Commonwealth v. Dula

• Citation: 262 A.3d 609
• Decision Date: 20 September 2021
• Docket Number: No. 1758 MDA 2019,1758 MDA 2019
• Parties: COMMONWEALTH of Pennsylvania v. Andrew DULA, III, Appellant
• Court: Superior Court of Pennsylvania

262 A.3d 609

COMMONWEALTH of Pennsylvania

v.Andrew DULA, III, Appellant

No. 1758 MDA 2019

Superior Court of Pennsylvania.

Argued August 3, 2021

Filed: September 20, 2021

Albert J. Flora Jr., Wilkes Barre, for appellant.

James L. McMonagle, Wilkes-Barre, for appellee.

BEFORE: KUNSELMAN, J., McCAFFERY, J., and STEVENS, P.J.E.^*

OPINION BY McCAFFERY, J.:

Andrew Dula, III (Appellant), appeals from the judgment of sentence entered June 14, 2019, in the Luzerne County Court of Common Pleas, following his jury convictions of attempted involuntary deviate sexual intercourse (IDSI), institutional sexual assault,¹ and related crimes for his sexual abuse of a mentally and physically disabled woman in his care. Appellant argues the trial court erred in failing to strike a juror for cause, and abused its discretion by permitting testimony concerning primitive sounds and non-verbal conduct by the victim, a bruise on the victim, and Appellant's odd work behavior; denying a motion for a mistrial after the arresting officer stated he did not believe Appellant's denial of culpability; refusing to instruct the jury that the victim would not be called to testify because she lacked testimonial competency; and admitting Appellant's inculpatory statement in violation of the corpus delicti rule. For the reasons below, we affirm.

The facts, as developed during Appellant's jury trial, are summarized by the trial court, in its detailed 64-page opinion, as follows:

[The victim, M.H.,] suffers from severe to profound mental retardation

and severe spastic cerebral palsy. Because of these conditions, she is unable to speak, walk unassisted, or otherwise care for herself. [M.H.'s] mother, Donna Siene, provided for [her] needs in their home until [M.H.] reached the age of 21. Knowing that she would eventually be unable to care for her daughter, Mrs. Siene placed [M.H.] in the Community Living Arrangements residence (hereafter "the CLA") in Kingston, Pennsylvania, a residence home for persons with disabilities. During the time frame pertinent here, the CLA housed three residents, including [M.H.], who were cared for by residential program workers, including [Appellant], who was hired to work the 11:00 p.m. through 7:00 a.m. overnight shift Sundays through Thursdays.

On February 2, 2016, [Appellant] and his coworker LaShanda Williams were working the overnight shift. When [Appellant] arrived at the CLA that evening, he entered the residents' bathroom and began grooming his hair while singing "I love you [M.] I love you [M.]" Ms. Williams heard [M.H.] start to whine as [Appellant] sang. When Ms. Williams asked [Appellant] what he was singing, [Appellant] told her he was using [M.H.'s] name with the lyrics of an old song.

Later, during the early morning hours of February 3, 2016, while Ms. Williams was attending to another resident, she heard [M.H.] scream loudly — a sound that Ms. Williams had never heard [M.H.] make before. Ms. Williams left the other resident and ran to [M.H.'s] room. [M.H.'s] door, which was normally kept fully open, had been partially closed. When Ms. Williams pushed the door open she saw [Appellant] standing over [M.H.], who was lying sideways on her bed, naked from the waist down with her head hanging off the edge of the mattress and her legs in the air over [Appellant's] arms. [M.H.] appeared to be frantic and clawed for Ms. Williams, who sat on the bed and pulled [M.H.] to her. [M.H.] whined and clung to Ms. Williams, but Ms. Williams was eventually able to put a diaper back on her and situate her in her bed. When Ms. Williams picked up the diaper [Appellant] had removed from [M.H.] to put it in the trash, she saw that the wetness indicator strip had not changed color and observed that the diaper did not feel wet or soiled.^[1] When Ms. Williams attempted to leave the room and turn off the light, [M.H.] began whining again, so Ms. Williams left the light on and sat in a chair in the hall outside [M.H.'s] doorway. [M.H.] remained awake for the rest of the shift.[² Appellant] did not re-enter [M.H.'s] room to check on her, did not talk to Ms. Williams as he normally would during their shifts, and did not fill out the half hour check chart. Instead, he spent the rest of the shift in the basement, only emerging to clock in at 3:00 a.m. and again at 5:00 a.m.^[3]

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^[1] The diapers worn by [M.H.] have an indicator strip that turns a different color when the diaper is wet and needs to be changed.

^[2] LaShanda Williams had previously observed that [M.H.] was often not sleeping through the night on the nights that [Appellant] worked during the months preceding the February 3rd incident.

