J-A12045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

KEN ANDREW KOVALESKI,

                            Appellant                 No. 1117 MDA 2014


         Appeal from the Judgment of Sentence entered July 2, 2014,
            in the Court of Common Pleas of Lackawanna County,
             Criminal Division, at No(s): CP-35-CR-0002000-2012


BEFORE: BOWES, DONOHUE, and ALLEN, JJ.

MEMORANDUM BY ALLEN, J.:                               FILED APRIL 30, 2015

        Ken Andrew Kovaleski (“Appellant”) appeals from the judgment of

sentence imposed after a jury convicted him of rape and related charges.1

We affirm.

        The trial court summarized the pertinent facts as follows:

              The incidents were alleged to have begun in June of
           2011. During the evening, the victim, [N.K.] was asleep in
           her bedroom. [She was fifteen years old at the time.] At
           some point, she awoke to find her adoptive father,
           [Appellant], covering her mouth with his hand. [Appellant]
           then told [N.K.] to be quiet and proceeded to kiss and
           touch her all over her body. After taking [N.K.’s] pajama
           shorts off, the victim testified that [Appellant] performed
           oral sex on her, penetrated her vagina with his fingers,
           and had sexual intercourse with her, despite her
           whimpering in pain.
____________________________________________


1
    18 Pa.C.S.A. § 3121.
J-A12045-15


             Despite only performing intercourse on one occasion,
         [Appellant] continued to sexually abuse [N.K.] periodically
         over the course of the next year. Namely, [Appellant]
         would perform oral sex on [N.K.], penetrate her vagina
         with his fingers, or masturbate in front of her. Whenever
         [N.K. threatened to disclose the abuse, [Appellant]
         reprimanded her, telling her no one would believe her due
         to his close relationship with various prosecutors and
         police officers throughout the county. [Appellant was a
         licensed attorney and had been employed in the
         Lackawanna County Public Defender’s Office.] He also
         convinced her that no one would believe her since she had
         not disclosed the abuse after the initial assault, and there
         would be no physical evidence remaining from that one
         and only instance of intercourse to support her allegation.

            At some point in July 2012, upon learning that the
         victim had snuck out of their Jessup, PA residence in the
         middle of the night to meet a boy from school and had
         engaged in sexual acts with this boy, [Appellant]
         threatened her and grabbed her throat. The day after this
         altercation, while at a golf course in Scott Township with
         [Appellant] and his wife, [], and their other children, [N.K.]
         ran away and hitchhiked to her sister’s house in Forest City
         and disclosed the abuse to her sister. Upon hearing of the
         abuse, [N.K.’s] sister, [R.M.], took her to the Forest City
         Police Station to report the abuse. When [N.K.] and her
         sister were walking toward the police station, they
         observed [Appellant] and his wife there as well. After a
         scuffle at the police station between [N.K.] and
         [Appellant’s] wife during which [Appellant’s] wife tackled
         [N.K.] to the ground, [Appellant] and his wife were sent
         home by the police, and [N.K.] was placed in emergency
         foster care with her aunt and uncle in Montrose. Pursuant
         to the police investigation, [N.K.] was interviewed and
         examined at the Children’s Advocacy Center (“CAC”) in
         Scranton. [Appellant] was arrested on or about July 17,
         2012.

Trial Court Opinion, 9/2/14, at 2-4 (citations and footnote omitted).

      Prior to trial, the trial court granted the Commonwealth’s motion in

limine, which sought to present the testimony of M.B., a then twenty-nine

                                     -2-
J-A12045-15



year old woman who later testified that Appellant sexually assaulted her

when she was fifteen.2 Following a two-day trial, on February 26, 2014, a

jury convicted Appellant of rape and related charges. On July 2, 2014, the

trial court accepted the parties’ stipulation that Appellant was a sexually

violent predator, and the court sentenced him to an aggregate term of

twenty-one to forty-two years of imprisonment. This timely appeal followed.

Both Appellant and the trial court have complied with Pa.R.A.P. 1925.

       Appellant raises the following issues:

          1. Whether the trial court erred and abused its discretion
          in allowing the Commonwealth to introduce [] evidence of
          other alleged crimes, wrongs or acts pursuant to [Pa.R.E.]
          404(B).

          2. Whether the trial court erred and abused its discretion
          in not allowing evidence to be introduced with regard to
          psychological medication prescribed to the [victim].

          3. Whether the trial court erred and abused its discretion
          by not allowing Appellant to call a medical professional
          who had treated the [victim] and would testify to a lack of
          indications for sexual assault.

Appellant’s Brief at 3.

       Each issue raised by Appellant challenges the trial court’s ruling on

evidentiary matters. Our standard of review is well settled:

             Appellate courts typically examine a trial court’s decision
         concerning the admissibility of evidence for abuse of
         discretion. An abuse of discretion may not be found merely
____________________________________________


2
  Appellant was never arrested or criminally charged in relation to this
incident.



                                           -3-
J-A12045-15


        because an appellate court might have reached a different
        conclusion,     but   requires   a     result   of    manifest
        unreasonableness, or partiality, prejudice, bias, or ill-will, or
        such lack of support so as to be clearly erroneous.
        Typically, all relevant evidence, i.e., evidence which tends
        to make the existence or non-existence of a material fact
        more or less probable, is admissible, subject to the
        prejudice/probative value weighing which attends all
        decisions upon admissibility.     See Pa.R.E. 401; Pa.R.E.
        402[.]

Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007).

      After careful review of the record and pertinent case law, we conclude

that the Honorable Margaret A. Bisignani Moyle has prepared a thorough and

well-reasoned opinion in which she explains her evidentiary rulings, while

acknowledging the potential prejudice and fairness considerations for both

Appellant and the Commonwealth.

      More specifically, with regard to Appellant’s first issue, our review of

the record and case law supports Judge Bisignani Moyle’s decision to admit

the evidence of Appellant’s prior assault despite its remoteness. See e.g.,

Commonwealth        v.   Arrington,   86    A.3d   831,   841-845    (Pa.   2014)

(concluding that the probative evidence of the defendant’s prior crimes

toward ex-girlfriends to show common scheme to control through violence

and intimidation outweighed prejudicial effect to the defendant from its

admission).   Our conclusion is further supported by the fact that Judge

Bisignani Moyle thrice warned the jury with regard to the limited use of this

evidence. See id. (explaining that the law presumes a jury will follow the

instructions of the court).

                                      -4-
J-A12045-15


      As to Appellant’s remaining issues, our review of the record supports

our determination that Judge Bisignani Moyle properly weighed the potential

of prejudice to both parties and reasonably dealt with these concerns in

limiting Appellant’s cross-examination of the Commonwealth’s medical

witness, and in arriving at a stipulation regarding Appellant’s proposed

medical witness. This is especially true, given the sensitive inquiry regarding

a victim’s psychiatric treatment.     See generally, Commonwealth v.

Boich, 982 A.2d 102 (Pa. Super. 2009) (en banc).

      A criminal defendant is entitled to a fair trial, not a perfect one.

Commonwealth v. Noel, 14 A.3d 1156, 1169 (Pa. 2014) (citation

omitted).   Although Appellant was not able to present his defense as

completely as he wished, after reviewing the record and pertinent case law,

we conclude that in her September 2, 2014 opinion, Judge Bisignani Moyle

correctly explains why Appellant’s claims do not entitle him to relief.    We

therefore adopt Judge Bisignani Moyle’s opinion as our own in affirming

Appellant’s judgment of sentence.




                                     -5-
J-A12045-15


Judgment of sentence affirmed.


   Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/30/2015




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