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NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

LAMAR ANDERSON

Appellant :
:
:
:
:
:
:
:
: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 687 EDA 2022 Appeal from the Judgment of Sentence Entered September 20, 2021 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP

- 51

- CR

- 0008690

- 2018

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM BY KING, J.: FILED JULY 17, 2023

Appellant, Lamar Anderson, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas , following his bench

trial conviction s for unlawful contact with a minor , corruption of minor s ,
indecent assault without consent , inde cent assault of a person under 16 years

of age , involuntary deviate sexual intercourse (“IDSI”) , and endangering the

welfare of a child. 1 We affirm.

In its opinion, t he trial court set forth the relevant facts of this case as

follows:

[Complainant] testified that she was a friend of [Appellant’s]

daughter , [H.J.] . Accordin g to Complainant, the first time Complainant met [Appellant] was at [Appellant’s] house in Southwest Philadelphia in July 2018. The first time

_________________ __________ ______ ____ _______

1 18 Pa.C.S.A. §§ 6318 (a)(1) , 6301 (a)(1)(ii) , 3126 (a)(1) , 3126(a)(8), 3123 (a)(7) , 4304 (a)(1) , respectively.J

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- Complainant was at [Appellant ’ s] home, she stayed two nights with [ H.J.] . During this visit, Complainant, and [ Appellant ’s] two daughters slept in the back ro o m. [Appellant] was in his room the entire time during this visit. According to Complainant, [Appellant ’s ] room is part of the living room and in his room, there is [a] bed, tv, and other things.

During t hat s ame s ummer , Complainant stayed at [Appellant’s] home a second time. This time, Complainant went to [Appellant ’ s] house with [H.J.] and their friend , M.L

. They went to [Appellant ’ s] home to spend the night because they were going to babysit [Appellan t’s infant ] son. [ 2 ] [Appellant] was expected to be at his house, but he stated he had to go to work. According to Complainant, [Appellant] was in and out during the night. He would come in, check on them and then leave. During this visit , Complainant a n d the other girls slept in the back and [Appellant] slept in his
room.
The next morning, Complainant and [M.L.] went to the supermarket with [Appellant]. [ H.J.] did not go to the supermarket because she was babysitting the baby in [Appellant’s] room. While at the supermarket, [Appellant] asked [Complainant] “ Do you want daddy to buy you a coloring book? ” [ 3 ] Complainant stated she did not say anything to [Appel lant] and just laughed. [Appellant] did not touch her while at the supermarket. After the supermarket, [Appellant] and [Complainant and M.L.] returned to the house, they began putting the food away. Complainant went into the kitchen by herself, and [App ellant] came into the kitchen. According to Complainant, when [Appellant] came into the kitchen, he picked her up and kissed her. After this happened, [C] omplainant went into the room with [ H.J. and M. L .] Complainant stated she was in the kitchen becaus e they

_________________ __________ ______ ____ _______

2 Complainant testified she babysat only the infant son, but M.L. testified that the girls babysat two young children. ( See N.T. Trial, 1/29/20, at 6 1 , 82

- 83 ).

3 M.L. testified that she over heard the coloring book comment. ( Id. at 86 )

. M.L. stated that Appellant asked Complainant to go to the supermarket alone , but Complainant asked M.L. to accompany her

. ( Id. at 85 )

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- were making breakfast.

... [Appellant] wanted Complainant to go into the kitchen by herself, but Complainant stated [Appellant] was acting weird and [she] did not want to be alone with him. [ 4 ] Further, while in the kitchen, [Appellant] pressed his “ front private part ” against Complainant ’ s butt. Complainant also testified that [ the day before Appellant kissed ] her in the kitchen, [Appellant] had kissed her when she went into his room to get l otion. Specifically, [Appellant] had picked her up by her thighs and kissed her on the lips. [ 5 ] Complainant did not feel comfortable telling [ H.J.] about these occurrences because [Appellant] was her dad. However, Complainant did tell M.L

