J-S80035-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    ANTHONY NGUIEN,                            :
                                               :
                          Appellant            :   No. 3167 EDA 2017

           Appeal from the Judgment of Sentence September 18, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0011976-2013


BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY NICHOLS, J.:                                  FILED MAY 22, 2019

       Appellant Anthony Nguien appeals from the judgement of sentence

following his convictions for rape, unlawful contact with a minor, involuntary

deviate sexual intercourse (IDSI) with a child, IDSI with a person less than

sixteen years of age, and corruption of minors.1 Appellant argues that the

trial court erred by denying his motion for a mistrial, failing to give a jury

instruction, and limiting the scope of cross-examination.           Appellant also

challenges the court’s designation of Appellant as a sexually violent predator

(SVP). We affirm Appellant’s convictions, but vacate Appellant’s designation

as an SVP and remand the matter for further proceedings.

       The trial court summarized the facts of this matter as follows:


____________________________________________


1 18 Pa.C.S.         §§    3121(a)(1),   6318(a)(1),   3123(b),   3123(a)(7),   and
6301(a)(1)(i).
J-S80035-18


       [W]hen [the victim] was between the ages of seven to fourteen,
       she was sexually abused by her stepfather, Appellant. [The
       victim] was age seven when she initially told her mother about
       the abuse. As a result, [the victim] was not believed and was sent
       to live with a family friend known as “Grandmom Gwen.” During
       that time, for five years[, the victim]’s mother was incarcerated.
       Appellant continued to sexually assault [the victim] under the
       guise of taking her for visits with her brothers. [The victim] wrote
       letters to her mother to advise of the abuse. Upon the release of
       the mother from prison in 2011, [the victim] returned to live with
       her, Appellant[,] and her brothers.            The sexual assaults
       continued[] almost every day. Again, [the victim] attempted to
       alert her mother, who reacted negatively. Finally, in April 2013[,
       the victim] disclosed the sexual abuse to a teacher and the
       authorities became involved. When the mother refused to remove
       Appellant from the home[, the victim] was removed and ultimately
       sent to live with her biological father in California.

Trial Ct. Op., 3/22/18, at 3.

       On April 19, 2017, Appellant proceeded to a jury trial.2 On the first day

of trial, Appellant litigated a motion in limine to admit evidence to impeach

the Commonwealth’s witness, Detective Linda Blowes, who was the

investigating detective in Appellant’s case. Specifically, Appellant sought to

introduce a lawsuit filed against Detective Blowes based on her conduct in a

2008 kidnapping investigation.3 N.T. Trial, 4/19/17, at 57.4 Appellant argued
____________________________________________


2 This was Appellant’s second trial. His first trial resulted in a mistrial due to
a hung jury.

3 Appellant presented to the trial court a 2013 Commonwealth Court opinion
affirming a civil judgment entered against Detective Blowes by the Court of
Common Pleas.

4 An appellant has a duty to ensure that the certified record is complete.
Although the certified record does not contain transcripts of testimony, copies
of the relevant transcripts were included in the reproduced record. The



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that the 2008 matter had similarities to the instant case, and that he should

be permitted to impeach Detective Blowes “with her performance[,] as it was

criticized by the Commonwealth Court.” N.T. Trial, 4/20/17, at 115. On April

20, 2017, the trial court denied Appellant’s motion, concluding that the 2008

case was “unrelated” and had no bearing on Appellant’s case. Id. at 117.

       The following day, the Commonwealth continued with its case-in-chief

and called Detective Blowes to testify.              On direct examination, the

Commonwealth        asked     Detective    Blowes   several   questions   about   her

investigation. The Commonwealth asked Detective Blowes who she attempted

to interview while investigating the allegations against Appellant. N.T. Trial,

4/24/17, at 36. In one of her responses, Detective Blowes stated that she

attempted to interview Appellant. Id. Appellant did not immediately object.

The Commonwealth conducted the remainder of its examination of Detective

Blowes, see id. at 36-39, and Appellant cross-examined the detective. See

id. at 40-45. Following a brief redirect and re-cross, the trial court excused

Detective Blowes. The Commonwealth rested its case, and the court called

for a brief recess.

