J-A18031-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     :    IN THE SUPERIOR COURT OF
                                                 :         PENNSYLVANIA
                                                 :
                v.                               :
                                                 :
                                                 :
    KELLY DASHAWN LEWIS                          :
                                                 :
                       Appellant                 :    No. 336 WDA 2016

            Appeal from the Judgment of Sentence January 28, 2016
              In the Court of Common Pleas of Allegheny County
             Criminal Division at No(s): CP-02-CR-0007104-2015


BEFORE:      BOWES, LAZARUS and OTT, JJ.

MEMORANDUM BY OTT, J.:                                     FILED AUGUST 09, 2018

        Kelly Dashawn Lewis appeals from the judgment of sentence entered on

January 28, 2016, in the Allegheny County Court of Common Pleas, made final

by the denial of post-sentence motions on February 8, 2016. On November

6, 2015, a jury convicted Lewis of indecent assault and corruption of minors. 1

The court sentenced Lewis to a term of 15 to 36 months’ incarceration,

followed by five years’ probation.             On appeal, Lewis raises voir dire and

admissibility of evidence challenges.                After a thorough review of the

submissions by the parties, the certified record, and relevant law, we affirm

the judgment of sentence.

        The trial court set forth the facts the case as follows:

____________________________________________


1   18 Pa.C.S. §§ 3126(a)(7) and 6301(a)(1), respectively.
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           At trial, ten year old [T.J.], the victim in this case, testified
     that she last saw [Lewis], whom she calls “Uncle Kelly,” on August
     13, 2014, at her “Nana’s” house for Nana’s going away party. She
     was eight years old at the time. She played at Nana’s house
     during the party, going in and out of the house frequently. At one
     point she found herself alone with [Lewis]. She walked into the
     house and [Lewis] was in the dining room by himself. He asked
     her to step into the kitchen. When they went into the kitchen, she
     sat on the vent and he stood in front of her, close to her. [The
     victim] testified that [Lewis] touched her in her “private area,”
     which she uses to go to the bathroom. She clarified that he
     touched her vagina over her clothes. The incident lasted two or
     three seconds and then she pushed him away and ran outside.
     Before she left, [Lewis] told her not to tell anyone “because no
     one’s going to believe you.” [The victim] acted like nothing had
     happened and did not tell her mother until January 2015. At first,
     she did not disclose abuse at her forensic interview. Later in the`
     interview, [the victim] told the interviewer that the inappropriate
     touching did happen. [The victim] confirmed that her disclosure
     was true because it happened and not because someone told her
     it happened.

             Next, Detective Rebecca Meder testified that she observed
     the forensic interview. Detective Meder testified that [the victim]
     initially denied that anyone touched her inappropriately but later
     in the interview stated [Lewis] touched her over her clothes in her
     private area. Video of the forensic interview was admitted.

            [Lewis] called his grandmother, Cordova Long-Eberhardt, or
     “Nana” as she’s better known to [the victim]. Long-Eberhardt
     testified that she was present for the entire party and never saw
     [Lewis] and [the victim] in the same room. Long-Everhardt could
     not confirm that [the victim] attended the party. [Lewis]’s aunt,
     Rosa Coleman, testified that she also did not see [the victim]
     anywhere near [Lewis] at the party. Coleman stated that she saw
     [the victim] at the party, but did not see her crying or upset at
     any point. James Long, [Lewis]’s uncle and godfather, testified
     similarly. Keaira Redmon, [Lewis]’s sister, echoed the testimony
     of Coleman and Long. She did not see [the victim] and [Lewis]
     together, and did not see [the victim] look upset or alarmed at
     the party. Redmon added that it was not possible that [Lewis]
     and [the victim] could have been in the kitchen by themselves
     because either Redmon or Long were in the kitchen at all times
     during the party. Kevin Fowler, [Lewis]’s cousin, also testified

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        that he was at this party and spent most of the party with [Lewis].
        He also stated that he never saw [the victim] and [Lewis]
        together, and that he never saw [the victim] crying or upset.

