J-A23005-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,             :       IN THE SUPERIOR COURT OF
                                          :             PENNSYLVANIA
                 Appellee                 :
                                          :
           v.                             :
                                          :
JAMES CUBBINS,                            :
                                          :
                 Appellant                :           No. 1081 WDA 2014

     Appeal from the Judgment of Sentence entered on June 24, 2014
           in the Court of Common Pleas of Allegheny County,
              Criminal Division, No. CP-02-CR-0003993-2013

BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.:                    FILED SEPTEMBER 29, 2015

     James Cubbins (“Cubbins”) appeals from the judgment of sentence

imposed following his convictions of rape by forcible compulsion, unlawful

contact with a minor, and corruption of minors.            See 18 Pa.C.S.A.

§§ 3121(a)(1); 6318(a)(1); 6301(a)(1)(i). We affirm.

     The trial court set forth the relevant underlying facts as follows:

     [T]he victim, [J.B.], testified that she had known [Cubbins] since
     July[] 2010, as he was a contractor who worked with her father[,
     S.B.]. In 2012, while she was fifteen years old, due to family
     circumstances, [J.B.] was residing with her father and [Cubbins]
     in an apartment. [J.B.] stated that one day in July, after she
     returned home from her summer job, she was watching TV in
     her room when [Cubbins] entered the room. She stated that he
     was “drunk as usual,” sat down on her bed, and asked her if she
     wanted to have sex. She declined. [J.B.] testified that he got
     on top of her, forced her legs open, took off her pants and
     underwear and raped her. She disclosed [the rape] to her
     boyfriend, on February 13, 2013[,] at a point when [Cubbins]
     was not residing in the apartment, and he encouraged her to tell
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      her father what had happened.        She [told] her father the
      following day, and he promptly took her to the police ….

Trial Court Opinion, 1/26/15, at 3 (citations omitted).

      Cubbins was arrested and charged with the above-mentioned crimes.

The case proceeded to a jury trial in March 2014. The jury found Cubbins

guilty of all of the crimes. The trial court sentenced Cubbins to ten to twenty

years in prison on the rape conviction, a consecutive probation term of three

years on the unlawful contact with a minor conviction, and no further

penalty for the corruption of minors conviction. Cubbins was also required

to register as a sexual offender for life.

      Cubbins    filed   a   timely   Notice   of   Appeal   and   a   court-ordered

Pennsylvania Rule of Appellate Procedure 1925(b) Concise Statement. The

trial court issued an Opinion.1

      On appeal, Cubbins raises the following questions for our review:

      I.    Did the trial court abuse its discretion when it failed to
            grant a mistrial after [a] Commonwealth witness,
            Detective Scott Rick [“Detective Rick”], testified that
            [Cubbins] had been incarcerated?

      II.   Did the trial court err in admitting cumulative evidence and
            denying a mistrial based upon testimony related to
            [Cubbins’s] drinking habits, as this evidence was unduly
            prejudicial and had no bearing on the factual issues
            present in the case at bar?

Brief for Appellant at 5 (capitalization omitted).

1
  Cubbins’s trial attorney passed away following the filing of the Concise
Statement, but prior to the filing of Cubbins’s appellate brief. The trial court
subsequently assigned the Allegheny County Public Defender’s Office to
represent Cubbins.

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      In his first claim, Cubbins contends that the trial court should have

granted a mistrial after Detective Rick testified that Cubbins had been in

prison following the rape. Id. at 9. Cubbins argues that he was prejudiced

by the statement because the jury could infer that he was involved in prior

criminal activity.   Id. at 11, 13-15, 16; see also id. at 15, 17, 19, 20

(wherein Cubbins points out that the trial court did not offer a curative

instruction following Detective Rick’s prejudicial statement).         Cubbins

concedes that his own counsel elicited Detective Rick’s testimony when

counsel asked why J.B. did not report the incident for several months. Id.

at 10-11.     However, Cubbins argues that counsel’s elicitation of the

testimony was irrelevant because the trial court had previously ruled that

such a reference was prejudicial and must be avoided.           Id. at 18-20.

Cubbins thus claims that, based upon the trial court’s ruling that Cubbins’s

prior incarceration was inadmissible, Detective Rick’s prejudicial statement,

and the absence of a cautionary instruction, the trial court should have

granted a mistrial. Id. at 20-21.

      Our standard of review 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.




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Commonwealth v. Caldwell, 117 A.3d 763, 774 (Pa. Super. 2015) (en

banc) (citation omitted).

      Evidence of crimes or prior bad acts unrelated to the charge for which

the defendant is being tried is generally inadmissible. Commonwealth v.

