J-A19019-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN THE INTEREST OF: D.B.                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
    APPEAL OF: D.B.                            :
                                               :
                                               :
                                               :
                                               :
                                               :   No. 2216 EDA 2018


               Appeal from the Dispositional Order, June 26, 2018,
              in the Court of Common Pleas of Philadelphia County,
              Juvenile Division at No(s): CP-51-JV-0001671-2017.


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

MEMORANDUM BY KUNSELMAN, J.:                          FILED OCTOBER 22, 2019

       In this juvenile proceeding, Appellant, D.B., was charged with Rape,

Unlawful Restraint - Serious Bodily Injury, Sexual Assault and Indecent

Assault.1 He was adjudicated delinquent on the charge of attempted indecent

assault, and now appeals from the dispositional order following that

adjudication. After review, we affirm.

       We glean from the juvenile court the relevant history:

          At the adjudicatory hearing held on October 19, 2017, this
          Court heard the testimony of one (1) witness, a 12-year-old
          female, the complainant, A.R. She testified that
          approximately four years prior, she was living in the home
          of her mother's best friend in Philadelphia when she
          encountered the [Appellant], D.B.        The [complainant]
          explained that her mother's friend had three children also
          living there. The [complainant] said she was sharing a room
____________________________________________


1 18 Pa.C.S. § 3121(A)( 1 ), §2902(A)(1), § 3124.1 and § 3126 (A)(1),
respectively.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-A19019-19


        with [D.B.]'s younger sister. The complainant testified that
        one evening she and [the sister] were asleep in bed, both
        wearing pajamas and underpants, when [the complainant]
        was awakened with the [D.B.] kneeling "over top of” her
        taking off his pants. The [complainant] explained that she
        and [the sister] were both on the floor, on their stomachs,
        with underwear and pajamas pulled down.                 The
        [complainant] added that [D.B] turned her over and was
        about to put his penis into her private area when she told
        him to move and to stop. The complainant testified that
        [D.B.’s] privates were inches away from her privates when
        he stopped. The complainant then testified that when
        [D.B.] stopped, she went back on the bed and pulled up her
        pajama pants and underwear.

        The complainant then said that [D.B.] then went over to his
        sister, and "he did what he was trying to do to me.” The
        complainant could not see if [the sister] was awake when
        "he put his penis in [the sister’s] butt." The complainant
        testified that her mother was about to come upstairs when
        [D.B.] pulled up his underwear and pajama pants, as well
        as [the sister’s] and he put his sister back on the bed. The
        complainant's mother then walked into the room while
        [D.B.] was standing over the top of the bed and her mother
        asked him what he was doing. [D.B.] said the complainant
        was "looking for bugs."

        The complainant went on to testify that [D.B.] performed
        the same acts on his sister the next three nights in a row.
        The complainant tried to talk to [the sister] about the
        occurrence, but [the sister] "didn't like it when [the
        complainant] talked about that kind of stuff."            The
        complainant eventually told her father about these events
        just this past year, one morning when she was getting ready
        for school. Complainant also explained that she had written
        her father a letter the night before saying that she was
        depressed and that she wanted to kill herself. Following the
        complainant's testimony defense counsel stipulated to the
        authenticity of the complainant's letter that she wrote to her
        father and it was entered into evidence as Exhibit C-1.

Juvenile Court Opinion, 12/16/18, at 4-6 (citations to Notes of Testimony

omitted).


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      The juvenile court found that D.B. was in need of treatment, supervision

and rehabilitation and adjudicated him delinquent. The court ordered D.B. to

pay court costs and directed that he be placed at a community based shelter

until he could be placed in the residential treatment facility at Adelphoi Village

Residential Sex Offender Program. This program was the least restrictive

placement that was consistent with the protection of the public and best suited

to the D.B.'s supervision, rehabilitation and welfare.

      On July 26, 2018, D.B. filed a timely notice of appeal. He raises one

issue for our review:

      Did not the lower court err, abuse its discretion, and deny D.B.
      the opportunity for a fair adjudicatory hearing, when it allowed
      the complainant, A.R., to testify at length about other acts
      concerning D.B.'s sister, where the Commonwealth did not give
      formal notice that it sought to introduce such evidence, where
      D.B.'s sister did not testify at the hearing, and where the effect of
      [the complainant’s] testimony regarding uncharged conduct
      concerning an individual not named in the complaint was
      irrelevant and highly prejudicial?

D.B.’s Brief at 3.

      D.B.’s challenge concerns three separate grounds: whether the

complainant’s testimony violated the confrontation clause for want of notice;

whether the complainant’s testimony was relevant; and whether the

complainant’s testimony was unfairly prejudicial. Preliminarily, we observe

that D.B. did not properly preserve the first of these contentions.        As the

juvenile court noted:

      A review of the transcript of the October 19, 2017 Adjudicatory
      Hearing would reveal that [D.B.’s] counsel objected solely on the


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      grounds of relevance. The court overruled defense counsel's
      objections and permitted introduction of the testimony. There is
      nothing in the record to indicate and or to suggest that [D.B.’s]
      counsel objected on the grounds that the Commonwealth failed to
      provide reasonable notice. Accordingly, this court believes that
      [D.B.’s] counsel has was waived his right to object on the grounds
      that the Commonwealth failed to provide reasonable notice.

Juvenile Court Opinion at 8 (emphasis omitted).

      We agree. Issues not raised in the lower court are waived and cannot

be raised for the first time on appeal. Pa.R.A.P. 302(a). Thus any arguments

that the lack of notice violated D.B.’s right to confrontation are waived.