               Lastly, [Lewis] testified in his own defense. He testified that
        he did not recall seeing [the victim] at the party. He denied
        touching her inappropriately or even being alone with her. He
        testified that he has seven children whom he loves and with whom
        he has good relationships. On cross-examination, he admitted
        that he and the mother of two of his children started their
        relationship when he was twenty-two and she was sixteen.

Trial Court Opinion, 11/9/2016, at 3-4 (record citations omitted).

        Lewis was arrested and charged with one count each of indecent assault

(person less than 13 years of age), endangering the welfare of children

(“EWOC”),2 and corruption of minors.             On November 6, 2015, the jury

convicted Lewis of indecent assault and corruption of minors, but acquitted

him of EWOC. On January 28, 2016, the court sentenced Lewis to a term of

15 to 36 months’ imprisonment on the assault count, and a consecutive term

of five years’ probation on the corruption of minors offense. Lewis filed a post-

sentence motion, which was denied on February 8, 2016. This timely appeal

followed.3




____________________________________________


2   See 18 Pa.C.S. § 4304.

3  On March 9, 2016, the trial court ordered Lewis to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). After several
extensions of time, Lewis filed a concise statement on August 1, 2016. The
trial court issued an opinion pursuant to Pa.R.A.P. 1925(a) on November 9,
2016.

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      In his first argument, Lewis contends the trial court erred and/or abused

its discretion “by permitting the Commonwealth to ask prospective jurors

during voir dire examination the following question: ‘Under Pennsylvania law,

a victim’s testimony standing alone, if believed by you, is sufficient proof to

find the defendant guilty in a sexual assault case. Are you able to follow this

principle of law?’” Lewis’s Brief at 16. He states:

      This question was not designed to disclose the qualifications of a
      prospective juror to serve or to reveal whether the juror had
      formed a fixed opinion or otherwise may be subject to
      disqualification for cause. Quite to the contrary, the question
      clearly was designed to disclose what the prospective juror’s
      present impressions or opinions might be or what the
      prospectively juror’s attitude or decision likely would be under
      certain facts which were to be developed in the case. Moreover,
      because the question was in the nature of a jury instruction and
      concerned a legal principle, it was legally inappropriate.

Id.

      Furthermore, he asserts:

      The trial court utterly failed to consider, however, that a juror’s
      honest answer to the Commonwealth’s proposed question reveals
      nothing at all about that juror’s ability to receive the evidence
      impartially and render an impartial verdict. Instead, a juror’s
      honest answer to the Commonwealth’s question would reveal only
      the quality and quantity of evidence that the prospective juror
      would either demand to hear or would expect to hear before voting
      to convict Mr. Lewis.

                                      …

             The only conceivable motivation for the Commonwealth to
      ask the proposed question would be to ascertain the effectiveness
      of her trial strategy and to pluck out jurors from the venire who
      would be sympathetic to the Commonwealth’s position.           At
      bottom, the question was designed to help the Commonwealth
      identify those “Commonwealth-friendly” jurors who would be

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      sympathetic (and, similarly, to weed out those “defense-friendly”
      jurors who would be unsympathetic) to the fact that the
      Commonwealth planned to present no evidence tending to prove
      Mr. Lewis’s guilt other than [the victim]’s uncorroborated
      allegations. Thus, at its heart, the question was designed to
      provide a basis for the Commonwealth’s exercise of peremptory
      challenges. These are precisely the type of inquiries that the case
      law disallows. Fundamentally, the question is merely the
      Commonwealth’s oblique way of asking potential jurors, “Are you
      the kind of person who would convict the defendant even though
      we won’t present very much evidence of his guilt?”

Id. at 24 (citation omitted and emphasis removed).

      Additionally, Lewis alleges the question at issue “intrudes upon subject

matter falling within the province of the court[,]” because it is “in the nature

of a jury instruction.” Id. at 26. Lewis states that consequently, the court

erred because such a question goes against precedence. Id. Moreover, Lewis

complains a part of the question, that “‘a victim’s testimony standing alone, if

believed by the jury, is sufficient proof to find the defendant guilty in a sexual

assault case’ … is, at best, an incomplete statement of law, and, at worst, a

complete misstatement of the law” because it should have included language,

which indicated that each element of each charged offense needed to be

proved beyond a reasonable doubt. Id. at 28-29.

