J-S24007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

DEVON LAMONT CASHAW

                            Appellant                  No. 521 WDA 2016


             Appeal from the Judgment of Sentence March 24, 2016
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0000593-2014

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA


                       v.

DEVON LAMONT CASHAW

                            Appellant                  No. 522 WDA 2016


             Appeal from the Judgment of Sentence March 24, 2016
               In the Court of Common Pleas of Cambria County
              Criminal Division at No(s): CP-11-CR-0000596-2014


BEFORE: PANELLA, J., STABILE, J., and STEVENS, P.J.E.*

MEMORANDUM BY PANELLA, J.                                FILED MAY 05, 2017




____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S24007-17



       Appellant, Devon Lamont Cashaw, appeals from the judgment of

sentence entered on March 24, 2016, in the Court of Common Pleas of

Cambria County. We affirm.1

       At docket number 593-2014 Cashaw was charged with various

offenses stemming from his alleged physical and sexual abuse of his

biological son, D.C., born in August 2004. The abuse was alleged to have

occurred between January 1, 2005, and March 31, 2007. At docket number

596-2014 Cashaw was charged with a slew of offenses stemming from his

____________________________________________


1
  We did not permit the Commonwealth to file a brief in this appeal. It merits
a brief explanation why.

 On January 9, 2017, two days before the Commonwealth’s brief was due,
Scott M. Lilly, Esquire, Chief Deputy of the Appellate Division of the Cambria
County District Attorney’s Office, filed a “First Application for Extension of
Time in Which to File Brief” that was granted by an order entered that same
day. The order set the brief’s due date for February 27, 2017. That day
came and went without the filing of the brief or, indeed, any filing from the
Commonwealth. Forty-five days later, on April 13, 2017, Attorney Lilly filed
another motion on behalf of the Commonwealth, entitled “Second
Application for Extension of Time in Which to File Brief,” requesting an
additional period of 45 days to file a brief. We refused, finding “[t]he 45-day
period of the Commonwealth’s quiescence” to be “simply unacceptable.”
Order, filed 4/18/17.

 Forty-five days from April 13, 2007, is a Sunday. Therefore, if we had
granted Attorney Lilly’s request, the Commonwealth’s brief would have been
due on May 29, 2017—138 days from the original due date of January 11,
2017.

 As our disposition of Cashaw’s arguments on appeal in this memorandum
demonstrates, 138 days to draft an appellee’s brief in this case is, frankly,
absurd.




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alleged physical and sexual abuse of his biological daughter, C.C., born in

May 2003. The abuse was alleged to have occurred between January 1,

2005, and March 31, 2007. The two cases were consolidated for trial. (The

children’s mother was also charged with offenses stemming from the abuse

of the children and was a co-defendant of Cashaw’s at trial.)2

       After a four-day trial, a jury convicted Cashaw at 593-2014 of

endangering the welfare of a child. At docket number 596-2014, the jury

convicted him of two counts of aggravated indecent assault, two counts of

indecent assault, one count of corruption of minors, and one count of

endangering the welfare of a child. The trial court later sentenced Cashaw to

an aggregate period of imprisonment of eight to seventeen years. This

timely appeal follows.

       Cashaw first argues that the trial court failed to grant a mistrial. “A

motion    for   a   mistrial   is   within     the   discretion   of   the   trial   court.”

Commonwealth v. Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008)

(citation omitted).

       In his brief, Cashaw sets forth the testimony that he argues

necessitates a mistrial. See Appellant’s Brief, at 15-16 (unnumbered).3 See


____________________________________________


2
  By the time of trial, the children had a different last name. We utilize the
letter “C” for their surname as do Cashaw and the trial court.
3
 Oddly, the pages of Cashaw’s brief are unnumbered. For ease of reference,
we count the cover page as page one and count upwards from there.



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also N.T., Trial, 12/4/15, at 73, lines 8-22. What precludes Cashaw relief on

this claim is that he failed to move for a mistrial during the testimony or

immediately thereafter. See Pa.R.Crim.P. 605(B) (“the motion [for a

mistrial] shall be made when the event is disclosed”). He lodged no

objection to the testimony whatsoever during its recitation or in its

immediate aftermath. See, e.g., Commonwealth v. Montalvo, 641 A.2d

1176, 1184 (Pa. Super. 1994) (“In order to preserve an issue for review, a

party must make a timely and specific objection at trial.”)

      Cashaw does not provide this information in his brief, see Pa.R.A.P.

2119(e), but, according to the trial court, Cashaw moved for a mistrial four

days after its occurrence—after the Commonwealth completed its case-in-

chief. See Trial Court Opinion, 6/16/16, at 4. That is clearly not a timely

motion and is in direct violation of Rule 605(B). The blatantly untimely

request defeats Cashaw’s claim. The trial court did not abuse its discretion in

denying the tardy motion for a mistrial.

