J-S06028-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                           :         PENNSYLVANIA
                                           :
                v.                         :
                                           :
                                           :
 NAZEER TAYLOR                             :
                                           :
                      Appellant            :    No. 856 EDA 2017

          Appeal from the Judgment of Sentence January 31, 2017
   In the Court of Common Pleas of Montgomery County Criminal Division
                     at No(s): CP-46-CR-0003166-2014


BEFORE: BOWES, J., McLAUGHLIN, J., and MUSMANNO, J.

MEMORANDUM BY McLAUGHLIN, J.:                    FILED SEPTEMBER 10, 2018

         Nazeer Taylor appeals from the judgment of sentence entered following

his convictions for rape of a child and related charges. Taylor claims the trial

court erred in certifying his case to criminal court, failing to grant a mistrial,

and precluding use of psychiatric testimony regarding the victim, A.O. We

affirm.

         Taylor was charged in a delinquency petition with multiple counts

stemming from the sexual abuse of his foster brother, A.O., from July 2012

through August 2013. Taylor was 15 years old at the time of the crimes, and

A.O. was 11 years old. Taylor’s date of birth is September 12, 1996, and he

is now over the age of 21. The juvenile court held a certification hearing on

April 2 and 25, 2014, to determine whether to transfer the case to criminal

court.
J-S06028-18



      At the hearing, A.O. testified that the abuse occurred while he and

Taylor were living with their foster mother, Gloria Parker (“Foster Mother”),

and began shortly after A.O. began the sixth grade. N.T. Certification Hearing,

4/2/14, at 9, 11-30. A.O. stated that Taylor threatened to “beat [him] up” if

he reported the abuse to anyone. Id. at 19. A.O. also testified that the

assaults caused physical damage that affected his ability to control his bowel

movements. Id. at 33.

      Foster Mother testified that she observed behavioral changes in A.O.,

who “was trying to pull his tongue out of his mouth and . . . soiling his

clothing.” Id. at 79-80. Foster Mother also described a time when she

discovered Taylor and A.O. in the bathroom together. Id. at 84-85.

      The Commonwealth presented the expert testimony of Michael Yoder, a

supervisor with the Montgomery County Juvenile Probation Department,

regarding amenability to treatment and the options available in the juvenile

and adult systems. N.T., 4/25/14, at 76, 78. He testified that the allegations

against Taylor were not typical of juvenile sex offender behavior, given the

degree and seriousness of the crimes, and the sophistication displayed by

Taylor in committing the crimes. Id. at 88-89. He noted that Taylor committed

the crimes “while he was in foster home placement, under the roof of the

foster parents while the foster parents were at home, [by] going into the

victim’s room and . . . into the bathroom.” Id. Taylor also committed the

assaults after having been convicted of burglary and undergoing intensive

therapy treatment. Id. at 89. Yoder explained that residential treatment for

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sex offenders takes a minimum of two years, and that the juvenile system

would retain jurisdiction over Taylor for only one year after his release from

such a program. Id. at 90-91. Yoder therefore opined that Taylor was not

amenable to treatment in the juvenile system. Id. at 90. Instead, Yoder

recommended the youthful offender program at the State Correction

Institution at Pine Grove. Id. at 91. Yoder testified regarding the programs

offered at Pine Grove and stated that Pine Grove “handles all youthful

offenders throughout the state” and is “designated as the facility for youthful

offenders.” Id. at 92.

      Taylor presented the testimony of Dr. Nicole Machinski, an expert in the

identification and treatment of juvenile sex offenders and in the certification

of sex offenders. Id. at 9, 12. Dr. Machinski described Taylor’s family

background and his history of suffering neglect and abuse. Id. at 13-15. Dr.

Machinski diagnosed Taylor “with adjustment disorder with mixed anxiety and

depressed mood, as well as physical abuse of a child and sexual abuse of a

child.” Id. at 15. Dr. Machinski also testified regarding Taylor’s criminal history

and his previous experience and progress with therapy. Id. at 16-20. The

doctor opined that Taylor would be amenable to treatment in the juvenile

system. Id. at 27. She made this conclusion because he “had very little

opportunity to benefit from any kind of treatment provided by the juvenile

justice system thus far,” he has shown he responds well to consistent

treatment, and he expressed a willingness to participate in treatment. Id. at

27.

