Commonwealth v. Rivera

• Decision Date: 24 May 2021
• Docket Number: No. 1788 MDA 2019,1788 MDA 2019
• Citation: 255 A.3d 497
• Parties: COMMONWEALTH of Pennsylvania v. Jonathan RIVERA, Appellant
• Court: Pennsylvania Superior Court

255 A.3d 497

COMMONWEALTH of Pennsylvania

v.Jonathan RIVERA, Appellant

No. 1788 MDA 2019

Superior Court of Pennsylvania.

Argued February 4, 2021

Filed May 24, 2021

Reargument Denied July 29, 2021

Lisa A. Mathewson, Philadelphia, for appellant.

Brian P. Gallagher, Assistant District Attorney, Towanda, for Commonwealth, appellee.

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

OPINION BY LAZARUS, J.:

Jonathan Rivera appeals from the judgment of sentence, entered in the Court of Common Pleas of Bradford County, after a jury convicted him of four counts of corruption of minors—course of conduct;¹ three counts of indecent assault—person less than 13 years of age;² two counts of indecent exposure;³ and one count each of criminal attempt to commit indecent assault—person less than 13 years of age,⁴ and endangering the welfare of a child (EWOC).⁵ After careful review, we affirm in part, vacate in part, and remand. Specifically, because the Commonwealth's amendment to the criminal information unfairly prejudiced Rivera, we vacate Rivera's convictions under Counts 21 and 22, and remand for a new trial. Additionally, because the jury did not find that Rivera's EWOC conviction was the result of a course of Rivera's conduct or that his actions resulted in a substantial risk of death or serious bodily injury, we remand for resentencing on Count 15. We affirm Rivera's remaining convictions.

On April 17, 2018, F.M.⁶ recorded a video in which her daughter, G.R.,⁷ accused Rivera of various acts constituting criminal sexual assault. The next day, F.M. recorded another video in which her niece, C.P.,⁸ accused Rivera of similar inappropriate behavior. F.M. then took these videos to the police, which led to the discovery of two additional child victim complainants, S.C.⁹ and S.M.¹⁰

On September 7, 2018, the Commonwealth charged Rivera with: Count 1—aggravated assault¹¹ (victim G.R.); Counts 2 and 3—rape of a child¹² (victim G.R.); Counts 4 and 5—rape of a child (victim C.P.); Counts 6 and 7—involuntary deviate sexual intercourse¹³ (IDSI) (victim G.R.); Counts 8 and 9—IDSI (victim C.P.); Counts 10 and 11—attempted aggravated indecent assault¹⁴ (victim C.P.); Counts 12 and 13—attempted aggravated indecent assault (victim S.M.); Count 14—attempted aggravated indecent assault (victim G.R.); Count 15—EWOC (victim G.R.); Counts 16, 17, 18, and 19—corruption of minors (victims G.R., C.P., S.C., and S.M., respectively); Count 20—simple assault¹⁵ (victim G.R.); Counts 21, 22, 23, and 24—indecent assault of a child (victims G.R., C.P., S.C., and S.M., respectively); and Counts 25 and 26—indecent exposure (victims "two female juveniles").

On January 14, 2019, the court dismissed Count 13 as duplicative of Count 12, and further ordered the Commonwealth to identify the complainants for Counts 25 and 26. On July 31, 2019, mere days before the scheduled trial, the Commonwealth—apparently disregarding the fact that the court had already dismissed Count 13—moved to amend the information by changing the location of Counts 12 and 13 and specified the victims for Counts 25 and 26, as G.R. and C.P., respectively. The court commenced a jury trial on August 6, 2019.

At trial, following defense questioning of Pennsylvania State Trooper Christopher Higdon, the Commonwealth inquired if Rivera, having been read his Miranda¹⁶ warnings after his arrest, denied the charges against him. Trooper Higdon, over defense counsel's objection, testified that Rivera did not deny committing the offenses and that Rivera wished to remain silent. See N.T. Jury Trial, 8/6/19, at 101-02.

The Commonwealth rested its case-in-chief on August 7, 2019. The defense began presentation of its witnesses that same day. On August 8, 2019, the court dismissed Counts 10, 11, and 14, after the Commonwealth agreed that it had proffered insufficient evidence to prove those charges. Additionally, the court permitted the Commonwealth to amend Counts 12, 21, and 22 by changing the latter two counts from first-degree misdemeanors charged pursuant to subsection 3126(b)(3), to third-degree felonies charged pursuant to subsection 3126(b)(3)(iii). See N.T. Jury Trial, 8/8/19, at 7-9.

On August 8, 2019, the jury returned a verdict acquitting Rivera of Counts 1-9, 20, and 23, and convicting Rivera of Counts 12, 15, 16-19, 21, 22, and 24-26. At the sentencing hearing held on September 26, 2019, the court sentenced Rivera to an aggregate term of eight to fifty-two years’ incarceration. Rivera filed a timely notice of appeal; both he and the trial court have complied with Pa.R.A.P. 1925.

