J-S43001-17

                                  2017 PA Super 353



COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN DAVID WOEBER

                            Appellant                    No. 721 WDA 2016


             Appeal from the Judgment of Sentence April 15, 2016
              In the Court of Common Pleas of Allegheny County
                 Criminal Division at No: CP-02-009746-2015




COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JOHN DAVID WOEBER

                            Appellant                   No. 1289 WDA 2016


                      Appeal from the Order July 22, 2016
               In the Court of Common Pleas of Allegheny County
                  Criminal Division at No: CP-02-0009746-2015


BEFORE: STABILE, J., SOLANO, J., and FITZGERALD, J.*

OPINION BY STABILE, J.:                               FILED NOVEMBER 9, 2017


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
J-S43001-17


       Appellant, John David Woeber, appeals from the judgment of

sentence imposed on April 15, 2016, in the Court of Common Pleas of

Allegheny County following his convictions of rape, sexual assault, and

related crimes,1 all stemming from events involving A.R. when she was

between 12 and 14 years old. Appellant also appeals from the order entered

on July 22, 2016, adjudicating him a sexually violent predator (“SVP”). By

order entered on December 16, 2016, we consolidated the appeals.2       For



____________________________________________


1
  Appellant’s convictions included one count each of rape, unlawful contact
with a minor, indecent assault—person less than 13 years of age, indecent
exposure, unlawful contact with a minor, indecent assault—person less than
16 years of age, corruption of minors, and endangering the welfare of
children.   18 Pa.C.S.A. §§ 3121(c), 6318(a)(1), 3126(a)(7), 3127(a),
6318(a)(1), 3126(a)(8), 6301(a), and 4304(a)(1), respectively.
2
  As noted, Appellant filed two separate appeals. His appeal from the April
15, 2016 judgment of sentence was filed prior to this Court’s decision in
Commonwealth v. Schrader, 141 A.3d 558 (Pa. Super. 2016).                 In
Schrader, we held that when a defendant waives a pre-sentence SVP
determination, his judgment of sentence is not final until the SVP
determination is rendered. Id. at 561. Here, Appellant waived his right to a
pre-sentence SVP hearing. See Notes of Testimony (“N.T.”), SVP Hearing,
7/22/16, at 4. He then filed a separate notice of appeal from the SVP order.
Since Appellant filed appeals to preserve the issues raised with respect to
both orders, we find we have jurisdiction to consider these appeals, even
though post-Schrader, only a single notice of appeal would have been
necessary once the SVP determination was made thereby making the
judgment of sentence final as of that time. By order entered December 16,
2016, we granted Appellant’s motion to consolidate the appeals pursuant to
Pa.R.A.P. 513.




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the reasons stated herein, we vacate the judgment of sentence and remand

for further proceedings.

       Appellant asks us to consider four issues, which we have reordered for

ease of discussion:

       I.     Whether the [t]rial [c]ourt erred by excluding highly
              exculpatory and contradictory testimony from the accuser
              in this case, where the case turned on the accuser’s
              credibility and where the exclusion of such testimony ran
              afoul of [Appellant’s] right to confront and cross-examine
              witnesses against him.[3]

       II.    Whether the [t]rial [c]ourt erred in concluding that
              [Appellant] qualified as a sexually violent predator where
              the court relied upon contradictory evidence in finding that
              [Appellant] suffered from a specific mental abnormality.

       III.   Whether the prosecutor’s improper vouching for the
              accuser in this case so prejudiced [Appellant] that the jury
              was unable to render a fair and impartial verdict in this
              case.

       IV.    Whether the [t]rial [c]ourt abused its discretion by denying
              [Appellant’s] request for a new trial, or, in the alternative,
              in ruling on the request without an evidentiary hearing.

Appellant’s Brief at 4.

       In his first issue, Appellant presents a challenge to the trial court’s

ruling on admissibility of evidence.           As our Supreme Court has explained,

“[t]he admissibility of evidence is a matter solely within the discretion of the
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3
   The Commonwealth contends Appellant has waived two of the three
subparts of his issue. See Commonwealth Brief at 13. We disagree, finding
that the specific claims in Appellant’s brief are subsidiary to the error alleged
in Appellant’s Rule 1925(a) statement relating to attempts to cross-examine
A.R. about her alleged statement to La. See Pa.R.A.P. 1925(b)(4)(v).



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trial court. This Court will reverse an evidentiary ruling only where a clear

abuse of discretion occurs.” Commonwealth v. Johnson, 638 A.2d 940,

942 (Pa. 1994) (citation omitted)). “Generally, an appellate court’s standard

of review of a trial court’s evidentiary rulings is whether the trial court

abused its discretion; however, where the evidentiary ruling turns on a

question of law our review is plenary.” Buckman v. Verazin, 54 A.3d 956,

960 (Pa. Super. 2012) (citations omitted).

