J-S81019-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    HOWARD F. DANIELS, III                     :
                                               :
                       Appellant               :   No. 635 MDA 2018

            Appeal from the Judgment of Sentence January 29, 2018
    In the Court of Common Pleas of York County Criminal Division at No(s):
                           CP-67-CR-0003421-2016,
                           CP-67-CR-0003422-2016

BEFORE:      STABILE, J., DUBOW, J., and STEVENS*, P.J.E.

MEMORANDUM BY DUBOW, J.:                                 FILED APRIL 12, 2019

        Appellant, Howard F. Daniels, III, appeals from the January 29, 2018

Judgment of Sentence entered in the York County Court of Common Pleas

following his conviction at Docket Number 3421-2016 of one count each of

Aggravated Indecent Assault, Indecent Assault, and Corruption of Minors, and

at Docket Number 3422-2016 of one count of Corruption of Minors.1 After

careful review, we affirm.

        On April 14, 2016, the Commonwealth charged Appellant at Docket

Number 3421-2016 with one count each of Aggravated Indecent Assault,

Indecent Assault, Corruption of Minors graded as a felony, and Corruption of




____________________________________________


1   18 Pa.C.S. §§ 3125(a)(7); 3126(a)(7); 6301(a)(1)(i), respectively.


____________________________________
* Former Justice specially assigned to the Superior Court.
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Minors graded as a misdemeanor following allegations of sexual assault made

by Appellant’s biological daughter (“Daughter”).2

        Two other victims—T.L., age 14, and H.D., age 15—also alleged that

Appellant had sexually assaulted them. As a result of the allegations levied

by T.L., the Commonwealth charged Appellant at Docket Number 3422-2016

with one Count of misdemeanor Corruption of Minors. With respect to H.D.’s

allegations, the Commonwealth charged Appellant at Docket Number 4398-

2016 with one count of misdemeanor Corruption of Minors and one count of

Indecent Assault.

        On June 16, 2016, the Commonwealth filed a Notice of Consolidation,

which joined these three cases.

        On September 19, 2016, Appellant filed an Omnibus Pretrial Motion,

which included a Motion to Sever. Relevant to the instant appeal, on June 30,

2017, the trial court denied Appellant’s Motion to Sever. In particular, the

court found that the allegations in all three cases had certain similarities,

which would render the evidence of each of the offenses admissible in a

prosecution of the others to prove that Appellant had a “common plan,

scheme, and design.” Trial Ct. Op, 6/30/17, at 5. The court further found

that trying the three cases together would not unduly prejudice Appellant. Id.

at 6.



____________________________________________


2Daughter was almost 6 years old at the time the Commonwealth charged
Appellant.

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      Appellant’s four-day jury trial commenced on November 13, 2017. That

day, the Commonwealth presented a Motion in Limine requesting permission

to offer testimony regarding an alleged suicide attempt by Appellant. The

Commonwealth asserted that, immediately after his wife confronted him with

T.L’s allegations of abuse, Appellant attempted suicide by overdosing on pain

medication. The Commonwealth sought to offer this as evidence of Appellant’s

consciousness of his guilt.    Appellant objected to the admission of this

evidence, arguing that it was only admissible in one of the three consolidated

cases and its admission would prejudice the jury in the other cases. The trial

court granted the Commonwealth’s Motion and permitted the introduction of

this evidence. The court provided a limiting instruction to the jury indicating

that the jury was only to consider Appellant’s suicide attempt as evidence of

consciousness of guilt of the crimes against T.L. N.T. Trial, 11/15/16, at 109.

      In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the facts as

adduced at trial as follows.