      Our standard of review is as follows:

      It is well established that the scope of voir dire rests in the sound
      discretion of the trial court, whose decision will not be reversed
      on appeal absent palpable error.         Similarly, the trial court
      possesses discretion to determine whether counsel may propose
      their own questions of potential jurors during voir dire.




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Commonwealth v. Mattison, 82 A.3d 386, 397 (Pa. 2013) (citations

omitted). Moreover,

      [a] criminal defendant’s right to an impartial jury is explicitly
      granted by Article 1, Section 9 of the Pennsylvania Constitution
      and the Sixth Amendment of the United States Constitution. The
      jury selection process is crucial to the preservation of that right.
      Commonwealth v. Ingber, 516 Pa. 2, 6, 531 A.2d 1101, 1102
      (1986). The purpose of voir dire is to provide an opportunity to
      counsel to assess the qualifications of the prospective jurors to
      serve. It is therefore appropriate to use such an examination to
      disclose fixed opinions or to expose other reasons for
      disqualification. Commonwealth v. Drew, 500 Pa. 585, 588,
      459 A.2d 318, 320 (1983) (citing Commonwealth v. Johnson,
      452 Pa. 130, 305 A.2d 5 (1973)). See also Commonwealth v.
      Lopinson, 427 Pa. 284, 234 A.2d 552 (1967) and
      Commonwealth v. McGrew, 375 Pa. 518, 100 A.2d 467 (1953).
      It is well settled that the sole purpose of examination of jurors
      under voir dire is to secure a competent, fair, impartial and
      unprejudiced jury.       While considerable latitude should be
      permitted on voir dire, the inquiry should be strictly confined to
      disclosing qualifications of a juror and whether the juror has
      formed a fixed opinion or may be otherwise subject to
      disqualification for cause. Drew, 500 Pa. at 589, 459 A.2d at 320
      (citing McGrew, 375 Pa. at 524, 100 A.2d at 470).

Commonwealth v. Ellison, 902 A.2d 419, 423-424 (Pa. 2006). “Voir dire is

not to be utilized as a tool for the attorneys to ascertain the effectiveness of

potential trial strategies.” Commonwealth v. Paolello, 665 A.2d 439, 451

(Pa. 1995).

      Turning to the present matter, prior to trial, the following discussion

occurred between the parties and the court regarding the voir dire question

at issue:

      [Defense counsel]: Yes, Your Honor. The Commonwealth did
      submit some proposed voir dire questions. I do particularly have
      an issue with the first question. It reads, “Under Pennsylvania

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     law, a victim’s testimony standing alone, if believed by you, is
     sufficient proof to find the defendant guilty in a sexual assault
     case. Are you able to follow this principle of law?

           First of all, the issue that I have is that in voir dire, I don’t
     believe that it’s appropriate to instruct jurors through the
     attorneys on what the law is. I think that the law should come
     from the judge. And they are instructed that they are the finders
     of fact, not of the law. And so that’s the first issue that I have
     with the question.

            Secondly, the second issue that I have is that this question
     does not leave room for the alternative. The jurors should be
     instructed that if you believe this is enough to find a person guilty
     beyond a reasonable doubt, or the alternative, if you don’t believe
     this person, then it’s enough to find the person not guilty and the
     Commonwealth has not met their burden, something to that
     effect. But I think this is a one-sided question and brings out
     biased jurors.

     THE COURT: I always allow the question. It is an accurate
     statement of the law, and many of the questions that are asked
     during jury selection -- for example, “You are required to find the
     defendant guilty beyond a reasonable doubt” or that “The judge
     will instruct you that you cannot believe one witness just because
     he’s a police officer over another.”

           There are lots of times in jury selection where we say “This
     is what the judge will instruct you.         Can you follow that
     instruction?”

           So I think it’s a fair question. I always allow it.

N.T., 11/4/2015 – 11/6/2015, at 4-6.

