J-S54022-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DANIEL SCOTT HANLEY

                            Appellant                 No. 2178 MDA 2013


             Appeal from the Judgment of Sentence July 15, 2013
               In the Court of Common Pleas of Centre County
             Criminal Division at No(s): CP-14-CR-0001724-2011


BEFORE: LAZARUS, J., MUNDY, J., and STABILE, J.

MEMORANDUM BY MUNDY, J.:                        FILED NOVEMBER 05, 2014

       Appellant, Daniel Scott Hanley, appeals from the July 15, 2013

aggregate judgment of sentence of nine to 23 years’ incarceration, imposed

after a jury found him guilty of three counts of dissemination of obscene or

explicit sexual materials to minors, one count of corruption of minors by

course of conduct, eight counts of corruption of minors by specific act, 23

counts of indecent assault, and 23 counts of harassment.1         After careful

review, we affirm the judgment of sentence.

       The certified record discloses the following facts and procedural history

of this case.      On August 30, 2011, the Pennsylvania State Police, at

____________________________________________
1
  18 Pa.C.S.A. §§ 5903(c), 6301(a)(ii), 6301(a)(i), 3126(a)(7)-(8), and
2709, respectively.
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Rockview, filed a criminal complaint charging Appellant with multiple

offenses, stemming from numerous alleged instances of Appellant’s improper

conduct and contact with his minor stepdaughter and her friends, which had

taken place between spring 2010 and April 2011.          These acts included

exposing the victims to sexually explicit images, videos, texts, and sex toys,

and repeated instances of inappropriate “flicking” of the victims’ breasts.

The complaint’s 27 criminal counts and 23 summary counts were bound over

to the trial court following the September 7, 2011 preliminary hearing. By

order dated April 15, 2013, the trial court granted the Commonwealth’s

motion to amend its information to add 15 additional criminal counts. The

matter proceeded to a jury trial on April 18, 2013, at the conclusion of which

the jury found Appellant guilty of 35 of the aforementioned crimes and the

trial court found Appellant guilty of all the aforementioned summary

offenses.2

       On July 15, 2013, the trial court sentenced Appellant to an aggregate

term of incarceration in a state correctional institution of not less than nine

nor more than 23 years plus a $100.00 fine on each summary count. On

July 23, 2013, Appellant filed a timely post-sentence motion. A hearing on

Appellant’s post-sentence motion was held on September 16, 2013.           The

____________________________________________
2
  The jury found Appellant not guilty of one count of dissemination of
obscene or explicit sexual materials to minors, one count of indecent assault,
and five counts of Section 6301(a)(i) corruption of minors.



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trial court denied the requested post-sentence relief on November 20,

2013.3 On December 4, 2013, Appellant filed a timely notice of appeal.4

        On appeal, Appellant raises the following issues for our review.

              I.     Did permitting the [Children and Youth
                     Services (CYS)] caseworker to testify that the
                     Child’s allegations were “indicated” constitute
                     reversible error as it improperly bolstered the
                     credibility of the witnesses?

              II.    Did the failure to give timely requested lack of
                     prompt complaint jury instructions constitute
                     reversible error?

              III.   Did the failure to permit character evidence
                     regarding [Appellant’s] reputation in the
                     community      for  non-violence   constitute
                     reversible error?

Appellant’s Brief at 8.

        In his first and third issues, Appellant challenges the trial court’s

evidentiary rulings.      We therefore elect to address these issues first.   In

considering evidentiary issues, we are guided by the following principles.

              The standard of review for a trial court’s evidentiary
              rulings is narrow. The admissibility of evidence is
              solely within the discretion of the trial court and will
              be reversed only if the trial court has abused its
              discretion. 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
____________________________________________
3
  On October 11, 2013, Appellant’s privately retained trial counsel filed a
petition to withdraw, citing Appellant’s financial constraints. The trial court
granted the motion on November 20, 2013, and on November 26, 2013,
appointed the Centre County Public Defender’s Office to represent Appellant.
4
    Appellant and the trial court have complied with Pa.R.A.P. 1925.


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              judgment that is manifestly unreasonable, or the
              result of bias, prejudice, ill-will or partiality, as
              shown by the evidence of record.

Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation

omitted), appeal denied, 87 A.3d 319 (Pa. 2014). In order to be entitled to

relief based on a showing of a clear abuse of discretion in an evidentiary

ruling, actual resulting prejudice must be established. Commonwealth v.

O’Black, 897 A.2d 1234, 1240 (Pa. Super. 2006) (citation omitted). “[I]f 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. Weakley, 972 A.2d 1182, 1188 (Pa. Super.

2009) (citation omitted), appeal denied, 986 A.2d 150 (Pa. 2009).               “Even

when a trial court does err, however, the error does not necessarily warrant

reversal[,]” if the error is harmless.          Commonwealth v. Huddleston, 55

A.3d 1217, 1223 (Pa. Super. 2012) (citation omitted), appeal denied, 63

A.3d 774 (Pa. 2013).

       In his first issue, Appellant contends that the trial court erred when it

permitted the Commonwealth to elicit testimony from Leslie Young, the

Centre County CYS case worker, about the conclusion reached in the report

she issued when first investigating the allegations of Appellant’s abuse

toward his step-daughter, O.W.5                Appellant’s Brief at 16.   Specifically,

____________________________________________
5
   A report of suspected child abuse may be determined to be either
“indicated,” “founded,” or “unfounded.” 23 Pa.C.S.A. §§ 6337, 6338.


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Appellant contends, “the Commonwealth [] put the seasoned veteran

[caseworker] on the stand to say that she believed O.W. [] to bolster the

credibility of O.W.” Id. at 19. “Expert testimony may not be used to bolster

the credibility of witnesses because witness credibility is solely within the

province of the jury.”     Commonwealth v. Johnson, 690 A.2d 274,

276 (Pa. Super. 1997).

     We first address whether this issue has been properly preserved for

appeal.    Our Supreme Court has “noted that it is beyond cavil that if the

ground upon which an objection is based is specifically stated, all other

reasons for its exclusion are waived.” Commonwealth v. Smith, 985 A.2d

886, 904 (Pa. 2009) (internal quotation marks and citations omitted), cert.

denied, 131 S. Ct. 77 (2010).      Additionally, this Court has held that a

nebulous objection that fails to implicate the grounds later argued on appeal

is insufficient to preserve that issue on appeal. Commonwealth v. King,

959 A.2d 405, 419 (Pa. Super. 2008).      “In order to preserve an issue for

review, a party must make a timely and specific objection.          Also, an

appellant may not raise a new theory for an objection made at trial on his

appeal.”    Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super.

2003) (internal quotation marks and citations omitted), appeal denied, 845

A.2d 816 (Pa. 2004).     “[I]ssues raised in a timely optional post-sentence

motion [are preserved], provided those issues were properly preserved at




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the appropriate point in the proceedings.” Commonwealth v. Kohan, 825

A.2d 702, 705-706 (Pa. Super. 2003) (citation omitted).

       Instantly, the relevant testimony during the Commonwealth’s direct

examination of the CYS caseworker, and defense counsel’s objection thereto,

transpired as follows.

                  Q.     Did you go over things with [O.M.]?

                  A.    I did. I was gathering information for
            my report. What we have to do is we have up to 60
            days when we receive this type of report to file a
            final report with Child Line.   We can file it as
            unfounded, which means that either we don’t believe
            it happened or –

                  [DEFENSE COUNSEL]: Your Honor, I’m going
            to object to these conclusions as well. This is a civil
            matter, it has nothing to do with the criminal case
            that’s at issue. Whether it’s indicated, unfounded,
            and I’m sure Ms. Young knows the other one, it has
            nothing to do with the criminal case.

                 [ASSISTANT        DISTRICT      ATTORNEY]:
                 Judge, it absolutely does because it goes to
            what happened with [O.M.] and her brother and
            [C.W.]

                  THE COURT:        All    right.      Objection’s
            overruled.

N.T., 4/18/13, at 234-235. The witness then explained that, after speaking

with O.M. and her mother, she filed her report as indicated, and explained

the subsequent protective actions she took based on the report. Id. at 235-

236.




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       Thus, Appellant’s objection to the challenged testimony, as stated at

trial, was based on the relevance of the caseworker’s conclusions in a civil

matter to the criminal case at hand.             Appellant did not aver that the

testimony was inadmissible as improper bolstering of a witness’s credibility

by an expert witness. Appellant first raised this ground for his objection in

his post-sentence motion.6          We therefore conclude that, for purposes of

appeal, Appellant has waived his first issue.        See Smith, supra; Duffy,

supra.

