J. A24044/18


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
JOSEPH SCOTT RANKINEN,                    :          No. 320 MDA 2018
                                          :
                        Appellant         :


        Appeal from the Judgment of Sentence, September 18, 2017,
              in the Court of Common Pleas of Clinton County
             Criminal Division at No. CP-18-CR-0000429-2016


BEFORE: OTT, J., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                      FILED MAY 31, 2019

      Joseph Scott Rankinen appeals from the September 18, 2017 aggregate

judgment of sentence of 15 to 30 years’ imprisonment imposed after a jury

found him guilty of rape, rape of a child, involuntary deviate sexual intercourse

(“IDSI”) with a child, terroristic threats, and indecent assault of a person less

than 13 years of age.1     After careful review, we affirm the judgment of

sentence.

      The relevant facts and procedural history, as gleaned from the certified

record, are as follows: On June 23, 2017, a jury found appellant guilty of rape

of a child and related offenses in connection with his sexual assault of a

12-year-old female victim in the bathroom at the Clinton County Fairgrounds


1 18 Pa.C.S.A. §§ 3121(a)(1), 3121(c), 3123(b), 2706(a)(1), and 3126(a)(7),
respectively.
J. A24044/18

in the Spring of 2011. As noted, the trial court sentenced appellant to 15 to

30 years’ imprisonment on September 18, 2017.2 On September 28, 2017,

appellant filed a timely post-sentence motion, which was denied by the trial

court on January 22, 2018. This timely appeal followed on February 14, 2018.

On February 15, 2018, the trial court directed appellant to file a concise

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

within 21 days. Appellant filed his timely Rule 1925(b) statement on March 1,

2018, and the trial court filed its Rule 1925(a) opinion on April 17, 2018.

        Appellant raises the following issues for our review:

              I.    Whether the trial court erred by failing to give
                    the jury an instruction on Lack of Prompt
                    Complaint as requested by trial counsel?

              II.   Whether the trial court erred in failing to sustain
                    trial counsel’s objection and motion for mistrial,
                    where the prosecutor commented before the
                    jury      on       [a]ppellant’s       post-arrest,
                    post-Miranda[3] silence during his closing
                    argument on the issue of whether [a]ppellant
                    thought child abuse was normal?

              II.   Whether the trial court erred in failing to sustain
                    the objection and grant the motion for mistrial
                    of trial counsel when, during the course of the
                    trial, the prosecutor elicited statements from

2  The record reflects that the September 18, 2017 sentencing order was
amended on December 29, 2017, to include an additional restitution payment
to the Victims Compensation Assistance Program in the amount of $444.99.
(See trial court order, 12/29/17 at ¶ 1.) The portion of the September 18,
2017 sentencing order directing appellant to pay $78.90 restitution to the
victim was subsequently vacated by the trial court on January 22, 2018. (See
trial court order, 1/22/18 at ¶ 1.)

3   Miranda v. Arizona, 384 U.S. 436 (1966).


                                       -2-
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                   the alleged victim, consisting of information that
                   sustained     the    charge     of     Involuntary
                   Deviant [sic] Sexual Intercourse?

            IV.    Whether the trial court erred in ruling that the
                   entire forensic interview of the alleged victim
                   could be used on re-direct examination by the
                   prosecutor as a prior consistent statement?

            V.     Whether the trial court erred in failing to sustain
                   [a]ppellant[’]s objection to the testimony
                   elicited by the Commonwealth that, upon
                   custodial interrogation, by Trooper Sweet,
                   [a]ppellant stated that he was the victim of
                   sexual abuse?

Appellant’s brief at 3.



I.    Prompt complaint jury instruction

      Appellant first argues that the trial court erred in denying his request to

give the jury the prompt complaint instruction found at Section 4.13A of the

Pennsylvania Suggested Standard Criminal Jury Instructions.          (Id. at 15.)