Reid, 99 A.3d 427, 451 (Pa. 2014); see also Commonwealth v. Aguado,

760 A.2d 1181, 1187 (Pa. Super. 2000) (en banc) (stating that “[e]vidence

of prior criminal activity is probably only equaled by a confession in its

prejudicial impact upon a jury.”).

      There is no per se rule that requires a new trial for a defendant
      every time there is a reference to prior criminal activity. We
      have never ascribed to the view that all improper references to
      prior criminal activities necessarily require the award of a new
      trial as the only effective remedy. Further, the reference to prior
      criminal activity must be prejudicial to the defendant, with
      prejudice resulting where the testimony conveys to the jury,
      either expressly or by reasonable implication, the fact of a prior
      criminal offense.

Commonwealth v. Morris, 519 A.2d 374, 377 (Pa. 1986) (citations,

brackets, and quotation marks omitted).

      In general, however, “a party may not object to improper testimony

which he himself elicits.” Commonwealth v. Yarris, 549 A.2d 513, 525

(Pa. 1988); see also Commonwealth v. Manley, 985 A.2d 256, 270 (Pa.

Super. 2009).    Indeed, “[w]hen ... defense counsel puts a question to a

witness that cannot be answered fairly without a statement of fact as

explanation, then the explanation is deemed to be invited by counsel, and

[a] complaint that it was added to the answer cannot be made.”



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Commonwealth v. Miller, 481 A.2d 1221, 1222 (Pa. Super. 1984) (citation

omitted).   However, where a witness could have responded on cross-

examination with a simple “yes” or “no” answer, counsel could not have

reasonably anticipated or manifestly invited a response including improper

and prejudicial testimony against his client.     Commonwealth v. Rivers,

357 A.2d 553, 555-56 (Pa. Super. 1976).

      Here, prior to trial, the parties and the trial court agreed that the fact

of Cubbins’s incarceration at the time J.B. reported the incident would not be

admissible at trial.   N.T., 3/26-28/14, at 10-14.        Thereafter, Cubbins’s

counsel’s cross-examination of Detective Rick regarding the time it took for

J.B. to report the incident elicited the following testimony:

      Q: … When [J.B.] said to you she was afraid for herself and her
      father, did you ask her why?

      A: I don’t recall.

      Q: Do you think that that may have been an important factor for
      you to ask her about in an alleged sex rape case?

      A: Everyone deals with that differently, and her interpretation
      could be different than mine.

      Q: Why didn’t you ask her to see what her interpretation was so
      you could disclose that and be able to tell the jury about it?

      A: My concern was to get the facts of the case on what
      happened.

      Q: But her being afraid or if she was afraid, because she said to
      the jury she wasn’t, but her being afraid, wasn’t that a fact of
      this case that you’d want to know about …? Yes or no, sir. …

      A: That’s for her to answer why she was afraid.


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                                          ***

        Q: … Didn’t you want to ask her why she was afraid? Didn’t you
        think that was germane in this case?

        A: Through my investigation, I found out why she was afraid and
        why she finally came forward.

        Q: Okay. Did you have it in your police report?

        A: There is a part of [that] there, yes, it’s in there.

        Q: That she’s afraid for herself and her father?

        A: Through my investigation, I had found that she was afraid of
        him because they lived together.

        Q: Okay.

        A: Because of the fact that he was no longer in the residence,
        because he was in Allegheny County Jail --

        [Defense Counsel]: That’s not responsive to the question.         I’m
        going to object and move for a mistrial.

Id. at 359-61. The trial judge held a sidebar during which defense counsel

stated that he would have to deal with the consequences of his questions.

Id. at 362.        Importantly, counsel did not seek a cautionary instruction

during the sidebar. Id. at 361-62.

        Cubbins’s counsel repeatedly asked Detective Rick why J.B. was afraid

and waited several months before reporting the crime. By repeatedly asking

these    questions,    Cubbins   should    have   “reasonably     anticipated”   that

Detective Rick would respond with a more detailed explanation as to J.B.’s

fear, and her delay in reporting the incident until Cubbins was out of the



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home.    Although Cubbins objected to Detective Rick’s testimony as to the

fact that Cubbins was in prison, we conclude the record establishes that this

testimony was elicited by Cubbins’s counsel, and Cubbins must accept the

answer given by Detective Rick. See Miller, 481 A.2d at 1222 (stating that

“the defendant must assume the risk of his counsel’s questions and he

cannot benefit on appeal when his own cross-examination elicited an

unwelcome response.”) (citation omitted); Commonwealth v. Gilliard, 446

A.2d 951, 954 (Pa. Super. 1982) (rejecting the appellant’s claim that trial

court improperly denied his motion for mistrial after a witness testified that

the appellant had other charges pending against him, when such testimony

was elicited by appellant’s own counsel); see also Yarris, 549 A.2d at 525.

