Com. v. Walker, D.

J-S36011-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DERRICK WALKER :

:

Appellant : No. 788 EDA 2022

Appeal from the Judgment of Sentence Entered March 1, 2022

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

No(s): CP-51-CR-0006112-2019,

CP-51-CR-0006113-2019, CP-51-CR-0006114-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DERRICK WALKER :

:

Appellant : No. 789 EDA 2022

Appeal from the Judgment of Sentence Entered March 1, 2022

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

No(s): CP-51-CR-0006112-2019,

CP-51-CR-0006113-2019, CP-51-CR-0006114-2019

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

DERRICK WALKER :

:

Appellant : No. 790 EDA 2022

Appeal from the Judgment of Sentence Entered March 1, 2022

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

No(s): CP-51-CR-0006112-2019,

J-S36011-23

CP-51-CR-0006113-2019, CP-51-CR-0006114-2019

BEFORE: BOWES, J., NICHOLS, J., and KING, J.

MEMORANDUM BY BOWES, J.: FILED NOVEMBER 30, 2023

Derrick Walker appeals the aggregate judgments of sentence of twenty-

eight to fifty-six years of imprisonment following his convictions for multiple

counts of rape and related sexual offenses. We affirm.

The trial court summarized the evidence sustaining Appellant’s

convictions as follows:

[At] docket CP-51-CR-0006112-2019, the trial evidence

established that on January 20, 2011, at approximately 12:00

a.m., Patricia Croy, who had been a small and thinly framed adult

female, had walked from her nearby home to the 7-Eleven

convenience store at 5259 Oxford Avenue in Philadelphia. She

remembered standing outside of the store when she saw a large

black male approach her. She testified that Appellant flashed

what appeared to be cash and stated, “you know what to do for

this.” Feeling fearful, the complainant walked in the same

direction as Appellant around to the rear of the 7-Eleven. Once

isolated and out of sight of anyone, Appellant grabbed her, pulled

her into an alley and demanded that she drop to her knees. When

the complainant cried out “no,” Appellant pushed her to the

ground and punched her in the face. He exposed his penis and

tried to force his penis into her mouth.

When Ms. Croy would not perform oral sex on him, Appellant

hauled her up by her shirt and slammed her body onto the hood

of a car that had been parked in the alley. Appellant then pulled

her pants down from behind and forced his penis into her vagina;

he also attempted to place his penis in her anus. After Appellant

finished, the complainant pulled up her pants and walked

unsteadily to the front of the 7-Eleven. Appellant walked there as

well and told the complainant to wait while he went inside the 7-

Eleven. Appellant told her that he would get some money for her,

but she told him that she was not a prostitute and did not want

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his money. As Appellant walked into the store, she ran to her

nearby home dazed and confused.

When she got home, Ms. Croy took off her clothes, put on a

robe and sat on the floor crying for hours. She testified that at

some point she screamed[,] which had awakened her husband.

Her husband called the police, and she was taken to Episcopal

Hospital where she was treated, and a sexual assault examination

was performed. . . .

[In case number] CP-51-CR-0006113-2019, the trial

evidence established that on December 2, 2014, at approximately

12:30 p.m., the complainant, Tiffany Anderson, walked over to a

donut shop at 7th Street and Girard Avenue, in Philadelphia, after

attending her methadone treatment program. Appellant stood

outside of the shop and initiated a conversation with her about

headphones he had claimed to be selling. Ms. Anderson agreed

to look at the headphones, and they began to walk up Girard

Avenue. Appellant, a large framed black male[,] put his arm

entirely around her shoulder. This did not alarm the complainant

because of her past experiences of making . . . drug

transactions[,] when other persons would place their arm around

the buyer’s shoulder to give the appearance of familiarity to any

onlooker.

The complainant testified that as Appellant placed his arm

around her shoulder, however, Appellant poked a knife at the base

of her neck and directed her to keep walking and not to do

anything to make her “noticeable.” He grabbed her belongings,

including her iPhone and told her that he would only give it back

if she did what he said. At knifepoint, Appellant led her into an

alleyway isolated behind the Dunkin Donuts at 10th Street and

Girard Avenue and pushed her onto the ground and made her

perform oral sex upon his penis.