     In its Rule 1925(a) opinion, the trial court further explained its rationale:

     This Court allowed the voir dire question as it is an accurate
     statement of the law and, based on prior experience in these types
     of cases, aid[s] in the selection of competent and fair jurors.

        The singular purpose of voir dire examination is to secure a
        competent, fair, impartial and unprejudiced jury. In pursuit
        of that objective, the right of a litigant to inquire into bias

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          or any other subject which bear on the impartiality of a
          prospective juror has been generally recognized.
          Nevertheless, the scope of voir dire examination rests in the
          sound discretion of the trial judge and his decisions will not
          be reversed unless there is an abuse of that discretion.

       Commonwealth v. Futch, 366 A.2d 246, 248 (Pa. 1976). The
       proposed question delves into the potential bias of a juror who
       may be unable to follow the law that, in a case like this one, a
       victim’s testimony on its own, if believed, is sufficient to find a
       defendant guilty. As such, this Court did not abuse its discretion
       in permitting the question.

Trial Court Opinion, 11/9/2016, at 5.

       Our standard of review regarding this matter is very deferential to the

trial court, where the “opportunity to observe the demeanor of the prospective

juror and the tenor of the juror’s answers is indispensable to the judge in

determining     whether      a   fair   trial   can   be   had   in   the   community.”

Commonwealth v. Bachert, 453 A.2d 931, 937 (Pa. 1982).

       We find a review of the record belies Lewis’s assertions. The question

proposed by the Commonwealth was not an abuse of discretion because this

case hinged on what the victim said occurred at the party versus what Lewis

said had transpired. The court acted within its discretion when it permitted a

question designed to expose any fixed opinions of the jurors regarding the

lack of physical evidence.4        As such, the question was used “to secure a

____________________________________________


4 We liken this credibility inquiry to similar questions set forth in Pennsylvania
Rule of Criminal Procedure 632(H) (“8. Would you be more likely to believe
the testimony of a police officer or any other law enforcement officer because
of his or her job? 9. Would you be less likely to believe the testimony of a



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competent, fair, impartial and unprejudiced jury.” Ellison, 902 A.2d at 423-

424. Furthermore, it was not “used to ascertain the effectiveness of potential

trial strategies.” Paolello, 665 A.2d at 451.

       Lastly, to the extent Lewis compared the voir dire question to a jury

instruction and alleged that it was improper, we note at the time the jury

instructions were given, the court provided, without objection, the following

relevant directives:

       In deciding which witnesses to believe, it is proper for you to
       consider whether or not other evidence in the case supports the
       testimony of each witness. You must recognize that it is entirely
       possible for a single witness to give truthful and accurate
       testimony and that this testimony may be believed even though a
       greater number of witnesses of apparent equal reliability
       contradict that witness.

                                               …

       The testimony of [the victim] standing alone, if believed by you,
       is sufficient proof upon which to find the defendant guilty in this
       case. The testimony of a victim in a case such as this need not
       be supported by other evidence to sustain a conviction. Thus, you
       may find the defendant guilty if the testimony of [the victim]
       convinces you beyond a reasonable doubt that the defendant is
       guilty.

N.T., 11/4/2016 – 11/6/2016, at 335-336, 341.



____________________________________________


police officer or other law enforcement officer because of his or her job? 10.
Would you have any problem following the court’s instruction that the
defendant in a criminal case is presumed to be innocent unless and until
proven guilty beyond a reasonable doubt? 11. Would you have any problem
following the court’s instruction that the defendant in a criminal case does not
have to take the stand or present evidence, and it cannot be held against the
defendant if he or she elects to remain silent or present no evidence?”).

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      We note “[t]he law presumes the jury will follow the instructions of the

court.”   Commonwealth v. Drumheller, 808 A.2d 893, 906 (Pa. 2002)

(citations omitted); see also Commonwealth v. Eichinger, 108 A.3d 821,

846 (Pa. 2014). The instructions provided herein were more than adequate

and Lewis did not raise any argument with respect to them; therefore, we can

presume the jury correctly followed them. Accordingly, we conclude the trial

court did not commit “palpable error” with regard to its decisions during the

voir dire process. See Mattison, 82 A.3d at 397.

