J-S25035-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

RONALD ANTHONY GARVIS, JR.

                            Appellant                No. 1456 WDA 2015


            Appeal from the Judgment of Sentence August 28, 2015
            In the Court of Common Pleas of Westmoreland County
              Criminal Division at No(s): CP-65-CR-0001939-2013


BEFORE: FORD ELLIOTT, P.J.E., MUNDY, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                          FILED MARCH 28, 2016

       Appellant Ronald Anthony Garvis, Jr. appeals from the judgment of

sentence entered in the Westmoreland County Court of Common Pleas

following his jury trial convictions for statutory sexual assault, involuntary

deviate sexual intercourse (“IDSI”), aggravated indecent assault, corruption

of minors, and indecent assault, person less than sixteen (16) years of age.1

We affirm.

       The relevant facts and procedural history of this appeal are as follows.

In August of 2012, when Appellant was twenty-five (25) years of age, he

engaged in sexual intercourse with minor A.S. (“Victim”), who was thirteen

years of age, once in a street alley and another time in Appellant’s
____________________________________________


1
  18 Pa.C.S. §§ 3122.1(b), 3123(a)(7), 3125(a)(8), 6301(a)(1)(ii), and
3126(a)(8), respectively.
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basement. Both instances occurred in the middle of the night while Victim’s

family was sleeping. Victim and her family then moved from Trafford, PA,

where the sexual encounters occurred, to Monroeville, PA.             In January of

2013, as a result of a conversation with Victim’s sister, Victim’s mother

(“Mother”) asked Victim about Appellant.          Victim told Mother about one of

the sexual encounters with Appellant, and Mother reported the incident to

the police.

       During a trial from March 3, 2015 through March 6, 2015, Victim

testified that Appellant had engaged in sexual intercourse with her on two

occasions.    Mother, Victim’s friend Jessica Monro, Appellant’s ex-girlfriend

Gina Musser, and Patrolman Michael Socci corroborated Victim’s testimony.

Appellant also testified and denied that he engaged in sexual intercourse

with   Victim.     After   trial,   the   jury   found   Appellant   guilty   of   the

aforementioned crimes.

       On August 28, 2015, the court conducted a sentencing hearing and

sentenced Appellant to concurrent periods of incarceration of one to two (1-

2) years for statutory sexual assault, four to eight (4-8) years for IDSI, and

twenty-two to forty-two (22-42) months for aggravated indecent assault.

The court also imposed concurrent sentences of probation of two (2) years

for corruption of minors and two (2) years for indecent assault, person less




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than sixteen (16) years of age. The court imposed the period of probation

consecutively to the period of incarceration.2

        On September 22, 2015, Appellant filed a timely notice of appeal. On

October 2, 2015, the court ordered Appellant to file a concise statement of

errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b), and he

timely complied on October 21, 2015.

        Appellant raises the following issues for our review:

           I. The trial court erred in failing to grant the defendant’s
           motion for a mistrial after the Commonwealth’s witness,
           who was questioned about whether the defendant said
           anything about the charges at the time he was arrested,
           began to testify “The only thing I recall him saying was he
           had invoked his right to...” (Trial Transcript, hereinafter
           T.T. p. 260) thereby impermissibly referencing that the
           defendant had invoked his right to counsel.

           II. The trial court erred in allowing the Commonwealth to
           introduce factual allegations made in a PFA[3] against the
           defendant. As the defendant was on trial for rape and
           related offenses the prejudicial effect to the defendant
           clearly   outweighed     any    probative  value  to   the
           Commonwealth.

           III. The defendant challenges the sufficiency of the
           evidence.


____________________________________________


2
  The written judgment of sentence was amended twice to reflect that: the
sentences of incarceration were to run concurrently; the periods of probation
were state probation, not county probation; and the probation periods were
to be imposed concurrently with each other but consecutively to the
incarceration period.
3
    Protection from abuse order.



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Appellant’s Brief at 2 (verbatim).

      In his first issue, Appellant argues Patrolman Socci impermissibly

referenced Appellant’s invocation of his right to counsel during his trial. He

claims this reference before the jury prejudiced his case, and the court erred

by not granting his motion for a mistrial. We disagree.

      Our standard of review of a court’s denial of a motion for mistrial is as

follows:

           A motion for a mistrial is within the discretion of the trial
           court. A mistrial upon motion of one of the parties is
           required only when an incident is of such a nature that its
           unavoidable effect is to deprive the appellant of a fair and
           impartial trial. It is within the trial court’s discretion to
           determine whether a defendant was prejudiced by the
           incident that is the basis of a motion for a mistrial. On
           appeal, our standard of review is whether the trial court
           abused that discretion.

