The opinion
J-S19040-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT WAYNE SUTHERLAND :
:
Appellant : No. 1257 WDA 2020
Appeal from the Judgment of Sentence Entered October 28, 2020
In the Court of Common Pleas of Potter County Criminal Division at
No(s): CP-53-CR-0000092-2019
BEFORE: DUBOW, J., MURRAY, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: JULY 8, 2021
Robert Wayne Sutherland (Sutherland) appeals from the judgment of
sentence imposed in the Court of Common Pleas of Potter County (trial court)
after his jury conviction of Corruption of Minors, Sexual Abuse of a Child and
Endangering the Welfare of Children.1 He challenges the admission of a
photograph of his wife, Autumn Sutherland, that he admittedly took,
committing sexual abuse of their minor child, and the criminal complaint filed
against her. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 6301(a)(1), 6312(b)(2) and 4304(a), respectively.
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We take the following factual background and procedural history from
the trial court’s January 7, 2021 opinion and our independent review of the
certified record.
I.
On April 16, 2019, the Commonwealth filed an Information charging
Sutherland with the above crimes for his participation in the sexual abuse of
his five-year-old son with his wife, Autumn Sutherland. Sutherland’s one-day
jury trial occurred on September 29, 2020. As described by the trial court:
The evidence at trial indicated that [Sutherland] took
photographs of his wife, Autumn Sutherland while she was
performing oral sex on their five year old son. In a separate
proceeding, Mrs. Sutherland was convicted and sentenced for her
role in the sexual assault against her son. She returned to [c]ourt
from prison to testify against her husband.
During examination of Autumn Sutherland, she was asked
whether she made a statement which was contained in an Affidavit
attached to the criminal complaint filed by Chief Bryan Phelps
against [her]. She reviewed the Affidavit and acknowledged that
it contained the statement she provided to Chief Phelps. The court
allowed the Affidavit to be admitted into evidence over the
objection of the defense. (See N.T. Trial, 9/29/20, at 18-20).
Mrs. Sutherland testified concerning the facts contained in the
Affidavit and was subject to rigorous cross-examination by the
defense concerning her recollection of the events and as to the
assertions in the Affidavit. Mrs. Sutherland’s testimony generally
mirrored that which was contained in her statement to Chief
Phelps; however, she provided more detail of the sexual assault
during her testimony.
* * *
[Mrs. Sutherland also testified about a photograph
Sutherland took of her sexually assaulting her son in their
bedroom. During her testimony, the following exchange
occurred:]
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Q. Who is in this photograph?
A. It’s me and my son.
Q. And what are you doing in this photograph?
A. I’m giving him oral.
Q. And how old is your son in this photograph?
A. He was about five.
Q. And you are obviously over the age of 18 at the time; is that
right?
A. Yes.
Q. And can you tell us who took the photograph?
A. [Sutherland] did.
Q. And can you tell us where the photograph was taken at?
A. In mine and [Sutherland’s] bedroom.
Q. And what address would that be at?
A. 34 Main Street, Roulette.
(Id. at 21-22).
Thereafter, the Commonwealth moved for admission of the
photograph and the defense objected asserting that the witness
had not said that the photo represented an “… accurate depiction
of the events on that date.” In response to the objection, the
Commonwealth then queried the witness again.
Q. Mrs. Sutherland, is this photograph a true and accurate
depiction of you performing oral sex on [the minor child] during a
photograph that [Sutherland] took at 34 Main Street?
A. Yes.
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(Id. at 22-23).
After Mrs. Sutherland indicated that the photograph was a
“true and accurate depiction” the defense offered no further
objection to the admission of the photograph [and it was
admitted].
(Trial Court Opinion, 1/07/21, at 1-3) (record citation format provided).
