J-S60009-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

T.S.N.,

                            Appellant              No. 3187 EDA 2014


      Appeal from the Judgment of Sentence Entered October 20, 2014
             In the Court of Common Pleas of Delaware County
            Criminal Division at No(s): CP-23-CR-0001030-2013


BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.

MEMORANDUM BY BENDER, P.J.E.:                  FILED NOVEMBER 02, 2015

       Appellant, T.S.N.,1 appeals from the judgment of sentence of an

aggregate term of 8 to 16 years’ incarceration, imposed after he was

convicted of two counts each of involuntary deviate sexual intercourse

(IDSI) and aggravated indecent assault (AIA), as well as one count of

corruption of minors (COM). Appellant contends that the trial court abused

its discretion by admitting certain evidence, and by denying Appellant’s

motion for a mistrial when the Commonwealth made improper comments in



____________________________________________


1
  Because this is a sexual assault case involving a minor victim who shares
the same last name as Appellant, we will use Appellant’s initials to protect
the victim’s identity. We have also redacted from the trial court’s opinion
Appellant’s name, the victim’s birthdate, and the names of the victim’s
mother and father.
J-S60009-15



its closing argument. He also maintains that the jury’s verdict was contrary

to the weight of the evidence. After careful review, we affirm.

        The trial court briefly summarized the facts of this case, as follows:

              On November 12, 2012, a Criminal Complaint was filed
        based on allegations that [Appellant], [T.S.N.], sexually
        assaulted his fourteen year-old half-brother.[2] The incident
        came to the attention of law enforcement after the Victim, his
        mother and his father appeared at the Chester-Crozer Medical
        Center (CCMC) on October 29, 2012. The Victim’s mother
        reported her suspicion that her son had been assaulted by his
        older half-brother. A sexual assault examination was performed
        at the hospital and hospital personnel reported the incident to
        the City of Chester Police Department.

Trial Court Opinion (TCO), 3/13/15, at 1.

        A four-day long jury trial was conducted in July of 2014, at the close of

which Appellant was convicted of IDSI by forcible compulsion, where the

victim was less than 16 years old; IDSI of an unconscious person, where the

victim was less than 16 years old; AIA without consent, where the victim is

less than 16 years old; AIA of an unconscious person, where the victim was

less than 16 years old; and COM.               After the verdict, Appellant’s counsel

orally moved for extraordinary relief under Pa.R.Crim.P. 704(B), which the

trial court denied. See N.T. Trial, 7/18/14, at 147-148.

        On October 20, 2014, the court conducted Appellant’s sentencing

hearing.     At the start thereof, Appellant renewed his oral motion for

extraordinary relief, arguing that the jury’s verdicts were contrary to the

____________________________________________


2
    Appellant was 18 years old at the time of the offenses.



                                           -2-
J-S60009-15



weight of the evidence. See N.T. Sentencing, 10/20/14, at 8-12. Again, the

court denied Appellant’s motion.    Id. at 12.   The court then imposed an

aggregate sentence of 8 to 16 years’ incarceration. Appellant filed a timely

notice of appeal, and also timely complied with the court’s order to file a

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

Herein, Appellant presents three issues for our review:

      I) Whether the court erred in allowing the admission of
      testimony by the victim’s parents and Officer John Kuryan
      regarding an alleged prior contact of a presumably sexual nature
      between Appellant and the victim that supposedly occurred
      years before the incident in question where the prior allegation
      lacked foundation and therefore lacked any probative value
      whatsoever and served only to raise speculation in the mind of
      the jury to the prejudice of Appellant[?]

      II) Whether the court erred in failing to grant a defense motion
      for [a] mistrial based on remarks made by the prosecutor during
      his closing argument with respect to character traits of a sexual
      assault victim which served only to prejudice the jury to the
      extent that their verdict was based on something other than the
      evidence presented[?]

      III) Whether the court erred in denying Appellant’s motion for
      extraordinary relief presented in the form of a claim that the
      verdicts were against the weight of the evidence which was
      raised orally at the sentencing hearing held in this matter[?]

Appellant’s Brief at 7-8 (unnecessary capitalization omitted).

      We have reviewed the briefs of the parties, the certified record, and

the applicable law. Additionally, we have reviewed the thorough and well-

crafted opinion of the Honorable James P. Bradley of the Court of Common

Pleas of Delaware County.      We conclude that Judge Bradley’s extensive

opinion accurately disposes of Appellant’s second and third issues on


                                     -3-
J-S60009-15



appeal.3    Therefore, regarding those two issues, we adopt Judge Bradley’s

opinion as our own.4

       Judge Bradley’s opinion also provides a detailed and accurate

assessment of Appellant’s first issue, in which he contends that the court

erred by admitting evidence of a prior incident of sexual assault between

Appellant and the victim.         See TCO at 16-19.   However, we add a brief

discussion of Appellant’s argument that the prior bad act evidence lacked

sufficient foundation to be admissible. Appellant’s Brief at 18. In support of

____________________________________________


3
   We note that in Appellant’s second issue, he challenges two comments
made by the prosecutor during his closing argument.            The trial court
sufficiently addresses one of those comments (in which the prosecutor
remarked that “this is the way a real sex assault victim acts[,]”), essentially
concluding that it was harmless error. See TCO at 25-27; N.T. Trial,
7/18/14, at 58. On appeal, however, Appellant also takes issue with the
prosecutor’s reference to “the reactions of the ‘realistic’ teenage boy.”
Appellant’s Brief at 36; see also N.T. Trial, 7/18/14, at 51 (prosecutor’s
stating, “that is a realistic way that when a teenage boy gets raped by
another boy, that’s the way the disclosure would come out….”). While the
trial court does not specifically discuss this comment, we conclude that the
court’s harmless error analysis applies with equal force to the ‘realistic
teenage boy’ comment, and the combined impact of the two challenged
remarks did not prejudice Appellant to the extent that the jurors had a “fixed
bias and hostility toward [Appellant], thus impeding their ability to weigh the
evidence objectively and render a true verdict.” Commonwealth v. Judy,
978 A.2d 1015, 1020 (Pa. Super. 2009) (stating that “prosecutorial
misconduct does not take place unless the unavoidable effect of the
comments at issue was to prejudice the jurors by forming in their minds a
fixed bias and hostility toward the defendant, thus impeding their ability to
weigh the evidence objectively and render a true verdict”).
4
  We note that Appellant raised two additional issues in his Rule 1925(b)
statement that he has abandoned herein. Thus, we do not adopt the trial
court’s discussion of those issues in its opinion. See TCO at 19-24.



                                           -4-
J-S60009-15



this claim, Appellant relies on Commonwealth v. Washington, 573 A.2d

1123 (Pa. Super. 1990), arguing that that case “stands for the proposition

that, first and foremost, before a ‘prior bad act’ will be deemed probative for

purposes of weighing the evidence against its prejudicial effect, the conduct

alleged must be prima facie established by competent proof that it actually

occurred.” Appellant’s Brief at 18.

