Com. v. Diaz, N.

J-A27029-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

NESTER LUIS DIAZ :

:

Appellant : No. 1488 MDA 2023

Appeal from the Judgment of Sentence Entered June 13, 2023

In the Court of Common Pleas of Luzerne County Criminal Division at

No(s): CP-40-CR-0001725-2020

BEFORE: LAZARUS, P.J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED: APRIL 3, 2025

Nester Luis Diaz appeals from the judgment of sentence imposed

following his convictions for aggravated indecent assault of a person less than

13 years of age, indecent assault of a person less than 13 years of age, and

corruption of minors.1 He raises evidentiary issues and challenges the denial

of a motion for judgment of acquittal. We affirm.

The trial court accurately summarized the facts as follows:

The victim, J.T., who was fifteen years old at the time of

trial, testified that the forty-four[-]year[-]old [Diaz] is her

uncle by marriage. J.T. said that in July and August of 2019,

when she was eleven years old, she lived with [Diaz] in

Patterson, New Jersey. The victim said that her mother lived

in Wilkes-Barre at the time. J.T. said that she was staying

in Patterson with [Diaz] because she was taking classes

twice a week to prepare to be in a beauty pageant. Also

residing in the house in New Jersey were her aunt and four

cousins. Her aunt . . . is the sister of the victim’s mother

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1 18 Pa.C.S.A. §§ 3125(a)(7), 3126(a)(7), and 6301(a)(1)(ii), respectively.

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and the wife of [Diaz]. The victim said that while her cousins

were attending school classes and her aunt was working,

[Diaz] was at home. J.T. said she slept in the top bunk of a

bed in a room she shared with her cousins. She testified that

the pageant classes took place in the afternoons from 2:00

until 7:00 p.m. She said she would lay in bed all day. J.T.

testified that one morning, while she was half asleep in her

top bunk, [Diaz] came [into] the room and rubbed her leg

to wake her up. She said it made her feel uncomfortable.

J.T. said that she tried to fake sleep because she was scared

and nervous of what would happen next if she was up. She

said after he touched her leg, he would then put his hand

near her stomach and slide his hand down her pants and

underwear. She said he rubbed the outside of her “private

part” with his hand and touched the inside with two fingers

and it hurt. J.T. said [Diaz] engaged in this behavior about

five times while she was living in New Jersey. In addition,

she said that on one occasion he called her into his bedroom

one morning where he laid her down, pulled down her pants

and attempted to insert his private part into hers which

caused pain. J.T. said that he stopped because there was a

knock on the door. She testified that [Diaz] also touched his

own “private part” until he ejaculated. She said he called it

“jerking off” and he only stopped when there was a

substance that looked like Elmer’s glue. J.T. said he cleaned

it up with a towel on the bed frame in his room. She said

that [Diaz] tried to grab her hand to touch his private part

but she was disgusted and would not consent. J.T. said

[Diaz] threatened that if she told anyone “her mother’s life

would pay” and that nobody would believe her. After the

pageant was over, the victim’s mother . . . came to pick her

up and she went to live with her in Wilkes-Barre.

While J.T. and her mother were living in Wilkes-Barre,

[Diaz] and the victim’s aunt and cousins came to visit on the

weekends. She said that knowing that [Diaz] was back in

the picture made her feel uncomfortable and scared. J.T.

said that when [Diaz] and his family visited, they slept in

the living room with her aunt and [Diaz] sharing an air

mattress. The victim further testified that she slept on

another air mattress with her cousin. J.T. testified that while

everyone else was asleep, [Diaz] would pull the mattress

she was sleeping on closer to him and touch her chest and

the private part in between her legs with his hand. She said

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that he touched both the inside and outside of her private

parts. She testified that he put his fingers inside her private

part. She said that while they were in Wilkes-Barre, he again

threatened her not to say anything. He told her that “no one

would really know about any of us because we’re alone

there, and if we die no one would know.” J.T. said [Diaz]

bought her bras, underwear and clothing and that he took

pictures of her wearing the clothing on his phone. She said

she only wore the things once because she would have been

disgusted with herself if she had worn them more than once.

J.T. also testified that he showed her a video of her aunt and

[Diaz’s] friend that [Diaz] had recorded. She said that in the

video, her aunt was on top of his friend with his private part

in hers while he was touching his private part. She said

[Diaz] told her that people do that eventually when they

love each other. J.T. said that she was disgusted by the

video.

The victim testified that after a few months, she moved

to Mountain Top between Christmas and New Year’s Day.

