J-A29013-17

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* Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA 

v.

ADAM DARROCH 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 234 EDA 2017

Appeal from the Judgment of Sentence December 14, 2016

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

No(s): CP-09-CR-0000816-2016

BEFORE: LAZARUS, J., PLATT*, J., and STRASSBURGER*, J.

MEMORANDUM BY LAZARUS, J.: FILED DECEMBER 21, 2017

Adam Wayne Darroch appeals from his judgment of sentence, entered 

in the Court of Common Pleas of Bucks County, following his convictions for 

aggravated indecent assault1 and indecent assault.

2

 After careful review, we 

affirm.

Darroch resided in a home with several housemates, including the 

victim, C.K., C.K.’s daughter, and C.K.’s boyfriend. On August 16, 2015, 

Darroch and several other residents were drinking heavily when they decided 

to watch a movie in the shared living room of the house. C.K., not a 

participant in the drinking, fell asleep on a couch in the living room. Sometime

later, C.K. awoke with Darroch on top of her with one hand up the leg of her 

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1 18 Pa.C.S. § 3125.

2 18 Pa.C.S. § 3126.
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pants and the other hand attempting to remove her bra. Darroch’s fingers 

were penetrating C.K.’s vagina. C.K. cursed at Darroch and kicked at him 

until he desisted. C.K. then left the room. 

Two days later, C.K. reported the incident to her boyfriend, her 

housemates, and the police. The police investigated and ultimately charged 

Darroch with aggravated indecent assault and indecent assault. In addition 

to the assault on C.K., C.K. also alleged that Darroch had acted inappropriately 

toward C.K.’s minor daughter. Accordingly, the responding police officers 

independently investigated allegations that Darroch had victimized both C.K.

and her daughter. Darroch was not charged with any offenses relating to 

C.K.’s daughter due to a lack of evidence, but he was charged with the abovelisted sexual offenses against C.K.

The parties agreed before trial that the Commonwealth would not 

introduce any evidence involving Darroch’s alleged misconduct toward C.K.’s 

daughter. However, the Commonwealth presented the testimony of Officer 

Mancuso, who responded to C.K.’s initial 911 call to investigate the allegations 

involving C.K.’s daughter, not the acts against C.K. herself. In order to limit 

the risk of prejudice, the Commonwealth instructed Officer Mancuso to discuss 

only matters involving C.K. directly, and to avoid any testimony involving 

C.K.’s daughter.

While on the stand, the Commonwealth asked Officer Mancuso why he 

had been called to the address. Officer Mancuso attempted to comply with 

the prosecutor’s instructions by avoiding mention of C.K.’s daughter. As such, 
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he replied that he was investigating a sexual assault, but did not specify 

further. The prosecutor followed up by asking whether C.K. was the alleged 

victim. Officer Mancuso truthfully replied that she was not. At this point, the 

defense attorney objected, reminding the court that there was a high risk of 

disclosing incurably prejudicial testimony involving C.K.’s daughter. The judge 

ordered a sidebar and cautioned the prosecutor to steer the testimony away 

from C.K.’s daughter. 

Officer Mancuso was not privy to this sidebar, so he only heard the 

court’s instruction after the sidebar, stating, “Go back to when [Officer 

Mancuso] was called to the scene and let’s clear that up because I think it’s a 

little confusing for all of us.” N.T. Trial, 6/9/16, at 145. The prosecutor then 

asked Officer Mancuso for the second time why he responded to Darroch’s 

residence. Officer Mancuso—believing that the court was asking him to fully 

clarify the situation—testified truthfully that he had been called to investigate 

the alleged sexual assault of C.K.’s eight-year-old child. The defense 

immediately moved for a mistrial, which the court granted.

Prior to the second trial, Darroch moved to dismiss the charges on the 

grounds of double jeopardy. The trial court granted an evidentiary hearing, 

but denied Darroch’s motion. Darroch then moved to stay the proceedings to 

pursue an interlocutory appeal on the issue of double jeopardy. The trial court 

denied this motion and proceeded with the retrial, which resulted in the jury 

finding Darroch guilty of aggravated indecent assault and indecent assault. 

Darroch now appeals.
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Darroch raises three issues for our consideration. First, he argues that 

the Double Jeopardy Clauses of the United States and the Pennsylvania 

Constitutions should have barred his retrial. Second, he argues that the trial 

court erred when it refused to stay the proceedings so that Darroch could file 

an interlocutory appeal on the issue of double jeopardy. Third, and finally, 

Darroch argues that the evidence was insufficient to sustain his convictions. 

