Com. v. Miles, T.

J-A04012-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

THOMAS MILES :

:

Appellant : No. 492 EDA 2023

Appeal from the Judgment of Sentence Entered February 21, 2023

In the Court of Common Pleas of Chester County

Criminal Division at No: CP-15-CR-0002885-2018

BEFORE: STABILE, J., McLAUGHLIN, J., and COLINS, J.*

MEMORANDUM BY STABILE, J.: FILED MAY 31, 2024

Appellant, Thomas Miles, appeals from the February 21, 2023 judgment

of sentence imposing an aggregate three to twenty-three months of

incarceration for two counts of indecent assault without consent of another.

Appellant raises issues related to the trial court’s evidentiary rulings, as well

as a sufficiency challenge. Upon review, we affirm.

Appellant was a licensed chiropractor with an office in Malvern,

Pennsylvania. N.T., Trial Day 2, 10/25/22, at 13. The victim, L.G., was

Appellant’s patient from approximately March 2013 to July 2017 and received

exclusively massage therapy treatment, which varied in frequency over the

years. Id. at 13-14.

During a typical appointment, the victim undressed to her level of

comfort, typically just her underwear, and laid face down on the massage

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* Retired Senior Judge assigned to the Superior Court.

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table underneath a blanket. Id. at 19. While she was face down, Appellant

massaged her back, arms, neck, and legs. Id. at 17-18. At some point,

Appellant raised the blanket up enough to allow for L.G. to turn over and lie

face up. Id. at 19. Appellant then massaged L.G.’s head, neck, shoulders,

arms, and upper chest. Id. L.G. described the upper chest area as the

sternum above the breasts and below the collarbone, approximately four to

five inches down from the shoulder. Id. at 22-23.

L.G.’s second to last appointment occurred in June 2017. Id. at 30.

She did not request a different treatment and the massage began the same

as the previous massages. Id. at 31. L.G. turned onto her back and Appellant

massaged her upper chest area, which seemed normal at first. Id. at 31. She

explained what happened next:

I noticed that his hands were getting progressively lower . . . [and]

it really kind of brought me back to myself because it just felt like

this isn’t right. He is going a little lower and a little lower. And

this feels like touching my breasts, not massaging my chest area.

And then, I felt a finger brush my nipple. And then I felt that

happen on the other side. And in my head, I was so confused.

This is someone I had been seeing for years. This is someone I

trusted. And so in my head, . . . I’m, like, okay that just

happened. But it couldn’t have been on purpose. It must have

been – he just grazed, . . . in that instance he did clearly with his

fingers touch my nipples on both breasts more than one time. And

I wanted to write it off in my mind as accidental, but it didn’t feel

like that way. And . . . it didn’t sit right in my gut.

Id. at 32 (cleaned up). Appellant touched L.G.’s breasts under the blanket

for approximately thirty seconds to one minute. Id. at 33-34. She was unable

to see if Appellant was erect because he was behind L.G.’s head. Id.

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Appellant did not provide any clinical explanation for his conduct and

said nothing while it happened. Id. at 35. L.G. did not consent to Appellant

touching her breasts and did not feel that it was therapeutic. Id. at 35-36.

She did not say anything and explained, “I froze because I didn’t understand

what – why this was happening because I trusted him.” Id. at 36-37. After

the massage ended and L.G. was checking out, Appellant commented that the

massage was “a little more exotic” than usual. Id. He had used the term

“exotic” on other occasions, but this time L.G. believed it was an

acknowledgment that Appellant “had pushed the line.” Id.

L.G. returned in July 2017 for her final appointment, and explained why:

Because I wanted to believe that I had misread the situation, and

that it was not an intentional groping, that it was, like, somehow

inadvertent. This is someone I had known and trusted as a

practitioner, wellness practitioner for a long time. I think there

was a part of me that wanted to, like, prove myself wrong, like

prove that it was just that I could trust this person, that it was

just, you know, a mistake, a misunderstanding, something other

than what it was.

Id. at 38-39. Again, L.G. did not request a different treatment and the

massage started normally. Id. at 42. After L.G. flipped on to her back,

Appellant “took the blanket, the drape, and he just pulled it down to my waist,

I was completely – I was completely exposed. And he started groping my

breasts with his hand, just like cupping with his hands, all over me.” Id. at

42-43. L.G. characterized it as sexual and said it did not feel therapeutic. Id.

at 44-45. It lasted approximately thirty seconds to one minute. Id. L.G. did

not consent to Appellant touching her breasts. Id. at 45. Again, she did not

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say anything, “I couldn’t believe what was happening to me, and I was

completely frozen and humiliated.” Id. at 46. Appellant abruptly ended the

massage early, leaving L.G. exposed on the massage table. Id. L.G.

described how she felt after returning for the July appointment:

I felt stupid. I felt stupid. You know, like, it made clear that what

had happened in June in my mind, it made clear it wasn’t an

accident, you know, and then I felt, like, I wish I had listened to

my gut then and felt stupid. And I just felt so violated and

humiliated.