J.T. said that she, her mother, her aunt, cousins, and [Diaz]

all lived together in the house. She testified that at the time

they moved into the house, she still had not told anyone

about the inappropriate contact with [Diaz] because she had

been threatened not to tell. J.T. said that the inappropriate

contact continued on three occasions in Mountain Top. On

the last occasion which she said occurred in 2019, she was

downstairs playing with her cousin when [Diaz] called her

upstairs to the guest room. She said that when she walked

in, he was wearing a shirt and boxers and he told her to get

on the bed. When she refused, he told her again and

grabbed her arm with “a hard grip.” She said that while he

was behind her, he laid her in front of him and pulled his

boxers down. J.T. said he took down her pants and

underwear and put his private part into hers. She said she

screamed in pain and told him to stop. J.T. said [Diaz] said

“no”, grabbed her waist and “proceeded to have his private

part” all the way in her. She said he stopped when her eight

year old cousin came upstairs and opened the door. She said

[Diaz] “freaked out,” yelled at her cousin, and left the room.

J.T. said that afterwards she felt disgusted, in pain, and

scared. The other two times [Diaz] touched her in Mountain

Top he touched her chest and private area.

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J.T. further testified that in the summer of 2020, she

disclosed the abuse to her mother. J.T. said she did not want

to tell, but they were driving in the car and her mother asked

her if there was anything wrong with her and said she had

noticed some “weird behavior” around her and [Diaz]. She

said her mother noticed that her behavior had changed and

she was misbehaving. J.T. said her mom asked her

questions for about thirty minutes before she answered.

Although she was afraid for her mother, she told her about

the abuse. J.T. said her mother called her aunt and told her

to get out of the house. She said her mother also texted

[Diaz] to pack their things and go. J.T. said she and her

mother then went to a friend’s house, called the police, and

went to the Mountain Top police station. She said the police

in Mountain Top told them to go to the Wilkes-Barre police.

J.T. testified that on the same day, they went to the Wilkes-

Barre police station and she was interviewed by the police

there.

Trial Court Opinion, filed 1/31/24, at 2-5 (citations to record and footnotes

omitted).

Lieutenant Matthew Stash testified at trial that he was on duty when the

victim and her mother came to the Wilkes-Barre police department. He stated

without objection that “it was immediately apparent to me that they really

needed my help.” N.T. Trial, 1/23/23, at 86. He conducted a minimal interview

and then set up an interview at the Child Advocacy Center (“CAC”). During his

interview of J.T., he noticed that “there was some trauma there” and “it was

immediately apparent to me that this girl had been the victim of some type of

sexual crime.” Id. at 92-93.

Diaz was charged with rape of a child (count one), sexual assault (count

two), statutory sexual assault (count three), aggravated indecent assault of a

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person less than 13 years of age (count four), indecent assault of a person

less than 13 years of age (count five), and corruption of minors (count six).

After the Commonwealth’s case-in-chief, Diaz made an oral motion for

judgment of acquittal on counts one, two, and three. N.T. Trial at 111-114.

The trial court granted Diaz’s motion for judgment of acquittal on those

counts. See id. at 115-116.

Diaz testified on his own behalf and denied that anything of a sexual

nature occurred between himself and J.T. Id. at 121, 129, 131.

During the trial, the court gave the jury the following cautionary

instruction about its use of evidence of other, uncharged acts:

Ladies and gentlemen, you’ve heard some testimony

regarding incidents occurring in New Jersey, as well as

Mountain Top. The evidence was allowed for a particular

purpose since Defendant is not criminally charged for that

alleged conduct. If the evidence is believed by you, it can

only be considered to establish or prove opportunity, intent,

common plan and to show the complete history of the case

here or the circumstances here.

I will give you a further instruction on that as we go

forward.

Id. at 81. The trial court gave a second cautionary instruction about the same

evidence during its charge to the jury. Id. at 175.

After the trial concluded, the jury convicted Diaz of the above-

referenced offenses. A Sexually Violent Predator (“SVP”) hearing was held

prior to sentencing, in which Paula Brust from the Sex Offender Assessment

Board (“SOAB”) testified as an expert. Brust testified that she is a licensed

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professional counselor in Pennsylvania and had been employed by the SOAB

since 2002. N.T. Sentencing, 6/13/23, at 9-10. She stated that she had

performed approximately 1,550 assessments for the SOAB and had testified

as an expert approximately 400 times. Id. at 10-11.

Brust conducted an evaluation on Diaz, in which she considered, inter

alia, the following: the SOAB investigator report; Luzerne County court order

for assessment; defense attorney response; Child Line indicated report; the

criminal information, complaint, and affidavit; Luzerne County CAC

evaluation; the jury trial slip; the plea agreement; Luzerne County court order

dated 11/17/22; Wilkes-Barre police report, complaint, and warrant; and an

excerpt of jury trial proceedings. Id. at 22. Based on her assessment, she

concluded that Diaz was an SVP. Id. at 28.

