J-A03011-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

VINCENT ANTONELLO CLARK

                            Appellant                 No. 218 MDA 2013


              Appeal from the Judgment of Sentence April 3, 2012
               In the Court of Common Pleas of Wyoming County
              Criminal Division at No(s): CP-66-CR-0000490-2009
                                          CP-66-CR-0000491-2009
                                          CP-66-CR-0000492-2009


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.:                      FILED SEPTEMBER 03, 2014

        Appellant, Vincent Antonello Clark, appeals from the judgment of

sentence entered by the Honorable Russell D. Shurtleff, Court of Common

Pleas of Wyoming County. After careful review, we affirm.

        In January 2009, the Commonwealth charged Clark with various

crimes arising from allegations that he had, over a three year period,

sexually assaulted his children, all under the age of 8 at the relevant times,

and his nieces, all under the age of 11 at the relevant times. Trial on the

charges commenced on December 12, 2011.            Ultimately, the jury found

Clark guilty on all charges, and on April 3, 2012, the trial court sentenced
____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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Clark to an aggregate term of imprisonment of 50 to 100 years. Clark filed

timely post-sentence motions, which the trial court denied via order dated

December 12, 2012. This timely appeal followed.

     On appeal, Clark raises the following issues for our review:

     1.
        Pa.R.Crim.P. 600 violated where trial in the instant case
        commenced after the mechanical run date under Rule 600
        and where the Commonwealth failed to show the exercise of
        due diligence in bringing Appellant to trial?
     2. Did the trial court err in failing to provide standard jury
        instruction 4.13A regarding prompt report of sexual offenses
        when Appellant was charged in engaging in prohibitive sexual
        contact with minor children from 2006 through January of
        2009 and where said alleged victims first reported said sexual
        assaults in January 2009?
           a. In refusing to provide the requested jury instruction, did

               credibility of the complaining witnesses?
     3.

          prior crimes, wrongs or bad acts pursuant to Pa.R.E 404(b)

        opportunity, intent, preparation, plan, knowledge, identity or
        absence of mistake or accident?
           a. Was the probative value of said evidence outweighed by
               the prejudice engendered by the introduction of the
               same?
     4. Did the trial court err in allowing the Commonwealth to
        introduce hearsay statements of the minor complaining
                                                       of the hearsay
        rule, 42 Pa.C.S.A. § 5985.1 where the court failed to evaluate

        admission as statutorily required?
     5. Did the trial court err in failing to enforce a subpoena served
        by Appellant upon
        confirmation that a complaining witness, [], while in Sexual
        abuse counseling, failed to reveal an ongoing sexual assault
        allegedly perpetuated by Appellant?

                     -7.

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      In his first issue on appeal, Clark contends that the trial court erred in

concluding that his right to a speedy trial had not been violated.          Our



                        Commonwealth v. Hunt, 858 A.2d 1234, 1238 (Pa.

Super. 2004) (en banc) (citations omtted).

to the evidence on the record of the Rule 600 evidentiary hearing and the

                            Id. (citation omitted)              ate court must

                                                                         Id. at

1239 (citation omitted).



                                                                        cused's

                                                        Id. The dual purposes

of Rule 600 are further described as follows.

      In determining whether an accused's right to a speedy trial has
      been violated, consideration must be given to society's right to
      effective prosecution of criminal cases, both to restrain those
      guilty of crime and to deter those contemplating it. However, the
      administrative mandate of Rule 600 was not designed to insulate
      the criminally accused from good faith prosecution delayed
      through no fault of the Commonwealth.

      So long as there has been no misconduct on the part of the
      Commonwealth in an effort to evade the fundamental speedy
      trial rights of an accused, Rule 600 must be construed in a
      manner consistent with society's right to punish and deter crime.

Id. (citations and brackets omitted)




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       In cases such as this one, Rule 6001 requires the Commonwealth to

bring a defendant to trial within one year of the filing of the criminal

complaint. See Pa.R.Crim.P., Rule 600(A)(3).       Charges shall be dismissed

under Rule 600 where a defendant on bail is not brought to trial within 365

days of the date on which the criminal complaint against him is filed. See

Commonwealth v. Dixon, 589 Pa. 28, 37, 907 A.2d 468, 474 (2006). See

also Pa.R.Crim.P., Rule 600(A)(3) (

                                                       ).   Rule 600, however,

specifically contemplates that certain periods of time shall be excluded in

calculating compliance with the rule. Rule 600 provides, in pertinent part,

the following:

       (C) In determining the period for commencement of trial, there
       shall be excluded therefrom:
       (1) the period of time between the filing of the written complaint
       and the defendant's arrest, provided that the defendant could
       not be apprehended because his or her whereabouts were
       unknown and could not be determined by due diligence;
       (2) any period of time for which the defendant expressly waives
       Rule 600;
       (3) such period of delay at any stage of the proceedings as
       results from:
       (a) the unavailability of the defendant or the defendant's
       attorney;
       (b) any continuance granted at the request of the defendant or


____________________________________________


1
 Prior Rule 600 was rescinded on October 1, 2012, and new Rule 600 was
made effective on July 1, 2013. See 42 Pa.B. 6622. Since Prior Rule 600
                                               analysis will focus on that
version of the Rule.