       After the jury exited the courtroom, Appellant requested a mistrial based

on Detective Blowes’ testimony that she attempted to interview Appellant. Id.

at 49. The trial court denied Appellant’s motion for a mistrial, noting that

____________________________________________


Commonwealth has not objected to the accuracy of those copies. Therefore,
we decline to find waiver. See Pa.R.A.P. 1921; Commonwealth v. Brown,
52 A.3d 1139, 1145 n.4 (Pa. 2012).

                                           -3-
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Detective Blowes made the statement “in passing, there was no follow up,

[and] there was no objection at the time.” Id. at 50. Appellant declined the

trial court’s offer to issue a cautionary instruction. Id.

       Appellant did not testify at trial.         However, he presented character

witnesses, who testified against the victim and in his favor.

       At the close of evidence, the trial court held a charging conference.

Appellant requested an instruction on the use of character evidence, as well

as a no-adverse-inference instruction. Id. at 68. Appellant did not request a

prompt complaint instruction at the charging conference. After the trial court

issued its charge to the jury, Appellant did not object to the absence of a

prompt complaint instruction.

       On April 25, 2017, the jury convicted Appellant of the foregoing crimes.

Sentencing was deferred for preparation of a sexual offender assessment,

presentence investigation (PSI) report, and a mental health evaluation.

       On September 18, 2017, Appellant was sentenced to an aggregate term

of ten to twenty years’ incarceration followed by ten years’ probation.

Appellant    was    deemed      an   SVP       under   42   Pa.C.S.   §   9799.24(e)(3)

(subsequently amended February 21, 2018).

       Appellant filed a timely notice of appeal on September 25, 2017.

Thereafter, he filed a timely court-ordered Pa.R.A.P. 1925(b) statement,5

____________________________________________


5Although Appellant raised an additional issue in his Rule 1925(b) statement,
he has abandoned this issue on appeal by failing to raise it in his brief. See



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which he later amended to include an additional claim. The trial court filed a

Rule 1925(a) opinion concluding that Appellant’s claims were meritless.

       Appellant raises the following questions for our review:

       1. Did the trial court err and abuse its discretion in denying
          [A]ppellant’s motion for mistrial where the investigating
          detective testified that [s]he attempted to interview the
          [A]ppellant, thereby informing the jury that [A]ppellant did not
          submit to an interview in violation of [A]ppellant’s Fifth
          Amendment rights under the United States Constitution and his
          rights under Article 1, Section 9 of the Pennsylvania
          Constitution, and his rights to due process of law under the
          United States Constitution?

       2. Did the trial court err and abuse its discretion by denying
          Appellant’s request for the standard jury charge pertaining to
          [the victim’s] failure to make a prompt complaint following a
          sexual assault and, in so doing, denied Appellant due process
          of law and a fair trial[?]

       3. Did the trial court err and abuse its discretion by denying the
          [A]ppellant the opportunity to cross examine the investigating
          detective about her past history about being sanctioned for
          improper investigative techniques where similar circumstances
          were present in Appellant’s case and by limiting such cross-
          examination denied [A]ppellant[’s] Sixth Amendment right to
          confrontation under the United States Constitution[?]

       4. Did the trial court’s determination that [A]ppellant was a
          sexually violent predator under 42 Pa. C.S. § 9799.24(e)(3)
          violate the federal and state constitution because it increases
          the criminal penalty to which [A]ppellant is exposed without
          the chosen factfinder making necessary factual findings beyond
          a reasonable doubt as set forth in Commonwealth v. Butler,


____________________________________________


Commonwealth v. Rodgers, 605 A.2d 1228, 1239 (Pa. Super. 1992)
(stating that “[w]e must deem an issue abandoned where it has been
identified on appeal but not properly developed in the appellant’s brief”
(citation omitted)).


                                           -5-
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         [173 A.3d 1212 (Pa. Super. 2017), appeal granted, 190 A.3d
         581 (Pa. 2018)?]

Appellant’s Brief at 4-5 (some capitalization omitted).

      In his first claim, Appellant argues that the trial court erred in denying

his motion for a mistrial after the Commonwealth elicited testimony from

Detective Blowes relating to Appellant’s silence.        Id. at 18.   By way of

background    to   Appellant’s   claim,   during   the   Commonwealth’s   direct

examination of Detective Blowes, the following exchange occurred:

         [The Commonwealth]: When did you interview [the victim’s
         Mother]?

         [Detective Blowes]: I interviewed her on 4/15/2013.

         [The Commonwealth]: Okay. So about four days after [the
         victim] was interviewed?