The court determined that the Commonwealth met its burden and

deemed Diaz to be an SVP. Id. at 43-44. The court then sentenced Diaz to an

aggregate term of 60 to 180 months’ incarceration. Diaz filed post-trial

motions, which were denied. This appeal followed.

Diaz raises the following issues:

A. On March 8, 2022, did the [c]ourt err in granting the

Commonwealth’s Rule of Evidence 404(b) Motion to admit

testimony of alleged instances of extra-jurisdiction,

uncharged sexual assaults between [Diaz] and the alleged

victim from the summer of 2019 and New Years of

2019/2020?

B. On January 23, 2023, did the [c]ourt err in allowing

Lieutenant Stash to testify in violation of Pennsylvania

Evidence Rules 701 and 702 regarding lay and expert

testimony?

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C. On January 23, 2023, did the court err in sustaining the

Commonwealth’s objection to fair and admissible

questioning during the cross examination of Lt. Stash?

D. On January 23, 2023, did the [c]ourt err in denying

[Diaz’s] Motion for Judg[ment] of Acquittal on all charges

despite the Commonwealth’s failure to establish the

necessary facts to support all criminal charges?

E. On June 13, 2023, did the [c]ourt err in both accepting

Paula Brust to testify as an expert, and utilize her testimony

to conclude Diaz to be a Sexually Violent Predator?

Diaz’s Br. at 8 (suggested answers and answers by the trial court omitted).

Diaz first argues that the court erred in admitting his sexual assault

allegations that occurred in New Jersey and Mountain Top, Pennsylvania in

2019 and 2020. Id. at 16. He maintains that this evidence should not have

been admissible under Rule of Evidence 404(b) as a common plan, scheme,

or design because Diaz’s “alleged 2019 and 2020 [] incidents lack the requisite

similarities to establish a common scheme.” Id. Diaz points out that all

purported instances involve Diaz and the same complainant, “with extreme

variety in details that preclude an inference of a broader common plan.” Id.

He argues that “[t]here is nothing unique in the type, manner, or sexual

conduct alleged” and “[a]ll occurrences were at different times and locations,

and in different manners.” Id. at 17. According to Diaz, the testimony was

“impermissible propensity evidence guised as common plan evidence[.]” Id.

Diaz further argues that the court erred when it admitted Diaz’s

allegations in New Jersey and Mountain Top based on the res gestae

exception. Id. at 18. He maintains that prior bad acts evidence may be

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admissible as res gestae only where the evidence will furnish the complete

story, and here, the victim’s trial testimony about the Luzerne County

incidents, in conjunction with the Commonwealth’s other witnesses, was

independent of and not reliant upon the other abuse allegations. Id. at 18-

19.

Diaz further maintains that the admissibility of these alleged prior bad

acts caused him unfair prejudice. Id. at 21. He argues that the court should

have found that any probative value was outweighed by its prejudicial effect.

Id. at 23. He maintains that the trial court’s curative instruction to the jury

on this issue was ineffective to mitigate its prejudicial effect. Id. Diaz argues

that “[t]he instruction also failed to explicitly caution the jury against using

the evidence to infer [his] propensity or predisposition to commit the charged

offenses.” Id. at 24.

The admission of evidence is within the discretion of the trial court and

will only be reversed where there is an abuse of that discretion. See

Commonwealth v. Radecki, 180 A.3d 441, 451 (Pa.Super. 2018). An abuse

of discretion exists where the court overrides or misapplies the law or

exercises judgment in a way “that is manifestly unreasonable, or the result of

bias, prejudice, ill will or partiality, as shown by the evidence of record.” Id.

(citation omitted).

Rule 404(b) of the Pennsylvania Rules of Evidence bars admission of

evidence of prior bad acts to establish a person’s character and to prove that

the person acted on a particular occasion in conformity with that character.

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Pa.R.E. 404(b)(1). However, evidence of prior bad acts is permissible for some

other, proper purpose, such as to prove “motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of

accident.” Pa.R.E. 404(b)(2). In criminal cases, “this evidence is admissible

only if the probative value of the evidence outweighs its potential for unfair

prejudice.” Id.

Another exception to the inadmissibility of prior bad acts evidence is the

“res gestae” or “complete story” exception. See Commonwealth v. Carter,

320 A.3d 140, 149 (Pa.Super. 2024). Under this exception, evidence of other

criminal acts is admissible “to complete the story of the crime on trial by

proving its immediate context of happenings near in time and place.”

Commonwealth v. Brown, 52 A.3d 320, 326 (Pa.Super. 2012) (citation

omitted). This exception applies where the acts “were part of a chain or

sequence of events which formed the history of the case and were part of its

natural development.” Commonwealth v. Knoble, 188 A.3d 1199, 1205

(Pa.Super. 2018) (citation omitted).

