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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
               v.                              :
                                               :
                                               :
    BRADLEY A. SUNDERLAND, SR.                 :
                                               :
                      Appellant                :   No. 561 MDA 2017

              Appeal from the Judgment of Sentence March 2, 2017
     In the Court of Common Pleas of Huntingdon County Criminal Division at
                        No(s): CP-31-CR-0000574-2015


BEFORE: SHOGAN, J., DUBOW, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY SHOGAN, J.:                                  FILED MAY 01, 2018

        Appellant, Bradley A. Sunderland, Sr., appeals from the judgment of

sentence entered following his convictions of aggravated indecent assault

and incest.1 We affirm.

        The trial court summarized the underlying facts of this case as follows:

               The victim testified regarding events that she recalled
        taking place between May, 2015 and November, 2015. On
        November 1, 2015, around 1:00 AM or 2:00 AM, she was laying
        on her stomach on the couch when [Appellant] “put his fingers in
        my vagina.” N.T. 9/20/2016 at 30-31. [Appellant] asked if “he
        could [have intercourse with] me” and she told him no. N.T.
        9/20/2016 at 32. Then, “he got his penis out and actually
        penetrated my vagina.” N.T. 9/20/2016 at 32. She further
        testified that “[a]t the time that he penetrated me I tensed up
        and he told me to come on and I said no.” N.T. 9/20/2016 at
        33. A few times in the week leading up to this incident the

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1   18 Pa.C.S. §§ 3125(a)(1) and 4302(a), respectively.
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      victim woke up to “[Appellant] standing over top of her with his
      fingers inserted into her vagina.” N.T. 9/20/2016 at 212. The
      victim testified that [Appellant] penetrated her vagina with his
      fingers and penis, and that she did not consent.

Trial Court Opinion, 6/2/17, at 2.

      Appellant was arrested on November 5, 2015, and was charged with

various sex offenses relating to his conduct with the victim. A preliminary

hearing was held on December 2, 2015, and the charges were bound over

for trial.   On September 15, 2016, the Commonwealth filed a motion in

limine seeking to introduce at trial evidence of Appellant’s prior bad acts with

the victim, because they formed a res gestae leading up to the events

charged against Appellant. Immediately prior to the commencement of trial,

the court held a hearing on the Commonwealth’s motion in limine and

granted the Commonwealth’s request to admit the evidence of Appellant’s

prior bad acts. During the trial, Appellant objected to the questioning of the

victim pertaining to Appellant’s prior bad acts, and the trial court gave a

limiting instruction to the jury.

      On September 20, 2016, at the conclusion of the jury trial, Appellant

was found guilty of aggravated indecent assault without consent and incest.

The jury found Appellant not guilty of rape, aggravated indecent assault by

forcible compulsion, and aggravated indecent assault of an unconscious




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victim.2 On March 2, 2017, the trial court sentenced Appellant to serve an

aggregate term of incarceration of four and one-half to nine years.                On

March 27, 2017, the trial court held a hearing and determined that Appellant

was not a sexually violent predator.             This timely appeal followed.    Both

Appellant and the trial court have complied with Pa.R.A.P. 1925.

        Appellant presents the following issues for our review:

        1. Should the [trial c]ourt have denied Commonwealth’s Motion
        in Limine – Notice of Prior Bad Acts, which sought to introduce
        evidence that Appellant’s actions were part of a res gestae that
        included a sequence of events leading up to the matters charged
        in the complaint?

        2. Should the Appellant have had the opportunity to fully cross-
        examine the purported victim at the Preliminary Hearing about a
        purported history of sexual abuse by Appellant which fell outside
        of the specific time period of the charges before the [trial c]ourt?

Appellant’s Brief at 8.

        Appellant first argues that the trial court erred in granting the

Commonwealth’s motion in limine.               Appellant’s Brief at 24-39.   Appellant

contends that the trial court erred in concluding that the res gestae

exception to the preclusion of prior bad acts evidence was applicable to the

facts of this case.

