J-S22040-16


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,              :     IN THE SUPERIOR COURT OF
                                           :           PENNSYLVANIA
                      Appellee             :
                                           :
                      v.                   :
                                           :
BRADLEY ARNDT,                             :
                                           :
                      Appellant            :     No. 804 MDA 2015

             Appeal from the Judgment of Sentence April 23, 2015
                in the Court of Common Pleas of Berks County,
             Criminal Division, at No(s): CP-06-CR-0004253-2013

BEFORE:      MUNDY, DUBOW, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:                      FILED APRIL 13, 2016

        Bradley Arndt (Appellant) appeals from the April 23, 2015 judgment of

sentence imposed following his convictions by a jury for one count each of

rape, involuntary deviate sexual intercourse (IDSI), sexual assault, stalking,

simple assault, and false imprisonment. We affirm.

        In August of 2013, Appellant was arrested and charged with, inter alia,

the aforementioned offenses for events that occurred while Appellant and

the victim were involved in a romantic relationship.       We summarize the

events leading to Appellant’s arrest.

        The victim and her four children moved into Appellant’s home in 2010.

According to the victim, the relationship changed beginning in November of

2011.     At that point, the victim “had to be with [Appellant], like, all the

time.” N.T., 1/26-29/2015, at 89. She “had to take showers with him.” Id.



*Retired Senior Judge assigned to the Superior Court.
J-S22040-16


When she left the house without Appellant, he texted and called her

“excessively.” Id. at 90. The victim then moved out in November of 2011

because she “found a picture of his ex-girlfriend on his phone; that

combined with the clinginess.” Id.    She moved back in with her husband,

Richard, who is also the father of two of her children.1

      After one to two months living with Richard, the victim went back to

living with Appellant because she “loved him” and “missed him.” Id. at 92.

After another month, things were not working out with Appellant, and the

victim moved back in with Richard. After another month or two, in April of

2012, the victim moved back in with Appellant because “he promised [they]

would go to counseling.” Id. at 94.

      After just one counseling appointment, the victim testified that the

“relationship just got really bad.” Id. Around the same period of time, in

April 2012, the victim stated that Appellant became “[v]iolent and physical.”

Id. For example, when the victim spent a night at the home of her friend,

Sabrina, Appellant accused the victim of “cheating on him.” Id. at 96. When

the victim and Sabrina went back to Appellant’s house the next day,

Appellant then asked the victim to go into the bedroom and left Sabrina

sitting in the living room.   The victim testified that Appellant pushed her


1
  The victim calls Richard her “ex-husband;” however, the two were legally
married in 2003 and have never divorced. The victim testified that they are
“separated.” N.T., 1/26-29/2015, at 91.



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onto the bed and had sex with her over her objection (April 2012 incident).

The victim came out of the bedroom and told Sabrina that Appellant raped

her, and then the victim drove Sabrina home.2

      The victim next testified about events that happened on July 22, 2012

(July 2012 incident). She testified that she and Appellant had been arguing

about money.     The two went to a McDonald’s drive-thru, and the victim

ordered a frozen drink. After they pulled out of the drive-thru, they began

arguing about the cost of the frozen drink.     The argument escalated and

Appellant injured the victim. The victim went home, got her children, and

went to her mother’s house.     The victim’s mother called police, 3 and the

victim went to the hospital.4

      The victim stayed with her mother for a few days then moved back in

with Appellant. In late 2012, Appellant moved out of his house to live with

his parents. The victim and her children remained in Appellant’s house until

2
  Sabrina’s testimony differed from the victim’s testimony. Sabrina testified
that the victim came out of the bedroom “with tears in her eyes” after about
ten or fifteen minutes saying that Appellant had sex with her. N.T., 1/26-
29/2015, at 41. However, Sabrina also testified that she has “a memory
problem sometimes.” Id. at 49.
3
  Officer Charles Hobart went to the hospital to see the victim. He testified
that the victim told him that she “had been struck in the face by her
boyfriend.” Id. at 30. At the victim’s request, police filed simple assault
charges against Appellant. Those charges were subsequently dismissed
because the victim did not “wish to testify at that time.” Id. at 35.
4
  The emergency room doctor who saw the victim testified that the victim
“was hit in the face, and she sustained an abrasion on the bridge of the nose
and of the cheek.” Id. at 23. An x-ray of the nasal bone revealed a fracture.