      T.L.’s Disclosure

         On February 29, 2016, Detective Michael Hine of the
         Northern York County Regional Police Department
         commenced an investigation of a sexual assault allegedly
         committed by [Appellant] in December 2015 against T.L., a
         child who[ Appellant] once believed was his biological
         daughter and [with] whom [Appellant] continued to foster a
         familial-like relationship. T.L. would periodically visit with
         [Daughter] and H.D. at [Appellant’s] home as she viewed
         them to be her surrogate sisters. T.L. indicated that one
         evening in December 2015, while sitting on [Appellant’s]
         living room sofa, [Appellant] asked T.L. for her permission
         to “molest” her. T.L. declined [Appellant’s] request and
         immediately called her mother [ ] to report the incident.

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       [Daughter] was in the home, but asleep in her bedroom
       when the incident transpired.

       After receiving T.L.’s call, T.L.’s mother went to [Appellant’s]
       home to confront him and retrieve T.L. T.L. and her mother
       waited outside for [Appellant’s] wife, Elizabeth Daniels, to
       arrive home from work to apprise her of the incident. When
       [Appellant’s] wife arrived home, she awakened [Appellant]
       to question him about the incident. When confronted by his
       furious wife who smacked him several times, [Appellant]
       began to weep and apologized instantly to T.L.

       Neither T.L.’s mother nor [Appellant’s] wife reported the
       incident. T.L.’s mother testified that [Appellant’s] wife
       asked her to refrain from contacting the police.
       [Appellant’s] wife did not report the incident to authorities
       because on the morning following the incident, she was
       consumed with transporting [Appellant] to Edgar Square, a
       treatment facility, after [Appellant] intentionally ingested a
       surplus of either Oxycodone of OxyContin pills.            T.L.
       ultimately made a disclosure to a therapist who[,] in turn[,]
       contacted police. [ ]

     [Daughter’s] Disclosure

       On or about March 10, 2016, Detective Hine commenced an
       investigation of sexual assault allegedly committed by
       [Appellant] between the years of 2014 and 2016 against
       [Daughter]. This investigation was triggered as a result of
       T.L.’s disclosure of abuse. At trial [Daughter] testified that
       [Appellant] slipped his hand underneath her nightgown and
       underwear, and then touched the outside of her “bathroom
       part” with his bare hand. During [Daughter’s] interview at
       the Children’s Advocacy Center, she disclosed to the
       interviewer that [Appellant] touched the inside of her
       bathroom part. Additionally, [Appellant’s] wife recalled that
       when [Daughter] was three or four years old, [Daughter]
       asked her to tickle [Daughter’s] “Susie”—a nickname for
       [Daughter’s] vagina.        [Appellant’s] wife discussed
       [Daughter’s] request with [Appellant] and testified that
       [Appellant] denied having ever tickled [Daughter’s] Susie[,]
       but did admit to her that he has tickled [Daughter’s] inner
       thighs.




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       H.D.’s Disclosure

          On or about March 14, 2016, Detective Hine commenced an
          investigation of sexual assault allegedly committed by
          [Appellant] between November and December of 2015
          against H.D., his older biological daughter who resides with
          her biological mother. This investigation was triggered by
          T.L.’s disclosure of abuse. H.D. disclosed that [Appellant]
          touched her leg, placed his hand down her pants, and then
          touched her bare vagina as she [sat] on his living room sofa.
          During the incident, [Daughter] was asleep in her bedroom.
          H.D. directed [Appellant] to stop touching her. [Appellant]
          complied with H.D.’s request, apologized immediately, and
          then asked her not to tell anyone about what had just
          occurred. [ ]

Trial Court Op., 6/26/28, at 3-6.

       On November 16, 2017, the jury found Appellant guilty of two counts of

Corruption of Minors and one count each of Aggravated Indecent Assault and

Indecent Assault.3 Following the verdict, the court ordered the preparation of

a Post-Sentence Investigation Report.

       On January 29, 2018, the trial court sentenced Appellant to an

aggregate term of two and one half years’ to five years’ incarceration followed

by two years’ probation.4
____________________________________________


3The jury found Appellant not guilty of Corruption of Minors and Indecent
Assault of H.D. filed at Docket Number 4398-2016.