A further exception exists in cases involving a challenge to the admission

of evidence of a prior sexual act.

In general, evidence of other wrongful conduct not charged

in the information on which the defendant is being tried is

inadmissible at trial except in certain limited circumstances.

One such exception arises in the prosecution of sexual

offenses. Evidence of prior sexual relations between

defendant and his or her victim is admissible to show a

passion or propensity for illicit sexual relations with the

victim. This exception is limited, however. The evidence is

admissible only when the prior act involves the same victim

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and the two acts are sufficiently connected to suggest a

continuing course of conduct. The admissibility of the

evidence is not affected by the fact that the prior incidents

occurred outside of the statute of limitations.

Commonwealth v. Wattley, 880 A.2d 682, 686 (Pa.Super. 2005) (quoting

Commonwealth v. Knowles, 637 A.2d 331, 333 (Pa.Super. 1994)

(emphasis in Wattley).

In Knowles, a jury convicted Knowles of sexually abusing his minor

step-granddaughter. 637 A.2d at 332. On appeal, Knowles argued that the

trial court erred in admitting evidence of his prior, uncharged sexual assaults

of the victim that occurred in Texas approximately five to seven years earlier.

Id. at 333. This Court concluded that the evidence was admissible and

“relevant to show that [Knowles] had a continuing passion for illicit sexual

contact with [the victim,] and acted on that passion when the opportunity

arose.” Id. In doing so, we noted:

The prior conduct need not be precisely the same conduct

as that giving rise to the criminal charges. It is enough that

a reasonable inference can be drawn of “a passion or

propensity for illicit sexual relations with the particular

person concerned in the crime” for which the defendant is

being tried. Here, the conduct of appellant toward his wife’s

granddaughter was sufficiently similar, and the evidence

was that it occurred whenever appellant had an opportunity

to engage therein.

Id. at 334 (internal citations omitted).

Here, the trial court found that evidence of the uncharged sexual

assaults was properly admitted pursuant to Rule 404(b). It explained:

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[T]he New Jersey and Mountain Top sexual assaults were

clearly relevant and sufficiently connected to the Wilkes-

Barre assault to suggest a continuing course of conduct. J.T.

testified that [Diaz] sexually assaulted her in New Jersey

and then continued to do so when she returned to her home

in Wilkes-Barre and then again in Mountain Top when she

moved. [Diaz] claims that the court and jury were confused

as to which act occurred where and when . . ., but the

testimony clearly set forth when and where the events took

place. The evidence was necessary to provide the jury with

the complete history of the case, including [Diaz’s] attempts

to groom the victim and his increasing levels of sexual

assault against her. In addition, the evidence was necessary

to show that the events of the case did not appear in a

vacuum but were instead a continuing chain of events.

Trial Ct. Op. at 18-19.

The court did not abuse its discretion. A review of J.T.’s trial testimony

establishes that Diaz’s sexual assaults of J.T. in New Jersey and Mountain Top

and his substantially similar sexual assaults of J.T. in Wilkes-Barre were

“sufficiently connected to suggest a continuing course of conduct.” Wattley,

880 A.2d at 686. The sexual assaults occurred in a similar manner when J.T.

and Diaz were alone, or with very few people around. The acts in New Jersey

occurred while J.T. was temporarily living with Diaz over the summer. The

acts stopped when J.T. returned to her mother, but resumed when Diaz would

visit J.T. and when they lived together in Pennsylvania. As in Knowles, the

evidence here was that the assaults occurred whenever Diaz “had an

opportunity to engage therein.” 637 A.2d at 334. The evidence provided the

history of the case and showed why J.T. did not immediately disclose the

assaults, especially since Diaz had made repeated threats to her. See

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Commonwealth v. Dillon, 925 A.2d 131, 139 (Pa. 2007) (finding evidence

of appellant’s prior abuse of the minor sexual assault victim’s family members

was properly admitted because the evidence was probative of the reasons for

victim’s delay in reporting the sexual assaults and “was also relevant for res

gestae purposes, i.e., to explain the events surrounding the sexual assaults,

and resulting prosecution so that the case presented to the jury did not appear

in a vacuum”).

Further, as set forth above, the trial court gave the jury two cautionary

instructions regarding the limited purpose for which it could consider the bad

acts evidence. See N.T. Trial at 81, 175; Dillon, 925 A.2d at 141 (“[W]hen

weighing the potential for prejudice, a trial court may consider how a

cautionary jury instruction might ameliorate the prejudicial effect” of Rule

404(b) evidence). “It is presumed the jury follows the court’s instructions.”