      With regard to the lack of a cautionary instruction, we note that

Cubbins’s counsel never asked for such an instruction.      Thus, this claim is

waived on appeal. See Commonwealth v. Bryant, 855 A.2d 726, 739 (Pa.

2004) (stating that a “[f]ailure to request a cautionary instruction upon the

introduction of evidence constitutes a waiver of a claim of trial court error in

failing to issue a cautionary instruction.”).    As a result, Cubbins is not

entitled to relief on his first claim.

      In his second claim, Cubbins contends that the trial court erred in

admitting the evidence related to his drinking habits, as such evidence was

prejudicial and had no bearing on the relevant issues in the case. Brief for

Appellant at 22, 26-27. Cubbins points to three separate instances during



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trial where the Commonwealth elicited testimony regarding his intoxication

at various times, including on the date of the incident.         Id. at 22, 24.

Cubbins asserts that his prior bad acts could not be admitted to show that

he was “a person of unsavory character and thus inclined to have committed

the crimes with which he is being charged.” Id. at 23; see also id. at 24-

25 (stating that there was no probative value of admitting the cumulative

evidence that he was a drunkard). Cubbins claims that the trial court should

have sustained his objections to this evidence, directed the witnesses to

avoid this topic, and offered to provide cautionary instructions to the jury.

Id. at 26-27.    Cubbins further argues that the error was not harmless

because there was no substantially similar evidence presented at trial and

the only evidence of guilt was J.B.’s testimony. Id. at 25-26.

            Our standard of review regarding evidentiary issues is well
     settled. The admissibility of evidence is at the discretion of the
     trial court and only a showing of an abuse of that discretion, and
     resulting prejudice, constitutes reversible error. An abuse of
     discretion is not merely an error of judgment, but is rather the
     overriding or misapplication of the law, or the exercise of
     judgment that is manifestly unreasonable, or the result of bias,
     prejudice, ill-will or partiality, as shown by the evidence of
     record. Furthermore, if in reaching a conclusion the trial court
     over-rides or misapplies the law, discretion is then abused and it
     is the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en

banc) (citations and quotation marks omitted).

     Evidence of prior bad acts committed by a defendant is not
     admissible solely to show the defendant’s bad character or his
     propensity for committing bad acts. However, evidence of prior
     bad acts is admissible where there is a legitimate reason for the


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     evidence, such as to establish: 1) motive; 2) intent; 3) absence
     of mistake or accident; 4) a common scheme or plan; and 5)
     identity. The evidence may also be admissible to impeach the
     credibility of a testifying defendant; to show that the defendant
     has used the prior bad acts to threaten the victim; and in
     situations where the bad acts were part of a chain or sequence
     of events that formed the history of the case and were part of its
     natural development.

Commonwealth v. Page, 965 A.2d 1212, 1219 (Pa. Super. 2009) (citation

and emphasis omitted).

     Here, the trial court addressed Cubbins’s claims as follows:

     The victim, [J.B.,] testified that [Cubbins] was “drunk as usual”
     when he raped her. The statement … was offered not to show
     [Cubbins’s] general bad character or propensity to commit a
     crime, but in the context of establishing her living environment
     and relationship to [Cubbins,] as well as her observations during
     the relevant time frame. This comment provides context for
     later testimony that she was afraid of [Cubbins] when he was
     drunk and for her explanation as to why she delayed reporting
     until she was certain she was free from him.

     [C.D.], the victim’s seventeen[-]year[-]old ex-boyfriend,
     testified that [J.B.] eventually confided in him regarding what
     had happened between her and [Cubbins] the previous summer.
     He stated that he encouraged her to talk to her father about
     what had happened and said that he was present the next day
     when she did so.        On direct examination, as part of the
     foundation laid regarding the witness’s knowledge of the alleged
     victim, [Cubbins], and the living arrangement in the home,
     [C.D.] testified that he had met [Cubbins] only one time, at a
     New Year’s Eve party the night he started dating [J.B.]
     [Cubbins] had a beer in his hand and appeared to [C.D.] to be
     drunk, have an angry tone to his voice, and act possessively
     toward [J.B.] Specifically, [C.D.] indicated that [Cubbins] did
     not want [C.D.] and [J.B.] to date. This testimony, observing
     [Cubbins] intoxicated, angry, and possessive of [J.B.,] adds
     credibility to the victim’s testimony. As neither drinking nor
     being intoxicated at a party is a crime, the prejudice to
     [Cubbins] of a witness observing his intoxication (on New Year’s
     Eve) is indeed slight.