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       On cross-examination, Dr. Machinski stated that she based her

testimony on her interviews with Taylor, Taylor’s counsel, and the Department

of Human Services (“DHS”) worker, and on her review of Taylor’s DHS file.

Id. at 31-32. The doctor admitted that Taylor had committed the sexual

assaults six months after he had completed an intensive therapy program. Id.

at 41-42. Dr. Machinski drew a distinction between Taylor’s previous

treatment and sex offender treatment. She noted that his prior treatment had

focused on defiance and oppositional behavior, rather than inappropriate

sexual behavior. Id. at 42. However, she agreed that a person who exhibits

antisocial behavior, such as residential burglary, would be less amenable to

treatment. Id. at 44-45.1

       After the close of the evidence, the Commonwealth argued that

certification was proper because Taylor had committed a series of forcible

rapes starting when the victim was 11, which had a severe impact on the

victim. The Commonwealth further argued that having a rapist in the

community creates a danger to, and has a serious impact on, the community,

and poses a threat to public safety. The prosecution also pointed out that the

crimes were a series of violent, forcible rapes, and that Taylor was the most

culpable, as he was the rapist. See N.T., 4/25/14, at 107-12.




____________________________________________


1Taylor also presented Alda Sales-Vinson, the caseworker from DHS who had
been overseeing Taylor’s case.


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      At the conclusion of the hearing, the juvenile court determined that

Taylor should be tried as an adult and certified the case to the criminal

division. The court stated that it had considered the statutory factors and

agreed with the Commonwealth’s reasoning, including the reasoning for the

impact of the offense on the victim, the impact of the offense on the

community, the threat to the safety of the public, the nature and

circumstances of the offense, and the degree of culpability. Id. at 115.

      The court also discussed the factors addressing the adequacy and

duration of treatment and amenability of Taylor to treatment, which were the

factors addressed by the experts at the hearing. The juvenile court noted that

the defense expert was inconsistent in her attempt to distinguish the prior

treatment from treatment for sexual offenders, noting that the expert argued

that the court should not find Taylor not amenable to treatment based on his

prior treatment because the prior treatment did not address sexual abuse and,

therefore, the treatments could not be compared, but also argued that Taylor

is amenable to sexual offender treatment because he did well in prior

treatments. Id. at 112-13. The court further noted that Taylor “had an

unfortunate upbringing, through no fault of his own,” and “[t]o a certain extent

he is antisocial and damaged,” but pointed out that the case involved a

“predatory damaging act that occurred repeatedly over a 1-year period of

time.” Id. at 113, 114. It also observed with concern that Taylor would not

admit he committed the sex offenses and stated that his failure to do so posed

an impediment to effective sex-offender treatment:

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      If you're going to go on the sex offenders’ treatment, it’s
      important that you admit, No. 1; examine your triggers, No. 2;
      talk about how you can avoid your triggers; and identify the depth
      of the problem. And here, we can’t identify the depth of the
      problem largely because we’re not admitting yet that there is a
      problem.

Id. at 113-14. The court noted that Taylor’s time in the juvenile system was

running out and “if he doesn't make sufficient progress, he’s 21, he’s back on

the streets, and he’s released from the jurisdiction of the Court with no

supervision at all.” Id. at 114-15.

      The court concluded that Taylor was not amenable to juvenile treatment

and granted certification:

         And when Dr. Machinski in her report indicates the issues
         that he needs treatment in and the Commonwealth argues,
         well, none of this has to do with amenability within the
         statute, well, it might, when you have four other categories.
         It would certainly refer to amenability for a crime that’s
         much less serious than this. But I don’t know that it means
         anything with regard to somebody who’s committed the
         type of act that he’s alleged to have committed.

         So for all the reasons in the statue as enumerated by Mr.
         Antonacio and because it’s defense burden of proof, I'm
         going to grant the Commonwealth’s motion to certify him to
         adult court. Thank you.

Id. at 115.

      Following the transfer, the trial court conducted a jury trial. During

Foster Mother’s trial testimony, she stated that she became alarmed one day

when she discovered Taylor and A.O. in the bathroom and she smelled semen.

N.T. Trial, 6/20/16 at 92-93, 94. She said that she knew the smell of semen

because she was “a correction officer for the Philadelphia Prison for over ten


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years. And . . . if I'm there by the shower area, you could smell that smell

coming out the shower area where men would be in there I guess, you know,

doing whatever, having sex or whatever, or masturbation. . . .” Id. at 94.