Appellant avers that the victim failed to report the alleged rape until 4 years

after it occurred and that “[t]here is absolutely no evidence that at the time

of the alleged assault, [the victim], because of her age, did not appreciate or

understand what had happened to her.” (Id. at 15-16.)4


4 In support of his argument, appellant relies primarily upon Commonwealth
v. Jones, 672 A.2d 1353 (Pa.Super. 1996), and Commonwealth v. Lane,
555 A.2d 1246 (Pa. 1989). (See appellant’s brief at 17-18.) In Jones, a
panel of this court reversed the defendant’s conviction of rape and remanded
for a new trial where the victim did not report the rape until nearly 24 hours
thereafter, and the trial court gave an erroneous prompt complaint jury
instruction. Jones, 672 A.2d at 1358. Likewise, in Lane, our supreme court


                                      -3-
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      “In reviewing a challenge to the trial court’s refusal to give a specific

jury instruction, it is the function of this Court to determine whether the record

supports the trial court’s decision.”    Commonwealth v. Buterbaugh, 91

A.3d 1247, 1257 (Pa.Super. 2014) (citation omitted), appeal denied, 104

A.3d 1 (Pa. 2014).

            The premise for the prompt complaint instruction is
            that a victim of a sexual assault would reveal at the
            first available opportunity that an assault occurred.
            The instruction permits a jury to call into question a
            complainant’s credibility when he or she did not
            complain at the first available opportunity. However,
            there is no policy in our jurisprudence that the
            instruction be given in every case.

            The propriety of a prompt complaint instruction
            is determined on a case-by-case basis pursuant
            to a subjective standard based upon the age and
            condition of the victim.

Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa.Super. 2013) (citations

and internal quotation marks omitted; emphasis added).

      In the instant matter, the trial court conducted a review of specific

charging requests by counsel prior to closing arguments. During the course

of this review, the trial court concluded that a prompt complaint instruction

was inappropriate because the victim’s young age and maturity prevented her




held that, “[i]n determining whether or not the delay [in making a prompt
complaint] reflects the insincerity of the complainant, the maturity [of the
child] is merely an additional factor to be considered by the jury in deciding
the question.” Lane, 555 A.2d at 1251.


                                        -4-
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from appreciating the offensive nature of appellant’s conduct. The trial court

stated as follows:

            [APPELLANT’S COUNSEL]: Judge, are you giving
            standard instruction 4.13(A) failure to make a prompt
            complaint[?]

            THE COURT: I am not.

            [APPELLANT’S COUNSEL]: I would ask that you give
            that one.

            THE COURT: That is denied based on the age of the
            child.

            ....

            THE COURT: Jones says where the victim of a sexual
            assault is a minor who, quote, may not have
            appreciated the offensive nature of the conduct, the
            lack of a prompt complaint will not necessarily justify
            an inference of fabrication. It’s pretty much what you
            said, but that’s what I was relying on to deny your
            request.

Notes of testimony, 6/23/17 at 8-10.

      In so ruling, the trial court indicated to appellant’s counsel that she could

renew her request for the prompt complaint instruction when the jury

instructions were given. (Id. at 10.) Counsel, however, failed to renew her

motion, and the jury was not instructed on the lack of a prompt complaint.

      We find that appellant has waived this issue by failing to specifically

object to the trial court’s jury instructions on this basis before the jury retired

to deliberate. “[T]he failure to make a timely and specific objection before

the trial court at the appropriate stage of the proceedings will result in waiver



                                       -5-
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of the issue.”    Commonwealth v. Houck, 102 A.3d 443, 451 (Pa.Super.

2014) (citation omitted); see also Pa.R.A.P. 302(b); Pa.R.Crim.P. 647(B). In

Commonwealth v. Pressley, 887 A.2d 220 (Pa.Super. 2006), this court

explained as follows:

              Although obligating counsel to take this additional
              step where a specific point for charge has been
              rejected may appear counterintuitive, as the
              requested instruction can be viewed as alerting the
              trial court to a defendant’s substantive legal position,
              it serves the salutary purpose of affording the court
              an opportunity to avoid or remediate potential error,
              thereby eliminating the need for appellate review of
              an otherwise correctable issue.

