J-S20023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                  IN THE SUPERIOR COURT OF
                                                    PENNSYLVANIA
                          Appellee

                     v.

DONALD CROOKS

                          Appellant               No. 1128 WDA 2015


           Appeal from the Judgment of Sentence June 26, 2015
                In the Court of Common Pleas of Erie County
            Criminal Division at No(s): CP-25-CR-0002139-2014


BEFORE: PANELLA, OLSON and PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                           FILED APRIL 11, 2016

     Appellant, Donald Crooks, appeals from the judgment of sentence

entered on June 26, 2015, as made final by the denial of post-sentence

motions on July 8, 2015. We affirm.

     The trial court summarized the facts and procedural history in this

matter as follows:

     The charges against Appellant arose from a series of incidents in
     which he sexually assaulted his daughter, K.L.C., [], from the
     age of 7 until she was about 11 or 12.

     The first incident occurred when K.L.C. was about 7 years old.
     K.L.C. was visiting Appellant, her biological father, when he was
     staying at a home where K.L.C.’s grandmother used to live.
     After taking a shower, K.L.C. exited the bathroom and Appellant
     told her to go to change in his room. Appellant came into the
     room as K.L.C. was dressing, pulled out his penis through his
     zipper and told her to suck on it. When K.L.C. told him no,
     Appellant repeated the demand.        K.L.C. said no again and
     Appellant pushed her head toward his penis but K.L.C. pulled
     away.

*Retired Senior Judge assigned to the Superior Court.
J-S20023-16



     Appellant told K.L.C. to stay in the room and went to the kitchen
     to get ice cream sandwiches.          Appellant got an ice cream
     sandwich for K.L.C.’s brother, who was watching Peter Pan in the
     living room, and one for K.L.C., and returned to the room. After
     K.L.C. finished eating the ice cream sandwich, Appellant took the
     wrapper and rubbed the remaining ice cream on his penis.
     Appellant told K.L.C. to lick the ice cream off. K.L.C. refused and
     Appellant put his hands on the back of K.L.C.’s head and tried to
     force it down towards his penis. K.L.C. pulled away and was
     then left to dress in the bathroom.

     Another incident occurred at K.L.C.’s aunt’s house, near the
     Whippy Dip ice cream shop. K.L.C. and Appellant arrived at the
     house after shopping together. Appellant retrieved the key from
     above the door, let them into the house, and locked the door
     behind him. K.L.C. went into the small “toy room” and Appellant
     followed her in. K.L.C. sat down on the mattress on the floor
     and Appellant sat beside her. K.L.C. was playing with a toy and
     laid down and Appellant pulled a blanket over the two of them
     and touched her clitoris over her underwear. At the same time,
     K.L.C. saw Appellant moving his hands under the blanket and
     believed Appellant was rubbing his own penis. K.L.C. told him to
     stop, but he did not. After some time, Appellant stopped,
     unlocked the front door, and replaced the key above the door.

     One weekend during the summer, Appellant took K.L.C. to a
     construction site in a van he borrowed from his friend John
     Cooper. Appellant took K.L.C. into the woods in an area blocked
     from view by a dirt pile and asked her to show him her breasts.
     K.L.C. said no. When Appellant asked again and K.L.C. refused,
     Appellant tried to forcibly make K.L.C. show him her breasts but
     K.L.C. blocked him by crossing her arms over her chest.
     Appellant then put K.L.C. in a “choker hold,” where he put his
     arm around K.L.C.’s neck and squeezed to make her pass out.
     K.L.C. passed out and when she woke up she was on the ground
     and Appellant’s hand was in her pants, under her clothes,
     rubbing her clitoris. K.L.C. pulled his hand out of her pants,
     yelled at him and stood up. As K.L.C. tried to leave, Appellant
     grabbed her arm and tried to put her in a “choker hold” again
     but K.L.C. was able to break free, climb over the dirt pile, and
     get to the van. Appellant drove K.L.C. to the home of her uncle,
     Shawn Crooks.


                                    -2-
J-S20023-16


     On another occasion, when K.L.C. was 11 or 12, Appellant tried
     to touch K.L.C.’s breasts at John Cooper’s house after Appellant
     took K.L.C. to Hot Topic at the mall to buy a bathing suit. K.L.C.
     went to the bathroom to try it on and Appellant asked her to
     come out so he could see. K.L.C. showed Appellant her bathing
     suit and Appellant told her to go to the basement to the other
     bathroom. Once K.L.C. and Appellant were in the basement,
     Appellant asked K.L.C. to see her breasts. When K.L.C. said no,
     Appellant untied the bathing suit behind K.L.C. neck. K.L.C. held
     the suit up, but Appellant pulled at the suit and continued to ask
     to see her breasts. Appellant then stopped and K.L.C. tied her
     suit, went upstairs, and changed into street clothes.

     On another occasion, when K.L.C. was 11 or 12, Appellant
     brought K.L.C. to John Cooper’s storage building. Appellant told
     K.L.C. to sit on a little wooden bed and to show him her breasts.
     K.L.C. said no and crossed her arms in front of her chest.
     Appellant stood in front of her, took his penis out of his pants,
     and began to stroke it. Appellant asked K.L.C. to show him her
     breasts a few more times and then said if she did not, that he
     would put his penis in her vagina.

     The first person K.L.C. told about the abuse was her stepsister,
     [M.B.]. When K.L.C. ran away from home one night, [M.B.] told
     K.L.C.’s mother, [C.B.], who then brought the information to the
     police.

     Appellant was charged with criminal attempt:             involuntary
     deviate sexual intercourse (“IDSI”) with a child, aggravated
     indecent assault of a child, endangering the welfare of a child,
     corruption of minors, indecent assault, indecent exposure and
     IDSI with a child. On March 19, 2015, Appellant was found
     guilty after a trial by jury of all charges except for the IDSI with
     a child offense. Appellant was represented by Attorney Maria
     Goellner at trial and sentencing.

     On March 30, 2015, Appellant filed a [m]otion for [j]udgment of
     [a]cquittal and [m]otion for a [n]ew [t]rial, which was denied by
     [o]rder dated April 6, 2015.

     Appellant was sentenced on June 26, 2015. [At his sentencing
     hearing, the court ordered Appellant to serve an aggregate term
     of 13 to 26 years in prison followed by five years’ probation. In
     addition, the court designated Appellant as a sexually violent

                                    -3-
J-S20023-16


      predator (SVP).] Appellant filed a [p]ost-[s]entence [m]otion for
      [r]elief and [r]econsideration on July 6, 2015, which was denied
      by [o]rder dated July 8, 2015.

      Appellant filed a [timely n]otice of [a]ppeal on July 22, 2015.
      On July 23, 2015, Appellant filed a [c]oncise [s]tatement of
      [m]atters [c]omplained of on [a]ppeal. [The trial court issued its
      Rule 1925(a) opinion on September 22, 2015.]

Trial Court Opinion, 9/22/15, at 1-4.

      On appeal, Appellant raises the following questions for our review:

         Did the court err by preventing Mr. Crooks from exercising
         his right to a meaningful trial by jury with imparticl [sic]
         jurors where counsel was precluded from conducting open
         voir dire and asking questions to jurors?

         Did the court err in failing to grant a judgment of acquittal
         as to counts I – [V]I when the charging document alleged
         criminal acts of a lengthy and vague span of dates and a
         request for a bill of particulars was denied?

         Did the court err in failing to grant a judgment of acquittal
         at count II, aggravated indecent assault, when the
         Commonwealth did not prove penetration beyond a
         reasonable doubt[?]

         Did the court err in allowing the testimony of a witness
         whose identity was not disclosed to the defense until days
         before trial?

         Did the court err in finding that the defendant was a
         sexually violent predator when there was a lack of
         evidence that the defendant’s diagnosis of anti-social
         disorder affected his volitional capacity and there was no
         evidence of prior sexually deviant behavior?

Appellant’s Brief at 2-3 (block capitalization omitted).