Commonwealth v. Speight, 854 A.2d 450, 458 (Pa. 2004). Diaz’s first claim

fails.

Diaz next argues that the court erred in allowing Lieutenant Stash to

testify as an expert in violation of Pennsylvania Rules of Evidence 701 and

702. Diaz’s Br. at 26. He asserts that Lieutenant Stash made several

speculative claims as to the victim’s mental state – including “it was

immediately apparent to me that they really needed my help,” “there was

some trauma there,” and “it was immediately apparent to me that this girl

had been the victim of some type of sexual crime” – without there being a

proper foundation. Id. at 27. Diaz maintains that determining whether

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someone has been a victim of a sexual crime is in “the realm of a psychologist

or some other expert in understanding human emotions and behaviors, not a

Lieutenant.” Id. at 27-28.

The record reveals that Diaz failed to object to Lieutenant Stash’s

testimony at trial. Diaz, in fact, concedes that his counsel failed to object. See

Diaz’s Amended Post-Trial Motion, filed 6/19/23, at ¶ 48. Because Diaz’s

counsel failed to timely object, Diaz failed to preserve this issue for appellate

review. Diaz has therefore waived this claim on appeal. See Pa.R.A.P. 302(a)

(“[i]ssues not raised in the trial court are waived and cannot be raised for the

first time on appeal”); Commonwealth v. Bryant, 855 A.2d 726, 740 (Pa.

2004) (failure to raise contemporaneous objection at trial waives claim on

appeal).2

Diaz next argues the court impermissibly restricted his cross-

examination of Lieutenant Stash about J.T.’s medical report. Diaz’s Br. at 28.

He contends that he should have been permitted to elicit testimony from

Lieutenant Stash that J.T.’s medical exam results were normal. Id. at 29. Diaz

alleges that the court erred when it “improperly sustained Commonwealth

objections to Diaz’[s] cross examination of Stash about facts from a medical

report of which he had personal knowledge.” Id. at 13.

____________________________________________

2 Although Diaz raised the issue in his post-trial motion, this did not cure his

failure to preserve the issue. See Commonwealth v. Baumhammers, 960

A.2d 59, 73 (Pa. 2008) (rejecting appellant’s claim that objections not

contemporaneously raised in the lower court were preserved “by virtue of

having been set forth in post-sentence motions”).

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During cross-examination of Lieutenant Stash, the following exchange

occurred:

[DEFENSE COUNSEL]: As part of [J.T.’s] investigation in the

CAC she underwent a physical examination, correct?

[LT. STASH]: Yes.

[DEFENSE COUNSEL]: And following the examination the

doctor compiled a report, right?

[LT. STASH]: Yes.

[DEFENSE COUNSEL]: And you reviewed that report?

[LT. STASH]: Yeah, I did.

[DEFENSE COUNSEL]: And that report indicated that [J.T.’s]

genital --

[THE COMMONWEALTH]: Objection. Could we have a

sidebar, Your Honor?

(Whereupon, the following occurred at sidebar:)

[THE COMMONWEALTH]: So I actually was going to make a

motion in limine prior but I waited for this time. I’m just

going to ask that Lieutenant Stash be precluded from giving

any type of testimony relating to the outcome or any type

of medical opinion as to what the medical exam showed. We

don’t have an expert for that. Defense doesn’t have an

expert for that. She can ask that there was a wellness exam,

but getting into what that exam revealed and showed, I’m

asking that it be precluded.

[DEFENSE COUNSEL]: Your Honor, I’m not asking for his

opinion about the results of the exam, I’m just asking for

what he did during his investigation process that led to the

filing of charges. I’m not asking him to testify to what his

findings were, what his take on the exam was.

THE COURT: What question were you in the process of

asking? . . .

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[DEFENSE COUNSEL]: I believe, he reviewed the report and

that the findings were normal and that was the last question

I had about the medical exam.

THE COURT: What question are you going to ask?

[DEFENSE COUNSEL]: That he reviewed the doctor’s report

and that there was no abnormal finding.

THE COURT: So you’re going to ask, Detective, there was

an exam. Yes, there was an exam. Did you review the

report? Yes, I did. What did the report say?

[DEFENSE COUNSEL]: Essentially, yes.

THE COURT: And the report says the exam was normal?

[DEFENSE COUNSEL]: Yes.

[THE COMMONWEALTH]: I just want to make sure we’re not

going into the part where her genitals were examined.

THE COURT: If that’s all that there is, do you have an

objection to that, or your objection is you don’t want to go

deeper than that?

[THE COMMONWEALTH]: I’m saying he could only be asked

if there was a medical exam and if he reviewed the report.