Id. at 224 (citation and footnotes omitted). Accordingly, appellant’s first claim

is waived.5




5 We note that even if appellant had properly preserved his claim, it would
warrant no relief. Our review of the record reveals ample support for the trial
court’s decision to deny appellant’s request to provide a prompt complaint
instruction to the jury. At trial, the victim testified that at the time of the
sexual assault, she had never had sex, did not really understand what sex
was, and did not know “what body parts went where.” (Notes of testimony,
6/22/17 at 57-58.) The victim further testified that she “had no clue what
was going on” during the assault and did not understand what the term ‘rape’
meant prior to disclosing the incident to her mother in 2015. (Id. at 86-87,
184.) Based on the foregoing, we agree with the trial court’s determination
that the victim did not appreciate the offensive nature of appellant’s conduct
at the time the assault occurred, and a prompt complaint instruction would
have been inappropriate. See Jones, 672 A.2d at 1357 n.2 (stating, “[w]here
an assault is of such a nature that the minor victim may not have appreciated
the offensive nature of the conduct, the lack of a prompt complaint would not
necessarily justify an inference of fabrication.”).


                                       -6-
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II.   References to appellant’s post-arrest, post-Miranda silence

      Appellant next argues that the trial court abused its discretion by

denying his motion for a mistrial following the prosecutor’s improper reference

to appellant’s post-arrest, post-Miranda silence to the question of whether

he thought sex abuse was normal. (Appellant’s brief at 18.)

            It is well-settled that the review of a trial court’s denial
            of a motion for a mistrial is limited to determining
            whether the trial court abused its discretion. An abuse
            of discretion is not merely an error of judgment, but
            if in reaching a conclusion the law is overridden or
            misapplied, or the judgment exercised is manifestly
            unreasonable, or the result of partiality, prejudice,
            bias or ill-will . . . discretion is abused. A trial court
            may grant a mistrial only where the incident upon
            which the motion is based is of such a nature that its
            unavoidable effect is to deprive the defendant of a fair
            trial by preventing the jury from weighing and
            rendering a true verdict. A mistrial is not necessary
            where cautionary instructions are adequate to
            overcome prejudice.

Commonwealth v. Brooker, 103 A.3d 325, 332 (Pa.Super. 2014) (citations

omitted), appeal denied, 118 A.3d 1107 (Pa. 2015).

      Instantly, Corporal Matthew Sweet testified that on April 6, 2016, he

took appellant into custody and began to interrogate him following the

issuance of Miranda warnings. (Notes of testimony, 6/22/17 at 197-198.)

Corporal Sweet testified that during the course of this interrogation, appellant

remained silent in response to the question of whether he felt sexual abuse

was normal, as follows:

            A.    Yeah. He -- part of the things I got into him
                  with his sexuality, whether he was a virgin, stuff


                                       -7-
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                 like that, trying to get, again, conversation to
                 keep him talking to possibly get some sort of
                 admission. He indicated that he lost his virginity
                 sometime after the 2011 incident, and I guess
                 at that point I asked him, you know, do you feel
                 that sexual abuse is normal, you know, the loss
                 of your virginity. To that he gave no answer.
                 He remained silent.

           Q.    So when asked specifically if he thought sexual
                 abuse was normal, he had no answer?

           A:    No answer.

Id. at 206. Appellant’s counsel did not object to Corporal Sweet’s testimony

on appellant’s post-arrest, post-Miranda silence.

     Thereafter, during the course of his closing argument, District Attorney

David A. Strouse made the following reference to appellant’s silence:

           On the other hand, you can choose to believe that [the
           victim] made this entire thing up, but to make that
           choice you have to also choose to believe a number of
           other things about this case. . . . You would have to
           choose to believe that Corporal Sweet either wasn’t
           being honest when he testified, or you would have to
           believe that [appellant’s] responses and comments to
           Corporal Sweet were just a coincidence. Like the fact
           that during the interview with Corporal Sweet he said
           he knew [the victim], but then later said I don’t know
           who that is. That [appellant] admitted to his sexual
           experimentation. That would just be a coincidence.
           It would just be a coincidence that [appellant] said he
           had open values, that nudity wasn’t a big deal to him.
           It would have to be just a coincidence that
           [appellant] would not respond when asked if he
           felt sexual assault was normal.