         [Detective Blowes]: Yes.

         [The Commonwealth]: Detective, did you attempt to
         interview anyone else in this case?

         [Detective Blowes]: Yes, I did.

         [The Commonwealth]: Who did you attempt to interview?

         [Detective Blowes]: [Appellant].

         [The Commonwealth]: Okay. Did you attempt to interview
         [the family friend, Grandma Gwen, or her daughter]?

N.T. Trial, 4/24/17, at 35-36.

      After the Commonwealth rested and the jury was excused, the following

discussion occurred:

      [Appellant’s Counsel]: . . . And, Your Honor, I should also note
      that I did not lodge an objection to the detective responding to
      counsel’s question. I know counsel did not intend to elicit this

                                      -6-
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     answer, but the witness responded in response to a question
     about I think the question was did you interview or did you
     attempt to interview anyone and she said, yes, the [Appellant]. I
     didn’t want to object at that point because I didn’t want to
     highlight the fact that no - -

     THE COURT: Was there any follow up after that?

     [The Commonwealth]: Your Honor, I did not ask any follow up
     questions.

     [Appellant’s Counsel]: No.

     [The Commonwealth]: I did not intend to elicit it and I wanted to
     get out of there as fast as possible.

     [Appellant’s Counsel]: I know and I appreciate that.

     [The Commonwealth:] So - -

     [Appellant’s Counsel]: May I just have one moment with my
     client?

     THE COURT: Sure.

                                  (Pause.)

     [Appellant’s Counsel]: Your Honor, my client -- I informed my
     client about the possible implications of the detective’s testimony
     and the consequences of the [c]ourt granting a mistrial should I
     ask for one and in the interest of being overly protective here of
     my client’s rights and interest I would ask for a mistrial.

     THE COURT: Well, that’s denied. I’m not going to grant a mistrial
     for something that was in passing, there was no further follow up,
     there was no objection at the time. You are raising it at this time
     and – so anyway, a mistrial is denied. Do you wish the [c]ourt to
     take any further action in terms of making reference to it?

     [Appellant’s Counsel]: No, Your Honor.

     THE COURT: Very well.

Id. at 48-50.




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       On appeal, Appellant alleges that Detective Blowes’ testimony showed

“that there was an attempt to obtain [Appellant’s statement], establishing by

clear and necessary inference that [A]ppellant refused to speak.” Appellant’s

Brief at 18.     Further, Appellant claims that “[t]he language utilized was

manifestly intended for the jury to take the comment as evidence of

[A]ppellant’s guilt; [A]ppellant refused to be interviewed because he was

guilty.” Id. Therefore, Appellant concludes that a mistrial should have been

granted.6

       Our standard of review in this context is as follows:

       The trial court is in the best position to assess the effect of an
       allegedly prejudicial statement on the jury, and as such, the grant
       or denial of a mistrial will not be overturned absent an abuse of
       discretion. A mistrial may be granted only where the incident
       upon which the motion is based is of such a nature that its
       unavoidable effect is to deprive the defendant of a fair trial by
____________________________________________


6 Appellant acknowledges that he did not immediately object to Detective
Blowes’ testimony at trial. He asserts that trial counsel “rightly recognized
that no attempt at a curative instruction could undo the harm caused by the
detective’s testimony and that any further reference to his client’s silence
would only further the damage.” Appellant’s Brief at 21.

Given the timing of Appellant’s motion for a mistrial, we could find this claim
waived. See Pa.R.Crim.P. 605(B) (stating that “[w]hen an event prejudicial
to the defendant occurs during trial only the defendant may move for a
mistrial; the motion shall be made when the event is disclosed”); see also
Commonwealth v. Cornelius, 180 A.3d 1256, 1262 (Pa. Super. 2018)
(concluding that the defendant’s challenge to the denial of a mistrial was
waived for appellate review because the defendant failed to object to the
allegedly prejudicial disclosure at the time it was made).

Nevertheless, we decline to find waiver, as it was reasonable for counsel to
delay further action until the jury left the courtroom. Accordingly, we will
address Appellant’s claim.

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      preventing the jury from weighing and rendering a true verdict.
      Likewise, a mistrial is not necessary where cautionary instructions
      are adequate to overcome any possible prejudice.

Commonwealth v. Rega, 933 A.2d 997, 1016 (Pa. 2007) (citation omitted).