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      [S.B.], the victim’s father, testified regarding the living
      arrangements between himself, his daughter, and [Cubbins].
      [S.B.] testified that he had known [Cubbins] in a professional
      capacity for several years as he was [a] general contractor and
      [Cubbins] was a subcontractor specializing in flooring.        The
      professional relationship became a friendship and eventually
      [Cubbins] and [S.B. and J.B.] moved in together[,] while [S.B.]
      attempted to close his business in Pennsylvania and move with
      the rest of his family to North Carolina. On Valentine’s Day of
      2013, the three of them lived together in an apartment in
      Bradford Woods leased by [Cubbins]. [Cubbins] was out of the
      residence on a temporary basis and, through his sister, had
      notified [S.B. and J.B.] to vacate the residence. [S.B.] described
      [J.B.’s] demeanor when she disclosed [the incident] to him as
      inconsolable, crying while she spoke. [S.B.] took [J.B.] to the
      police the next day. [J.B. and S.B.] moved out of the apartment
      and [J.B.] had no further contact with [Cubbins].

      On cross-examination, counsel for [Cubbins] attempted to
      impeach [S.B.] by eliciting testimony that [Cubbins] had told
      [S.B.] at a golf outing in September 2012 that he and his
      daughter had to move out of the apartment. Counsel attempted
      to offer this earlier verbal eviction notice as motive for [J.B.] to
      fabricate a rape allegation in February 2013.                   The
      Commonwealth, on redirect, inquired as to why [S.B. and J.B.]
      had not moved out after the golf outing. [S.B.] testified that
      [Cubbins] was drunk at the golf outing and started a fight.
      [Cubbins] threw multiple golf bags and told [S.B.] he had 24
      hours to get out [of] the house. [S.B.’s] testimony[,] and his
      knowledge of [Cubbins’s] demeanor while intoxicated[,] not only
      explains why [S.B.] did not take seriously this eviction, but also
      adds credibility to the victim’s statement that she was afraid of
      [Cubbins] when he drank. As above, [Cubbins’s] conduct was
      not criminal, and was not elicited to suggest a propensity for
      criminal behavior, but rather rebutted [Cubbins’s] defense of
      motive to fabricate the allegation. The testimony was relevant,
      not unduly prejudicial or cumulative and [the trial c]ourt did not
      err in permitting its introduction into evidence.

Trial Court Opinion, 1/26/15, at 6-8 (citations omitted).




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       We agree with the sound reasoning of the trial court.    Contrary to

Cubbins’s assertion, J.B.’s account of the unsavory dynamic of her

relationship with Cubbins formed the natural development of the facts, and

therefore did not constitute impermissible character evidence.          See

Commonwealth v. Green, 76 A.3d 575, 584 (Pa. Super. 2013) (stating

that evidence of other criminal acts is admissible “to complete the story of

the crime on trial by proving its immediate context of happenings near in

time and place.”) (citation omitted).     Indeed, J.B.’s statements about

Cubbins being drunk was not offered for the truth of the matter asserted,

but rather to shed light on the relationship between Cubbins and J.B., and

supplemented the description of the incident.    Likewise, C.D.’s testimony

provided necessary context to his interactions with Cubbins on New Year’s

Eve.   Finally, S.B.’s testimony formed the sequence of events surrounding

the assault, and the dissolution of the living arrangement with Cubbins. See

id. As such, this evidence was relevant, probative, and formed an integral

part of the natural development of the case history. See Commonwealth

v. Powell, 956 A.2d 406, 419-20 (Pa. 2008) (concluding that the trial court

did not err in admitting victim’s mother’s statement that appellant “put his

hands on her when he was drunk or high” because the statement was not

offered to demonstrate appellant’s propensity to commit a crime, but to

establish the family environment and relationships between appellant,

victim, and victim’s mother) (quotation marks omitted); see also Reid, 99



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A.3d at 520 (stating that defendant is not entitled to relief for cumulative

errors where each error, individually, did not entitle him to relief).2   Thus,

Cubbins’s second claim is without merit.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 9/29/2015




2
  We note that Cubbins argues that the trial court abused its discretion in
admitting into evidence S.B.’s testimony referring to Cubbins’s “drunken
stupor” on the golf course in 2012. Brief for Appellant at 22 (citing N.T.,
3/26-28/14, at 306). However, Cubbins never objected to this testimony,
which was elicited while his counsel was cross-examining S.B. Thus, the
issue is waived on appeal. See Powell, 956 A.2d at 419 (failure to raise a
contemporaneous objection results in the waiver of a claim on appeal); see
also Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and
cannot be raised for the first time on appeal). Even if the issue was not
waived, Cubbins would not be entitled to relief. As noted above, S.B.’s
testimony provided context to the end of his and J.B.’s living arrangement
with Cubbins.

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