Notes of testimony, 6/23/17 at 40-41 (emphasis added).




                                    -8-
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      Appellant objected and requested a mistrial, which was denied by the

trial court on the basis that these comments “came out in evidence” and that

appellant had failed to make a timely objection at that time. (Id. at 41-42.)

The record further reflects that the trial court offered to give a cautionary

instruction to the jury, but appellant declined. (Id. at 42.) The trial court

subsequently instructed D.A. Strouse, at sidebar, “that is not a point that you

will revisit at all at any point during your remaining comments.” (Id.)

      Upon review, we find that appellant has waived his claim that

D.A. Strouse improperly referenced appellant’s post-arrest, post-Miranda

silence during his summation by failing to timely and specific objection to

Corporal Sweet’s testimony at trial. As noted, the “the failure to make a timely

and specific objection before the trial court at the appropriate stage of the

proceedings will result in waiver of the issue.”        Houck, 102 A.3d at

451(citation omitted); see also Pa.R.A.P. 302(a) (stating an issue not raised

in the trial court is considered waived for purposes of appellate review).



III. Victim’s testimony that she was forced to perform oral sex

      Appellant next argues that the trial court abused its discretion in not

granting his motion for a mistrial after D.A. Strouse elicited testimony from

the victim that appellant forced her to perform oral sex on him. (Appellant’s

brief at 24.)   Appellant contends that because no information about this




                                     -9-
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incident was ever provided to the defense in discovery, a new trial is

warranted. (Id. at 25-28.) We disagree.

      At trial, the victim testified at great length with regard to the sexual

assault and described how appellant dragged her towards the men’s bathroom

by her wrists, slammed her against the wall, pulled her pants and underwear

down around her knees, and how she felt “a repetitive feeling of pressure” in

her vagina. (See notes of testimony, 6/22/17 at 52-59.) D.A. Strouse then

inquired as to what happened “when [appellant] stopped[,]” and the victim

described in detail how appellant pushed her to the floor, pushed her head

against the wall, and forced his penis into her mouth.         (Id. at 61-63.)

Appellant subsequently objected and moved for a mistrial on the basis that

this information was never provided to the defense. (Id. at 63, 65.) The

following discussion took place at sidebar, at the conclusion of which the trial

court denied his motion for a mistrial:

            [APPELLANT’S COUNSEL]: Your Honor, at this time
            I’d like Mr. Strouse to explain to me when he knew
            this information. This last probably five minutes of
            information of testimony is brand new information to
            me. It’s a witness statement that was not disclosed
            ever, not in the video, not in the police report, it was
            not in the interview of the child. This is all new.

            THE COURT: Mr. Strouse.

            [D.A. STROUSE]:       Some of the information I’m
            hearing for the first time, Your Honor. Such is the
            nature of a sexual assault case and the risk
            [appellant] takes if he takes this to trial with a child
            victim.   The Commonwealth can’t possibly know
            everything that was going to be said.


                                     - 10 -
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           [APPELLANT’S COUNSEL]: I’d like to know what you
           knew because some of this, Mr. Strouse, you clearly
           knew based on your line of questioning, and it was not
           disclosed to me.

           THE COURT: Mr. Strouse.

           [D.A. STROUSE]:          The only information the
           Commonwealth has come into position [sic] with
           during preparation of this case was trial preparation
           questions of witnesses, that’s it. And to the extent
           that there was any additional statements, they were
           provided directly during the course of trial preparation
           with me, and as such they were work product.

           [APPELLANT’S COUNSEL]: If they are work product
           then they’re not admissible during trial. You can’t get
           statements from a witness and not disclose them to
           me.

           [D.A. STROUSE]: So we’re clear on the record, I
           received no statement from the witness. No
           statement. If there was a statement, it would have
           been provided.

Id. at 64-65.

