J-A23033-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

BRUCE D. STUART 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 198 MDA 2023

Appeal from the Judgment of Sentence Entered September 29, 2022

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

No(s): CP-41-CR-0000158-2019

BEFORE: LAZARUS, J., McLAUGHLIN, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 19, 2023

Appellant, Bruce Stuart, appeals from the judgment of sentence entered 

September 29, 2022 in the Court of Common Pleas of Lycoming County. After 

a careful review, we affirm.

The relevant facts and procedural history are as follows: On January 10, 

2019, Appellant was arrested and charged with multiple counts of rape, 

related sex offenses, and simple assault of his mentally disabled sister-in-law 

(hereinafter the “victim”). Criminal Information, Reproduced Record, at 16a19a. On May 25, 2022, after a two-day jury trial, Appellant was convicted of 

two counts of indecent assault and simple assault. T.P., 5/25/22, at 196-97. 

During the trial, the victim testified that the Appellant had sexual contact with 

her against her will over a period of about ten years. The victim’s father, the 

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* Former Justice specially assigned to the Superior Court.
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police officer who took the report and ordered the victim’s examination, the 

experts who prepared and/or reviewed the results of the examination, 

character witnesses, and the defendant himself testified. On September 29, 

2022, Appellant was sentenced to nine to twenty-two months’ incarceration 

and was required to register as a Tier II sex offender under SORNA for twentyfive years. Appellant filed a post-sentence motion on September 30, 2022, 

and argument was held on November 21, 2022. On January 24, 2023, 

Appellant’s post-sentence motion was denied. This appeal followed.

Appellant raises three issues, each regarding the trial court’s evidentiary 

rulings on evidence admitted at trial. “A trial court has broad discretion to 

determine whether evidence is admissible and a trial court's ruling on an 

evidentiary issue will be reversed only if the court abused its discretion.” 

Commonwealth v. Huggins, 68 A.3d 962, 966 (Pa. Super. 2013) (citing 

Commonwealth v. Cook, 676 A.2d 639, 647 (Pa. 1996)). We do not disturb 

a ruling admitting evidence “unless that ruling reflects manifest 

unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of 

support to be clearly erroneous.” Id. (quoting Commonwealth v. Minich, 4 

A.3d 1063, 1068 (Pa. Super. 2010)). As our scope of review over an 

evidentiary question is plenary, we may review the ruling within the context 

of the entire record. Id.

Appellant’s first issue is that the court erred in admitting a SANE exam, 

a serology report, a DNA report, and expert testimony related to the reports, 

since the reports were from 2018 and the victim testified that in 2018, 
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Appellant hit her with a paddle but no “sexual stuff” occurred. Appellant’s Br. 

at 6. Specifically, Appellant argues that since the victim’s own testimony was 

that the sexual contact between Appellant lasted from 2008 to 2017, there is 

no factual basis for the admission of evidence from 2018 of any sexual contact. 

Appellant’s Br. at 14. We disagree that the expert testimony lacked a basis in 

fact.

The law provides that:

expert testimony is incompetent if it lacks an adequate basis in 

fact. While an expert's opinion need not be based on absolute 

certainty, an opinion based on mere possibilities is not competent 

evidence. This means that expert testimony cannot be based 

solely upon conjecture or surmise. Rather, an expert's 

assumptions must be based upon such facts as the jury would be 

warranted in finding from the evidence. Accordingly, the 

Pennsylvania Rules of Evidence prescribe a threshold for 

admission of expert testimony dependent upon the extent to 

which the expert's opinion is based on facts and data.

Gillingham v. Consol Energy, Inc., 51 A.3d 841, 849 (Pa. Super. 2012) 

(citation omitted). Thus, an adequate basis in fact must enable the expert to 

opine with a reasonable degree of certainty and is incompetent if it lacks an 

adequate basis. See id.

Regarding the bases of opinion testimony by experts, Pa.R.E. 703 

relevantly provides the following:

Rule 703. Bases of opinion testimony by experts

The facts or data in the particular case upon which an expert bases 

an opinion or inference may be those perceived by or made known 

to the expert at or before the hearing. If of a type reasonably 

relied upon by experts in the particular field in forming opinions 

or inferences upon the subject, the facts or data need not be 

admissible in evidence.
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Pa.R.E. 703 (bold in original). Furthermore, “Pa.R.E. 705 requires an expert 

witness to testify as to the facts or data upon which the witness's opinion is 

based, whether or not the facts or data would otherwise be admissible in 

evidence.” In the Interest of D.Y., 34 A.3d 177, 182 (Pa. Super. 2011) (en 

banc) (citation omitted).