Taylor did not object.

      Foster Mother subsequently testified that Taylor would bring A.O. snacks

and that she confronted Taylor, saying, “I worked in the prison for over ten

years and this is what inmates do -- [.]” Id. at 97. Defense counsel objected.

The trial court sustained the objection and, after an off-the-record discussion,

gave a cautionary instruction to the jury: “[A] few minutes ago the witness

referred to, she used words to the effect that that’s what inmates do. That

was in no way a reference in any way, shape or form to this particular

defendant. She’s referring back to some of her experience as a prison guard.”

Id. at 109.

      Following Foster Mother’s testimony, defense counsel moved for a

mistrial, citing Foster Mother’s comments about inmates’ behavior, stating he

was making the motion “as we discussed earlier at sidebar.” Id. at 133. The

trial court denied the motion.

      A.O. also testified at trial, and following direct examination, Taylor’s

counsel informed the court that A.O. had received a psychiatric examination

in 2011, prior to moving to Foster Mother’s home, which disclosed that he had

had problems controlling his bowels. Id. at 42. Counsel sought permission to

ask A.O. whether “that, in fact, happened, and depending on his answer [he]

would call the doctor to elicit that information.” Id. Counsel noted that A.O.’s

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attorney had moved to quash the subpoena sent to the psychiatrist, and

admitted that he was not asserting any exception to the psychiatrist-patient

privilege. Id. at 43. The trial court refused to allow the questioning of A.O, or

to require the psychiatrist to testify.

       The jury found Taylor guilty of numerous crimes: rape of a child; rape

by forcible compulsion; rape by threat of forcible compulsion; three counts

each of involuntary deviant sexual intercourse by forcible compulsion,

involuntary deviant sexual intercourse by threat of forcible compulsion, and

involuntary deviate sexual intercourse with a child; four counts of sexual

assault; two counts of indecent assault by forcible compulsion; and indecent

assault of a person less than thirteen years of age. 2 On January 31, 2017,

Taylor was sentenced to an aggregate term of ten to 25 years’ incarceration,

followed by ten years’ probation. Taylor filed a timely notice of appeal.

       Taylor presents the following issues on appeal:

          1. Whether the trial court erred in certifying [Taylor] to be
          tried as an adult.

          2. Whether the trial court erroneously denied [Taylor]’s
          mistrial motion.

          3. Whether the trial court erred in preventing [Taylor] from
          introducing evidence indicating that [A.O.] had bowel
          control problems before he ever met [Taylor].


____________________________________________


218 Pa.C.S.A. §§ 3121(c), (a)(1), (a)(2); 3123(a)(1), (a)(2), (b); 3124.1;
and 3126(a)(2) and (a)(7), respectively.



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Taylor’s Br. at 10.3

    I.      Certification Hearing

         Taylor first claims the juvenile court erred in certifying him to be tried

as an adult. Taylor’s main argument on appeal is that the court violated his

Fifth Amendment right against compulsory self-incrimination because it based

its certification decision on the fact that Taylor had not admitted to the crimes.

Taylor also argues that the juvenile court erred in accepting the testimony of

the Commonwealth’s expert that Taylor would not be amenable to treatment,

rather than the defense expert testimony that he was amenable to treatment.

He further argues that he is incarcerated at SCI Benner, not SCI Pine Grove,

even though the testimony at the certification hearing addressed the

programs for juvenile defendants at Pine Grove.

         Taylor first claims the trial court erred in certifying him to be tried as an

adult. We review a trial court’s decision of whether to certify a minor to stand

____________________________________________


3 The documents from the juvenile case file associated with Taylor’s case,
including the transcript of the certification hearing, were not initially included
in the certified record. As we require a complete record to decide the issues,
and may not consider documents not included in the certified record, see
Commonwealth v. Preston, 904 A.2d 1, 7 (Pa.Super. 2006) (en banc), we
ordered the trial court to supplement the record with the requisite portions of
the juvenile case file. The court did so, and we received the supplemental
record on March 28, 2018. We caution that it is an appellant’s duty to ensure
that the certified record is complete, and that any claims that may not be
resolved due to missing documents, such as transcripts, may be deemed
waived. See id.; see also Commonwealth v. B.D.G., 959 A.2d 362, 373
(Pa.Super. 2008) (en banc) (claim waived where certified record lacked
documents and exhibits necessary to resolve claim, and where those
documents and exhibits were not included on the Pa.R.A.P. 1931(d) list of
record documents served on counsel).