       Assuming,       arguendo,        that     Appellant’s   characterization     of

Washington’s holding is correct, we disagree that the Commonwealth failed

to proffer prima facie proof of the prior incident of abuse between Appellant

and the victim.      During the victim’s trial testimony, he indicated that this

was the second time Appellant assaulted him in this same manner.                  N.T.

Trial, 7/15/14, at 188.         The victim explained that a prior incident with

Appellant occurred when the victim was approximately 10 years old. 5 Id. at

188-190. During that encounter, Appellant got on top of the victim while he

slept, but got off when the boys’ father walked in. Id. at 190. The boys’

father corroborated the victim’s testimony, stating at trial that he walked in

when the prior act of abuse was occurring and saw Appellant “on top of” the

victim. N.T. Trial, 7/16/14, at 125-126. While the father was hesitant to


____________________________________________


5
  We note that the trial court states that the prior sexual assault occurred
two years before the present assault. See TCO at 18. However, the record
indicates the assaults occurred four years apart. See N.T. Trial, 7/15/14, at
189 (the victim stating the past incident occurred when he was “[a]round
the age of 10” and the present assault happened when he was 14 years old).



                                           -5-
J-S60009-15



elaborate on what, specifically, Appellant was doing to the victim, the father

did testify that what he saw “caused [him] concern[,]” and he removed the

victim from the room with Appellant. Id. at 126. The family did not allow

Appellant to be alone with the victim for years after.        Id. at 152.    The

Commonwealth also presented evidence that the victim told police officers

that during the prior incident of abuse, Appellant “had touched him,” and

“put it in [the victim’s] butt.” Id. at 286. Additionally, the victim told the

sexual assault nurse who examined him after Appellant’s current assault that

Appellant “has touched him inappropriately in his butt before.” Id. at 229.

      We conclude that the victim’s statements to police and the sexual

assault nurse, along with the testimony of the victim and his father at trial,

was sufficient prima facie evidence that a prior incident of abuse occurred

between Appellant and the victim.        Accordingly, Appellant’s claim that this

prior bad act evidence was inadmissible because it lacked foundation is

meritless. As for Appellant’s other assertions regarding the probative value

of this evidence, its prejudicial impact, and the remoteness of the prior

incident and the current assault, we conclude that the trial court sufficiently

addresses those claims in its opinion.

      In sum, based on the rationale expressed herein, and the analysis

provided by the trial court in its opinion, we conclude that Appellant’s three

issues are meritless and affirm his judgment of sentence.

      Judgment of sentence affirmed.




                                     -6-
J-S60009-15


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/2/2015




                          -7-
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      IN THE COURT OF COMMON PLEAS OF DELAWARE COUNTY, PENNSYLVANIA
                            CRIMINAL DIVISION




 COMMONWEALTH             OF PENNSYLVANIA               CP-23-CR-1030-2013

                          vs.




 Ryan Grace, Esquire, on behalf of the Commonwealth
 Patrick J. Connors, Esquire, on behalf of the Defendant


                                          OPINION
 Bradley, J.                                         FILED:



       On November 12, 2012 a Criminal Complaint was filed based on allegations that the
             1, S, }-!.
Defendant,                  sexually assaulted his fourteen year-old half-brother. The incident

came to the attention of law enforcement after the Victim, his mother and his father appeared

at the Chester-CrozerMedical Center (CCMC) on October 29, 2012. The Victim's mother

reported her suspicion that her son had been assaulted by his older half-brother. A sexual

assault examination was performed at the hospital and hospital personnel reported the

incident to the City of Chester Police Department.

      After a preliminary hearing Defendant was held for court and was charged in a thirteen

count Information with various offenses in connection with this incident. In May of 2013 trial

counsel filed a Notice of Alibi Defense, an omnibus pre-trial motion and a motion to compel




                                                 1

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                                                                                         Circulated 10/14/2015 09:08 AM




     discovery. On June 7, 2013 he entered his appearance           and'   a series of additional pre-trial

     motions were filed. On June 14, 2013 fifteen pre-trial motions were filed including inter a!ia,

     motions to quash and to dismiss based on allegations that the Victim was incompetent, a

     motion to suppress the Victim's statements based on allegations that the Victim was a

     habitual liar and therefore unreliable, a motion to compel a psychiatric evaluation of the
                                     .J·~...

     Victim, motions to exclude "prejudicial terms" at trial, to exclude testimony regarding

    "behavioral indicators," "victim profile evidence," a motion to compel an interview with an

     unnamed expert witness, and a motion to order to compel law enforcement to video-tape

    interviews of the Victim and of witnesses. On June 20, 2013 additional motions were filed

    including, inter a!ia, another motion to compel the Victim to be interviewed by an unnamed

    expert witness, a motion to suppress the Victim's prior statements based on their inherent

    unreliability, a motion to exclude all "uncorroborated" and/or "unsubstantiated" hearsay of

    any state witness and a motion to preclude John Kuryan, an investigating police officer, and

    Emily Donahee, a Children and Youth Services caseworker, from testifying as ''experts"

    regarding their interviews of the alleged victim. Later, in July of 2013 additional motions

    including a motion in limine that set forth a litany of boilerplate requests, the majority of

which were either not pertinent to the matter before the court or which included general

allegations concerning evidentiary matters that are routinely ruled on at trial were filed.

          On July 13, 2013 the Court addressed the outstanding motions2• The vast majority

were denied without prejudice and trial counsel was directed to raise an objection during trial



1 Defendant was represented by Arik T. Ben-Ari, Esquire at his preliminary hearing. Trial counsel Andrew J.
Edelberg, Esquire entered his appearance on June 7, 2013 after filing the initial pre-trial motions.
2
  The Court's rulings were memorialized in twenty-one Orders that were entered on August 1, 2013.

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     should such an objection become appropriate as the trial proceeded. Additional repetitious

     motions followed, and eventually, on July 15, 2014, the trial commenced with jury selection.

            After four days, on July 18, 2014 Defendant's jury trial concluded. The jury returned

     guilty verdicts on the following charges: involuntary deviate sexual intercourse by forcible

    compulsion where the victim is less than sixteen years old3, involuntary deviate sexual

    intercourse of an unconscious person where the victim is less than sixteen years old",

    aggravated indecent assault without consent where the victim is less than sixteen years old",

    aggravated indecent assault of an unconsciousperson where the victim is less than sixteen

    years old" and corruption of minors7•

           Trial counsel immediately made an oral motion for extraordinary relief pursuant to Rule
                                                                                           --·~st~!,.
    704. This motion was denied and on July 25, 2014 trial counsel filed \\Defendant,~

l9Application for Leave to Argue Oral Motion for Extraordinary Relief." Essentiallythis

    motion raised a challenge to the weight of the evidence and cited several allegations of trial

    court error and sought a release on bail pending appeal. This motion was dismissed on

August 1, 2014 following which trial counsel moved to withdraw his appearance. On October

20, 2014 an aggregate sentence of eight to sixteen years of incarceration to be followed by

five years of probation was imposed.