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April 2013 when they moved in with a friend, Mark. The victim testified that

they “just left to get away” and “didn’t take most of anything.” Id. at 114.

       On May 1, 2013, the victim and her friend, Alisha, went to Appellant’s

home to retrieve her things.    The victim got her children’s beds and went

back to Mark’s house. Appellant then sent the victim a text message asking

if she was going to get the rest of her things. The victim also testified that

the reason she wanted to go back and get more things for her kids was

because she “was dealing with [CYS] … [and she] was worried that her kids

didn’t have really anything.” Id. at 132.

       The victim then went back to Appellant’s house by herself.         She

testified that Appellant started to “grab [her] butt.” Id. at 133. The victim

told Appellant she was going to leave, and Appellant “pushed [her] down on

the chair … that has a foot stool attached to it” in the living room. Id.

Appellant tried to take off the victim’s pants, but she pushed him away. The

victim testified that she tried to leave the house, but Appellant blocked her

from doing so.    Eventually, Appellant pushed the victim into the bedroom

and onto the bed; took her pants off; and, attempted to have oral sex with

her.   The victim pushed and kicked Appellant away.         She testified that

Appellant then raped her. Id. at 138.       When he finished, the victim ran

outside to the truck and left (May 2013 incident).

       The victim then went to the hospital where a rape kit was performed.

The hospital contacted police, and Detective Michael Hoffert of the Bern



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Township Police Department responded. He spoke with the victim, whom he

described as “extremely upset,” “crying,” and “nervous.” Id. at 262. During

the conversation, the victim was receiving text messages from Appellant.

Detective Hoffert later received copies of the text messages exchanged

between Appellant and the victim. In total, there were 147 text messages

from Appellant to the victim, and 13 from the victim to Appellant.

        One text message from Appellant to the victim read, “Are you mad?

‘Cause I asked you first, baby.” Id. at 146.              Another message sent by

Appellant stated, “Well, here goes our money, mine and yours to the state.

Why [victim]? I asked you first. I did not make you, baby. I asked you.”

Id. at 148.    In a statement to police, Appellant admitted that he and the

victim had sex, but believed it to be consensual. Commonwealth’s Exhibit 9,

5/1/2013, at 3.

        Subsequently, Appellant was arrested and charged with numerous

crimes related to the April 2012 incident, July 2012 incident, and May 2013

incident.   After the presentation of the Commonwealth’s case at trial, the

trial court granted Appellant’s motion for judgment of acquittal with respect

to certain charges.      The jury found Appellant guilty of rape and sexual

assault specifically with respect to the May 2013 incident.             The jury also

found    Appellant    guilty   of   IDSI,    stalking,   simple   assault,   and   false

imprisonment.        The jury found Appellant not guilty of other charges,

including rape related to the April 2012 incident.



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        On April 23, 2015, Appellant was sentenced to an aggregate term of

five to ten years of incarceration to be followed by five years of probation.

Appellant, through counsel, timely filed a post-sentence motion.        The trial

court denied Appellant’s post-sentence motion, and Appellant timely filed a

notice of appeal. Both Appellant and the trial court complied with Pa.R.A.P.

1925.

        On appeal, Appellant presents three issues for our review.

              1. Whether the trial court erred in denying Appellant’s
        post[-]sentence motion challenging the weight of the evidence
        where the jury concluded that the victim was not credible
        regarding one of the two alleged incidents of rape and related
        offenses?

               2. Whether the trial court erred in denying as untimely
        defense counsel’s motion for a mistrial made at the close of the
        Commonwealth’s         opening     wherein     the     Commonwealth
        mentioned [CYS] caseworkers’ involvement in the relationship
        between Appellant and the alleged victim, characterizing the
        relationship as “toxic” and asserting alleged abuse by Appellant,
        all in direct contradiction to the ruling of the trial court?