        A motion in limine is a procedure for obtaining a ruling on the

admissibility of evidence prior to or during trial, but before the evidence has

been offered.     Commonwealth v. Freidl, 834 A.2d 638, 641 (Pa. Super.
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2   18 Pa.C.S. §§ 3121(a)(1), 3125(a)(2), and 3125(a)(4), respectively.



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2003).   It is well settled that “[t]he admission of evidence is within the

sound discretion of the trial court, and will be reversed on appeal only upon

a   showing    that   the   trial   court   clearly   abused   its   discretion.”

Commonwealth v. Miles, 846 A.2d 132, 136 (Pa. Super. 2004) (en banc)

(citing Commonwealth v. Lilliock, 740 A.2d 237 (Pa. Super. 1999)).

Abuse of discretion requires a finding of misapplication of the law, a failure

to apply the law, or judgment by the trial court that exhibits bias, ill-will,

prejudice, partiality, or was manifestly unreasonable, as reflected by the

record. Commonwealth v. Montalvo, 986 A.2d 84, 94 (Pa. 2009).

      Our Supreme Court has discussed evidence of other bad acts and the

related exceptions as follows:

      Generally, evidence of prior bad acts or unrelated criminal
      activity is inadmissible to show that a defendant acted in
      conformity with those past acts or to show criminal propensity.
      Pa.R.E. 404(b)(1). However, evidence of prior 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. Pa.R.E. 404(b)(2).
      In determining whether evidence of other prior bad acts is
      admissible, the trial court is obliged to balance the probative
      value of such evidence against its prejudicial impact.

Commonwealth v. Sherwood, 982 A.2d 483, 497 (Pa. 2009).

      As this Court recently reiterated:

      [w]hile evidence of prior bad acts is not admissible to show
      criminal propensity, evidence of other crimes may be admissible
      if it is relevant to show some other legitimate purpose.
      Commonwealth v. Tyson, 119 A.3d 353, 358 (Pa. Super.
      2015). An exception to Rule 404(b) exists that permits the
      admission of evidence where it became part of the history of the
      case and formed part of the natural development of facts.

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      Commonwealth v. Solano, 129 A.3d 1156, 1178 (Pa. 2015).
      This exception is commonly referred to as the res gestae
      exception. Id.

Commonwealth v. Ivy, 146 A.3d 241, 251 (Pa. Super. 2016).

      Our Supreme Court has observed that a trial court is not “required to

sanitize    the   trial   to   eliminate   all   unpleasant   facts   from   the   jury’s

consideration where those facts are relevant to the issues at hand and form

part of the history and natural development of the events and offenses for

which the defendant is charged.”            Commonwealth v. Paddy, 800 A.2d

294, 308 (Pa. 2002) (quoting Commonwealth v. Lark, 543 A.2d 491, 501

(Pa. 1988)).      In addition, we note that, with regard to jury instructions,

“[t]he law presumes that the jury will follow the instructions of the court.”

Commonwealth v. Brown, 567 Pa. 272, 289, 786 A.2d 961, 971 (2001);

Commonwealth v. O'Hannon, 732 A.2d 1193, 1196 (Pa. 1999) (stating

“[a]bsent evidence to the contrary, the jury is presumed to have followed

the trial court’s instructions”).

      In addressing Appellant’s issue, the trial court provided the following

analysis:

             We granted the Commonwealth’s motion in limine seeking
      to introduce [Appellant’s] prior sexual contact with the victim.
      Pennsylvania courts recognize the res gestae exception to
      Pennsylvania Rule of Evidence 404(b) that permits the admission
      of evidence if it is part of the history of the case and is needed to
      tell the complete story. Com. v. Hairston, 624 Pa. 143, 157, 84
      A.3d 657, 665 (2014); Commonwealth v. Ivy, 2016 PA Super
      183, 146 A.3d 241, 251 (Pa. Super. Ct. 2016). When a court
      applies the res gestae exception, it still must balance the
      prejudicial effect against the probative value. See Com. v.

