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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :     IN THE SUPERIOR COURT OF
                                        :           PENNSYLVANIA
                   v.                   :
                                        :
SHIRL D. PEYATT,                        :          No. 655 WDA 2017
                                        :
                        Appellant       :


         Appeal from the Judgment of Sentence, January 25, 2017,
              in the Court of Common Pleas of Forest County
             Criminal Division at No. CP-27-CR-0000053-2015


BEFORE: BOWES, J., SOLANO, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:            FILED NOVEMBER 28, 2017

      Shirl D. Peyatt appeals from the January 25, 2017 judgment of

sentence entered in the Court of Common Pleas of Forest County following

his conviction in a jury trial of aggravated indecent assault of a child;

aggravated indecent assault -- complainant less than 13 years of age;

unlawful contact with a minor (sexual offenses); intimidation of witnesses or

victims to refrain from reporting; corruption of minors (sexual offenses); and

indecent assault -- complainant less than 13 years of age.1 The trial court

sentenced appellant to an aggregate term of imprisonment of 144 months to

288 months. We affirm.




1  18 Pa.C.S.A. §§ 3125(b), 3125(a)(7),            6318(a)(1),    4952(a)(1),
6301(a)(1)(ii), and 3126(a)(7), respectively
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      The record reflects that on July 13, 2015, the female victim, who was

then 11 years old, and her then 12-year-old stepbrother, Q.P., visited

appellant and his wife, who are Q.P.’s maternal grandparents. That night,

the victim and Q.P. slept in appellant’s living room. The victim slept on a

loveseat, and Q.P. slept on a sofa.    The victim testified that she woke up

around 2:00 a.m. because she felt her pants being pulled down and

someone “touching” her.      (Notes of testimony, 11/2-3/16 at 108.)        She

stated that she knew what time it was because she checked the time on her

tablet, which was sitting beside her. (Id.) After waking up, she pulled her

pants back up. She did not see who was touching her, and she went back to

sleep. (Id. at 109.)

      The victim then testified that she woke up once more because she “felt

someone pulling [her] pants down again.” (Id. at 109.) She stated that she

was fully awake and saw and felt appellant touching her “inside [her]

clothing” on her “crotch” and that appellant “stuck his finger inside of it” and

that “it hurt.”   (Id. at 110-111.)   The victim then stated that she “pulled

[her] pants up” and “went to the bathroom and got dressed.” (Id. at 111.)

      The victim further testified that when she went to retrieve her phone,

she saw appellant taking her phone. She then encountered appellant again

in the living room, at which time appellant asked the victim “if he could lick

down there.” (Id.) The victim told him “no.” (Id.) The victim stated that




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appellant then “came up to [her] and handed [her] $20 and told [her] not to

tell anyone” or he “would hurt [the victim’s] brother.” (Id. at 112, 116.)

      The record reflects that the only witness called by the Commonwealth

to testify at trial as to appellant’s prior bad acts was T.B.2 The trial court

summarized T.B.’s testimony as follows:

            T.B. testified that [a]ppellant was her uncle by
            marriage. She and her brother use [sic] to visit
            [a]ppellant’s home during the summer recess from
            school. The last visit occurred when she was 11 or
            12 years old. T.B. testified at the in camera hearing
            that she was born in 1993, therefore the last visit
            would have been in 2004 or 2005. She would be
            accompanied by her brother who was two years
            older than her. During the last visit, T.B. and her
            brother were alone with [a]ppellant and his wife and
            were under their care and supervision. After playing
            outside all day T.B. and her brother went to bed in
            [a]ppellant’s living room. T.B. slept on the floor and
            her brother slept on a couch. T.B. was awoken by
            someone touching her. Her pants were down and a
            coffee table that she was sleeping next to had been
            moved. She saw [a]ppellant walking out of [the]
            room. Her brother was still asleep on the couch.

Trial court opinion, 5/23/17 at 3.




2 The record reflects that appellant’s first trial ended in a mistrial. The trial
court ordered a mistrial sua sponte because the prior bad acts testimony of
child witness D.D. diverged from the offer of proof that the Commonwealth
submitted to the trial court and that the trial court relied upon in permitting
D.D. to testify. (Trial court opinion, 5/23/17 at 2-3.)

       The record further reflects that the trial court permitted T.B. to testify
at appellant’s first trial. As a result of the mistrial, however, T.B. did not
testify at appellant’s first trial.    Prior to permitting T.B. to testify at
appellant’s second trial, the trial court conducted an in camera hearing to
ensure the admissibility of T.B.’s prior bad acts testimony.


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      As stated, a jury convicted appellant of the crimes set forth above.