      The Pennsylvania Supreme Court has held that

      mere reference to a defendant’s silence does not necessarily
      impinge constitutional rights when guilt is not implied. See
      [Commonwealth v. DiNicola, 866 A.2d 329, 337 (Pa. 2005);
      Commonwealth v. Whitney, 708 A.2d 471, 478 (Pa. 1998).]
      While we have interpreted the constitutional right against self-
      incrimination generally to prohibit prosecutors from referencing a
      defendant’s silence as substantive evidence of guilt, [the
      Supreme] Court has also concluded that the right against self-
      incrimination is not burdened when the reference to silence is
      “circumspect” and does not “create an inference of an admission
      of guilt.” DiNicola, 866 A.2d at 337. As noted above, “[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.”         See id. (quoting
      Whitney, 708 A.2d at 478).

Commonwealth v. Adams, 104 A.3d 511, 517 (Pa. 2014) (plurality)

(footnote omitted) (holding that testimony relating to the defendant’s refusal

to speak to officers “did not unconstitutionally burden [the d]efendant’s right

against self-incrimination, because the reference was contextual and brief and

did not highlight [the d]efendant’s silence as evidence of guilt” and was

instead “simply utilized to recount the sequence of the investigation”); see

also Commonwealth v. Molina, 33 A.3d 51, 56 (Pa. Super. 2011) (en banc)

(stating that the Commonwealth’s exploitation of otherwise harmless

testimony by the detective violated the defendant’s rights because “the

prosecutor deliberately exploited [the defendant’s] silence by asking the jury


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to infer guilt from the fact that he refused to go to the police station to be

interviewed”), aff’d, 104 A.3d 430 (Pa. 2014).

       Here, as noted by Appellant’s counsel at trial, there is no indication that

the Commonwealth intended to elicit Detective Blowes’ reference to Appellant.

N.T. Trial, 4/24/17, at 48.         Further, the reference to Appellant’s silence

occurred in a context that was unlikely to imply guilt. See DiNicola, 866 A.2d

at 337.     Specifically, Detective Blowes indicated that she attempted to

interview Appellant in response to a series of questions about the sequence of

her investigation. See Adams, 104 A.3d at 518. Further, the Commonwealth

did not ask any follow-up questions, and made no further reference to the

testimony at trial or during closing arguments. See Molina, 33 A.3d at 56.

For these reasons, we agree with the trial court that Appellant’s right against

self-incrimination was not burdened by Detective Blowes’ testimony.          See

Adams, 104 A.3d at 518; DiNicola, 866 A.2d at 337; Molina, 33 A.3d at 56.

Accordingly, we find no abuse of discretion in the trial court’s conclusion that

a mistrial was unwarranted. See Johnson, 107 A.3d at 77. Therefore, no

relief is due.

       Appellant next claims that the trial court erred in denying his request

for a prompt complaint jury instruction.7 Appellant’s Brief at 22. Appellant
____________________________________________


7 “The prompt complaint instruction is based upon a belief that a victim of a
violent assault would reveal the assault occurred at the first available
opportunity. [T]he purpose of the instruction is to allow a jury to call into
question a complainant’s credibility when he or she did not complain at the
first available opportunity.” Commonwealth v. Thomas, 904 A.2d 964, 970
(Pa. Super. 2006) (citations omitted).

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acknowledges that he did not request the instruction during his second trial.

Instead, he argues that because he requested the instruction at the first trial,

and the trial court denied his request, the court’s omission became the law of

the case. Therefore, he claims that his objection to the court’s omission was

preserved at the first trial.

       The law of the case doctrine provides that “a court involved in the later

phases of a litigated matter should not reopen questions decided by another

judge of the same court or by a higher court in the earlier phases of the

matter.” Commonwealth v. Wallace, 870 A.2d 838, 842 n.4 (Pa. 2005)

(emphasis and citation omitted). However, our Supreme Court has long held

that

       [w]hen a court grants a new trial, the necessary effect thereof is
       to set aside the prior judgment and leave the case as though no
       trial had been held. . . . By the operation of an order granting a
       new trial, the cause, in contemplation of law, is precisely in the
       same condition as if no previous trial had been held.

Commonwealth v. Hart, 387 A.2d 845, 847 (Pa. 1978) (citation omitted);

see Commonwealth v. Paddy, 800 A.2d 294, 311 (Pa. 2002) (stating that

“the grant of a new trial ‘wipes the slate clean’” (citation omitted)).