4 At Docket Number 3421-2016, the court sentenced Appellant to a term of
two and a half to five years’ incarceration for his Aggravated Indecent Assault
conviction, a concurrent term of six to 12 months’ incarceration for his
Indecent Assault conviction, and a consecutive term of 24 months’ probation
for his Corruption of Minors conviction. At Docket Number 3422-2016, the
court sentenced Appellant to a term of 24 months’ probation to run
concurrently with his term of probation at Docket Number 3421-2016.




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       On February 8, 2018, Appellant filed a Post-Sentence Motion, in which

he challenged, inter alia, the weight of the evidence, the court’s denial of his

Motion to Sever, and its decision to grant the Commonwealth’s Motion in

Limine. The trial court denied Appellant Post-Sentence Motion on March 20,

2018. This timely appeal followed. Both Appellant and the trial court have

complied with Pa.R.A.P. 1925.5

       Appellant raises the following four issues on Appeal:

       1. Whether the Commonwealth failed to provide sufficient
          evidence to prove [Appellant] guilty of Aggravated Indecent
          Assault beyond a reasonable doubt where there was no
          testimony that the victim’s vagina was penetrated in any way?

       2. Whether the jury’s verdict was so against the weight of the
          evidence when the Commonwealth failed to present any
          evidence regarding penetration?

       3. Whether the trial court abused its discretion when it denied
          [Appellant’s] Motion to Sever where none of the three cases
          were similar enough in nature and evidence in one case would
          not have been admissible in a trial for the others?

       4. Whether the trial court abused its discretion in granting the
          Commonwealth’s Motion in Limine where there was no link
          between [Appellant’s] actions and a consciousness of guilt and
          the “evidence” would have only been applicable in one of the
          consolidated cases.

Appellant’s Brief at 5.

____________________________________________


5 Appellant filed his Rule 1925(b) Statement four days late, but the trial court
nonetheless addressed the issues contained in the untimely Statement,
including the four briefed issues. Accordingly, we will also address the merits
of Appellant’s two issues. See Commonwealth v. Burton, 973 A.2d 428,
433 (Pa. Super. 2009) (en banc) (explaining that “this Court may decide the
appeal on the merits if the trial court had adequate opportunity to prepare an
opinion addressing the issues being raised on appeal.”).

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       In   his    first   issue,   Appellant   challenges   the   sufficiency   of   the

Commonwealth’s evidence in support of his Aggravated Indecent Assault

conviction.       Appellant’s Brief at 16.       In particular, he argues that the

Commonwealth failed to prove that he penetrated Daughter’s genitals because

it “offered three contradictory statements during [its] case to support the

penetration however slight element.”6 Id.

       “A claim challenging the sufficiency of the evidence is a question of law.”

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000). “We review

claims regarding the sufficiency of the evidence by considering whether,

viewing all the evidence admitted at trial in the light most favorable to the

verdict winner, there is sufficient evidence to enable the fact-finder to find

every element of the crime beyond a reasonable doubt.” Commonwealth v.

Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (internal quotation marks and

citations omitted), appeal denied, 183 A.3d 970 (Pa. 2018).                “Further, a

conviction may be sustained wholly on circumstantial evidence, and the trier

of fact—while passing on the credibility of the witnesses and the weight of the

evidence—is free to believe all, part, or none of the evidence.” Id.; see also

Commonwealth v. Hawkins, 701 A.2d 492, 501 (Pa. 1997) (the credibility

of witnesses is “solely for the [fact finder] to determine”). “In conducting this
____________________________________________


6 Appellant claims that Daughter’s in-court testimony that Appellant touched
her on the outside of her vagina was inconsistent with the out-of-court
statements that Appellant touched her inside her vagina that she made to a
forensic nurse examiner at York Hospital and a forensic interviewer at the York
County Children’s Advocacy Center, both of whom testified to those
statements at Appellant’s trial. See Appellant’s Brief at 16-17.