          Following sentencing, on October 21, 2014 trial counsel's motion to withdraw his

appearance was granted. The Court ordered a stay of all proceedings for twenty days to allow

Defendant the opportunity to obtain new counsel and directed the Office of the Public

3 18 Pa.C.S.A. § 3123(a)(l)
~ 18 Pa.C.S.A. § 3123(a)(3)
5
  18 Pa.C.S.A. § 3125(a)(1)
6
  18 Pa.C.S.A. § 3125(a)(4)
7
  18 Pa.C.S.A. § 6301(a)(l)(i)

                                                   3
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Defender of Delaware County to interview him within forty-eight hours so that his

qualifications for representation by that Office could be determined. The Office of the Public

Defender was ordered to notify the court of its determination.

       The Office of the Public Defender, on behalf of the Defendant, filed a timely Notice of

Appeal on November 18, 2014. Appellate counsel was ordered to file a Concise Statement of

Errors on Appeal and after an extension was allowed to enable new counsel time in which to

comply, on February 6, 2015 Defendant's "Statement of Matters Complained of on Appeal,"

was filed.

       Defendant raises the following complaints on appeal:

   1) The trial court erred when it allowed testimony from Officer John Kuryan and the
       Victim's parents regarding prior sexual contact between the Defendant and the Victim
       where the alleged contact was remote in time , lacked probative value and unduly
       prejudiced the Defendant;
   2) The Court erred when it excluded the testimony of crime scene detective Ernest
       Minercha. Detective Minercha's testimony was probative in that Defendant attempted
      to establish "that the investigation of the incident in question was entirely mishandled,"
      and had direct bearing on the defense's ability to challenge the weight of the
      Commonwealth's evidence before the jury;
  3) The trial court erred by failing to grant the Defendant's motion for a mistrial based on
      comments of the prosecutor during closing argument regarding the "character traits of
      a sexual assault victim";
  4) The trial court erred by failing to grant a   motion in limine "to exclude the testimony of
      the victim and all out-of-court statements made by the victim where the testimony and
      statements were the direct result of unduly suggestive interviews conducted by Officer
      John Kuryan and CYS Worker Emily Donahee,"




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      5) The trial court erred by refusing to allow Defendant "the opportunity to present the
         testimony of two DNA experts regarding the significance of the fact that," analysis of
         material secured from the scene was inconclusive regarding identity; and
     6) The trial court erred when it denied Defendant's oral motion for extraordinary relief
         which challenged the weight of the evidence.


                                      Weight of the Evidence


        Addressing first Defendant's challenge to the weight of the evidence supporting the

 verdict, although the Defendant did not file post-sentence motions, upon the jury's return of

 the verdict trial counsel orally renewed his motion for judgment of acquittal. See N.T. 7/18/14

 p. 147. This motion was denied and before sentencing, on October 20, 2014 trial counsel

 again orally challenged the weight of the evidence. See N.T. 10/20/14 pp. 8-12.

 Pennsylvania Rule of Criminal Procedure 607(A) provides that a claim that a verdict is against

 the weight of the evidence must be raised before the trial court and recognizes an oral motion

 made before sentencing, as a sufficient method to place the matter before the trial court,

thus preserving the issue for review on appeal. See Pa.R.Crim.P. 607; 720(B)(1)(c).

       If the court determines that a verdict is against the weight of the evidence, a

defendant will be awarded a new trial. See Commonwealth       v. Widmer, 744 A.2d 745, 751 (Pa.

2000). A motion for new trial on the grounds that the verdict is contrary to the weight of the

evidence, concedes that there is sufficient evidence to sustain the verdict and therefore, the

trial court is under no obligation to view the evidence in the light most favorable to the verdict

winner. See Commonwealth v. Clay, 64 A.3d 1049, 1054-55 (Pa. 2013).                         A

motion for a new trial based on a claim that the verdict is against the weight of the evidence


                                                5
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 is addressed to the discretion of the trial court. See Commonwealth v. Widmer, 744 A.2d at

 751-52; Commonwealth v. Brown, 648 A.2d 1177, 1189 (Pa. 1994). A new trial should not be

 granted because of a mere conflict in the testimony or because the judge on the same facts

 would have arrived at a different conclusion. Commonwealth v. Widmer, 744 A.2d at 752. The

 role of the trial judge is to determine whether, notwithstanding all the facts, certain facts are

 so clearly of greater weight that to ignore them or to give them equal weight with all the facts

 is to deny justice. Commonwealth      v. Clay, supra. "[A] new trial should be awarded when the

jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award

of a new trial is imperative so that right may be given another opportunity to prevail."

Commonwealth        v. Clay, 64 A.3d at 1054-55. In reviewing a claim that the verdict is against

the weight of the evidence the court does not sit as the thirteenth juror. A trial judge must do

more than reassess the credibility of the witnesses and allege that he would not have

assented to the verdict if he were a juror. See Commonwealth v. Widmer supra.

          The Victim in this matter is the younger half-brother of the Defendant. The brothers
                                                                                                ("N\oi·hevi)
are four years apart in age and they share a father. The Victim lives with his mother1....                   •



•••        and his maternal grandmother. During the relevant time period the Defendant lived
                                                       (11FetfutY' II
with his paternal Grandmother. The boys' father,                        1   lived in Chester with his

girlfriend and her children. Defendant was a frequent visitor to this home and it was in this

home that the incident that gave rise to these charges occurred.
                             ~\o t1ncy·-
          I n October of 2012-             gave the Victim permission to visit his father at the
      Fo.tvvor~-
h ome -           sha red with his girlfriend. N.T. 7/16/14 pp. 149-152. At the time, the Victim
                           Mui~
was fourteen years old. -testified that normally she did not allow the Victim to


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  spend time with his father because she did not allow her son to be near the Defendant. Id. at
        tY1oth0'1~'>-                         ·
  152. -prohibition arose after an incident occurred years earlier when the Victim

 and the Defendant were at their paternal grandmother's home. At that time the Defendant

 and the Victim were together visiting their fatherf               $. ~           was out and when he

 returned after a night of drinking he found the Defendant ''on top of" the Victim. N.T. 7/16/14
               .~



 pp. 124-26......             told the Defendant to "get off my son," and took the Victim upstairs to

 sleep with him. Id. He told his then-girlfriend not to leave the boys alone and reported the
               ;o-~e->r
 incident to              j • Id. at 124-26; 151.