     Pennsylvania Rule of Criminal Procedure 573 governs pretrial discovery

and inspection and provides, in relevant part, that the Commonwealth must

disclose, at the discretion of the trial court, “all written or recorded

statements, and substantially verbatim oral statements, of eyewitnesses the

Commonwealth intends to call at trial[.]”      Pa.R.Crim.P. 573(B)(2)(a)(ii).

Courts in this Commonwealth, however, have continually recognized that

“[t]he Commonwealth does not violate Rule 573 when it fails to disclose to

the defense evidence that it does not possess and of which it is unaware.”



                                    - 11 -
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Commonwealth v. Collins, 957 A.2d 237, 253 (Pa. 2008) (citations omitted;

emphasis added); see also Commonwealth v. Ribot, 169 A.3d 64, 69

(Pa.Super. 2017) (same).

      Instantly, we discern no abuse of discretion on the part of the trial court

in denying appellant’s motion for a mistrial. Our review of the record reveals

no evidence that the victim revealed to anyone that appellant forced her to

perform oral sex, or made any statement to this effect. On the contrary, the

victim testified on cross-examination that she had not told anyone about this

incident prior to trial:

             Q.     Now, you’ve told the jury today that [appellant]
                    pushed you on the floor, pushed your head
                    against the wall, and tried to force his penis into
                    your mouth?

             A.     Yes.

             Q.     That’s the first time you’ve told anybody that?

             A.     Yes, it is.

             Q.     You’ve not told your therapist that you’ve
                    worked with for a year?

             A.     No, I haven’t.

             Q.     Not told your family?

             A.     No.

             Q.     Not told anybody at this table here?

             A.     No.

Notes of testimony, 6/22/17 at 104-105.



                                       - 12 -
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         Accordingly,   as   there   is   no   evidence    demonstrating   that   the

Commonwealth withheld any statements by the victim with regard to oral sex,

appellant’s claim must fail. See Collins, 957 A.2d at 253; Ribot, 169 A.3d

at 69.



IV.      Admission of the victim’s forensic interview as a prior consistent
         statement

         Appellant next argues the trial court abused its discretion in permitting

the Commonwealth to introduce a video of the victim’s forensic interview as a

prior consistent statement. (Appellant’s brief at 28-31.)

         In reviewing a trial court’s ruling on the admissibility of evidence, our

standard of review is one of deference. “[T]he admission of evidence is within

the sound discretion of the trial court and will be reversed only upon a showing

that the trial court clearly abused its discretion.”           Commonwealth v.

Fransen, 42 A.3d 1100, 1106 (Pa.Super. 2012) (citation omitted), appeal

denied, 76 A.3d 538 (Pa. 2013).

         At trial, the Commonwealth introduced a video of the forensic interview

of the victim conducted by Sherry Moroz of the Central Susquehanna Valley

Children’s Advocacy Center in 2015.                (Notes of testimony, 6/22/17 at

165-166.) Appellant objected to the video arguing that it was inadmissible

hearsay, and the trial court overruled the objection. (Id. at 166.) The trial

court ruled that the forensic interview video was admissible as a prior

consistent statement, pursuant to Pennsylvania Rule of Evidence 613(c), in


                                          - 13 -
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order to rehabilitate the victim’s credibility. (Id. at 166; see also trial court

opinion, 1/22/18 at 4-6.6) Upon careful review of the record, we discern no

abuse of discretion on the part of the trial court in reaching this conclusion.

      Pennsylvania Rule of Evidence 613 governs this issue and provides, in

relevant part, as follows:

            (c)   Witness’s Prior Consistent Statement to
                  Rehabilitate. Evidence of a witness’s prior
                  consistent   statement     is    admissible   to
                  rehabilitate the witness’s credibility if the
                  opposing party is given an opportunity to
                  cross-examine the witness about the statement
                  and the statement is offered to rebut an express
                  or implied charge of:

                  (1)   fabrication, bias, improper influence
                        or motive, or faulty memory and the
                        statement was made before that
                        which has been charged existed or
                        arose; or

                  (2)   having made a prior inconsistent
                        statement, which the witness has
                        denied or explained, and the
                        consistent statement supports the
                        witness’s denial or explanation

Pa.R.E. 613(c).