Id. at 46-47.

In addition to L.G.’s testimony, the Commonwealth introduced the

testimony of F.M. as a Rule 404(b) witness.1 In 2016, F.M. was battling Stage

4 metastatic cancer of the appendix and sought chiropractic treatment for pain

management. Id. at 168, 173. After seeing another chiropractor, F.M.

treated with Appellant from June to August 2016 and initially only received

chiropractic treatment. Id. at 175-77. On her third or fourth visit, Appellant

mentioned that he also performed massage therapy. Id. at 178. F.M. said

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1 The trial court gave a cautionary instruction at the conclusion of F.M.’s

testimony:

This evidence is before you for a limited purpose. That is for the

purpose of tending to show motive, intent, common plan, scheme

or design, absence of mistake, or accident, or to establish identity.

This evidence was not to be considered by you in any way other

than for that purpose I just stated. You must not regard this

evidence as showing that [Appellant] is a person of bad character

or criminal tendencies from which you might b[e] inclined to infer

guilt.

Id. at 225-26.

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she never had a chiropractor also perform massage therapy before but agreed

to the treatment. Id.

When F.M. flipped onto her back in her second to last appointment,

Appellant held the sheet up higher than she ever experienced. Id. at 184.

Instead of standing behind the sheet, Appellant stood to the side of the sheet

and could clearly see her exposed breasts. Id. She did not say anything to

Appellant and decided to “give him the benefit of the doubt.” Id.

During F.M.’s last appointment, Appellant held the sheet up higher than

normal again and saw her breasts as she flipped on to her back. Id. at 185.

She told herself it was not on purpose, and described what happened next:

[H]e did my neck, back, shoulders. And in the process, he is

talking to me. Usually, we talked about my cancer, something

like that. This time he was talking about how people on the east

coast are so uptight, especially, the main line area. We’re so

uptight about nudity. . . .

And then after he’s done that, . . . he is behind me. His hands go

down on my breasts and he starts massaging my breasts. And he

takes my nipples and he puts them between two fingers and pulls

them with his fingers, and then rubs. And I stiffen up. And I look

at him and I give him – people say my face is expressive. I gave

him a look like what are you doing to me. I didn’t say anything.

I didn’t scream. But he knew I was not – I was not having that.

And that’s when he said, we’re done here. Now, you can get

dressed. And I just – got my clothes as fast as I could and ran

out that door and just never went back; never told anybody.

Id. at 185-86. F.M. did not consent to Appellant touching her breasts and

Appellant did not offer any clinical explanation for his conduct. Id. at 189-90.

When Appellant left the room, he brushed by F.M. and she felt that he had an

erection. Id. at 188-89.

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On May 17, 2018, Detective Patricia Doyle of the East Whiteland Police

Department and L.G. conducted a recorded phone call with Appellant. N.T.,

Trial Day 3, 10/26/22, at 28-30. A transcript of the call (Exhibit C-7) was

admitted at trial and the audio recording (Exhibit C-6) was played for the jury.

Id. at 33-36.

Before L.G. explained the reason for the call, Appellant said he wanted

to apologize if the massage was “too sensual.” See Commonwealth’s Exhibit

7 at 2. L.G. then confronted Appellant about crossing the line from massage

to groping her breasts. Id. at 2-3. Appellant apologized, admitted he made

a mistake, and said he was not trying to seduce her. Id. at 4. He justified

his actions by saying he gave L.G. “a little bit more” each time with the upper

chest massage because she liked it. Id. Ultimately, Appellant said it was his

fault. Id. When L.G. asked Appellant why he did it, Appellant said:

[W]ell the reason I did it is because I got confused and I made a

judgment mistake. I wasn’t trying to come on to you or something

. . . over a lot [of] parts of the world there’s chest massage going

on, people have asked me for that [in a professional way] and I

did hint to you a couple of times you know . . . do you like this . .

. was that good and you know I think it was the third time you

know . . . let’s say three massages ago [you said] yeah that’s

really great and that was the upper chest you know so I think it

was one of those things where you know like you said I took it

too far I wasn’t you know I made a mistake, it wasn’t you . . .

I guess it’s my intentions weren’t [trying] to get into some kind of

sexual thing but I can see why . . . that would be upsetting.

Id. at 4-5 (cleaned up) (emphasis added). Moreover, Appellant acknowledged

he did not have L.G.’s consent to touch her breasts. Id. at 5. He asked L.G.

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for permission to tell his wife that she called to inquire about a past due bill,

then attempted to ask about her life. Id. at 6-7.