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review, the appellate court may not weigh the evidence and substitute its

judgment for the fact-finder.”       Miller, 172 A.3d at 640.         See also

Commonwealth v. Dougherty, 860 A.2d 31, 36 (Pa. 2004) (“This Court

cannot substitute its judgment for that of the [fact finder] on issues of

credibility.”)(citation omitted).

      Moreover, “[i]t is the function of the [fact finder] to evaluate evidence

adduced at trial to reach a determination as to the facts, and where the verdict

is based on substantial, if conflicting evidence, it is conclusive on appeal.”

Commonwealth v. Reynolds, 835 A.2d 720, 726 (Pa. Super. 2003) (citation

omitted). See also Commonwealth v. Brown, 52 A.3d 1139, 1165–66 (Pa.

2012) (observing that “questions regarding the reliability of the evidence

received at trial [are] within the province of the finder-of-fact to resolve, and

[appellate courts] will not, on sufficiency review, disturb the finder-of-fact's

resolution except in those exceptional instances . . . where the evidence is so

patently unreliable that the jury was forced to engage in surmise and

conjecture in arriving at a verdict based upon that evidence.” ).

      Pursuant to Section 3125(a)(7) of the Crimes Code, a person is guilty

of Aggravated Indecent Assault when he 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, hygenic, or law enforcement

procedures and the complainant is less than 13 years old. See 18 Pa.C.S. §

3125(a)(7).




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       As noted supra, the Commonwealth presented evidence at trial that

Appellant touched Daughter “inside of her bathroom part.” Trial Ct. Op. at 5.

In particular, Deborah Nandor-Levin, a forensic nurse examiner at York

Hospital, testified that she examined Daughter on March 31, 2016—a mere

three weeks after Daughter’s initial disclosure— at the York County Children’s

Advocacy Center.    N.T., 11/14/14, at 194-95.     Ms. Nandor-Levin, reading

directly from her exam notes, testified that Daughter reported to her at that

time that Appellant had “touched her with his hand [ ] on the inside.” Id. at

199.

       Kimberly Duffy, a forensic interviewer at the York County Children’s

Advocacy Center, also testified.    She testified that she also interviewed

Daughter on March 31, 2016.        Id. at 265.     The court permitted the

Commonwealth to show the jury a videotape of the forensic interview. The

Commonwealth and Appellant’s counsel then questioned Ms. Duffy about her

interview of Daughter.    Ms. Duffy testified that Daughter disclosed that

Appellant had touched her “inside.” N.T., 11/15/17, at 21.

       The trial court found that the Commonwealth adduced sufficient

evidence from which the jury could reasonably infer that Appellant had

penetrated Appellant’s vagina, however slightly.

       Following our review, we agree with the trial court that the

Commonwealth presented sufficient evidence from which the jury could

reasonably find that the Commonwealth had proven the penetration element

of the Aggravated Indecent Assault charge.     The evidence elicited at trial,

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when viewed in the light most favorable to the Commonwealth as verdict-

winner, indicates that shortly after Daughter’s initial disclosure of abuse, she

described to the forensic interviewer and forensic examiner that Appellant had

touched her inside of her vagina. In light of the testimony of these witnesses,

it was reasonable for the jury to conclude that Appellant had penetrated,

however slightly, Daughter’s vagina. Appellant is, therefore, not entitled to

relief on this issue.

      In his second issue, Appellant claims that the jury’s verdict was against

the weight of the evidence because the Commonwealth failed to present

evidence of penetration. Appellant alleges that the jury’s verdict was shocking

because Daughter’s in-court testimony that Appellant had not touched her on

the inside of her vagina was inconsistent with her statements recorded during

her forensic interview, and the testimony of the forensic interviewer and

forensic examiner who both testified that, at the time of Daughter’s

examination and interview, Daughter reported that Appellant had touched her

on the inside of her vagina. Appellant’s Brief at 18-19.