      In Lewis’s second argument, he asserts the trial court abused its

discretion by permitting the Commonwealth to cross-examine him “about the

fact that the mother of two of his children, [Sadae] Young, was 16 years old

at the time her relationship with Mr. Lewis began.” Lewis’s Brief at 34.

      By way of background, Lewis testified in his own defense. On direct

examination, Lewis denied “inappropriately handl[ing]” the victim and stated

he was never alone with her. N.T., 11/4/2015 – 11/6/2015, at 243. The

following exchange then occurred:

      Q. Now, the way that you would treat your own kids, is that the
      way that you would treat other individuals that come to your
      home?

      A. Yes, ma’am.

      Q.    And would you ever have any issue with anybody
      inappropriately touching one of your children?

      A. Yes, ma’am.

      Q. And why is that? How would you react?

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       A. It cannot be explained, ma’am. I actually would not know the
       reaction.

       Q. And that hasn’t happened, but can you even think about that
       happening?

       A. I don’t even want to imagine, ma’am.

       Q. And do you have any objection to men touching little children?

       A. Yes, ma’am.

       Q. Now, you learned about the allegations at some point in time
       later after the fact?

       A. Yes, ma’am.

       Q. And once you learned about those allegations, what did you
       do? How did you feel?

       A. I feel torn apart. Like, I feel angry, sad. At first, like, how can
       somebody think that I touched their child? And then, like, just
       embarrassed. Just the fact of being accused of something like
       that can tear you apart. It’s hard to explain.

Id. at 247-248.

       Subsequently, on cross-examination, the Commonwealth asked Lewis

about the ages of two of his children and the age of their mother, Young. Id.

at 249. Defense counsel objected and the following exchanged occurred:

       [Defense counsel]: I believe that the Commonwealth is trying to
       allude to the fact that the child that she’s referring to with [Young]
       was born at a time where [Young] was under 18 and my client
       was above the age of 18.[5] I would submit that that type of
       testimony is not relevant because it shows a sexual deviance, and
       that’s what the Commonwealth is trying to establish, the nature
       of that question.
____________________________________________


5   Lewis was approximately 22 years old at the time. Id. at 253.

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           It’s not relevant to whether or not in this particular situation
     he indecently assaulted, corrupted the morals of minors, or any of
     the amendments of the charges here.

     [The Commonwealth]: I believe it goes towards his credibility.
     Does he know her name? How old is she? He said that he has a
     very good relationship with his children, and I just want to explore
     what he does to take care of his children.

          Is he only talking about the two children that he has with
     her? Because I believe she’s the one that lives with them.

     [Defense counsel]: How does that go towards his credibility?

     [The Commonwealth]: The questions on direct examination were
     about if he was a good father, what he does with his children, if
     he would be upset if someone would do something to a young
     person …

     THE COURT: I think it is relevant on cross-examination to explore
     his family dynamic that you got into on direct with him. You did
     ask him questions that related to his relationship with his children
     and --

     [Defense counsel]: I have no problem with that, Your Honor. My
     issue is going into the ages. I don’t know the ages of the children.
     That was asked on cross-examination. Going into the specific
     ages of the children and then going into the ages in which they
     were born with their respective mothers has nothing to do with
     the elements of the charges here.

     THE COURT: It doesn’t have to do with the elements. I think it
     does have to do with his credibility with regard to his own
     description of his disgust …. He said torn apart, embarrassed. I
     do think it is relevant cross-examination. I’ll allow it.

     [Defense counsel]: For purposes of character?

     THE COURT:      Not for the purposes of character.      Cross-
     examination with regard to the statements he made about
     whether he would, in fact, have been embarrassed or torn apart
     by allegations made against him.


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     [Defense counsel]: That is beyond the scope of direct.

     THE COURT: No, that is the direct. You asked those questions on
     direct.

     [Defense counsel]: Being embarrassed has nothing to do with the
     age in which your children were born legally.

     THE COURT: Not the age the children were born. The age that
     he began a relationship with the mother of those children. That
     is relevant. Relevance is a broad spectrum. I do think it is
     relevant.