Commonwealth v. Akbar, 91 A.3d 227, 236 (Pa.Super.2014) (quoting

Commonwealth v. Tejeda, 834 A.2d 619, 623 (Pa.Super.2003)).

      “[T]he Commonwealth cannot use a non-testifying defendant’s pre-

arrest silence to support its contention that the defendant is guilty of the

crime charged as such use infringes on a defendant’s right to be free from

self-incrimination.”   Commonwealth        v.   Adams,    39   A.3d   310,   318

(Pa.Super.2012) aff'd, 104 A.3d 511 (Pa.2014) (quoting Commonwealth v.

Molina, 33 A.3d 51 (Pa.Super.2011) (en banc ) aff'd, 104 A.3d 430

(Pa.2014)).     However, “the mere revelation of a defendant’s pre-arrest

silence does not establish innate prejudice where it was not used in any



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fashion that was likely to burden [the] defendant’s Fifth Amendment right or

to create inference of admission of guilt.” Id.

      “If the Commonwealth mentions a defendant’s post-arrest silence, the

court might still be able to cure any prejudice through prompt and adequate

curative instructions.” Commonwealth v. Moury, 992 A.2d 162, 176

(Pa.Super.2010). Further, a reference to a defendant’s post-arrest silence

could constitute harmless error if “the appellate court concludes beyond a

reasonable doubt that the error could not have contributed to the verdict.”

Id. (internal citations omitted).

         Where an error is deemed to be harmless, a reversal is not
         warranted. Regarding the erroneous admission of
         evidence, harmless error exists where: (1) the error did
         not prejudice the defendant or the prejudice was de
         minimis; (2) the erroneously admitted evidence was
         merely cumulative of other untainted evidence which was
         substantially similar to the erroneously admitted evidence;
         or (3) the properly admitted and uncontradicted evidence
         of guilt was so overwhelming and the prejudicial effect of
         the error was so insignificant by comparison that the error
         could not have contributed to the verdict.

Commonwealth v. Kuder, 62 A.3d 1038, 1053 (Pa.Super.2013) (quoting

Commonwealth v. Hutchinson, 811 A.2d 556, 561 (Pa.2002).

      Appellant directs us to the following exchange, during trial:

         [PROSECUTOR]: But [Appellant] told you he did not know
         [Victim]?

         [PATROLMAN SOCCI]: Was not familiar with the incident,
         did not know [Victim].




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        [PROSECUTOR]: And was there an occasion later,
        sometime later in April where you were present with the
        Detective when [Appellant] was arrested?

        [PATROLMAN SOCCI]: Yes.

        [PROSECUTOR]:        And did you recollect him        saying
        anything at that point in time about the charges?

        [PATROLMAN SOCCI]: The only thing I recall him saying
        was he had invoked his right to –

        [PROSECUTOR]: Okay. No. What did he say about, if
        anything that you recollect, about the, his knowledge of
        the victim or anything related to the victim?

        [DEFENSE COUNSEL]:         Your Honor, I’m sorry.   Could we
        approach, please?

N.T., 3/3/15-3/6/15, at 260. At this point, the court conducted the following

sidebar conference with counsel:

        [DEFENSE COUNSEL]: Your Honor, I have – I should’ve
        stood up and yelled and screamed. I don’t think that
        [Prosecutor] wasn’t going to – he started to say invoked
        his right to counsel –

        [PROSECUTOR]: But I caught him before he got that far.

        THE COURT: He didn’t finish it.

        [DEFENSE COUNSEL]: Pretty close to what he was saying.

        [PROSECUTOR]: I caught it.

        THE COURT: It might be obvious to us because we’re used
        to it, but to the jury, all the witness said was that he
        invoked. I think those were the only words. I don’t think
        they have a concept as the three of us do as to what he
        was about to say. If he would’ve said the next –

                                   *    *    *


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         THE COURT: Are you moving for a mistrial?

         [DEFENSE COUNSE]L: Yes.

         THE COURT: Okay. The motion is denied at this time.