We address each argument in turn.

The Double Jeopardy Clauses of the United States and the Pennsylvania 

Constitutions serve to protect a criminal defendant from repeated prosecution 

for the same offense. Commonwealth v. Graham, 109 A.3d 733, 736 (Pa. 

Super. 2015). Retrial is typically permissible where a defendant successfully 

moves for mistrial, and “most forms of undue prejudice caused by inadvertent 

prosecutorial error or misconduct can be remedied in individual cases by 

retrial.” Commonwealth v. Kearns, 70 A.3d 881, 885 (Pa. Super. 2013). 

However, retrial may be barred by double jeopardy when the prosecutor’s 

conduct is intended to provoke a defendant to move for a mistrial, or when 

“the conduct of the prosecutor is intentionally undertaken to prejudice the 

defendant to the point of the denial of a fair trial.” Commonwealth v. Smith, 

615 A.2d 321, 325 (Pa. 1992). In either case, “it is the intentionality behind 

the Commonwealth's subversion of the court process, not the prejudice 

caused to the defendant, that is inadequately remedied by appellate review 

or retrial.” Kearns, 70 A.3d at 884–85 (emphasis in original).
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When reviewing a trial court’s double jeopardy determination, our scope 

of review is plenary and our standard is de novo on questions of law. 

Commonwealth v. Anderson, 38 A.3d 828, 834 (Pa. Super. 2011). We give 

deference to the trial court on questions of fact and determinations of 

credibility.

Where issues of credibility and weight of the evidence are 

concerned, it is not the function of the appellate court to substitute 

its judgment based on a cold record for that of the trial court. The 

weight to be accorded conflicting evidence is exclusively for the 

fact finder, whose findings will not be disturbed on appeal if they 

are supported by the record.

Id. (quoting Commonwealth v. Wood, 803 A.2d 217, 220 (Pa. Super. 

2002)).

Thus, we must determine whether the Commonwealth acted 

intentionally to provoke a mistrial or to prejudice the defendant, or whether 

the prejudicial testimony arose through inadvertence or simple error. The trial 

court “firmly believe[d]” that the prosecutor and the witness made a good 

faith effort to comply with the court’s orders. N.T. Double Jeopardy Hearing, 

6/13/16, at 13, 15-17, 55-58. After review, we agree.

Officer Mancuso’s harmful testimony arose from the confluence of 

several errors, but none of them is attributable to intentional prosecutorial 

misconduct. First, Officer Mancuso was not a party to the sidebar; thus, he 

was not instructed with regard to the scope of acceptable testimony. Id. at 

57. Consequently, Officer Mancuso misunderstood the court’s instruction that 

he was to “clarify” his testimony. Id. at 31, 44-46. As a result, Officer 
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Mancuso felt that he had to give “more clarity” and “the truth of why [he] was 

there, and [he] testified that it was for the sexual assault of an eight-year-old 

child.” Id. at 46. Further, the prosecutor admittedly failed to artfully lead 

Officer Mancuso away from the inadmissible testimony. At sidebar, the court 

instructed the prosecutor to “go back and start over.” N.T. Trial, 6/9/16, at 

144. Complying literally with the trial court’s instructions, the prosecutor 

“started over” by repeating the same question that began the disputed 

testimony. Id. at 141, 145. The prosecutor’s query may not have comported 

with the constrained leading questions envisaged by the trial court, but the 

question, as it was asked, does not prove the prosecutor’s intentional attempt 

to subvert the trial. As Officer Mancuso aptly stated, “it was a perfect storm” 

of confusion among Officer Mancuso, the judge, and the prosecutor. Id. at 

44.

This was not a case of intentional prosecutorial misconduct, nor was it 

a case where the prosecutor’s inappropriate action resulted in the denial of 

justice. Instead, the error arose from a confluence of missteps made by the 

trial court, the prosecution, and Officer Mancuso. None of these parties acted 

with any clear intent to subvert justice, and the court swiftly remedied the 

error by immediately ordering a mistrial. We ultimately agree with the trial 

court’s assessment that the prosecutor did not act with intent to force a 

mistrial or to prejudice Darroch. As such, Darroch’s first claim warrants no 

relief.
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Darroch next argues that the court should have stayed the proceedings 

so that Darroch could file an interlocutory appeal on the issue of double 

jeopardy. A defendant generally has the right to appeal a trial court’s pretrial double jeopardy determination. Commonwealth v. Bolden, 373 A.2d 

90 (Pa. 1977). However, no interlocutory appeal is permitted where the trial 

court makes an express finding that the double jeopardy motion was frivolous. 

