J-A29013-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
          v.                                   :
                                               :
                                               :
ADAM DARROCH                                   :
                                               :
                 Appellant                     :   No. 234 EDA 2017

           Appeal from the Judgment of Sentence December 14, 2016
       In the Court of Common Pleas of Bucks County Criminal Division at
                        No(s): CP-09-CR-0000816-2016


BEFORE:        LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.:                           FILED DECEMBER 21, 2017

        Adam Wayne Darroch appeals from his judgment of sentence, entered

in the Court of Common Pleas of Bucks County, following his convictions for

aggravated indecent assault1 and indecent assault.2 After careful review, we

affirm.

        Darroch resided in a home with several housemates, including the

victim, C.K., C.K.’s daughter, and C.K.’s boyfriend.        On August 16, 2015,

Darroch and several other residents were drinking heavily when they decided

to watch a movie in the shared living room of the house.              C.K., not a

participant in the drinking, fell asleep on a couch in the living room. Sometime

later, C.K. awoke with Darroch on top of her with one hand up the leg of her

____________________________________________


1   18 Pa.C.S. § 3125.

218 Pa.C.S. § 3126.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-A29013-17


pants and the other hand attempting to remove her bra. Darroch’s fingers

were penetrating C.K.’s vagina. C.K. cursed at Darroch and kicked at him

until he desisted. C.K. then left the room.

      Two days later, C.K. reported the incident to her boyfriend, her

housemates, and the police. The police investigated and ultimately charged

Darroch with aggravated indecent assault and indecent assault. In addition

to the assault on C.K., C.K. also alleged that Darroch had acted inappropriately

toward C.K.’s minor daughter.     Accordingly, the responding police officers

independently investigated allegations that Darroch had victimized both C.K.

and her daughter.    Darroch was not charged with any offenses relating to

C.K.’s daughter due to a lack of evidence, but he was charged with the above-

listed sexual offenses against C.K.

      The parties agreed before trial that the Commonwealth would not

introduce any evidence involving Darroch’s alleged misconduct toward C.K.’s

daughter. However, the Commonwealth presented the testimony of Officer

Mancuso, who responded to C.K.’s initial 911 call to investigate the allegations

involving C.K.’s daughter, not the acts against C.K. herself. In order to limit

the risk of prejudice, the Commonwealth instructed Officer Mancuso to discuss

only matters involving C.K. directly, and to avoid any testimony involving

C.K.’s daughter.

      While on the stand, the Commonwealth asked Officer Mancuso why he

had been called to the address. Officer Mancuso attempted to comply with

the prosecutor’s instructions by avoiding mention of C.K.’s daughter. As such,

                                      -2-
J-A29013-17


he replied that he was investigating a sexual assault, but did not specify

further. The prosecutor followed up by asking whether C.K. was the alleged

victim. Officer Mancuso truthfully replied that she was not. At this point, the

defense attorney objected, reminding the court that there was a high risk of

disclosing incurably prejudicial testimony involving C.K.’s daughter. The judge

ordered a sidebar and cautioned the prosecutor to steer the testimony away

from C.K.’s daughter.

      Officer Mancuso was not privy to this sidebar, so he only heard the

court’s instruction after the sidebar, stating, “Go back to when [Officer

Mancuso] was called to the scene and let’s clear that up because I think it’s a

little confusing for all of us.” N.T. Trial, 6/9/16, at 145. The prosecutor then

asked Officer Mancuso for the second time why he responded to Darroch’s

residence. Officer Mancuso—believing that the court was asking him to fully

clarify the situation—testified truthfully that he had been called to investigate

the alleged sexual assault of C.K.’s eight-year-old child.         The defense

immediately moved for a mistrial, which the court granted.

      Prior to the second trial, Darroch moved to dismiss the charges on the

grounds of double jeopardy. The trial court granted an evidentiary hearing,

but denied Darroch’s motion. Darroch then moved to stay the proceedings to

pursue an interlocutory appeal on the issue of double jeopardy. The trial court

denied this motion and proceeded with the retrial, which resulted in the jury

finding Darroch guilty of aggravated indecent assault and indecent assault.

Darroch now appeals.

                                      -3-
J-A29013-17


      Darroch raises three issues for our consideration. First, he argues that

the Double Jeopardy Clauses of the United States and the Pennsylvania

Constitutions should have barred his retrial. Second, he argues that the trial

court erred when it refused to stay the proceedings so that Darroch could file

an interlocutory appeal on the issue of double jeopardy. Third, and finally,

Darroch argues that the evidence was insufficient to sustain his convictions.