Id. at 260-261. After the sidebar conference, Patrolman Socci answered the

prosecutor’s question:   “I recall [Appellant] saying that [] he thought that

she was older.” Id. at 262. At the request of the Commonwealth, the court

later gave the following general curative instruction to the jury:

         THE COURT: At some points in the trial, in the testimony,
         there were objections and or comments that require
         sidebar conferences with the attorneys and me here at the
         bench. You are not to speculate about the nature or
         content that prompted the objection or sidebar conference.
         As I told you at the outset, part of my job is to rule on any
         objection to evidence made by counsel. If I decide the
         evidence is admissible, I will overrule, would’ve overruled
         the objection. This simply means that you are entitled to
         hear and consider that evidence. On the other hand, if I
         decided that evidence was inadmissible, I would’ve
         sustained the objection. This means that you are not and
         were not entitled to hear that evidence. Whenever I
         sustained an objection, you were to completely disregard
         that evidence when deciding the case. Counsel and I may
         have had to deal with matters that you were not supposed
         to know about or hear about. And when these matters
         come up, counsel and I may have discussed it here at the
         bench, in my chambers, or in the courtroom after I’ve
         asked you to leave. Please do not try to guess what it is
         that we may have been talking about.

Id. at 405.

      Here, the Commonwealth did not try to elicit testimony about

Appellant’s post-arrest silence as proof of his guilt. Rather, the prosecutor

stopped Patrolman Socci in mid-sentence when she sensed he was about to


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reference Appellant’s invocation of his right to counsel.         Further, the

prosecutor continued her questioning to deflect attention from the incident,

and she asked the court to give a curative instruction that would not draw

attention to Patrolman Socci’s remark.

      Appellant did not suffer prejudice from Patrolman Socci’s testimony for

three reasons. First, the trial court cured any harm with its instruction to

the jury to avoid speculating about any matters that the court and counsel

discussed at sidebar.     Second, the trial court correctly noted that the

prosecutor stopped Patrolman Socci from answering that Appellant invoked

his right to counsel, and his uttered words did not convey this concept to the

jury. Third, to the extent that Patrolman Socci referenced Appellant’s post-

arrest silence, the error did not contribute to the verdict.

      Several witnesses corroborated Victim’s testimony.       Mother testified

that Victim told her she snuck out of the house in the middle of the night

and engaged in sexual activities with Appellant and that she did not tell her

mother because she did not want to get into trouble.           N.T., 3/3/2015-

3/6/2015, at 100.    Monro testified that she introduced Victim and Appellant,

that she saw Victim and Appellant walking together, that she received a text

message from Victim stating that Appellant raped her, and that she received

a Facebook message from Appellant asking about what happened to her

friend, Victim. Id. at 126, 132-34, 138. Musser testified that Appellant told

her he cheated on her with an under-aged girl named [Victim] once in an


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alley, after he had been drinking, and once in their basement. Id. at 230-

231. She testified that Appellant asked her to lie on his behalf, but that she

refused. Id. at 234. Patrolman Socci testified that he got the message from

Mother about Victim’s assault and that, after Appellant was arrested, he

stated, “I thought she was older.” Id. at 258, 262.

      Thus, the properly admitted and uncontradicted evidence of guilt was

overwhelming, and the court did not abuse its discretion in denying

Appellant’s motion for a mistrial. See Kuder, supra.

      In    his   second    issue,   Appellant   argues   the   Commonwealth

impermissibly introduced prior bad acts as evidence against him. He claims

the Commonwealth used prejudicial allegations in a PFA against him to show

that he would act in conformity therewith, and that the court erred by

allowing the introduction of the evidence. Appellant’s issue merits no relief.

      “The admission of evidence is solely within the discretion of the trial

court, and a trial court’s evidentiary rulings will be reversed on appeal only

upon an abuse of that discretion.” Commonwealth v. Woodard, 129 A.3d

480, 494 (Pa. 2015) (quoting Commonwealth v. Reid, 99 A.3d 470, 493

(Pa.2014)).

      The Pennsylvania Rules of Evidence provide:

           (b) Crimes, Wrongs or Other Acts.

           (1) Prohibited Uses. Evidence of a crime, wrong, or other
           act is not admissible to prove a person's character in order
           to show that on a particular occasion the person acted in
           accordance with the character.

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         (2) Permitted Uses. This evidence may be admissible for
         another purpose, such as proving motive, opportunity,
         intent, preparation, plan, knowledge, identity, absence of
         mistake, or lack of accident. In a criminal case this
         evidence is admissible only if the probative value of the
         evidence outweighs its potential for unfair prejudice.