              3. Whether the trial court erred in allowing testimony by a
        [CYS] caseworker, over the objection of counsel, regarding
        Appellant’s demeanor prior to one of the alleged incidents of
        rape which resulted in the inadmissible evidence of prior bad
        acts and bad reputation evidence.

Appellant’s Brief at 5 (unnecessary capitalization omitted).

        Appellant first claims that “the trial testimony of the alleged victim …

was fraught with lies, half-truths, and fabrications, and motivated by a

desire to punish Appellant, thereby rendering the verdict issued in reliance

on her testimony questionable and contrary to the weight of the evidence.”



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Appellant’s Brief at 14.   Specifically, Appellant points to inconsistencies in

the victim’s testimony, including when the relationship with Appellant began;

whether or not she worked at a job during the relationship; and whether or

not her relationship with Richard was also abusive.

             Appellate review of a weight claim is a review of the
      exercise of discretion, not of the underlying question of whether
      the verdict is against the weight of the evidence. 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 against
      the weight of the evidence. 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.

            However, the exercise of discretion by the trial court in
      granting or denying a motion for a new trial based on a
      challenge to the weight of the evidence is not unfettered. The
      propriety of the exercise of discretion in such an instance may be
      assessed by the appellate process when it is apparent that there
      was an abuse of that discretion.

Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (internal

citations omitted).

      The trial court offered the following assessment.

             At trial, the victim testified about two alleged sexual
      incidents. She testified that one incident occurred in [April]
      2012 and the other occurred on May 1, 2013. Based on the
      jury’s verdicts, they found her testimony credible to support
      guilty verdicts beyond a reasonable doubt on the sexual incident
      occurring on May 1, 2013. It was the jury’s role to make that
      determination and it was not so contrary to the evidence as to
      shock one’s sense of justice.         There were clear factual




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      distinctions between the incidents; specifically, the victim’s
      prompt outcry following the May 2013 incident.

Trial Court Opinion, 9/9/2015, at 3-4 (citations omitted).

      We discern no abuse of discretion in the trial court’s conclusion.    As

the trial correctly observed, reconciling inconsistencies in the testimony was

within the province of the jury.     Commonwealth v. Simmons, 662 A.2d

621, 630 (Pa. 1995) (“After examining the evidence in this case, we find

that appellant’s assertion that the inconsistencies in the witnesses’ testimony

rendered them incredible to have no merit since the inaccuracies claimed are

only minor and a witness’s credibility is solely for the jury to determine.”).

Because we conclude the trial court did not abuse its discretion, Appellant is

not entitled to a new trial on this basis.

      Appellant next argues that the trial court erred by denying his motion

for a mistrial which was made after the Commonwealth’s opening statement.

Appellant’s Brief at 20-26. During the Commonwealth’s opening statement,

the assistant district attorney stated the following:

      Part of what you will hear from that witness stand is two social
      workers who worked with [the victim] and her family. You will
      hear while they interacted with [the victim], she received
      numerous text messages harassing her. You will hear that from
      their experience, this relationship became so toxic that [the
      victim] and [Appellant] were ordered to live apart. And it wasn’t
      until that point when [the victim] was able to break free of the
      [Appellant’s] control over her and eventually found a new place
      to live.

N.T., 1/26-29/2016, at 9-10.




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     At the close of the opening statement, Appellant’s counsel requested a

sidebar. At that point, the following exchange occurred:

     [Counsel for Appellant:] This morning when we were in the
     retiring room, I believe the Court ruled on what they were
     allowed to say about the CYS caseworkers’ involvement in this
     case, and they were not to mention that the basis of their
     involvement was the alleged abuse by my client. And in his
     opening, [the Commonwealth] characterized it as a toxic
     relationship, that they were forced to live separate and apart.
     Because of that, I’m asking the Court to grant a mistrial based
     upon that statement to the jury. It’s a direct contradiction as to
     what the Court said in the retiring room just this morning, and I
     think there is no way to cure that.