      We have carefully reviewed the submissions of the parties, the

certified record, the thorough opinion of the trial court, and the case law



                                      -4-
J-S20023-16



applicable to the issues raised by Appellant. Based upon our review, we are

satisfied that the trial court adequately and accurately addressed each of the

issues raised on appeal.       Specifically, we agree with the following

assessments reached by the trial court: 1) Appellant was given appropriate

latitude in questioning the venire and any limitations placed upon trial

counsel were consistent with our rules prohibiting overly specific questions

by a party; 2) the charging documents filed in this case adequately set forth

the occurrence dates for course of conduct offenses where the victim was

able to narrow the relevant timeframes for each offense by stating her age,

her grade and school affiliation, and the time of year; 3) the victim’s

testimony that Appellant rubbed her clitoris provided sufficient evidence

from which the jury could infer penetration for purposes of establishing

aggravated indecent assault; 4) the admission of testimony from a

non-eyewitness who was disclosed to the defense two weeks prior to trial did

not constitute an abuse of discretion where such disclosure did not prejudice

Appellant’s ability to prepare for trial; and, 5) the Commonwealth introduced

clear and convincing evidence that Appellant met the statutory criteria for

SVP status, including the requirement that his anti-social personality

disorder made him likely to reoffend. See Trial Court Opinion, 9/22/15, at

7-8, 11-13, 13-15, 15-17, and 23-29. As we concur wholly in the foregoing

determinations, we adopt them as our own.         In addition, we direct the

parties to include a copy of the trial court’s opinion, with the names of the




                                    -5-
J-S20023-16



victim’s stepsister and mother redacted, with all future filings pertaining to

our disposition of this appeal.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/11/2016




                                    -6-
                                                                                                                 Circulated 03/15/2016 10:14 AM


                                                                                    .   ;     :




     corvlM(         ~WE f, -      .   I OF PENNSYLVANIA                : JN THE COURT OF COMMON PLEAS
                                                                          OF ERIE COUNTY, PENNSYLVANIA
                                       v.                                 CRIMINAL DIVISION
                                                                                                                                                1 .. ~

                                                                                                                              (.
     DONALD CROOKS,                                                                                                           ("
                                                                                                                                                     .·,
          Defendant                                                          NO. 2139 OF 2014                                                    .     }
                                                                                                                   I i·,,
                                                                                                                   'JI              I
                                                                                                                                        >   I   r .
                                                                 OPINION                                                                        '
                                                                                                                   , .. I     c•                 • \.1
                                                                                                                   (     ..   '

               Appellant, Donald Crooks, filed a Notice of Appeal on July 22, 2015, frot1\(hcjudisii1en~
                                                                                                                    I-'
                                                                                                                                                     ...   .· .
                                                                                                                               ,.                c1··
    of sentence imposed on .June 24, 2015, after a jury trial. This Opinion is in response to' the

    Statement of Matters Complained of on Appeal filed July 27, 2015.

                                                             BACKGROUND

               Appellant was convicted after a four day jury trial on March 19, 2015 of criminal

    attempt:         involuntary        deviate   sexual      intercourse,         aggravated     indecent   assault               of a child,

    endangering          the welfare        of a child, corruption                of minors, indecent assault, and indecent
                 1
    exposure.

               The charges against Appellant arose from a series of incidents in which he sexually

    assaulted his daughter, K.L.C., ·                                   ; from the age of'? until she was about I I or 12.

           The first incident occurred when K.L.C. was about 7 years old. Trial Transcript Day 2,

    March 18, 2015 ("TT2"), p. 45. K.L.C. was visiting Appellant, her biological father, when he

    was staying al a home where K.L.C's grandmother used to live. TT 2, p. 40. After taking a

shower, K.L.C. exited the bathroom and Appellant told her to go to change in his room, TT 2, p .
                                                                         .   ";    I , '. \

42. Appellant came into the room as K.L.C. was dressing, pulled out his penis through his zipper

and told her lo suck on it. TT 2, pp. 43-44. When K.L.C. told him no, Appellant repeated the

demand. TT 2, p. 43. K.L.C. said no again and Appellant pushed her head toward his penis but

K.L.C pulled away. TT 2. p. 44.

1
 181'.S. §901(a); 18 P.S. §3125(b); 18            r.s.   §4304(a)(I); 18 P.S. §630l(a)(l)(ii); 18 P.S. §3126(a)(7); 181'.S.
§3127(a).
          Appellant   told K.L.C   to stay in the room and went to the kitchen   to get ice cream

 sandwiches.   TT. 2, pp. 45-46. Appellant got an ice cream sandwich for K.L.C. 's brother, who

 was watching Peter Pan in the living room, and 0~1c fo1: K.L.C., and returned to the room. TT. 2,

 p. 46. After K.L.C. finished eating the ice cream sandwich, Appellant took the wrapper and

 rubbed the remaining ice cream on his penis. TT 2, pp. 47-48. Appellant told K.L.C. to lick the

 ice cream off. TT 2, p. 48. K.L.C. refused and Appellant put his hands on the back of K.L.C. 's

 head and tried to force it down towards his penis. TT 2, pp. 49-50. K.L.C. pulled away and was

 then left to dress in the bathroom. TT 2, p. 51.

        Another incident occurred at K.L.C.'s aunt's house, near the Whippy Dip ice cream shop.

 TT 2, p. 52. K.L.C and Appellant arrived at the house after shopping together. TT 2, p. 52.

Appellant retrieved the key from above the door, let them into the house, and locked the door

behind him. TT 2, pp. 53, 55. K.L.C went into the small "toy room" and Appellant followed her
                                                    .       '
in. T. T 2, pp. 56-57. K.L.C sat down on the mattress c>1; the floor and Appellant sat beside her.

T. T 2, p. 58. K.L.C. was playing with a toy and laid down and Appellant pulled a blanket over

the two of them and touched her clitoris over her underwear. TT 2, pp. 59-60. At the same time,

K.L.C. saw Appellant moving his hands under the blanket and believed Appellant was rubbing

his own penis. T. T 2, p. 60-61. K.L.C. told him to stop, but he did not. TT 2, p. 61. After some

time, Appellant stopped, unlocked the front door, and replaced the key above the door. TT. 2,

p.62.

        One weekend during the summer, Appellant took K.L.C. to a construction site in a van he

borrowed from his friend John Cooper. TT. 2, p. 67-68. Appellant took K.L.C. into the woods in

an area blocked from view by a dirt pile and asked her 'to show him her breasts. TT 2, pp. 71,

75. K.L.C. said no. TT 2, p. 72. When Appellant asked again and K.L.C. refused, Appellant



                                                2
tried to forcibly make K.L.C. show him her breasts but K.L.C. blocked him by crossing her arms

over her chest. T. 1'. 2, p. 72. Appellant then put K.L.C. in a "choker hold," where he put his arm

around K.L.C.'s neck and squeezed to make her pass out. T.T. 2, pp. 72-73. K.L.C. passed out

and when she woke up she was on the ground and Appellant's          hand was in her pants, under her

clothes, rubbing her clitoris. TT. 2, p. 75. K.L.C. pulled his hand out of her pants, yelled al him

and stood up. T. T. 2, p. 75. As K.L.C. tried to leave, Appellant grabbed her arm and tried to put

her in a «choker hold" again but K.L.C. was able to break free, climb over the dirt pile, and get to

the van. TT 2, p. 77. Appellant drove K.L.C. tothe home of her uncle, Shawn Crooks.TT 2, p.

77.

         On another occasion,   when K.L.C. was 11 or 12, Appellant tried to touch K.L.C.'s

breasts at John Cooper's house after Appellant took K.L.C. to Hot Topic at the mall to buy a

bathing suit. TT. 2, p. 82. K.L.C. went to the bathroom to try it on and Appellant asked her to

come out so he could see. T. T 2, pp. 82-83. K.L.C. showed Appellant her bathing suit and

Appellant told her to go to the basement to the other bathroom. T.T 2, p. 83. Once K.L.C. and

Appellant were in the basement, Appellant asked K.L.C. to see her breasts. T 7: 2, p. 83. When

K.L.C. said no, Appellant untied the bathing suit behind K.L.C. 's neck. TT 2, p. 84. K.L.C.

held the suit up, but Appellant pulled at the suit and continued to ask to see her breasts. 7: T 2, p.

