J. A03039/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ROBERT CARAVELLA, :

:

Appellant : No. 2181 MDA 2013

Appeal from the Judgment of Sentence October 28, 2013

In the Court of Common Pleas of Luzerne County 

Criminal Division No(s).: CP-40-CR-0001431-2011

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

ROBERT CARAVELLA, :

:

Appellant : No. 2182 MDA 2013

Appeal from the Judgment of Sentence October 28, 2013

In the Court of Common Pleas of Luzerne County 

Criminal Division No(s).: CP-40-CR-0002500-2011

BEFORE: MUNDY, STABILE, and FITZGERALD,*JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JUNE 09, 2015

Appellant appeals from the judgment of sentence entered in the 

Luzerne County Court of Common Pleas following a jury trial held on April 

 

*

Former Justice specially assigned to the Superior Court.
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23, 2012 (“Case Number 1”)1and his convictions for Involuntary Deviate 

Sexual Intercourse with a Child,2 Aggravated Indecent Assault of a Child,3

Corruption of Minors,4 Endangering Welfare of Children,5and Unlawful 

Contact with a Minor.6 

He also appeals from the judgment of sentence entered on the same 

date in the Luzerne County Court of Common Pleas following a jury trial held 

on December 12, 2012 (“Case Number 2”) and his convictions for Criminal 

Conspiracy7(Rape of a Child),8 Corruption of Minors,9and Endangering the 

 

1

In this case, Appellant was found guilty of various crimes against his minor 

nieces, M.H. and S.H. 

2 18 Pa.C.S. § 3123(b).

3 18 Pa.C.S. § 3125(b).

4 18 Pa.C.S. § 6301(a)(1).

5 18 Pa.C.S. § 4304(a)(1).

6 18 Pa.C.S. § 6318(a).

7 Appellant was tried with his co-defendant, the child’s Mother. See N.T., 

12/12/12.

8 18 Pa.C.S. § 903.

9 18 Pa.C.S. § 6301(a)(1).
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Welfare of Children.10 These cases were consolidated by the trial court for 

sentencing11 and sua sponte by this Court for appeal. 

Appellant contends in Case Number 1 the court erred in (1) refusing to 

have the child victims undergo psychological and psychiatric examinations to 

determine their competency to stand trial and (2) not instructing the jury 

that the child’s testimony was suspect because of a lack of a prompt 

complaint and considerable period of silence. He claims the “totality of the 

circumstances” of this case denied his right to a fair trial. 

In Case Number 2, Appellant contends the court erred in (1) refusing 

to have the alleged child victim, C.C., undergo psychological and psychiatric 

examinations to determine his competency to testify; (2) permitting the 

child to testify where records and reports of his interviews provided by the 

Commonwealth contradicted accusations previously made concerning the 

instant charges; (3) refusing to dismiss charges or in allowing the child to 

testify after the Commonwealth produced records indicting the child was 

promised he “would be able to testify in a private room alone” if he agreed 

to testify against his parents; (4) permitting the Commonwealth to introduce 

evidence that the child had killed cats; (5) refusing to instruct the jury that 

the testimony of the child was suspect due to a lack of a prompt complaint; 

 

10 18 Pa.C.S. § 4304(a)(1).

11 Although the first jury trial ended on April 25, 2012, sentencing was 

continued, upon Appellant’s request, in order for the second trial to proceed 

involving another victim. N.T., 10/28/13, at 4-5.
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(6) denying his motion for discovery of records involving Patricia “Patsy” 

Paci; (7) violating his right to due process in denying his right to impeach 

the credibility of witnesses; and (8) permitting the child victim and Patricia 

“Patsy” Paci to testify after it was disclosed the child complained she had 

inappropriately communicated with him. We affirm.