Nevertheless, we note that D.B.’s sister did not need to testify to corroborate

the complainant’s testimony, because the complainant personally witnessed

the events about which she testified. “A witness may testify to a matter only

if evidence is introduced to support a finding that the witness has personal

knowledge of the matter. Evidence to prove personal knowledge may consist

of the witness’s own testimony.” Pa.R.E. 602.          “Personal or firsthand

knowledge is a universal requirement of the law of evidence.” Comment to

Pa.R.E. 602 (citation omitted).

      We turn to the crux of the appeal, whether the admission of the

testimony was irrelevant or unfairly prejudicial. We begin with our standard

of review.   Admissibility of evidence is within the sound discretion of the

juvenile court and we will not disturb an evidentiary ruling absent an abuse of

that discretion. Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014)

(citing Commonwealth v. Flor, 998 A.2d 606, 623 (Pa. 2010)). An abuse

of discretion may not be found merely because an appellate court might have


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reached   a   different    conclusion,   but   requires   a   result   of   manifest

unreasonableness, partiality, prejudice, bias, or ill-will, or such lack of support

so as to be clearly erroneous. Commonwealth v. Hairston, 84 A.3d 657,

664-665 (Pa. 2014).

      It is hornbook law that evidence is relevant and admissible when it tends

to establish a material fact, tends to make a material fact more or less

probable, or supports a reasonable inference or presumption regarding a

material fact. See Commonwealth v. Kinard, 95 A.3d 279, 284 (Pa. Super.

2014); see also Pa.R.E. 401; and see Pa.R.E. 402. Nevertheless, even when

the evidence is relevant, the court may exclude evidence if it is unfairly

prejudicial. See Commonwealth v. Boczlowski, 846 A.2d 75, 88 (2004)

(citations omitted); Pa.R.E. 403. Likewise, evidence of prior wrongs or bad

acts is not admissible to show a defendant’s bad character or his propensity

to commit a crime. See Kinard, 95 A.3d at 284; see also Pa.R.E. 404(a)(1).

      There are limited exceptions to the admission at trial of evidence of

other crimes or prior bad acts. Commonwealth v. Adams-Smith, 209 A.3d

1011, 1020 (Pa. Super. May 7, 2019).            Such evidence is relevant and

admissible when offered for legitimate purposes, such as to prove a common

scheme, plan, or design. See Pa.R.E. 404(b)(2). Our Supreme Court has also

recognized the res gestae exception, permitting the admission of evidence of

other crimes or bad acts to tell “the complete story.” Hairston, 84 A.2d at

665 (citations omitted).




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      Evidence is admissible under the res gestae exception where it “was part

of the chain or sequence of events which became part of the history of the

case and formed a part of the natural development of the facts.”

Commonwealth v. Robinson, 864 A.2d 460, 496 (Pa. 2004). Res gestae

evidence is of particular import and significances in trials involving sexual

assault. Adams-Smith, 209 A.3d at 1020 (citation omitted). “By their very

nature, sexual assault cases have a pronounced dearth of independent

eyewitnesses, and there is rarely any accompanying physical evidence. In

these cases the credibility of the complaining witness is always an issue.”

Id., at 1021 (emphasis in original) (citation omitted). When evidence of other

crimes or bad acts may be admitted for a permitted purpose, i.e. res gestae,

the evidence is still only admissible if the probative value of the evidence

outweighs its potential for unfair prejudice. See Pa.R.E. 404(b)(2).

      Instantly, the evidence at issue is the complainant’s testimony that D.B.

attempted to assault her, and that when the complainant resisted, D.B.

perpetrated against his sister. The only crime for which D.B. was adjudicated

delinquent was the attempted indecent assault against the complainant.

Consequently, D.B. contends that evidence of his other acts toward his sister

were not only irrelevant, but inherently prejudicial.

      We disagree. The complainant's testimony about her encounter with

D.B., and D.B.’s ensuing encounters with his sister, is demonstrative of both

an opportunity and a common plan. But more than anything, this testimony

is textbook res gestae evidence and necessary to understand the “complete

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story.” The complainant testified that D.B. successfully did to his sister “what

he was trying to do to me.”         The encounters occurred over a series of

successive nights. They were strikingly similar in circumstance and character,

in place and time. D.B. eventually committed a certain kind of act against his

sister, which was nearly identical in manner, place, and time as the type of

act he attempted to commit against the complainant. Thus, the testimony of

the committed act is probative of whether the attempted act occurred.

      Of course, the evidence is also prejudicial to D.B.’s case, but the

question is whether the evidence’s probative value is substantially outweighed

the   potential    for   unfair     prejudice.      In   a    Comment         to Rule

403, unfair prejudice is defined as “a tendency to suggest decision on an

improper basis or to divert the jury's attention away from its duty of weighing

the evidence impartially.” Regarding the allowance of res gestae evidence in

sexual assault cases, we have ruled:

         The trial court is not required to sanitize the trial to eliminate
         all unpleasant facts from consideration where those facts
         are relevant to the issues at hand and form part of the
         history and natural development of the events and offenses
         for which the defendant is charged.

Adams-Smith, 209 A.3d at 1020 (citation omitted).

      The complainant’s eye-witness testimony that D.B. perpetuated against

his sister after he attempted to perpetrate against her merely forms the

natural development of events that lead to D.B.’s charges.              We cannot




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conclude that it was unfairly prejudicial. The evidence was properly admitted

at the hearing.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/22/19




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