^[3] Overnight shift employees were required to clock in at 12 a.m., 3 a.m. and 5 a.m. using the residence's telephone.

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Ms. Williams told [Appellant] that she was going to report [M.H.'s] scream, and documented it in the logbook.[⁴ Appellant] did not report the incident. To the contrary, his logbook entry for the night made no mention that [M.H.] screamed while he was in her room, but instead only indicated that [M.H.] was "a little whiny until about 1:30 a.m.," and stated that there were "no overnight issues."

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^[4] The logbooks used at the CLA are similar to a journal, where staff record daily entries about each residence.

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Almost immediately after the 11:00 p.m. to 7:00 a.m. shift ended on February 3, 2016, [Appellant] exited the CLA, without alerting any of the incoming caregivers to [M.H.'s] scream, her subsequent agitation, or her wakefulness during the remainder of the night. [Appellant's] prompt departure was unlike his usual habit of remaining inside the residence well beyond the end of his shift. Further, after exiting the residence on that morning, [Appellant] then sat for more than an hour in his car, parked next to the van used to transport the residents, finally leaving around 8:30 a.m. when staff needed to access to the van's handicap door. This was also not typical of [Appellant].

Meanwhile, LaShanda Williams remained with [M.H.] and told the incoming caregivers about the scream.^[5] Although [M.H.] was normally eager to eat breakfast, on that morning she would not eat. Additionally, when [M.H.'s] clothes were changed, Ms. Williams noticed a mark on [M.H.'s] thigh that she hadn't seen before. Ms. Williams thought the mark looked like a thumb[print] and showed it to Yvonne Collins, one of the incoming caregivers. Jocelyn Robertson, another caregiver who had arrived for the 7:00 a.m. to 3:00 p.m. shift, also saw the mark and agreed that it looked like a thumbprint.

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^[5] Ms. Williams worked that shift, as well as the overnight shift she had just finished.

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At that point, because of [M.H.'s] uncharacteristic scream, the position [M.H.] was in when Ms. Williams burst into her room after the scream, [M.H.'s] immediate attempts to get to Ms. Williams, her subsequent uncharacteristic demeanor and refusal to eat breakfast, the bruise on her thigh, [Appellant's] untruthful entry in the log book that there were "no overnight issues," his change in demeanor during the remainder of the shift, and his abrupt departure from the CLA at the end of the shift followed by his uncharacteristic lingering in the parking lot after he left the building, coupled with Ms. Williams' observations of the [Appellant's] interactions with [M.H.] and her reactions to [Appellant] leading up to the February 3rd incident, Ms. Williams had Yvonne Collins call Kimberly Sprau ..., a program specialist with the Institute for Human Resources and Services (of which the CLA residence was part). Ms. Sprau then contacted her superior, Shani Williams, the residential program manager at the Institute for Human Resources and Services, who interviewed LaShanda Williams and directed her to fill out an incident report.

During LaShanda Williams' interview with Shani Williams, LaShanda Williams described what she observed during the February 2nd/February 3rd shift, as well as what she had observed in the past with regard to [Appellant's] interactions with [M.H.] and [M.H.'s] reactions to [Appellant.⁶] These included her observations that [Appellant] removed [M.H.'s] diapers frequently, even when they were dry, and that he took an unnecessarily long time when he changed [her] diapers. Ms. Williams noted that [Appellant's] unnecessary diaper changes occurred during the night shift, when caregivers had been instructed to let the residents sleep. During the months leading up to the February 3rd incident in [M.H.'s] room, Ms. Williams observed that [M.H.] was often wakeful during the nights that [Appellant] worked. Ms. Williams noted that [Appellant] did not accurately record [M.H.'s] sleeplessness in the CLA logs, but instead often documented that [M.H.] was asleep when Ms. Williams had observed her to be awake. Ms. Williams did not observe [Appellant] making frequent unnecessary diaper changes of the other residents. Ms. Williams further observed that [M.H.] behaved differently when [Appellant] was present than she did when other caregivers, male or female, were present. Ms. Williams additionally observed that during the overnight shift when employees were instructed to do quick half hour checks on the sleeping residents, which could be accomplished by a peek into each room, [Appellant] would fully enter [M.H.'s] room, and spend as much time in [M.H.'s] room as Ms. Williams would take to check on both the other residents. Ms. Williams did not observe [Appellant] spending an inordinate amount of time with any of the other residents during half hour checks. Ms. Williams further explained that during the nights that she worked with [Appellant], including the February 2nd/3rd overnight shift when [M.H.] screamed, [Appellant] would arrive wearing pants, but would then go into the basement and emerge with cream colored long johns on, which he would wear for the remainder of the shift.

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^[6] In doing so, LaShanda Williams also clarified to Shani Williams

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