                                    ***

     The Court: I know. I agree. I agree. Unfortunately, you did
     not say anything until the end of his opening. I would have
     granted it…. [Y]ou did not object at the time it happened…. The
     question was, I was asked to make a ruling as to whether or not
     you could bring evidence in that CYS separated these people,
     that a safety plan was put in effect because of the relationship,
     the nature of the relationship or actions by [Appellant]. I said
     you would not be able to do that because there are reasons why
     a safety plan is issued. So I don’t understand why you said what
     you did in your opening, [Commonwealth]. You said -- you said
     as a result of the toxic relationship between [Appellant] -- that
     was created by [Appellant], they were forced to live apart. Your
     motion is denied, and I will give you a cautionary instruction.

                                    ***

     [The Court to the jury:] Ladies and gentlemen, there has been
     an objection by the defense to a portion of the opening address
     of the Commonwealth. I will indicate and reaffirm to you that
     the statements of counsel are not evidence for you to consider,
     not part of the evidence. No matter what an attorney says they
     think the evidence is going to be, whether it’s the
     Commonwealth’s attorney’s opening or the defense’s opening,
     it’s only what you hear from the witnesses that actually testify.
     … I suggest that with regard to any type of evidence that was



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      [alluded] to by [the Commonwealth’s attorney] as to the nature
      of the relationship between [Appellant] and the alleged victim,
      and that being of a toxic nature and there were consequences to
      that, that again is sort of like his -- his statement. It’s not
      evidence. It’s not part of the evidence. I ask you to completely
      disregard it, and let’s see what the evidence actually is, if there
      is any evidence in regard to that.

N.T., 1/26-29/2015, at 11-13.

      The trial court concluded that because “[t]rial counsel did not object

immediately and waited until the close of the Commonwealth’s statement to

motion for a mistrial[, … ]the extreme remedy of a mistrial was not

necessary and the [trial court] provided a cautionary instruction.” Trial Court

Opinion, 9/9/2015, at 5. Thus, the trial court concluded that it did not err in

denying the mistrial.

            Our Supreme Court has held that [waiting to object until
      the end of an opening or closing statement] does not result in
      waiver so long as: (1) there is no factual dispute over the
      content of the prosecutor’s argument (e.g., the argument was
      recorded and available for review at trial); and (2) counsel
      objects immediately after closing argument with sufficient
      specificity to give the court the opportunity to correct the
      prejudicial effect of the improper argument.

Commonwealth v. Rose, 960 A.2d 149, 154 (Pa. Super. 2008).

      Instantly, the Commonwealth’s entire opening statement spans just

four pages of the transcript. See N.T., 1/26-29/2016, at 7-10. Counsel for

Appellant requested a sidebar immediately upon its conclusion.       Thus, we

hold the trial court erred in concluding that Appellant waived this issue by

waiting until the end of the opening statement.




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       However, we cannot reach the merits of Appellant’s argument because

the record does not include what motion was made or ruled upon by the trial

court that led to Appellant’s objection. The record does not contain a written

motion requesting the exclusion of this evidence, nor does it contain a

written order. Thus, the only information we have about what evidence was

purportedly excluded is the information offered by the trial court during side

bar.

       “It is settled that it is Appellant’s responsibility to ensure that this

Court has the complete record necessary to properly review a claim.”

Commonwealth v. Kleinicke, 895 A.2d 562, 575 (Pa. Super. 2006) (en

banc). “The law of Pennsylvania is well settled that matters which are not of

record cannot be considered on appeal.” Commonwealth v. Preston, 904

A.2d 1, 6 (Pa. Super. 2006). Accordingly, it was Appellant’s responsibility to

ensure that the motion and ruling made in the retiring room prior to trial

were transcribed.5   As it is this motion and ruling that form the basis for




5
  Alternatively, Appellant could have prepared and included a statement in
absence of transcript pursuant to Pa.R.A.P. 1923, which provides: “If no
report of the evidence or proceedings at a hearing or trial was made, or if a
transcript is unavailable, the appellant may prepare a statement of the
evidence or proceedings from the best available means, including his
recollection.” Appellant did not include such a statement to this Court.




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Appellant’s request for a mistrial, we hold that Appellant has waived this

issue for purposes of appeal because we are unable to review it.6

      Finally, Appellant argues that the trial court erred by permitting a

former CYS caseworker, Nicole Lesher, to testify about her observations of

Appellant on April 26, 2013, just a few days prior to the May 2013 incident.