Id. at 249-252.

     Lewis argues:

     The Commonwealth’s request for the admission of this evidence
     was nothing more than a poorly disguised attempt to dance out in
     front of the jury past conduct by Mr. Lewis that, although far from
     illegal, the Commonwealth deemed to be morally reprehensible,
     and for the sole purpose of demonstrating that Mr. Lewis acted in
     accordance with that character toward [the victim]. In other
     words, by admitting information that Mr. Lewis impregnated a 16-
     year-old, the Commonwealth sought to prove Mr. Lewis’s
     character trait of sexual deviance towards minors, and for the sole
     purpose of showing that he acted in a similarly sexually deviant
     manner toward [the victim].         Aside from being completely
     irrelevant, this is a textbook example of the type of “propensity
     evidence” that Pa.R.E. 404(b) prohibits. The trial court committed
     a palpable abuse of discretion in ruling otherwise, such that Mr.
     Lewis is entitled to a new trial.

Lewis’s Brief at 34. Moreover, he states:

     [E]vidence of Young’s age at the time her relationship with Mr.
     Lewis began was not relevant to the credibility of Mr. Lewis’s
     assertion on direct examination that he loves his children, cares
     for them, and believes himself to be a good father. It is likewise
     not relevant to establish any element of any offense charged –
     each of which related to the alleged inappropriate touching of an
     eight-year-old child. In other words, evidence that Mr. Lewis had
     a consensual sexual relationship with a 16-year-old when he was
     21 or 22 has no tendency to make it more or less probable that

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      he inappropriately touched [the victim] than it would be without
      the evidence. The trial court acknowledged as much at sidebar
      conference at the time of trial counsel’s objection to the
      challenged evidence. Likewise, Young’s age is not in any way
      relevant to the credibility of Mr. Lewis’s denial of the accusations
      lodged against him by [the victim].

                                       …

            In order for Young’s age to be in any way relevant to the
      instant matter – especially to “call[] into question the credibility
      of [Mr. Lewis’s] denial” of [the victim]’s allegations – this
      Honorable Court would be required to accept the proposition that
      evidence that Mr. Lewis engaged in perfectly legal sexual
      intercourse with 16-year-old Young has a tendency to make it
      more probable that he molested a prepubescent child, [the
      victim], than it would be without the evidence. In other words,
      this Honorable Court would have to accept that the proposition
      that an individual who engages in sexual contact with a person
      who has the legal capacity to consent makes it more likely that
      that same individual would engage in sexual contact with a person
      who lacks the legal capacity to consent.

Id. at 40-41, 42 (footnote omitted; emphasis removed).

      “The admissibility of evidence is a matter directed to the sound

discretion of the trial court, and an appellate court may reverse only upon a

showing that the trial court abused that discretion.”     Commonwealth v.

Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) (citation omitted). Moreover,

evidence is relevant: “(a) if it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Pa.R.E. 401. “Evidence is relevant

if it logically tends to establish a material fact in the case, tends to make a

fact at issue more or less probable or supports a reasonable inference or

presumption regarding a material fact.”       Commonwealth v. Loughnane,

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128 A.3d 806, 818 (Pa. Super. 2015) (citation omitted), appeal granted in

part, 158 A.3d 1224 (Pa. 2016). This Court has previously stated:

     Relevant evidence may nevertheless be excluded if its probative
     value is outweighed by the danger of unfair prejudice, confusion
     of the issues, or misleading the jury, or by considerations of undue
     delay, waste of time, or needless presentation of cumulative
     evidence.

     Because all relevant Commonwealth evidence is meant to
     prejudice a defendant, exclusion is limited to evidence so
     prejudicial that it would inflame the jury to make a decision based
     upon something other than the legal propositions relevant to the
     case. As this Court has noted, a trial court is not required to
     sanitize the trial to eliminate all unpleasant facts from the jury’s
     consideration where those facts form part of the history and
     natural development of the events and offenses with which [a]
     defendant is charged.