       With respect to jury instructions, we have explained that

       [a] specific and timely objection must be made to preserve a
       challenge to a particular jury instruction. Failure to do so results
       in waiver. Generally, a defendant waives subsequent challenges
       to the propriety of the jury charge on appeal if he responds in the
       negative when the court asks whether additions or corrections to
       a jury charge are necessary.



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Commonwealth v. Moury, 992 A.2d 162, 178 (Pa. Super. 2010) (citations

omitted); see Pa.R.Crim.P. 647(C) (stating that “[n]o portions of the charge

nor omissions from the charge may be assigned as error, unless specific

objections are made thereto before the jury retires to deliberate”); see also

Pa.R.A.P. 302(b) (stating that “[a] general exception to the charge to the jury

will not preserve an issue for appeal. Specific exception shall be taken to the

language or omission complained of”).

       Here, because Appellant was granted a new trial, his case was “precisely

in the same condition as if no previous trial had been held.” See Hart, 387

A.2d at 847. Therefore, in order to preserve his challenge to the trial court’s

jury instructions, Appellant should have specifically objected to the absence

of the prompt complaint instruction during this second trial.8 See Pa.R.A.P.

302(b).     Because Appellant failed to do so, his claim is waived.         See

Pa.R.Crim.P. 647(C); Moury, 992 A.2d at 178.

       In his next issue, Appellant argues that the trial court erred by limiting

his cross-examination of Detective Blowes. Appellant’s Brief at 30. By way


____________________________________________


8 Further, we agree with the trial court that an instruction on the victim’s
failure to make a prompt complaint was inappropriate given the facts of the
case. The victim alleged that the abuse occurred while she was between ages
seven and fourteen, and that it was committed by her stepfather, a person of
authority and close relationship to the victim. See Commonwealth v.
Jones, 672 A.2d 1353, 1357 n.2 (Pa. Super. 1996) (noting that “[w]here an
assault is of such a nature that the minor victim may not have appreciated
the offensive nature of the conduct, the lack of prompt complaint would not
necessarily justify an inference of fabrication.” (citation omitted)).


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of background to this claim, at trial, Appellant set forth the basis for his motion

in limine as follows:

      I have a motion that would be in the nature of [an] in limine
      request to ask [Detective Blowes] about. There’s an appellate
      case that I found. I have a copy for the [c]ourt and counsel. I’m
      handing one up to the [c]ourt. It’s a non-reported Commonwealth
      [C]ourt decision. It was a civil case initiated against the detective
      wherein on page 20 at the bottom going to page 21[,] the court
      had found that the evidence, and I’m quoting now, the evidence
      supports the conclusion that [Detective Blowes] knowingly made
      material misrepresentations and omissions in her affidavit of
      probable cause. However, the record also contained voluminous
      evidence of [Detective Blowes’] overall deficient investigation
      which supports the conclusion that [Detective Blowes’] conduct
      was willful, deliberate, and knowing.

      The reason why I want to ask [Detective Blowes] about it is
      because -- and I don’t necessarily have to do it in a context that
      references the case, but in this case there was no attempt to
      investigate any physical evidence in [Appellant’s] home. I don’t
      know of any evidence or any efforts that were made by the
      detective to follow up with any of the prompt complaint witnesses
      with the exception of [the family friend, Grandma Gwen, and her
      daughter].

      I don’t think an interview was ever conducted of [Grandma Gwen],
      but the 49 does reflect that the phone call was at least made to
      her.     I don’t know that [Detective Blowes] was, in fact,
      reprimanded or disciplined internally by the police department
      concerning this particular case against her. But it appears that
      she does at least have a history of not thoroughly investigating
      cases.

      In [the prior] case, Your Honor, there was an allegation that an
      infant was kidnapped. [Detective Blowes,] in [that] case[,] did
      not investigate even the birth of the infant child and, in fact, the
      complainant in the underlying case never gave birth to a child.
      There was never any kidnapping whatsoever. Yet the defendant
      was, in fact, arrested on the basis of a warrant that was obtained
      that was, in the words of the court, deficient in terms of it being
      investigated and deficient in terms of what should have been done
      based upon the standard of care for a detective.


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N.T. Trial, 4/19/17, at 56-58.