Commonwealth v. Orie, 22 A.3d 1021 (Pa. 2011).

When considering a motion to dismiss on the basis of double jeopardy, 

the trial court must make findings of fact and law on the record, along with 

an order granting or denying the motion. See Pa.R.Crim.P. 587(B)(3). Next, 

the court must state on the record whether the motion is frivolous. See 

Pa.R.Crim.P. 587(B)(4). If the motion is frivolous, the trial court must advise 

the defendant of his further appellate rights under Pa.R.A.P. 1573. See 

Pa.R.Crim.P. 587(B)(5). Here, the trial court complied with the procedural 

requirements. The judge entered findings of fact and law on the record,

denied Darroch’s motion, and stated that the motion was frivolous. N.T. 

Double Jeopardy Hearing, 6/13/16, at 54-61. Finally, the judge advised the 

defendant on the record of his appellate rights under Pa.R.A.P. 1573. Id. at 

60. In light of our discussion above regarding Darroch’s double jeopardy 

claim, the trial court committed no error in denying Darroch’s motion to stay 

for interlocutory appeal. Darroch’s second claim warrants no relief.

Lastly, Darroch claims that the evidence was insufficient to sustain his 

convictions. The standard for a sufficiency claim is as follows:
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In reviewing the sufficiency of the evidence, we view all evidence 

admitted at trial in the light most favorable to the Commonwealth, 

as verdict winner, to see whether there is sufficient evidence to 

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

a reasonable doubt. This standard is equally applicable to cases 

where the evidence is circumstantial rather than direct so long as 

the combination of the evidence links the accused to a crime 

beyond a reasonable doubt. Although a conviction must be based 

on “more than mere suspicion or conjecture, the Commonwealth 

need not establish guilt to a mathematical certainty.”

Moreover, when reviewing the sufficiency of the evidence, the 

Court may not substitute its judgment for that of the fact finder; 

if the record contains support for the convictions, they may not be 

disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa. Super. 2013) (internal 

citations omitted). 

Darroch was convicted of aggravated indecent assault and indecent 

assault. A person commits aggravated indecent assault if that person nonconsensually “engages in penetration, however slight, of the genitals or anus 

of a complainant with a part of the person’s body for any purpose other than 

good faith medical, hygienic or law enforcement procedures.” 18 Pa.C.S. § 

3125. A person commits indecent assault if that person non-consensually 

“has indecent contact with the complainant [or] causes the complainant to 

have indecent contact with the person . . . for the purpose of arousing sexual 

desire in the person or the complainant[.]” 18 Pa.C.S. § 3126. “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.
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This Court has held that “the uncorroborated testimony of a victim, if 

believed by the trier of fact, is sufficient to convict a defendant, despite 

evidence from a defense witness.” Commonwealth v. Filer, 846 A.2d 139, 

141-42 (Pa. Super. 2004) (quoting Commonwealth v. Davis, 650 A.2d 452, 

455 (Pa. Super. 1994)). Here, C.K. testified that Darroch penetrated her 

vagina with his fingers without her consent and while she was asleep. N.T. 

Trial, 6/13/16, at 119-21. She further testified that Darroch attempted to 

remove her bra at the same time. Id. These instances of unwanted touching, 

which include penetration, fulfill the elements of both aggravated indecent 

assault and indecent assault. Moreover, the jury, as finder of fact, was free 

to believe C.K.’s testimony. Commonwealth v. Estepp, 17 A.3d 939, 943–

44 (Pa. Super. 2011).3 As such, Darroch’s third and final claim warrants no 

relief.

Judgment of sentence affirmed.

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3 Even so, C.K.’s testimony is supported by Darroch’s admission to the 

investigating detectives that he “may have touched [the victim’s] private 

area” and that he “fingered her.” N.T. Trial, 6/14/16, at 59. Despite Darroch’s 

later equivocation, the jury had a sufficient basis to find Darroch guilty on all 

charges. 
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/21/2017