. [ M.L. testi fied at trial that she saw Appellant press up against Complainan t in the kitchen

. ]

Later that same day, another incident occur red between Complain an t and [Appellant] . According to Complainant, she took [Appellant’s] baby from [H.J.] and went into the back room where she and the other girls were sleeping. She started taking pictures of her and the baby and sent them to her mom. While she was in the room, [Appellant] entered the room. Complainant testified that [Appellant] was talki ng to her and the baby. Complainant was laying down on the bed while this was happening. Next, [ Appellant] got down on his knees. He moved her shorts and underwear to the side with his fingers and said “ say yes or no. ” Next, [Appellant] started sucking and licking on her vagina. [Appellant] stopped when he heard M.L. coming.

Following the last incident with [Appellant], Complainant told M.L

. [ M.L. testified that when Complainant disclosed

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4 Specifically , Complainant described Appellant ’s “weird” behavior as being af fectionate, and Complainant also indicated t hat Appellant had previously showed her a pornographic video. ( Id. at 28 )

. Complainant’s testimony concerning the pornographic video violated a prior ruling by a different jurist which prohibited any reference to the pornographic video . After Complainant mentioned the pornographic video, the defense objected and requested a mist rial . The trial court denied the motion for a mistrial and instead, struck the statement from the record. ( Id. )

5 This testimony was inconsistent with Complainant’s earlier statement that nothing unusual had happened the night before

. ( Id. at 23 , 3 0 )

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- the events , Complainant looked shocked. M.L. suggested leav ing but Complainant wanted to stay with H.J

. M.L. left Appellant’s house, but Complaina nt stayed for ten hours. ] Additionally, Complainant told [ H.J.] what happened, and [H.J.] called her mom to pick them up. After being picked up, Complainant told mult iple people what happened. Complainant ’ s mother called the police , [ 6 ] and after making a police report and speaking with the SVU, [Appellant] was arrested. [After her interview at SVU, Complainant went to the hospital to be examined. She felt uncomfortable, so the medical staff did not finish the exam and did not get any DNA samples.]

( Trial Court Opinion, filed 8/29/22, at 1

- 2) (record citations omitted)

.
On January 29, 2020 , the court convicted Appellant of the above

mentioned offenses

. The court sentenced Appellant o n September 20, 2021,

to an aggregate term of five to ten years’ incarceration followed by three years

of pr obation

. Appellant timely filed a post

- sentence motion on September 30,

2021, which was denied by operation of law on February 1, 2022. Appellant

timely filed a no tice of appeal on March 1, 2022. Appellant filed a voluntary

Pa.R.A.P. 1925(b) statement o f errors complained of on appeal on June 17,

2022.

Appellant raises the following issues for our review:

Is the verdict of guilty with respect to all charges against the weight of the evidence an d so contrary t o the evidence that it shocks one’s sense of justice in light of the evidence presented at trial?

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6 The officer wrote in his report that Appellant licked Complainant’s vagina twice, once the first night in the kitchen and once in Appellant’s room. This differed from Complainant’s testimony at trial , during which Complainant stated that the only time Appellant performed oral sex on her was in Appellant’s bedroom

. ( Id. at 127 )

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- Did the trial court abuse its discretion when it denied [Appellant’s] motion for a mistrial when [C] omplainant testified that [Appellant] previously showed he r sexually explicit videos in direct contravention of a court order in limine which held such testimony to be inadmissible?

(Appellant’s Brief at 7).

In his first issue, Appellant argues that his conviction s are based solely

on Complainant’s testimony , which lacked any corroborating evidence or

testimony

. Specifically, Appellant asserts that Complainant refused the

medical examination despite medical personnel’s efforts. Appellant insists it

is “ illogical ” that no one witnessed the alleged assault , w hich Complainant said

occurred during the day wh en other people were in the home. Appellant

emphasizes that Complainant possessed her cellphone throughout the whole

stay at Appellant’s ho m e, but she did not text or call anyone for help after the

alleged assault

. Appellant further highlights that Complainant ’s text message

to her mother of a picture of Appellant’s infant child with Complainant after

the alleged assault is inconsistent with Complainant having been assaulted

. Appellant m aintains that M.L. offered Complainant a ride home after the

alleged assault, but Complainant chose to stay at Appellant’s house for ten

hours , which defies common sense to leave the house if an assault had taken

place

. Appellant also emphasizes that Comp lainant acted normally throughout

the stay at Appellant’s home, despite the alleged assault.