       In order to examine the propriety of the trial court’s evidentiary ruling,

we must consider the factual background of this case. Having reviewed the

record, we find the trial court fairly summarized the trial testimony as

follows:

              At trial, the victim in this case, fifteen year old [A.R.]
       testified that in 2013, while she was twelve years old, she was
       friends with [La. and Li.] Woeber, two daughters of Appellant,
       John Woeber.[4] [A.R.] testified that she went to [Li.’s] birthday
       party in the spring of 2013. She testified that Appellant had
       sexual intercourse with her against her will at the party. She
       stated that she was invited over for salmon ([Li.’s] favorite
       meal) and cake. After dinner, others present were drinking
       alcohol but [A.R.] was not until [Li.] gave [A.R.] a drink that
       [A.R.] did not know contained alcohol. Shortly after drinking the
       one cup that [Li.] gave [A.R.], [A.R.] was accosted in Appellant’s
       residence by a group of boys. The boys tried to pull her clothes
       off. Appellant interceded and stopped the boys from doing
       anything further to [A.R.]. The boys left the apartment, along
       with [La. and Li.], leaving Appellant and [A.R.] alone in
       Appellant’s apartment. [A.R.] fell asleep on the couch, and was
____________________________________________


4
  La. was in A.R.’s grade in school. Li. was two grades ahead of them. The
birthday party was for Li.’s 14th birthday, which was March 17, 2013.




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       awoken by Appellant, who told her to go to his bedroom to
       process what had happened to her. She was able to walk to his
       bedroom but “felt like everything was a little bit blurry.” Once
       she reached Appellant’s bedroom, Appellant got on top of her
       and tried to take her clothes off. [A.R.] stated that she told him
       no and he left for a minute or two into the bathroom. When
       Appellant came back into the room, wearing only boxers, he got
       on top [of] her again, removed her shorts and underwear and
       his boxers, and had sexual intercourse with her. [A.R.] stated
       that she does not remember what happened after that, until she
       awoke the next morning on Appellant’s bed wearing only her
       tank top.

             [A.R.] further testified to a prior incident in the Woeber
       home. She stated that she was hanging out with [La. and Li.] at
       their house. In the middle of the night, Appellant came into the
       bathroom while [A.R.] was washing her hands. She testified
       that he pushed her up against the vanity, touched her breasts
       and groped her. She did not tell anyone about this incident
       because she felt scared and in disbelief.

             After the second incident, Appellant, [La. and Li.] moved
       back to Alaska for approximately six months.[5] Upon their
       return, [A.R.] resumed her friendship with [La. and Li.] and
       again frequented the Woeber residence. [A.R.] testified that she
       attended a party there when she was thirteen years old. [A.R.]
       stated that Appellant supplied her and other underage attendees
       with alcohol and had sexual intercourse with her on the couch
       that night. He undressed her and penetrated her vagina with his
       penis. She didn’t tell anyone what happened because she didn’t
       want to answer questions about why she returned to the Woeber
       household. She testified that she had returned to the home
       because she was told Appellant would not be in the home and
       she wanted to remain friends with [Li. and La.]. After the third
       incident, [A.R.] experienced panic attacks and struggled
       academically. [A.R.] disclosed the abuse to her school guidance
       counselor in the spring of 2015.

____________________________________________


5
  Appellant and Li. testified that the move to Alaska took place in June 2013,
at the end of the school year. The family moved back to Pittsburgh in the
fall of 2013, around Thanksgiving. N.T. Trial, 1/14/16, at 152, 156, 181-82.



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J-S43001-17


           [Li. and La.] both testified on behalf of their father. [Li.]
     denied any underage drinking and said she never saw or heard
     any inappropriate sexual contact between Appellant and [A.R.].
     [La.] also denied underage drinking at [Li.’s] party. She testified
     that nothing unusual happened that night. She further testified
     that the second party testified to by [A.R.], where [A.R.] said
     Appellant raped her a second time, simply never happened.

           Lastly,   Appellant   denied     ever  touching    [A.R.]
     inappropriately. He also denied ever having permitted boys into
     his home or providing alcohol to minors.

Rule 1925(a) Opinion, 11/15/16, at 4-5 (references to Notes of Testimony

omitted).

     The alleged prior inconsistent and exculpatory statement attributed to

A.R. is her statement to La. that “two other boys” raped her at Li’s birthday

party. N.T. Trial, 1/13/16, at 78.    On direct examination, the prosecutor

asked A.R. if she ever spoke with La. or Li. about the parties.    Id. at 52.

A.R. responded, “Yeah. They had said that they didn’t remember any party

happening.” Id.

     On cross-examination, the following exchange took place between

Appellant’s counsel and A.R.:

     Q. So you were asking [La.] about, you say, the party that
     happened at their house, and she said, “What party?” Right?

     A. Yeah. She denied it.

     Q. You didn’t tell her that something happened at that party
     where her father had raped you, did you?

     A. No.

     Q. Did you tell her, in fact, that other boys had raped you at
     that party?

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       A. No.