Commonwealth v. Broaster, 863 A.2d 588, 592 (Pa. Super. 2004)

(quotation marks, footnote, and citations omitted), appeal denied, 876 A.2d

392 (Pa. 2005).

     Lastly, Pennsylvania Rule of Evidence 404(b) governs the admissibility

of evidence of other bad acts. See Pa.R.E. 404(b).

     Generally, evidence of [other] bad acts or unrelated criminal
     activity is inadmissible to show that a defendant acted in
     conformity with those [other] acts or to show criminal propensity.
     However, evidence of [other] bad acts may be admissible when
     offered to prove some other relevant fact, such as motive,
     opportunity, intent, preparation, plan, knowledge, identity, and
     absence of mistake or accident. In determining whether evidence
     of other ... bad acts is admissible, the trial court is obliged to
     balance the probative value of such evidence against its prejudicial
     impact.

     The Commonwealth must prove beyond a reasonable doubt that
     a defendant has committed the particular crime of which he is


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       accused, and it may not strip him of the presumption of innocence
       by proving that he has committed other criminal acts.

Commonwealth v. Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (en banc)

(citations omitted).

       Here, the court found the following:

             On direct examination, [Lewis] testified that the accusations
       made against him caused him to feel embarrassed and torn apart.
       This Court ruled that cross-examination with regard to that
       statement was relevant and appropriate in that his fathering a
       child to a minor calls into question the credibility of his denial.
       Since [Lewis] raised the issue on direct examination, it was not
       beyond the scope of direct to inquire further on the matter.
       Moreover, evidence of [Lewis] fathering a child with a minor was
       not offered as evidence of poor character, rather it was offered
       specifically to cross-examine [Lewis] regarding his statement that
       he was embarrassed and torn up about having been accused of
       sexual abuse of a child.

Trial Court Opinion, 11/9/2016, at 7.

       We agree with the trial court. The Commonwealth’s question was used

for the limited purpose of rebutting Lewis’s own statement (and defensive

strategy) that it was abhorrent for an older person to touch a minor person.

Lewis had “opened the door” to this line of inquiry when he answered

questions related to his relationship with his children and the possibility of

them being touched by an older person.6 As such, we conclude the rebuttal

evidence was relevant and was not used solely to establish Lewis showed



____________________________________________


6   Furthermore, it merits mention that in his appeal, Lewis attempts to
minimize the fact he was significantly older than Young and that they did have
a relationship while she was a minor.

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criminal propensity towards assaulting minors. See Broaster, supra; see

Ross, supra.

       Additionally, as the Commonwealth suggests, if there was such an error

in admitting this testimony, it was harmless.7

       Harmless error exists if the state proves either: (1) the error did
       not prejudice the defendant or the prejudice was de minimis; or
       (2) the erroneously admitted evidence was merely cumulative of
       other untainted evidence which was substantially similar to the
       erroneously admitted evidence; or (3) the properly admitted and
       uncontradicted evidence of guilt was so overwhelming and the
       prejudicial effect of the error was so insignificant by comparison
       that the error could not have contributed to the verdict.

Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017), quoting

Commonwealth v. Simmons, 662 A.2d 621, 633 (Pa. 1995). The first prong

of the harmless error test would apply here – that the evidence of Lewis’s

relationship with Young was de minimis in comparison to the overwhelming

credibility evidence he introduced in the form of family members who testified

that they never saw Lewis near the victim at the party in question or observed

that the victim was upset at any point. See N.T., 11/4/2015 – 11/6/2015, at

140-235 (testimony of Long-Everhardt, Coleman, Long, Redmon, Fowler).

Lewis also testified he had a romantic relationship with Young, but terminated

it once he discovered her age. Id. at 252-254. Moreover, he acknowledged

Young lived with him at the time of the trial. Id. Accordingly, the trial court




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7   See Commonwealth’s Brief at 19-20.

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did not abuse its discretion by sustaining these inquiries during Detective

Gonzalez’s testimony. Consequently, this evidentiary issue fails.

     Judgment of sentence affirmed.

     Judge Lazarus joins this memorandum.

     Judge Bowes files a concurring and dissenting memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2018




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