Commonwealth v. Gonzalez

• Decision Date: 11 March 2015
• Docket Number: No. 1913 EDA 2013,1913 EDA 2013
• Citation: 2015 PA Super 48,112 A.3d 1232
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Luis GONZALEZ, Appellant.
• Court: Pennsylvania Superior Court

112 A.3d 1232

2015 PA Super 48

COMMONWEALTH of Pennsylvania, Appellee

v.Luis GONZALEZ, Appellant.

No. 1913 EDA 2013

Superior Court of Pennsylvania.

Submitted Nov. 24, 2014.

Filed March 11, 2015.

Todd R. Fiore, Philadelphia, for appellant.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STABILE, JENKINS, and STRASSBURGER,^* JJ.

Opinion

OPINION BY STABILE, J.:

Appellant, Luis Gonzalez, appeals from the judgment of sentence imposed on June 4, 2013 in the Court of Common of Philadelphia County following his convictions for rape of a child, involuntary deviate sexual intercourse (IDSI) with a child, and related offenses stemming from crimes committed against his stepdaughter (Victim) over the course of approximately eight years.¹ Following review, we affirm.

In its opinion filed in accordance with Pa.R.A.P. 1925(a), the trial court provided the following factual history:

The evidence adduced at trial established that Appellant raped his stepdaughter, [Victim], unmercifully in every way possible, starting from the tender young age of eight (8) and continuing until she was sixteen (16). Over this eight (8) year period, Appellant repeatedly penetrated each orifice of [Victim]—anally, orally, and vaginally—and also penetrated her with an object. He forced her to perform oral sex on him twice per week starting when she was in fourth (4th) grade and continuing until the age of sixteen (16). Appellant raped his stepdaughter with such force that he tore/transected her hymen—which, it should be noted, occurs in fewer than five percent (5%) of sexual abuse cases. Further, Appellant perpetrated the sexual abuse over an extended period by repeatedly threatening [Victim] that he would kill her mother, sister and family members if she were to tell anyone. [Victim] believed that Appellant would follow through on his violent threats, having previously witnessed him beat, kick and choke her mother on more than one occasion. (N.T. 02/06/13, at pp. 10–83).

In fact, [Victim's] sister, M.G., who was eight (8) years old at the time, caught Appellant raping [Victim], then age eleven (11), on the sofa, prompting her to yell “stop ... please stop[!]” Appellant continued, however, and angrily ordered M.G. to go back upstairs, and she complied. Moments later, [Victim] entered the upstairs bathroom crying and bleeding from her vagina:

My room was right next to the bathroom, and I heard her crying in the bathroom. So, I went to the bathroom to ask her, like, this crying, and she just said I don't want to talk about it. And she was bleeding, and I didn't know what [that was], that moment, I didn't know, like, why she was bleeding. And I was crying, and [Appellant] came up to me and said don't tell nobody, don't tell your mom, don't tell nobody.... He said I will hurt you and your family.

(N.T. 02/06/13, at pp. 131–133).

Like [Victim], M.G. was scared to tell anyone about the incident due to first-hand observations of Appellant beating her mother in violent rages. Indeed, both girls testified to one incident in which they heard banging, screaming and yelling from the basement. They walked over to the basement steps and looked down to find Appellant beating their mother.

And he told us to stay where we are and watch, and he, like, was—my mom was on the floor, so he would kick her in the ribs, punch her. We seen him, like, grabbing her neck and she was crying, she was screaming, but her scream was very light, like, already, and she ended up passing out, and we had to stay there on the steps watching her.

(N.T. 02/26/13, at pp. 15–16; 134–135).

In addition to threatening harm, Appellant routinely explained to [Victim] that he “ ‘had to’ ” commit these sexual assaults, as follows: “He would tell me that it was because I was too close to my mom.... And every time I would get close to my mom or I would follow her, every time I get close to my mom, he would do this. He said this is what you get for not being close with me.” (N.T. 02/06/13, at p. 30; see id. at pp. 43, 49, 51.

