Commonwealth v. Saez

225 A.3d 169

COMMONWEALTH of Pennsylvania

v.Rafael SAEZ, Appellant

No. 1967 MDA 2018

Superior Court of Pennsylvania.

Submitted October 28, 2019

Filed December 20, 2019

Diana C. Kelleher, Public Defender, Lancaster, for appellant.

Craig W. Stedman, Assistant District Attorney, James M. Reeder, Assistant District Attorney, Lancaster, for Commonwealth, appellee.

BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.^*

OPINION BY SHOGAN, J.:

Appellant, Rafael Saez, appeals from the October 5, 2018 judgment of sentence imposed by the Court of Common Pleas of Lancaster County following a jury trial. We affirm.

The trial court summarized the facts and procedural history of this case as follows:

[Appellant] was convicted of involuntary deviate sexual intercourse, indecent assault, and attempted indecent assault following allegations made by his step-daughter, J.C. [also referred to as "Victim"] that he had been sexually abusing her for two years. In 2013, [Appellant had] moved into his girlfriend's home, where she lived with her daughter, J.C., and five sons. J.C. was nine years old when she first remembered her "step-dad touch[ing her] in a wrong way." (J.C. Trial Testimony at 69, June 25, 2018). At that time her room was on the second floor of the house, though two years later she moved up to an attic bedroom. During trial, she testified that the assaults started in the middle room, and then...came to the attic." (Id. at 71). [Appellant] groped her "chest" and "where [she] use[s] the bathroom" in the room on the middle floor, in her attic bedroom, in the kitchen while she was cooking, and once in the living room. (Id. at 71, 75, 79). [Appellant] would approach J.C. during times when her mother was not home, when she was "at work or out shopping," after sending the boys outside or upstairs. (Id. at 79). He repeatedly came to her attic bedroom when she was alone, took off her underwear, forced her to masturbate him, engaged in oral intercourse with her, and vaginally raped her. (Id. at 72-80). At age thirteen, J.C. found the courage to tell her grandmother [ ("Grandmother") ] about the abuse. [Grandmother] reported the abuse to the police and an investigation began.

Through the preparation for trial, other allegations surfaced about [Appellant], namely from his six-year-old biological daughter [, A.O.,] that she too had been abused by [Appellant] in the attic of J.C.'s home. I held a Tender Years hearing on this matter prior to the trial and found her competent to testify and the allegations similar enough to J.C.'s case to permit them into evidence.

A jury trial began on June 25, 2018. After three days, the jury returned a guilty verdict on all counts.^[1] I ordered a presentence investigation, which was returned, and sentencing occurred on October 5, 2018. At that time, I sentenced [Appellant] to a total of 16 to 32 years [of] incarceration. [Appellant] subsequently filed this timely appeal.

Trial Court Opinion, 3/22/19, at 1–2. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following issues on appeal:²

I. Did the trial court abuse its discretion in finding [Appellant's] six year old daughter competent to testify?

II. Did the trial court abuse its discretion in permitting the Commonwealth to present testimony that [Appellant's] biological daughter had recently accused [Appellant] of abusing her as this evidence was not admissible under any permitted uses in P.A. Rule of Criminal Procedure 404(b)(2)?

III. Did the trial court abuse its discretion in not permitting [Appellant] to cross-examine the victim's grandmother on how the victim's disclosure to her came about and the entirety of their conversation?

Appellant's Brief at 7.

We address the first two issues in tandem, as they both concern the revelations of six-year-old A.O. Appellant avers that the trial court abused its discretion in finding A.O. competent to testify. Appellant's Brief at 20. He also contends the trial court abused its discretion in permitting the Commonwealth to present testimony that A.O., who did not meet Appellant "until she was 4 years old," revealed that Appellant also sexually abused her. Appellant's Brief at 16; Commonwealth's Notice of Intent to Introduce Evidence of Prior Bad Acts, 5/16/18, at ¶ 4. The intent to present A.O.'s testimony developed procedurally when initially, the Commonwealth filed a Notice of Intent on April 6, 2018, indicating that it would present the testimony of Appellant's sister, A.S., now age thirty, that Appellant had been adjudicated delinquent of rape and incest relating to A.S. in 2001, when A.S. was twelve years old. Following a hearing on June 14, 2018, the trial court precluded the evidence "on the basis that ... it [was] too remote in time." Trial Court Opinion, 3/22/19, at 5 n.5 (citing N.T., 6/14/18).