      This court has long recognized that “prior consistent statements of child

victim of sexual assault, offered to corroborate in-court testimony, are not

hearsay.” Commonwealth v. Giles, 182 A.3d 460, 461 (Pa.Super. 2018),




6 We note that the trial court’s January 22, 2018 opinion does not contain
pagination; for the ease of our discussion, we have assigned each page a
corresponding number.


                                     - 14 -
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appeal denied, 193 A.3d 888 (Pa. 2018), citing Commonwealth v. Hunzer,

868 A.2d 498, 512 (Pa.Super. 2005), appeal denied, 880 A.2d 1237 (Pa.

2005).

             Pennsylvania Rule of Evidence 613(c) permits the
             admission of evidence of a prior consistent statement
             for rehabilitation purposes if the opposing party is
             given an opportunity to cross-examine the witness
             about the statement, the statement is offered to rebut
             an express or implied charge of fabrication, bias,
             improper influence or motive, or faulty memory, and
             the statement was made before the fabrication, bias,
             etc.

Commonwealth v. Baker, 963 A.2d 495, 504 (Pa.Super. 2008) (citation

omitted), appeal denied, 992 A.2d 885 (Pa. 2010).

      In the instant matter, appellant’s counsel attempted to impeach the

victim’s   credibility   and   crossed-examined   her   extensively   on   several

statements she made on direct examination that were inconsistent with

statements she had previously made during the 2015 forensic interview. (See

notes of testimony, 6/22/17 at 93-124.)        In response, the Commonwealth

introduced the video of the victim’s recorded interview with Sherry Moroz to

rehabilitate her credibility. (Id. at 165-166.) Review of the record indicates

the character of impeachment “was such that the trial court could reasonably

exercise its discretion to permit admission of evidence of prior consistent

statements to corroborate the child victim’s impeached testimony.” Hunzer,

868 A.2d at 513. Accordingly, we find that the trial court did not abuse its

discretion in admitting the minor victim’s forensic interview video as a prior



                                      - 15 -
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consistent statement.   See Baker, 963 A.2d at 503-505 (holding that the

recording of a child victim’s interview with a forensic pediatrician who had

interviewed the child at behest of agencies investigating child abuse

allegations was admissible as prior consistent statement, given defense

counsel’s cross-examination insinuating that the child victim had been

improperly induced to fabricate her testimony by the prosecution and her

mother).



V.    Admission of appellant’s statement that he was a sexual abuse
      victim

      In his final claim, appellant contends that the trial court abused its

discretion in permitting Corporal Sweet to testify that appellant acknowledged

during interrogation that he was sexually abused as a child. (Appellant’s brief

at 32.)

      At trial, Corporal Sweet was questioned with regard to the tactics he

employed during his interrogation of appellant and testified as follows:

            Q.    Corporal Sweet, what type of tactics did you use
                  with respect to your interview with [appellant]?

            A.    I tried to minimize the actual -- the allegation.
                  I tried to make it feel like it was something less.
                  Typically I also try to deflect some of the blame
                  on maybe the way he was growing up or
                  brought up or something that had happened in
                  his past.

Notes of testimony, 6/22/17 at 202-203.




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      Appellant objected, and the trial court overruled the objection. (Id. at

204.) The Commonwealth’s direct examination of Corporal Sweet resumed

and he testified as follows:

            Q.    What specifically did [appellant] say to you
                  when you attempted to blame someone else?

            A.    He indicated that several years ago when he
                  was younger he was actually -- not necessarily
                  a victim, but he was also -- there was an older
                  neighbor boy who had sexually assaulted him
                  and, you know, again trying to deflect the blame
                  that perhaps that’s what may have caused some
                  of this was the answer I got.

            Q.    And did he describe -- did he indicate whether
                  or not he had been sexually active at a young
                  age?

            [APPELLANT’S COUNSEL]: Objection, relevancy.

            THE COURT: Overruled.

Id. at 205-206.