      In his second issue on appeal, Cashaw claims that the trial court erred

in permitting the Commonwealth’s expert witness, Regina Kupchella, M.D.,

to testify “that the cause of any loss of hymen was—in her expert medical

opinion—deep vaginal penetration caused by the defendant[.]” Appellant’s

Brief, at 9 (emphasis added). The problem with Cashaw’s argument,

however, is that Dr. Kupchella never testified that Cashaw, through deep

vaginal penetration, caused any loss of the hymen. See N.T., Trial, 12/7/15,

at 212-254. Not only was there no such testimony, but, as the trial court

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explains, “[s]uch testimony would have clearly been beyond the doctor’s

expertise and outside of her ability to testify as an expert.” Trial Court

Opinion, 6/16/16/, at 6. This issue has no merit.

     Cashaw next argues that the children lacked the competency to testify

and therefore the trial court erred in denying his motion to exclude their

testimony. We disagree.

      “Our standard of review recognizes that a child’s competency to

testify is a threshold legal issue that a trial court must decide, and an

appellate court will not disturb its determination absent an abuse of

discretion. Our scope of review is plenary.” Commonwealth v. Pena, 31

A.3d 704, 706-707 (Pa. Super. 2011) (citations, quotation marks, brackets,

and emphasis omitted).

     The general rule in Pennsylvania is that every person is presumed

competent to be a witness. See Commonwealth v. Delbridge, 855 A.2d

27, 39 (Pa. 2003) (citing Pa.R.E., 601(a)). “Despite the general presumption

of competency, Pennsylvania presently requires an examination of child

witnesses   for   competency.”   Id.    (citation   omitted).   When   a   child’s

competency is at issue three elements must be met for the witness to be

considered competent:

     There must be (1) such capacity to communicate, including as it
     does both an ability to understand questions and to frame and
     express intelligent answers, (2) mental capacity to observe the
     occurrence itself and the capacity of remembering what it is that
     she is called to testify about and (3) a consciousness of the duty
     to speak the truth.

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Id., at 39 (citation and emphasis omitted).

       Here, of the three-part test, Cashaw concedes two of the elements:

the second and third. The second prong of the test is what our Supreme

Court has called “taint.” Id., at 40. Cashew notes that “[a]t the hearing on

said [m]otion [to exclude the children’s testimony] Appellant conceded that

he would be unable to meet his burden in regards to the taint claim.”

Appellant’s Brief, at 20. “Appellant [also] concedes the last prong for

competency determination—that the children have the capacity to appreciate

the duty to tell the truth.” Id.4

       That leaves only the first prong—whether the children have “such

capacity to communicate, including as it does both an ability to understand

questions and to frame and express intelligent answers.” The trial court

conducted the competency hearing on September 9, 2015. At that time,

D.C. was eleven years old and C.C. was twelve years old. The trial court

found the children possessed “the capacity to communicate and an ability to

understand questions and to frame and express intelligent answers.” Trial

Court Opinion, 9/28/15, at 6. A review of the transcript from the

competency hearing reveals that the trial court’s conclusion is amply

supported by the testimony of the children. See N.T., Competency Hearing,

____________________________________________


4
  Despite the concession, Cashaw still advances an argument on the second
prong. We take his admitted concession at the competency hearing as
conclusive of his intent to abandon any challenge to that prong. Once
abandoned below it cannot be resurrected on direct appeal.



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9/9/15, at 3-12, 63-75, 106-109. The trial court committed no abuse of

discretion in finding that the children met the first prong of the three-part

test set forth above.

      In his final issue on appeal, Cashaw argues that the Commonwealth

presented insufficient evidence to sustain his conviction for endangering the

welfare of a child. That offense requires an offender to knowingly violate “a

duty of care, protection or support.” 18 Pa.C.S.A. § 4304(a)(1). According to

Cashaw, “there was no testimony or evidence presented at trial that proved

Appellant violated a duty of care, protection, or support by ever touching or

sexually abusing D.C.” Appellant’s Brief, at 24.

      It is true that D.C. testified that Cashaw “really didn’t do anything

sexual to me.” N.T., Trial, 12/7/15, at 37. But D.C. also testified that

Cashaw was in the same room when D.C.’s mother had sex with him, see

id., at 30; that Cashaw and C.C. had sex in front of him, see id., at 31; that

Cashaw forced him to drink beer, see id., at 39; and that Cashaw had sex

with D.C.’s mother in front of him, see id., at 45-47. Cashaw’s contention

that the Commonwealth presented insufficient evidence is patently frivolous.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

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J-S24007-17




Date: 5/5/2017




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