Autumn Sutherland explained that she, Sutherland and the minor were
the only people present, and that Sutherland took the photograph as he had
on other occasions when she had fondled the child’s genitalia at his suggestion
and he had helped the child to penetrate her vaginally. Although she first
stated on cross-examination that she did not remember the actual
performance of the sexual act in question until she saw the photograph, she
clarified that she did remember Sutherland pressuring her that day as he had
on other occasions, and she stated that she gave in to his demands that day
as she always did. (See id. at 20-21, 24-25, 27-28).
Chief Phelps testified that during an unrelated investigation of the
Sutherlands, the police became aware that photographs were taken in the
Sutherlands’ home that could be considered child pornography. Sutherland
contacted the police, advising them that he had a flash drive that he believed
would aid in that investigation,2 as well as the photograph that is the subject
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2 Although the unrelated investigation was not clearly identified at trial,
Sutherland filed a witness report when he turned over the flash drive to the
police in which he stated that he provided it because it depicted a fight and
his wife had accused him of choking her. (See N.T. Trial, at 40-41).
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of this case, because he believed it was important that they see it. He claimed
that upon arriving home from work, he snuck down the hallway of their double
wide trailer, found Autumn Sutherland sexually assaulting their son, retrieved
a camera and took the photograph without her knowledge. He maintained
that the photograph was taken when the child was approximately five-years-
old at the home he and his wife shared and that he did not give the photograph
to the police sooner over concern he would lose his child. Based upon his
investigation, which included interviewing Autumn Sutherland and her
confirmation of the crime, visiting the home and his knowledge of Sutherland’s
large size, the officer “[a]bsolutely did not” believe Sutherland’s version of
events. (See id. at 38); (see also id. at 36-38, 40-41).
At the conclusion of trial, the jury convicted Sutherland of the above
charges. On October 28, 2020, the court sentenced him to an aggregate term
of incarceration of not less than forty-three nor more than ninety-six months.
Sutherland timely appealed and he and the court have complied with Rule
1925. See Pa.R.A.P. 1925.
On appeal, Sutherland challenges the admission of the photograph of
Autumn Sutherland sexually assaulting the minor child and the criminal
complaint against her.3 (See Sutherland’s Brief, at 6).
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3 “The admissibility of evidence is at the discretion of the trial court and only
a showing of an abuse of that discretion, and resulting prejudice, constitutes
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II.
A.
Sutherland argues that the trial court erred in admitting the photograph
of Autumn Sutherland sexually abusing their minor son. He contends that she
could not authenticate it since she could not recall the incident that it depicted.
(See id. at 21-23).
“[T]o satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding
that the item is what the proponent claims it is.” Pa.R.E. 901(a). Photograph
evidence “must [] be properly authenticated by evidence sufficient to show
that it is a fair and accurate representation of what it is purported to depict.
Demonstrative evidence may be authenticated by testimony from a witness
who has knowledge of what the evidence is proclaimed to be.”
Commonwealth v. Reid, 811 A.2d 530, 552 (Pa. 2002), cert. denied, 540
U.S. 850 (2002) (citing 901(a), (b)(1)).
Here, the record belies Sutherland’s argument. Autumn Sutherland
expressly testified that the photograph introduced by the Commonwealth was
a “true and accurate depiction” of her “performing oral sex on [their five-year-
old son]” in the bedroom she shared with Sutherland. (N.T. Trial, at 22-23;
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reversible error.” Commonwealth v. Hudson-Greenly, 247 A.3d 21, 24
(Pa. Super. 2021) (citation omitted).
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see id. at 21, 24). She explained that she, Sutherland and the minor were
the only people present, and that Sutherland took the photograph as he had
on other occasions. Although she testified on cross-examination that she did
not remember the actual performance of the sexual act until she saw the
photograph of herself doing so, she did remember Sutherland pressuring her
that day as he had on other occasions, and that she always gave in to his
demands. The trial court admitted the photograph, noting that the
Commonwealth laid a proper foundation where Autumn Sutherland, the
subject of the photograph, testified that the photo accurately depicted the
incident in question and any question of weight would be for the jury to
determine. (See id. at 24-25, 27-28, 34).