        At trial the Victim testified that he had a "good" relationship with the Defendant and

 that he "looked up to him." See N.T. 7/15/14 pp. 172-175. In October of 2012 his mother
                                        fil_+h&~
 allowed him to visit his father at -               home. The Victim was at the home on Friday
                          .                                r:::tk!tt<fl             h1v+h0~
night, October 26th talking and spending time with-.                      Id. at 178. -went          out for
                                    fo.Jh«
the evening and later, when-was                   still out, the Defendant arrived. Id. at 178-180. The

brothers talked and played video games in the living room for a couple of hours. The Victim

went upstairs and took some medication. He returned to the living room and fell asleep on

the smaller of two sofas that are in the room. The Defendant was on the larger sofa. Id. at

182.

       A sharp pain from behind him, near his "ass" woke the Victim from his sleep. Id. at

183. His basketball shorts were down around his knees. Id. at 186. The Defendant was the

only other person in the room and the Victim pulled up his pants and asked, "an angry what

are you doing." Id. at 187-88. The two fought. Ms. Anderson heard the commotion and came




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    from the second floor down into the living room and asked about what was going on. Id. at

    187-91. The Victim did not tell Ms. Anderson that the Defendant had assaulted him. Id.

    at 191. When asked why he did not tell Ms. Anderson the Victim explained: ''Because as in

    like the little kid who wanted to be like his brother, I - even though we're here today, even

    though I'm testifying against my brother, I still love my brother. He's family. But justice has to

    be served, please .... I thought I could get over it and just let it go but I couldn't. Id. at 191-

    92.
          f~
          -          returned to the residence the next morning and the Defendant left that

    morning. Id. at pp. 86-90. On Sunday morning the Victim had an argument with his father.

    Id. at 193. His maternal grandmother retrieved him and brought him home to his mother. Id.

at 192; N.T. 7/16/14 pp. 155-56.                        ,Tue Victim's mother, testified that when the

Victim arrived at home he was "hysterlcal." N.T. 7/16/15 p. 185.          r:01:be-v;, calmed the
Victim down and they went to a football game. Id. at 57. That evening the Victim ate dinner,

had a bath and went to bed. Id. at 158.

          On Monday, the next morning,
                                            filothw· & was doing the family laundry. When putting

clothes in the washer she looked at the underwear that the Victim wore the previous day and

saw that "[t]here was blood all over the drawers." Id. at 158. She woke the Victim up and

asked him about the underwear, which appeared to have blood stains on the back. Id. at 160.

The Victim said, he didn't know where the blood came from and ...                    called&,

a     and told him about what she had found. liiiitsaid          that he knew nothing about it.•·
~(Y~                 ~
-         informed             that she was taking the Victim to the hospital and that she would

be picking him up en route. Id. at 161. During the drive to the hospital        O)Jj;hv    J   repeatedly


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  asked the Victim about what had happened. The Victim would not answer and provided no

 details concerning what had happened at his father's house, but only cried during the trip. Id.

        At CCMC Cindy McAlinney, a registered nurse, forensic nurse examiner and sexual

 assault nurse examiner, conducted an examination. N.T. 7/16/14 pp. 212-215. She reviewed

 information that was provided by the Victim1s mother and father and began her examination

 by interviewing the Victim. Id. at 227. The Victim reported that "he was asleep and nothing

 happened." Id. at 229. He told her that he had diarrhea and that was what was in his

 underwear. Id. Ms. McAlinney observed that the Victim was "oriented," but sleepy, tired and

 "very quiet" and that he was saying that nothing happened. Id. at 231, 248. She conducted a

 physical examination and observed that there was redness around the opening of his anus

and that there was a tear that measured about a half centimeter. Id. at 232-33, 257. Ms.

McAlinney testified that the tear and redness could be consistent with blunt force trauma. Id.

at 234. She acknowledged on cross-examination that she could not say what caused the tear

or how long it had been there. Id. at 258. Anal and oral swabs were also taken in the course

of the physical exam. Id. at 235, 266.

       The samples procured were submitted to the PennsylvaniaState Police Laboratory for

DNA testing and analysis. The results of the testing were entered into evidence by way of

stipulation. The relevant facts stipulated to follow. Blood-stained underwear and rectal swabs

that were taken from the Victim and a known DNA sample of the Defendant were submitted

to the PSP DNA laboratory. Lauren Force, a known forensic DNA scientist who is qualified in

the field as an expert in forensic DNA analysis attempted a comparison between the known

DNA sample and the blood-stained underwear. Test results were inconclusive. Carolyn Oleyar,


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  a forensic scientist and a qualified expert in serology who is employed by the PSP Harrisburg

  Serology Unit, examined the rectal swabs. No hair or skin was found. Sperm was found. Ms.

  Force attempted a DNA comparison between the sperm found on the rectal swab and

 Defendant's known DNA sample. The attempt was inconclusive because there was an

 insufficient quantity of DNA in the sperm fractions so that no comparison could be made. N.T.

 7/17/14 pp. 132-33.

        The Commonwealth's final witness was Officer John Kuryan of the City of Chester

 Police Department.    Officer Kuryan testified that he was called to CCMC on October 29, 2012

 to investigate the possible sexual assault of a juvenile. N.T. 7/16/14 p. 274. There he spoke

 with a patrol officer who had responded to the scene, the Victim's mother and father and with
                                   fc;tltyif
 Nurse McAlinney. Id. at 275-76.               said that the Victim was at his home and that the

 Defendant had been there for a few hours when there were several other children in the
        futf1i-cr
house. -was            not at home.
                                      ;o+hor•      told Officer Kuryan about the underwear that
                      fr.di:_&
she had discovered.-also              told Officer Kuryan about a prior occasion where he walked

in on his two sons ''in possibly a sexual act." Id. at 278-80. The Victim was lying in an

examining room bed nearly asleep. Officer Kuryan did not interview him but asked        .@.@.(.Jr•
to bring her son to the police station the next day. Id. at 280-81.
                             ffi._~
       On October 30, 2012 -              and the Victim went to the City of Chester Police

Department. Id. at 282. Officer Kuryan told the Victim that he was "looking into" what had

happened over the weekend and why he [the Victim] was at the hospital. Id. at 283-84. The

Victim was "combative" and changed the subject. Id. at 286. Officer Kuryan told the Victim

that he knew about the blood-stained underwear and asked how he got it. Id. at 286. The


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    Victim was not willing to answer the question but told Officer Kuryan that the other children

    were at his father's home during the weekend and that the Defendant was also there. Id. at

    286. The Victim continued on and told Officer Kuryan about an incident that occurred years

    earlier at his grandmother's house when Defendant sexually assaulted him. Id. at 286. He

    stated that the past weekend was the first time the brothers were together since that

    incident. Id. Concerning the current allegation, the Victim said that he didn't want to talk

    about it and that he and his brother were not gay. Id. at 288. He stated that he was in the

    living room alone with the Defendant, that they played video games and wrestled and that at

    some point they woke Ms. Anderson and she came into the living room to see what was going

    on. Id. at 288. When Officer asked about the underwear and the redness and tear that were

    reported by Nurse McAlinney the Victim offered the explanation that he had diarrhea from his

father's cooking. Id. at 289-90. Officer Kuryan described the Victim as combative and

argumentative during the interview. Id.