Ms. Anderson recalled that Appellant had grabbed her face,

forced her to turn around so that she was still kneeling with her

face pressed against a metal fence, and pulled down her pants

and vaginally raped her. When he was done, he told her to leave

and he did not return her iPhone. The complainant got up shaken

and dazed and left the alleyway. She ran to a store a few blocks

away and called her boyfriend and the police. The complainant

was taken to Episcopal Hospital, Special Victims Unit where she

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received medical treatment and a sexual assault examination

(rape kit)[.] . . .

....

[At] docket CP-51-CR-0006114-2019, trial evidence

established that on January 12, 2015, at approximately 11:30

a.m., the complainant, Battia Harden, who had just moved to

Philadelphia with her boyfriend and infant daughter, was walking

around 55th and Thompson Streets, trying to get a sense of what

was around the neighborhood. She recalled asking a woman on

the street where she could buy “loosies” (loose cigarettes). She

followed that woman’s directions as best she could remember but

surmised that she made a wrong turn when she encountered a

large framed black male later identified as Appellant.

When Ms. Harden asked Appellant if he knew where to get

“loosies,” he replied that he had sold loose cigarettes but that he

did not have any more on him. He told her that he had more at

his home nearby and that she should follow him. The complainant

walked with Appellant to a nearby house. He directed her to an

isolated area to the rear of the property. There she handed him

some money. As Appellant entered the house, the complainant

waited outside with her back facing the property. She made a cell

phone call and when the call ended, she felt someone from behind

her put a hand over her mouth and “trip her forward” onto the

ground and on her stomach. She had jeans on and could feel the

large man trying to pull them down with one hand while still

covering her mouth.

Ms. Harden testified that the male had not been able to pull

her pants down with one hand as she struggled; he removed the

hand from her mouth, and she started screaming. He then struck

her back with a tire iron that she had been able to see out [of] the

corner of her eye. Her pants came down and he forcibly inserted

his penis in her vagina. She was not sure if he had ejaculated.

During the attack, Ms. Harden had begged him to stop and

to get off her, but Appellant refused. When he finished, Appellant

ran away. Ms. Harden laid on the cold[,] hard ground crying and

scared. She then got up and called the police as soon as she got

home. The police came to her house and she directed the officers

to the attack location. There, the police officers recovered the tire

iron and transported Ms. Harden to the Special Victims Unit where

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she received medical treatment and a sexual assault

examination. . . .

Trial Court Opinion, 10/24/22, at 2-6 (cleaned up).

On December 12, 2018, the DNA from all three assaults was determined

to match. Six months later, Appellant’s DNA was connected to the three cases

through the Combined DNA Index System (“CODIS”). Appellant was arrested

on July 6, 2019. Retests of the DNA recovered from the complainants with a

sample from Appellant confirmed that he was the source of the DNA recovered

during the sexual assault examinations.

Prior to trial, the court granted the Commonwealth’s motion to

consolidate the three subject cases, over Appellant’s objection. Further, the

court denied a motion in limine filed by Appellant demanding that the nurses

who prepared examination reports concerning Ms. Harden and Ms. Anderson

testify at trial. Instead, the Commonwealth introduced those two documents

through Allison Denman, a sexual assault nurse examiner and the Clinical

Director of the Philadelphia Sexual Assault Response Center. The reports

included a single-page chain of custody form completed by the nurses, and

the remainder generally concerned the victims’ responses to standard

questions, medical background, and notes of testing performed for sexually

transmitted diseases. See Commonwealth’s Exhibits C-7, C-16.

Appellant’s defense at the consolidated jury trial was that each of the

victims was engaging in prostitution at the time of the offense and, therefore,

they consented to the sexual encounters. At its conclusion, the jury convicted

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Appellant of numerous crimes.1 He was subsequently sentenced as indicated

hereinabove. Appellant filed timely notices of appeal at each implicated

docket, and we consolidated the matters sua sponte.

Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant raises the following two issues on appeal:

I. Did not the trial court err and abuse its discretion by

consolidating three unrelated cases into a single trial, where

the cases did not satisfy any exception to the bar on “other

crimes” evidence, and consolidation tainted the jury with

prohibited propensity evidence?