We adopt the facts set forth by the trial court’s opinion in Case 

Number 1 and Case Number 2. See Trial Ct. Op., 6/2/14, at 4-9. On 

October 28, 2013, Appellant was sentenced to an aggregate total of thirtyfive and one-half to seventy-one years’ imprisonment. Appellant did not file 

post-sentence motions.12 This timely appeal followed. Appellant timely filed

a court-ordered Pa.R.A.P. 1925(b) statement of errors complained of on 

appeal in both cases and the trial court filed a responsive opinion addressing 

Case Number 1 and Case Number 2.

Appellant raises the following issues on appeal in Case Number 1:

1. Was [Appellant] denied his right to a fair trial by the 

[l]ower [c]ourt’s error in refusing to have the alleged child 

victims undergo psychological and psychiatric 

examinations to determine their competency to testify?

2. Did the [c]ourt below err in not instructing the jury that 

A) the testimony of the child was rendered suspect 

because of lack of prompt complaint and that it is a factor 

that the jury must consider as to the sincerity of the child’s 

complaint, and may justifiably produce doubt as to 

 

12 At sentencing, the court advised him, inter alia, as follows: “You have the 

right to file a post-sentence motion with me ten days from today. Any postsentence motions must be filed within ten days.” N.T., 10/28/13, at 80.
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whether the offense indeed occurred, or whether it was a 

recent fabrication of the [c]hild and that B) a child’s motive 

in making the complaints against [Appellant] following a 

considerable period of silence was relevant as affecting the 

child’s veracity?

3. Under the “totality of the circumstances” of this specific 

case, was [Appellant] denied his right to a fair trial by of 

jury of his peers?

Appellant’s Brief at 4-5.13

First, Appellant contends “[t]he [c]ourt erred in denying [Appellant’s] 

Omnibus Pre-Trial Motion that the [c]ourt order psychological and psychiatric 

 

13 We note that Appellant raised twenty-four errors in his Rule 1925(b) 

statement. Rule 1925(b)(4)(iv) provides that “the number of errors raised 

will not alone be grounds for finding waiver.” Pa.R.A.P. 1925(b)(4)(iv). 

Moreover, our Supreme Court instructed that with respect to lengthy Rule 

1925(b) statements, no violation is sufficient to find waiver of issues unless 

the trial court finds that the appellant acted in bad faith. PHH Mortg. Corp. 

v. Powell, 100 A.3d 611, 614 (Pa. Super. 2014) (some citations omitted). 

Although his Rule 1925(b) statement was not concise, we decline to find 

waiver because the trial court did not find that he acted in bad faith. See 

id. Additionally, despite raising three issues, Appellant raises sixteen 

averments of error in the argument section of his brief, thus violating 

Pa.R.A.P. 2119(a), which mandates that “arguments shall be divided into as 

many parts as there are questions to be argued.” See Pa.R.A.P. 2119(a). 

Appellant has failed to comply with Pa.R.A.P. 2119(c). “If reference is made 

to the pleadings, evidence, charge, opinion or order, or any other matter 

appearing in the record, the argument must set forth, in immediate 

connection therewith, or in a footnote thereto, a reference to the place in the 

record where the matter referred to appear[.]” Pa.R.A.P. 2119(c). We 

decline to quash. See Powell, 100 A.3d at 615 (refusing to quash appeal 

despite numerous violation of appellate briefing rules; see also 

Commonwealth v. Briggs, 12 A.3d 291, 343 (Pa. 2011) (“The briefing 

requirements scrupulously delineated in our appellate rules are not mere 

trifling matters of stylistic preference; rather, they represent a studied 

determination by our Court and its rules committee of the most efficacious 

manner by which appellate review may be conducted so that a litigant’s right 

to judicial review as guaranteed by Article V, Section 9 of our 

Commonwealth’s Constitution may be properly exercised.”).
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examinations of the alleged child victims to assess their competency to 

testify in this case.” Appellant’s Brief at 15-16. This is the sole averment in 

support of this claim of error. Our Pennsylvania Supreme Court has stated: 

“[W]here an appellate brief fails to provide any discussion of a claim with 

citation to relevant authority or fails to develop the issue in any other 

meaningful fashion capable of review, that claim is waived.” 