THE COURT: So you don’t think he can say what the results

are even if it’s just the results were normal?

[THE COMMONWEALTH]: I think he should be precluded

from that. He’s a lay witness. He doesn’t have any medical

experience. I don’t have an expert coming in to say what it

means. It’s going to be confusing to the jury if they think,

well, how could she be claiming she was raped if the exam

is normal?

THE COURT: Right. What if [defense counsel] were to ask,

Detective, as a result of the physical exam is there any

physical evidence that these assaults took place?

[THE COMMONWEALTH]: That’s fine because I already – on

direct he already said there wasn’t. So that's fine.

THE COURT: Limit it to that.

[DEFENSE COUNSEL]: Yes, Your Honor. Thank you.

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N.T. Trial at 99-102.

The court then went back on the record and defense counsel asked

Lieutenant Stash if he reviewed J.T.’s medical report and he replied, “Yes.”

Id. at 102. Defense counsel marked the medical report as an exhibit and

showed it to Lieutenant Stash. Id. at 103. The following then occurred:

[DEFENSE COUNSEL]: Your Honor, I’m showing Lieutenant

Stash what been marked as Defendant’s Exhibit 1.

[LT. STASH]: Okay. What was your question again?

[DEFENSE COUNSEL]: That the result of the examination

was that there was no physical evidence that the assaults

had taken place, correct?

[LT. STASH]: It states that it’s normal. I don’t know that I

could say no to that. It’s just the report says that it’s normal.

Id.

The above testimony confirms that defense counsel did, in fact, elicit

testimony from Lieutenant Stash that J.T.’s medical exam results were

normal. The record thus belies Diaz’s contention that he was prevented from

eliciting such testimony. Since Lieutenant Stash testified that the results were

normal, which was defense counsel’s objective in this line of questioning as

she stated at sidebar, Diaz has failed to prove he suffered any harm. This

claim fails.

Diaz next argues that the court erred in denying his motion for judgment

of acquittal because the evidence was insufficient to support his convictions.

He asserts that the admission of his alleged sexual acts in New Jersey and

Mountain Top impermissibly tainted the jury. Diaz’s Br. at 31. Diaz points out

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that “[t]he Commonwealth presented the testimony of the alleged victim in

one continuous story from New Jersey, Wilkes-Barre, and Mountain Top” which

could have caused the jury confusion since “the jury could have seen all of

these as part of the same criminal action, not separated by year, month, or

location.” Id. He further emphasizes that there was no physical evidence

presented by the Commonwealth to support the charges and only limited

circumstantial evidence was presented to suggest that he and the alleged

victim had been near each other. Id. at 31-32. According to Diaz, “[t]his

complete lack of evidence, outside of the jumbled testimony of one witness

and those who believe her, means that the Commonwealth’s case is based on

nothing more than mere speculation and conjecture.” Id. at 32.

“A motion for judgment of acquittal challenges the sufficiency of the

evidence to sustain a conviction on a particular charge, and is granted only in

cases in which the Commonwealth has failed to carry its burden regarding that

charge.” Commonwealth v. Emanuel, 86 A.3d 892, 894 (Pa.Super. 2014)

(citation omitted).

Here, after the Commonwealth’s case-in-chief, Diaz moved for judgment

of acquittal on counts one, two, and three, which the court granted. See N.T.

Trial at 111-116. However, he did not move for judgment of acquittal on

counts four, five, and six. See id. at 115 (defense counsel stating, “Your

Honor, I do not have an argument with regard to [counts four, five, and six]”).

Diaz has thus waived this issue on appeal. See Commonwealth v. Richard,

150 A.3d 504, 516 n.6 (Pa.Super. 2016) (finding appellant’s issue waived

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pursuant to Pa.R.A.P. 302(a) for failure to raise it before the trial court when

presenting his motion for judgment of acquittal).3

Diaz’s final argument is that Paula Brust should not have been allowed

to testify as an expert as to whether Diaz was an SVP, as the subject in which

she was qualified as an expert is not created by the applicable statute. Diaz’s

at 32. He notes that 42 Pa.C.S.A. § 9799.24 covers assessments to determine

whether a person is an SVP after conviction. Id. Diaz argues that nowhere in

the statute does it refer to the person who conducts such an assessment as

an “expert” or “specifically denotes any such field of expertise.” Id. at 32-33.