II. In admitting forensic laboratory reports through the testimony

of a surrogate instead of the forensic nurses who prepared the

reports, did not the trial court violate the Confrontation Clause

and the Pennsylvania Supreme Court rules prohibiting that

hearsay evidence?

Appellant’s brief at 3 (cleaned up).

Appellant’s first issue is that the trial court erred in granting the

Commonwealth’s motion to join the three separate cases into one consolidated

trial. As to this issue, this Court has iterated that “[i]n reviewing a trial court

decision to consolidate . . . offenses for trial, our standard is abuse of

discretion.” Commonwealth v. Kunkle, 79 A.3d 1173, 1190 (Pa.Super.

2013) (citation omitted).

____________________________________________

1 Specifically, at CP-51-CR-0006112-2019 (Ms. Croy), Appellant was convicted

of rape, involuntary deviate sexual intercourse (“IDSI”), and sexual assault.

At CP-51-CR0006113-2019 (Ms. Anderson), Appellant was found guilty of

rape, IDSI, and sexual assault. At CP-51-CR0006114-2019 (Ms. Harden) the

jury convicted Appellant of rape, sexual assault, and possessing an instrument

of crime.

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Pursuant to Pa.R.Crim.P. 582, “[o]ffenses charged in separate

indictments or informations may be tried together if . . . the evidence of each

of the offenses would be admissible in a separate trial for the other and is

capable of separation by the jury so that there is no danger of confusion[.]”

Pa.R.Crim.P. 582(a)(1). We have stated that “where a trial concerns distinct

criminal offenses that are distinguishable in time, space and the characters

involved, a jury is capable of separating the evidence.” Commonwealth v.

Dozzo, 991 A.2d 898, 903 (Pa.Super. 2010) (cleaned up). Further, “[t]he

general policy of the laws is to encourage joinder of offenses and consolidation

of indictments when judicial economy can thereby be effected, especially when

the result will be to avoid the expensive and time[-]consuming duplication of

evidence.” Commonwealth v. Johnson, 236 A.3d 1141, 1150 (Pa.Super.

2020) (en banc) (cleaned up).

However, under Rule 583, a court may nonetheless order separate trials

“if it appears that any party may be prejudiced by offenses or defendants

being tried together.” Pa.R.Crim.P. 583. Pursuant to this rule, “the prejudice

the defendant suffers due to the joinder must be greater than the general

prejudice any defendant suffers when the Commonwealth’s evidence links him

to a crime.” Commonwealth v. Hobel, 275 A.3d 1049, 1067 (Pa.Super.

2022) (cleaned up). Instead,

[t]he prejudice of which Rule 583 speaks is . . . that which would

occur if the evidence tended to convict the appellant only by

showing his propensity to commit crimes, or because the jury was

incapable of separating the evidence or could not avoid

cumulating the evidence. Additionally, the admission of relevant

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evidence connecting a defendant to the crimes charged is a

natural consequence of a criminal trial, and it is not grounds for

severance by itself.

Commonwealth v. Brown, 186 A.3d 985, 993 (Pa.Super. 2018) (cleaned

up).

Based upon a collective reading of Rules 582 and 583, our High Court

has devised a three-part test relating to joinder of separate offenses at trial:

(1) whether the evidence of each of the offenses would be

admissible in a separate trial for the other; (2) whether such

evidence is capable of separation by the jury so as to avoid danger

of confusion; and, if the answers to these inquiries are in the

affirmative, (3) whether the defendant will be unduly prejudiced

by the consolidation of offenses.

Hobel, supra at 1067 (cleaned up).

When considering whether offenses would be admissible in a separate

trial for the other, we look to Rule 404(b), relating to bad act evidence, where

we have observed as follows:

Evidence of crimes other than the one in question is not admissible

solely to show the defendant’s bad character or propensity to

commit crime. Nevertheless:

Evidence of other crimes is admissible to demonstrate

(1) motive; (2) intent; (3) absence of mistake or

accident; (4) a common scheme, plan or design

embracing the commission of two or more crimes so

related to each other that proof of one tends to prove

the others; or (5) the identity of the person charged

with the commission of the crime on trial.