Additionally, Appellant points to various inconsistences in Complainant’s

testimony , highlighting: (1) Complainant’s statement that nothing unusualJ

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happened the first night compared to her subsequent statement that Appellant

kissed her when she went to get lotion ; (2) Complainant’s testimony that she

only babysat Appellant’s infant child , which contradicts M.L. ’s testimony that

the girls were babysitt ing two young children; and (3) Complainant’s

testimony that Appellant licked her vagina once , which contradicts the police

report statement that Appellant also licked her vagina on another occasion

. Appellant concludes the guilty verdicts were against th e weight of the

evidence , and this Court must grant Appellant a new trial. We disagree.

In reviewing a challenge to the weight of the evidence , our standard of

review is as follows:

The weight of the evidence is exclusively for the finder of the fact who is free to believe all, part or none of the evidence and to determine the credibility of the witnesses. An appellate court cannot substitute its judgment for that of the finder of fact. Thus, we may only reverse the... verdict if it is so contrary to the evidence as to shock one’s sense of justice.

Commonwealth v. Small , 559 Pa. 423, [435,] 741 A .2 d 666, 672

- 73 (1999). Moreover, where the trial court has ruled on the weight claim below, an appellant court’s role is not to consider the underlying qu estion of whether the verdict is against the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion in ruling on the weight claim.

Commonwealth v. Champney , 574 Pa. 435, 444, 832 A.2d 403, 408

(2003), cert denied , 542 U.S. 939, 124 S.Ct. 2906, 159 L.Ed.2d 816 (2004)

(most internal citations omitted).

Instantly, the trial court reasoned:J

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- [Appellant’s] argument is mainly based on the credibility of [Complai nant ]. It is within [the c]ourt’s discretion to believe all, part or none of the evidence and to determine the credibility of witnesses. [The c]ourt found [ C ] omplainant to be a credible witness. Specifically, [the c]ourt stated “Now, as far as listening to [C]omplainant testify, there are things she wasn’t

— that weren’t a hundred percent accurate. Th e y weren’t things that really related to what actually allegedly happened to her.” [ N.T. Tria l at 170.] Additionally, [the c]ourt has reviewed the entire r ecord and [the c]ourt concludes that the verdict was not so contrary to the evidence as to shock one’s sense of justice. Contrary to [Appellant’s] argument, the evidence of this case was compelling and supports [this c]ourt’s verdict.

(Trial Court Opin ion at 8). We agree with th e court’s analysis.

Here, it was within the trial court’s discretion to determine the credibility

of Complainant’s testimony. See Champney, supra

. The court expressly

noted that any inconsistencies in Complainant’s testimon y were not critical to

Complainant’s description of the assault that occurred. See Commonwealth

v. Fuentes , 272 A.3d 511 , 51 9 (Pa.Super. 2022) ( holding victim’s conflicting

testimony regarding assault do es not rise to level of “shocking the conscience

of the court” given victim’s overarching ability to provide salient facts relevant

to sexual assault she had experienced ). Additionally, the court heard

testimony regarding Complainant’s actions and behavior after the alleged

assault, and still deemed Complainant’s testimony credible. Further,

Complainant testified that she was uncomfortable completing the medical

examination , which was why the Commonwealth lacked DNA evidence in this

case

. We will not subst itute our judgment for the trial court as fact finder.

See Champney, supra

. On this record, the verdict is not so contrary to theJ

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evidence as to shock one’s sense of justice. See id. Therefore, Appellant’s

first issue on appeal merits no relief.