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     Brown, 2012 PA Super 150, 52 A.3d 320, 326 (Pa. Super. Ct.
     2012) (citation omitted). This exception is properly applied
     when the bad acts are part of the same transaction involving the
     charged crime. Id. at 332. Res gestae evidence is particularly
     important for fact-finders in sexual assault cases due to the lack
     of direct evidence and lack of independent witnesses. Com. v.
     Dillon, 2004 PA Super 457, 11 10, 863 A.2d 597, 601 (Pa.
     Super. Ct. 2004), aff’d, 592 Pa. 351, 925 A.2d 131 (2007).

           We held a hearing the morning of the trial, and granted
     [the] Commonwealth’s motion that permitted the introduction of
     [Appellant’s] prior bad acts for the limited purpose to tell the
     complete story. The victim testified that prior to the incidents in
     20153, [Appellant] “played doctor” with her three or four times
     when she was around the age of five to seven. N.T. 9/20/2016
     at 53-58. This testimony gave the full context to the jury of the
     victim/perpetrator history. Even more significant in this case
     was the [familial] relationship. The jury was entitled to know
     that this was not a typical [familial] relationship. The illicit
     conduct by the perpetrator started years before the sexual
     assault was tried in our courtroom, however we believed such
     testimony was probative. Immediately following the testimony,
     we gave a limiting instruction to the jury directing them to use
     the evidence solely for the purpose of understanding the full
     story leading up to the incident.4 The probative value of the
     testimony, which allowed the jury to fully understand the events
     surrounding the relationship between victim and [Appellant],
     outweighed any prejudicial impact to [Appellant].

           3She was seventeen years old at the time of [the]
           2015 incidents.

           4   The cautionary instruction given was as follows:

                   Ladies and gentlemen, let me explain
                   something and counsel’s approached the
                   bench a few times and I need to explain
                   something. As I explained earlier, I’m
                   the judge of the law and you’re the judge
                   of the facts. You’re hearing evidence
                   right now of alleged conduct of
                   [Appellant] that allegedly happened
                   when [the victim] was very young. The
                   testimony is being presented for the

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                   limited purpose of permitting [the victim]
                   to explain the series of events leading up
                   to the conduct that’s charged in the
                   Information or the indictment.

                   You can only consider this testimony of
                   what happened when she was younger
                   for   the   limited   purpose   of    the
                   development of the case from [the
                   victim’s] perspective. [Appellant] is not
                   charged with this conduct from when she
                   was younger and you may only consider
                   conduct which occurred between May 1,
                   2015 and November 1, 2015.

            N.T. 9/20/2016 at 57-58.

Trial Court Opinion, 6/2/17, at 3-4.               We agree with the trial court’s

determination.

      Our review of the record reflects that the Commonwealth questioned

the victim regarding incidents of sexual conduct and “playing doctor” that

occurred when she was in grade school. N.T., 9/20/16, at 53-57. Defense

counsel   lodged       several   objections   to    the   Commonwealth’s   line   of

questioning. Id.       The trial court overruled the objections and allowed the

questioning.     Id.     As the direct examination of the victim progressed,

defense counsel lodged another objection, and the trial court gave an apt

curative instruction to the jury explaining that the testimony of Appellant’s

previous conduct was to be used “for the limited purpose of the development

of the case from [the victim’s] perspective.” Id. at 56-58. We agree with

the trial court that this evidence of Appellant’s prior conduct with the victim

establishes part of the history of the case and formed part of the natural

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development of facts.      Accordingly, we discern no error or abuse of

discretion by the trial court in admitting the evidence. Furthermore, there is

no evidence that the jury ignored the trial court’s cautionary instructions

directing the jury to consider the evidence for a limited purpose, and,

“absent evidence to the contrary, the jury is presumed to have followed the

court’s instructions.”   O'Hannon, 732 A.2d at 1196.      Hence, Appellant’s

issue does not merit relief.

