J-S22025-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 ANTHONY HOLMES                           :
                                          :
                    Appellant             :   No. 1685 MDA 2018

        Appeal from the Judgment of Sentence Entered April 5, 2018
    In the Court of Common Pleas of Centre County Criminal Division at
                      No(s): CP-14-CR-0001211-2016


BEFORE:    SHOGAN, J., DUBOW, J., and PELLEGRINI*, J.

MEMORANDUM BY DUBOW, J.:                           FILED AUGUST 09, 2019

      Appellant, Anthony Holmes, appeals from the April 5, 2018 Judgment of

Sentence entered in the Centre County Court of Common Pleas following his

conviction of Sexual Assault. After careful review, we affirm.

      We glean the following factual and procedural history from the certified

record. In the late evening of July 10, 2015, the Victim, Kathleen Mangus, and

other friends attended the Arts Festival at State College, Pennsylvania. The

Victim patronized bars and drank alcohol while at the Festival. At some point

in the evening, the Victim blacked-out while drinking a beer at a bar.

      In the early morning of July 11, 2015, when the Victim regained

awareness, she was standing outside a black sedan in a wooded area of a

park. She was disoriented and panicked. A discussion between the Victim and

Appellant intensified, and when the Victim asked Appellant to leave the area,


____________________________________
* Retired Senior Judge assigned to the Superior Court.
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he punched her in the face, breaking her nose and knocking her to the ground.

He told the Victim to stop crying and demanded that she remove her pants.

The victim protested. Appellant proceeded to hold her down and sexually

assault her. After the assault, Appellant stated, “I can’t believe this. I can’t

believe this is how tonight went. I can’t believe this.” N.T. Trial, 1/30/18, at

87.

       Appellant and the Victim then entered the car to leave the park. The

Victim informed Appellant she could not find her cell phone. Appellant

attempted to find the phone by calling it; they were unable to locate the

phone.

       Appellant drove them back into town. Once the Victim recognized that

they were near Mangus’s apartment, she asked Appellant to drop her off. As

she was leaving the car, Appellant retrieved the Victim’s cell phone from the

driver’s side floor and gave it to her.

       The Victim arrived at Mangus’s apartment around 5:00 AM. She woke

Mangus and informed her of the assault; Mangus then called the police. Officer

Martin Hanes responded and escorted the Victim to the Mount Nittany Medical

Center where an examiner performed a vaginal swab extraction.1



____________________________________________


1A forensic analysis of the swab performed in February 2016 found DNA
material matching Appellant’s DNA profile.




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       On July 23, 2015, Detective John Aston recorded a phone call the Victim

placed to Appellant at the Detective’s behest.2 During the phone conversation,

the Victim asked Appellant about the evening of the Arts Festival. Appellant

told the Victim that she had the wrong number and he had not been at the

Arts Festival, and hung up. The Victim then sent Appellant a text message.

Appellant never responded to the Victim’s text message. That same day,

Appellant cancelled his cell phone service with T-Mobile. He later obtained a

new cell phone number with a new provider.

       In July 2016, Appellant was charged with Rape, Sexual Assault, two

counts Indecent Assault, Simple Assault, and Harassment.3 A jury trial

commenced on January 29, 2018, at which the parties stipulated to the DNA

lab results, and to the fact that Appellant cancelled his cell phone number with

T-Mobile on July 23, 2015 and subsequently obtained a new cell phone number

with Verizon. The Commonwealth presented testimony from, inter alia, the

Victim, Detective Aston, and Kathleen Mangus. The Victim testified about the

events of July 10 and 11, 2015, and the July 23, 2015 phone call and text

message to Appellant. Detective Aston discussed his investigation of the case,

including compiling data related to Appellant’s and the Victim’s cell phones.


____________________________________________


2 The Commonwealth retrieved Appellant’s phone number from the Victim’s
received calls log from the early morning hours of July 11, 2015.