       In his third issue, Appellant claims the trial court abused its discretion

in sustaining the Commonwealth’s objection to his proffer of character

witnesses to testify about Appellant’s reputation for peacefulness and

nonviolence. Appellant’s Brief at 24.7

              [T]he charges have been legislatively categorized as
              “sexually violent offenses” per 42 Pa.[C.S.A.]
              § 9799.12 [] and 42 Pa.[C.S.A.] § 9799.14 []
              (emphasis    added).       Therefore,   [Appellant’s]
              reputation for peacefulness and non-violence was
              highly relevant to the inquiry and should have been
              admitted.

Id. at 25.
____________________________________________
6
  In his post-sentence motion, Appellant also raised other grounds for
inadmissibility, including that the evidence was irrelevant, inflammatory, and
unduly prejudicial, but has not pursued these claims on appeal.
7
  The trial court also denied Appellant’s proffer of character witnesses to
testify about his reputation for veracity. Appellant has not challenged that
ruling in his brief on appeal. The trial court did permit Appellant to present
character evidence as to his reputation for law-abidingness. N.T., 4/18/13,
at 311-312.


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      The trial court acknowledged the statutory definition of the corruption

of minors involving a course of conduct charge, and the indecent assault

charges as “sexually violent offenses” for the purpose of the Sexual Offender

Registration and Notification Act.   See 42 Pa.C.S.A. §§ 9799.12, 9799.14.

However, the trial court reasoned that “[i]n this case, [] the underlying acts

constituting these crimes were not violent acts, nor was violence used in the

perpetration of these acts.” Trial Court Opinion, 11/20/13, at 4. We agree.

            It has long been the law in Pennsylvania that an
            individual on trial for an offense against the criminal
            law is permitted to introduce evidence of his good
            reputation in any respect which has proper relation
            to the subject matter of the charge at issue.
            Evidence of good character is to be regarded as
            evidence of substantive fact just as any other
            evidence tending to establish innocence and may be
            considered by the jury in connection with all the
            evidence presented in the case on the general issue
            of guilt or innocence. Evidence of good character
            offered by a defendant in a criminal prosecution
            must be limited to his general reputation for the
            particular trait or traits of character involved in the
            commission of the crime charged. In a case where
            the crime charged is one of violence, evidence of
            reputation for non-violent behavior is admissible.

Commonwealth v. Harris, 785 A.2d 998, 1000 (Pa. Super. 2001) (internal

quotation marks and citations omitted), appeal denied, 847 A.2d 1279 (Pa.

2004).

            Such evidence must relate to a period at or about
            the time the offense was committed … and must be
            established by testimony of witnesses as to the
            community opinion of the individual in question, not
            through specific acts or mere rumor.


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Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa. Super. 2003) (internal

quotation marks and citations omitted), appeal denied, 830 A.2d 975 (Pa.

2003).

      Instantly, the corruption of minors by course of conduct and indecent

assault charges were based on Appellant’s inappropriate touching, described

as “flicking the breasts” of the minor victims, and his acts exposing them to

sexually explicit images and objects. Amended Information, 4/17/13, at 1-

14. There were no allegations that Appellant employed force or coercion or

inflicted any physical pain or injury. Id. In these circumstances, we agree

with the trial court that the relevance of Appellant’s reputation for

peacefulness and nonviolence is properly viewed through the lens of his

alleged actions, i.e., “the particular trait or traits of character involved in

the commission of the crime charged,” and not on a general statutory

designation of an offense for collateral purposes. Lauro, supra (emphasis

added). In light of the nature of the allegations of Appellant’s actual conduct

in this case, we discern no abuse of discretion by the trial court in sustaining

the Commonwealth’s objection to Appellant’s presentation of character

evidence for peacefulness and nonviolence. See O’Black, supra.

      We lastly address Appellant’s second issue, in which he faults the trial

court for refusing to provide a charge to the jury about the implications of

the victims’ delay in reporting the offenses. Appellant’s Brief at 21.