Additionally, evidence of other crimes may be

admitted where such evidence is part of the history of

the case and forms part of the natural development of

the facts.

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Dozzo, supra at 902 (cleaned up). “When offered for a legitimate purpose,

evidence of prior crimes is admissible if its probative value outweighs its

potential for unfair prejudice.” Commonwealth v. Tyson, 119 A.3d 353,

358 (Pa.Super. 2015) (citation omitted).

As will be discussed in more detail below, the trial court found that the

applicable Rule 404(b) exception supporting joinder was that involving a

common plan or scheme. Hence, we consider the following principles relating

to that exception:

[E]vidence of other crimes or bad acts may be admitted where the

evidence reveals criminal conduct which is distinctive and so

nearly identical as to become the signature of the same

perpetrator. Relevant to such a finding will be the habits or

patterns of action or conduct undertaken by the perpetrator to

commit crime, as well as the time, place, and types of victims

typically chosen by the perpetrator. Sufficient commonality of

factors between the incidents dispels the notion that they are

merely coincidental and permits the contrary conclusion that they

are so logically connected they share a perpetrator. If the

evidence reveals that the details of each criminal incident are

nearly identical, the fact that the incidents are separated by a

lapse of time will not likely prevent the offer of the evidence unless

the time lapse is excessive.

Commonwealth v. Kurtz, 294 A.3d 509, 532 (Pa.Super. 2023) (cleaned up).

While considerate of this standard, we are nevertheless mindful that “[i]t is

impossible for two incidents of sexual assault involving different victims to be

identical in all respects.” Commonwealth v. Cosby, 224 A.3d 372, 402

(Pa.Super. 2019), rev’d on other grounds, 252 A.3d 1092 (Pa. 2021). Rather,

“what is essential is that the similarities are not confined to insignificant details

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that would likely be common elements regardless of who had committed the

crimes.” Id. (cleaned up).

Having summarized the applicable law, we now turn to Appellant’s

arguments. He first asserts that the trial court erred in consolidating the three

cases since evidence from each would not have been admissible in the other.

More particularly, he contends that there were not enough similarities to show

a common scheme or plan because the parallels were insufficient to

demonstrate a signature, but rather were common to all rape cases involving

a stranger. See Appellant’s brief at 24-36. Appellant further avers that the

Commonwealth did not prove applicability of any other exception enumerated

under Rule 404(b), whether it be motive, intent, or absence of mistake. Id.

at 37-39. Finally, he maintains that the probative value of the various

incidents was outweighed by the potential for prejudice, and that the jury was

encouraged to consider his propensity to commit crimes. Id. at 39-42.

In rejecting this claim, the trial court determined that evidence from

each of the cases would be admissible in trial as to the others pursuant to a

common scheme or plan, and thus concluded that it did not abuse its

discretion in consolidating the three trials. Id. at 11, 14. Specifically, it

stated:

[Appellant’s] common plan[,] scheme[,] and design was to

predatorily select particularly vulnerable females who were

strangers to him to satisfy his sexual deviancy. He had perceived

each female as particularly easy to harm and less likely to be

believed because of their connection to narcotics. All adult female

complainants had been approached by Appellant as they were

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walking in outside environments. In each case, Appellant lured

and directed his chosen prey to isolated locations behind

buildings. He terrorized his victims as he raped them. His brutal

force increased with resistance. The circumstances of each sexual

attack had evidenced Appellant’s uniquely twisted mindset

towards women. In each instance he displayed a pretense of

consent. He apparently viewed his victims as unpaid prostitutes

deserving of harm. The logical connections were unmistakable.

Id. at 14. The court also noted that Appellant’s defense at trial was that the

victims consented to the sexual encounters, and therefore attacked with vigor

the credibility of the victims. As such, it noted the Commonwealth’s need for

the testimony as to all the encounters to refute Appellant’s consent defense.

Id. at 10. Finally, the court determined that each crime charged was readily

separable by the jury based on the court’s instructions for the jury to evaluate

the evidence of each offense as it concerned each victim.2 Id. at 11-12.