We address each argument in turn.

      The Double Jeopardy Clauses of the United States and the Pennsylvania

Constitutions serve to protect a criminal defendant from repeated prosecution

for the same offense. Commonwealth v. Graham, 109 A.3d 733, 736 (Pa.

Super. 2015).   Retrial is typically permissible where a defendant successfully

moves for mistrial, and “most forms of undue prejudice caused by inadvertent

prosecutorial error or misconduct can be remedied in individual cases by

retrial.” Commonwealth v. Kearns, 70 A.3d 881, 885 (Pa. Super. 2013).

However, retrial may be barred by double jeopardy when the prosecutor’s

conduct is intended to provoke a defendant to move for a mistrial, or when

“the conduct of the prosecutor is intentionally undertaken to prejudice the

defendant to the point of the denial of a fair trial.” Commonwealth v. Smith,

615 A.2d 321, 325 (Pa. 1992). In either case, “it is the intentionality behind

the Commonwealth's subversion of the court process, not the prejudice

caused to the defendant, that is inadequately remedied by appellate review

or retrial.” Kearns, 70 A.3d at 884–85 (emphasis in original).



                                     -4-
J-A29013-17


      When reviewing a trial court’s double jeopardy determination, our scope

of review is plenary and our standard is de novo on questions of law.

Commonwealth v. Anderson, 38 A.3d 828, 834 (Pa. Super. 2011). We give

deference to the trial court on questions of fact and determinations of

credibility.

      Where issues of credibility and weight of the evidence are
      concerned, it is not the function of the appellate court to substitute
      its judgment based on a cold record for that of the trial court. The
      weight to be accorded conflicting evidence is exclusively for the
      fact finder, whose findings will not be disturbed on appeal if they
      are supported by the record.

Id. (quoting Commonwealth v. Wood, 803 A.2d 217, 220 (Pa. Super.

2002)).

      Thus,    we   must   determine    whether    the   Commonwealth          acted

intentionally to provoke a mistrial or to prejudice the defendant, or whether

the prejudicial testimony arose through inadvertence or simple error. The trial

court “firmly believe[d]” that the prosecutor and the witness made a good

faith effort to comply with the court’s orders. N.T. Double Jeopardy Hearing,

6/13/16, at 13, 15-17, 55-58. After review, we agree.

      Officer Mancuso’s harmful testimony arose from the confluence of

several errors, but none of them is attributable to intentional prosecutorial

misconduct. First, Officer Mancuso was not a party to the sidebar; thus, he

was not instructed with regard to the scope of acceptable testimony. Id. at

57. Consequently, Officer Mancuso misunderstood the court’s instruction that

he was to “clarify” his testimony.     Id. at 31, 44-46.     As a result, Officer


                                       -5-
J-A29013-17


Mancuso felt that he had to give “more clarity” and “the truth of why [he] was

there, and [he] testified that it was for the sexual assault of an eight-year-old

child.” Id. at 46. Further, the prosecutor admittedly failed to artfully lead

Officer Mancuso away from the inadmissible testimony. At sidebar, the court

instructed the prosecutor to “go back and start over.” N.T. Trial, 6/9/16, at

144.      Complying literally with the trial court’s instructions, the prosecutor

“started over” by repeating the same question that began the disputed

testimony. Id. at 141, 145. The prosecutor’s query may not have comported

with the constrained leading questions envisaged by the trial court, but the

question, as it was asked, does not prove the prosecutor’s intentional attempt

to subvert the trial. As Officer Mancuso aptly stated, “it was a perfect storm”

of confusion among Officer Mancuso, the judge, and the prosecutor. Id. at

44.

          This was not a case of intentional prosecutorial misconduct, nor was it

a case where the prosecutor’s inappropriate action resulted in the denial of

justice. Instead, the error arose from a confluence of missteps made by the

trial court, the prosecution, and Officer Mancuso. None of these parties acted

with any clear intent to subvert justice, and the court swiftly remedied the

error by immediately ordering a mistrial. We ultimately agree with the trial

court’s assessment that the prosecutor did not act with intent to force a

mistrial or to prejudice Darroch. As such, Darroch’s first claim warrants no

relief.