      When considering challenges to the weight of the evidence, we apply

the following precepts.     “The weight of the evidence is exclusively for the

finder of fact, who is free to believe all, none[,] or some of the evidence and

to determine the credibility of the witnesses.” Commonwealth v. Talbert,

129 A.3d 536, 545 (Pa. Super. 2015) (quotation marks and citation omitted).

Resolving contradictory testimony and questions of credibility are matters for

the finder of fact.     Commonwealth v. Hopkins, 747 A.2d 910, 917 (Pa.

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Super. 2000). It is well-settled that we cannot substitute our judgment for

that of the trier of fact. Talbert, supra at 546.

      Moreover, appellate review of a weight claim is a review of the trial

court’s exercise of discretion in denying the weight challenge raised in the

post-sentence motion; this court does not review the underlying question of

whether the verdict is against the weight of the evidence. See id. at 545-46.

“Because the trial judge has had the opportunity to hear and see the evidence

presented, an appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when reviewing a trial court’s

determination that the verdict is [or is not] against the weight of the

evidence.” Id. at 546 (citation omitted). “One of the least assailable reasons

for granting or denying a new trial is the lower court’s conviction that the

verdict was or was not against the weight of the evidence and that a new trial

should be granted in the interest of justice.” Id. (citation omitted).

      Furthermore, “[i]n order for a defendant to prevail on a challenge to the

weight of the evidence, the evidence must be so tenuous, vague and uncertain

that the verdict shocks the conscience of the court.” Id. (internal quotation

marks and citation omitted). As our Supreme Court has made clear, reversal

is only appropriate “where the facts and inferences disclose a palpable abuse

of discretion[.]” Commonwealth v. Morales, 91 A.3d 80, 91 (Pa. 2014)

(citations and emphasis omitted).

      “[A] true weight of the evidence challenge concedes that sufficient

evidence exists to sustain the verdict but questions which evidence is to be

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believed.” Commonwealth v. Thompson, 106 A.3d 742, 758 (Pa. Super.

2014)(citation omitted). For that reason, the trial court need not view the

evidence in the light most favorable to the verdict winner, and may instead

use its discretion in concluding whether the verdict was against the weight of

the evidence.    Commonwealth v. Widmer, 744 A.2d 745, 751 n.3 (Pa.

2000).

      In the instant case, the jury found the testimony of the forensic

examiner and forensic interviewer as to the statements made by Daughter

mere weeks after she disclosed Appellant’s abuse, and Daughter’s own

statements in the videotaped interview with the forensic interviewer, more

credible than Daughter’s testimony at trial. In its Rule 1925(a) Opinion, the

trial court noted that the jury’s credibility determination did not shock its sense

of justice. See Trial Ct. Op. at 13.

      Appellant essentially asks us to reassess the credibility of Daughter, the

forensic interviewer, and the forensic examiner, and reweigh the testimony

and evidence presented at trial. We cannot and will not do so. Our review of

the record shows that the evidence is not tenuous, vague, or uncertain, and

the verdict was not so contrary as to shock the court’s conscience.

Accordingly, we discern no abuse of discretion in the trial court’s denial of

Appellant’s weight claim.

      In his third issue, Appellant claims that the trial court erred when it

denied his Motion to Sever.




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      Our standard of review from the denial of a Motion to Sever is well

settled:

      A motion for severance is addressed to the sound discretion of the
      trial court, and . . . its decision will not be disturbed absent a
      manifest abuse of discretion. The critical consideration is whether
      the appellant was prejudiced by the trial court's decision not to
      sever. The appellant bears the burden of establishing such
      prejudice.

Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010)(citation

omitted). In proving that the decision not to sever the cases prejudiced the

defendant, the defendant must show “real potential for prejudice rather than

mere speculation.”    Commonwealth v. Rivera, 773 A.2d 131, 137 (Pa.

2001).