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trial as an adult for an abuse of discretion. In re E.F., 995 A.2d 326, 329 (Pa.

2010). “The existence of facts in the record that would support a contrary

result does not demonstrate an abuse of discretion.” Id. Rather, we will find

an abuse of discretion only where “the court rendering the adult certification

decision . . . misapplied the law, exercised unreasonable judgment, or based

its decision on ill will, bias, or prejudice.” Id. (Commonwealth v. Jackson,

722 A.2d 1030, 1034 (Pa. 1999)).

       Pursuant to the Juvenile Act, a court may transfer to criminal court a

case involving a juvenile defendant who is 14 or more years of age if there is

a prima facie case that the child committed the delinquent act alleged, the

delinquent act would be considered a felony if committed by an adult, and

there are reasonable grounds to believe that the public interest would be

served by the transfer. 42 Pa.C.S.A. § 6355(a)(4)(i)–(iii).4 In determining

whether certifying a juvenile as an adult can serve the public interest, courts

must consider the following factors:

          (A) the impact of the offense on the victim or victims;

          (B) the impact of the offense on the community;

          (C) the threat to the safety of the public or any individual
          posed by the child;

          (D) the nature and circumstances of the offense allegedly
          committed by the child;


____________________________________________


4 The parties do not dispute that Taylor was 15 at the time of the crimes, that
there was a prima facie case that Taylor committed the acts, or that the
delinquent acts would be considered felonies if committed by an adult.

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         (E) the degree of the child’s culpability;

         (F) the adequacy and duration of dispositional alternatives
         available under this chapter and in the adult criminal justice
         system; and

         (G) whether the child is amenable to treatment, supervision
         or rehabilitation as a juvenile by considering the following
         factors:

              (I) age;

              (II) mental capacity;

              (III) maturity;

              (IV) the degree of criminal sophistication exhibited by
              the child;

              (V) previous records, if any;

              (VI) the nature and extent of any prior delinquent
              history, including the success or failure of any previous
              attempts by the juvenile court to rehabilitate the child;

              (VII) whether the child can be rehabilitated prior to the
              expiration of the juvenile court jurisdiction;

              (VIII) probation or institutional reports, if any;

              (IX) any other relevant factors. . . .

42 Pa.C.S.A. § 6355(a)(4)(iii)(A)-(G).

      In most cases, the Juvenile Act places the burden on the Commonwealth

to prove by a preponderance of evidence that transfer would be in the public

interest. 42 Pa.C.S.A. § 6355(g). However, the burden shifts to the defense

to establish that that transfer would not serve the public interest if the juvenile

was at least 15 years old at the time of the offense; was previously adjudicated

delinquent of a crime that would be considered a felony if committed by an

adult; and there is a prima facie case that the child committed an act that


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would be classified as, among other things, rape or involuntary deviate sexual

intercourse. 42 Pa.C.S.A. § 6355(g)(1)(ii), (2). Here, because Taylor was 15

at the time of the alleged crimes, had a prior adjudication for burglary, and

there was a prima facie case that he had committed rape, the defense bore

the burden of proving that transfer was not proper.

       Taylor’s main argument on appeal is that the trial court violated his Fifth

Amendment right against compulsory self-incrimination because it based its

certification decision on the fact that Taylor had not admitted to the crimes.

Although Taylor did not raise this claim in his Rule 1925(b) statement, he did

not waive it. Whether certification is proper is a question of jurisdiction, which

cannot be waived. Commonwealth v. Johnson, 669 A.2d 315 (Pa. 1995)

(“[T]he decision to transfer a case between the juvenile and criminal divisions

is jurisdictional”); Commonwealth v. McGinnis, 675 A.2d 1282, 1284

(Pa.Super. 1996) (stating issue of certification of juvenile to stand trial as

adult is jurisdictional and cannot be waived).

       In Commonwealth v. Brown, 26 A.3d 485 (Pa.Super. 2011), we held

that the Fifth Amendment right against compulsory self-incrimination is

applicable to decertification5 proceedings. Id. at 495. We further concluded

that the trial court had violated the defendant’s Fifth Amendment rights when
____________________________________________


5 The Juvenile Act excludes certain crimes, such as murder, from the definition
of “delinquent act.” 42 Pa.C.S.A. § 6302. Therefore, a case charging juvenile
with murder, as was the case in Brown, is brought before the criminal
division. 26 A.3d at 492. The juvenile can then request treatment within the
juvenile system by petitioning the trial court to decertify the case and transfer
the proceedings to juvenile court. Id.