84. Appellant then stopped and K.L.C. tied her suit, went upstairs, and changed into street

clothes. T. T. 2, p. 85.

        On another occasion,    when K.L.C. was 11 or 12) Appellant brought K.L.C. to John

Cooper's storage building. TT 2, p. 90. Appellant told K.L.C. to sit on a little wooden bed and

to show him her breasts. K.L.C. said no and crossed her arms in front of her chest. T. T 2, p. 89.

Appellant stood in front of' her, took his penis out of his pants, and began to stroke it. TT. 2, pp.



                                                  3
    89-90. Appellant asked K.L.C. to show him her breasts a few more times and then said if she did

    not, that he would put his penis in her vagina. T. T. 2, p. 90.
                                                             '       : .. I

            The first person K.L.C. told about the abuse was her stepsister,          M. B.
    TT 2, p. 109. When K.L.C. ran away from home one night,                      M. 8.     told K.L.C.'s mother,

                     , who then brought the information to the police. T. T. 2, pp. 110-1 I 2.

            Appellant was charged with criminal attempt: involuntary deviate sexual intercourse

    ("IDS!") with a child, aggravated indecent assault of a child, endangering the welfare of a child,

    corruption of minors, indecent assault, indecent exposure and JOSI with a child. On March 19,

    2015, Appellant was found guilty after a trial by jury of all charges except for the JDSf with a

    child offense. Appellant was represented by Attorney Maria Goellner at trial and sentencing.2

           On March 30, 2015, Appellant filed a Motion for Judgment of Acquittal and Motion for a

New Trial, which was denied by Order dated Apri! 6., ~O 15.
                                                                 '   I    '




           Appellant was sentenced on June 26, 2015.' Appellant filed a Post Sentence Motion for

Relief and Reconsideration on July 6, 2015, which was denied by Order dated July 8, 2015.

           Appellant filed a Notice of Appeal on July 22, 2015. On July 23, 20 IS, Appellant filed a

Concise Statement        of Matters Complained of on Appeal. The following trial issues will be

addressed he rein. 3

       I. The Court erred in allowing K.L.C., the victim> to testify and/or admitting the portion of
          the Child Advocacy Center video in which she references being shown pornography;
       2. The Court erred in allowing 'iv\. B.                    and I L.B.          to testify;
       3. The Court erred in limiting Rebecca Grant's testimony;
       4. Appellant was prevented from conducting meaningful voir dire;
       5. The Court erred in not granting the judgment of acquittal as to Counts J~IV because of the
          vague nature of the dates of the criminal conduct charged;


--·---
2
 Nee Kmpicz.
3
 The pre-trial ruling denying Appellant's challenge to the competency and taint of the victim's testimony as well as
Appellant's request for a Bill of Particulars were addressed by the Honorable Judge Shad Connelly.

                                                         4
    6. The Court erred in not granting judgment of acquittal at Count Il because the evidence
        was insufficient to sustain the conviction;
    7. The Court erred in instructing the jury related to Count II, Aggravated Indecent Assault,
        when clarification was requested;
    8. The Court failed to instruct the jury about vagueness in relation to credibility;
    9. Appellant was prevented from exercising his right to testify on his own behalf;
    10. The Court erred in not granting a new trial because the jury verdict was inconsistent; and
    11. The Court erred in determining Appellant to be a "sexually violent predator."

        These issues will be addressed seriatim.

                                        WITNESS CLAIMS

        Appellant makes various claims related to the admission or limitation of witness

testimony.

    A. K.L.C.

             1. Competency to Testify

        Appellant argues error in finding K.L.C. competent and/or untainted to testify because

she came forward with new claims of abuse after she went on a ride along with Trooper Sean

Pierce and Trooper Olowin. These issues were addressed by the Honorable Judge Shad

Connelly. See Pre-Trial Hearing Transcript dated December 5, 2014; Order dated December 8,

2014.

             2. Admission of Child Advocacy Center Interview

        Appellant contends     the Court improperly admitted     the portion of K.L.C. 's Child

Advocacy     Center ("CAC")     interview   in which she talks   about Appellant    showing    her

pornography. Specifically Appellant argues the conduct was not charged in the information, was

extremely inflammatory and/or prejudicial and was improperly admitted under the Tender Years

Doctrine and/or as a prior consistent statement.




                                                   5
       Evidence does not have to be "charged in the information" to be admissible. The victim's

prior statement about the Appellant showing the victim pornography was consistent with her trial

testimony.   The evidence of pornography was relevant to Appellant's grooming of his sexual

victim and also admissible under the Tender Years doctrine.

        "Evidence    of a witness's prior consistent     statement is admissible to rehabilitate the

witness's credibility if the opposing party is given an opportunity to cross-examine the witness

about the statement and the statement is offered to rebut an express or implied charge of ...

fabrication, bias, improper influence, or motive or faulty memory and the statement was made

before that which has been charged existed or arose." Pa.R.E. 613. In cases of minor sexual

assault, even unimpeached testimony may be admitted when the witness' status alone is such that

her testimony may be called into question because of age. Commonwealth v. Hunzer, 868 A.2d

4981 512 (Pa.Super. 2005) Admission of prior consistent statements on such grounds is a matter

left to the sound discretion of the trial court, to be decided in light of the character and degree of

impeachment. Id.

       The CAC interview was conducted in August of 20131 prior to charges being filed.

K.L.C. 's interview was shown to the jury after K.L.C testified about a general course of abuse by

Appellant and specific incidents. On cross-examination,      K.L.C. was questioned extensively to

discredit her recollection of the incidents in question. Her memory of the time, place, and

surrounding circumstances    was called into question. K.L.C.'s   memory was challenged not only

to a specific incident, but to the ongoing conduct as a whole. Appellant inferred K.L.C. was
                                                   1nci'cl:ent
                                                     1

making up the abuse en toto, not just one specific

       Appellant ignores the fact the reference to pornography arguably showed Appellant was

grooming K.L.C. for his own sexual gratification. It is evidence of an ongoing course of conduct



                                                 6
 by Appellant. The specific incidents to which K.L.C. testified were also part of this continuous

 course of conduct. The reference to pornography therefore was properly admitted as a prior

 consistent statement.

            Separately, the reference to pornography was properly admitted under the tender years

 hearsay exception, which allows for an out of court statement made by a chi Id age 12 or younger

 describing, inter alia, offenses enumerated in 18 Pa.C.S.A 31 (relating to sexual offenses) if

 relevant, reliable and the child testifies at the proceeding. 42 Pa.C.S.A. §5985. l(a).

          Here, the CAC interview was conducted with K.L.C. when she was 12 years old. In the

 interview, she discussed a series of incidents during which she was sexually assaulted by

Appellant. She also discussed an ongoing course of conduct over the 5 years during which abuse

occurred which also included the showing of pornography. The reference to pornography was

therefore properly admitted under the tender years hearsay exception.

    B..   M,J3.
          Appellant argues the Court erred in allowing •             fi/\.-6.                     to testify.

Specifically, Appellant claims he suffered prejudice clue to the delayed disclosure of her identity

as a witness and delayed disclosure of her police statement.

          Upon a motion for pretrial discovery, the Court may order the Commonwealth to disclose

and allow the defense to inspect, inter alia, the names and addresses                     of eyewitnesses.

Pa.R.Crim.P.     573(B)(2)(a)(i).   The Commonwealth        is under no obligation        to disclose non-

eyewitness     witnesses, however. Commonwealth v. Dietterick, 631 A.2d 1347, 1351 (1993).

Additionally, courts have found that as little as a one day period to prepare for cross examination

following     the disclosure   of the witness by the Commonwealth               is sufficient   notice. See

Commonwealth v. Figueroa, 859 A.2d 793, 800 (Pa.Super. 2004).


