J-S49023-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

RONALD E. BENSON

                            Appellant               No. 2923 EDA 2015


              Appeal from the Judgment of Sentence July 2, 2015
               In the Court of Common Pleas of Delaware County
              Criminal Division at No(s): CP-23-CR-0003663-2014


BEFORE: PANELLA, OLSON, JJ. and STEVENS, P.J.E.*

MEMORANDUM BY OLSON, J.:                              FILED JULY 14, 2016

       Appellant, Ronald Benson, appeals from the judgment of sentence

entered on July 2, 2015 following his jury trial convictions for involuntary

deviate sexual intercourse with a child less than 13 years of age, aggravated

indecent assault of a person less than 13 years of age, indecent assault of a

person less than 13 years of age, and endangering the welfare of a child.1

We affirm.

       These convictions arose from Appellant’s long-term sexual abuse of his

13-year-old daughter C.L, which began sometime around her tenth birthday.

On July 2, 2015, the trial court sentenced Appellant to 84 to 168 months’

incarceration, followed by an aggregate term of 10 years’ probation. On July
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1
    18 Pa.C.S.A. §§ 3123(b), 3125(b), 3126(a)(7), and 4304, respectively.




*Former Justice specially assigned to the Superior Court.
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10, 2015, Appellant filed a post-sentence motion for arrest of judgment and

a new trial. The motion argued that the trial court erred in refusing to admit

evidence that L.L.,2 the victim’s mother, worked as a prostitute and that she

caused the victim to contract chlamydia. The court denied that motion on

September 1, 2015. This appeal followed.3

       Appellant presents the following issues for review:

          I.     Did the [trial court] err in denying admission by
                 [Appellant] of evidence regarding Commonwealth
                 witness    [L.L.]’s   work    as   a   prostitute?

          II.    Did the [trial court] err in denying admission by
                 [Appellant] of evidence regarding the initial charges
                 relating to Commonwealth witness [L.L.]’s conviction
                 of the misdemeanor offense of disorderly conduct?

          III.   Did the Commonwealth fail to prove the elements of
                 the offenses beyond a reasonable doubt?

Appellant’s Brief at 5.

       Appellant directs his first two issues to the trial court’s exclusion of

defense evidence. We state our well-established standard of review:

       The admission or exclusion of evidence is within the sound
       discretion of the trial court, and in reviewing a challenge to the
       admissibility of evidence, we will only reverse a ruling by the
       trial court upon a showing that it abused its discretion or
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2
    We use initials in place of L.L.’s name to protect her identity.
3
    On September 29, 2015, the trial court ordered Appellant to file a
statement pursuant to Pa.R.A.P. 1925(b). Appellant timely complied on
November 13, 2015. The trial court issued an opinion pursuant to Pa.R.A.P.
1925(a) on December 10, 2015.



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      committed an error of law. Thus, [this Court’s] standard of
      review is very narrow.       To constitute reversible error, an
      evidentiary ruling must not only be erroneous, but also harmful
      or prejudicial to the complaining party.

Commonwealth v. Lopez, 57 A.3d 74, 81 (Pa. Super. 2012). “We will not

disturb   a   trial   court’s   ruling   unless   that   ruling    reflects   manifest

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of

support as to be clearly erroneous.” Commonwealth v. Einhorn, 911 A.2d

960, 972 (Pa. Super. 2006) (citation and quotations omitted).

      Relevance is the threshold question for admissibility of evidence.

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008).                      “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.”              Commonwealth v.

Drumheller, 808 A.2d 893, 904 (Pa. 2002). We previously determined:

          Trial judges generally enjoy broad discretion regarding the
          admission of potentially misleading or confusing evidence.
          Trial judges also have the authority to exclude relevant
          evidence if its probative value is substantially outweighed
          by the danger of unfair prejudice or confusion. See Pa.R.E.
          403 (“Although relevant, evidence may be excluded if its
          probative value is outweighed by the danger of unfair
          prejudice, confusion of the issues or misleading the jury.”).
          Furthermore, the function of the trial court is to balance the
          alleged prejudicial effect of the evidence against its
          probative value, and it is not appropriate for an appellate
          court to usurp that function.

