K.S.:] No.

     [The Commonwealth:] How were they different from where
        you live now with [N.M.]?

     [K.S.:] I didn’t get full servings of meals, I didn’t get…

     [Appellant’s counsel]: Objection, Your Honor, relevancy.

     THE COURT:     I don’t see that it is a problem.             Is it
       background information?

     [The Commonwealth]: Yes, it is background information, and
        I will be calling [N.M.] to testify regarding certain things.

     THE COURT: You can proceed.

     [The Commonwealth]: Thank you.

     BY [the Commonwealth]:




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     [The Commonwealth:] So, you didn’t get regular meals, what
        else? Did you have any problems with your mouth, with
        your teeth?

     [K.S.:] Yes. My mom never took me to the dentist even
        though she had rides, she just didn’t want to.

N.T. 8/4/2014, at 72-73.

     Appellant’s third issue presents a challenge to the following exchange

involving testimony provided by N.M.:

     [The Commonwealth:] [N.M.], when you first got [K.S.], could
        you describe what she was like and how that has changed
        from that time until now?

     [N.M.:] When we first got her, I mean, she was just in really
        bad shape. She had really severe head lice. My mom and I
        we had to come [sic] her hair out for a month to get rid of it
        because she just had it for so long, it was just really infested.
        The first night we had her, and we had fed her and
        everything, and I give her a toothbrush to brush her teeth
        and…

     [Appellant’s counsel]: Objection, Your Honor. Relevancy.

     THE COURT: [The Commonwealth]?

     [The Commonwealth]:       Background as to it was reported two
        years…

     [Appellant’s counsel]:    We are not in a Children and Youth
        Services case.

     [The Commonwealth]: May we approach?

     THE COURT: Sure.

     (At this time, an off the record side-bar conference was held.)

N.T., 8/5/2014, at 47-48.



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     In his fourth issue, Appellant argues that the trial court improperly

admitted the following testimony of Trooper Clem Johnston:

     [The Commonwealth:] Trooper, [Appellant’s counsel] asked you
        about the interview that you had with [Appellant]. Correct,
        he just asked you about that?

     [Trooper Clem Johnston:] Correct.

     [The Commonwealth:]       And, he asked you if he adamantly
        denied doing this.

     [Trooper Clem Johnston:] Correct.

     [The Commonwealth:] Let’s talk about the statements
        specifically. Did he tell you anything about [K.S.] that he
        might have observed as to what she was doing at some point
        in time?

     [Appellant’s counsel]: Objection, hearsay and relevance.

     THE COURT: Well, I believe that the door into the statement has
       been opened and at this point, [the Commonwealth] has the
       right to show the context or complete the statement at this
       point. So, we will overrule the objection.

                                    ***

     [The Commonwealth:] During the course of that interview,
        specifically, what did he tell you about [K.S.] and what things
        he observed her doing at age six?

     [Trooper Clem Johnston:] He did tell me about a time that she
        accused him of biting, of biting her. He told me about an
        instance where [K.S.] was in the bedroom at [M.S.]’s house
        smoking a cigarette and watching pornography when she was
        six.

     [The Commonwealth:] And, that’s when she was—he said that
        she was six?




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      [Appellant’s counsel]: Objection, Your Honor. For the record, I
         still maintain that this is irrelevant and hearsay.

      THE COURT: We will sustain the ruling that I have already ruled
        on. You can complete the statement that has been brought
        out by the defense.

      [The Commonwealth]: That’s all I have.

N.T., 8/5/2014, at 70-71.

      Appellant contends that the testimony above was irrelevant, as it has

no bearing on whether Appellant raped K.S., and because Appellant is not

K.S.’s father and has no legal responsibility for her care. Appellant’s Brief at

11, 14.   Appellant further claims that Trooper Clem Johnston’s testimony

was hearsay and that, contrary to the trial court’s conclusion, he did not

“open the door” to the testimony. Id. at 13-14. Appellant contends that he

was prejudiced by the testimony of K.S., N.M., and Trooper Clem Johnston

because the Commonwealth was trying to label Appellant as a “bad parent”

and imply that “K.S. was not cared for in her home,” that “there was a

pattern of abuse towards K.S. in the home,” and that “an atmosphere of

sexual promiscuity existed in [the] home.” Id. at 10-11, 15. Appellant

further   alleges that the   Commonwealth presented the          testimony to

compensate for the fact that it “failed to present any physical evidence of

sexual abuse” and to inflame the jury. Id. at 12, 15.

      Assuming arguendo that the trial court improperly admitted the

testimony of K.S., N.M., and Trooper Clem Johnston set forth above, we



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agree with the Commonwealth that the testimony was not so prejudicial and

inflammatory as to warrant a new trial. There is no indication in the record

before us that the Commonwealth placed undue emphasis on K.S.’s living

conditions or care, or that it had any significant impact on the jury in

rendering its verdict.       Thus, any error in the admission of the above

testimony was harmless, and Appellant is not entitled to relief on these

issues.

      In   his   final   issue,   Appellant   presents   a   weight-of-the-evidence

challenge.

            A claim alleging the verdict was against the weight of the
      evidence is addressed to the discretion of the trial court.
      Accordingly, an appellate court reviews the exercise of the trial
      court’s discretion; it does not answer for itself whether the
      verdict was against the weight of the evidence. It is well settled
      that the jury is free to believe all, part, or none of the evidence
      and to determine the credibility of the witnesses, and a new trial
      based on a weight of the evidence claim is only warranted where
      the jury’s verdict is so contrary to the evidence that it shocks
      one’s sense of justice. In determining whether this standard has
      been met, appellate review is limited to whether the trial judge’s
      discretion was properly exercised, and relief will only be granted
      where the facts and inferences of record disclose a palpable
      abuse of discretion.

Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations

and internal quotation marks omitted).

      Appellant argues that the verdict is against the weight of the evidence

given the following: (1) the absence of any physical evidence of sexual

abuse, as demonstrated by the testimony of Dr. Carrasco and N.S. to that



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effect; (2) “the many inconsistencies in K.S.’s testimony;” (3) the fact that

N.S. testified “that she knew that at least one of K.S.’s allegations were [sic]

false[;]” and (4) that Appellant “had no opportunity to commit these crimes”

because he was seldom, if ever, alone with K.S., as demonstrated by

testimony from N.S., M.S., and Appellant. Appellant’s Brief at 16-18.

      As explained by the trial court, Appellant’s contention regarding the

lack of physical evidence of sexual abuse as demonstrated by Dr. Carrasco’s

testimony is “refuted by the fact that the rapes occurred years before K.S.

eventually reported it to the authorities, and years before Dr. Carrasco

conducted a physical examination on her.”       TCO, 5/21/2015, at 11.      The

remainder of Appellant’s arguments amount to little more than a challenge

to the credibility determinations made by the jury. As stated above, “[i]t is

well settled that the jury is free to believe all, part, or none of the evidence

and to determine the credibility of the witnesses.”      Houser, 18 A.3d at

1135-36. The trial court concluded that “the verdict does not shock one’s

sense of justice,” TCO, 5/21/2015, at 12, and we discern no abuse of

discretion in that determination. Thus, Appellant is not entitled to relief on

his weight-of-the-evidence claim.

      Based on the foregoing, we affirm Appellant’s judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 11/2/2015




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