                                                        I   ·~
                                                  7
            Appellant was informed of the Commonwealth's intent to call __          /y'l_. f3.
about two weeks before the start of trial> well beyond the one day threshold accepted in

Figueroa, supra. T. T. 2, p. 5. Appellant had ample time to prepare cross examination and trial

strategy with the knowledge         that   M.   0. .:.         .    would testify. The Commonwealth      had

no duty to disclose their intent to have          M.     f2>              testify as a witness and even if it

did, Appellant had sufficient notice. Appellant has not established any prejudice by the timing of

the disclosure of this Commonwealth witness in terms of Appellant's trial strategy or defense.

Appellant's defense has always been a complete denial of any sexual conduct with the victim.

            Appellant also argues          M.0.'.s                  testimony should have been excluded

because it was cumulative           and prejudicial.     Admissibility   of evidence is within the sound

discretion of the trial court and will not be reversed absent abuse of discretion. Commonwealth v.

Gonzalez, 109 A.3d 711, 726 (Pa. Super. 2015). "Evidence is relevant if it logically tends to

establish     a material   fact in the case or tends to support a reasonable inference regarding a

material fact." Id. A court may exclude relevant evidence if it is needlessly cumulative. Pa.R.E.

403.

            M.0.                    is the victim's stepsister and was the first individual to whom she

disclosed the incidents of abuse. T.T. 2, pp. 109-110, 156-158. Ultimately, she was the person

who told K.L.C. 's mother about the allegations. T. T. 2, pp. 111, 159.              .   M.13.. __ - _
spoke to the circumstances surrounding K.L.C.'s disclosure, her demeanor, and the aftermath,

            M. 0. s 1                  testimony corroborated K.L.C. 's testimony about the disclosure

and explained how the abuse came to be known by her mother. Consequently, her testimony was

relevant, given by the only person who could give it and was not cumulative. There was no error

in permitting this testimony about the victim's disclosure.



                                                         8
    c. C,.(3.
           Appellant argues error in allowing _             l. 0. . . . .        to testify because her testimony was

cumulative, prejudicial,        and only served to bolster the K.L.C's testimony.

           G.6.                :, K.L.C.'s mother, reported the incidents of abuse to the police. TT 2, p.

174. She gave testimony about K.L.C.'s background and her history with Appellant,                                 which

served to corroborate K.L.C's testimony and explain why K.L.C. was visiting her biological

father alone on weekends and where those visits would occur. TT 2, pp. 170~!72.

also testified about the night she was told about the abuse by                       M_,_0 · -- . . .   :,   including

K.L.C.'s demeanor and actions. TT 2, p. 173. Additionally,                         l.~ .. : corroborated       K.L.C.'s

testimony that they did not discuss the specifics of the abuse. T 7: 2, p. I 74.

           Consequently,       Ct.l2>.'s          ·   testimony was relevant and properly           permitted.     This

testimony was not cumulative because it was given by the only person who could give it.

    D. Rebecca Grant

           Appellant argues the Court erred in limiting the testimony elicited from Rebecca Grant

related to K.L.C. 's motive for fabricating allegations against Appellant. This claim is waived and

inaccurate.

           Appellant has not preserved this issue for appeal. Appellant failed to make a timely and

specific      objection    at the appropriate           stage       of the proceedings      before the trial      court.
                                                                        .,   '
Commonwealth v. Houck, l 02 A.3d 443, 451 (2014).                                 A party must object to "errors,

improprieties, or irregularities           at the earliest possible state of the adjudicatory process" to allow

for the error to be remedied and avoid unnecessary appeals. Tindall v. Friedman, 970 A.2d l l 59,

1174 (Pa.Super.       2009).     Failure to make a timely, proper objection will result in waiver of an

issue. Houck, 102 A.3d at 451. Additionally,              raising the issue in a statement of errors complained



                                                                9
of on appeal does not undo a waiver as it is not a substitute for the contemporaneous      objection

required at trial. Commonwealth v. Ali, 10 A.3d 282, 293 (2010).

        This argument is also unsupported by the record.         When the prosecution requested a

proffer regarding Rebecca Grant's testimony, Appellant's counsel explained:

                  MS. KRUPICZ: Judge, so Becca Grant will be called forth to say that the
        night that K eara Crooks ran away in August of 2013 when these allegations came
        out for the first time. The inference, I think, to the jury has been, although not
        explicitly stated, she ran away, she came back, she was upset, and then this all
        came out. Becca Grant would simply say, and I will -- before she's called I would
        ask for a few minutes recess, but she would testify that she didn't say anything
        about her dad, she didn't say anything about molestation or anything like that, said
        basically that she ran away because I can say she got in a fight with her mom. I
        believe what she would actually say is that her mom and possibly stepdad beat
        her, but I can certainly instruct her not to say that, and just that they got into a
        fight, and that's why, nothing about _dad didn't say anything about dad. Also, that
        1\1\. 13. was not with her, becuuseiAt'.Lf3 .1 had testified that she went with her.
                  7: 1'. 3, pp. 12-13.

        After a brief discussion about possibly leading Ms. Grant because she is a minor witness,

the Court noted:

               THE COURT: The only thing I'd say, we talked about this yesterday, is
        you've got to be careful because if you go beyond that, then you're opening up a
        can of collateral worms on collateral matters that may spill over to your client
        also.
               MS. KRUPICZ: Understood.
                       TT 3, p. 14.

        Importantly, no objection was placed on the record by Appellant regarding Rebecca

Grant's testimony. The issue is therefore waived.

        Assuming arguendo the issue is not waived, it is nonetheless without merit. As the record

reflects Rebecca Grant testified about all of the matters within Appellant's proffer. During direct

examination, Rebecca Grant testified that despite theirclose relationship,   K.L.C. never disclosed



                                                 10
any incidents of abuse to her, including the night she run away and the incidents were eventually

disclosed to      (';.   6.          . T. T. 3, p. 74. Instead, Ms. Grant testified K.L.C. told her she was

running away because of a fight with her mom and stepdad and was ultimately brought home by

the police. T. T 3, p. 73.

         Ms. Grant therefore did testify to a motive K.L.C. had to lie-a fight with her family,

running way, and being brought home by the police. The sum of Ms. Grant's actual testimony

was consistent with Appellant's proffer and enabled Appellant to challenge K.L.C.'s credibility.

          Moreover, as made clear by the Court's comments, any limitation to her testimony was

intended to prevent issues being discussed that could have prejudiced Appellant. Consequently,

Appellant's argument is specious and Appellant has suffered no prejudice.

                                                  VOIR DIRE

         Appellant claims he was prevented from exercising his right to conduct meaningful voir

dire because he was prevented from "open voir dire" into prospective jurors' feelings about

whether young people lie about sex, their feelings on child molestation,                  and people accused of

such crimes.

        Appellant's       argument     is contradicted        by the record.      Appellant   was given    ample

opportunity beyond reviewing the written questionnaire                 responses to ask a multitude of questions
                                                                ·1·i
to the jury pool and conducted individual          voir dire ~vith nearly each prospective juror. To say

Appellant was denied the chance to conduct "open voir dire," a phrase given no legal definition

or authority by Appellant, is disingenuous.

        The purpose of voir dire is to secure a competent, fair, impartial and unprejudiced jury.

Commonwealth v. Noel, I 04 A.3d 1156, 1168 (Pa. 2014). The scope of voir dire is within the

sole discretion   of the trial court and will not he reversed on appeal "absent palpable error."



                                                         11
Commonwealth v. Mattison, 82 A.3d 386, 397 (Pa. 2013). Specifically,                   the form, wording, or

nature of questioning by a party is subject to the discretion of the trial court and does not

constitute error when there has been an appropriateinquiry into the potential jurors' attitudes or

prejudices toward a relevant subject. See Wytiaz v. Deitrick, 954 A.2d 643, 648 (Pa. Super.

2008).

            In this case, prospective jurors completed the juror questionnaires after arrival in the

morning and the lawyers were given the rest of the morning to review the juror's written

responses before questioning jurors. After lunch, the lawyers were given the opportunity to ask

follow-up questions of the jury pool without the Court present. The lawyers asked questions of

the jury pool from 1 :2 I p.m, until 4:43 p.m, The record reflects the bulk of the questions were

asked by Appellant.