In his second issue, Appellant argues the court abused its discretion

when it denied Appellant ’ s motion for a mistrial. Appellant contends that

Complainant ’s referenc e to Appellant having shown her a pornographic video

directly violated the prior ruling on Appellant’s motion in limine seeking to

exclude such testimony

. Appellant asserts t h at Complainant’s mention of

Appellant’s prior bad acts prejudiced the judge as fact finder. Appellant

concludes the denial of a mist rial was improper, and this Court must grant a
new trial. We disagree.

In reviewing a challenge to denial of a mistrial, our standard of review

is as follows:

A motion for a mistrial is within the discretion of the trial court. A mistrial upon motion of one of the parties is required only when an incident is of such a nature that its unavoidable effect is to deprive the appellant of a fair and impartial trial. It is within the trial court ’ s discretion to determine whether a defendant was prejudiced by the incident that is the basis of a motion for a mistrial

. On appeal, our standard of review is whether the trial court abused that discretion

.

Commonwealth v. Cox , 231 A.3d 1011, 1018 (Pa.Super. 2020) (quoting

Commonwealt

h v. Tejeda , 834 A.2d 619, 623 (Pa.Super. 2003)). Further,

“not every arguably improper reference to prior criminal activity requires the

grant of a mistrial.” Commonwealth v. Timer , 609 A.2d 572, 576

(Pa.Super. 1992).J

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We observe that “ t rial judges sitting as fact finders in criminal cases are

presumed to ignore prejudicial evidence in reaching a verdict.”

Commonwealth v. Dent , 837 A.2d 571, 582 (Pa.Super. 2003) , appeal

denied , 581 Pa. 671, 863 A.2d 1143 ( 2004) (quoting Commonwealth v.

I rwin , 579 A.2d 955, 957 (Pa.Super. 1990) , appeal denied , 527 Pa. 592, 588

A.2d 913 (1991 ) )

. “The trial court, sitting without a jury and having sustained

the objection, will not be presumed to have given the passing reference any

weight whatsoever.” Time r, supra

. Instantly, the trial court explained:

There is no evidence that a mistrial was manifestly necessary and that the denial of the motion for a mistrial deprived [A] ppellant of a fair and impartial trial. At the [m]otion in [l]imine hearing, [ another jurist] instructed the Commonwealth to instruc t its witnesses to not testify about the video . [ See N.T. Trial at 29 ] . At trial, the witness made

a reference to a porn video that was shown to her by [Appellant]

. At trial, the direct examination went as follows:

Q: How come you didn ’ t want to be in the kitchen alone with him?

A: Because he was acting weird.

Q: What do you mean by weird?

A: Affectionate.

Q: How was he [being] affectionate towards you?

A: Because before he would like

— before, like the first time we went over there, he was showing u s like a sex video.

[ Id. at 28 ]

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- The defense moved for a mistrial. [The c]ourt overruled the objection. [The c]ourt stated “ If there were a jury, I would give them a curative instruction. Obviously , I’m a Judge and I’m going to ignore that because o bviously, I am capable of ignoring it. Whether a jury could or not, I don’t know. In this case , since it’s only related to me, I’m going to strike it, and I’m going to overrule your request for a mistrial

. ” [ Id. at 29 ]

. [The c]ourt explicitly stated tha t it would ignore that part of the testimony and strike it from the record. Ba sed on the circum stance s surrounding the testimony and [the c]ourt’s action, [the c]ourt’s actions did not prejudice or deprive [A]ppellant of a fair trial.

(Trial Court Opinion at 5

- 6). We agree with th e court’s analysis.

Here, it w as within the trial court’s discret ion to deny the motion for a

mistrial

. See Cox, supra

. The court expressly noted that Complainant’s

improper reference to the pornographic video did not prejudice the judge as

fact finder , and we presume the trial judge did not give the improper reference

any weight

. See Dent , supra ; Timer, supra

. Therefore, Appellant’s second

issue on appeal merits no relief. Accordingly, we affirm.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 7/17/2023