J-S03023-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RICARDO TORRES                             :
                                               :
                       Appellant               :   No. 825 EDA 2016

            Appeal from the Judgment of Sentence February 29, 2016
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0013755-2014,
                                          CP-51-CR-0013756-2014


BEFORE:      BENDER, P.J.E., PANELLA, J., and STEVENS, P.J.E.

MEMORANDUM BY PANELLA, J.                                 FILED JULY 16, 2018

        Ricardo Torres appeals from the judgment of sentence entered in the

Philadelphia County Court of Common Pleas following his convictions on two

counts each of corruption of minors, indecent assault of a person less than

thirteen, and unlawful contact with a minor.1 We affirm.

        The trial court succinctly set forth the relevant facts and procedural

history of this case as follows:

        During 2013 and 2014, the complainant A.S. – then between six
        and seven years old – spent several days a week at her
        grandmother’s house on East Clearfield Street in Philadelphia. The
        grandmother’s husband, along with her then nine-year-old son
        M.T. and adult stepson [Appellant], also lived in the house. On
        more than one occasion, while A.S.’s siblings were playing with

____________________________________________


   Former Justice specially assigned to the Superior Court.

1   18 Pa.C.S.A. §§ 6301(a)(1)(ii); 3126(a)(7); and 6318(a)(1), respectively.
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      M.T., [Appellant] took A.S. to an upstairs back bedroom located
      behind M.T.’s room. He put her on his lap, and touched her vagina
      over her clothing. Sometimes A.S.’s friend A.J., who lived across
      the street from [Appellant], was present during the assault. A.S.
      also saw [Appellant] touch A.J.’s “private parts” on more than one
      occasion.

      A.J. also used to frequent the house where [Appellant] lived
      between 2013 and 2014. She was around seven years old at the
      time. [Appellant] would put A.J. on his lap and touch “close to
      [her] butt,” on her stomach, and in her vaginal area. The assaults
      happened on more than one occasion, either in the downstairs
      playroom, upstairs in M.T.’s room, or in [Appellant’s] stepmother’s
      room.

      At the close of the Commonwealth’s case, [the trial] court granted
      [Appellant’s] motion for judgment of acquittal as to the two counts
      of endangering the welfare of a child. The court found him guilty
      of the remaining charges and deferred sentencing for a
      presentence investigation, mental health evaluation, and
      evaluation by the Sexual Offenders Assessment Board. On
      February 29, 2016, the court sentenced him to five years of
      probation. This appeal followed.

Trial Court Opinion, filed 3/22/17, at 1-2.

      Appellant purportedly raises a single question on appeal. Upon review

of his brief, we observe that Appellant actually raises two distinct issues

regarding trial testimony from Christian Dozier, a forensic interviewer from

the Philadelphia Children’s Alliance. Below, we address the first issue, a

challenge under Pennsylvania Rule of Evidence 701 to Ms. Dozier’s lay witness

testimony about her impressions of A.J.’s disclosure. Appellant’s second issue

specifically contests the admission of Ms. Dozier’s testimony about typical

disclosures from a sexually abused child, given the Commonwealth’s failure to

qualify her as a behavioral expert on sexual violence under 42 Pa.C.S.A. §

5920. The latter challenge has not been preserved for our review.

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      On appeal, a party may challenge the trial court’s admission of evidence

only if the party made a timely objection on the record at trial, and stated the

specific ground for excluding such evidence. See Pa.R.E. 103(a)(1)(A)-(B).

“Our Supreme Court’s rules on issue preservation simply do not allow the

parties to change their theories for relief indiscriminately as they move

through the trial and appellate processes.” Commonwealth v. Gordon, 528

A.2d 631, 639 (Pa. Super. 1987) (per curiam). “Issues not raised in the lower

court are waived and cannot be raised for the first time on appeal.” Pa.R.A.P.

302(a).

      If ordered, an appellant must file a concise statement of errors

complained of on appeal, pursuant to Pa.R.A.P. 1925(b). “The Statement shall

concisely identify each ruling or error that the appellant intends to challenge

with sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P.

1925(b)(4)(ii). “When a court has to guess what issues an appellant is

appealing, that is not enough for meaningful review.” Commonwealth v.

Allshouse, 969 A.2d 1236, 1239 (Pa. Super. 2009) (citation omitted).

      At   trial,   Appellant   objected   to   the   question   counsel   for   the

Commonwealth posed to Ms. Dozier, asking if A.J.’s disclosure of sexual abuse

was typical for a child. See N.T., Trial, 11/24/15, at 149. However, Appellant

specifically objected to the question’s relevance. See id. Appellant does not

raise any issue on appeal concerning the relevance of this testimony.