318 Pa.C.S. § 3121, 18 Pa.C.S. § 3124.1, 18 Pa.C.S. § 3126, 18 Pa.C.S. §
2701, and 18 Pa.C.S. § 2709, respectively.


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Mangus testified about the events of July 10 and 11, 2015, and her ensuing

discussions with Detective Aston about the case. Appellant’s attorney

vigorously cross-examined Mangus. Appellant presented testimony from, inter

alia, four character witnesses. After closing arguments, the trial court

instructed the jury, over Appellant’s objection, about considering Appellant’s

actions after the assault as consciousness of guilt.

       On January 30, 2018, the jury found Appellant guilty of Sexual Assault.4

Following the jury trial, the court found Appellant guilty of Harassment. On

April 5, 2018, the court sentenced Appellant to, inter alia, four and one-half

to nine years of imprisonment. Appellant filed a Post-Sentence Motion, which

the trial court denied.

       Appellant    timely    appealed.        Appellant   filed   a   Pa.R.A.P.   1925(b)

Statement. The trial court referred this Court to its opinion denying Appellant’s

Post-Sentence motion in lieu of drafting a Rule 1925(a) Opinion.

       Appellant presents the following questions for our review:

       1. Did the lower court abuse its discretion by permitting the
          Commonwealth to repeatedly elicit improper opinion evidence
          at trial that the [Victim] in this matter was truthful in her
          allegations that she was attacked and raped by [Appellant]?

       2. Did the lower court, having found that [Appellant] did not know
          he was wanted by the police, abuse its discretion by giving the
          jury a consciousness of guilt instruction?


____________________________________________


4 The Commonwealth withdrew the two counts of Indecent Assault prior to
trial. The jury found Appellant not guilty of Rape and Simple Assault.

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Statement of the Questions Involved, Appellant’s Br. at 5.

Admissibility of Evidence

      In his first claim, Appellant asserts that the trial court abused its

discretion by permitting the Commonwealth to use Mangus’s re-direct

testimony to bolster the Victim’s credibility about the events that occurred on

the evening of July 10, 2015, and early morning of July 11, 2015. Appellant’s

Br. at 13. He asserts that the Commonwealth elicited improper opinion

evidence, citing to portions of Mangus’s re-direct testimony. Appellant’s Br. at

9-11, 13-16.

      The admissibility of evidence and scope of re-direct examination is

within the discretion of the trial court. Commonwealth v. Dreibelbis, 426

A.2d 1111, 1117 (Pa. 1981); Commonwealth v. Young, 989 A.2d 920, 924

(Pa. Super. 2010). “[A] reviewing court will not reverse the trial court’s

decision absent a clear abuse of discretion.” Young, supra at 924. To be

admissible, evidence must be relevant.      See Pa.R.E. 401, 402. However,

relevant evidence may be excluded if the court determines that its probative

value is outweighed by the risk of unfair prejudice.     Pa.R.E. 403. “‘Unfair

prejudice’ means a tendency to suggest [a] decision on an improper basis or

to divert the jury’s attention away from its duty of weighing the evidence

impartially.”   Id., cmt. “Moreover, when a party raises an issue on cross-

examination, it will be no abuse of discretion for the court to permit re-direct




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on that issue in order to dispel any unfair inferences.” Dreibelbis, supra at

1117.

        Appellant’s claim challenges Mangus’s testimony provided in response

to Appellant’s counsel’s vigorous cross-examination. On cross-examination,

defense counsel questioned Mangus about her interactions with Appellant’s

investigator and with Detective Aston. Counsel questioned Mangus about the

messages Appellant’s investigator left for her and why she did not return his

phone calls to discuss the case. N.T. Trial, 1/29/18, at 65-66. He then

questioned Mangus about how soon she discussed the case with Detective

Aston after Appellant’s investigator had contacted her. Id. at 66-67. On re-

direct, Mangus testified that she knew something bad had happened to the

Victim, the Victim was attacked and raped, and that she wanted nothing to do

with Appellant’s investigator because she did not know the investigator. Id.

at 76-79.