Trial Court Opinion (T.C.O.), 4/1/14, at 2–3.²

The jury returned a verdict of guilty on all charges. See n. 1. Following review of the pre-sentence investigation report, the trial court sentenced Appellant to an aggregate term of 30 to 60 years in prison.³ Appellant filed a Motion for Reconsideration of Sentence, which the trial court denied on June 17, 2013. Appellant filed a timely appeal to this Court and complied with the trial court's directive to file a statement of errors complained of pursuant to Pa.R.A.P. 1925(b), raising the same four issues he presents for this Court's consideration:

A. Did the lower court err in granting the Commonwealth's Motion to Admit Other Crimes Evidence pursuant to Pennsylvania Rules of Evidence 404(b)(2), and did the lower court err by not denying the Commonwealth's motion pursuant to 404(b)(1) and (3)?

B. Did the lower court err in allowing ex parte contact between a [c]ourt [o]fficer and the jury, by allowing a jury question to be answered in the deliberation room through a court officer rather than in open court?

C. Did the lower court err in failing to order a mistrial when a juror passed out during testimony? The juror, in the presence of other jurors, was attended to by a doctor who was testifying as a Commonwealth expert witness. This allowed a witness close contact with jurors and prejudiced the jurors in their ability to decide on the credibility of that expert witness.

D. Did the lower court err by not ordering a mistrial when a juror passed out during trial and the Sheriff removed [Appellant] from the court room through the custody door in potential view of jurors?

Appellant's Brief at 3.

In his first issue, Appellant asserts the trial court erred in granting the Commonwealth's motion to admit “other crimes” evidence under Pa.R.E. 404(b)(2) and contends the trial court should have denied the motion under Pa.R.E. 404(b)(1) and (3). As a challenge to admissibility of evidence, we apply an abuse of discretion standard. Commonwealth v. Dillon, 592 Pa. 351, 925 A.2d 131 (2007). In Dillon, our Supreme Court explained:

Appellate courts typically examine a trial court's decision concerning the admissibility of evidence for abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Typically, all relevant evidence, i.e., evidence which tends to make the existence or non-existence of a material fact more or less probable, is admissible, subject to the prejudice/probative value weighing which attends all decisions upon admissibility. See Pa.R.E. 401 ; Pa.R.E. 402 ; see also Commonwealth v. Malloy, 579 Pa. 425, 856 A.2d 767, 775 (2004).

Id. at 136 (internal quotations and some citations omitted).

The subsections of Rule 404 in question in this case provide:

(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. In a criminal case this evidence is admissible only if the probative value of the evidence outweighs its potential for unfair prejudice.

(3) Notice in a Criminal Case. In a criminal case the prosecutor must provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404(b).

Appellant argues that allowing testimony of prior violent acts he committed against his wife, who is the mother of Victim and her sister M.G., was “an attempt to color Appellant as a violent, jealous, controlling individual who has a propensity to commit violent crimes against women” and was “much more prejudicial than probative.” Appellant's Brief at 11. The trial court explained that Appellant misconstrued the court's ruling and rejected his claim, noting the Commonwealth was permitted to elicit the “bad acts” testimony from Victim and her sister to “explain[ ] the delay in reporting sexual abuse in addition to establishing the res gestae of the sexual assaults.” T.C.O., 4/1/14, at 5 (citing Dillon, 925 A.2d at 139–40 ). We agree.

In Dillon, our Supreme Court recognized that Rule 404(b)(1) provided an exception to the general rule of admissibility for evidence of other crimes, not as a matter of relevance, “but of policy, i.e., because of a fear that such evidence is so powerful that the jury might misuse the evidence and convict based solely upon criminal propensity.” Id. at 137 (citation omitted). However, the Court noted that “a series of ‘exceptions to the exception’ (to the rule of relevance) have been recognized” in Rule 404(b)(2), which does not contain an exhaustive list of exceptions. Id. “For instance, this Court has recognized a res gestae exception to Rule 404(b) which allows admission of other crimes evidence when relevant to furnish the context or complete story of the events surrounding the crime.” Id.

The Court in Dillon also recognized that, under 18 Pa.C.S.A. § 3105, “[a] jury may consider evidence of a lack of prompt complaint in cases involving sexual offenses.”⁴ The Court stated:

Section 3105 codified a common law principle recognizing that the victim of a sexual assault naturally would be expected to complain of the assault at the first safe opportunity.... Generally, there are three principles upon which evidence addressing the timeliness of a sexual assault complaint has been deemed relevant and admissible: (1) as an explanation of an inconsistency/silence; (2) as

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