Commonwealth v. Johnson, 985 A.2d 915, 924 (Pa. 2009). However, in 

Appellant’s second claim of error, he comingles this claim of competency 

with his averments that the court erred in denying the pre-trial motion for a 

psychological and psychiatric examination of the child victims to assess their 

reliability as fact witnesses. We will decline to find issue one waived and 

address them together as they are interrelated.

In Appellant’s third claim, he baldly asserts the copies of records and 

reports of interviews which were provided to him by the District Attorney’s 

Office indicate the alleged child victims contradicted previous accusations 

concerning the charges against Appellant, thus the court erred in finding the 

child victims competent to testify. Id. at 18. Although Appellant cites no 

law in support of this claim, we will address it as it is interrelated to the 

competency of the children raised in issue two. 

Appellant avers he “had reason to doubt the competency of the alleged 

victims. Significant questions were reasonably posed concerning their 

mental state and the undue influence imposed upon them by their Father, 
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the police and caseworkers. Here, the case for examination was more so 

required, as the children’s Mother did not believe their claims.” Appellant’s 

Brief at 16. We find no relief is due.

Our review of this issue is governed by the following principle. “The 

question of a person’s competency to be a witness is vested within the 

sound discretion of the trial court.” Commonwealth v. Alston, 864 A.2d 

539, 548 (Pa. Super. 2004) (en banc). Pennsylvania Rule of Evidence 601 

provides:

(a) General Rule. Every person is competent to be a 

witness except as otherwise provided by statute or in 

these Rules.

(b) Disqualification for Specific Defects. A person is 

incompetent to testify if the Court finds that because of a 

mental condition or immaturity the person:

(1) is, or was, at any relevant time, incapable of perceiving 

accurately;

(2) is unable to express himself or herself so as to be 

understood either directly or through an interpreter;

(3) has an impaired memory; or

(4) does not sufficiently understand the duty to tell the 

truth.

Pa.R.E. 601. 

In Commonwealth v. Boich, 982 A.2d 102 (Pa. Super. 2009) (en 

banc), this Court reversed the trial court and held the defendant did not 

show a compelling need existed for an involuntary psychiatric examination of 
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the victim’s competence to testify. Id. at 104. The Boich Court opined that 

Rule 601 

is expressly intended to preserve existing Pennsylvania 

law. “In general, the testimony of any person, regardless 

of [her] mental condition, is competent evidence, unless it 

contributes nothing at all because the victim is wholly 

untrustworthy. Thus, in Pennsylvania, [a witness is] 

presumed competent to testify, and it is incumbent upon 

the party challenging the testimony to establish 

incompetence.”FN6 Above all, given the general 

presumption of competency of all witnesses, a court ought 

not to order a competency investigation, unless the court 

has actually observed the witness testify and still has 

doubts about the witness’ competency. 

__________________

FN6 The presumption of competency also 

applies to child witnesses. In the case of a child 

witness, once evidence of corruption is established, 

the court must make a searching judicial inquiry into 

the mental capacity of a witness under the age of 

fourteen; that investigation involves whether the 

child witness has the following: “(1) capacity to 

observe or perceive the occurrence with a substantial 

degree of accuracy; (2) ability to remember the 

event which was observed or perceived; (3) ability to 

understand questions and to communicate intelligent 

answers about the occurrence, and (4) 

consciousness of the duty to speak the truth.” See

also Commonwealth v. Delbridge, [ ] 859 A.2d 

1254 ([Pa.] 2004) (explaining judicial competency 

investigations apply in cases where sexual abuse 

complainants are young children because child’s 

memory is uniquely susceptible to falsely implanted 

suggestions which may cause child difficulty in 

distinguishing fact from fantasy when called to 

testify). “These concerns clearly become less 

relevant as a witness’ age increases, ultimately being 

rendered totally irrelevant as a matter of law by age 

fourteen. While the age of fourteen is somewhat 

arbitrary, it appears to give a sufficient buffer for 

slow developers such that any issue with 
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competency at that age would need to be caused by 

some factor other than immaturity.” This same 

competency standard also applies when a proposed 

witness suffers from a mental condition. Pa.R.E. 