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Pa.R.Crim.P., Rule 600(C).

      Furthermore, even where a Rule 600 violation occurs, a motion to



is not expressly defined in Rule 600, but the legal construct takes into

account delays which occur as a result of circumstances beyond the

                                                            Commonwealth v.

Jones, 886 A.2d 689, 700 (Pa. Super. 2005) (citation omitted).

      Here, the controlling criminal complaints were filed on January 17,

2009, and January 29, 2009.       On February 5, 2010, the Commonwealth

placed the cases on the criminal trial list for the week commencing February

22, 2010.   On February 12, 2010, Clark filed an omnibus pretrial motion,

which included a motion to dismiss pursuant to Rule 600, a request for

additional discovery, and a motion to compel the filing of a bill of particulars.

In response to the filing of the omnibus pretrial motion, the trial court

scheduled a hearing on the motion for March 26, and continued the trial until

April 19, 2010.

      On appeal, Clark concedes that 53 days of the relevant time period

were chargeable to him based upon a request for a continuance of the

preliminary hearing. See                              As such, trial should have

been held before 418 days had elapsed from the filing of the complaints.

Under this calculation, trial should have been held by March 11, 2010 on the

complaint filed January 17, 2009, and by March 23, 2010, for the complaints


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filed on January 29, 2009. Clark asserts since the hearing on his omnibus

pretrial motion was not held until March 26, 2010, Rule 600 was violated.

Clark does not argue that any subsequent time periods are chargeable

against the Commonwealth.

       A defendant is unavailable for trial   if a delay in the commencement

of trial is caused by the filing of the pretrial motion and therefore the time

between the filing of the motion and its resolution is excludable under Rule

600.    Commonwealth v. Hill, 558 Pa. 238, 254, 736 A.2d 578, 587

(1999).

which was on the trial list for February 22, 2010.     Furthermore, as noted

above, Clark does not argue that any time after the hearing on his omnibus

pretrial motion is relevant to the calculation under Rule 600. As such, the

appropriate end date for the Rule 600 calculation is February 12, 2010,

when Clark filed his omnibus pretrial motion. Since this date was prior to

the calculated dates of March 11 and March 23, 2010, C

appeal merits no relief.

       In his second issue, Clark argues that the trial court erred in refusing

to provide the jury with standard jury instruction 4.13A regarding prompt

report of sexual offenses. Our scope and standard of review of this issue is

as follows:

       In reviewing a challenge to the trial court's refusal to give a
       specific jury instruction, it is the function of this Court to

       In examining the propriety of the instructions a trial court

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      presents to a jury, our scope of review is to determine whether
      the trial court committed a clear abuse of discretion or an error
      of law which controlled the outcome of the case. A jury charge
      will be deemed erroneous only if the charge as a whole is
      inadequate, not clear or has a tendency to mislead or confuse,
      rather than clarify, a material issue. A charge is considered
      adequate unless the jury was palpably misled by what the trial
      judge said or there is an omission which is tantamount to
      fundamental error. Consequently, the trial court has wide
      discretion in fashioning jury instructions. The trial court is not
      required to give every charge that is requested by the parties
      and its refusal to give a requested charge does not require
      reversal unless the Appellant was prejudiced by that refusal.

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

(internal citations, quotation marks, and brackets omitted), appeal denied,

835 & 836 MAL 2013 (Pa. April 2, 2014).

      The prompt complaint instruction is premised upon the belief that a

victim of a sexual assault would reveal at the first available opportunity that

an assault occurred. See id. The instruction permits a jury to discredit a



available opportunity.    See id

                                                            Id.

      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. For instance, where 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.

Id. (internal citations and quotation marks omitted).




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      In this case, the trial court engaged in a thorough analysis of the age

and condition of each victim.     In refusing to give the prompt complaint



the testimony of record regarding the violent and numerous threats made to

these children if they disclosed what was happening certainly constitute a



Trial Court Opinion, 2/14/2013, at 9.       Our review of the record finds

                                                               annot conclude

that the trial court committed an abuse of discretion or an error of law in



appeal merits no relief.

      Next, Clark argues that the trial court erred by admitting evidence of

prior alleged crimes committed by Clark. We note that

      the 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. 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.

Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super. 2012)

(internal citations omitted). It is impermissible to present evidence at trial



criminal character or proclivities.   See Commonwealth v. Hudson, 955


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A.2d 1031, 1034 (Pa. Super. 2008).         Such evidence, however, may be



                                                         Commonwealth v.