Following imposition of sentence, appellant filed a timely post-sentence

motion, which the trial court denied. Appellant then filed a timely notice of

appeal to this court. Subsequently, the trial court ordered appellant to file a

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

Appellant complied. Thereafter, the trial court filed its Rule 1925(a) opinion.

      Appellant raises the following issues for our review:

            1.    Was the denial of [appellant’s] right to be
                  present at an evidentiary hearing pursuant to
                  42 Pa.C.S.[A.] § 5985.1 [(a]dmissibility of
                  certain statements[)] an error requiring
                  reversal of his conviction[?]

            2.    Was the admission of testimony of prior bad
                  acts at a jury trial, testimony describing prior
                  acts of sexual misconduct attributed to
                  [appellant], error requiring reversal of his
                  conviction[?]

            3.    Should the conviction of [appellant] on
                  count 3, 18 Pa.C.S.[A.] § 6318 [(u]nlawful
                  contact with minor[)] be vacated because
                  there was insufficient evidence of an act which
                  could fairly be viewed as one of intentional
                  contact[?]

Appellant’s brief at 13 (italics and quotation marks omitted).

      Appellant first complains that he had a right to be present during those

parts of the evidentiary hearing conducted under the Tender Years Hearsay




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Act (“TYHA”), 42 Pa.C.S.A. § 5985.1,3 in which the trial court heard

testimony from third parties, and because he was not present for this

third-party testimony, his convictions should be reversed.           Appellant

concedes that he had no right to be present at the TYHA hearing when the

victim testified. (Appellant’s brief at 26.)

      The TYHA provides, in relevant part, that if the trial court “[h]ear[s]

the testimony of a parent or custodian or any other person, such as a person

who has dealt with the child victim[,]” . . .in connection with making a

finding that “the child . . . is unavailable as a witness,” “the defendant, the

attorney for the defendant and the attorney for the Commonwealth have the

right to be present.”    42 Pa.C.S.A. § 5985.1(a)(2)(i), (b)(2) & (c)(2).   As

such, a criminal defendant has no statutory right to be present at a

TYHA hearing during third-party testimony when the victim is available as a

witness at trial and subject to cross-examination.      Here, the victim was

available as a witness at trial and subject to cross-examination, as were the

third parties that testified at the TYHA hearing.       Therefore, appellant’s

substantive right “to be confronted with the witnesses against him,” as

guaranteed by the Sixth Amendment to the United States Constitution and

Article I, Section 9 of the Pennsylvania Constitution was not violated by his


3 The TYHA creates an exception to the hearsay rule for young victims and
witnesses by providing for the admissibility of certain out-of-court
statements to third parties that otherwise may be considered hearsay. See
42 Pa.C.S.A. § 5985.1; see also Commonwealth v. Golphin, 161 A.3d
1009, 1023 (Pa.Super. 2017).


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absence during third-party testimony at the TYHA hearing.4 Consequently,

this claim lacks merit.

      Appellant next complains that the trial court abused its discretion by

admitting the testimony of T.B. regarding appellant’s prior bad acts because

the Commonwealth did not allege that the evidence was “necessary” and

because the trial court failed to balance the probative value of the evidence

against its prejudicial impact. (Appellant’s brief at 40, 45.)

      “On appeals challenging an evidentiary ruling of the trial court, our

standard of review is limited.   A trial court’s decision will not be reversed

absent a clear abuse of discretion.” Commonwealth v. Aikens, 990 A.2d

1181, 1184 (Pa.Super. 2010) (citations omitted). “Abuse of discretion is not

merely an error of judgment, but rather where the judgment is manifestly

unreasonable or where the law is not applied or where the record shows that

the action is a result of partiality, prejudice, bias or ill will.”    Id. at

1184-1185 (citations omitted).

                  Generally, evidence of prior bad acts or
            unrelated criminal activity is inadmissible to show
            that a defendant acted in conformity with those past
            acts    or    to    show      criminal    propensity.
            Pa.R.E. 404(b)(1). However, evidence of prior bad

4 We note that appellant claims that the Commonwealth bore responsibility
for transporting appellant to the TYHA hearing under local rules of court.
(Appellant’s brief at 24-26.) To the extent that appellant requests this court
to address that issue on appeal, we decline to do so because appellant failed
to raise the issue in his Pa.R.A.P. 1925(b) statement of errors complained of
on appeal and, therefore, waived the issue on appeal.                     See
Pa.R.A.P. 1925(b)(4)(vii) (issues not included in the Rule 1925(b) statement
are waived).


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            acts may be admissible when offered to prove some
            other relevant fact, such as motive, opportunity,
            intent, preparation, plan, knowledge, identity, and
            absence of mistake or accident. Pa.R.E. 404(b)(2).[ 5]
            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.

Id. at 1185 (citations to case law omitted).