601(b). “If the trial court is presented with credible 

evidence that a proposed witness is . . . mentally 

retarded, the court shall conduct a judicial inquiry to 

determine the testimonial competency of the 

proposed witness. The factors . . . in making [this] 

determination are the same factors . . . used in 

determining the competency of a child witness.” 

Claims that a witness’ memory has been corrupted by 

insanity, mental retardation, hypnosis, or taint go to the 

competency of that witness to testify. The capacity to 

remember and the ability to testify truthfully about the 

matter remembered are components of testimonial 

competency. The party alleging a witness is incompetent 

to testify must prove that contention by clear and 

convincing evidence.

Id. at 109-10 (some citations omitted and emphases supplied).

Instantly, the trial court opined that Appellant’s “request for a 

psychiatric examination of the child victims, however, was properly denied. 

As noted by the [c]ourt, other than his request for the examination, 

[Appellant] failed to provide a compelling reason or a substantial need for 

the psychiatric examination.” Trial Ct. Op. at 10. We agree no relief is due.

At the hearing on the omnibus pre-trial motion, Appellant presented 

the following argument to the court in support of its request for a psychiatric 

examination:

Counsel for Appellant: The second motion, Judge, in the 

omnibus motion is a motion to conduct an independent 

psychiatric examination. As Your Honor well knows, this 

may be granted within the sound discretion of the court. 

[Appellant] has a reason to doubt the competency of the 
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alleged victims in this case. They were both minors at the 

time of the alleged incidents.

We believe that the alleged victims have been 

influenced, improperly influenced, by, number one, the 

father who the two children still live with; the mother does 

not live with them anymore. Also by various caseworkers 

from Children and Youth and the police. And this 

influence, I believe, can only be shown by an independent 

professional. And in this case, I believe a psychiatrist or a 

child psychologist who can determine if, in fact, these 

children have been influenced or tainted in any way. 

N.T., 2/17/12, at 7-8. 

The court asked counsel if there was “anything specific that leads into 

a discussion as to why an involuntary psychiatric examination of a witness is 

compelling” in this case. Id. at 9. The court asked counsel if he had 

reviewed the records from Children and Youth. Id. at 10. Counsel 

responded that he did not and the Commonwealth stated that they had not 

been provided with those records. Id. Counsel for Appellant asked the 

Commonwealth if they were “using any Children and Youth Records for [the] 

trial” and the Commonwealth stated they were not. Id. at 10-11. Counsel 

for Appellant stated: “Then I don’t need them. But again . . . .” Id. at 11.

The court stated: “Well, if you’re trying to put out an argument of taint, 

wouldn’t a review of those records be essential to your need for a psychiatric 

evaluation . . . .” Id. The court concluded that ”without any specificity, I’m 

not finding any compelling reason that’s established that the psychiatric 

examination, which is intrusive and ordered in very rare circumstances, 

should even be considered.” Id.
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Appellant has not provided a compelling reason in support of his claim 

of error. See Boich, 982 A.2d at 109-10. We discern no abuse of discretion 

by the trial court. See Alston, 864 A.2d at 548.

Appellant’s averments four and five baldly assert the court erred in 

denying his motion for discovery of certain records and materials in 

possession of the Luzerne County Child Advocacy Center. Appellant has not 

provided any citation to relevant authority in support of these claims. 