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applying the Section 6355 factors. Id. at 498. There, the trial court relied on

expert testimony that the defendant could not be rehabilitated unless he took

responsibility for his actions, which he had not done, and concluded that the

defendant would not be amenable to treatment in the juvenile system. Id. at

498.

       Here, in stating its reasons, the juvenile court referenced Taylor’s failure

to admit guilt and that admission was a step in sex offender treatment. This

was error. Id. at 495. However, in our review of an order granting

certification, we do not focus on one aspect of the record alone. Rather, we

examine the record as whole to determine whether the ultimate decision of

granting certification was an abuse of discretion. McGinnis, 675 A.2d at 1286

(citing Commonwealth v. McDonald, 582 A.2d 328, 335 (Pa.Super. 1990)).

We presume that the juvenile court properly considered and weighed the

relevant information before it. Id. (citing McDonald, 582 A.2d at 333). See

also Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988). “[A]n appellate

court may not require detailed or intricate explanations of the rationale for

certification when a detailed juvenile file and arguments of counsel have been

presented for consideration.” McDonald, 582 A.2d at 333–34.

       On this record, we find the juvenile court did not abuse its discretion in

finding Taylor failed to carry his burden to establish that certification was not

proper. In rendering its decision, the court cited the seriousness of the alleged

crime, the time remaining in the court’s jurisdiction, and the failure of Taylor’s

previous treatment to prevent the alleged crimes. We conclude that, although

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the juvenile court stated an impermissible consideration, based on all evidence

presented at the hearing, and the totality of the reasoning provided by the

juvenile court, the juvenile court did not abuse its discretion.

         To the extent Taylor argues that the trial court erred in accepting the

testimony of the Commonwealth’s expert that Taylor would not be amenable

to treatment, rather than the defense expert testimony that he would be

amenable, we find this claim to be meritless. The trial court did not abuse it

discretion in weighing the expert testimony, finding the defense expert

testimony inconsistent, and accepting the testimony of the Commonwealth

witness that Taylor would not be amenable to treatment.

         Further, Taylor claims that he is incarcerated at SCI Benner, not SCI

Pine Grove, and notes that the testimony at the certification hearing

addressed the programs for juvenile defendants at Pine Grove. We conclude

that this claim is meritless. We review a trial court’s certification decision

based on the circumstances as they existed at the time of the hearing.

Information regarding Taylor’s present place of incarceration was not before

the court at the time of the certification hearing (indeed, he had not been

convicted or sentenced). Therefore, based on the information the juvenile

court had before it, we conclude the court did not abuse it discretion.

   II.     Motion for Mistrial

         Taylor next agues the trial court erred in denying his motion for a

mistrial following Foster Mother’s testimony regarding her experience as a

corrections officer.

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      We review a trial court’s decision to grant or deny a motion for a mistrial

for an abuse of discretion. Commonwealth v. Rega, 933 A.2d 997, 1016

(Pa. 2007) (quoting Commonwealth v. Simpson, 754 A.2d 1264, 1272 (Pa.

2000)). A trial court should grant a mistrial only where “the incident upon

which the motion is based is of such a nature that its unavoidable effect is to

deprive the defendant of a fair trial by preventing the jury from weighing and

rendering a true verdict.” Id. (quoting Simpson, 754 A.2d at 1272).

      However, a trial court need not grant a mistrial “where cautionary

instructions are adequate to overcome any possible prejudice.” Id. (quoting

Simpson, 754 A.2d at 1272). “[C]ourts must consider all surrounding

circumstances before deciding that curative instructions were insufficient and

the extreme remedy of mistrial is required.” Commonwealth v. Manley, 985

A.2d 256, 266 (Pa.Super. 2009) (quoting Commonwealth v. Bracey, 831

A.2d 678, 682-83 (Pa.Super. 2003)). The circumstances courts must consider

include “whether the improper remark was intentionally elicited by the

Commonwealth, whether the answer was responsive to the question posed,

whether the Commonwealth exploited the reference, and whether the curative

instruction was appropriate.” Id. (quoting Bracey, 831 A.2d at 682-83). In

addition, “the law presumes that the jury will follow the instructions of the

court.” Commonwealth v. Brown, 786 A.2d 961, 971 (Pa. 2001) (citations

omitted).