Here, the experts in sexual assault examination, serology, and DNA did 

testify as to the facts and data upon which their opinions were based, and the 

victim and Trooper Matthew Miller testified as to the factual basis of the 2018 

examination that led to the reports being generated. As the trial court 

discussed: 

Despite the victim testifying that the Defendant's sexual 

conduct occurred only until 2017, Trooper Matthew Miller testified 

that the victim and her father presented to the Pennsylvania: 

State Police barracks on July 8, 2018, and after an initial 

conversation with them, he decided to conduct an interview 

immediately with the victim.

Q: Was there — at least indicated at that time was there a suspect 

or perpetrator alleged?

A: Yeah. So at the time when I spoke with Rebecca she had 

mentioned that the reason why she was there was because of her 

brother-in-law, Bruce Stuart.

. . . 

Q: Were you given a time or timeframe when the acts were alleged 

to have occurred?

A: Yeah. So during the interview, Rebecca had mentioned that her 

sister, Jenny, was away for approximately nine days; and during 

those nine days, she had been sexually involved with Mr. Stuart, 

you know, against her will. But she had also mentioned that this 

had taken place over the course of the last ten years. So it was 

kind of hard to at the time pinpoint what time and date she was 

actually referring to at the time, but it was within the last ten 

years.

(Transcript of Proceedings, 5/25/22, pg. 125-126). Based on this 

information, Trooper Miller testified that he advised the victim to 
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go with her father to get a SANE examination, sexual assault kit, 

done at the hospital in the meantime to preserve any evidence 

that may be on her body. (T.P., 5/25/22, pg. 126).

Additionally, Nancy Steil, who was recognized by the Court 

as an expert in the area of sexual assault examination, provided 

the following testimony:

Q: As part of your exam, did you collect swabs from any part of 

her body?

A: Yes, I did.

Q: And from what parts?

A: On the chain of custody form it says that I collected a buccal 

swab, which is a swab on the inside of the mouth that's used to 

identify the patient's DNA, an oral swab which would be around 

her lips and inside of her mouth. Not when you do the buccal swab 

it's the inside of the cheek; but this would be around the gum line. 

A swab of her back and shoulders, both breasts, and her right 

outer thigh and calf.

Q: Okay. Now, those seem pretty specified areas. Is there a 

particular reason you swabbed those areas as opposed to any 

other places?

A: Okay. Let me see. In the narrative she stated that she felt his 

penis against her right leg, and he hit me in the right arm and 

right leg with a paddle. She also stated that he had kissed her 

back, shoulders, and her breasts.

Q: Okay. And so is that why the swabs were taken from where 

they were?

A: Yes.

Q: Is that the reason why were there any swabs taken from say 

the vaginal area?

A: No. She denied that there had been any vaginal contact.

Q: Okay. But at the time she did state that there had been mouth 

on the breast?

A: Yes.

(Transcript of Proceedings, 5/24/22, pg. 82-83).

Despite stating that the sexual behavior of the Defendant 

occurred only between 2008 and 2017, when asked if Bruce ever 

put his mouth on any part of her body the victim testified “[j]ust 

up on my breast. He put his place - his mouth up there. And I 

didn't like it. That's when my dad took me down to the hospital; 

and they found that DNA on me, on my breast and everywhere.” 

(T.P. 5/24/22, pg. 40). This testimony shows that the victim made 

accusations of sexual behavior on the part of the Defendant in 
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2018. It is the job of the jury to resolve any inconsistencies in 

testimony. However, the victim's testimony, along with the 

corroborating testimony of Trooper Miller and Nancy Steil, 

provided a sufficient foundation to establish an adequate basis in 

fact to permit the testimony of the expert witness and admission 

of exhibits regarding DNA and serology.

Tr. Ct. Op., 1/24/23, 4-5.