We discern no abuse of discretion. Autumn Sutherland had first-hand
knowledge of the incident and testified to the photo’s authenticity. The
Commonwealth provided sufficient evidence that the photograph was “a fair
and accurate representation of what it [was] purported to depict” and it was
for the jury to decide the weight to be afforded it due to any doubt created on
cross-examination. See Reid, supra at 552. This issue lacks merit.
B.
Sutherland also argues that the court erred in admitting the criminal
complaint filed against Autumn Sutherland because the affidavit of probable
cause supporting the complaint was hearsay where it contained a summation
by the arresting officer, Chief Phelps, not Autumn Sutherland’s own
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statements. He maintains that the complaint did not qualify as a past recorded
recollection exception to the hearsay rule because the Commonwealth failed
to establish that Autumn Sutherland lacked an independent memory of the
event detailed in the criminal complaint.4 (See Sutherland’s Brief, at 6, 16-
21).
Hearsay is a statement, other than one made by the declarant while
testifying at trial or a hearing, offered in evidence “to prove the truth of the
matter asserted in the statement.” Pa.R.E. 801(c). Pursuant to Rule
803.1(3), the recorded recollection of a witness is admissible as an exception
to the hearsay rule if the recording:
(A) is on a matter the declarant-witness once knew about but now
cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the declarant-witness when the
matter was fresh in his or her memory; and
(C) the declarant-witness testifies accurately which reflects his or
her knowledge at the time when made.
Pa.R.E. 803.1(3). This exception only applies where the witness “lacks a
present recollection of the event.” Commonwealth v. Young, 748 A.2d 166,
177 (Pa. 1999) (citation omitted).
In this case, as explained above, Autumn Sutherland had a present
recollection of the events, testifying with more detail at trial than in her past
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4 We observe that this is contrary to Sutherland’s previous argument that his
wife did not have a recollection of the subject event.
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statement to Chief Phelps. As a result, the criminal complaint was not properly
admitted under the recorded recollection exception to the hearsay rule. See
id.
This does not end our inquiry, however, because we must determine if
the admission of the evidence was harmless error.
Harmless error exists if the state proves either: (1) the error did
not prejudice the defendant or the prejudice was de minimis; or
(2) the erroneously admitted evidence was merely cumulative of
other untainted evidence which was substantially similar to the
erroneously admitted evidence; or (3) the properly admitted and
uncontradicted evidence of guilt was so overwhelming and the
prejudicial effect of the error was so insignificant by comparison
that the error could not have contributed to the verdict.
Commonwealth v. Burno, 154 A.3d 764, 787 (Pa. 2017) (citation omitted).
Here, Sutherland told law enforcement that he took the photograph of
Autumn Sutherland committing sexual assault on their child and provided
Chief Phelps a flash drive containing it. Autumn Sutherland testified in detail
about the abuse at issue, specifically stating that she was in the introduced
photograph giving oral sex to her child and that, on other occasions, she had
fondled the child’s genitalia at Sutherland’s suggestion and he had helped the
child to penetrate her. She stated Sutherland also would watch and take
pictures of these sexual acts. Sutherland’s counsel thoroughly cross-
examined Autumn Sutherland about the photograph and her testimony about
the abuse. Chief Phelps also testified that Sutherland gave him the
photograph depicting Autumn Sutherland performing oral sex on the minor
child at their residence and that, at her police interview, Autumn Sutherland
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identified herself in the photo and testified consistent with her trial testimony.
Based on the evidence, Chief Phelps testified Sutherland’s version of events
was inconsistent with the evidence and that he did not believe it.
Based on the foregoing, the uncontroverted evidence of Sutherland’s
guilt was overwhelming, and any harm caused by the admission of the criminal
complaint was de minimus and any prejudice insignificant. Accordingly, the
admission of the criminal complaint was harmless error. See Burno, supra
at 787.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/8/2021
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