      Appellant next argues that he is entitled to a new trial because, at the

preliminary hearing, he should have been permitted to cross-examine the

victim regarding her allegations of Appellant’s inappropriate conduct with her

that preceded the time period of the instant offenses. Appellant’s Brief at

39-44.    Before we address the merits of Appellant’s issue, we must

determine whether the claim presented has been properly preserved for our

consideration on appeal.

      Our Courts have consistently ruled that, where a trial court directs a

defendant to file a concise statement pursuant to Pennsylvania Rule of

Appellate Procedure 1925, any issues not raised in that statement shall be

waived. Commonwealth v. Bullock, 948 A.2d 818, 823 (Pa. Super. 2008)

(citing Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998)).               In

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

Court reaffirmed its holding in Lord and stated: “In Lord, however, this

Court eliminated any aspect of discretion and established a bright-line rule


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for waiver under Rule 1925 …. Thus, waiver under Rule 1925 is automatic.”

See also Commonwealth v. Oliver, 946 A.2d 1111, 1115 (Pa. Super.

2008) (noting that Lord “requires a finding of waiver whenever an appellant

fails to raise an issue in a court-ordered Pa.R.A.P. 1925(b) statement”).

      We are mindful that Rule 1925 is intended to aid trial judges in

identifying and focusing upon those issues that the parties plan to raise on

appeal.   The absence of a trial court opinion addressing a particular claim

poses a substantial impediment to meaningful and effective appellate

review.   Commonwealth v. Lemon, 804 A.2d 34, 36 (Pa. Super. 2002).

Rule 1925 is thus a crucial component of the appellate process.          Lemon,

804 A.2d at 37.     “When a court has to guess what issues an appellant is

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

Dowling, 778 A.2d 683, 686 (Pa. Super. 2001). In addition, claims that are

not raised before the trial court are waived.          See Commonwealth v.

Lopata, 754 A.2d 685, 689 (Pa. Super. 2000) (stating that “[a] claim which

has not been raised before the trial court cannot be raised for the first time

on appeal.”); Commonwealth v. Ryan, 909 A.2d 839, 845 (Pa. Super.

2006) (citing Commonwealth v. Gordon, 528 A.2d 631, 638 (Pa. Super.

1987) (reiterating that “[a] theory of error different from that presented to

the trial jurist is waived on appeal, even if both theories support the same

basic allegation of error which gives rise to the claim for relief.”).




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      Our review of the certified record reflects that on April 3, 2017, the

trial court issued an order directing Appellant to file a Pa.R.A.P. 1925(b)

statement within twenty-one days.      The record further reflects Appellant

filed his Rule 1925(b) statement on April 13, 2019. Appellant’s Rule 1925(b)

statement contains three issues. The first issue raised a claim pertaining to

the sufficiency of the evidence, and the second issue alleged trial court error

in granting the Commonwealth’s motion in limine.           Pa.R.A.P. 1925(b)

Statement, 4/13/17, at 1.     The third issue presented a claim challenging

cross-examination of the victim, as follows:

      3. The Trial Court erred as a matter of law when it denied
      [Appellant] the opportunity to cross-examine the alleged victim
      relative to any history of sexual abuse by [Appellant] which fell
      outside of the time period of the specific charges in the
      complaint.

Pa.R.A.P. 1925(b) Statement, 4/13/17, at 1 (emphasis added).

      Thus, Appellant properly preserved for review a claim alleging error on

the part of the trial court in purportedly denying Appellant the opportunity to

cross-examine the victim.      In his Rule 1925(b) statement, however,

Appellant never specifically raised to the trial court the theory that he was

denied an opportunity to cross-examine the victim at the preliminary

hearing. Because Appellant failed to present an issue challenging the denial

of cross-examination of the victim at the preliminary hearing, the trial court

limited its review to a discussion concerning cross-examination of the victim




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during the jury trial. Specifically, the trial court addressed Appellant’s claim

as follows:

            The last issue raised indicates that the [trial c]ourt failed to
      permit cross[-]examination of the victim regarding prior sexual
      acts outside of the time period of the specific charges. The
      record fails to support any such argument. In fact, the [trial
      c]ourt expressly permitted defense counsel the opportunity to
      cross-examine the victim regarding the prior incidents.5 N.T.
      9/20/2016 at 6.