Following our grant of two extensions of time, see Order, 4/13/20;¹⁷ Order, 6/12/20,¹⁸ Rivera filed his appellate brief on July 6, 2020. Having also been granted an extension, see Order, 7/31/20,¹⁹ the Commonwealth filed its appellate brief on September 4, 2020. We subsequently granted two more extensions, see Order, 9/22/20²⁰ and Order, 10/15/20,²¹ after which Rivera filed a reply brief on November 13, 2020. On November 23, 2020, we continued the case.²²

On January 14, 2021, we ordered the parties to submit supplemental briefs on or before January 28, 2021, to "specifically address how the Supreme Court's decision in Commonwealth v. McClelland , ––– Pa. ––––, 233 A.3d 717 (2020), applies to the instant case."²³ Order, 1/14/21. Both parties complied.

Following our review of the Supreme Court's decision in McClelland , the parties’ briefs, relevant case law, and the certified record on appeal, we find that the Supreme Court did not intend to extend McClelland ’s holding to cases such as this one, where the complained-of defect in the preliminary hearing is subsequently cured at trial. Cf. Commonwealth v. Ballard , 501 Pa. 230, 460 A.2d 1091, 1092 (1983) ("A finding at a preliminary hearing that sufficient evidence exists to require a defendant to stand trial is not subject to review if there has been a subsequent independent judicial judgment that there is sufficient evidence to require the defendant to stand trial."); Commonwealth v. Tyler , 402 Pa.Super. 429, 587 A.2d 326, 328 (1991) (purpose of preliminary hearing is not to prove guilt but to avoid defendant's incarceration or trial unless sufficient evidence establishes crime was committed and probability that defendant was involved; "Once [an ] appellant has gone to trial and been found guilty of the crime, any defect in the preliminary hearing is rendered immaterial [.]") (emphasis added; internal citation omitted); Commonwealth v. Mignogna , 401 Pa.Super. 188, 585 A.2d 1, 4 (1990) (deficiency in evidence at preliminary hearing cured where trial judge determines trial evidence is sufficient for submission to jury).

Here, because the Honorable Evan S. Williams, III, determined that the Commonwealth's trial evidence was sufficient to submit Rivera's case to the jury, any defect that existed in the evidence proffered at Rivera's preliminary hearing was subsequently cured. See Ballard , supra , Tyler , supra , and Mignogna , supra ; cf. McClelland , supra at 725 (interlocutory appeal taken from pre-trial order denying motion seeking writ of habeas corpus); Commonwealth ex rel. Buchanan v. Verbonitz , 525 Pa. 413, 581 A.2d 172, 173 (1990) (appeal taken from pre-trial order denying motion seeking writ of habeas corpus). Moreover, Rivera fails to argue that the defect in the evidence at the preliminary hearing tainted the validity of the verdict. See Mignogna , supra at 4 ("[A] defendant must establish the existence of actual prejudice arising from a denial of due process at the preliminary hearing in order to be afforded the remedy of discharge."); cf. Appellant's Supplemental Brief, at 10 ("[The defects alleged here by Rivera] are of a type that require reversal without a showing of prejudice .") (emphasis added). Therefore, we will not consider any deficiency in the Commonwealth's evidence that may have existed prior to this case's submission to the jury, and we will proceed to address the issues Rivera raises on appeal.

On appeal, Rivera presents the following issues for our review:

1. Whether the trial court committed reversible constitutional error when it admitted testimony commenting on Mr. Rivera's post-arrest, post- Miranda , exercise and assertion of his right to silence?

2. Whether the trial court erred by permitting the Commonwealth to amend the [i]nformation to add new felony offenses on the last day of trial, after the defense case was underway, and the defendant was prejudiced by the amendment?

Appellant's Brief, at 5.

First, Rivera claims that he is entitled to a new trial because the court admitted evidence of his post-arrest and post- Miranda silence, in violation of his constitutional rights to remain silent under the 5th and 14th Amendments of the United States Constitution, and Article 1, Section 9 of the Pennsylvania Constitution. See Appellant's Brief, at 31-43; see also Appellant's Reply Brief, at 1-15. Specifically, Rivera argues that the court permitted the Commonwealth to place evidence into the record in contravention of our Supreme Court's decision in Commonwealth v. Turner , 499 Pa. 579, 454 A.2d 537 (1982), wherein our Supreme Court stated that, to admit evidence of the defendant's post-arrest silence:

[T]he Commonwealth must seek to impeach a defendant's relation of events by reference only to inconsistencies as they factually exist , not to the purported inconsistency between silence at arrest and testimony at trial. Silence at the time of arrest may become a factual inconsistency in the face of an assertion by the accused while testifying at trial that he related this version to the police at the time of arrest when[,] in fact[,] he remained silent.

Id. at 539-40 (citing Doyle v. Ohio , 426 U.S. 610, 96 S.Ct. 2240, 49 L.Ed.2d 91 (1976) ) (emphasis added). Rivera claims that his counsel's questioning of Trooper Higdon, on cross-examination, inquired into the completeness of the Trooper's pre-arrest investigation as well as the Commonwealth's...