Appellant’s Brief at 26-29.    Specifically, Appellant argues that Lesher’s

testimony about Appellant’s palpable anger that day “unavoidably imbedded

in the minds of the jurors that Appellant had a history of violence.” Id. at

27. Thus, Appellant argues that the trial court’s permitting of that testimony

was reversible error.

      We review this claim mindful of the following.

                  Rulings on the admissibility of evidence are
            within the discretion of the trial judge, and such
            rulings form no basis for a grant of appellate relief
            absent an abuse of discretion. While it is true that
            evidence of prior crimes and bad acts is generally
            inadmissible if offered for the sole purpose of
            demonstrating the defendant’s bad character or
            criminal propensity, the same evidence may be
            admissible where relevant for another purpose.
            Examples of other such relevant purposes include
            showing the defendant’s motive in committing the
            crime on trial, the absence of mistake or accident, a

6
  Even if Appellant had not waived this issue, the cautionary instruction
offered by the trial court was sufficient to cure any prejudice. See
Commonwealth v. Jones, 668 A.2d 491, 502 (Pa. 1995) (noting that
despite improper remarks, “prejudice was cured by adequate cautionary
instructions”).




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           common scheme or design, or to establish identity….
           [T]he evidence may also be admitted where the acts
           were part of a chain or sequence of events that
           formed the history of the case and were part of its
           natural development. Of course, in addition to the
           relevance    requirement,    any    ruling  on    the
           admissibility of evidence is subject to the probative
           value/prejudicial effect balancing that attends all
           evidentiary rulings.

     Commonwealth v. Powell, [] 956 A.2d 406, 419 ([Pa.] 2008)
     (internal citations omitted).

           The ban on prior bad acts evidence, and the lion’s share of
     associated exceptions noted in Powell, supra, are set forth in
     Pa.R.E. 404(b). The res gestae or “history of the case”
     exception, however, does not spring from Pa.R.E. 404. It is a:

           “special circumstance[,]” [one] where evidence of
           other crimes may be relevant and admissible …
           where such evidence was part of the chain or
           sequence of events which became part of the history
           of the case and formed part of the natural
           development of the facts. This special circumstance,
           sometimes referred to as the “res gestae” exception
           to the general proscription against evidence of other
           crimes, is also known as the “complete story”
           rationale, i.e., evidence of other criminal acts is
           admissible to complete the story of the crime on trial
           by proving its immediate context of happenings
           near in time and place.”

     Commonwealth v. Lark, [] 543 A.2d 491, 497 ([Pa.] 1988)
     (emphasis added).

Commonwealth v. Green, 76 A.3d 575, 583-84 (Pa. Super. 2013) (some

quotations and citations omitted).

     Instantly, prior to Lesher’s testimony, counsel for Appellant moved to

exclude “statements about [Appellant’s] being angry and having an angry




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demeanor” which she made with respect to her observations of Appellant on

April 26, 2013. N.T., 1/26-29/2015, at 221.              Appellant argued that

testimony about these observations would be in violation of Pa.R.E. 404(b).

The trial court denied Appellant’s motion.

      During her testimony, Lesher stated the following.

             He was trying to tell me that -- he was saying to me not to
      believe what [the victim] was saying about him; that he’s a good
      guy; and that he would never harm her and all of that kind of
      stuff. And when I was challenging what he was saying, he was
      barely controlling his anger towards me. He was very angry. He
      was red in the face and fidgeting, and you could see his clinched
      fists. And you could just see and feel the anger coming off of
      him.

N.T., 1/26-29/2015, at 232.

      We conclude that Lesher’s testimony was admissible under the

aforementioned res gestae exception. Appellant’s demeanor with respect to

his relationship to the victim form part of the story to rebut Appellant’s

contention that he and the victim engaged in consensual sex on May 1,

2013. Accordingly, we conclude that the trial court did not err by permitting

Lesher to testify about her observations of Appellant.

      Because Appellant has not presented to this Court any issue that

warrants relief, we affirm the judgment of sentence.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/13/2016




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