In the same vein, the Commonwealth asserts that the evidence of each

crime would have been admissible in separate trials pursuant to the exception

for common plan, scheme, and design. See Commonwealth’s brief at 9. It

identifies the commonalities of the incidents as such:

In each case, [Appellant] approached the victim or sought to

prolong a random encounter. In each case the victim was alone.

[Appellant] used some excuse to lure each victim away from safe

or occupied areas. Each assault occurred outside in a secluded

area. In each case [Appellant] used physical force to control the

victim. In two of the cases [Appellant] employed a weapon, in the

other he employed his fists. In each case [Appellant] had vaginal

____________________________________________

2 In its closing instructions, the trial court directed the jurors to consider each

charge and incident separately, informing them that the charges were

consolidated for a limited purpose, and that they were not permitted to regard

evidence of the other allegations to infer that Appellant was a bad person or

was inclined to commit crimes. See N.T. Trial, 10/29/21, at 148-49.

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sex with the victim against her will. He ejaculated in each victim.

Each victim had some real or perceived vulnerability, including

drug use on the part of two of the victims and third victim’s stated

unfamiliarity of the area.

Id. at 10 (cleaned up). The Commonwealth also notes that decisions from

this Court have held that common plan or scheme evidence is admissible

without proof of a signature if offered to show something other than identity

of the accused. Id. at 10-11 (citing Commonwealth v. Gray, 296 A.3d 41,

51 (Pa.Super. 2023)). It further argues that Appellant’s claim of prejudice

arising from consolidation is meritless because the jury was capable of

separating the crimes and episodes, which is evidenced by the fact that the

jury acquitted Appellant of possession of an instrument of a crime with respect

to the incident involving Ms. Anderson. Id. at 12.

Upon careful review of the certified record, we find no abuse of

discretion with the court’s decision to consolidate the three cases at trial.

First, we conclude that “evidence of each of the offenses would be admissible

in a separate trial for the other” under the common plan or scheme exception

to Rule 404(b). Hobel, supra at 1067. The similarities between each of the

three cases are striking, and the comparisons highlighted by both the trial

court and the Commonwealth are supported by the record. After consideration

of Appellant’s pattern of assaults and the types of victims he chose, we find

that the “[s]ufficient commonality of factors between the incidents dispels the

notion that they are merely coincidental and permits the contrary conclusion

that they are so logically connected[,] they share a perpetrator.” Kurtz,

supra at 532.

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Further, we determine that the evidence was “capable of separation by

the jury so as to avoid danger of confusion,” and thus satisfied Rule 582.

Hobel, supra at 1067. Each of the three assaults occurred on different dates,

in different locations, and involved different victims. Since the evidence was

“distinguishable in time, space and the characters involved,” there was no

danger the jury was confused. Dozzo, supra at 903. As the Commonwealth

highlights, the jury was demonstrably capable of separating the incidents

because it acquitted Appellant of possession of an instrument of a crime as to

one of the encounters but convicted him of that crime for another.

In the same vein, we do not find that Appellant was otherwise unduly

prejudiced by the consolidation. The testimony was not of the character that

“tended to convict the appellant only by showing his propensity to commit

crimes.” Brown, supra at 993. Rather, as indicated above, it clearly

demonstrated Appellant’s common plan and scheme. We see no reason to

believe that Appellant was unduly prejudiced, especially in light of the court’s

instructions informing the jury to consider the testimony separately as to each

victim. See Commonwealth v. Vucich, 194 A.3d 1103, 1113 (Pa.Super.

2018) (“It is well settled that the jury is presumed to follow the trial court’s

instructions.”). We also note that in weighing the probative value of

consolidation against the potential for prejudice against Appellant, standing

alone, the testimony of the victims concerning lack of consent was

uncorroborated. Accordingly, the Commonwealth had significant need for the

testimony of each victim to dispute this contention, which in turn increased

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the probative value of this collective evidence. See Tyson, supra at 362

(concluding that the trial court abused its discretion in prohibiting common

scheme evidence when it was important to the Commonwealth’s case to

bolster a victim’s testimony of lack of consent).

In sum, the trial court did not abuse its discretion in consolidating the

three underlying cases, and Appellant is therefore not entitled to relief on this

claim.