       Q. You don’t remember saying that to her?

Id. at 77. At that point, the prosecutor objected, claiming rape shield. 6 A

sidebar discussion followed, during which Appellant’s counsel explained his

intention to call La. to testify that—following the Woeber family’s return from

Alaska—“[A.R.] had said to her, you know, ‘Something happened at this

party at your house,’ and that she said, ‘I was raped by two other boys.’”

Id. at 78. Appellant’s counsel contended that A.R. was accusing someone

else of committing the rape that she accused Appellant of committing on the


____________________________________________


6
  The Rape Shield Law, 18 Pa.C.S.A. § 3104 (Evidence of victim’s sexual
conduct), provides:

       (a) General rule.--Evidence of specific instances of the alleged
       victim’s past sexual conduct, opinion evidence of the alleged
       victim’s past sexual conduct, and reputation evidence of the
       alleged victim’s past sexual conduct shall not be admissible in
       prosecutions under this chapter except evidence of the alleged
       victim’s past sexual conduct with the defendant where consent of
       the alleged victim is at issue and such evidence is otherwise
       admissible pursuant to the rules of evidence.

       (b) Evidentiary proceedings.--A defendant who proposes to
       offer evidence of the alleged victim’s past sexual conduct
       pursuant to subsection (a) shall file a written motion and offer of
       proof at the time of trial. If, at the time of trial, the court
       determines that the motion and offer of proof are sufficient on
       their faces, the court shall order an in camera hearing and shall
       make findings on the record as to the relevance and admissibility
       of the proposed evidence pursuant to the standards set forth in
       subsection (a).



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J-S43001-17


night of Li.’s party.         He also argued that rape shield was inapplicable

because it was not A.R.’s sexual conduct at issue but, rather, a prior sexual

assault. Id. at 78-79.

        The trial court announced a recess and continued the discussion with

counsel in open court.          The trial court advised Appellant’s counsel that

advance notice of the issue would have been appreciated so that the trial

court could      have     conducted an in camera         hearing   as required by

Commonwealth v. Black, 487 A.2d 396 (Pa. Super. 1985). See also 18

Pa.C.S.A. § 3104(b).          Appellant’s counsel responded that his review of the

law indicated that he was not presenting a rape shield issue but an issue of

credibility.    The trial court responded that the question was “close to the

line” and that counsel should have made a proffer that would have led the

court    to    hold   a   §   3104(b)   evidentiary   hearing.     The   court   cited

Commonwealth v. Fink, 791 A.2d 1235 (Pa. Super. 2002), for the

proposition that prior sexual conduct involving a prior sexual assault does

not trigger the Rape Shield Law and that the evidence is to be evaluated

under general evidence admissibility criteria.         N.T. Trial, 1/13/16, at 86.

However, the court again noted that counsel should have made a proffer to

the court so the court could determine whether rape shield applies. Id.

        The prosecution argued the defense was engaged in a veiled attempt

to pierce the Rape Shield Law. Id. at 87. The court announced its intention

to sustain the objection, strike the question from the record, and leave it up


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J-S43001-17


to the defense to question La. in its case-in-chief.    The prosecution could

then call A.R. on rebuttal to affirm or deny the allegation. Id. at 91.

      At that point, for reasons unrelated to the case, the trial court

dismissed the jurors for the day. When the trial court met with counsel the

following morning, further discussion ensued regarding rape shield. The trial

court noted that, based on the understanding that the statement concerning

the rape by two boys referred to events on the same night A.R. claimed

Appellant assaulted her, “it is highly probative with regard to credibility and

not excluded by rape shield.” Id. at 97.

      The prosecution complained that there were no interviews with A.R.

addressing her alleged conversation with La.       Id. at 98.   The trial court

reiterated that a § 3104(b) motion in limine should have been filed so that

the issue could have been resolved following an in camera hearing. Id. at

98-99.   Ultimately, the trial court determined that the objection would be

sustained, cross-examination of A.R. would continue, and the issue would be

addressed again if it came up during the defense case. Id. at 102.

      In the defense case, Li. testified first.   She explained that the only

people with her at her birthday party were her father, her sister La., and

A.R. She indicated that her father was “really strict back then” and “would

never let us have boys over.” Id. at 142. She also stated that no one was

drinking and that when A.R. left the following day, she did not say anything

about anything unusual happening the night before. Id. at 142-43. Li. later


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repeated those responses. Id. at 151-52. She also testified that she never

heard anything about A.R. being raped at either of her family’s apartments

or about A.R. being sexually assaulted in the bathroom of their old

apartment. Id. at 153-54.