Therefore, we find these claims waived. See Pa.R.A.P. 2119(c); Johnson, 

985 A.2d at 924. 

In averment six, Appellant contends 

[t]he [c]ourt erred in denying [his m]otion that the [c]ourt 

order the release and production of any internal 

investigations, records, citizen’s complaints and/or 

personnel files of the agents of the Luzerne County 

Children & Youth Services and the Luzerne County Child 

Advocacy Center, and should have conducted an in camera 

examination of prosecution files and reports to determine 

their relevance within the meaning of the law and what 

may have been discoverable.

Appellant’s Brief at 19. In averment seven, Appellant reiterates the claim of 

error regarding the denial of discovery requests and refusal to conduct an in 

camera inspection. Id. at 20.

The trial court found Appellant waived these boilerplate allegations of 

error in paragraphs six and seven for failure to raise the issue or failure to 

preserve it with an objection. Trial Ct. Op. at 10. We agree no relief is due. 

Our review of the record reveals that at the first hearing on the 
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omnibus motions, the court asked counsel for Appellant if he had received 

the records from Children and Youth and counsel responded that he did not. 

See N.T., 2/17/12, at 10-11. The court explained “if you want Children and 

Youth records, there’s a process, and you would have to participate. And 

that doesn’t happen instantly because they have to redact and review. So 

you would have to make that determination as soon as possible.” Id. at 11-

12. Counsel responded that he understood. Id. at 12. On April 18, 2012, 

another hearing was held on pre-trial motions. Counsel indicated that it had 

received the records from Children and Youth. N.T., 3/18/12, at 2-3 

(emphasis added). No objection was raised before the trial court. See id. 

We find the issue waived. See Pa.R.A.P. 302(a) (“Issues not raised in the 

lower court are waived and cannot be raised for the first time on appeal.”).

In averments eight through twelve, Appellant contends the court erred 

in not instructing the jury regarding the lack of a prompt complaint. 

Appellant’s Brief at 21. Our review is governed by the following principles:

“[I]n reviewing a challenge to the trial court’s refusal to 

give a specific jury instruction, it is the function of this 

[C]ourt to determine whether the record supports the trial 

court's decision.” In examining the propriety of the 

instructions a trial court presents to a jury, our scope of 

review is to determine whether the trial court committed a 

clear abuse of discretion or an error of law which controlled 

the outcome of the case. A jury charge will be deemed 

erroneous only if the charge as a whole is inadequate, not 

clear or has a tendency to mislead or confuse, rather than 

clarify, a material issue. A charge is considered adequate 

unless the jury was palpably misled by what the trial judge 

said or there is an omission which is tantamount to 

fundamental error. Consequently, the trial court has wide 
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discretion in fashioning jury instructions. The trial court is 

not required to give every charge that is requested by the 

parties and its refusal to give a requested charge does not 

require reversal unless the appellant was prejudiced by 

that refusal.

Commonwealth v. Brown, 911 A.2d 576, 582-83 (Pa. Super. 2006) 

(citation omitted).

As a prefatory matter, we consider whether Appellant has preserved 

any objection to the jury instructions. Appellant has not complied with 

Pa.R.A.P. 2119(c), nor has he cited any relevant law in support of his claims, 

other than Pa.R.Crim.P. 647. This rule provides:

(A) Any party may submit to the trial judge written 

requests for instructions to the jury. Such requests shall 

be submitted within a reasonable time before the closing 

arguments, and at the same time copies thereof shall be 

furnished to the other parties. Before closing arguments, 

the trial judge shall inform the parties on the record of the 

judge’s rulings on all written requests and which 

instructions shall be submitted to the jury in writing. The 

trial judge shall charge the jury after the arguments are 

completed.

(B) No portions of the charge nor omissions from the 

charge may be assigned as error, unless specific objections 

are made thereto before the jury retires to deliberate. 

All such objections shall be made beyond the hearing of 

the jury.

Pa.R.Crim.P. 647(a), (b) (emphasis added). 