Appellant’s remaining issue alleges court error when it denied his motion

in limine concerning introduction of the sexual assault examination reports

prepared for two of the victims. Although raised as one issue, this assertion

contains two separate arguments with differing legal standards. Turning to

the first, Appellant argues that introduction of the reports by the

Commonwealth through Ms. Denman, and not the specific nurses who

prepared them, violated his right to confrontation pursuant to the Sixth

Amendment. Id. at 52-59.

This Court has stated that “[w]hether a defendant was denied his right

to confront a witness under the confrontation clause of the Sixth Amendment

is a question of law for which our standard of review is de novo and our scope

of review is plenary.” Commonwealth v. Tejada, 161 A.3d 313, 317

(Pa.Super. 2017) (cleaned up). The clause provides thimpossat “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted

with the witnesses against him[.]” U.S. Const. amend VI. It prohibits “out-

of-court testimonial statements by a witness unless the witness is unavailable

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and the defendant had a prior opportunity for cross-examination.”

Commonwealth v. Yohe, 79 A.3d 520, 531 (Pa. 2013). A report is

testimonial “if its primary purpose is to establish or prove past events

potentially relevant to a later criminal prosecution.” Commonwealth v.

Brown, 185 A.3d 316, 319 n.3 (Pa. 2018).

The record confirms that Appellant had no opportunity to cross-examine

the nurses about their reports during or before trial. Therefore, the salient

question before us is whether the reports were testimonial.

Appellant asserts that these “forensic lab reports” were testimonial since

their primary purpose was to establish events relevant to his prosecution. See

Appellant’s brief at 53 (discussing Brown, supra). He points to certain

portions of the reports, particularly those relating to collection of evidence and

chain of custody, as demonstrative of the fact that they were prepared to aid

law enforcement. Id. at 54-55. Appellant further bolsters this position by

citing a statute mandating the creation of sexual assault evidence collection

programs for hospitals, noting that its purpose is to “promote the health and

safety of victims and to facilitate the prosecution of persons accused of sexual

assaults.” Id. at 55-56 (quoting 35 P.S. § 10172.3(a)). He equates the

reports in question to an autopsy report, which was deemed testimonial by

our High Court in Brown. Id. at 57.

In its Rule 1925(a) opinion, the trial court determined that Appellant’s

right to confrontation was not violated because the reports in question were

not testimonial. See Trial Court Opinion, 10/24/22, at 28. It noted that the

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primary purpose for the creation of the reports was for medical treatment of

the victims, not future litigation, as the treating nurses were not agents of the

Commonwealth. Id. at 31. The court further distinguished the various cases

cited by Appellant in his brief, highlighting that in other matters where a

confrontation clause violation was found, it involved testimonial reports that

proved a fact necessary for conviction, such as blood-alcohol levels in a case

involving driving under the influence of alcohol.3 Id. at 31-32.

We find no error of law with the court’s conclusion that the records in

question are not testimonial. It is clear that the primary purpose for

completion of the reports was for the nurses at Episcopal Hospital to render

medical assistance and aid to the victims of sexual assaults. Ms. Denman

testified that when patients reported to that center, care was provided

regardless of whether the patients sought to report an assault, and that the

questions on the report were aimed at helping the nurses look for injuries,

proscribe medications, and issue emergency contraception. See N.T. Trial,

10/28/21, at 115-19. Although there was a single page in the reports

concerning chain of custody and discussing the evidence collected, that fact

does not transmute the reports’ primary purpose of obtaining information in

____________________________________________

3 For its part, the Commonwealth argues that the reports were medical

records, not “forensic laboratory reports,” as asserted by Appellant. See

Commonwealth’s brief at 16, 18. It further contends that the records were

not testimonial, which is supported by the United States Supreme Court’s

affirmation that “statements made to someone who is not principally charged

with uncovering and prosecuting criminal behavior are significantly less likely

to be testimonial than statements given to law enforcement officers.” Id. at

16-17 (citing Ohio v. Clark, 576 U.S. 237 (2015)).

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order to provide effective medical care. As such, we cannot agree with

Appellant that his right to confrontation was violated.