       La. testified next.     She explained that she and A.R. were very close

and recalled that A.R. spent the night after Li.’s birthday party in 2013. Id.

at 162-63.     She said “nothing unusual happened so nothing stuck out to

really remember” about that night.             Id. at 163.   She testified that there

were no boys or alcohol in the apartment and that A.R. never mentioned

that anything happened that night. Id. at 164-65. She explained that after

she returned from Alaska, she and A.R. maintained their friendship for

another three or four months before it “faded.” Id. at 165. La. also testified

that when A.R. mentioned a party at La.’s house, La. responded that “there

was no party.” Id. La. could not recall A.R. being at her apartment after

the Woebers returned from Alaska. Id. at 166.

       Following deliberations, the jury returned a verdict of guilty on the

charges listed above.7       The trial court sentenced Appellant to 180 to 400

months in prison for rape, with consecutive probation of five years for


____________________________________________


7
   See n. 1. Appellant was acquitted of two counts of selling or furnishing
liquor to minors, statutory sexual assault, and one count of indecent
exposure.




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J-S43001-17


unlawful contact with a minor. The court did not impose any further penalty

on the remaining convictions.

      Appellant argues that the exclusion of A.R.’s purported statement—

accusing other boys of raping her on the night of Li.’s party—constitutes the

exclusion of exculpatory and inconsistent testimony by his accuser, violating

his confrontation rights.   As stated above, while we generally employ an

abuse of discretion standard to admissibility issues, our review is plenary

where, as here, the evidentiary ruling turns on a question of law.

Buckman, 54 A.3d at 960.

      Our Supreme Court has recognized that “[t]he Sixth Amendment

guarantees criminal defendants the right to confront and cross-examine

adverse   witnesses”   in   order   “to   ensure   a   fair   and   reliable   trial.”

Commonwealth v. Laird, 988 A.2d 618, 630 (Pa. 2010); U.S. Const.

amend. VI (additional citations omitted).          “Cross-examination may be

employed to test a witness’ story, to impeach credibility, and to establish a

witness’s motive for testifying.” Commonwealth v. Ballard, 80 A.3d 380,

394 (Pa. 2013) (quoting Commonwealth v. Chmiel, 889 A.2d 501, 527

(Pa. 2005) (citation omitted)).     “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) (quotations and


                                     - 11 -
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citations omitted). “It is certainly within the scope of cross-examination to

ask the witness if she ever made a statement inconsistent with her

testimony in court.” Chmiel, 889 A.2d at 542 (citing Pa.R.E. 613).8

       Again, this Court has recognized that “[i]f the prior sexual conduct was

a prior sexual assault, then the Rape Shield Law does not apply and the

evidence is evaluated under the general evidentiary rules.” Fink, 791 A.2d

at 1242 (citing Johnson, 638 A.2d 940 (Pa. 1994)9).            In Johnson, our

Supreme Court reiterated that “[e]vidence is relevant when the inference

sought to be raised by the evidence bears upon a matter in issue in the case

and, second, whether the evidence renders the desired inference more

probable than it would be without the evidence.”            Id. at 942 (internal

quotation and citation omitted).         Therefore, because rape shield does not

apply to a prior sexual assault on A.R., the question here becomes whether

A.R.’s response on cross-examination—had the objection been overruled—

coupled with La.’s anticipated testimony about A.R.’s statement in the

____________________________________________


8
  The Commonwealth contends the trial court’s ruling was based on the lack
of foundation for A.R.’s statement, claiming A.R. testified that she never
disclosed the March 2013 sexual assault before revealing it to her guidance
counselor in 2015. Commonwealth Brief at 19. In fact, A.R. testified that
the guidance counselor was the first person she told “in detail.” N.T. Trial,
1/13/16, at 73.
9
  Our Supreme Court explained that “[t]o be a victim is not ‘conduct’ of the
person victimized. It would be illogical to conclude that the Rape Shield Law
intended to prohibit this type of testimony.” Johnson, 638 A.2d at 942.



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defense case, would be relevant to a material fact in issue and probative of

A.R.’s credibility. See also Commonwealth v. Schley, 136 A.3d 511, 518

(Pa. Super. 2016) (under Johnson’s “relevant and material” test, proffered

evidence was probative of an element of the crime and relevant to the

accuser’s credibility).   We conclude that the testimony is relevant to a

material fact in issue in this case, i.e., the issue of whether someone other

than Appellant raped A.R. on the night of Li.’s party, and is relevant to the

issue of A.R.’s credibility. Further, that evidence would support an inference

that someone other than Appellant raped A.R., and would clearly make that

inference more probable than it would be without the evidence.            See

Johnson, 638 A.2d at 942. As Appellant argues,

      Here, the proffered evidence goes directly to the heart of the
      Commonwealth’s case insofar as [A.R.’s] statement made it
      much less likely that [Appellant] was the one who assaulted her
      on the night of the party. Specifically, it suggested that “two
      other boys” raped her at the party—and in turn supports the
      strong inference that [Appellant] was not the person who raped
      her. Moreover, by presenting a potentially inconsistent prior
      statement, the proffered evidence also undermined [A.R.’s]
      credibility.