      Pa.R.Crim.P. 582 provides, in relevant part, that “[o]ffenses charged in

separate indictments or informations may be tried together if: (a) the

evidence of each of the offenses would be admissible in a separate trial for

the other and is capable of separation by the jury so that there is no danger

of confusion[.]” Pa.R.Crim.P. 582(A)(1)(a). However, where it appears that

the trial of offenses together might prejudice a party, the trial court may order

separate trials of offenses. See Pa.R.Crim.P. 583.

      “Where a defendant moves to sever offenses not based on the same act

or transaction . . . the court must [] determine: [1] whether the evidence of

each of the offenses would be admissible in a separate trial for the other; [2]

whether such evidence is capable of separation by the jury so as to avoid

danger of confusion; and, if the answers to these inquiries are in the


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affirmative, [3] whether the defendant will be unduly prejudiced by the

consolidation of offenses. Dozzo, 991 A.3d at 902 (quoting Commonwealth

v. Collins, 703 A.2d 418, 422 (Pa. 1997).

      Appellant argues that the court erred because the evidence in the cases

at Docket Numbers 3421-2016 and 3422-2016 would not have been

admissible in the trial for the other. Appellant’s Brief at 20. In support of this

claim, Appellant highlights the difference in the ages of the victims and the

nature of the assault against them. Id. at 20-21. He claims that, other than

both victims being female and Appellant’s alleged involvement, “there are no

similarities” between the two cases that would justify their consolidation. Id.

at 21. He, thus, concludes that “first prong of the Dozzo test fails.” Id.

      In the alternative, Appellant claims that, even if the first prong of the

Dozzo test had not failed, the court’s denial of his Motion to Sever unduly

prejudiced him because the jury heard about both his alleged conduct that it

normally would not have heard and about his suicide attempt.           Id.   With

respect to his suicide attempt, Appellant argues that this evidence would not

have been admissible in a separate trial at Docket Number 3421-2016 because

it was only relevant to show his consciousness of guilt in the case at Docket

Number 3422-2016. Id. at 22. Thus, he concludes that the admission of this

evidence prejudiced the jury against him. Id.

      In deciding whether to deny Appellant’s Motion to Sever, the trial court

found the following facts relevant:




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      In Docket No. 3421-2016, [Appellant] is alleged to have
      penetrated the child’s genitals with his fingers. In Docket No.
      3422-2016, it is alleged that [Appellant] asked the victim, “is it ok
      that I masturbate you?” The victim immediately responded “no,”
      and Defendant walked away. In Docket No. 4398-2016, the victim
      alleges [Appellant] touched the inside and outside of her clothed
      and unclothed vaginal area multiple different times. Again, the
      victim in Docket No. 3421-2016 was a young female, age four or
      five years old at the time of the offense, and the victims in Docket
      No. 3422-2016 and 4398-2016 were females age thirteen and
      fourteen years old, respectively.

Trial Ct. Op., 6/30/17, at 3-4

      The court then considered whether, pursuant to Pa.R.Crim.P. 582(A)(1),

evidence of the commission of one offense would be admissible in the separate

trial of the other offense for the particular purpose of proving a common

scheme, plan, or design, and addressed whether trying these cases together

would prejudice Appellant. Relevantly, it stated:

      All three cases involve young, female children, all of whom have
      a family or personal link to [Appellant], and two of the cases
      involve children of a similar age group. In all three cases,
      [Appellant] was accused of particularly similar misconduct.
      Further, the cases are alleged to have occurred in the same
      general time period. As such, this Court finds that a high
      correlation in the details of the crimes exists and that evidence of
      each of the offenses would be admissible in a prosecution for the
      other, in order to prove Defendant’s “common plan, scheme and
      design” in sexually assaulting young female children.

      Further, this Court finds that the evidence in each case is capable
      of separation by the jury so that there is no danger of confusion.
      Each crime involves different victims and occurred on different
      dates.