            Appellant asked a series of open ended questions related to the jury questionnaire. T. 7'. 1,

pp. 69~ 71. Appellant then conducted indi victual Vair. dire of near I y every member of the jury

panel. Appellant asked the jury pool specific questions related to the case and elicited responses

from individual jurors. After generous latitude with Appellant, the Commonwealth finally

objected.      In opposing the Commonwealth's             objection,   Appellant's   counsel explained   she

intended to ask the jury pool about whether they believed teenagers could lie, including about

potentially embarrassing subjects like sex. TT. 1, pp. 75-76, 79-80. In response, the Court

explained:

         THE COURT: See, here's the difficulty I have. Voir dire isn't to try your case and
         to get jurors who agree with your point of view or to weed them out. I mean, it's
         to ferret out any biases or prejudice that they may have. But to argue your case is
         really what you're doing as I hear what you're saying,
                 T.T. 1,p. 78.




                                                     12
            What the record reflects is that Appellant in fact asked the jury panel about teenager's

propensity to lie, especially about sex. See T. T. 1, pp. 71 ·73. Therefore, Appellant's alleged error

on appeal is factually unsupported.

            The Superior Court has routinely upheld trial court decisions to limit overly specific voir

dire questions by parties, See e.g., Commonwealth v. Marrero, 687 A.2d 1102, 1108 (Pa. 1996).

As the Court noted, such questions seek to determine what jurors would be sympathetic to a

particular party's position rather than neutral. Such. questions are improper for voir dire.

            Appellant was able to effectively question the jury pool about opinions and potential

biases that might affect their ability to serve as a juror and was permitted to question in depth

individual jurors. Appellant had a full and meaningful opportunity to participate in votr dire. The

record establishes Appellant has not identified any prejudice. Accordingly,         there was not an

abuse of discretion in the broad latitude of voir dire given to Appellant.

                           JUDGMENT OF ACQUITTAL: COUNTS I~VI

            Appellant states the Court erred by not dismissing   the charges and denying the Request

for Bill of Particulars      because the charging document was vague as to when the offenses

occurred. Specifically,     Appellant argues because the criminal acts were charged as occurring

between 2007 and 2012, the evidence was insufficient             to convict and Appellant's   right to

establish a defense was prohibited.

           At the outset, the Court notes Appellant's Request for Bill of Particulars was denied as

untimely      by Judge Connelly.   See Pre-Trial Hearing Transcript December 5, 2014; see also

Order dated December 8, 2014.

           Separately, the charging document was sufficiently specific regarding the dates of the

offenses.     It is the duty of the Commonwealth to fix a date of when cm alleged offense occurred


                                                    13
 with reasonable   certainty.   Commonwealth v. Jette, 818 A.2d 533, 535 (Pa.Super, 2003).

        However, the Commonwealth is not required to prove specific dates for each crime and is

 afforded latitude when charging certain crimes-specifically when the case involves an ongoing

 course of conduct, including sexual offenses against a child victim. Commonwealth v. Riggle,

2015 PA Super 147 (July 7, 2015); Commonwealth v. G.D.M., sr., 926 A.2<l 984, 990 (Pa. Super.

2007). The due process concerns associated with requiring charges to relate to specific dates are

satisfied where the victim can determine times when the sexual abuse began and ended.

        Here, Appellant was found guilty of multiple incidents of abuse that occurred over the

course of 5 years-acts that constitute a continuing course of conduct. Each charge was based on

multiple incidents and was charged as a continuous course of conduct. Additionally,          K.L.C. 's

testimony narrowed the time frame of each of the .incidents.       The time of the first incident was

established by where Appellant lived and K.L.C. 'sage.       K.L.C. testified the abuse began when

K.L.C. was 7 years old. Similarly, K.L.C. narrowed when each other incident occurred based on

her age at the time of each other incident, where she went to school, the time of year-generally

summer, and grade she was in. TT 2, pp. 138-139. K.L.C. was also questioned on cross-

examination about her lack of ability to remember dates. TT 2, pp. 138-139. K.L.C. testified the

abuse occurred until she disclosed the abuse to her step-sister,       ~.3.                    and at

least one time after. Therefore the dates of the offenses were charged with sufficient specificity.

       Appellant's argument that the dates of the charging document undermined Appellant's

ability to prepare a defense is similarly without merit. In fact, Appellant presented multiple
                                                   {'    !

witnesses to challenge K.L.C. 's credibility and provide a defense. Appellant            called Amy

Leeburg, Denise Boyd, Shawn Crooks, Elizabeth Crooks and Lynne Fullerton to testify each

observed Appellant interact with K.L.C. and never saw any inappropriate interactions         between



                                                 14
them and K.L.C.       did not report abuse to them. TT. 3, pp. 26-65. Likewise,             Attorney John

Cooper,     a Commonwealth         witness,   testified    on cross examination    to the lack of any

inappropriate behavior by Appellant and the appropriate interaction bet ween Appellant and the

victim. T. T. 2, pp. 204-206. Appellant was therefore not deprived of the ability to prepare or

present a defense.

                           ,JUDGMENT OF ACQUITTAL: COUNT II

          Appellant argues the Commonwealth failed to prove penetration beyond a reasonable

doubt and therefore the Court erred in not granting judgment of acquittal at Count fl, Aggravated

lndecent Assault.

          When evaluating a challenge to the sufficiency of the evidence such as this, the evidence

must be viewed in the light most favorable to the Commonwealth.            Commonwealth v. Hargrave,

745 A.2d 201 22 (Pa.Super. 2000). Evidence will be deemed sufficient when it establishes each

material element of the crime charged, and the commission thereof by the accused, beyond a

reasonable doubt.     Commonwealth v. Jones, 874 A.2d 108, 120-121             (Pa.Super.     2005).   The

Commonwealth         may sustain     its burden      of proof    wholly   by circumstantial       evidence.

Commonwealth v. Hopkins, 747 A.2d 910, 9 I 3; (Pa;SJper. 2000). It is within the province of the

jury to pass upon the credibility of witnesses and determine the weight to be accorded the

evidence adduced. Commonwealth v. Feese, 79 A.3d 11011             1122 (Pa.Super. 2013).

          A review of the record confirms the Commonwealth          met its burden of proof with respect

to the crime of aggravated indecent assault.

       (a) Offenses deflned.] ... ) [A) person who engages in penetration, however slight,
       of the genitals or anus of a complainant with a part of the person's body for any
       purpose other than good faith medical, hygienic or law enforcement procedures
       commits aggravated indecent assault if:

                 (I) the person does so without the complainant's consent;

                                                      IS
     events as presented in the CAC video. Therefore, the Commonwealth established Appellant is

     guilty of aggravated indecent assault beyond a reasonable doubt.

                                             JURY INSTRUCTIONS

            Appellant claims the Court erred in its phrasing of two specific jury instructions, to-wit,

     aggravated indecent assault, and credibility of the witness. A trial court has broad discretion in

     phrasing instructions to the jury and can choose its own so long as the law is clearly, adequately

    and accurately presented to the jury for consideration. Commonwealth v. Charleston, 94 A.3d

     1012 (Pa. 2014).

            A. Aggravated Indecent Assault

            Appellant argues the Court erred in its clarification of the law on aggravated indecent

    assault when it directed the jury's attention to the alleged penetration to the "clitoris/labia area at

    the construction site" and then read the elements of the offense to include the "entrance of the

    vagina." Appellant specifically contests the jury instruction gave after the jury asked for a more

    specific instruction on the issue of penetration."