Appellant’s Brief at 23 (citations omitted).

      While we agree with the trial court’s conclusion that the alleged sexual

assault by “two other boys” did not trigger the Rape Shield Law, we find the

court committed an error of law by sustaining the Commonwealth’s objection

during cross-examination of A.R., and erred by failing to evaluate the

evidence concerning A.R.’s statement under traditional evidentiary rules.


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Had it done so, the court would have had the opportunity to consider

whether the evidence made it less likely that Appellant assaulted A.R.     As a

result of the court’s error, there is nothing in the record to suggest that A.R.

told La. that two boys raped her at Li.’s party, other than the sidebar

statement made by Appellant’s counsel. Further, there is nothing of record

to suggest that La. would testify that A.R. claimed two boys raped her.

      We find the trial court erred by sustaining the Commonwealth’s

objection.   In doing so, the trial court violated Appellant’s confrontation

rights because it barred the cross-examination of A.R. about a prior

statement implicating assailants other than Appellant.      In addition, it put

Appellant’s counsel in the position of trying to raise the issue in the defense

case-in-chief without a foundation for doing so and in the face of inevitable

hearsay objections.    Therefore, we are compelled to vacate Appellant’s

judgment of sentence and remand for a hearing.

      As for the proceedings on remand, we find guidance in this Court’s

decision in Commonwealth v. Eck, 605 A.2d 1248 (Pa Super. 1992), a

case in which the appellant claimed his confrontation rights were violated by

the court’s decision to withhold materials relating to his accuser. Because

the trial court had not placed on the record any findings or conclusions

relating to its in camera review of the records, we directed on remand that

the trial court conduct in camera proceedings after which the trial court

could grant a new trial or reinstate the judgment of sentence. Id. at 1256.


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Our   Supreme    Court   adopted   this   procedure   in   Commonwealth        v.

Ruggiano, 26 A.3d 473 (Pa. 2011) (per curiam) (citing Eck).                   In

Ruggiano, as in the case before us, the victim’s past sexual conduct was

not at issue. Therefore, the Rape Shield Law does not apply and the trial

court must determine whether the evidence sought to be admitted as to A.R.

is admissible under the traditional rules of evidence. Id. (citing Johnson,

638 A.2d at 942).

      Accordingly, we direct the trial court on remand to conduct in camera

proceedings for the limited purpose of determining whether A.R. would deny

telling La. that two boys raped her at Li.’s party and whether La. would

testify that A.R. made such a statement. In the event the trial court finds

A.R. and/or La. would offer such testimony, the court should then consider

whether that testimony is admissible under traditional evidentiary rules. If

the testimony is admissible, the trial court shall grant a new trial and permit

cross-examination of A.R. concerning the purported statement.             If A.R.

denies making the statement and La. denies that A.R. claimed she was

raped by other assailants, or if the trial court determines their testimony is

inadmissible, the trial court shall reinstate the judgment of sentence.

      If the trial court grants a new trial, Appellant’s remaining issues

become moot.     However, recognizing that the trial court could potentially

reinstate the judgment of sentence, we shall address those issues.




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     In      his   second   issue,   Appellant   challenges   the   trial   court’s

determination that he is an SVP.        In Commonwealth v. Schrader, 141

A.3d 558 (Pa. Super. 2016), this court explained:

     It is well-settled that an SVP order is a non-punitive collateral
     consequence of the criminal sentence.       Commonwealth v.
     Harris, 972 A.2d 1196, 1201 (Pa. Super. 2009). . . . “[T]he
     imposition of SVP status is a component of the judgment of
     sentence even though the ultimate collateral consequences are
     non-punitive.” Harris, supra, at 1201 (emphasis added).

Id. at 561-62. By vacating Appellant’s judgment of sentence, we also have

vacated the July 22, 2016 SVP order that constituted a component of that

judgment of sentence. In light of the possibility the trial court on remand

could reinstate the judgment of sentence, we consider Appellant’s challenge

to his SVP designation.

     As a challenge to the sufficiency of evidence supporting an SVP

designation, Appellant presents a question of law; “thus, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Meals, 912 A.2d 213, 218 (Pa. 2006) (internal quotation and citation

omitted)).     “In conducting [a] sufficiency review, we must consider the

evidence in the light most favorable to the Commonwealth, which prevailed

upon the issue at trial.” Id. (citation omitted). The task of this Court “is

one of review, and not of weighing and assessing evidence in the first

instance.” Id. at 223.