Commonwealth v. Parker, 882 A.2d 488, 492 (Pa. Super. 2005) (citations

omitted), affirmed on other grounds, 919 A.2d 943 (Pa. 2007).


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      In his first issue presented, Appellant contends the trial court erred by

excluding evidence that L.L. may have worked as a prostitute. Appellant’s

Brief at 14.

      To support its case, the Commonwealth presented evidence that C.L.

suffered from a chlamydia infection and that Appellant admitted to having

chlamydia at the time the abuse occurred. As an alternative explanation for

C.L.’s chlamydia, Appellant maintained that L.L. had been working as a

prostitute, that her sexual activity exposed her to the disease, and that she

transmitted the disease to C.L. through contact with L.L.’s infected

underwear.     Trial Court Opinion, 12/10/15, at 10.   Accordingly, Appellant

filed a motion in limine seeking to introduce a Backpage.com ad posted to

Craigslist. Id. at 10, 19.

      Following a hearing on Appellant’s motion in limine, the trial court

ruled the purported evidence was inadmissible because it was irrelevant and

far more prejudicial than probative.   Id. at 13. The trial court found that

Appellant had no evidence to prove L.L. was a prostitute. Id. Moreover, the

trial court found that the word “prostitute” was far more prejudicial than it

was probative. N.T., 10/6/14, at 8. In its opinion, the trial court concluded:

1) the Backpage.com posting, in 2006, was too remote in time from the

alleged abuse; 2) even if the posting was authentic, it did not demonstrate

that L.L. ever actually engaged in prostitution; 3) the evidence was an

attempt to slander the witness; 4) the posting was not relevant to


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Appellant’s guilt; and 5) Appellant’s contention that the posting would

demonstrate that “it was more likely than not that C.L contracted chlamydia

from her mother’s actions” was erroneous. Id. at 19.

     Upon review, we discern no abuse of discretion.           The evidence

Appellant sought to admit was not probative of any material fact related to

his guilt or innocence.    Any link between an alleged personal ad and

prostitution, or   between prostitution and C.L.’s infection, was mere

speculation.   In fact, Appellant’s expert witness testified under cross-

examination that he was unaware of any diagnosed case of chlamydia

contracted from contact with another’s underwear.      N.T., 4/2/15, at 34.

Moreover, while an alternate source of C.L.’s chlamydia would tend to

negate or diminish Appellant’s role as the source, the proffered evidence:

(1) did not show sexual contact, much less infection; (2) had a low probative

value and was highly prejudicial; and (3) suggested transmission of the

disease through contact with another’s underwear which was medically

improbable, even if L.L. were a prostitute.      The trial court found that

whether L.L. had posted an ad on Backpage.com would not have assisted a

trier of fact in determining whether the Commonwealth had proven the

charges against Appellant.   We conclude the trial court did not abuse its

discretion by balancing the dubious relevancy of the evidence in this case

against its potential to mislead or confuse. See Parker, 882 A.2d at 492.




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      Next, Appellant argues that the trial court should have permitted

defense counsel to cross-examine L.L. on her prior conviction for disorderly

conduct. Appellant’s Brief at 16-17.

      Appellant sought to introduce evidence that L.L. absconded from the

Commonwealth with one of her children, in violation of a set custody and

visitation order.   Appellant’s Brief at 6.    L.L.’s initial charges included

kidnapping and interference with a custodial order.       She pled guilty to

disorderly conduct as part of a negotiated deal, in exchange for dismissal of

all other charges. Trial Court Opinion, 12/10/15, at 20. Appellant sought to

question L.L. in order to establish a pattern of animosity between her and

Appellant and to demonstrate her propensity “not to follow the rules when it

comes to her children.”    N.T., 10/6/14, at 8.   Appellant claimed that L.L.

influenced C.L. into falsely accusing Appellant of the crimes herein to gain

custody of C.L. Appellant’s Brief at 6-7.