      The trial court and Commonwealth claim that Taylor waived this claim

because he failed to seek a motion for a mistrial at the time of the testimony.

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Taylor did not object following Foster Mother’s testimony that she knew the

smell of semen from her work as a correction officer and did not seek a mistrial

based on this testimony. We therefore agree that Taylor waived this claim.

See Pa.R.A.P. 302(a) (stating issues not raised in lower court are waived and

cannot be raised for first time on appeal).

      However, we decline to conclude he waived the separate claim that the

trial court erred in denying his motion for a mistrial based on Foster Mother’s

testimony regarding inmates providing snacks. Taylor objected to Foster

Mother’s testimony regarding the snacks, the trial court sustained the

objection, and a sidebar occurred off the record. After the conclusion of her

testimony, counsel stated that “[a]s discussed earlier at sidebar,” he was

requesting a mistrial, focusing the request on the testimony regarding snacks.

Neither the Commonwealth nor the trial court indicated they were unaware of

a prior motion for a mistrial. Therefore, Taylor has not waived this claim.

      Nonetheless, we disagree that the trial court erred in denying the motion

for a mistrial. The trial court provided a cautionary instruction following the

testimony, ensuring the jury was aware that Foster Mother’s testimony was

not referring to Taylor, but rather to her prior experience as a corrections

officer. That was sufficient to dispel any confusion and we presume the jury

followed the court’s instructions. Brown, 786 A.2d at 971. In addition,

although   the   remark    was    responsive   to     a   question    posed   by   the

Commonwealth,      the    trial   court   sustained       counsel’s   objection,   the

Commonwealth did not exploit the reference, and the instruction was

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appropriate to remedy the allegedly improper testimony. See Manley, 985

A.2d at 266. We conclude the trial court did not abuse its discretion in denying

the motion for a mistrial.6

    III. Evidentiary Ruling

       Taylor next argues that the trial court erred when it ruled he could not

present the testimony of the psychiatrist who examined A.O. in 2011. He

claims that a psychiatric report stated that A.O. had trouble controlling his

bowels before he entered the foster home.

       We review a trial court’s evidentiary rulings for an abuse of discretion.

Commonwealth v. Nypaver, 69 A.3d 708, 716 (Pa.Super. 2013). An abuse

of discretion occurs “where the court has reached a conclusion that overrides

or misapplies the law, or where the judgment exercised is manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will.” Id.

       In Pennsylvania, the psychiatrist-patient privileges provides that:

          No psychiatrist or person who has been licensed under the
          act of March 23, 1972 (P.L. 136, No. 52), to practice
          psychology shall be, without the written consent of his
          client, examined in any civil or criminal matter as to any
          information acquired in the course of his professional
          services in behalf of such client. The confidential relations
          and communications between a psychologist or psychiatrist
          and his client shall be on the same basis as those provided
          or prescribed by law between an attorney and client.


____________________________________________


6 To the extent Taylor claims Foster Mother’s testimony regarding her religious
beliefs about homosexuality prejudiced the jury, which does not appear to
have been the basis of the motion for a mistrial, we agree with the trial court
that there is no evidence of prejudice to the jury. 1925(a) Op. at 16-17.

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42 Pa.C.S.A. § 5944.

      At trial, Taylor’s attorney alleged there was a psychiatric report from

2011 disclosing that A.O. had trouble controlling his bowels prior to entering

the foster home. Taylor requested permission to ask A.O. whether that was

true and to present the psychiatrist as a witness. N.T., 6/20/16, 42-44. A.O.’s

attorney had moved to quash the subpoena under Section 5944, and Taylor

did not assert any exception to the privilege.

      Because the report contained privileged information, and Taylor did not

establish any exception to the privilege, we conclude the trial court did not

abuse its discretion in excluding the evidence.

      On appeal, Taylor also claims the preclusion of the evidence violated his

constitutional right to confront witnesses against him. Taylor waived this claim

because he did not raise it before the trial court. Pa.R.A.P. 302(a);

Commonwealth v. Butler, 812 A.2d 631, 633 (Pa. 2002).

      Judgment of sentence affirmed.



      Judge Musmanno joins the memorandum.

      Judge Bowes concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/10/18

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