5           Rule 404. Character Evidence; Crimes or Other
            Acts

            ....

            (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.

                   (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.

                   ....

Pa.R.E. 404(b)(1)-(2).


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      In order for prior bad acts to be introduced under this particular

exception, a close factual nexus must exist to sufficiently demonstrate the

connective relevance of the prior bad acts to the criminal charge at issue.

Commonwealth v. Sitler, 144 A.3d 156, 163-164 (en banc) (Pa.Super.

2016) (citations omitted).

      Here,    the    record   reflects   that   the   trial   court   permitted   the

Commonwealth to introduce evidence of prior bad acts via T.B.’s testimony

for the purpose of showing motive or a common scheme, plan, or design.

(Trial court opinion, 5/23/17 at 6; see also notes of testimony, 11/2-3/16

at 446.)   The trial court set forth the close factual nexus that sufficiently

demonstrated the connective relevance of the 2004 or 2005 assault of T.B.

and the assault that is the subject of this appeal, as follows:

              1.     T.B. was 11 or 12 at the time she was
                     sexually assaulted by [a]ppellant. The
                     victim was 11 years of age when she was
                     sexually assaulted by [a]ppellant.

              2.     Both T.B. and the victim were related to
                     [a]ppellant by marriage.   [] Appellant
                     was T.B.’s uncle by marriage and the
                     victim’s step-grandfather.

              3.     T.B. and the victim were both spending
                     the night at the home of [a]ppellant
                     without the presence of their parents and
                     were under the care, custody and control
                     of [a]ppellant and his wife.

              4.     The assaults both occurred in the living
                     room of the same home of [a]ppellant.




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            5.    The assaults both occurred at nighttime
                  while the girls were sleeping in the living
                  room.

            6.    Both victims were awoken by being
                  assaulted by [a]ppellant who pulled their
                  pants down and touched the victims.

            7.    [] Appellant’s wife was present in the
                  home on both occasions.

            8.    Both assaults occurred while a juvenile
                  male was also asleep on a couch in the
                  living room.

                  The unique pattern and circumstances of the
            sexual assaults distinguish these two incidents from
            what might be called more typical or routine child
            sexual abuse fact patterns.          In both cases,
            [a]ppellant took advantage of a sleeping eleven or
            twelve year old female, entrusted to his care for the
            night, while the victims were sleeping in his living
            room. The nature of the sexual assaults, pulling
            down the child’s pants and touching them with his
            fingers, was also similar. The fact that a juvenile
            male relative was asleep on a couch in the same
            room is not some insignificant, coincidental detail
            that is common to most cases of sexual assault. It
            points to the fact that [a]ppellant is not opposed to
            sexually assaulting a young girl even with the risk of
            another juvenile sleeping in the same room
            awakening to see the assault. The remoteness in
            time was greatly outweighed by these significant
            similarities. Taken with all of the other similarities
            with    respect    to  geographic     location,  time,
            characteristics of the victims and nature of the
            attacks, this evidence clearly was properly admitted.

Trial court opinion, 5/23/17 at 4-5 (citation omitted).

      Here, appellant does not complain that his assault on T.B. lacked a

close factual nexus that was incapable of demonstrating the connective



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relevance between that assault and the assault that is the subject of this

appeal.   Rather, appellant first complains that the trial court abused its

discretion when it admitted T.B.’s prior bad acts testimony because that

evidence was not “necessary,” as the case against appellant was more than

circumstantial.    (Appellant’s brief at 40, 45.)   In support of his seeming

argument that prior bad acts testimony cannot be admitted unless the

Commonwealth’s case against a criminal defendant is purely circumstantial,

appellant cites to Commonwealth v. Hicks, 156 A.3d 1114 (Pa. 2017). In

Hicks, however, our supreme court merely reiterated that prior bad acts

evidence is “highly probative when the Commonwealth’s case is otherwise

based largely on circumstantial evidence.” Id. at 1128 (citations omitted).

Therefore, appellant’s contention that prior bad acts evidence is only

admissible in a criminal prosecution based principally on circumstantial

evidence entirely fails to reflect the law of this Commonwealth and must fail.

      In his second and final complaint regarding the trial court’s admission

of prior bad acts evidence, appellant claims that he is entitled to a reversal

of his convictions because the trial court failed to balance the probative

value of T.B.’s testimony against its prejudicial effect. (Appellant’s brief at

45-46.) The record, however, belies appellant’s contention.