After “five-plus years, before six (6) judges, with eight (8) pre-trial

hearings, fifteen (15) pre-trial orders, and five (5) days of trial,” a jury

convicted Appellant of two counts of indecent assault. Trial Court Opinion,

5/10/23 at 11. Sentencing was deferred for a pre-sentence investigation and

an assessment by the Sexual Offenders Assessment Board (“SOAB”). On

February 21, 2023, Appellant was sentenced to an aggregate three to twenty-

three months of incarceration with a consecutive 12 months of probation. This

timely appeal followed. Appellant and the trial court have complied with

Pa.R.A.P. 1925.

Appellant raises the following issues for our review:

1. Did the trial court err by precluding the defense from

introducing the complainant’s Facebook posts at trial, where

said posts were relevant to show her bias, lack of credibility,

and prior fabrication?

2. Did the trial court err by precluding the defense from

introducing one of the [c]omplainant’s Facebook posts which

directly contradicted her trial testimony that she had no

financial motive to pursue charges against [Appellant]?

3. Did the trial court err by allowing the Commonwealth to review

and then use a private defense communication as evidence

against him at trial?

4. Did the trial court err by allowing the Commonwealth to

present expert rebuttal evidence that did not actually rebut

anything but instead introduced irrelevant and confusing

concepts to the jury?

5. Are [Appellant]’s convictions for indecent assault—without

consent of others—not supported by sufficient evidence

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because the Commonwealth failed to prove the elements of

arousal and lack of consent?

Appellant’s Brief at 2-3.

I. EVIDENTIARY RULINGS

Appellant’s first four claims challenge the trial court’s evidentiary

rulings. Generally, evidence is admissible if it is relevant. Pa.R.E. 402.

“Evidence is relevant if: (a) it has any tendency to make a fact more or less

probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Pa.R.E. 401. A trial court may

exclude relevant evidence if its probative value is outweighed by a danger of

unfair prejudice, confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence. Pa.R.E. 403.

“The credibility of a witness may be impeached by any evidence relevant to

that issue, except as otherwise provided by statue or these rules.” Pa.R.E.

607.

It is well settled that evidentiary rulings are within the sound discretion

of the trial court. Commonwealth v. DiStefano, 265 A.3d 290, 297 (Pa.

2021). A trial court’s ruling on the admissibility of evidence will only be

reversed where there has been an abuse of discretion:

An appellate court will not find an abuse of discretion based on a

mere error of judgment, but rather . . . where the [trial] court has

reached a conclusion which overrides or misapplies the law, or

where the judgment exercised is manifestly unreasonable, or the

result of partiality, prejudice, bias or ill-will.

Id. at 298 (internal citation and quotation marks omitted).

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A. Facebook posts

In his first claim, Appellant asserts that the trial court erred by ruling

twenty-one of the victim’s Facebook posts inadmissible. He argues “that the

defense was stripped of the ability to impeach” the victim because the posts

“demonstrated her bias and her having made false allegations of sexual abuse

against another man.” Appellant’s Brief at 17. He further argues that the

“timing and content of these posts support [Appellant]’s position that [the

victim] fabricated these charges.” Id.

Appellant incorrectly claims the trial court initially ruled all fifty-six of

the victim’s Facebook posts were admissible, then almost two years later,

ruled that twenty-one of those posts were inadmissible with no explanation.

Id. at 15-16. The trial court never issued a blanket ruling that all the victim’s

Facebook posts were admissible. In 2019, Appellant filed a motion in limine

seeking to introduce fifty-six of the victim’s Facebook posts and a podcast she

appeared on. See Motion in Limine, 3/14/19. The trial court aptly

summarized Appellant’s argument:

[Appellant] alleged the victim’s lack of Facebook posting

concerning sexual abuse committed against her by him while

making several public Facebook posts concerning an alleged

sexual violation committed against her by her ex-boyfriend,

[N.C.], was relevant and probative of [the victim]’s bias and

motive. He contended, [the victim]’s willingness to disclose

perceived violations by [N.C.] and advocate against sexual abuse

in general, while not disclosing alleged sexual abuse committed

by [Appellant] goes to her credibility and veracity. Furthermore,

[Appellant] generally alleged [the victim]’s advocacy against

sexual assault and her personal disclosures are an attempt to

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further her own career and increase her public status as an

advocate.

Trial Court Opinion, 5/10/23, at 13.