____________________________________________

3 We note that Diaz raised a sufficiency of the evidence challenge in his

amended post-trial motion and Rule 1925(b) statement. However, Diaz only

argued in those filings that the Commonwealth failed to establish where and

when the alleged events occurred and that the prosecution’s evidence was

nothing more than conjecture and speculation. See Diaz’s Amended Post-Trial

Motion, filed 6/19/23, at ¶¶ 99-100; Diaz’s Concise Statement of Matters

Complained of on Appeal, filed 11/13/23, at ¶¶ 22-23. Moreover, Diaz’s Rule

1925(b) statement fails to state with specificity the elements upon which Diaz

alleges that the evidence was insufficient. “In order to preserve a challenge to

the sufficiency of the evidence on appeal, an appellant’s Rule 1925(b)

statement must state with specificity the element or elements upon which the

appellant alleges that the evidence was insufficient.” Commonwealth v.

Garland, 63 A.3d 339, 344 (Pa.Super. 2013). “Such specificity is of particular

importance in cases where, as here, the appellant was convicted of multiple

crimes each of which contains numerous elements that the Commonwealth

must prove beyond a reasonable doubt.” Id. (citation omitted). We thus

additionally find Diaz’s sufficiency claim waived on these grounds. To the

extent the vagueness of the 1925(b) statement may have been cured by the

trial court’s interpretation of it in the context of the litigation below, the

evidence was sufficient to prove guilt for the reasons the trial court states.

See Commonwealth v. Rogers, 250 A.3d 1209, 1224 (Pa. 2021); Trial Ct.

Op. at 25-27.

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Diaz additionally argues that in finding Diaz to be an SVP, Brust

considered alleged evidence of prior sexual misconduct by him other than

what was proven at trial. Id. at 33. Diaz takes issue with the fact that Brust,

in making her determination, considered the victim’s statement to the Child

Advocacy Center, in which she detailed the alleged past abuse by Diaz, “which

occurred outside the Commonwealth and were not corroborated by any

outside evidence or verification from the agencies Brust received

documentation from.” Id. at 34. Diaz acknowledges that while Brust was

permitted to rely on inadmissible evidence in forming her decision, such as

records from reputable agencies within the Commonwealth, he argues that

the victim’s statement to the Child Advocacy Center does not have the same

reliability or veracity as records from official agencies. Id. at 33-34. We find

these claims to be without merit.

“A challenge to a trial court’s SVP designation presents a challenge to

the sufficiency of the evidence for which our standard of review is de novo and

our scope of review is plenary.” Commonwealth v. Aumick, 297 A.3d 770,

776 (Pa.Super. 2023) (en banc). “A challenge to the sufficiency of the

evidence to support an SVP designation requires the reviewing court to accept

the undiminished record of the case in the light most favorable to the

Commonwealth.” Id. “The reviewing court must examine all of the

Commonwealth’s evidence without consideration of its admissibility.” Id.

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In determining whether a person is an SVP, an SOAB evaluator’s

assessment must include, but is not limited to, an examination of the following

factors:

(1) Facts of the current offense, including:

(i) Whether the offense involved multiple victims.

(ii) Whether the individual exceeded the means

necessary to achieve the offense.

(iii) The nature of the sexual contact with the victim.

(iv) Relationship of the individual to the victim.

(v) Age of the victim.

(vi) Whether the offense included a display of unusual

cruelty by the individual during the commission of the

crime.

(vii) The mental capacity of the victim.

(2) Prior offense history, including:

(i) The individual's prior criminal record.

(ii) Whether the individual completed any prior

sentences.

(iii) Whether the individual participated in available

programs for sexual offenders.

(3) Characteristics of the individual, including:

(i) Age of the individual.

(ii) Use of illegal drugs by the individual.

(iii) A mental illness, mental disability or mental

abnormality.

(iv) Behavioral characteristics that contribute to the

individual's conduct.

(4) Factors that are supported in a sexual offender

assessment field as criteria reasonably related to the risk of

reoffense.

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42 Pa.C.S.A. § 9799.58(b).

Within 90 days of a defendant’s qualifying conviction, the SOAB must

prepare a written report containing its assessment which includes, at a

minimum, the following information:

(1) A concise narrative of the offender’s conduct.

(2) Whether the victim was a minor.

(3) The manner of weapon or physical force used or

threatened.

(4) If the offense involved unauthorized entry into a room

or vehicle occupied by the victim.

(5) If the offense was part of a course or pattern of conduct

involving multiple incidents or victims.

(6) Previous instances in which the offender was determined

guilty of an offense subject to this subchapter or of a crime

of violence as defined in section 9714(g) (relating to

sentences for second and subsequent offenses).

Id. at § 9799.58(d), (d)(1).

This Court has held that “[a] SOAB expert opinion falls within the general

rules regarding expert witnesses.” Aumick, 297 A.3d at 777. Accordingly, a

witness who has been qualified as an expert under Pennsylvania Rule of

Evidence 702 may testify as an SVP expert. Id. Rule 702 provides:

A witness who is qualified as an expert by knowledge, skill,

experience, training, or education may testify in the form of

an opinion or otherwise if:

(a) the expert's scientific, technical, or other specialized

knowledge is beyond that possessed by the average

layperson;

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(b) the expert's scientific, technical, or other specialized

knowledge will help the trier of fact to understand the

evidence or to determine a fact in issue; and

(c) the expert's methodology is generally accepted in the

relevant field.

