Commonwealth v. Vucich

194 A.3d 1103

COMMONWEALTH of Pennsylvania

v.Steven Michael VUCICH, Appellant

No. 1855 WDA 2016

Superior Court of Pennsylvania.

Submitted January 23, 2018

Filed August 27, 2018

Victoria H. Vidt, Public Defender, Pittsburgh, for appellant.

Rebecca G. McBride, Assistant District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: BOWES, J., OLSON, J., and KUNSELMAN, J.

OPINION BY BOWES, J.:

Steven Michael Vucich appeals from the judgment of sentence of ten to twenty years incarceration imposed following his jury trial convictions for, inter alia , involuntary deviate sexual intercourse with a child. We vacate Appellant's designation as a sexually violent predator ("SVP") and remand for further proceedings.

The trial court summarized the factual history in its Pa.R.A.P. 1925(a) opinion:

Briefly, the evidence presented at trial established that when he was nine (9) years old, [C.D.]'s mother married [Appellant] and he moved into their home. On one (1) occasion when he was [ten] years old, [C.D.] had just gotten out of the shower when [Appellant] took him into the bedroom, removed his towel, knelt in front of him and put [C.D.]'s penis in his mouth. Thereafter, [Appellant] would have "cuddle time" with [C.D.], where the two would lie in bed and the Defendant would touch and rub [C.D.]'s penis. [Appellant] also let [C.D.] play certain video games his mother had deemed too violent, but would rub and touch his penis while he played. [Appellant] instructed [C.D.] not to tell his mother what had happened. Approximately 10 years later, [C.D.] disclosed the abuse to his therapist and eventually told his mother what had happened.

Trial Court Opinion, 6/29/17, at 2.

Appellant was charged with rape of a child, involuntary deviate sexual intercourse with a child, unlawful contact with a minor, corruption of minors, and indecent assault with a person less than thirteen. Following a jury trial, Appellant was convicted of all crimes except rape of a child. On November 8, 2016, Appellant was sentenced as previously referenced. On December 8, 2016, Appellant filed a timely notice of appeal. That same day, the trial court held a hearing to determine if Appellant was an SVP. The trial court determined that he was, and entered a separate order to that effect on December 21, 2016. Appellant did not file a separate notice of appeal from that order.

Appellant complied with the trial court's order to file a concise statement of matters complained of on appeal, and the trial court issued an opinion in response. The matter is ready for review of Appellant's claims:

I. Did the lower court abuse its discretion when it permitted the introduction and publication of Commonwealth Exhibits [two] and [three], photographs of the complainant taken at around the time of the alleged incidents, as the photos were irrelevant, prejudicial, and intended to inflame the passions of the jury?

II. Did the lower court err in failing to exclude language from Standard Jury Instruction 4.13(B) during voir dire , as requested by the Motion in Limine ? Moreover, was it erroneous to give this same instruction to the jury as it is only a partially correct statement of the law?

III. Must the determination that [Appellant] is a [SVP] be vacated as the mechanism for SVP determinations was deemed unconstitutional in Commonwealth v. Butler [, 173 A.3d 1212 (Pa. Super. 2017) ]?

Appellant's brief at 7.

Appellant's first issue challenges the admission of two photographs depicting C.D. when he was between the ages of nine and eleven. The admission of evidence is vested within the discretion of the trial court. We apply the following principles to an evidentiary challenge:

In determining whether evidence should be admitted, the trial court must weigh the relevant and probative value of the evidence against the prejudicial impact of that evidence. Evidence is relevant if it logically tends to establish a material fact in the case or tends to support a reasonable inference regarding a material fact. Although a court may find that evidence is relevant, the court may nevertheless conclude that such evidence is inadmissible on account of its prejudicial impact.

Commonwealth v. Storey , 167 A.3d 750, 758 (Pa. Super. 2017) (citation omitted).

The evidence was introduced during the testimony of C.D.'s mother. One photograph was a school picture from fourth or fifth grade; the other was a photograph of C.D. at his grandparents' house. The Commonwealth moved to enter the photographs into evidence. Appellant stated, "I put my objection on the record."