                                        -6-
J-A29013-17


      Darroch next argues that the court should have stayed the proceedings

so that Darroch could file an interlocutory appeal on the issue of double

jeopardy. A defendant generally has the right to appeal a trial court’s pre-

trial double jeopardy determination. Commonwealth v. Bolden, 373 A.2d

90 (Pa. 1977). However, no interlocutory appeal is permitted where the trial

court makes an express finding that the double jeopardy motion was frivolous.

Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011).

      When considering a motion to dismiss on the basis of double jeopardy,

the trial court must make findings of fact and law on the record, along with

an order granting or denying the motion. See Pa.R.Crim.P. 587(B)(3). Next,

the court must state on the record whether the motion is frivolous.       See

Pa.R.Crim.P. 587(B)(4). If the motion is frivolous, the trial court must advise

the defendant of his further appellate rights under Pa.R.A.P. 1573.       See

Pa.R.Crim.P. 587(B)(5).    Here, the trial court complied with the procedural

requirements.   The judge entered findings of fact and law on the record,

denied Darroch’s motion, and stated that the motion was frivolous.        N.T.

Double Jeopardy Hearing, 6/13/16, at 54-61. Finally, the judge advised the

defendant on the record of his appellate rights under Pa.R.A.P. 1573. Id. at

60.   In light of our discussion above regarding Darroch’s double jeopardy

claim, the trial court committed no error in denying Darroch’s motion to stay

for interlocutory appeal. Darroch’s second claim warrants no relief.

      Lastly, Darroch claims that the evidence was insufficient to sustain his

convictions. The standard for a sufficiency claim is as follows:

                                     -7-
J-A29013-17


        In reviewing the sufficiency of the evidence, we view all evidence
        admitted at trial in the light most favorable to the Commonwealth,
        as verdict winner, to see whether there is sufficient evidence to
        enable the fact-finder to find every element of the crime beyond
        a reasonable doubt. This standard is equally applicable to cases
        where the evidence is circumstantial rather than direct so long as
        the combination of the evidence links the accused to a crime
        beyond a reasonable doubt. Although a conviction must be based
        on “more than mere suspicion or conjecture, the Commonwealth
        need not establish guilt to a mathematical certainty.”
        Moreover, when reviewing the sufficiency of the evidence, the
        Court may not substitute its judgment for that of the fact finder;
        if the record contains support for the convictions, they may not be
        disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa. Super. 2013) (internal

citations omitted).

        Darroch was convicted of aggravated indecent assault and indecent

assault. A person commits aggravated indecent assault if that person non-

consensually “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, hygienic or law enforcement procedures.” 18 Pa.C.S. §

3125.    A person commits indecent assault if that person non-consensually

“has indecent contact with the complainant [or] causes the complainant to

have indecent contact with the person . . . for the purpose of arousing sexual

desire in the person or the complainant[.]” 18 Pa.C.S. § 3126. “Indecent

contact” is defined as “[a]ny touching of the sexual or other intimate parts of

the person for the purpose of arousing or gratifying sexual desire, in any

person.” 18 Pa.C.S.A. § 3101.



                                       -8-
J-A29013-17


          This Court has held that “the uncorroborated testimony of a victim, if

believed by the trier of fact, is sufficient to convict a defendant, despite

evidence from a defense witness.” Commonwealth v. Filer, 846 A.2d 139,

141-42 (Pa. Super. 2004) (quoting Commonwealth v. Davis, 650 A.2d 452,

455 (Pa. Super. 1994)).         Here, C.K. testified that Darroch penetrated her

vagina with his fingers without her consent and while she was asleep. N.T.

Trial, 6/13/16, at 119-21. She further testified that Darroch attempted to

remove her bra at the same time. Id. These instances of unwanted touching,

which include penetration, fulfill the elements of both aggravated indecent

assault and indecent assault. Moreover, the jury, as finder of fact, was free

to believe C.K.’s testimony. Commonwealth v. Estepp, 17 A.3d 939, 943–

44 (Pa. Super. 2011).3 As such, Darroch’s third and final claim warrants no

relief.

          Judgment of sentence affirmed.




____________________________________________


3  Even so, C.K.’s testimony is supported by Darroch’s admission to the
investigating detectives that he “may have touched [the victim’s] private
area” and that he “fingered her.” N.T. Trial, 6/14/16, at 59. Despite Darroch’s
later equivocation, the jury had a sufficient basis to find Darroch guilty on all
charges.

                                           -9-
J-A29013-17



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/21/2017




                          - 10 -