Appellant’s second argument arising from this claim is that the sexual

assault reports should not have been admitted at trial because they

constituted inadmissible hearsay. Id. at 47-52. We note that, as with all

evidentiary rulings, “when reviewing the denial of a motion in limine, we apply

an evidentiary abuse of discretion standard of review.” Commonwealth v.

Sami, 243 A.3d 991, 997 (Pa.Super. 2020) (citation omitted).

Our High Court has observed that “[t]o constitute hearsay, a statement

first must be uttered out-of-court, and then it must be offered in court for the

truth of the matter asserted in the statement.” Commonwealth v.

Fitzpatrick, 255 A.3d 452, 458 (Pa. 2021). Nonetheless, “[f]acially

inadmissible hearsay still may be introduced as substantive evidence for the

truth of the matter asserted if the statement falls under one of numerous

exceptions to the general hearsay proscription.” Id.

In its brief, the Commonwealth asserts that the reports fall under two

exceptions to the rule against hearsay: statements made for medical

treatment and records of a regularly conducted activity. 4 See

____________________________________________

4 The trial court did not discuss admissibility of the sexual assault reports

under the hearsay rules in its Rule 1925(a) opinion, and we note that it denied

Appellant’s motion in limine on the record at trial without significant discussion

of its rationale. See N.T. Trial, 10/27/21, at 15. We bear in mind, however,

“the well-established principle that an appellate court may affirm a valid

judgment based upon any reason appearing in the record.” Commonwealth

v. Elia, 83 A.3d 254, 264 (Pa.Super. 2013) (citation omitted).

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Commonwealth’s brief at 18. Concerning statements made for a medical

diagnosis, Rule 803 provides an exception to hearsay when the statement:

(A) is made for—and is reasonably pertinent to—medical

treatment or diagnosis in contemplation of treatment; and

(B) describes medical history, past or present symptoms, or

sensations, or the inception of general character of the cause or

external source thereof, insofar as reasonably pertinent to

treatment, or diagnosis in contemplation of treatment.

Pa.R.E. 803(4).

The following criteria must be satisfied for admission of records of a

regularly conducted activity:

(A) the record was made at or near the time by—or from

information transmitted by—someone with knowledge;

(B) the record was kept in the course of a regularly conducted

activity of a “business”, which term includes business, institution,

association, profession, occupation, and calling of every kind,

whether or not conducted for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the

custodian or another qualified witness . . . ; and

(E) the opponent does not show that the source of information or

other circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6).

Appellant contests that either of these exceptions is met. Particularly,

he maintains that the portion of the reports concerning chain of custody and

collection of evidence do not satisfy the exception concerning medical records

because they are not “reasonably pertinent to medical treatment of

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diagnoses.” Appellant’s reply brief at 23. Similarly, he contends that the

business record exception is not satisfied since the reports are not trustworthy

due to possible mistakes or bias by forensic nurses. Id. at 21. Appellant

further argues that they are not reliable because they were prepared for

litigation, and would not meet be deemed trustworthy by federal courts if

analyzed under the similar F.R.E. 803(6). Id. at 21-22.

We agree with the Commonwealth that the reports in question fell within

both exceptions, and accordingly the trial court did not abuse its discretion in

permitting their admission. As analyzed above, the reports were reasonably

pertinent to medical treatment and described the “inception of general

character of the cause” of symptoms and sensations, thus satisfying the

medical records exception. Pa.R.E. 803(4). Additionally, we find

unsubstantiated by the record Appellant’s bald contention that the reports do

not satisfy the business records exception because they are unreliable. There

was no evidence of abnormality in the collection of the swabs or chain of

custody. Indeed, Appellant did not cross-examine Ms. Denman about

collection of evidence or chain of custody in this case at all, let alone in an

effort to identify any sort of untrustworthiness in the process. On the contrary,

Ms. Denman, who herself is a sexual assault nurse examiner, testified on a

general level as to the procedure of how, when, and why these reports are

created, establishing that they are contemporaneous records of a regularly

conducted activity at the hospital. See N.T. Trial, 10/28/21, at 115-19.

Therefore, Appellant cannot succeed on this claim.

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Since Appellant presents no issue of merit, we have no cause to overturn

his judgments of sentence.

Judgments of sentence affirmed.

Date: 11/30/2023

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