      Thereafter, the trial court granted the Commonwealth’s request for time

to review the appellate case submitted with Appellant’s motion. The next day,

the discussion continued:

      [Defense Counsel:] There was several aspects of the case that
      were either not investigated at all or improperly investigated, and
      some of what was said in the case and giving the ruling of the
      case I had inquired of counsel as to whether she was aware of any
      discipline that resulted from the case. And I respectfully would
      like to impeach Detective Blowes with her performance as it was
      criticized by Commonwealth [C]ourt.

      THE COURT: Well, but that is specific as to that case?

      [Defense Counsel]: Correct.

      THE COURT: I’ll hear from the Commonwealth.

      [The Commonwealth:] Your Honor, it’s the Commonwealth’s
      position that this is completely irrelevant to the case that she --
      and her investigation that was conducted in this matter that’s
      before the jury. I think it’s an attempt to elicit propensity and
      habit evidence, I think, where that’s inappropriate here. It’s --
      again, it’s a completely different type of case. I think this would
      just be an attempt to bias the jury that [Detective Blowes] acted
      poorly in one case and is therefore acting poorly in this case.

      I think that her investigation, or lack thereof, in this case is
      certainly subject to counsel’s cross-examination, but floating a
      lawsuit in front of the jury I just think is irrelevant in this case.

      THE COURT: And she -- well, and when did that happen? When
      was that?

                                     ***

      THE COURT: Or the incident in that case was in what year? It
      looks like this is an appeal from an August 2013 order of Common
      Pleas Court.

      [The Commonwealth]: It began on April 14th, 2008, it says. That
      was when the initial report came into Special Victims.


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      THE COURT: And [Detective Blowes] was not removed from the
      force?

      [The Commonwealth]: She was not. She’s still a current detective
      at Special Victims.

      THE COURT: And what was the outcome of this case, Joyce Combs
      vs. Detective Blowes?

      [The Commonwealth]: She was fined civilly. I think she had to
      pay $100,000.

      THE COURT: So that was a civil matter.

      [The Commonwealth]: It was a civil matter only.

      THE COURT: And she was not removed from the force as a result
      of this case?

      [The Commonwealth]: Correct.

                                         ***

      THE COURT: I’m going to deny the defense motion in which to
      impeach in a criminal matter and the matter of Joyce Combs vs.
      Detective Linda Blowes, opinion filed February 17th, 2015. So
      that is denied.

N.T. Trial, 4/20/17, at 114-117. Thereafter, in its Rule 1925(a) opinion, the

trial court concluded that Detective Blowes’ prior conduct “had nothing to do

with [her] investigations in Appellant’s case.” Trial Ct. Op., 3/22/18, at 6.

      On appeal, Appellant argues that he should have been permitted to

question Detective Blowes about a civil judgment relating to her misconduct

in a 2008 kidnapping investigation.         Appellant’s Brief at 30.   Appellant

contends that Detective Blowes failed to conduct a thorough investigation in

the instant case because her investigation did not include “a search for

physical evidence at the scene of the alleged assaults” or “interviews of

potentially critical witnesses.”   Id.    Appellant asserts that “[w]hether this

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omission . . . was gross neglect or the manifestation of a design to avoid the

procurement of evidence that could hurt the prosecution[’s] case was a fair

avenue of impeachment.” Id. at 30-31. To that end, Appellant argues that

he should have been able to introduce the civil lawsuit to demonstrate

Detective Blowes’ “knowledge, motive and intent with respect to the manner

in which the investigation was directed” or, “at the very least, to show that

gross incompetence denied [A]ppellant the opportunity to have the allegations

fully and fairly vetted.” Id. at 31.

      The following principles govern our review. The right to cross-examine

witnesses, although fundamental, is not absolute.         Commonwealth v.

Rosser, 135 A.3d 1077, 1088 (Pa. Super. 2016) (en banc). “A trial court has

discretion to determine both the scope and the permissible limits of cross-

examination. The trial judge’s exercise of judgment in setting those limits will

not be reversed in the absence of a clear abuse of that discretion, or an error

of law.” Commonwealth v. Briggs, 12 A.3d 291, 335 (Pa. 2011) (quotation

marks and citations omitted).

      The Confrontation Clause of the Sixth Amendment of the United States

Constitution provides a defendant with a constitutional right “to conduct cross-

examination that reveals any motive that a witness may have to testify

falsely.” Commonwealth v. Bozyk, 987 A.2d 753, 756 (Pa. Super. 2009).