We agree with the trial court that despite the victim’s testimony that the 

“sex things” stopped occurring in 2017, T.P., 5/24/22, at 49-50, there was an 

adequate factual basis for admitting the reports and the testimony. While it 

is was clear from the testimony that no penetration was alleged in 2018, T.P. 

at 87, sexual assault takes forms other than penetration. Additionally, the 

victim’s 2018 allegation that Appellant hit her with a paddle and that 

Appellant’s mouth was on her breast, T.P. at 40, Trooper Miller’s testimony 

that he deemed a sexual assault kit and SANE examination necessary after 

the victim’s July 2018 incident report, T.P. at 126, Gordon Calvert’s testimony 

that the 2018 swabs of the victim revealed saliva on her body, T.P. at 96, and 

Angela Schultheis’s testimony that the saliva found on the victim contained 

Appellant’s DNA, N.T. at 113-14, all support the experts’ bases for the 

testimony. Thus, we find no abuse of discretion by the trial court.

Appellant’s second issue is that the trial court erred in permitting the 

Commonwealth to play a video recorded interview between Trooper Miller and 

Appellant. Appellant’s Br. at 16. Specifically, Appellant argues that that the 

recorded interview was not relevant because it depicts Appellant at the state 

police waiting for his attorney which is not a fact of consequence, and that the 
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recording was prejudicial because Appellant’s request for his attorney to be 

present has a “negative connotation.” Appellant’s Br. at 17-18. We disagree. 

Relevant evidence is admissible unless “otherwise provided by law.” 

Commonwealth v. Cook, 952 A.2d 594, 612 (Pa. 2008) (quoting Pa.R.E. 

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

probable than it would be without the evidence [and] the fact is of 

consequence in determining the action.” Pa.R.E. 401. Further, “[t]he court 

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

of one or more of the following: unfair prejudice, confusing the issues, 

misleading the jury, undue delay, wasting time, or needlessly presenting 

cumulative evidence.” Pa.R.E. 403.

Additionally, a videotaped interrogation of a criminal defendant may be 

introduced as substantive evidence at that defendant's trial. See 

Commonwealth v. Marrero, 687 A.2d 1102 (Pa. 1996); Commonwealth 

v. Probst, 580 A.2d 832 (Pa. Super. 1990). Voluntary extrajudicial 

statements made by Appellant may be used against him even though they 

contain no admission of guilt. Commonwealth v. Simmons, 662 A.2d 621 

(Pa. 1995). “The extrajudicial statements, which differ from confession in that 

they do not acknowledge all essential elements of a crime, are generally 

considered to qualify for introduction into evidence[.]” Id. at 635.

Here, while it is true that Appellant mentioned speaking to his attorney 

several times in the recorded interview, the references to his attorney are 

brief and not inflammatory. See Commonwealth v. Kitchen, 730 A.2d 513, 
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520-21 (Pa. Super. 1999) (stating that where a videotaped police 

interrogation played at trial referenced that the defendant was in police 

custody, would be arrested for murder, and that there were witnesses against 

her connecting her to the crime, the statements were not prejudicial and not 

inflammatory). In Kitchen, this Court decided which parts of a recorded 

interview played at a trial were admissible and which should have been 

excluded as prejudicial. The two taped interviews in that case showed the 

defendant telling the police her version of events and the police telling her 

that she would be arrested for murder based on evidence from other 

witnesses. Id. at 520. The police also interrogated her with phrases such as, 

“we know you’re lying,” and asking if she was lying when she answered a 

specific question. Id. at 521-522. The trial court allowed the part of the 

recording showing defendant’s version of events to be admitted, but redacted 

any mention of her arrest for murder, that she was in police custody, that 

there were witnesses against her, that she may have been lying, accusations 

of untruthfulness, and questions to which she responded with silence. Id. On 

appeal, we agreed that the parts of the video showing officers’ direct 

accusations of lying were properly excluded because they could be analogized 

to a prosecutor’s personal opinion of guilt of a criminal defendant. Id. at 521. 

We also agreed that the portions of the video where the defendant remained 

silent to an officer’s question were properly redacted since reference at trial 

to the accused’s silence while in police custody is a violation of constitutional 

rights. Id. at 522. However, we also held that the trial court should not have 
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redacted as prejudicial mentions that the defendant was in police custody, 

that she would be arrested for murder, that there were witnesses against her 

connecting her to the crime, or inquiries about the defendant’s truthfulness if 

worded in the form of a question as opposed to an accusation. Id. 