After argument on the motion, as well as several other pretrial motions,

the trial court issued an order stating that “[t]he social media posts . . . may

be utilized by [Appellant] for impeachment purposes if they are otherwise

properly authenticated and otherwise admissible. However, portions of

the posts directly referencing prior sexual relationships may not be

used.” Order, 1/3/20, fn. 5 (emphasis added). “The purpose offered by

[Appellant] for its introduction is intended to explore [the victim]’s bias or

credibility.” Id. The trial court explicitly stated that any post which does not

reference the victim’s prior sexual relationships could be used for

impeachment if properly authenticated and admissible. Appellant’s claim that

the trial court simply ruled the posts admissible is incorrect.

Appellant also incorrectly claims that the trial court ruled “for the first

time” immediately prior to trial that Appellant was precluded from questioning

the victim about her sexual relationship with her ex-boyfriend, N.C, who was

the subject of many of the inadmissible Facebook posts. See Appellant’s Brief

at 16. During the July 24, 2019 argument on Appellant’s motion in limine, the

trial court repeatedly stated that Appellant was prohibited from asking the

victim about any sexual conduct or sexual relationships. See N.T. 7/24/19,

at 95, 102-03, 104, 105, 107, 109, 111, 113, 116, 116-17, 118, 122-23, 124.

Almost the entire argument was focused on whether the posts would violate

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the Rape Shield Law.2 See id. at 88-126. Appellant’s argument that the trial

court “for the first time” immediately prior to trial prohibited any questioning

regarding the victim’s ex-boyfriend and past sexual relationships is incorrect.

In 2021, after the parties were unable to reach an agreement on the

admissibility of the individual Facebook posts, the Commonwealth filed a

motion requesting specification on whether each post was admissible. See

Commonwealth’s Motion, 7/29/21. By our count, Appellant sought to admit

fifty-eight total Facebook posts. The trial court ruled twenty-eight

inadmissible, and the remaining thirty admissible.3 See Order, 12/20/21. The

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2 Pennsylvania’s Rape Shield Law provides:

Evidence of specific instances of the alleged victim’s past sexual

conduct, past sexual victimization, allegations of past sexual

victimization, opinion evidence of the alleged victim’s past sexual

conduct, and reputation evidence of the alleged victim’s past

sexual conduct shall not be admissible in prosecutions of any

offense listed in subsection (c) except evidence of the alleged

victim’s past sexual conduct with the defendant where consent of

the alleged victim is at issue and such evidence is otherwise

admissible pursuant to the rules of evidence.

18 Pa.C.S.A. § 3104(a). Here, Appellant does not argue that the Facebook

posts were improperly excluded pursuant to the Rape Shield Law. Rather, he

generally argues that the trial court erred by precluding the Facebook posts

because they were “relevant to show her bias, lack of credibility, and prior

fabrication.” Appellant’s Brief at 2. To the extent Appellant argues that the

Facebook posts are not protected by the Rape Shield Law, we find the issue

waived for failure to develop an adequate argument in his brief. See

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa. Super. 2007) (en

banc).

3 At trial, Appellant introduced twenty-eight of the victim’s Facebook posts.

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Order also included a notation that “[a]ll admissible FB posts remain subject

to proper authentication.” Id. (emphasis added).

Moreover,

During trial, [Appellant] was granted great leeway in questioning

[the victim] concerning her advocacy as a women’s rights activist.

He was permitted to explore, over Commonwealth objections at

times, [the victim]’s history as a women’s rights activist, her

professional career and involvement in/on social media, her

financial situation, and events which occurred in her personal life

shared on Facebook.

****

Not only was [Appellant] unquestionably permitted to explore [the

victim]’s motive or bias[,] he was permitted to quite literally ask

her to define what she believed to be a sexual violation without

the Commonwealth even attempting to object. . . . [The victim]

generally testified to the contents of all of her Facebook posts

which [Appellant] claimed he could only elicit from [N.C.]. The

only point concerning Facebook posts the Commonwealth did

object to was [Appellant]’s counsel reading the entirety of the

posts directly into the record.

Trial Court Opinion, 5/10/23, at 19-21.

We agree with the trial court’s analysis, and we disagree with Appellant’s

claim that he was “stripped of his ability to impeach” the victim. The victim

was extensively cross-examined about her Facebook posts, the posts were

published to the jury, and Appellant’s counsel even read several of the posts

verbatim into the record.4 See N.T., Trial Day 2 10/25/22, at 106-34, 147-

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4 The Facebook posts presented at trial concerned the victim’s advocacy for

women’s rights, victim’s rights, and the #MeToo movement. Several of the

posts were authored by others and shared by L.G. on her personal Facebook

page. Some examples of the posts include:

(Footnote Continued Next Page)

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53. Appellant was provided ample opportunity to explore the victim’s bias,

credibility, and motivation to fabricate the allegations. See id. at 135-46.

Clearly, the jury did not accept this claim. Accordingly, we find that the trial

court did not abuse its discretion when it precluded Appellant from presenting

twenty-one of the victim’s Facebook posts. See DiStefano, supra.