          After this interview Officer Kuryan contacted Children and Youth Services and reported

a possible sexual assault. Id. at 292. On November 1, 2012 Emily Donahee of Children and

Youth Services interviewed the Victim. During the course of the interview the Victim told Ms.

Donahee that the Defendant "mlqht have did it to me in my sleep." As the interview

progressed the Victim said, "Yeah, He definitely did it in my sleep." See Exhibit D-1.8 She

shared her interview with Officer Kuryan and he continued his investigation. Id. at 298; See

also Exhibit D-1. Officer Kuryan met with Ms. Anderson at her home and crime scene officers

went to the scene and took a sofa cushion cover into custody for testing. Id. at 297. Officer


8This tape recorded interview was played for the jury in its entirety during the course of trial counsel's cross
examination of the Victim. See N.T. 7/15/14 p. 220.

                                                        11
                                                                             Circulated 10/14/2015 09:08 AM




    Kuryan attempted to contact the Defendant and left his card and a request for the Defendant
                                                                                 fi' '-          'Fe fy,e,v
    to contact him. These efforts were unsuccessful.He also tried to meet with     £      I.   llliiia
    agreed to meet with the officer but did not appear at the designated date and time of the

    pre-arranged meeting. Id. at 300.

          Defendant was arrested on November 13, 2012. After his arrest Officer Kuryan advised

 the Defendant of his Miranda rights. N.T. 7/17/12 p. 5, 9, 10. The Defendant waived his

 rights and complied with Officer Kuryan's request for a Buccal swab sample for DNA testing.

 Id. at 11. An interview followed. Defendant admitted that he was with his brother at•
n.t+v1«i.~
-         house but claimed that he and the Victim played video games and that he never

touched his brother. Id. at 12-13.

          On November 14, 2012 Officer Kuryan and Ms. Donahee met with the Victim at his

school. The intervlew was tape-recorded and that recording was played for the jury during

the course of trial counsel's cross-examination of the Victim. See N.T. 7/16/14 pp. 10-52;

Exhibit D-2. During the course of this interview the Victim stated that the Defendant "did it" to

him and then he felt it and woke up. Id. at 35. He told Officer Kuryan and Ms. Donahee that

Defendant put his penis in his butt and that he woke up and pushed Defendant out. Id. at 37.

Additionally, the Victim said that Defendant had done this once before at his grandmother's

house when the Victim was about ten years old. Id. at 37-38. The Victim provided additional

information about the circumstances that surrounded the current incident and the interview

was concluded. Id. at 38-51.

         Trial counsel cross-examined each Commonwealth witness at length. In cross

examining the Victim he suggested that the Victim was an admitted habitual liar, that he had


                                                12
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  been diagnosed with various mental disorders and that the influence of medications rendered

  his testimony and his account of events unreliable. See g,g. N.T. 7/15/14 pp. 208 -09, 215-

  16. He challenged the Victim1s truthfulness with various inconsistent statements and with his

  failure to immediately report the assault to Ms. Anderson,   M~·tt}CV J ,, -           Nurse

  McAlinney, and Officer Kuryan. Counsel played both the November 1st taped interview by Ms.

 Donahee and the November 14th interview with both Officer Kuryan and Ms. Donahee in

 court in an effort to convince the jury that Officer Kuryan and Ms. Donahee employed unduly

 suggestive interview tactics and that the Victim tailored his story to satisfy the interviewers.

 He attempted to discredit the Victim's testimony through questions that were designed to lead

 the jury to the conclusion that he was a troubled kid who felt unloved by his parents, whose

 father was a drunk, who sought attention by lying and who wished that he had his own

 "blood" baby to love. See g_,_g. id. at 227.

        Trial counsel's cross examination of Officer Kuryan was designed to portray a sloppy

and incomplete investigation by an incompetent police officer. He raised the fact that the City

of Chester Police Department did not have a written protocol to be used in sexual assault

cases. N.T. 7/17/12 p. 22-23. He questioned Officer Kuryan's interview skills and style, the

fact that the interviews were not videotaped and inquired into the extent of his investigation

into Defendant's alibi defense. See N.T. 7/17/15 p. 21-22. Trial counsel raised a myriad of

perceived errors in Officer Kuryan's investigation, suggesting among other things that his

failure to consult with other law enforcement agencies during his investigation including the

Federal Bureau of Investigation, the PennsylvaniaAttorney General's Internet Crimes Against

Child Taskforce, the national District Attorney's Association, and the Pennsylvania State Police,


                                                13
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 before preparing the Affidavit of Probable Cause that is attached to the Criminal Complaint

 rendered his investigation deficient and he argued in his closing that Officer Kuryan was a

 "lazy" and "incompetent" investigator who has "shown no aspirations of achieving any kind of

 significant promotion other than an officer," who "targeted" the Defendant.   Id. at 21-29;

 7/18/14 pp. 8-25. He raised the fact that Officer Kuryan listened to the November 1st

 interview but did not have it transcribed before he filed the Affidavit of Probable Cause. N.T.

 7/17/14 p. 34. He questioned the Officer's failure to videotape interviews with the Victim and

with other witnesses. Id. at 36-39. Trial counsel suggested that Officer Kuryan was

incompetent and that his credentials were inadequate. Id. at 46-48 . He suggested, among

other things that the crime scene investigation was lacking because photographs were not

taken and suggested that Officer Kuryan should have used his personal cell phone or

purchased a disposable camera to perform the task. Id. at 41-50.

       Defendant testified in his defense and a series of character witnesses testified as well.

Defendant testified that on Friday, October 26, 2012 he went on a trip to Dorney Park. N.T.

7/17/15 p. 314. He left at 5:00 p.m. and returned at about 1:00 a.m. Id. at 314-317. At about
                      ~-
1:15 a.m. he went to~            home. Id. at 318. The Defendant and the Victim played video

games in the living room of the home. At first other children were there but later the brothers

continued to play alone. At some point the brothers were "play fighting" and Ms. Anderson

went down to the living room and told them to be quiet because they were waking the baby.

Id. at 322. They continued to play video games until about 3:15 a.m. when Ms. Anderson

returned and told them to "shut it down." Id. at 324. He denied that he had ever assaulted

his brother. Id. at 326-339. Defendant recalled his November 13, 2012 interaction with


                                               14
                                                                                 Circulated 10/14/2015 09:08 AM




  Officer Kuryan after his arrest. At that time, he testified,   he told Officer Kuryan that he did

  nothing and that the officer should check with his father again because -was

 previously locked up for rape,   liiiifhad      a long criminal record and that ~lept with

 the Victim. Id. at 337-39. See also id. at 344-47.