Here, the recording shows Appellant at the police station giving his 

version of events, speculating about the accusations against him, and 

explaining his relationship with the victim. These portions are relevant 

because Appellant’s discussion of the events surrounding his case has a 

tendency to make those facts more or less probable. Appellant’s mentions to 

police about speaking with his attorney are brief and not prejudicial because 

they can be distinguished from cases where a prosecutor’s suggestion that a 

defendant is guilty for retaining counsel results in penalizing the defendant for 

exercising a constitutional right. This court has recognized that many “federal 

and state courts have concluded that prosecutors may not suggest that a 

defendant’s retention of counsel is inconsistent with his or her innocence.” 

Commonwealth v. Lang, 275 A.3d 1072, 1082 (Pa. Super. 2022) (citation 

omitted). 

In Lang, the prosecutor admitted into evidence the defendant’s internet 

search history from before he was even accused of a crime—but after a report 

was published leading the defendant to believe he may be accused of sexual 

misconduct—in which he looked up criminal defense attorneys. Id. at 1081. 

The trial court relied on the internet search for a defense attorney as 

dispositive evidence of the defendant’s guilt. Id. at 1079. We held that 
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regardless of if the evidence shows a defendant was searching for an attorney 

or actually spoke with or consulted an attorney, that evidence cannot be used 

by the prosecutor to imply guilt. Id. at 1081. We also found that the error was 

not harmless since the evidence of the defendant’s search for an attorney was 

“dispositive” in the court reaching its guilty verdict. Id. at 1084-85. Here, 

unlike in Lang, the brief mentions by defendant about his attorney were not 

elicited by the prosecutor, nor used as evidence of guilt or consciousness of 

guilt by the prosecutor. Also unlike in Lang where the defendant’s search for 

a defense attorney was “the determining factor that resolved the relevant legal 

issue before the court,” in the instant case there was other sufficient testimony 

and forensic evidence on which the jury based its decision. Id. at 1085. 

Therefore, the trial court did not abuse its discretion by allowing the police 

interview of Appellant to be played for the jury. 

Appellant’s third issue is that the trial court erred in permitting the 

Commonwealth to play a conversation between Appellant and his wife 

recorded on a Lycoming County Prison phone line. Appellant’s Br. at 18. 

Specifically, Appellant contends that although the recording clearly states that 

the phone call was being taped, because the conversation was between a 

husband and a wife, it should have been excluded under the spousal privilege 

rule. Appellant’s Br. at 13.

We recognize that “[c]ommunications between spouses are 

presumed to be confidential, and the party opposing application 

of the rule disqualifying such testimony bears the burden of 

overcoming this presumption.” Commonwealth v. McBurrows, 

2001 PA Super 164, 779 A.2d 509, 514 (Pa.Super. 2001) (internal 
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citation omitted). The privilege under 42 Pa.C.S.A. § 5914 

prevents a spouse from testifying against the declarant-defendant 

spouse regarding “any communications which were confidential 

when made and which were made during the marital relationship.” 

Commonwealth v. May, 540 Pa. 237, 656 A.2d 1335, 1341-

1342 (1995) (footnote omitted) (emphasis supplied). Our 

Supreme Court has explained that where the challenged spousal 

communication was divulged by the declarant-defendant to third 

parties, the statement “does not qualify as [a] confidential 

communication.” Commonwealth v. Hancharik, 534 Pa. 435, 

633 A.2d 1074, 1077 (1993). Further, our Supreme Court 

explained that “[t]he Court in May recognized that the question 

of what is a ‘confidential’ communication turns in part on the 

reasonable expectation the declarant has that the communication 

will remain confidential.” Commonwealth v. Spetzer, 572 Pa. 

17, 813 A.2d 707, 722 (2002).

Commonwealth v. Davis, 121 A.3d 551, 556-57 (Pa. Super. 2015) 

(emphasis removed).

First, it is worth noting that neither Appellant nor his spouse testified 

against one another in this case, which is what the privilege under section 

5914 seeks to prevent. Here, the Commonwealth played a conversation 

between Appellant and his wife that was recorded on prison phone lines which 

instruct the phone call participants that the line is being recorded. Thus, the 

parties to the phone call on the recorded prison line never had a reasonable 

expectation that the communication would remain confidential since the 

parties were aware that the communications were contemporaneously being 

divulged to a third party. Therefore, since the conversation which was 

recorded and played at trial was never confidential, the privilege cannot apply, 

and we find no abuse of discretion by the trial court.

Judgment of Sentence Affirmed.
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Judgment Entered.

Benjamin D. Kohler, Esq.

Prothonotary

Date: 12/19/2023