     In Meals, our Supreme Court recognized that the Commonwealth

must prove SVP status to the trial court by clear and convincing evidence;

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that the defense has the opportunity to challenge the Commonwealth’s

evidence and to present its own evidence; and that the trial court may reject

the Commonwealth’s evidence.       Id. at 224.    The “clear and convincing”

standard falls between the criminal “beyond a reasonable doubt” standard

and the civil “preponderance of the evidence” standard.      Id. at 219.    The

“clear and convincing” standard is typically defined as follows:    “The clear

and convincing standard requires evidence that is ‘so clear, direct, weighty,

and convincing as to enable the [trier of fact] to come to a clear conviction,

without hesitancy, of the truth of the precise facts [in] issue.’” Id. (quoting

Commonwealth v. Maldonado, 838 A.2d 710, 715 (Pa. 2003) (citations

omitted)).

      Appellant complains that the trial court erred by relying solely upon

A.R.’s age at the time of the first two incidents in rendering its SVP

determination.   He complains that “this reliance ignored the ambiguous

testimony offered by [the Commonwealth’s expert] at the SVP hearing with

respect to what facts are necessary for a diagnosis of pedophilia,” and falls

short of the clear and convincing standard.      Appellant’s Brief at 35.   He

further contends that despite the fact A.R. was twelve at the time of the first

two incidents, there is no evidence to support a finding that she was

“prepubescent.” Id. at 37. We cannot agree.

      In his statement of errors complained of on appeal, Appellant simply

asserted that, recognizing the threshold is “clear and convincing” evidence,


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“the evidence presented was insufficient to meet the requisite burden to

classify [Appellant] as an SVP.” Concise Statement, 9/12/16, at ¶¶ 7-9. As

the trial court noted, Appellant “did not clarify whether the sufficiency

challenge related to the Paraphilia diagnosis or the predatory conduct

finding.   It matters not, since both elements were supported by clear and

convincing evidence.”       Trial Court Rule 1925(a) Opinion, 11/15/16, at 10.

As the court explained, a SOAB member testified as an expert for the

Commonwealth.

       [The expert’s] uncontroverted expert opinion was that Appellant
       suffered from Paraphilic Disorder, based on the victim being
       under the age of twelve when the abuse occurred.[10] [The
       expert] specifically testified that the diagnosis and the risk to
       reoffend remains even after the victim ages beyond thirteen
       years old. [The expert] testified that his opinion was given to a
       reasonable degree of medical certainty. Appellant offered no
       evidence to refute this evidence, which this [c]ourt found
       credible.

       Furthermore, the record reflects that Appellant established a
       predatory relationship with the victim for the purpose of sexual
       victimization. Of particular note is [Appellant’s] behavior at the
       party where, after providing the victim alcohol, he interrupted
       boys who were harassing her, thereby creating an element of
       trust, and then took her into his bedroom where she was
       isolated and available to him for his own sexual purposes.
       Evidence also established that he reached out to her following
       his return to Alaska to reestablish a relationship that was
____________________________________________


10
   The trial court’s reference to A.R. being “under the age of twelve” appears
to be nothing more than oversight. It is undisputed in the record that she
was twelve when the first two incidents occurred in the spring of 2013 and
the expert did not suggest otherwise. Although Appellant attempts to make
an issue out of the oversight, Appellant acknowledges A.R. was twelve in the
spring of 2013. Appellant’s Brief at 37.



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        flirtatious in nature.     These facts support [the expert’s]
        testimony and this [c]ourt’s conclusion beyond a clear and
        convincing standard, and this [c]ourt did not err in determining
        Appellant to be a sexually violent predator.

Id. at 10. Again, it is not this Court’s role to reweigh the evidence. Meals,

912 A.2d at 223.       Just as in Meals, the SVP determination here was not

based entirely on the age of the victim; the expert’s opinion that Appellant

“was a pedophile—itself was evidence.”             Id. (emphasis in original).

Further, to the extent Appellant believed the expert’s diagnosis “was not

fully explained, did not square with accepted analyses of the disorder of was

simply erroneous, he certainly was free to introduce evidence to that effect

and/or argue to the factfinder that the Commonwealth’s expert’s conclusions

should be discounted or ignored.” Id. at 223-24.11 Here, Appellant did not

do so and it is clear that the expert’s opinions were supported not only by

A.R.’s age but also by findings based on his review of statutory criteria for a

sexually violent predator as well as factors for determining existence of a

mental abnormality or personality disorder. N.T., SVP Hearing, 7/22/16, at

7-17.

____________________________________________


11
   For instance, Appellant challenged the expert’s characterization of A.R. as
“prepubescent,” which the expert explained was defined as “generally age
13 years or younger,” according to the current Diagnostic and Statistical
Manual of Mental Disorders (“DSM-5”). While that age range is accepted in
the profession “for the purpose of psychiatric nomenclature,” and the expert
did not base her prepubescence on anything other than age, Appellant did
not offer any evidence to support a contradictory finding.           Notes of
Testimony, SVP Hearing, 7/22/16, at 22-23.



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      We find the trial court’s SVP determination is supported by clear and

convincing evidence.     Therefore, in the event the trial court reinstates

Appellant’s judgment of sentence on remand, the trial court shall reinstate

the SVP finding as a component of Appellant’s judgment of sentence.