              5  The [trial c]ourt stated, “[o]bviously if I let [the
              alleged prior bad acts] in, you’re going to be able to
              explore that on cross examination. [The District
              Attorney] isn’t going to be able to object if I do let it
              in.” N.T. 9/20/2016 at 6.

Trial Court Opinion, 6/2/17, at 4.      Therefore, to the extent Appellant now

attempts to challenge whether he was improperly denied an opportunity to

cross-examine the victim at the preliminary hearing, we conclude that

this argument is waived because Appellant failed to present this specific

issue to the trial court in his Rule 1925(b) statement.

      Even if the issue Appellant now presents in his appellate brief were not

waived, we would conclude that it does not merit relief. The purpose of a

preliminary hearing is to avoid the incarceration or trial of a defendant

unless there is sufficient evidence to establish a crime was committed and

the   probability   the   defendant   could     be   connected   with     the   crime.

Commonwealth v. Tyler, 587 A.2d 326, 328 (Pa. Super. 1991) (citing

Commonwealth v. Wojdak, 466 A.2d 991 (Pa. 1983)). Its purpose is not

to prove a defendant’s guilt. Id. Therefore, the weight and credibility of the


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evidence are not factors at this stage, and the Commonwealth need only

demonstrate sufficient probable cause to believe the person charged has

committed the offense.        Commonwealth v. Marti, 779 A.2d 1177, 1180

(Pa. Super. 2001) (citing Wojdak, 466 A.2d at 1000).          Further, once an

appellant has gone to trial and been found guilty of the crime, any defect in

the preliminary hearing is rendered immaterial.             Commonwealth v.

Worrall, 609 A.2d 851, 852 (Pa. Super. 1992). We have long stated that

“the failure to establish a prima facie case at a preliminary hearing ‘is clearly

immaterial where at the trial the Commonwealth met its burden by proving

the [offense] beyond a reasonable doubt.’” Commonwealth v. Troop, 571

A.2d   1084,   1088    (Pa.    Super.    1990)   (quoting   Commonwealth      v.

McCullough, 461 A.2d 1229, 1231 (Pa. 1983)).           See Commonwealth v.

Fewell, 654 A.2d 1109, 1112 (Pa. Super. 1995) (holding that an alleged

error at the preliminary hearing stage is moot once the appellant was

convicted by a jury at a fair and impartial trial). See also Commonwealth

v. Murray, 502 A.2d 624, 630 (Pa. Super. 1985) (stating that “[l]ogically, a

new preliminary hearing is foolish once the evidentiary trial is completed

without reversible error.”).

       Our review of the record reflects that, at the preliminary hearing, the

magisterial district judge limited defense counsel’s cross-examination of the

victim and stated, “Let’s talk about the events that are charged in the

Complaint here.” N.T., 12/2/15, at 19-20. Although Appellant was deprived


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of an opportunity to cross-examine the victim concerning her recollection of

uncharged incidents that occurred with Appellant, we observe that the

purpose of the preliminary hearing was for the Commonwealth to establish a

prima facie case that Appellant committed the crimes that were actually

charged.   It is undisputed that a jury later found Appellant guilty of two

properly charged crimes, beyond a reasonable doubt.         Therefore, any

alleged error at the preliminary hearing is immaterial and moot. Troop, 571

A.2d at 1088; Fewell, 654 A.2d at 1112. Accordingly, if this issue had not

been waived, we would conclude Appellant is entitled to no relief on this

claim.

     Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 05/01/2018




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