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Pulling out this old favorite because it’s disgustingly clear that

there are many people who still don’t understand sexual consent,

and the fact that sexual access gained without consent equals a

sexual violation. If you lie to someone in order to gain sexual

access to them in a situation in which if they knew the truth they

would refuse you sexual access, that’s a sexual violation.

****

No one is going to jail for putting ice against their girlfriend’s

vulva, or for badgering someone into sex they don’t particularly

want, or for not using a condom with someone who’s otherwise

consenting to sex. But the fact that these aren’t criminal acts

doesn’t mean that [they] are not violating or traumatic or wrong.

And by refusing to recognize the harm caused by these sexual

micro-aggressions, we teach women to accept them as normal

and minimize their pain. And we teach men that they can get

away with violating women.

****

Tuesday, topic of the day. Consent. Because it’s become

abundantly clear in recent days and weeks just how many people

don’t recognize that a person’s consent can be twisted,

manipulated, discounted, disregarded, and distorted in ways that,

while they do not constitute sexual assault, sure as hell qualify as

sexual manipulation, violation, and exploitation. And none of

those aggression, micro or otherwise, are acceptable or justifiable.

Full stop.

Want to be a real friend of women and the hashtag Me Too

Movement? Want to proclaim that you are an ally? Don’t be an

apologist for that shit. And don’t go silent or back down when

confronted by those who are.

Id. at 113-14, 125-26

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B. “Good Vibes” Facebook post

Relatedly, Appellant claims the trial court erred when he was precluded

from presenting a specific Facebook post, dubbed the “Good Vibes” post, to

impeach the victim.5 See Appellant’s Brief at 20. He argues that the post

was relevant to show the victim’s motivation to lie, and her financial

motivation to file a civil lawsuit against Appellant for monetary gain. Id. at

20-21. The Commonwealth contends this issue is waived because Appellant

failed to object when the trial court ruled the post inadmissible. See

Commonwealth’s Brief at 30-36. We decline to find waiver under the

circumstances.

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5The “Good Vibes” post is dated “July 11 at 12:03 PM” and has an image

which reads “send good vibes” and the victim wrote:

EDITED – big, bold, brave thing happening NOW: 12:50pm!

Hey there, friends, family, and far-flung acquaintances of every

known variety [smiley face emoji] Today at 1:30pm EST I’ll be

doing something big, bold, and brave that has the potential to

transform my life in some pretty staggeringly wonderful ways !!

I’ll be grateful to know that I have the support and backing of “my

people” behind me at that time.

Please send good vibes my way (or energy or prayers, or whether

your personal brand of goodness it is), and maybe leave me an

encouraging comment below. Thanks for being the sort of friends,

family, and far-flung acquaintances of every known variety that I

can count on. [heart emoji]

Commonwealth’s Reproduced Record, Appendix H. This particular post was

not part of the fifty-eight Facebook posts that were litigated pretrial.

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On the second day of trial, prior to beginning cross-examination of the

victim, Appellant sought to introduce the “Good Vibes” post. N.T., 10/25/22,

at 64. The Commonwealth objected on the ground of relevance. Id. The

trial court took a recess and heard argument on the post. During the

argument, the trial court reviewed the pretrial ruling which stated that all

Facebook posts were subject to authentication and asked Appellant’s counsel

what year it was posted.6 Id. at 65. Counsel provided inconsistent dates and

did not know whether it was posted in 2018 or 2019. Id. at 66. At the

conclusion of the argument, the trial court ruled the post inadmissible because

it could not be authenticated. Id. at 67.

Appellant argues that the post was relevant, and “neither the

Commonwealth nor the trial court opined that this evidence was not relevant.”

Appellant’s Brief at 21. Appellant also contends that “authentication of an

undated post was not an issue” because several other undated posts were

admitted. Id. at 22. We disagree with these contentions.

Even if this post was relevant, the trial court correctly observed that

Appellant “either does not recognize that relevancy of evidence does not equal

admissibility, nor does he acknowledge that relevancy determinations are left

to the sound discretion of the trial court judge.” Trial Court Opinion, 5/10/23,

at 10. The December 20, 2021 Order explicitly stated that “[a]ll admissible

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6 We note Appellant was represented by at least four attorneys during the life

of the case. At the time of trial, Appellant was represented by Albert Sardella,

Esquire.

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FB posts remain subject to proper authentication.” Order, 10/20/21, fn.

5 (emphasis added). We also agree with the trial court that “[w]hile

[Appellant] contends other Facebook posts were admitted without a date, he

fails to realize that there were no objections to the admission of the posts in

the pack ultimately admitted as Defense Exhibit-3.” Trial Court Opinion,

5/10/23, at 25 (emphasis added). As to the post in question, however,

when brought to the trial court’s attention for the first time during

trial, relying on Judge Mahon’s previous ruling, the trial court ruled

the post was not properly authenticated and therefore

inadmissible. Further, the trial court expressly provided

[Appellant] the opportunity to obtain a properly authenticated

post with a date and then seek reconsideration.