         (3) Notice in a Criminal Case. In a criminal case the
         prosecutor must provide reasonable notice in advance of
         trial, or during trial if the court excuses pretrial notice on
         good cause shown, of the general nature of any such
         evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404.

      Although evidence of a defendant’s prior bad acts is not admissible to

show his bad character or propensity to commit bad acts, it is admissible

where “there is a legitimate reason for the evidence, such as to establish: 1)

motive; 2) intent; 3) absence of mistake or accident; 4) a common scheme

or plan; and 5) identity.”    Commonwealth v. Reid, 811 A.2d 530, 550

(Pa.2002).     Further, the evidence may also be admissible “to impeach the

credibility of a testifying defendant”. Id.

      “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) (quoting Commonwealth v. Powell, 956 A.2d 406,

419 (Pa.2008)).




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     Here, Appellant testified that Musser only filed a PFA against him

because she was angry that he was dating someone else. N.T., 3/3/2015-

3/6/2015, at 30. On cross-examination, the following transpired:

        [PROSECUTOR]: And there were allegations there that you
        pushed her onto the couch and grabbed her ankles and
        pulled her to the floor and dragged her and spit on her,
        and pushed her into a bookshelf and grabbed her arms
        and—

        [DEFENSE COUNSEL]: Your Honor, I’m going to object.
        This is –

        [APPELLANT]: You don’t have to.

        [DEFENSE COUNSEL]: – beyond the scope of direct
        examination.

        THE COURT: It is.

        [PROSECUTOR]: Well, it is, but he spoke about that she
        got a PFA out of anger because –

        [APPELLANT]: That’s what she did to me.

        [PROSECUTOR]: – he was with a new girl.

        THE COURT:     [Appellant], don’t say anything until I tell
        you.

        [PROSECUTOR]: He testified that –

        THE COURT: Your argument is that he opened the door?

        [PROSECUTOR]: Yes, Your Honor.

        THE COURT: The objection is overruled.

        [PROSECUTOR]: So you were served with the PFA and you
        know that she made these allegations that you did all this
        to her while she was seven-and-a-half months pregnant
        with a new baby?

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          [APPELLANT]: Those were the things that she did to me.

N.T., 3/3/2015-3/6/2015, at 328-330.

       Here, the Commonwealth used evidence of Appellant’s prior bad acts

for the purpose of impeaching his testimony that Musser only filed a PFA

against him because she was mad at him for cheating on her. The court did

not balance the probative value of such evidence against its prejudicial

impact before allowing the Commonwealth to introduce this evidence.

Appellant, however, did not object to the court’s admission of evidence

regarding Appellant’s prejudicial prior bad acts. Rather, Appellant objected

to the questioning on the basis that it was beyond the scope of direct

examination. Thus, Appellant has waived this claim. See Commonwealth

v. Molina, 33 A.3d 51, 55 (Pa.Super.2011) aff'd, 104 A.3d 430 (Pa.2014)

(“[I]t is well-settled that a defendant’s failure to object to allegedly improper

testimony at the appropriate stage in the questioning of the witness

constitutes waiver.”).4

       In his final issue, Appellant challenges the sufficiency of the evidence

that resulted in his convictions.

       When examining a challenge to the sufficiency of evidence, our

standard of review is as follows:
____________________________________________


4
  Moreover, even if the court made an improper evidentiary ruling, due to
the overwhelming evidence properly admitted against Appellant, the error
was harmless. See Kuder, supra.



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        The standard we apply in reviewing the sufficiency of the
        evidence is 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. In
        applying [the above] test, we may not weigh the evidence
        and substitute our judgment for the fact-finder. In
        addition, we note that the facts and circumstances
        established by the Commonwealth need not preclude every
        possibility of innocence.        Any doubts regarding a
        defendant’s guilt may be resolved by the fact-finder unless
        the evidence is so weak and inconclusive that as a matter
        of law no probability of fact may be drawn from the
        combined circumstances. The Commonwealth may sustain
        its burden of proving every element of the crime beyond a
        reasonable doubt by means of wholly circumstantial
        evidence. Moreover, in applying the above test, the entire
        record must be evaluated and all evidence actually
        received must be considered. Finally, the [trier] of fact
        while passing upon the credibility of witnesses and the
        weight of the evidence produced, is free to believe all, part
        or none of the evidence.

Commonwealth v. Hansley, 24 A.3d 410, 416 (Pa.Super.2011), appeal

denied, 32 A.3d 1275 (Pa.2011) (quoting Commonwealth v. Jones, 874

A.2d 108, 120-21 (Pa.Super.2005)).