Then, on May 16, 2018, the Commonwealth filed a second Notice of Intent to Introduce Evidence of Prior Bad Acts, indicating that it learned that A.O. disclosed to her mother's friend that Appellant had sexually abused her. Notice of Intent to Introduce Evidence of Prior Bad Acts, 5/16/18, at ¶4; N.T., 6/26/18, at 204–205. The Commonwealth alleged that A.O. revealed that Appellant

touched her vaginal area. She was interviewed at the Lancaster County Children's Alliance on October 16, 2017. During that interview, [A.O.] indicated that [Appellant] would put his hands down her underwear and move his fingers around. She indicated that he did this more than one time. The child had not met [Appellant] until she was 4 years old and began having overnight stays with [Appellant] at that time. This would occur at night when the child was in bed.

Notice of Intent to Introduce Evidence of Prior Bad Acts, 5/16/18, at ¶4. Appellant filed a motion in limine that same day requesting, inter alia , that the trial court also preclude the testimony of A.O. Appellant urged that such testimony was inadmissible because no charges relating to A.O. had been filed against him,³ and any probative value of the testimony was outweighed by the prejudice that would inure to Appellant. Motion in Limine , 5/16/18, at ¶¶ 7–9.

A.O. testified at a competency hearing on June 14, 2018. Based on the colloquy, the trial court concluded that A.O. was competent to testify. At the conclusion of the hearing, the trial court ruled: "[T]he probative value [of A.O.'s testimony] does outweigh the potential prejudice [to Appellant]. There is such a degree of similarity [of the abuse], and it will be admissible, but I will give counsel an opportunity to submit proposed cautionary instructions with regard to [A.O.]" N.T., 6/14/18, at 122.

Appellant argues that A.O. was incompetent to testify because her testimony at the June 14, 2018 hearing was inconsistent. Appellant's Brief at 21. Appellant underscores, inter alia , that A.O. did not know the date of her birthday, she could not define "oath," and she was unable to elaborate on her use of the word, "stuff." Id. at 22.

The following precepts are applicable herein. The general rule is that every person is presumed to be a competent witness. Pa.R.E. 601(a) ; Commonwealth v. Judd , 897 A.2d 1224, 1228 (Pa. Super. 2006). Before a witness under the age of fourteen may testify, Pennsylvania requires the examination of the witness for competency. Commonwealth v. Pukowsky , 147 A.3d 1229, 1234 (Pa. Super. 2016) (citing Commonwealth v. Moore , 980 A.2d 647, 649–650 (Pa. Super. 2009) ). Our standard of review recognizes that "a child's competency to testify is a threshold legal issue that a trial court must decide, and an appellate court will not disturb its determination absent an abuse of discretion." Commonwealth v. Meredith , 221 A.3d 186, 190, 2019 PA Super 308, *2 (Pa. Super. filed October 15, 2019) (emphasis in original) (citing Commonwealth v. Washington , 554 Pa. 559, 722 A.2d 643, 646 (1998) (citation omitted)). Our scope of review is plenary. Meredith , 221 A.3d at 189–90, 2019 PA Super at *2 (citing Commonwealth v. Delbridge , 580 Pa. 68, 859 A.2d 1254, 1257 (2004) ). "A party who challenges the competency of a minor witness must prove by clear and convincing evidence that the witness lacks ‘the minimal capacity ... (1) to communicate, (2) to observe an event and accurately recall that observation, and (3) to understand the necessity to speak the truth.’ " Meredith , 221 A.3d at 190, 2019 PA Super at *2; see also Rosche v. McCoy , 397 Pa. 615, 156 A.2d 307, 310 (1959) (competency of minor witness must reveal capacity to communicate, remember events, and reveal a consciousness of the duty to speak the truth).

At the June 14, 2018 competency hearing, A.O. initially was questioned by the Commonwealth and testified, in pertinent part, as follows:

Q [H]ow old are you?

A Six.

Q Six years old. Are you in school?

A Um-hmm.

Q What grade were you in?

A Kindergarten.

Q Okay. Did you finish school or are you still in school?

A Yesterday was my last day in school.

Q Okay. So you finished kindergarten yesterday?

A [Affirmative nod.]

Q What grade are you gonna go into next year?

A First grade.

Q Okay. And what school do you go to?

A Price Elementary.

Q Who was your teacher this year?

A Ms. Hammick [phonetic].

Q Do you know who your teacher is gonna be next year yet?

A No, I'm moving to another school next year.

Q You're gonna go to another school?

A Uh-huh.

Q Okay. Do you know, can you tell us what the difference between a truth and a lie is?

A The truth is you tell the truth.

Q Okay. What's a lie?

A You tell a lie when you don't tell the truth.

Q Okay. And is it good or bad to tell a lie?

A Bad.

Q What would happen if you told your mommy a lie and she found out?

A She would ground me.

Q She would ground you, okay.

[The Commonwealth]: Your Honor, at this time I'd offer her as competent to testify.

THE COURT: Any questions on competence?

[Defense Counsel]: At this time, no, Your Honor.

N.T., 6/14/18, at 103–104.

When A.O. appeared as a witness on the first day of trial, June 25, 2018, the trial court again conducted an extensive...