However, “trial judges retain wide latitude insofar as the Confrontation Clause

is concerned to impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, and prejudice, confusion of

                                       - 16 -
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the issues, the witness’ safety, or interrogation that is repetitive or only

marginally relevant.” Id. (citation omitted).

       Further, we have explained that

       [t]he pertinent case law permits a police witness to be cross-
       examined about misconduct as long as the wrongdoing is in some
       way related to the defendant’s underlying criminal charges and
       establishes a motive to fabricate . . . .

       However, if the prior police behavior is unrelated to the present
       matter and irrelevant, the trial court is permitted to restrict
       questioning on the prior incident.           Commonwealth v.
       Boczkowski, 846 A.2d 75 ([Pa.] 2004) (fact that police witness
       withheld evidence in prior case was not relevant because there
       was no evidence of withholding evidence in case at hand);
       Commonwealth v. Bright, 420 A.2d 714 ([Pa.] 1980)
       (defendant could not impeach police officer with potential
       disciplinary action for excessive use of force by different officer
       since that cross-examination had no relationship to case in
       question) . . . .

Id. at 757 (some citations omitted).

       Following our review of the record, we agree with the trial court’s finding

that Detective Blowes’ conduct in the unrelated 2008 kidnapping case was

irrelevant to the pending criminal charges against Appellant. See Bozyk, 987

A.2d at 756-57. Other than theorizing that Detective Blowes “had a history”

of inadequately investigating cases, Appellant has failed to demonstrate any

link between Detective Blowes’ prior conduct and Appellant’s case.9          See

Boczkowski, 846 A.2d at 96 (stating that “[t]he trial court did not abuse its
____________________________________________


9 As noted by the trial court, there was a civil judgment against Detective
Blowes, but she was never removed from the police force as a result of the
suit. See N.T. Trial, 4/20/17, at 117.


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discretion in ruling that appellant’s attenuated theory did not alter the fact

that the evidence he offered was collateral and irrelevant”). Therefore, we

discern no abuse of discretion by the trial court in precluding Appellant from

questioning Detective Blowes about the prior incident.10 See Briggs, 12 A.3d

at 335; Bozyk, 987 A.2d at 756-57.                 Accordingly, no relief is due on

Appellant’s claim.

       In his final issue, Appellant argues that that his designation as an SVP

under the Sexual Offender Registration and Notification Act (SORNA) is illegal

pursuant to our Supreme Court’s decision in Commonwealth v. Muniz, 164

A.3d 1189 (Pa. 2017), and this Court’s subsequent holding in Butler.

Appellant’s Brief at 34. Appellant requests that we remand the matter to the

trial court for a proper determination of Appellant’s tier-based registration

requirements. Id. at 35. We agree.

       In Muniz, this Court held that the registration requirements established

by SORNA constitute criminal punishment as opposed to a civil penalty, and

therefore, their retroactive application violates the ex post facto clauses of the

United States and Pennsylvania Constitutions.            Muniz, 164 A.2d at 1193.

Subsequently, this Court held that applying SORNA’s aggravated registration

periods for those found to be SVPs is unconstitutional. Butler, 173 A.3d at

1217. In Butler, we held that “[S]ection 9799.24(e)(3) of SORNA [regarding

____________________________________________


10 We also note that Appellant cross-examined Detective Blowes about the
alleged inadequacies of her investigation. See N.T. Trial, 4/24/17, at 40-46.


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SVP designation] violates the federal and state constitutions because it

increases the criminal penalty to which a defendant is exposed without the

chosen fact-finder making the necessary factual findings beyond a reasonable

doubt.” Id. at 1218.

      Here, the trial court conducted an SVP hearing and determined Appellant

to be an SVP by clear and convincing evidence, rather than beyond a

reasonable doubt. Under Muniz and Butler, we conclude that the trial court’s

September 18, 2017 order deeming Appellant to be an SVP is unconstitutional

and constitutes an illegal sentence.    Therefore, we vacate Appellant’s SVP

status and, in accordance with Butler, remand this matter to the trial court

to issue appropriate notice to Appellant of his registration obligations pursuant

to 42 Pa.C.S. § 9799.23.

      Judgment of sentence affirmed in part and vacated in part.           Case

remanded for further proceedings consistent with this memorandum.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/22/19




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