Our Supreme Court has opined:

The pertinent rules, therefore, require a specific objection 

to the charge or an exception to the trial court’s ruling on 

a proposed point to preserve an issue involving a jury 

instruction. Although obligating counsel to take this 

additional step where a specific point for charge has been 
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rejected may appear counterintuitive, as the requested 

instruction can be viewed as alerting the trial court to a 

defendant’s substantive legal position, it serves the 

salutary purpose of affording the court an opportunity to 

avoid or remediate potential error, thereby eliminating the 

need for appellate review of an otherwise correctable 

issue.

Commonwealth v. Pressley, 887 A.2d 220, 224 (Pa. 2005) (footnotes 

omitted). At the conclusion of the charge to the jury, the court inquired 

whether “either attorney [ha] anything else that we need to add?” N.T., 

4/23/12, at 465. Counsel stated: “Nothing, Your Honor. Thank you.” Id. 

Therefore, Appellant has waived this issue for failing to object before the 

jury retired to deliberate. See Pa.R.Crim.P. 647(b), Pressley, 887 A.2d at 

224. Regardless, a review of the record belies Appellant’s claim of error in 

not instructing the jury regarding the failure to make prompt complaint. 

At trial, the court instructed the jury as follows: 

Another important point, before you may find the 

Defendant guilty of the crimes charged in this case, you 

must be convinced beyond a reasonable doubt that the 

acts charged did, in fact, occur. The evidence provided by 

[M.H. and S.H.] shows a delay in making a complaint. 

That delay in making a complaint does not necessarily 

make her testimony unreliable, but it may remove from 

the testimony its assurance of─of reliability accompanying 

the prompt complaint or outcry that a victim of a crime 

such as this would ordinarily be expected to make. 

Therefore, the delay in making a complaint by [M. H. and 

S.H.] should be considered in evaluating their testimony in 

deciding whether the acts occurred.

You must not consider [M.H. and S.H.’s] delay in 

making a complaint as conclusive evidence that the acts 

did not occur. These are factors that you should consider 

as bearing on the believability of their testimony and 
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should be considered by you in light of all the evidence 

that was presented in this case.

N.T., 4/23/12, at 448-49. In light of the jury charge on prompt complaint, 

the issue is meritless. 

Next, in averment thirteen, Appellant contends the court erred in 

refusing to inquire of potential jurors the questions he submitted in writing 

on voir dire, or to permit him to do so. Appellant’s Brief at 23. He states: 

“The presumption of innocence in this factually disturbing case is difficult for 

all of us, but without it, [Appellant] did not have a chance of a fair trial.” Id.

at 24. Appellant argues that there should have been an expanded voir dire

because “[v]irtually no other type of criminal case can be compared with 

these types of crimes; just as any Penn State alumni who has suffered insult 

as a result of the crimes of Jerry Sandusky.” Id. at 25. Appellant requested 

that prospective jurors, who had been victims of sexual misconduct or whose 

relatives or close associates had been victims, should have been sequestered 

to protect their privacy. Id. at 26.

On this issue our standard of review is as follows: 

It is well established that the scope of voir dire rests in 

the sound discretion of the trial court, whose decision will 

not be reversed on appeal absent palpable error. 

Similarly, the trial court possesses discretion to determine 

whether counsel may propose their own questions of 

potential jurors during voir dire. 

Commonwealth v. Mattison, 82 A.3d 386, 397 (Pa. 2013) (citations 

omitted).
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Instantly, the trial court opined:

This [c]ourt’s refusal to permit the overly specific 

questions proposed by [Appellant] was not a gross abuse 

of discretion as this [c]ourt did ask the prospective jurors 

generally whether they, or a friend or family member had 

been a victim of a crime, and whether they questioned 

their ability to be fair because the charges concerned 

sexual conduct with a minor. Additionally, this [c]ourt 

explored the possible bias of some of the prospective 

jurors by questioning them individually at sidebar.