         The jury's verdict does not "shock the conscienceof the court." The Victim and the

 Defendant spent time alone together during the early morning hours of Saturday, October 27,

 2012. The Victim was asleep and he woke up and pushed the Defendant off and out of him

 when he felt the Defendant's penis in his butt. The Victim did not immediately report the

 assault but when his mother discovered his blood-stained underwear he was taken to CCMC

 for an examination. Nurse McAlinneyobserved that the Victim's anus was red and a small

 tear was present. Through an anal swab it was determined that sperm was present.

The Defendant and the Victim each testified as to his own recollection of events and each was
                                ~,cv'iS
extensively cross examined.                testimony suggested that this was not Defendant's first

attempt to sexually assault his brother, lending credibility to the Victim's testimony that the

Defendant assaulted him. The jury weighed the evidence and made its determination

regarding the credibility of the witnesses. The Defendant invites the court to commit an abuse

of discretion by re-assessingthe credibility of the witnesses and to conclude that the

Defendant's testimony was credible and that his testimony, along with that of his character

witnesses, was "so clearly of greater weight that to ignore [it] or to give them equal weight

with all the facts is to deny justice." See ~- Commonwealth v. Widmer, supra. However, all

of the evidence demonstrates that the Victim was sexually assaulted and the jury found that

the credible evidence proved beyond a reasonable doubt that Defendant was the perpetrator.


                                                 15
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 Defendant's "welqht of the evidence" claim is unfounded and does not entitle him to a new

 trial.

                                             Prior Bad Acts

          Generally, evidence of distinct crimes or other bad acts is not admissible against a

 defendant being prosecuted for another crime solely to show his bad character and his

 propensity for committing criminal acts. However, such may be admissible in special

 circumstances where the evidence is relevant for some other legitimate purpose and not

 merely to prejudice the defendant by showing him to be a person of bad character. See ~·

Commonwealth v. Horvath, 781 A.2d 1243, 1246 (Pa.Super. 2001). Pennsylvania Rule of

Evidence 404(b), which embodies this principle, provides in pertinent part:

                 (1) Evidence of other crimes, wrongs, or acts is not admissible to prove the
          character of a person in order to show action in conformity therewith.
                 (2) Evidence of other crimes, wrongs, or acts may be admitted for other
          purposes, such as proof of motive, opportunity, intent, preparation, plan,
          knowledge, identity or absence of mistake or accident.
                 (3) Evidence of other crimes, wrongs, or acts proffered under subsection
          (b)(2) of this rule may be admitted in a criminal case only upon a showing that
          the probative value of the evidence outweighs its potential for prejudice.



See also Commonwealth v. Judd, 897 A.2d 1224 (Pa. Super. 2006) (evidence of distinct

crimes is inadmissible solely to demonstrate a defendant's criminal tendencies but is

admissible to show a common plan, scheme or design embracing commission of multiple

crimes, or to establish the identity of the perpetrator, so long as proof of one crime tends to

prove the others).



                                                  16
                                                                             Circulated 10/14/2015 09:08 AM




        In Commonwealth v. Lomax, 8 A.3d 1264 (Pa. Super. 2010) the defendant was

 charged with raping his eleven-year old niece. The incident for which he was convicted took

 place in 2008. The defendant entered the room where the victim was sleeping, removed her

 clothing and his own, put his penis in her vagina and her mouth and then told her not to tell

 anyone. Evidence of an earlier 2007 incident that was witnessed by the victim's aunt was

 admitted into evidence. Both the victim and her aunt testified that in 2007 the defendant

 rubbed against the victim as he passed her in a hallway in her house. The victim's aunt felt

 that the defendant was "too close" to the victim and asked what was going on. The defendant

said "nothlnq." Following this incident the defendant did not return to the victim's home for

several months.

       On appeal the defendant claimed that the admission of this evidence constituted an

abuse of discretion. In support he argued that the prior act had no probative value because it

was not sufficiently similar to the rape, that the prior act was too remote in time to have

probative value and that even if the evidence had probative value, it was outweighed by its

potential for creating unfair prejudice, where it would cause the jury to be predisposed to

finding he committed the crimes charged. After considering each of these grounds the

Superior Court rejected the defendant's claim. Defendant's prior conduct was admissible to

show the defendant's continuing and escalating conduct as it related to his victim. The fact

that the behavior was not exactly the same did not preclude its admissibility because it

demonstrated "a passion or propensity for illicit sexual relations with the particular person

concerned in the crime on trtal." Id. at 1267, The Court found the familial relationship

between the parties and the continuing and escalating nature of the defendant's sexual


                                               17
                                                                                Circulated 10/14/2015 09:08 AM




 misconduct aimed at his niece significant. Finally, a ten-month gap between the two incidents

 did not render is too remote in time to be probative.

        Similarly in this case a familial relationship exists. The assaults took place in similar

 circumstances when the brothers were alone at night and their father was away from home.
~h{,v'
                                                                                11
.,saw the Defendant and the victim and ordered the Defendant to "get off my son.

 He took the Victim upstairs to sleep in his room, away from the Defendant and reported the

 incident to ••••        the Victim's mother. Thereafter the victim was not allowed to spend

time with the Defendant. The current incident occurred approximately two years later.

However, any claim that the first incident was too remote in time is negated by the fact that

during the time between the two incidents the brothers were never together. This was the

first time that the Defendant had the opportunity to spend time with the Victim and his first

opportunity to commit another sexual act against him. C.f, Commonwealth v. O'Brien, 836

A.2d 966, 971 (Pa. Super. 2003) (prior crimes that occurred in 1982 and 1985 were

admissible at trial for 1996 offense where defendant was incarcerated from 1985 to 1990).

       Under these circumstances the probative value of the evidence outweighed its inherent

prejudice. The Defendant admitted that he was alone with the Victim but claimed that he

never touched his brother inappropriately. In his statement to police he suggested that his

father could be the culprit, placing the identity of the Victim's assailant at issue. As in Lomax,

supra, this evidence demonstrated the Defendant's propensity for illicit sexual relations with

the Victim and was admissible. Additionally, undue prejudice was avoided when in closing

instructions the Court advised the jury that information concerning the earlier incident was for




                                                18
                                                                              Circulated 10/14/2015 09:08 AM




  them to consider only as background only and that Defendant could only be found guilty for

  the October 2012 incident for which he was charged. N.T. 7/18/13 p. 117-18.

           Admissibility of the Victim's Testimony and Evidence of His Out-of-court Statements

         Next, Defendant claims that the trial court erred in "failing to grant a motion to exclude

  the testimony of the victim and all out-of court statements made by the victim where the

 testimony and statements were the direct result of unduly suggestive interviews conducted by

 Officer John Kuryan and CYS Worker Emily Donahee." This is a claim that gives rise to the

 question of whether the Victim's was rendered incompetent to testify by suggestive interview

 techniques. See Commonwealth v. Delbridge, 855 A.2d 27, 39, 40 (Pa. 2003) (an allegation

 that the witness's memory of the event has been tainted raises a question of competency)

        In Pennsylvania, the general rule is that every witness is presumed to be competent to

 testify and the determination of a witness's competency rests within the sound discretion of

 the trial court. See~   Commonwealth v. Judd, 897 A.2d 1224, 1228 (Pa. Super. 2006)

 citing Commonwealth v. Delbridge, 855 A.2d 27, 39 (Pa. 2003). However, our Supreme Court

has recognizedthat the implantation of false memories or the distortion of real memories

caused by interview techniques of law enforcement, social service personnel, and other

interested adults, that are so unduly suggestive and coercive as to infect the memory of a

witness can render that witness incompetent to testify. Commonwealth v. Delbridge, supra,.