      In his third issue, Appellant complains that the prosecutor improperly

vouched for A.R. and, in doing so, prejudiced Appellant so that the jury was

unable to render a fair and impartial verdict.         Specifically, Appellant

complains that the prosecutor “offered his personal opinion that [A.R.] was

telling the truth on no fewer than five occasions during the Commonwealth’s

closing argument.”     Appellant’s Brief at 29.   As Appellant acknowledges,

comments made by a prosecutor in closing “cannot be viewed in isolation

but, rather, must be considered in the context in which they were made.”

Appellant’s Brief at 2 (quoting Commonwealth v. Judy, 978 A.2d 1015,

1019 (Pa. Super. 2009) (additional citation omitted)).        We review the

prosecutor’s statements under a harmless error standard, which requires

this Court “to evaluate whether a defendant received a fair trial, not a

perfect trial.” Judy, 978 A.2d at 1019-20 (additional citation omitted).

      In the prosecutor’s closing, he discussed A.R.’s testimony and her

motivation. He commented three times to the effect that her testimony was

the truth and then stated, “She was honest from the first word out of her

mouth on that stand.” N.T., Trial, 1/14/16, at 205-06. Appellant’s counsel

objected, claiming the prosecution was expressing an opinion about the


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testimony. The prosecutor countered that Appellant’s counsel had done the

same thing with A.R.’s testimony and that he was simply responding. Id. at

207.12    The trial court instructed the jurors that the attorneys’ personal

opinions about the credibility of any witness are “not relevant and [are] not

to be considered.” Id.

       When instructing the jury, the trial court reiterated that arguments of

counsel are not evidence and should not be considered as such; that

counsel’s personal beliefs are irrelevant and immaterial; and that it is up to

each juror to decide the case based on the evidence presented and the

court’s instructions. Id. at 217-18. As the trial court suggested, “Much like

any other objection which is sustained, once the jury is instructed not to

consider a matter, it is presumed that the jury can and will follow the

[c]ourt’s instruction.” Trial Court Rule 1925(a) Opinion, 11/15/16, at 8. We

agree. Moreover, as the court recognized, no further objection was lodged

and Appellant did not seek a mistrial.

       We find the trial court properly sustained the objection raised by

Appellant’s counsel and delivered an appropriate curative instruction.    We

reject Appellant’s contention that the prosecutor’s remarks prejudiced



____________________________________________


12
   See, e.g., N. T., Trial, 1/14/16, at 201, where Appellant’s counsel
remarked, “But I suggest to you that the statements that she has made, the
story that she has told, it’s just not true. It just didn’t happen.”



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Appellant or deprived him of a fair trial. Appellant’s third issue fails for lack

of merit.

        In his fourth and final issue, Appellant asks us to consider whether the

trial court abused its discretion by denying Appellant’s request for a new trial

based upon after-discovered evidence without providing an explanation for

the denial or without a hearing on the motion.         When we examine a trial

court’s decision to deny a new trial on the basis of after-discovered

evidence, “we ask only if the court committed an abuse of discretion or an

error of law which controlled the outcome of the case.” Commonwealth v.

Padillas, 997 A.2d 356, 361 (Pa. Super. 2010) (quoting Commonwealth v.

Bonaccurso, 625 A.2d 1197, 1199 (Pa. Super. 1993)).

        In his motion for a new trial, Appellant claimed he had obtained newly

discovered and highly exculpatory evidence. Specifically, Appellant argued

that a new trial was warranted in light of, first, a possible recantation by

A.R. and, second, evidence that Appellant was recovering from hip

replacement surgery when the first two alleged incidents occurred in 2013.

Appellant’s Brief at 42. In a one-sentence order entered April 27, 2016, the

trial court denied Appellant’s motion.

        As Appellant acknowledged in his motion, in order to be granted a new

trial   based    upon   after-discovered       evidence,   the   defendant   must

demonstrate, inter alia, that the new information could not have been

discovered prior to the trial through the exercise of reasonable diligence.


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Appellant’s Motion for New Trial, 4/25/16, ¶ 23 (citing Padillas, 997 A.2d at

363 (additional citation omitted)).13

       “To obtain a new trial based on after-discovered evidence, the

petitioner must explain [inter alia] why he could not have produced the

evidence in question at or before trial by the exercise of reasonable

diligence.”     Padillas, 997 A.2d at 363 (citation omitted). “[A] defendant

who fails to question or investigate an obvious, available source of

information, cannot later claim evidence from that source constitutes newly

discovered evidence.” Id. at 364 (citation omitted). Further, “a defendant

has a duty to bring forth any relevant evidence in his behalf.” Id. (citation

omitted).

       In his motion, Appellant suggested that he had identified a witness,

“A.B.,” who supposedly said A.R. admitted fabricating the allegations against

Appellant. However, A.B. was known to Appellant and trial counsel prior to

trial and the investigator hired by trial counsel attempted to contact A.B.