There is no question that this [c]ourt’s voir dire process 

was designed to secure a competent, fair, impartial and 

unprejudiced jury for [Appellant]. For example, the 

questions asked by this [c]ourt during voir dire and at 

sidebar of one of the jurors revealed that Juror number 7 

suffered from child abuse, her daughter was abused as a 

child and her granddaughter was raped when she was a 

senior in high school. Juror number 7 was dismissed for 

cause. The dismissal of Juror number 7 demonstrates the 

effectiveness of this Court’s voir dire process in dismissing 

a juror who may not have been fair, impartial and 

unprejudiced based upon her life experiences.

Trial Ct. Op. at 13. We agree no relief is due.

A review of the record belies Appellant’s assertions. Instantly, 

prospective jurors were questioned at sidebar regarding, inter alia, their 

expressed reservations during voir dire. The court indicated that counsel 

could also question the prospective jurors at this time. N.T., 4/23/12, at 54.

We discern no abuse of discretion. See Mattison, 82 A.3d at 397.

Appellant has waived the claims raised in averments fifteen and 

sixteen. He cites no legal authority in support of the claim that the court 

erred in denying his motion for a change in venue. See Johnson, 985 A.2d 

at 924. Similarly, Appellant cites no legal authority in support of his 
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objection to the process by which the court found that he was a sexually 

violent predator. Therefore, this issue is waived. See id.

Finally, Appellant contends he was denied a fair trial by a jury of his 

peers under the “totality of the circumstances.” Appellant’s Brief at 13. 

Appellant did not raise this issue in his Rule 1925(b) statement of errors 

complained of on appeal, and therefore it is waived. See Pa.R.A.P. 

1925(b)(4)(vii) (“Issues not included in the Statement and/or not raised in 

accordance with the provisions of this paragraph (b)(4) are waived.”). Even 

assuming, arguendo, the issue were not waived, it is meritless based upon 

Appellant’s failure to establish any error by the trial court. 

In Case Number 2, Appellant raises the following issues for our review:

1. Was . . . Appellant denied his right to a fair trial by the 

[l]ower [c]ourt’s error in refusing to have the alleged child 

victim [C.C.] undergo psychological and psychiatric 

examinations to determine his competency to testify?

2. Was [Appellant] denied a fair trial when the [l]ower 

[c]ourt erred in finding the [c]hild competent to testify in 

this case, even after the District Attorney’s Office provided 

copies of records and reports of interviews wherein the 

[c]hild contradicted the accusations previously made 

concerning the instant charges against . . . Appellant?

3. Was [Appellant] denied a fair trial when the [l]ower 

[c]ourt erred in failing to dismiss the charges or in 

permitting the [c]hild to testify even after the District 

Attorney’s Office provided copies of records and reports of 

interviews wherein it was disclosed that the [c]hild was 

promised that he “would be able to testify in a private 

room alone” if he agreed to testify against his parents on 

the current charges?
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4. Was . . . Appellant denied a fair trial when the [c]ourt 

improperly permitted the Commonwealth to introduce

evidence that C.C. had killed cats while living with his 

parents, as a result of his alleged abuse[?]

5. Did the [c]ourt below err in not instructing the jury that 

A) the testimony of the [c]hild was rendered suspect 

because of lack of prompt complaint and that it is a factor 

that the jury must consider as to the sincerity of the 

[c]hild’s complaint, and may justifiably produce doubt as 

to whether the offense indeed occurred, or whether it was 

a recent fabrication of the [c]hild and that B) the [c]hild’s 

motive in making the complaints against . . . Appellant 

following his considerable period of silence was relevant as 

affecting the [c]hild’s veracity?

6. Whether the [c]ourt erred in denying . . . Appellant’s 

Motion for discovery of certain record and materials in the 

possession of the Wyoming County Children and Youth 

Services involving Patricia “Patsy” Paci?