In Delbridge our Supreme Court examined the concept of "taint" where the challenged

testimony involved a six-year-old witness and held that taint is a legitimate question for

examination in cases involving complaints of sexual abuse made by young children. "Where it

can be demonstrated that a witness's memory has been affected so that their recall of events


                                               19
                                                                              Circulated 10/14/2015 09:08 AM




 may not be dependable, Pennsylvania law charges the trial court with the responsibility to

 investigate the legitimacy of such an allegation." Commonwealth v. Delbridge, 855 A.2d at 40

 citing Commonwealth v. Rolison, 374 A.2d 509 (Pa. 1977)

        "A person is incompetent to testify if the court finds that because of a mental condition

 or immaturity the person:(1) is, or was, at any relevant time, incapable of perceiving

 accurately; (2) is unable to express himself or herself so as to be understood either directly or

 through an interpreter; (3) has an impaired memory; or( 4) does not sufficiently understand

 the duty to tell the truth". Pa.R.E.601. See also Raschev. McCoy, 156 A.2d 307, 310 (Pa.

 1959) (competency requires (1) "capacltv to communicate, including as it does both an ability

to understand questions and to frame and express intelligent answers, (2) mental capacity to

observe the occurrence itself and the capacity of remembering what it is that she is called to

testify about and (3) a consciousnessof the duty to speak the truth.") In Delbridge the Court

explained that "[tlaint speaks to the second prong of the competency test established in

Rasche, "the mental capacity to observe the occurrence itself and the capacity of

remembering what it is that [the witness] is called upon to testify about." 855 A.2d at 40.

       The proponent of a claim that a witness is incompetent to testify because unduly

suggestive tactics have rendered him incompetent must, at the outset, show some evidence

of taint. After this initial this burden has been met the party alleging taint bears the burden of

production of evidence of taint and the burden of persuasion at a competency hearing to

show taint, sufficient to overcome the presumption of competency, by clear and convincing

evidence. Delbridge, 855 A.2d 27, 40-41. "The clear and convincing burden accepts that some

suggestibility may occur in the gathering of evidence, while recognizing that when considering


                                               20
                                                                                          Circulated 10/14/2015 09:08 AM




      the totality of the circumstances, any possible taint is sufficiently attenuated to permit a

     finding of competency." Id. When determining whether a party has made a sufficient

     showing of some evidence of taint so as to require a hearing, the totality of the circumstances

     surrounding the revelation of the allegations will be examined. Id.

            Although trial counsel filed a plethora of pre-trial motions in this matter, a motion

     raising a competency challenge based on the allegedly unduly suggestive interviews

     conducted by Officer Kuryan and Ms. Donahee is not among them. "Defendant,•••
     1. ~. N.)s
    ...     Motion to Dismiss and/or Quash Due to Mental Incompetence and/or Defect of the

    Alleged Victim, or, in the Alternative, to Order a Competency Evaluation of the Alleged

    Victim," filed on June 14, 2013 sets forth the Victim's age9, and allegations that he has been

    treated for Bipolar Disorder and Attention Deficit Disorder, that he is a "habitual liar," that his

    father does not trust him and "he may have behavioral issues," and that investigators failed to

    properly inquire into the Victim's mental status regarding his ability to truthfully report and

    understand events. The motion is full of general allegations that suggest that the Victim might

    not be a credible witness but is devoid of allegations of fact that suggest either that he is

    mentally incompetent or that show evidence of taint and Defendant, having failed to meet his

    initial burden, was not entitled to a hearing on this issue.

           Finally, becausethe Victim was almost sixteen years old at the time he testified his

competency cannot be challenged based on age alone. Rather, his ability to correctly

remember the events in question was properly a question of credibility, and not a question of

competency. See Commonwealth v. Judd, supra.


9
 The Victim was fifteen years old when he testified at trial. N.T. 7/15/14 p. 169. He would turn sixteen in one
month i6iAugustW 2014.

                                                       21
                                                                                 Circulated 10/14/2015 09:08 AM




                                    Witnesses Precluded From Testifying

           Next, Defendant claims that the Court erred by excluding the testimony of crime scene

  detective Ernest Minercha and two DNA experts. Generally, \\All relevant evidence is

 admissible/    and evidence is relevant if it has any tendency to make a fact of consequence in

 determining the action more or less probable than it would be without the evidence. See Pa.

 R.E. 401 & 402. See also Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008). However,

 Rule 403 of the Rulesof Evidence provides for the exclusion of relevant evidence if its

 probative value is outweighed by a danger of,    inter a!ia,   "undue delay, wasting time, or

 needlessly presenting cumulative evidence." Pa.R.E. 403. The trial court's determination as to

 whether evidence is relevant or whether relevant evidence may be excluded pursuant to Pa.R.

 E 403 is a matter within the court's discretion. Commonwealth v. Marshall, 568 A.2d 590 (Pa.

 1989).

          During the Defendant's case trial counsel indicated that he intended to call crime scene

investigator Detective Ernest Minercha to testify. N.T. 7/17/14 p. 214. Trial counsel was asked

for an offer of proof. In response he stated that he was calling Detective Minercha to show

"reasonable doubt of failure to investigate." Id. at 215. Trial counsel explained that he

intended to ask Detective Minercha "to discusswhat he was directed or not directed to do by

[Officer Kuryan.] Id. While Detective Minercha was called to the crime scene, as testified to

by Officer Kuryan, see id. at 43-95, the only evidence he seized from the premises was a sofa

cushion cover that appeared to be stained with bodily fluids and was submitted for DNA

testing. No additional evidence from the scene was offered into evidence by the

Commonwealth.


                                                22
                                                                              Circulated 10/14/2015 09:08 AM




        After considering trial counsel's offer of proof, the Court ruled that Detective Minercha's

 testimony would not be allowed. Concerning any biological material that was collected from

 the cushion cover, no results of DNA testing were offered into evidence by the

 Commonwealth and it was agreed that testing was inconclusive. Concerning the contention

 that Detective Minercha's testimony would lend credence to Defendant's claim that the

 investigation in this matter was sloppy and incomplete, the testimony would be cumulative.