      The record demonstrates that prior to admitting T.B.’s testimony, the

trial court conducted an in camera hearing. (Notes of testimony, 11/2-3/16

at 203-221.)      Following T.B.’s examination at that hearing, the trial court



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noted that T.B.’s testimony was consistent with the Commonwealth’s offer of

proof. (Id. at 219.) The trial court also summarized the stark similarities

between T.B.’s testimony and the testimony that had already been given by

the victim. (Id. at 220.) Although the trial court admitted T.B.’s prior bad

acts testimony, it stated at the hearing that it would “give the appropriate

limiting instruction to the jurors before [sending] them to the jury room.”

(Id. at 221.) Prior to deliberations, the trial court gave the following limiting

instructions with respect to the prior bad acts evidence:

                  You heard evidence tending to prove that
            [appellant] may have committed another offense for
            which [appellant] is not on trial. I am speaking of
            the testimony of [T.B.]

                  This evidence is before you for a very limited
            purpose. That is for the purpose of showing motive
            or a common scheme, plan or design. This evidence
            must not be considered by you in any other way
            than for the purpose I just stated.

                   You must not regard this evidence as showing
            [appellant] as a person of bad character or criminal
            tendencies from which you might be inclined to infer
            guilt.

                  If you find [appellant] guilty, it must be
            because you are convinced by the evidence that he
            committed the crimes charged and not because you
            believe his is a wicked person or has committed
            another offense.

Notes of testimony, 11/2-3/16 at 446.

      These instructions, to which appellant took no exceptions, demonstrate

that the trial court balanced the probative value of T.B.’s testimony against



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its prejudicial effect because the trial court appropriately instructed the jury

as to the limited and narrow purpose for which T.B.’s bad acts evidence was

admitted and, therefore, restricted any unfair prejudicial effect. See Hicks,

156 A.3d at 1129 (reiterating that trial court should consider comprehensive

limiting instructions when balancing probative value and prejudicial effect

and provision of such limiting instructions weighs in favor of upholding

admission of other bad acts evidence (citations omitted)).      Therefore, this

claim lacks merit.

      Appellant finally challenges the sufficiency of the evidence to sustain

his conviction of unlawful contact with a minor.

            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 proof 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 the 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.


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Commonwealth v. Pappas, 845 A.2d 829, 835-836 (Pa.Super. 2004)

(citation omitted).

      The Crimes Code defines “unlawful contact with a minor,” in relevant

part, as follows:

            § 6318. Unlawful contact with a minor.

            (a)     Offense defined.--A person commits an
                    offense if he is intentionally in contact with a
                    minor, or a law enforcement officer acting in
                    the performance of his duties who has
                    assumed the identity of a minor, for the
                    purpose of engaging in an activity prohibited
                    under any of the following, and either the
                    person initiating the contact or the person
                    being contacted is within this Commonwealth:

                    (1)   Any of the offenses enumerated in
                          Chapter 31 (relating to sexual
                          offenses).        [These    offenses
                          include:     rape, statutory sexual
                          assault, involuntary deviate sexual
                          intercourse,      sexual    assault,
                          institutional     sexual    assault,
                          aggravated      indecent    assault,
                          indecent assault, and indecent
                          exposure.]

18 Pa.C.S.A. § 6318(a)(1).       The statute defines “contact” as “direct or

indirect contact or communication by any means, method or device,

including contact or communication in person.” 18 Pa.C.S.A. § 6318.

      Here, appellant contends that the in-person contact that appellant had

with the victim falls outside of the parameters of the statute’s intent because

appellant did not engage the victim in conversation so as to entice her to be



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in appellant’s home at the time of the assault and because appellant asked

the victim whether he could “lick down there” after he completed the

physical assault.    Appellant is gravely mistaken.    This court has explained

that:

              “unlawful contact with a minor,” . . . is best
              understood as “unlawful communication with a
              minor.” By its plain terms, the statute prohibits the
              act of communicating with a minor for enumerated
              sexual purposes.     The communication may take
              place in person, on the telephone, via a computer, or
              in other ways. 18 Pa.C.S.A. § 6318(c). Because the
              crime is complete as of the moment of
              communication, it is not necessary for the defendant
              to take any further affirmative steps to have physical
              contact with the minor, such as driving to a hotel.

Commonwealth v. Rose, 960 A.2d 149, 152-153 (Pa.Super. 2008)

(emphasis omitted; citations omitted).

        In this case, the victim testified that after appellant sexually assaulted

her, he then approached her and “asked [her] if he could lick down there.”

(Notes of testimony, 11/2-3/16 at 111.)           On the basis of the victim’s

testimony then, the jury could conclude that appellant completed the crime

of unlawful contact with a minor when he asked the victim if he could “lick

down there” because no affirmative steps to have such physical contact with

the victim was required. Therefore, viewing this evidence in the light most

favorable to the Commonwealth as verdict winner, it was sufficient to enable

the fact-finder to find every element of the crime beyond a reasonable

doubt.



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     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary


Date: 11/28/2017




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