        The trial court determined that the Commonwealth’s questions and

Magnus’s testimony on re-direct examination were in response to defense

counsel’s questions implying that Magnus held a bias against defense

counsel’s investigator, not to bolster victim’s testimony. Trial Ct. Op. at 4. The

court further opined that any harm from the testimony was minimal. Id. at 4-

5.

        We agree with the trial court’s conclusion. On cross-examination,

defense counsel attacked Mangus’s credibility by attempting to expose bias.


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Defense counsel asked if Appellant’s investigator contacted her and why she

did not respond to his requests to speak with her. Further, defense counsel’s

questioning contrasted Magnus’s reluctance to speak with Appellant’s

investigator with her willingness to speak with the Commonwealth’s detective.

Her re-direct testimony explaining why she was reluctant to speak with

Appellant’s investigator constituted proper and relevant evidence responding

to the defense counsel’s implication of bias raised on cross-examination. See

Dreibelbis, supra at 117.

      Moreover, we discern no error in the trial court’s consideration of the

probative value of this testimony against its prejudicial impact. Although

Appellant avers Magnus’s words describing the attack as rape were prejudicial,

the jury’s finding Appellant not guilty of rape evidences the minimal prejudicial

impact of Mangus’s re-direct testimony.

      We conclude the trial court did not abuse its discretion in admitting

Mangus’s testimony on re-direct.

Jury Instruction

      In his second claim, Appellant avers that the trial court abused its

discretion in giving the following consciousness of guilt jury instruction:

      There was evidence tending to show that the defendant cancelled
      his [cell] phone after [the Victim] called him and he denied being
      at the Arts Festival. If you believe this evidence, you may consider
      it as tending to prove the defendant’s consciousness of guilt. You
      are not required to do so.

N.T., 1/30/18, at 231-32.       Appellant contends that the instruction was

improper because there was no evidence presented that he had been called

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by the police or that he was aware that he was the subject of an investigation

at the time he changed his phone number. Appellant’s Brief at 19-21.

      We      review   a   challenge   to   a   jury   charge   for   an   abuse   of

discretion. Commonwealth v. Greer, 951 A.2d 346, 354 (Pa. 2008). “A jury

instruction is proper if supported by the evidence of record.” Commonwealth

v. Clark, 961 A.2d 80, 92 (Pa. 2008).

      The conduct of an accused following a crime is admissible as tending to

show guilt.    Commonwealth v. Hughes, 865 A.2d 761, 792 (Pa. 2004).

Direct evidence is not required to establish a defendant’s actual knowledge

that he was being sought by the police for a crime. Commonwealth v.

Whack, 393 A.2d 417, 419-20 (Pa. 1978). A defendant’s knowledge may be

inferred from the circumstances following his crime. Commonwealth v.

Thoeun Tha, 64 A.3d 704, 714 (Pa. Super. 2013). See Commonwealth v.

Jones, 570 A.2d 1338, 1349 (Pa. Super. 1990) (concluding that a jury

instruction on consciousness of guilt was proper where defendant’s refusal to

give his identification after a car accident and then fled demonstrated that he

had reason to know that he may be suspected in connection with a murder

that occurred four days prior to the accident).

      The Victim testified that she contacted Appellant about the events at the

Arts Festival. Appellant denied attending and hung up. Appellant ignored the

Victim’s text message and then cancelled his cell phone service. From these

facts, it was reasonable for the trial court to infer that Appellant was


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attempting to prevent the Victim from contacting him and thus, there was

sufficient evidence to charge the jury that Appellant’s efforts to prevent the

Victim from contacting him established Appellant’s consciousness of guilt.

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

in providing the consciousness of guilt instruction.

      Judgment of Sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2019




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