           After deliberating for more than an hour, the jury requested, inter alia, clarification on

    the elements of aggravated indecent assault. In directing the jury's attention to the specific

question, the Court noted it was "the charge that involves the digital penetration which is alleged

to have occurred to the child's clitoris and labia area at the construction site." (Emphasis

added). The Court then repeated the elements of the offense:

                   THE COURT: Now, that offense it~~lf, I want to give you the elements
           again, all right? And the reason I'm going to do that is it ties in with another
           question that you have. The elements of the aggravated indecent assault are
           whether the defendant penetrated however slightly the genital area of Kearn with
           a finger, that he did not do so for a good faith medical, hygienic 01· law

4
 Although no objection was made at the time of the clarification, the original phrasing of this instruction was
objected to, which was similar to the issue complained ofon appeal. The issue is therefore preserved.
                                                          17
               (2) the person does so by forcible compulsion;
               (3) the person does so by threat of forcible compulsion that would prevent
               resistance by a person of reasonable resolution;
               (4) the complainant is unconscious or the person knows that the
               complainant is unaware that the penetration is occurring;
               (5) the person has substantially impaired the complainant's power to
               appraise or control his or her conduct by administering or employing,
               without the knowledge of the complainant, drugs, intoxicants or other
               means for the purpose of preventing resistance;
               (6) the complainant suffers from a mental disability which renders him or
               her incapable of consent;
               (7) the complainant is less than 13 years of age; or
               (8) the complainant is less than 16 years of age and the person is four or
               more years older than the complainant and the complainant and the person
               are not married to each other.

        (b} Aggravated indecent assault of a child. ·· A person commits aggravated
       indecent assault of a child when the person violates subsection (a)( l ), (2), (3), ( 4),
       (5) or (6) and the complainant is less than 13 years of age.
                I 8 Pa.C.S.A. § 3125.

       K.L.C. testified that when she was about 11 or 12 years old, Appellant took her to a

construction site and took her for a walk in the woods, While in the woods, he asked to see her
                                                            .   I

                                                  ...
breasts. When K.L.C. refused Appellant's request, he· put her in a "choke hold" which caused her

to pass out. K.L.C. testified when she woke up, Appellant had his hand in her pants, under her

underwear and was rubbing her clitoris. As soon as she woke up, she pulled Appellant's hand out

of her pants and got up off of the ground.

       The jury made the factual determination that the touching K.L.C. described was sufficient

to constitute aggravated indecent assault. It was done by forcible compulsion and without a good

faith exception set out by the statute. It was done without K.L.C.'s consent, as she was both

under 13 years old and unconscious at the time. The jury found K.L.C.'s testimony to be

credible. Her testimony was consistent throughout trial and consistent with the prior recitation of

                                                        I

                                                  16
         enforcement purpose, that the penetration of the genital area was without her
         consent, and, lastly, that at the time she was under 13 years of age.
                  Now, as I indicated to you, the phrase penetration however slight is not
         limited to the penetration of the vagina, the entrance of the vagina is sufficient.
         And that's up to you to determine whether the entrance of the vagina, if you
         find that that occurred in this case.
                  So those arc the elements of that offense. And that offense, again, relates
         to the touching of the vaginal area at the construction site.
                Trial Transcript   Day 3, March       /9, 2015 ("T.T. 3"), pp.      /42-143
         (emphasis added).

        The Court's recitation of the alleged incident was done to focus the jury's attention. The

jury was presented evidence over multiple days and had a large body of Jaw to consider. In the

original instructions the Court went so far as to explicitly remind the jurors they, not the Court

 were the finders of fact:

                THE COURT: I want to clarify one thing. Well, actually two. First of all,
         in explaining the offenses for you and in trying to correlate what the
        Commonwealth is alleging to that particular offense, which I think I have to do so
        the two fit together for you, and when [ do that, I am describing and I believe I
        have continually said that this is what the Commonwealth is alleging and the
        defense disputes that. I'm not when I give that information to you, I'm not
                                         »



        trying to convey to you my opinion about factually what occurred in this
        case. As I told you at the beginning of this trial, you're the fact finders. I give
        the law, but I can't tell you what to find factually.
               T. T 3, p. 136 (emphasis added).

        During the opening instructions to the jury, in explaining their roles as fact finders, the

jurors were informed it was up to them (and not the lawyers and/or judge) to determine the facts:
                                                 I    .i

               THE COURT: As the jurors, you are what we call fact finders. You're
       members of the community. You don't necessarily know anything about this case
       and you don't have any fixed opinions or biases and you can sit and listen to the
       evidence and determine factually what occurred in this case and then, on the basis
       of the facts as you find them to be, whether the Commonwealth has met its burden
       of proof regarding any criminal charge lodged against the defendant.
               Now, that determination of the facts is solely and entirely up to you. The
       lawyers are going to argue to you about what you should find factually, but that's

                                                18
             up to you. As the Judge, I give you the law that applies in this case, but I
             cannot tell you what to find factually.
                      Now, in large part, you determine the facts in this case by making
             credibility determinations, and by that I mean believability. For every witness that
             you hear in this case, you're going to. be asked to judge the credibility of that
             witness or the believability. You're able to determine whether you believe
             everything, some of, or none of what the witness testifies to.
                       TT 1, pp. 140-141 (emphasis added).

             Directing the jury's attention to the alleged conduct was both proper and necessary.

Separately, the instruction and clarification            for aggravated indecent assault adequately         and

accurately presented to the law. 18 Pa.C.S.A.                §3125;   Commonwealth v. Hawkins, 614 A.2d

    1198, 1199 (Pa.Super. 1992) (determining entrance of the labia area is sufficient to constitute

penetration).The claim is therefore without merit.

            B. Credibility

            Appellant argues the Court erroneously           failed to instruct the jury that it could consider

vagueness in weighing credibility.

            This issue is waived as Appellant        never requested a jury instruction about vagueness.

Prior to the jury instructions being given, the Court asked counsel if either had any requested

jury instructions.        Appellant requested various instructions related to witness credibility including

credibility of witnesses in general; false in one, false in all; conflicting testimony; number of

witnesses;       failure to make prompt complaint in certain sexual offenses; and impeachment or

substantive evidence inconsistent statemem.' All but the last were included in the jury charge to

the jury. No objections or requests for additions related to considering vagueness in weighing

credibility were made after the jury charge was given either. TT 3, pp. 136, 138. This issue is

therefore waived.



5
    4.17; 4.15; 4.09; 7.04; 4. I 3(A); 4.08(/\).
                                                        19
         Consideration of vagueness is arguably subsumed within the instructions on credibility

 factors. Sec T.T, 1, pp. 125-128, This issue is also speculative at best with no showing of

 prejudice.

                              APPELLANTtS RIGHT TO TESTIFY

         Appellant argues he was prevented from exercising his right to testify on his own behalf

when the Court ruled the Commonwealth           could introduce evidence of his prior incarcerations

and drug use if he chose to testify.

         Both of these allegations are inaccurate. As the record reflects, Appellant was never

informed that if he testified his prior incarcerations and drug use would be admissible. There was

a ruling      about Appellant's   convictions     for crimen falsi, not about        Appellant's   prior

incarcerations. There was never a final ruling entered on Appellant's drug use since a ruling was

reserved for the time of Appellant's testimony.

        The decision whether to testify on one's own behalf is ultimately to be made by the

accused after consultation    with counsel. Commonwealth v. O'Bidos, 849 A.2d 243, 250 (Pa.

Super. 2004). At trial, Appellant knowingly and voluntarily decided not to testify.

       THE COURT: Now, you have the ability to testify at this trial if you would like.
       That decision whether or not to testify is your decision. Your lawyer can advise
       you one way or another, but you have to make your own independent decision as
       to whether or not to testify. If you decide not to testify, then I will instruct the jury
       that they cannot draw any adverse inference from that. In other words, they can't
       hold it against you because you did not testify. And the reason for that is you don't
       have to testify, all right.
       MR. CROOKS: Yes, Your Honor.
       THE COURT: You have a constitutional               right to remain silent. Do you
       understand that?
        MR. CROOKS: Yes, Your Honor, I do.
        THE COURT: In the event that you do decide to testify, then evidence can be
       admitted for any convictions that you have for crimes involving dishonesty, the

                                                  20
        legal term is crimen falsi, and apparently there are several that you have that are
        admissible. And I would instruct the jury, as I said moments ago, that that
        evidence is admitted for a very limited purpose. And the limited purpose is to
        judge your -- the credibility of any testimony you give at trial. And I would
        specifically tell them that they cannot use that evidence as a basis to find you
        guilty. In other words, they can't infer that you committed the present crimes from
        the fact that you have prior convictions. Do you understand that?
        MR. CROOKS: Yes, Your Honor, I do.
        THE COURT: Do you have any questions about that at all?
        MR. CROOKS: No, Your Honor, I do not.
        THE COURT: Have you made a decision whether or not you want to testify?
         MR. CROOKS: Yes, Your Honor, I have.
         THE COURT: Okay. And is that your own independent -- I'm not going to ask
        you what it is, but is that your own independent decision?
        MR. CROOKS: Yes, Your Honor.
        THE COURT: Okay. All right.
                T. T. 3, pp. JO~ 12.
                                                         -. f•    ·;

        There is no factual basis to support Appellant's               allegation     of error. First, Appellant's

crimen falsi convictions, and not prior incarcerations, were ruled upon. Evidence of Appellant's

convictions would have been relevant to Appellant's credibility as a trial witness.