      Lastly, this Court finds Defendant will not be unduly prejudiced in
      trying all three cases together.

Id. at 5-6 (citations omitted).



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      Following our review of the record, we conclude that the trial court did

not abuse its discretion in denying Appellant’s Motion to Sever. We agree with

the trial court that the similarities between the facts and circumstances of

each allegation of abuse were substantial and demonstrated Appellant’s

common scheme or plan in victimizing his minor daughters.

      Moreover, Appellant’s bald allegation that the court’s decision prejudiced

him, without more, does not warrant relief. Appellant has failed to articulate

any actual prejudice. In fact, Appellant’s concession that the jury acquitted

him of the charges at Docket Number 4398-2016 undermines his claim that

the jury was incapable of separating the evidence against him.              See

Commonwealth v. Burton, 770 A.2d 771, 779 (Pa. Super. 2001) (explaining

that, in the severance context, prejudice is “that which would occur if the

evidence tended to convict the defendant only by his propensity to commit

crimes, or because the jury was incapable of separating the evidence or could

not avoid cumulating the evidence.” (citation omitted)). Given the foregoing,

Appellant’s third claim fails.

      In his final issue, Appellant claims that the trial court abused its

discretion in granting the Commonwealth’s Motion in Limine. Appellant’s Brief

at 22. In particular, he argues that evidence of his suicide attempt was only

relevant to his consciousness of guilt as to the charges arising from T.L.’s

allegations, and not for the charges arising from the allegations of H.D. and

Daughter. Id. at 23-24. He further complains that the trial court’s limiting

instruction to the jury was insufficient because it did not specifically instruct

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the jury that it could only consider this evidence as consciousness of guilt in

the case at Docket Number 3422-2016.7              Id. at 24-25.   Thus, Appellant

concludes that the court should not have admitted the Commonwealth’s

consciousness of guilt evidence at all because, with respect to the cases arising

from Daughter’s allegations, this evidence was more prejudicial than

probative. Id.

       We review the grant or denial of a motion in limine for an abuse of

discretion. Commonwealth v. Rich, 167 A.3d 157, 160 (Pa. Super. 2017).

“An abuse of discretion will not be found based on a mere error of judgment,

but rather 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.

(citation omitted).

       Evidence that an accused attempted to commit suicide is relevant as a

circumstance tending to show consciousness of guilt.          Commonwealth v.

Sanchez, 610 A.2d 1020, 1026-27 (Pa. Super. 1992).



____________________________________________


7 The Notes of Testimony reflect that, although given the opportunity to object
to the court’s jury instruction regarding Appellant’s suicide attempt as
evidence of consciousness of guilt, Appellant’s counsel declined to do so.
Thus, to the extent that Appellant challenges the sufficiency of the court’s
instruction, we conclude it is waived. See Pa.R.A.P. 302(a) (“Issues not raised
in the lower court are waived and cannot be raised for the first time on
appeal.”). See also Commonwealth v. May, 887 A.2d 750, 758 (Pa. 2005)
(noting timely objection must be made to preserve issues for appellate
review).

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      Here, Appellant does not dispute that evidence of his suicide attempt

was relevant to show his consciousness of guilt as to the assault of T.L. See

Appellant’s Brief at 24.    Rather, he baldly claims that the evidence was

inadmissible because it unduly prejudiced him with respect to the case arising

from his assault of Daughter. As with his previous issue, however, Appellant’s

acquittal of the charges arising from H.D.’s allegations undermines Appellant’s

unsubstantiated claim that that court’s admission of the consciousness of guilt

evidence prejudiced him because the jury was incapable of considering this

evidence only as it related to T.L. The jury’s determination of Appellant’s guilt

in only two of the three consolidated cases evinces its ability to appropriately

consider the evidence in each of the three cases. Thus, Appellant’s claim that

the trial court abused its discretion in admitting this evidence fails.

      Judgment of Sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/12/2019




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