      For the purpose of attacking the credibility of any witness, evidence

that the witness has been convicted of a crime, whether by verdict or by

plea of guilty or nolo contendere, must be admitted if it involved dishonesty

or false statement.     Pa.R.E. 609(a).      Where the crime is not one of

dishonesty, the trial court has discretion to limit cross-examination of a

prosecution witness if the prejudicial effect of the conviction outweighs its

probative value.    See Commonwealth v. Palo, 24 A.3d 1050, 1057 (Pa.

Super. 2011); Commonwealth v. Hyland, 875 A.2d 1175, 1187-88 (Pa.


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Super. 2005). This Court previously stated that disorderly conduct is not a

crime involving dishonesty or false statement. See, e.g., Allen v. Kaplan,

653 A.2d 1249, 1253 (Pa. Super. 1995); Commonwealth v. Brabham,

407 A.2d 424, 427 (Pa. Super. 1979).

      On this issue, the trial court concluded:

        The [trial c]ourt [] denied Appellant’s request because the
        conviction does not qualify as a crimen falsi. In addition,
        the child involved in the interference with a custody order
        was not C.L. Furthermore, counsel for Appellant was able
        and did cross[-]examine [L.L.] on the [protection from
        abuse order] that Appellant had against her and that the
        custody order gave Appellant primary custody of the
        children. N.T., 3/31/15, at 211-12. In addition, counsel for
        Appellant thoroughly and effectively cross-examined [L.L.]
        in regards to her violation of the order when she absconded
        with her one son in December of 2011 and that Appellant
        was charged criminally and pled guilty as a result of that
        action. N.T., 3/31/15, at 213. The jury heard everything
        Appellant wanted them to in order to make his argument
        that [L.L.] was mad at Appellant for gaining custody of the
        children and fabricated the abuse as a result.

Trial Court Opinion, 12/10/15, at 20.

      We agree with the trial court’s assessment.     The trial court did not

prevent Appellant from making his argument by restricting the scope of

cross-examination about the prior incident.       Appellant has suffered no

prejudice, and there is no basis for relief. See Lopez, 57 A.3d at 81.

      In his third issue, Appellant claims the evidence was insufficient to

support his convictions as a matter of law. Appellant’s Brief at 17-18.

      Initially, this Court must determine whether Appellant has properly

preserved this issue for appeal.

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        In order to preserve a challenge to the sufficiency of the
        evidence, an appellant’s Rule 1925(b) statement must state
        with specificity the element or elements upon which the
        appellant alleges that the evidence was insufficient. Such
        specificity is of particular importance in cases . . . where the
        appellant was convicted of multiple crimes each of which
        contains numerous elements that the Commonwealth must
        prove beyond a reasonable doubt.

Commonwealth v. Garland, 63 A.3d 339, 344 (Pa. Super. 2013).                A

failure to identify the specific element or elements that the Commonwealth

failed to prove at trial in a 1925(b) statement renders an appellant’s

sufficiency of the evidence claim waived for appellate review. Id.

      Here, Appellant’s 1925(b) statement reads:

        The Commonwealth failed to prove the elements of the
        offenses beyond a reasonable doubt. Much of the testimony
        presented by the Commonwealth was inconsistent and it
        failed to present any evidence regarding the chlamydia
        diagnosis of the defendant.

 Rule 1925(b) Statement, 11/13/15, at 2.

      Appellant’s concise statement fails to specify the particular element of

any crime that the Commonwealth failed to prove beyond a reasonable

doubt. As previously noted, proof of Appellant’s chlamydia is not an element

of any of the offenses.    Thus, Appellant has waived his sufficiency claim.

See Garland, 63 A.3d at 344 (A generic statement that the evidence is

legally insufficient to support the convictions is too vague to preserve an

insufficiency claim for appeal.).

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/14/2016




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