Id.

Appellant claims that the post was relevant to show the victim’s financial

motivation to file a civil lawsuit against Appellant. Despite the trial court

precluding admission of the “Good Vibes” post, Appellant asked, without

objection, whether the victim was looking for financial compensation by filing

a civil lawsuit. N.T., 10/25/22, at 145. She responded that she was not; she

just wanted Appellant stopped. Id. at 145-46. She explained that a civil

attorney contacted her and encouraged her to file a civil lawsuit because if

Appellant was not convicted in the criminal trial, and she failed to file a civil

lawsuit before the statute of limitations ran, she would have no recourse. Id.

at 146. She also stated that the civil attorney told her several times that she

was unlikely to see any financial compensation. Id.

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Although Appellant was precluded from presenting the “Good Vibes”

post, he was permitted to cross-examine the victim extensively on her motive

to file a civil lawsuit and whether she was seeking financial compensation. For

these reasons, we find the trial court did not abuse its discretion and

Appellant’s challenge to the trial court’s ruling on the “Good Vibes” post does

not warrant relief.

C. Appellant’s email regarding his trial strategy

In his third issue, Appellant argues that the trial court erred by allowing

the Commonwealth to utilize an email that he sent to an administrative

assistant at East Whiteland Police Department which laid out his entire defense

strategy. N.T., Pretrial Hearing 10/20/22, at 8-9. He argues that “[t]he

email’s prejudicial effect far outweighed any probative value that it may have

had.” Appellant’s Brief at 25.

The email was sealed and admitted into evidence at a pretrial hearing

on October 20, 2022. Id. at 14. Appellant argued that the email was

privileged attorney-client communication and should remain confidential. Id.

at 11. After an in camera review of the email and its contents, the trial court

found that it was not a privileged communication, and that the Commonwealth

was entitled to a redacted version of the document. See Order, 10/21/22.

The order explicitly stated “[t]he receipt of the e-mail as redacted is not a

ruling as to its admissibility.” Id. (emphasis added).

We find this issue waived as Appellant failed to preserve the issue of

prejudice for our review. See Pa.R.A.P. 302. The Commonwealth introduced

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the email during cross-examination of Appellant’s wife, Kathryn Nanae Miles

(hereinafter “Nanae”), as Commonwealth’s Exhibit 11. N.T., Trial Day 4,

10/27/22, at 131. Appellant’s counsel made the following objection at

sidebar:

MR. SARDELLA: Your Honor, she’s already indicated that she

didn’t -- she did not draft the document. She did not work on the

document. She can’t adopt that document. If she received an

email from her husband about case strategy, I understand that

can be asked. But to get into the contents of a document that she

did not write or adopt, I think, is inappropriate. I would object.

Id. at 131-32. The trial court admitted the email over Appellant’s objection.

Id. at 134. At no point did Appellant’s counsel object to the admissibility of

the email and argue that it was more prejudicial than probative. He did,

however, object to specific questions about the email because the witness did

not author or adopt the email. See id. at 138-39. Since Appellant failed to

challenge the admissibility of the email on the weighing of prejudice, the issue

is waived.

Even if the issue was not waived, Appellant is not entitled to relief. We

agree with the trial court’s analysis that the email was not a privileged

communication. See Trial Court Opinion, 5/10/23, at 37-39 (“Appellant did

not claim the document was prepared by his criminal attorney or staff . . .

[Appellant] prepared the document, circulated it among several of his

proposed witnesses, and solicited advice as how to proceed with his case and

his general strategy”).

D. Expert Testimony

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In his fourth issue, Appellant claims that the trial court erred in allowing

the Commonwealth to present expert testimony in rebuttal. Appellant’s Brief

at 27. He contends that the Commonwealth’s expert testimony “was

completely irrelevant because it did not rebut any actual evidence put forward

by the defense,” and allowed the Commonwealth to bolster its own evidence.

Id. at 28. The Commonwealth contends this issue is waived because

Appellant failed to “cite to where this issue is preserved on the record” and

failed to “develop his argument in any fashion.” Commonwealth’s Brief at 39,

43. We decline to find waiver under the circumstances.

On June 22, 2021, Appellant filed a Notice of Affirmative Defense:

[Appellant] is a board-certified, licensed, Doctor of Chiropractic

Medicine (DC). He is considered a primary healthcare doctor, who

may prescribe diagnostic testing, draw blood, conduct breast

exams, etc. Both counts of criminal conduct alleged were within

the permissible scope and practice of [Appellant], a Doctor of

Chiropractic Medicine, treating a patient who elected to engage

the services of a chiropractic doctor for her healthcare concerns,

instead of a less-professionally trained, massage therapist.