Pa.R.E. 702.

Like any other expert witness, an SVP expert may, pursuant to Rule

703, rely on facts and data not in evidence if experts in the field reasonably

rely on facts and data of the same sort:

[A] SOAB expert’s opinion may be based on facts or data

that the expert has been made aware of or personally

observed so long as experts in the particular field reasonably

rely on those kinds of facts or data in forming an opinion on

the subject; the facts or data consulted need not be

admissible for the expert’s opinion to be admitted. See

Pa.R.E. 702, 703 . . . The SOAB expert must state the facts

or data on which the opinion is based. See Pa.R.E. 705 and

Comment (explaining otherwise inadmissible facts and data

supporting expert opinion are considered only to explain the

basis for an expert’s opinion, not as substantive evidence).

Then, the rules of evidence place the full burden of

exploration of facts and assumptions underlying the

testimony of an expert witness squarely on the shoulders of

opposing counsel’s cross-examination. . . . Opposing

counsel bears the burden of exposing and exploring any

weaknesses in the underpinnings of the expert’s opinion.

Aumick, 297 A.3d at 781 (citation omitted).

Further “in the context of an SVP hearing, the judge is not tasked with

evaluating the veracity of the facts underlying the expert’s testimony.” Id. at

782. “[T]he facts presented at an SVP hearing are not being offered for the

truth of the matter asserted, as would be the case in a true hearsay scenario.”

Id. “Instead, they constitute information, gleaned from records which are

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reasonably relied on in SOAB evaluations, that is presented to the trial court

solely to supply the basis for the expert’s opinion in accordance with our Rules

of Evidence.” Id.

In Aumick, we held that the SOAB properly considered “the affidavit of

probable cause, criminal information, criminal complaint, preliminary hearing

transcript, and the investigative reports prepared by Child Protective Services

when assessing [the appellant].” Id. at 781. We reasoned:

The statute governing the SVP assessment does not limit

the expert’s consideration of information only to that

admitted at trial or at the guilty plea proceedings. In fact,

the statute requires state, county, and local agencies,

offices or entities to provide copies of records and

information as requested by the SOAB in connection with an

SVP assessment, without limitation on the “admissibility” of

that information . . . As a result, it stands to reason that

some if not many of the facts necessary to perform the SVP

assessment might not have been proven beyond a

reasonable doubt.

Id. (citation omitted). We further found that

it is clear that the legislature intended that the SOAB

member consider more than the limited facts included in a

plea colloquy, and that the SOAB member undertake to

review and consider the information contained in records

provided by state, county and local agencies, offices and

entities in this Commonwealth when making an SVP

assessment and preparing a statutorily compliant written

report. To be sure, it would be the rare occasion on which

the SOAB member would be able to fulfill its statutory

obligations if its SVP assessments and written reports were

limited to facts contained in a plea colloquy, admitted into

evidence, or determined by the trier of fact.

Id. at 782.

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Here, the court properly qualified Brust as an expert. As set forth above,

Brust testified that she is a licensed professional counselor and has received

SOAB training on topics including “risk assessment, sexually violent predator

determinations, report writing, recidivism, and treatment[.]” N.T. Sentencing

at 15. She has worked for the SOAB since 2002, performed approximately

1,550 assessments for the SOAB, and testified as an expert approximately

400 times. That was sufficient to qualify her as an expert in conducting SOAB

evaluations, pursuant to Rule 702. Diaz’s objection that the area of expertise

was not statutorily created is without merit. Aumick, 297 A.3d at 777.

Furthermore, the court properly relied on her testimony to find Diaz is

an SVP. She testified that she reviewed numerous documents and records,

including the CAC evaluation, in making her assessment. See N.T. Sentencing

at 22. Pursuant to Aumick, Brust’s review of this information was not only

permissible, it was required by statute. Further, there is no indication in the

record that Brust gave the evaluation undue weight and there is nothing

inherently unreliable about a report issued by the CAC, a non-profit

organization. Moreover, the court did not rely on this information as

substantive evidence in its determination that Diaz was an SVP because it was

not presented for the truth of the matter asserted but rather to explain the

basis of Brust’s opinion. See Aumick, 297 A.3d at 782. The court properly

relied on Brust’s opinion to conclude Diaz qualified as an SVP. See id. We

discern no error in the court’s determination.

Judgment of sentence affirmed.

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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 04/03/2025

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