Russell, 938 A.2d 1082, 1092 (Pa. Super. 2007) (citation omitted).       Rule

                           [e]vidence of other crimes, wrongs, or acts may be

admitted for other purposes, such as proof of motive, opportunity, intent,



Pa.R.E., Rule 404(b)(2).     Rule 404(b)(3), however, mandates that other



upon a showing that the probative value of the evidence outweighs its

                                                   . See also Russell, 938

A.2d at 1092.

means a tendency to suggest decision on an improper basis or divert the



Commonwealth v. Wright, 599 Pa. 270, 325, 961 A.2d 119, 151 (2008).



effect of the evidence against its probative value and it is not for an

                                           Commonwealth v. Parker, 882

A.2d 488, 492 (Pa. Super. 2005),                              , 591 Pa. 526,

919 A.2d 943 (2007).

eliminate all unpleasant facts from the jury's consideration where those facts

are relevant to the issues at hand and form part of the history and natural


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Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa. Super. 2009) (citing

Commonwealth v. Dillon, 592 Pa. 351, 366, 925 A.2d 131, 141 (2007)).

     Here, the Commonwealth filed a notice of its intent to present

testimony of sexual assaults committed by Clark against the victims in

various locations, including New Jersey. The Commonwealth argued that the

jury should be permitted to consider the evidence presented in any one of

the cases against Clark in the other cases. The Commonwealth contended

that all of the evidence of sexual assaults were admissible to show a

common scheme.      After a hearing on the issue, the trial court ruled that

evidence of sexual assaults on the victim witnesses in the trial would be

admissible, while evidence of sexual assaults of non-testifying victims would



     Clark argues that the trial court erred as the evidence of prior sexual

assaults did not meet any of the purposes set forth in Rule 404(b).

However, the trial court held that this evidence was evidence of a common



geographic locations, in a similar manner and they represent a common

scheme whereby Clark would get the children alone, or together, and assault



                                                                  t abuse its




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discretion in admitting evidence of prior sexual assaults against the victim

witnesses.



intent to present evidence of prior bad acts was untimely. In this argument,

Clark contends that the four months between the notice and trial was

insufficient to permit him to investigate the allegations of crimes in another

state.     The trial court concluded that four months was sufficient time to

investigate the allegations.        In the absence of any other allegation or

evidence, we agree with the trial court. Four months represents sufficient

time to investigate the issues raised by the Commonwealth in its notice.



         In his fourth issue, Clark claims that the trial court erred in permitting

the Commonwealth to present hearsay statements of the minor victims at

trial. The Tender Years Exception to the Hearsay Rule provides that an out

of court statement of a minor victim or witness regarding, among others, a

crime of sexual assault, is admissible if:

         (1) The court finds in an in camera hearing, that the evidence is
         relevant and that the time, content and circumstances of the
         statements provided sufficient indicia of reliability; and (2) the
         child either (i) testifies at the proceeding; or (ii) is unavailable as
         a witness.

42 Pa.C.S.A. § 5985.1.

         Here, Clark argues that the trial court failed to hold an in camera

hearing to determine if the hearsay testimony had sufficient indicia of


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reliability.   A review of the record indicates that there was no in camera

hearing on the reliability of the hearsay statements.     However, the record

also indicates that Clark did not challenge the reliability of the statements

under the Tender Years Exception; rather, Clark requested an in camera

competency hearing on the witnesses.           See Motion In Limine, filed

8/17/2011, at ¶ 20; N.T, Hearing, 8/18/2011, at 8-9. After setting forth the

parameters for the competency hearing, the trial court asked if the parties

were in agreement.       Counsel for Clark responded,

Hearing, 8/18/2011, at 9.

       A hearing under the Tender Years Exception statute is not the

equivalent of a competency hearing. See Commonwealth v. Walter, 93

A.3d 442, 451 (Pa. 2014). Furthermore, the statute requires a party to give

notice, including details of the proffer, that it intends to present hearsay

evidence under the exception. See 42 Pa.C.S.A. § 5985.1(b). The purpose

                                       ovide the adverse party with a fair

                                      Id.

       Clark argues that the statute requires an in camera hearing before the

trial court may admit a hearsay statement pursuant to the Tender Years

Exception.     However, we conclude that, so long as the notice provision is

satisfied, it is incumbent upon the adverse party to identify and object to

any issue with the proposed testimony.       The trial court is not required to

hold an in camera hearing on any issue under the statute unless the adverse


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party raises it. As noted, Clark did not request a hearing or determination

on the reliability of the out-of-court statements. Thus, the trial court was

not required to have a hearing on the issue. Accordingly, we conclude that

                issue merits no relief on appeal.

      In his fifth and final issue on appeal, Clark argues that the trial court

erred in denying his motion to compel compliance with a subpoena to a

victim counseling center regarding statements made by one of the victims in

this case.   The trial court denied the motion to compel, holding that the



created by 42 Pa.C.S. § 5945.1 is an absolute privilege, which is not

overcome even by the constitutiona                                      V.B.T.

v. Family Services of Western Pennsylvania, 705 A.2d 1325, 1329

(Pa.Super. 1998) (citations and footnote omitted). Clark contends that he

was not seeking disclosure of communications between the victims and a

counselor; he was rather

complaining witnesses in counseling failed to mention ongoing sexual assault

perpetrated a




sexual assault counselor is permitted to be disclosed.    This bright-line rule

protects the important social policies undergirding the privilege, makes

application of the privilege straightforward, and avoids accidental disclosures


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that might occur while parties attempt to define what information about the

statements is protected by the privilege.

final issue on appeal merits no relief.



affirm the judgment of sentence.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/3/2014




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