            The trial court committed reversible error in failing to
            read [Appellant’s] Points For Charge Numbers 13,

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              14, 15, and 16 or provide any other instruction to
              the jury on the potential evidentiary significance of
              the complaining witnesses’ lack of a prompt
              complaint in accordance with 18 Pa.[C.S.A.] § 3105
              [] as [Appellant’s] conduct allegedly continued to
              occur for over a year without any of the witnesses
              ever reporting the conduct to an adult [until] after
              [Appellant’s] wife accused him of having an
              adulterous affair.

Id.8

       We address such challenges with the following principles in mind.

                           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.      In examining the
                     propriety of the instructions a trial court
                     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

____________________________________________
8
  Appellant preserved this issue with a timely objection at trial. N.T.
4/18/13, at 342, 343, 419. See Commonwealth v. Pressley, 887 A.2d
220, 224 (Pa. 2009) (holding “a specific objection to the charge or an
exception to the trial court’s ruling on a proposed point [is required] to
preserve an issue involving a jury instruction”).


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                 charge does not require reversal unless the
                 Appellant was prejudiced by that refusal.

            Commonwealth v. Thomas, 904 A.2d 964, 970
            (Pa. Super. 2006) (internal citations, quotation
            marks, and brackets omitted).

                  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. See id. 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. See Commonwealth v. Prince, 719
            A.2d 1086, 1091 (Pa. Super. 1998). …

                   “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.” Thomas, 904 A.2d
            at 970. For instance, “[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.” Commonwealth
            v. Jones, 449 Pa.Super. 58, 672 A.2d 1353, 1357 n.
            2 (1996).

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

denied, --- A.3d ---, 835, 836 MAL 2013 (Pa. 2014).

            In such an assessment the witness’ understanding of
            the nature of the conduct is critical. Where the
            victim did not comprehend the offensiveness of the
            contact at the time of its occurrence, the absence of
            an immediate complaint may not legitimately be
            used to question whether the conduct did in fact
            occur.

Commonwealth v. Snoke, 580 A.2d 295, 298-299 (Pa. 1990) (citations

omitted).



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      Instantly, the trial court, in making that assessment, advanced the

following reasons for declining to provide a prompt complaint instruction to

the jury.

                   In the case sub judice, the inappropriate acts
             perpetrated by [Appellant] took place over the
             course of approximately two years before the victims
             reported [Appellant’s] misconduct.    The delay in
             reporting the misconduct, however, was likely in part
             due to the fact that the victims did not fully
             comprehend the offensive nature of [Appellant’s]
             conduct.

Trial Court Opinion, 11/20/13, at 8.

      In Snoke, our Supreme Court noted the specific nature of the

offending acts and the relationship between an offender and a minor victim

are relevant to the assessment of whether a prompt complaint instruction is

warranted.

             Where no physical force is used to accomplish the
             reprehensible assault, a child victim would have no
             reason to promptly complain of the wrong-doing,
             particularly where the person involved is in a position
             of confidence. Where such an encounter is of a
             nature that a minor victim may not appreciate the
             offensive nature of the conduct, the lack of a
             complaint would not necessarily justify an inference
             of a fabrication.

Snoke, supra at 299.

      Citing Snoke, the trial court noted, “[Appellant’s] inappropriate acts

occurred without the use of physical violence or intimidation, and many of

them occurred while he was supervising his stepdaughter and her friends.”

Trial Court Opinion, 11/20/13, at 8. Thus, the trial court has performed the

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required evaluation of the particular circumstances in this case, and our

review discloses the trial court’s findings are supported by the record. We

discern no abuse of discretion in the trial court’s refusal to instruct the jury

on the victims’ delay in reporting the instant offenses. Consequently, we

conclude Appellant’s second issue is without merit. See Sandusky, supra.

      In conclusion, we find no merit in Appellant’s issues on appeal.      His

objection to the testimony of the CYS caseworker as improper bolstering of

O.W.’s credibility is waived for failure to object on that ground at trial.

Appellant’s objection to the trial court’s refusal to permit testimony about his

reputation for nonviolence is meritless because violence was not implicated

in the acts alleged.   Finally, the trial court did not abuse its discretion in

declining to give a prompt complaint instruction to the jury as it was

inapplicable under the particular circumstances of this case. Accordingly, we

affirm the July 15, 2013 judgment of sentence.

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/5/2014




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