Notice of Affirmative Defense, 6/21/21 (emphasis added). During pretrial

litigation on the admissibility of Appellant’s expert witness, Appellant sought

to preclude the Commonwealth’s expert witness from testifying.7 See Reply

to Commonwealth’s Motion in Limine with New Matter, 4/29/22. The trial

court denied Appellant’s request to preclude the Commonwealth’s witness at

____________________________________________

7 The Commonwealth retained an expert based upon Appellant’s affirmative

defense. N.T., 4/29/22, at 44.

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that time and deferred ruling on the relevance and admissibility of the expert

until such time the expert was offered as a witness. See Order, 5/4/22, fn.3.

After the defense rested, the Commonwealth called Dr. Michael

Schneider to prove the element of sexual gratification by rebutting the defense

that Appellant’s conduct was clinically appropriate. See N.T., Trial Day 4,

10/27/22, at 220-21. Appellant objected on the ground that it did not put

forth that defense, and that the Commonwealth was required to prove the

element of sexual gratification in its case-in-chief. See id. at 222-23. After

argument, the trial court permitted Dr. Schneider to testify, stating:

What my notes reflect is that it was agreed that Dr. Schneider

could testify in rebuttal, rather than in the case-in-chief,

because we were pending whether or not [Appellant] would

testify.

I am going to allow him to testify. He did produce a report. I

know you have that. I . . . want him instructed that before every

hypothetical . . . I want him to wait five seconds to answer that

because I want to give [Appellant’s counsel] the opportunity

to object.

And then we’ll go objection by objection. But I think,

generally, he can testify. It was agreed he could testify, and

that’s where we’re at.

Id. at 231-32 (emphasis added).8 Dr. Schneider opined that the medical

records of the victim and F.M. do not indicate a clinical necessity for breast or

____________________________________________

8 We note that Appellant included an email and attachment from the trial court

which outlined the pretrial orders entered in this case in his reproduced record.

See Appellant’s Reproduced Record. Regarding the May 4, 2022 Order, the

email states “Commonwealth expert not permitted to testify during the

Commonwealth’s case-in-chief.” See id. (emphasis added). This

statement does not appear in the Order or in the April 29, 2022 transcript.

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lymphatic massage, nor do they indicate that a breast or lymphatic massage

was performed. Id. at 257, 260, 263-64, 290. He did not opine as to whether

the conduct happened. Id. at 290-91.

The order and presentation of the evidence, including the admission of

rebuttal evidence, is within the sound discretion of the trial court. See Ratti

v. Wheeling Pittsburg Steel Corp., 758 A.2d 695, 708 (Pa. Super. 2000),

appeal denied, 785 A.2d 90 (Pa. 2001). “The court should exercise reasonable

control over the mode and order of examining witnesses and presenting

evidence so as to: (1) make those procedures effective for determining the

truth; (2) avoid wasting time; and (3) protect witnesses from harassment or

under embarrassment.” Pa.R.E. 611(a).

The issues at trial were (1) whether the conduct occurred and (2)

whether the conduct was clinically appropriate. There was an agreement

between the parties and the trial court that the Commonwealth would call

their expert on rebuttal to streamline the trial.9 Although Appellant did not

testify, the defense put the elements of sexual gratification and consent at

issue by arguing in its opening statement that L.G. consented to the treatment

and/or the treatment was clinically appropriate. The defense also presented

evidence in support of this point.

____________________________________________

9 The Commonwealth wanted to call Dr. Schneider during its case-in-chief but

was precluded by the trial court for judicial economy. See N.T., Trial Day 4

10/27/22, at 225, 227.

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During opening argument, Appellant’s counsel argued that the victim

did not take issue with the upper chest massage, and it was “something that

she had experience in other massage settings in the past . . . which was

clinical.” N.T., Trial Day 1 10/24/22, at 52. Counsel further argued that

Appellant “gives upper chest massages to patients as his career.” Id. at 60.

Appellant’s counsel asked the victim several questions regarding

massages that she received in the past, the type of treatment she would

request and what she considers the “upper chest” area. N.T., Trial Day 2

10/25/22, at 73-79. Additionally, F.M. was thoroughly cross-examined on

what treatment she received from her first chiropractor, and what treatment

she sought and received from Appellant. Id. at 197, 201, 215-19.