        While evidence of prior crimes is not admissible                 for the purpose of demonstrating             a

criminal defendant's    propensity     to commit crimes, a prior conviction             that involves a crime of

dishonesty within the last ten years is per se admissible to impeach a defendant's credibility.

Commonwealth v. McEnany, 732 A.2d 1263,                  1270 (1999).               Informing    Appellant   of his

alternatives allowed him to make an independent                  and knowing decision           whether to testify.

Appellant's allegation he was prevented from testifying by the Court is frivolous.

        By way of a Motion in Limine, Appellant sought to preclude any evidence of evidence of

his drug use should he testify. There was never a final ruling on this issue:



                                                    21
               MS. KRUP[CZ: Judge.just briefly, I wanted to put on the record what we
        talked about yesterday, namely that it was the Court's ruling that should the
        defendant choose to testify, that he would be opening the door to drug use as it
        would affect his ability to recall as a witness.
                THE COURT: Well, what I said is that's a possibility. It's only a matter of
        common sense of law, because just as you were challenging the testimony of the
        victim as to her ability to recall dates and times over that period of time, to the
        extent he would be testifying about that, that could impact his ability to recall.
                T. r. 3, pp. 3-4.

        Hence, there was never any evidentiary' ruling entered on whether Appellant's drug use

was admissible. Appellant's request was made prior to trial and clearly a ruling was reserved for

trial based on the state of the record at the time. To say that Appellant was denied his "right to

testify" because of an adverse court ruling about drug use is misleading.

        Appellant also states this right was undermined when the Court ruled his statement to the

police was inadmissible despite parts being admitted during the Commonwealth's case in chief.

The portions introduced by the Commonwealth were admitted pursuant to the hearsay exception

which allows statements against interest. See T. T. 2, p. 198.

        In Appellant's case-in-chief, he sought to introduce portions which would have supported

his versions of events. "Where a defendant seeks at trial to introduce his own statements made at
                                                         .   '

the time of arrest to support his version of the· facts such testimony is clearly offensive to the

hearsay rule." Commonwealth v. Murphy, 425 A.2d 352, 356 (Pa. 1981 ). The purpose of this rule

is to not allow an accused to circumvent the Commonwealth's         cross examination,   which in this

case includes evidence of crimen falsi, by introducing an exculpatory statement of Appellant in

lieu of live testimony.    Therefore,   Appellant's    prior exculpatory   statements were properly

excluded in the absence of his trial testimony.




                                                  22
                                       CONSISTENCY              OF VERDICT

         Appellant      states the jury verdict was so inconsistent          that it called into question its validity

 and therefore      the Court erred in denying     Appellant's          Motion for a New Trial. Jury verdicts       are

 presumed       to be consistent   unless   there is no reasonable          theory to support     the jury's   verdict.

 McDermoll v. Biddle, 674 A.2d 665, 667 (Pa. 1996). Inconsistent verdicts, even if logically

 perplexing, are not necessarily considered a mistake and do not constitute a basis for reversal so

 long as there is sufficient evidence to support the conviction. Commonwealth v. Houck, I 02 A.3d

 443, 451 (Pa. Super. 2014). Inconsistent verdicts do not constitute a specific finding in relation to

 certain evidence. Commonwealth v. Miller, 35 A.3d 1206, 1213 (Pa. 2012).

         That Appellant was acquitted of the IDSI does not speak to the jury's determination of

 K.L.C. 's overall credibility and does not vitiate thevalidity                of the other verdicts. K.L.C. gave

very detailed testimony about each of the incidents of abuse for which Appellant was found

guilty. By comparison, K.L.C. was not able to remember as many details about the incident on

which the charge of IDSI was based. There are a number of reasons this could be the case, other

than K.L.C. is not credible en toto. It is reasonable that the jury found that K.L.C. 's testimony

was credible as to the other charges but that the Commonwealth did not meet its burden of proof

related to the TOSI charge.

        Consequently, Appellant is not entitled to a new trial on the basis that the verdicts were

inconsistent.

                     SEXUALLY VIOLENT PREDATOR DETERMINATION
                                                     •i    '   ,\;·,'

        Appellant argues the Commonwealth did not meet its burden and therefore the Court

improperly found Appellant to be a sexually violent predator. Appellant states there was "a

complete lack of evidence» that Appellant's diagnosis of Anti-Social Disorder affected his



                                                          23
 volitional capacity and predisposed him to criminal sexual acts and there was no evidence of

 prior sexually deviant behavior.

         A sexually violent predator is an individual convicted or a sexually violent crime who

 has a mental abnormality or personality disorder that makes the individual likely to engage in

 predatory sexually violent offenses. 42 Pa.C.S.A. §9799.12. An individual is determined to have

 a "mental abnormality" when he suffers from a "congenital or acquired condition ... that affects

 the emotional or volitional capacity or the person in a maimer that predisposes that person to the

 commission of criminal sexual acts to a degree that makes the person a menace to the health and

 safety of other persons." Id.

        A sexually violent offense is considered "predatory" when it involves "an act directed at

a stranger or at a person with whom a relationship has been instituted, established, maintained, or

promoted, in whole or in part, in order to facilitate or support victimization."      42 Pa.C.S.A. §

9799.12. Thus, whether the individual is classified as a sexually violent predator is determined

based on both the force that drove the individual to commit the crime at hand and whether the

offender's propensity to re-offend, Commonwealth v. Stephens, 74 A.3d 1034, 1038-1039 (Pa.

Super. 2013). The risk of re-offending is not an independent clement of the SVP determination,

rather one factor that must be considered. Id.

        The Commonwealth has the burden of proof by clear and convincing evidence that the

individual is a sexually violent predator. 42 Pa.C.S.A. This standard is met when the evidence is

"so clear, direct, weighty and convincing as to enable      f the   trier of fact] to come to a clear

conviction, without hesitancy, of the truth of the precise facts [at] issue." Commonwealth v.

Prendes, 97 A.3d 337, 355 (Pa.Super, 2014). On appeal, the evidence must be viewed in the light




                                                 24 · · ·
 most favorable to the Commonwealth and the reviewing Court should not substitute its judgment

 for that of the trial court. id.

         A determination of whether an individual is a sexually violent predator is triggered by a

 conviction of a sexually violent offense. 42 Pa.C.S.A. § 9799.24(a) Upon receipt of a court order,

 a member of the Sexual Offenders Assessment Board C\SOABu) conducts an assessment of the

 individual to determine       if he is an SVP. 42 Pa.C.S.A. § 9799.24(b).         In making this

determination, the SOAB board member must consider:

       (I) Facts of the current offense, including:
           (i) Whether the offense involved multiple victims.
           (ii) Whether the individual exceeded the means necessary to achieve the offense.
           (iii) The nature of the sexual contact with the victim.
           (iv) Relationship of the individual to the victim.
           (v) Age of the victim.
           (vi) Whether the offense included a display of unusual cruelty by the individual
           during the commission of the crime.
           (vii) The mental capacity of the victim.
       (2) Prior offense history, including:
           (i) The individual's prior criminal record.
           (ii) Whether the individual completed any prior sentences.
           (iii) Whether the individual participated in available programs for sexual
          offenders.
      (3) Characteristics of the individual, including:
          (i) Age.
          (ii) Use of illegal drugs.
          (iii) Any mental illness, mental disability or mental abnormality.
          (iv) Behavioral characteristics that contribute to the individual's conduct.
      ( 4) Factors that are supported in a sexual offender assessment field as criteria
      reasonably related to the risk of reoffcnse.             !·

                  42 Pa.C.S.A. § 9799.24(b).

       All factors need not be present to support an SVP determination nor are there a specific

number of factors that must be met. Prendes, 97 A.3d at 358. The Court ultimately determines

whether the Commonwealth            has presented evidence sufficient   to establish by clear and


                                                  25
    convincing evidence that the individual has met the statutory definition of a sexually violent

    predator. Id.