The investigator “left a business card at the home of A.B. and requested

____________________________________________


13
   Padillas quoted the four-pronged test set forth in Commonwealth v.
Pagan, 950 A.2d 270, 292 (Pa. 2008), requiring a defendant to prove the
evidence could not have been obtained prior to the end of the trial by the
exercise of reasonable diligence; the evidence is not merely corroborative or
cumulative; it will not be used solely to impeach the credibility of a witness;
and it would likely result in a different verdict if a new trial were granted.
The test is conjunctive and the defendant must prove each factor by a
preponderance of the evidence in order for a new trial to be warranted. Id.




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A.B.’s mother, contact him to speak about the charges. Neither A.B. nor her

mother ever contacted [the investigator].” Motion for New Trial, 4/25/16, at

¶ 13. After trial, a new investigator hired by Appellant’s post-trial counsel

spoke with another witness, C.M., who told the investigator that she had

spoken with A.B. and that A.B. said the victim, A.R., fabricated the

allegations against Appellant. The investigator then attempted to speak with

A.B. but was denied the opportunity by A.B.’s mother. A.B.’s mother did tell

the investigator that A.B. had “nothing to offer to either side of the case,

and stated that this is why ‘the police’ didn’t need [A.B.] in the case.”

Motion for New Trial, 4/25/16, Exhibit C.

      Although the trial court did not offer an explanation for denying

Appellant’s request for a new trial in its order or in its Rule 1925(a) opinion,

the lack of an opinion does not pose a substantial impediment to our review.

With regard to A.B., Appellant has not demonstrated reasonable diligence in

attempting to obtain evidence from A.B. prior to trial.       Simply leaving a

business card with a “please contact me” request suggests minimal effort in

obtaining evidence. More importantly, based on the information obtained by

the new investigator, there is no suggestion that A.B. would offer evidence

of A.R.’s alleged recantation. To the contrary, A.B.’s mother stated that A.B.




                                     - 24 -
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had nothing to offer either side of the case.         Appellant has not satisfied

either the first or the fourth prongs of the test outlined in Pagan.14   15



       Appellant also claimed that the original investigator obtained medical

records prior to trial reflecting that Appellant underwent hip replacement

surgery on January 28, 2013. However, the investigator did not contact the

surgeon to discuss Appellant’s surgery or any limitations Appellant may have

experienced postoperatively. Again, the later of first two incidents involving

A.R. occurred on or about March 17, 2013 and the earlier of those incidents

occurred a few weeks earlier.            Appellant contends the testimony of his

surgeon, who has now expressed a willingness to participate in future

proceedings, could potentially support a “physical impossibility” defense.

Motion for New Trial, 4/25/16, at ¶¶ 22, 24-26.

       While it is clear that the surgeon did not offer testimony at trial, it is

unclear why Appellant did not even mention the surgery.           Surely, he was
____________________________________________


14
   To the extent Appellant contends he was entitled to a hearing, we
disagree. Pa.R.Crim.P. 720(C) (After-Discovered Evidence) provides: “A
post-sentence motion for a new trial on the ground of after-discovered
evidence must be filed in writing promptly after such discovery.” The rule
does not mandate a hearing.        As our Supreme Court recognized in
Commonwealth v. Castro, 93 A.3d 818, 827 (Pa. 2014), “Simply relying
on conclusory accusations made by another, without more, is insufficient to
warrant a hearing.” The same rationale applies here where Appellant sought
a new trial based on undeveloped allegations of what an individual might
say.
15
   If a new trial is ordered, the Appellant would be free to offer this "newly-
discovered” evidence at trial, so long as the trial court determines it to be
relevant and admissible.



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aware of the procedure and the timeline surrounding A.R.’s 2013 allegations.

He certainly was competent to describe the surgery, his recovery, and any

limitations resulting from the surgery. Expert testimony was not required in

order to put the fact of the surgery or Appellant’s postoperative experiences

before the jury. Therefore, Appellant cannot claim entitlement to a new trial

based on newly discovered evidence when neither the fact of the surgery nor

Appellant’s postoperative recovery constituted new information. Appellant’s

fourth issue fails.16

       Judgment      of   sentence     vacated.    Case   remanded   for   further

proceedings in accordance with this Opinion. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/9/2017



____________________________________________


16
   To the extent Appellant asks us to consider allegations of ineffectiveness
of trial counsel at this juncture, we decline to do so without prejudice to
Appellant to raise them in proceedings pursuant to the Post Conviction Relief
Act, 42 Pa.C.S.A. §§ 9541-9546, if appropriate. See Commonwealth v.
Grant, 813 A.2d 726, 738 (Pa. 2002) (“as a general rule, a petitioner should
wait to raise claims of ineffective assistance of trial counsel until collateral
review.”).




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