 On cross-examination Officer Kuryan admitted that he and his crime scene investigators did

 not visit the scene until several days after the incident occurred, that he did not take

 photographs or measurements at the scene, that he did not ask crime scene investigators to

take photographs and measurements and that none were taken. He testified that he did not

ask for blue jeans or other clothing that the Victim may have worn, and that he followed no

known protocols. Id. at 49-55, 77-95, 127. These facts were not in dispute and trial counsel's

offer of proof suggested that the testimony would be merely cumulative and that it had no

additional probative value. See Commonwealth        v. Flamer, 53 A.3d 82, 88 (Pa. Super. 2012)

(additional evidence of the· same character as existing evidence that supports a fact

established by the existing evidence is cumulative); Commonwealth v. G.D.M., Sr., 926 A.2d

984, 989 (Pa. Super. 2007) (Evidence may be excluded if its probative value is outweighed by

the "needless presentation of cumulative evidence).

       Lauren Force, a forensic DNA analyst with the PSP, and Carolyn Oleyar, a forensic

scientist and a qualified expert in serology, were subpoenaed to testifyfor the defense.

Although trial counsel stipulated to the fact that attempts at a DNA comparison between

Defendant's known DNA sample and the biological material found in the Victim's underwear



                                               23
                                                                                 Circulated 10/14/2015 09:08 AM




  and the sperm on the rectal swab yielded inconclusive results, see N.T. 7/17/14 pp. 132-33,

  trial counsel wanted the jury to hear a broad description of the witnesses' expertise, testing

  procedures, how they determine whether results are conclusive or inconclusive and the fact

  that an inconclusive result means "it cannot be linked to the identity of the Defendant." N.T.

  7/16/14 p, 308. Because the parties stipulated that the DNA test results were inconclusive this

 testimony was simply no longer relevant. It has no tendency to make a fact of consequence

 more or less probable than it would be without the evidence. Further, it is respectfully

 suggested that the broad survey of the field of DNA analysis that trial counsel intended would

 serve only to mislead the jury and cause undue delay. In the circumstances of this case and

 given the phrasing of the stipulation that was entered into evidence, the meaning of the term

 "inconclusive" as applied here could only be understood to mean that Defendant could not be

 tied to this event through DNA testing. The meaning of the term was easily understood by an

 ordinary layman without additional expert explication, and the Defendant was not prejudiced

 by the exclusion of this testimony .

                                             Motion for Mistrial

        Finally, Defendant claims that the Court erred by denying trial counsel's motion for a

mistrial following the prosecutor's closing argument. It is alleged that the prosecutor

commented on facts that were not in evidence when he referred to the "character traits of a

sexual assault victim" and that these comments resulted in prejudice to the Defendant. See

Statement of Matters Complained of on Appeal, ,i III. The allegedly objectionable comment,

which was made in the course of a closing argument that focused on the credibility of the

Victim, follows: ''Victims like [this Victim,] real victims feel embarrassed. Fakers, liars, feel


                                                 24
                                                                               Circulated 10/14/2015 09:08 AM




  self-righteous. Think about that. He can't fake these things. He would have no way of

  knowing that this is the way real sex assault victim acts(sic). And he would-he's not

 advanced enough to act, to actually perform this well." N.T. 7/18/14 p. 58.

        "The trial court is vested with discretion to grant a mistrial whenever the alleged

 prejudicial event may reasonably be said to deprive the defendant of a fair and impartial trial.

 In making its determination, the court must discern whether misconduct or prejudicial error

 actually occurred, and if so, ... assess the degree of any resulting prejudice." Commonwealth

 v. Judy, 978 A.2d 1015, 1019 (Pa. Super. 2009). "The remedy of a mistrial is an extreme

 remedy required 'only when an incident is of such a nature that its unavoidable effect is to

 deprive the appellant of a fair and impartial tribunal.' With specific reference to a claim of

 prosecutorial misconduct in a closing statement, it is well settled that '[i]n reviewing

 prosecutorial remarks to determine their prejudicial quality, comments cannot be viewed in

isolation but, rather, must be considered in the context in which they were made. fl/ Id.

(citations omitted). "[P]rosecutorial misconduct does not take place unless the unavoidable

effect of the comments at issue was to prejudice the jurors by forming in their minds a fixed

bias and hostility toward the defendant, thus impeding their ability to weigh the evidence

objectively and render a true verdict. Id. at 1020. In Judy, supra, the Court noted that on

review, an appellate court is charged with determining "whether a defendant received a fair

trial, not a perfect trial." Id. citing Commonwealth v. Rios, 721 A.2d 1049, 1054 (Pa. 1998).

       In considering Defendant's claim the prosecutor's comments must be examined within

the context of defense counsel's conduct. Trial counsel devoted a significant portion of his

closing argument to portraying the Victim as a habitual liar, a mentally challenged individual


                                                25
                                                                               Circulated 10/14/2015 09:08 AM




  who was medicated with "copious amounts of medication" that hampered his ability to recall

  and that he functioned in an altered state. He argued that the Victim lied to get attention and

  that he would say anything to get anyone to like him. See~·       id. at 12, 25-27, 34-35, 42-43.

 In his testimony the Victim admitted that he lied to his parents and authorities when he first

 reported that nothing had happened but that he later told the truth to Officer Kuryan and Ms.

 Donahee and that he was telling the truth at trial. In response to trial counsel's argument,

 the prosecutor suggested, among other things, that the Victim's repeated denials lent

 credibility to his later reports and to his trial testimony. He suggested that a teenaged boy

 would be embarrassed to recount non-consensual sex with another male, especially his

 brother. When viewed in larger context it is apparent that, although the prosecutor made a

 single reference to the term "sex assault victim," in fact he was urging the jury to consider

that this teenaged boy's behavior was ''realistic," and how it bore on his credibility;

               I mean, just imagine yourselves, while you're back in the deliberation
        room. Try to imagine if you have to turn and tell each other about your last
        consensual adult sexual experience. Try to imagine that. Looking someone in the
       eye and telling them about the last time you had a sexual experience and that's
       going to be consensually. Imagine how hard it is to talk about it when it was non-
       consensual and you're a kid. He didn't want anyone to think he's gay. He didn't
       want to talk about this. He's not looking for attention. Victims like [this Victim,]
       real victims feel embarrassed. Fakers, liars, feel self-righteous. Think about that.
       He would have no way of knowing that this is the way a real sex assault victim
       acts. And he would - he's not advanced enough to act, to actually perform this
       well.
Id. at 58. See also id. at 51-58.




                                                26
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       The prosecutor made no other reference to "sex assault victims" or to the behavioral

characteristics of victims who are sexually assaulted. The isolated and incorrect use of this

single term was perhaps unfortunate but it did not work to prejudice the jurors by forming in

their minds a fixed bias and hostility toward the Defendant. Their ability to weigh the

evidence objectively and render a true verdict was not impeded and most importantly this

single reference did not deny the Defendant the fair trial to which he is entitled.

       In light of the foregoing it is respectfully submitted that judgment of sentence

should be affirmed.




                                                   BY THE COURT:




                                                                                                                      c..r,


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                                              27