N.T., 8/9-10/16, at 98. The trial court replied, "It will be so noted." Id. at 99.¹

Citing Commonwealth v. Funk , 29 A.3d 28 (Pa. Super. 2011), the trial court's opinion discussed the following two-part test applied to inflammatory photographs:

First, the court must determine whether the photograph is inflammatory. This Court has interpreted inflammatory to mean the photo is so gruesome it would tend to cloud the jury's objective assessment of the guilt or innocence of the defendant. Next, if the trial court decides the photo is inflammatory, in order to permit the jury to view the photo as evidence, it must then determine whether it is has essential evidentiary value.

Id. at 33 (citations omitted). The Commonwealth likewise invokes this test. "First, the court must decide whether a photograph is inflammatory by its very nature." Commonwealth's brief at 12.

Since a photograph is simply a type of demonstrative evidence, Commonwealth v. Serge , 586 Pa. 671, 896 A.2d 1170, 1177 (2006), it, like all other types of evidence, is subject to general relevancy principles. "All relevant evidence is admissible, except as otherwise provided by law. Evidence that is not relevant is not admissible." Pa.R.E. 402. The usual context for a challenge to a photograph is, as noted, a gruesome photograph in which the relevance of the item is obvious and undisputed. The two-part inflammatory test relied upon by the trial court is simply a specific prohibition of otherwise admissible evidence.

However, viewing the photograph through the inflammatory framework misses the mark, as Appellant does not assert that the photograph is inadmissible on that basis. Instead, Appellant contends that the photographs were legally irrelevant and therefore inadmissible. Commonwealth v. Wilson , 147 A.3d 7, 15 (Pa. Super. 2016) ("In general, relevant evidence, i.e. , evidence that 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, is admissible.") (citation omitted). As applied herein, Appellant avers that the victim's appearance at the time of the crime did not tend to establish any material fact. "With respect to the issue of whether the incidents [C.D.] testified to had actually occurred, his likeness at the younger age does nothing to advance the inquiry." Appellant's brief at 13. We now examine the trial court's rationale for admitting the photograph, as set forth in its opinion after concluding that it was not inflammatory:

As [C.D.] explained during his testimony, he was [ten] years old at the time of the assaults. Given his young age, he had difficulty processing and dealing with what was happening to him and so, for many years, simply tried to forget what had happened. [C.D.] first told his therapist of the abuse when he was [eighteen] years old and by the time he testified at trial, he was [twenty] years old. It was difficult to equate the [twenty]-year old man testifying about something that had happened so long ago with the child who was unable to somehow stop or even deal with the attacks. The two pictures introduced by [C.D.]'s mother helped the jury to picture [C.D.] as a child so that the jury could better evaluate his testimony.

Trial Court Opinion, 6/29/17, at 6-7.

The connection between viewing depictions of a witness as a child and how those photographs can assist in the evaluation of the victim's in-court testimony is questionable. The parties have not supplied us with any citation to a Pennsylvania authority addressing the introduction of a photograph under these circumstances, where a victim testifies long after the commission of the crimes. However, numerous cases have addressed the related context of introducing photographs of a homicide victim.

Appellant relies upon Commonwealth v. Story , 476 Pa. 391, 383 A.2d 155 (1978), a homicide case, to establish both the irrelevancy of the photograph and the prejudice generated by its admission. Therein, the prosecution called, as its second witness, the victim's widow, Marilyn Wallace. Ms. Wallace produced photographs of the victim and his daughter, and also testified to "the victim's family status" as well as "other events of a personal nature." Id. at 157. Our Supreme Court held that the photograph was irrelevant and prejudicial:

Here, Mrs. Wallace's testimony concerning her husband's family status and personal life, and her description of the photographs of her husband with his child have no "rational probative value" to the issue whether appellant feloniously killed Patrick Wallace. Rather, this evidence injected extraneous considerations into the case and prejudiced appellant by creating sympathy for the victim and his family.

In its offer of proof, the Commonwealth stated that it thought that the jury was "entitled to know this man was married, he was a father, he in fact was a family man." The prosecutor further stated that the victim "is more than a body" and that the prosecutor wanted the jury "to get some feel for this activity of his life." It is evident that the Commonwealth explicitly sought to create sympathy for the victim and his family and to inflame the jury against appellant. We condemn such trial tactics.

Id. at 159.

The Supreme Court applied Story in Commonwealth v. Rivers , 537 Pa. 394, 644 A.2d 710 (1994), which also discussed the propriety of introducing a photograph of a...