     Appellant was convicted under the following statutes:

        § 3122.1. Statutory sexual assault

        (b) Felony of the first degree.--A person commits a
        felony of the first degree when that person engages in
        sexual intercourse with a complainant under the age of 16
        years and that person is 11 or more years older than the
        complainant and the complainant and the person are not
        married to each other.

18 Pa.C.S. § 3122.1.

        § 3123. Involuntary deviate sexual intercourse


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        (a) Offense defined.--A person commits a felony of the
        first degree when the person engages in deviate sexual
        intercourse with a complainant:

                                *     *      *

           (7) who is less than 16 years of age and the person is
           four or more years older than the complainant and the
           complainant and person are not married to each other.

18 Pa.C.S. § 3123.

        § 3125. Aggravated indecent assault

        (a) Offenses defined.--Except as provided in sections
        3121 (relating to rape), 3122.1 (relating to statutory
        sexual assault), 3123 (relating to involuntary deviate
        sexual intercourse) and 3124.1 (relating to sexual
        assault), a person who 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 commits
        aggravated indecent assault if:

           (8) the complainant is less than 16 years of age and the
           person is four or more years older than the complainant
           and the complainant and the person are not married to
           each other.

18 Pa.C.S. § 3125.

        § 6301. Corruption of minors

        (a) Offense defined.--

           (1)…(ii) Whoever, being of the age of 18 years and
           upwards, by any course of conduct in violation of
           Chapter 31 (relating to sexual offenses) corrupts or
           tends to corrupt the morals of any minor less than 18
           years of age, or who aids, abets, entices or encourages
           any such minor in the commission of an offense under
           Chapter 31 commits a felony of the third degree.

18 Pa.C.S. §6301.

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         § 3126. Indecent assault

         (a) Offense defined.--A person is guilty of indecent
         assault if the person has indecent contact with the
         complainant, causes the complainant to have indecent
         contact with the person or intentionally causes the
         complainant to come into contact with seminal fluid, urine
         or feces for the purpose of arousing sexual desire in the
         person or the complainant and:

                                   *     *      *

              (8) the complainant is less than 16 years of age and the
              person is four or more years older than the complainant
              and the complainant and the person are not married to
              each other.

18 Pa.C.S. § 3126.

      Appellant waived his challenge to the sufficiency of the evidence by

filing a deficient concise statement of errors complained of on appeal.

      “If [an a]ppellant wants to preserve a claim that the evidence was

insufficient, then the 1925(b) statement needs to specify the element or

elements upon which the evidence was insufficient. This Court can then

analyze the element or elements on appeal.” Commonwealth v. Williams,

959 A.2d 1252, 1257 (Pa.Super.2008) (emphasis deleted). If the statement

does not specify the allegedly unproven elements, the sufficiency issue is

waived on appeal. Id. (noting that 1925(b) waiver is appropriate “despite

the lack of objection by an appellee and despite the presence of a trial court

opinion.”).

      Appellant’s   1925(b)   statement      does   not   specify   any   unproven

elements. Therefore, Appellant has waived his sufficiency claim.

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      Even if Appellant had preserved this issue, it is devoid of merit. The

trial court reasoned:

         [T]he record provides sufficient evidence to indicate that
         the statutory sexual assault, [IDSI], aggravated indecent
         assault, corruption of minors, and indecent assault
         occurred between [Victim] and [Appellant] in August 2012.
         [Victim] testified in detail, regarding two prior occasions
         where she alleged that she and [Appellant] engaged in
         sexual intercourse. [Victim] testified that on one occasion,
         [Appellant] put his fingers inside her vagina. [Victim] also
         testified that she and [Appellant] engaged in vaginal-penile
         intercourse and oral sex. At this time, [Victim] testified
         that she was thirteen years old, and [Appellant] was
         twenty-five years old. Additionally, [Victim] testified that
         at this time, she was not married to [Appellant]. The jury,
         as the sole finder of fact, assessed the credibility of the
         witnesses, including the victim. As a result, the jury was
         charged with the responsibility of making a determination
         as to whether to believe all, part of, or none of the victim’s
         testimony. This court finds that the victim’s testimony, if
         believed by the jury, was sufficient from which the jury’s
         verdict of guilty at all counts was sufficiently supported by
         the evidence.

Trial Court Pa.R.A.P. 1925(a) Opinion, filed November 16, 2015, at 6-7.

      Appellant’s issues merit no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/28/2016




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