      Also, Appellant’s Rule 1925(b) statement unambiguously objects to Ms.

Dozier’s alleged bolstering of A.J.’s testimony as a violation of Pa.R.E. 701.

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See Appellant’s Supplemental Statement of Errors Complained of on Appeal,

filed 8/22/16, at 2 (unpaginated). In its opinion, the trial court responds only

to Appellant’s challenge under Rule 701. See Trial Court Opinion, filed

3/22/17, at 2-3. Appellant’s first mention of 42 Pa.C.S.A. § 5920 is in his

appellate brief.

      At trial, Appellant failed to specifically object to Ms. Dozier’s testimony

about other sexual abuse victims based on her lack of qualification as an

expert witness under § 5920. And his Rule 1925(b) statement was insufficient

to alert the trial court to his § 5920 claim. Therefore, we find this argument

waived. See Pa.R.A.P. 302(a); Pa.R.A.P. 1925(b).

      In his remaining dispute, Appellant argues Ms. Dozier testified, over

objection, to A.J.’s demeanor during her forensic interview. Appellant asserts

this evidence was not within the confines of lay witness opinion testimony

permitted by Pa.R.E. 701. Appellant contends that even if Ms. Dozier had

testified as an expert witness, this testimony constituted an impermissible

personal opinion of A.J.’s credibility and character for honesty. Appellant

insists Ms. Dozier’s statement about A.J.’s demeanor during the interview

bolstered A.J.’s credibility, and prevented him from obtaining a fair trial.

Appellant concludes we must vacate his judgment of sentence, and remand

for a new trial. We disagree.

      “Admission of evidence is within the sound discretion of the trial court

and will be reversed only upon a showing that the trial court clearly abused

its discretion.” Commonwealth v. Drumheller, 808 A.2d 893, 904 (Pa.

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2002) (citation omitted). “Accordingly, a ruling admitting evidence will not be

disturbed on appeal unless that ruling reflects manifest unreasonableness, or

partiality, prejudice, bias, or ill-will, or such lack of support to be clearly

erroneous.” Commonwealth v. Berry, 172 A.3d 1, 3 (Pa. Super. 2017)

(citation omitted).

      Pennsylvania Rule of Evidence 701 states that in cases where a witness

is not testifying as an expert, his or her opinion testimony must be limited to

what is: “(a) rationally based on the witness’s perception; (b) helpful to clearly

understanding the witness’s testimony or to determining a fact in issue; and

(c) not based on scientific, technical, or other specialized knowledge within

the scope of Rule 701.” Pa.R.E. 701.

      “Generally, lay witnesses may express personal opinions related to their

observations on a range of subject areas based on their personal experiences

that are helpful to the factfinder.” Berry, 172 A.3d at 3-4 (citations omitted).

“[L]ay opinion testimony embracing an ultimate issue in a case is admissible

as long as the witness perceived the events upon which his opinion is based.”

Commonwealth v. Bowser, 624 A.2d 125, 133 (Pa. Super. 1993) (citation

omitted).

      At trial, counsel for the Commonwealth questioned Ms. Dozier about the

summary she wrote while conducting A.J.’s interview. See N.T., Trial,

11/24/15, at 140. After Ms. Dozier read the summary and refreshed her

recollection, counsel asked her to testify about her impressions of A.J.’s

disclosure at the time of the interview. See id., at 144. Appellant objected,

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on the basis that the Commonwealth was asking for “expert opinion about the

child’s credibility with regard to the disclosure.” Id., at 145. Counsel for the

Commonwealth denied that she was asking for a credibility assessment, and

again asked Ms. Dozier what she had written in her report after the court

overruled the objection. See id. Ms. Dozier replied that A.J.’s forensic

interview was consistent with the statements received in A.J.’s intake

materials. See id. She also stated A.J. relayed specific sensory details of the

incident, including that Appellant’s hands felt warm, and “like someone was

pinching her.” Id., at 145-146. Counsel for the Commonwealth then played

the video of the interview. See N.T., Trial, 11/24/15, at 146.

      Appellant fails to explain how Ms. Dozier’s testimony violated Pa.R.E.

701. As Appellant points out in his appellate brief, opinion testimony regarding

A.J.’s credibility would have been improper even if Ms. Dozier had been

qualified as an expert. See Appellant’s Brief, at 12. However, at no point in

her testimony did Ms. Dozier express a belief that A.J. was telling the truth.

And aside from the erroneous assertion that Ms. Dozier vouched for A.J.’s

credibility, Appellant fails to explain how Ms. Dozier’s testimony was in

violation of Pa.R.E. 701. Thus, Appellant’s issue lacks merit. Accordingly, we

affirm his judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/16/18




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