            On March 19, 2015, the SVP determination process was triggered when Appellant was

    found guilty after a trial by jury of two Tier III sexual offenses and two Tier I sexual offenses."

    42 Pa.C.S.A §9799. 14. Each of these were factually based on the Appellant engaging in sexual

    contact with K.L.C., a child under the age of 13 years old. By Order dated March 23, 2015, an

    assessment was ordered to determine whether Appellant is a sexually violent predator. Brenda

    M. Manno conducted the assessment and was recognized at the SVP hearing as an expert in the
                                                                                     7
    field of behavior assessment and treatment of sexually violent predators.

            At Appellant's SVP hearing, which was conducted prior to his sentencing on June 26,

2015, Ms. Manno testified extensively about each statutory factor including Appellant's

diagnosis of Anti-Social Disorder:

                    MS. MANNO: Yes. We look at whether or not there are multiple victims
           in this case, and there's only one victim. Whether pr not the offender exceeded the
           means necessary to achieve the offense. The victim discusses several incidents of
           offenses. She did discuss an incident where she was in the woods with her father,
           and she stated that he wanted her to engage in sexual activity. She declined, that
           he put her, she referred to it, in a sleeper hold, and she passed out, and when she
           woke up, he was sexually fondling her genital area.
                    So I found that there was exceeding the means necessary to achieve the
           offense.
                    The nature of the sexual contact with the daughter involved exposing her,
           attempting to have her perform sexual acts on him and digitally penetrating her
           vagina. As I stated, he was the biological father of this child. She was between
           seven to twelve year of age at the time that the abuse incidents occurred.
                    I did find that there was unusual cruelty present in the allegations of the
           offending behavior.

6
  Criminal attempt: Involuntary Deviate Sexual Intercourse with Child and Aggravated Indecent Assault of a Child
are Tier JIJ sexual offenses. Corruption of Minors and Indecent Assault are Tier I offenses.
7
  Ms. Manno is a licensed clinical social work and a board ll}C!ll~C( for the Sexual Offender Assessment Board
("SAOB") since 1998. N.T., p. 5. Since her appointment to the SAO~, she has conducted 1,486 evaluations, 985 of
which were found to be sexually violent predators. N. T, p. 6.
                                                       26
                  I did not find, in the record, that she had mental limitations that increased
         vulnerability. However, I felt she was vulnerable due to her young age at the time
         of the assaults and the fact that he held the role of her biological father.
                  We do look at prior offending history. He has an extensive prior criminal
         history both as a juvenile and an adult. He has completed prior sentences. He has
         not been previously court ordered to engage in any sex offender specific treatment
         nor, to my knowledge, did he ever seek that out on his own.
                  We look at characteristics of him. He would have been between twenty-
         seven to thirty-three years of age at the time of the incidents. He did admit a
         lengthy history of illegal drug use. He even reported in some of the psychiatric
         evaluations that he self-medicated through substance abuse.
                 He does have a prior mental health history for diagnosis and treatment.
                 As l outlined, as a juvenile, he was evaluated at Hamot Hospital, and
         given diagnosis of conduct disorder as a child. He also was given a post-traumatic
        stress disorder diagnosis, depressive . disorq.ef · not otherwise specified and
        polysubstance abuse and that would have been when he was fifteen years of age.
         So we have that history established of the conduct disorder.
                 There were several different reports from Stairways. I noted one Stairways
        Behavioral Health report in October of 2013. At that time they had concerns
        because Mr. Crooks presented with hallucinations of wanting to beat people. He
        indicated that he had engaged in cutting and burning behaviors himself.
                 He admitted a history of homicidal ideations. He referred back to behavior
        as a child stating that he was in trouble for taking a pistol to school when he was
        thirteen years or age.
                 He also noted a history of both physical and sexual abuse to him. At that
        time, he was diagnosed with bipolar disorder unspecified, antisocial personality
        disorder. There was another May 13th Stairways evaluation that also diagnosed
        him with antisocial personality disorder. So there's been a lengthy history of prior
        mental health diagnosis, hospitalizations and treatment.
                  Behavioral characteristics, I talk about the fact he does have a prior
        criminal history, although none of those arc noted sexual in nature.
                 N. T. p. 9-11.                          ; ·.\ ·

       Based on this evaluation, Ms. Manno agreed with the historic diagnosis of anti-social

personality disorder. Ms. Manno also went through each of the diagnostic criteria for anti-social

personality disorder the DSM in relation to Appellant:




                                                 27
                  MS. MANNO: It indicates that there is a pervasive pattern disregard for
         and the violation of the rights of others occurring since the age of fifteen as
         indicated by three or more of the following and it gives seven specific factors. It
         says that there's failure to conform to social norms with respect to lawful
         behaviors as indicated by repeatedly performing acts that are grounds for arrest,
         which we clearly have in this case. Deceitfulness, as indicated by repeated lying,
         use of aliases or conning others for personal profit or pleasure. Impulsivity or
         failure to plan ahead. Irritability and aggressiveness, as indicated by repeated
         physical fights or assaults which I've seen in the records. Reckless disregard for
         safety of self and others, which I've seen. Consistent irresponsibility, as indicated
         by repeated failure to sustain consistent work behavior or honor financial
         obligations.
                 N.'J'. p. 13.

         When asked what relevance this diagnosis had to SVP status, she recalled the history of

 ideations of physical harm to others, which manifested in Appellant putting K.L.C. in a choke

 hold when she refused his sexual advances. N. T p. I/. Ultimately, Ms. Manno concluded

 Appellant's   anti-social personality disorder, a lifetime disorder, would make him likely to

reoffend. Specifically she commented that he was someone who "no matter what the situation, he

engages in behavior that he desires or that benefits him, disregarding how that may affect other

people." N. T p. J 2.

         Additionally, Ms. Manno found Appellant's conduct demonstrated predatory behavior as

set forth in the statute:

                 Clearly, this is not a stranger victim, this is his child. The relationship was
        initiated and established by birth, but I find maintenance or promotion of that
        relationship, at least in part, from the father/daughter relationship to the sexual
        realm in the fact that over a period of years the victim has reported more than one
        incident where he has attempted or made her engage in sexual activity with him.

        Ultimately, Ms. Manno concluded based on a reasonable degree of professional certainty

that Appellant is a sexually violent predator under the statute. N. 'J'. p. J 4.
                                                  ..     '




                                                    28
        The Court     accepted   Ms.   Manno's     opinion   and   her reasoning     in finding    the

Commonwealth met its burden of proof to establish Appellant met the statutory criteria to be

classified an SVP. Appellant correctly states there is no evidence of prior deviate sexual acts.

However, prior history is only one factor to be considered in evaluating whether a defendant met

the statutory criteria to be classified a sexually violent predator. Appellant's counsel thoroughly

cross examined Ms. Manno as to this fact and Ms. Manno considered the lack of this factor when

formulating her opinion. Absence of one particular factor does not negate a finding an individual

is an SVP. Numerous other factors, as testified to by Ms: Manno were present which supported

the finding that Appellant met the statutory criteria to be designated   a sexually violent predator.

Therefore, the Commonwealth      met its burden and Appellant was correctly designated a sexually

violent predator.

                                         CONCLUSION

        For the reasons stated herein, Appellant's claims are waived and/, r meritless.




cc: District Attorney's Office
    Tina Fryling, 509 Sassafras St., Erie, PA 16507




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