The defense called Dr. Jason Nardone, the chiropractor F.M. saw prior

to becoming Appellant’s patient, to prove that F.M. requested lymphatic

drainage treatment. See N.T., Trial Day 4, 10/27/22, at 23. Appellant

introduced a handwritten note, which turned out to be a message from the

office’s voicemail, as well as F.M.’s handwritten treatment records into

evidence. See id. at 24-25, 29-32. The note stated “[F.M.] wants to know if

we do lymphatic drainage massage. Ask Terry.” Id. at 32. This evidence

was introduced to show F.M. requested lymphatic drainage massage, as well

as to infer that Appellant performed the treatment and/or F.M. consented to

the treatment.

Based on the foregoing, we find that the trial court did not abuse its

discretion by allowing the Commonwealth to present its expert witness during

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rebuttal. Even though Appellant did not testify, the Commonwealth was

permitted to rebut the inferences made by defense throughout its presentation

and questioning of witnesses that L.G. either consented or Appellant’s conduct

was within the permissible scope of chiropractic treatment.

II. SUFFICIENCY

In his fifth issue, Appellant contends that the evidence was insufficient

to sustain his indecent assault convictions. See Appellant’s Brief at 29-34.

Specifically, he claims the Commonwealth failed to prove the elements of (1)

sexual gratification and (2) lack of consent beyond a reasonable doubt.

See id.

The standard we apply in reviewing the sufficiency of the evidence is:

whether viewing all the evidence admitted at trial in the light most

favorable to the verdict winner, there is sufficient evidence to

enable the fact-finder to find every element of the crime beyond

a reasonable doubt. In applying the above test, we may not weigh

the evidence and substitute our judgment for the fact-finder. In

addition, we note that the facts and circumstances by the

Commonwealth need not preclude every possibility of innocence.

Any doubts regarding a defendant’s guilt may be resolved by the

fact-finder unless the evidence is so weak and inconclusive that

as a matter of law no probability of fact may be drawn from the

combined circumstances. The Commonwealth may sustain its

burden of proving every element of the crime beyond a reasonable

doubt by means of wholly circumstantial evidence. Moreover, in

applying the above test, the entire record must be evaluated and

all evidence actually received must be considered. Finally, the

trier of fact while passing upon the credibility of witnesses and the

weight of the evidence produced, is free to believe all, part or none

of the evidence.

Commonwealth v. Brown, 23 A.3d 544, 559-60 (Pa. Super. 2011) (en banc)

(internal citations omitted). A person is guilty of indecent assault

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if the person has indecent contact with the complainant, causes

the complainant to have indecent contact with the person or

intentionally cause the complainant to come into contact with

seminal fluid, urine or feces for the purpose of arousing sexual

desire in the person or the complainant and the person does so

without the complainant’s consent.

18 Pa.C.S.A. § 3126(a)(1). Indecent contact is defined as “[a]ny touching of

the sexual or other intimate parts of the person for the purpose of arousing

or gratifying sexual desire, in any person.” 18 Pa.C.S.A. § 3101 (definitions).

It is well-settled that “uncorroborated testimony of a prosecution witness may

be sufficient to convict, despite contrary evidence from the defense, if the trier

of fact finds the former credible.” Commonwealth v. Wienckowski, 537

A.2d 866, 870 (Pa. Super. 1988). Moreover, the touching of an intimate part

of another person - the victim’s breast nipples here - does not occur outside

the context of a sexual or intimate situation. See Commonwealth v. Evans,

901 A.2d 528, 533 (Pa. Super. 2006), appeal denied, 909 A.2d 303 (Pa.

2006)(inserting one's tongue into another's mouth clearly involves the

touching of an intimate part of that person).

Here, viewing the evidence in the light most favorable to the

Commonwealth as the verdict winner, we find there was sufficient evidence

for the jury to find that Appellant’s touching was done for sexual arousal and

without consent. L.G. testified that (1) Appellant touched her bare breasts

and nipples; (2) she did not consent; (3) she did not request a breast

massage; (4) she did not request treatment different from her past massages;

(5) it did not feel therapeutic; (6) it felt sexual; and (7) Appellant did not offer

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a clinical explanation for his conduct. Additionally, in the recorded phone call,

Appellant (1) acknowledged L.G. did not consent to a breast massage; (2)

that he made a mistake; (3) that the massage may have been “too sensual;”

and (4) apologized for his conduct. The jury was free to believe all, part or

none of her testimony. See Brown, supra. Thus, the jury could draw the

inference that Appellant touched L.G. breasts without consent for the sole

purpose of arousing sexual desire. See Evans, supra.

In sum, the trial court did not abuse its discretion by (1) precluding

admission of twenty-one Facebook posts plus the “Good Vibes” post; (2)

permitting the Commonwealth to use a redacted version of Appellant’s email;

and (3) allowing the Commonwealth to present its expert testimony on

rebuttal. Additionally, the evidence was sufficient to sustain the indecent

assault convictions.

Judgment of sentence affirmed.

Date: 5/31/2024

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