      Appellant avers that “[t]his entire line of questioning regarding [his]

family’s personal sexual habits, [his] background, and whether he has been a

victim of child sexual abuse, was completely irrelevant.” (Appellant’s brief at

33.) Appellant maintains “[t]here was no evidence . . . that any prior assault

or abuse of [a]ppellant in any way drove or was a causative factor in the

conduct charge[d] in this case[,]” and the probative value of this testimony

was outweighed by its prejudicial effect. (Id.) For the following reasons, we

disagree.




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            The admissibility depends on relevance and probative
            value. Evidence is relevant if it logically tends to
            establish a material fact in the case, tends to make a
            fact at issue more or less probable or supports a
            reasonable inference or presumption regarding a
            material fact. Evidence, even if relevant, may be
            excluded if its probative value is outweighed by the
            potential prejudice.

Fransen, 42 A.3d at 1106 (citations and internal quotation marks omitted);

see also Pa.R.E. 401, 403.

      Upon review, we discern no abuse of discretion on the part of the trial

court in allowing Corporal Sweet’s brief reference to the fact that appellant

acknowledged during his interrogation that he was sexually abused as a child

to be admitted into evidence. We agree with the trial court that this statement

was relevant to appellant’s then-existing mental and emotional condition and

was admissible pursuant to the state of mind exception to the hearsay rule.

(See trial court Rule 1925(a) opinion, 4/17/18 at 4-5.7) Moreover, we find

that appellant’s acknowledgement that he was sexually abused as a child was

relevant to establish a possible motive for committing the underlying offenses.

      Hearsay is defined as “a statement that the declarant does not make

while testifying at the current trial or hearing[, offered] in evidence to prove

the truth of the matter asserted in the statement.”             Pa.R.E. 801(c)

(numeration omitted). Hearsay is generally inadmissible at trial unless it falls




7We note that the trial court’s April 17, 2018 Rule 1925(a) opinion does not
contain pagination; for the ease of our discussion, we have assigned each
page a corresponding number.


                                     - 18 -
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into an exception to the hearsay rule. See Pa.R.E. 802. Rule 803 contains

several recognized exceptions to the hearsay rule, including the state of mind

exception:

             The following are not excluded by the rule against
             hearsay, regardless of whether the declarant is
             available as a witness:

             ....

             (3)     Then-Existing Mental, Emotional, or
                     Physical Condition. A statement of the
                     declarant’s then-existing state of mind
                     (such as motive, intent or plan) or
                     emotional, sensory, or physical condition
                     (such as mental feeling, pain, or bodily
                     health), but not including a statement of
                     memory or belief to prove the fact
                     remembered or believed unless it relates
                     to the validity or terms of the declarant's
                     will.

Pa.R.E. 803(3) (emphasis added).

      “Where the declarant’s out-of-court statements demonstrate his state

of mind, are made in a natural manner, and are material and relevant,” as is

the   case   here,    “they   are   admissible   pursuant   to     the   exception.”

Commonwealth v. Johnson, 107 A.3d 52, 84 (Pa. 2014) (citations and

emphasis omitted), cert. denied,          U.S.     , 136 S.Ct. 43 (2015).

      Additionally, Corporal Sweet’s brief reference to the fact that appellant

acknowledged during his interrogation that he was sexually abused as a child

was not so unduly prejudicial as to warrant that a new trial be granted.

Evidence is not unduly prejudicial simply because it is harmful to the



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defendant’s case.     See Commonwealth v. Page, 965 A.2d 1212, 1220

(Pa.Super. 2009), appeal denied, 74 A.3d 125 (Pa. 2013). On the contrary,

the “exclusion of evidence on grounds that is prejudicial is limited to evidence

so prejudicial that it would inflame the jury to make a decision based upon

something other than the legal propositions relevant to the case[.]”

Commonwealth v. Flamer, 53 A.3d 82, 89 (Pa.Super. 2012) (citation and

parentheses omitted). Accordingly, appellant’s final claim of trial court error

warrants no relief.

      For all the forgoing reasons, we affirm the September 18, 2017

judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 5/31/2019




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