7. Did the lower [c]ourt violate . . . Appellant’s rights 

pursuant to due process and confrontation provisions of 

the Pennsylvania and United States Constitutions 

provisions, in denying [ ] Appellant’s right to impeach the 

credibility of the [c]hild, Patricia “Patsy” Paci, and other 

Commonwealth witnesses with the hereinbefore mentioned 

records of the Luzerne County Child Advocacy Center and 

Wyoming County Children & Youth Services which may 

have been reflective of the motive or bias of the [c]hild 

and/or Patricia “Patsy” Paci? 

8. Did the lower [c]ourt err in permitting the [c]hild and 

Patricia “Patsy” Paci to testify even after it was disclosed 

that the [c]hild had complained that Patricia “Patsy” Paci, 

who was charged with the [c]hild’s custody and care, was 

improperly communicating with him concerning the instant 

case and had to be warned about her interference in this 

case?
J. A03039/15

- 19 -

Appellant’s Brief at 5-6.14

First, Appellant contends the court erred in denying his motion to order 

psychological and psychiatric testing of the child to determine his 

competency to testify. Appellant’s Brief at 19. Appellant claimed at the 

taint hearing15 he made a showing of compelling need for psychological and 

psychiatric examinations. Id. at 20. In the motion, Appellant averred “[t]he 

district attorney’s office has provided the defense with copies of records and 

reports of interviews wherein the child contradicts accusations previously 

made concerning the instant charges against [Appellant].” Def.’s Mot. for a 

Pre-Trial Hr’g to Establish the Competency of the Alleged Child Victim, 

6/18/12, at 3. Appellant contends the records disclosed that the child was 

promised that he “would be able to testify in a private room alone” if he 

testified in the instant case. Appellant’s Brief at 20. He avers “[t]he defense 

was also provided with copies of records and reports of interviews wherein it 

was disclosed that the child has complained that Commonwealth witness, 

 

14 We note Appellant raised twenty-eight issues in his Rule 1925(b) 

statement. We do not find waiver. See Powell, 100 A.2d at 614. 

Appellant’s brief does not comply with Rule 2119(a), (c). See note 12, 

supra. 

15 Appellant refers to his Motion for a Pre-Trial Taint Hearing to Establish the 

Competency of the alleged Child Victim, citing the reproduced record at 47a. 

Appellant’s Brief at 20. We note that the reproduced record does not 

contain pages 34a through 50a. This is of no moment because the motion is 

included in the certified record on appeal. However, the certified record 

does not include notes of testimony from a taint hearing. On July 13, 2012, 

the court denied the motion regarding the issue of taint. Order, 7/13/12.
J. A03039/15

- 20 -

Patricia Paci,” an adult charged with his care, improperly communicated with 

him regarding this case. Id. at 20-21.

We review this issue for an abuse of discretion. See Alston, 864 A.2d 

at 548. After careful consideration of the record, the parties’ briefs, and the 

well-reasoned decision of the Honorable Polachek Gartley, we affirm this 

issue on the basis of the trial court’s decision. See Trial Ct. Op. at 15-18 

(holding (1) the child was fourteen years old at the time of trial and 

presumed competent to testify; (2) no clear and convincing evidence 

presented for an involuntary psychiatric examination; and (3) no promises 

were made to child that he could testify in private room).

Appellant, in statement of issues number four, avers he was denied a 

fair trial when the court permitted the Commonwealth to introduce evidence 

that the child had killed cats while living with his parents as a result of the 

alleged abuse. Appellant’s Brief at 5. In the argument section of the brief, 

Appellant reiterates this claim without any citation to legal authority. 

Appellant’s Brief at 22. We find this issue waived.16 See Johnson, 985 

A.2d at 924. 

 

16 We note the trial court found the issue was waived and opined:

[Appellant] argues that he was denied a fair trial when the 

[c]ourt permitted the commonwealth to introduce evidence 

of the [c]hild killing cats. [Appellant], however, never 

objected to the Commonwealth’s introduction of evidence 

that [Appellant’s] son killed cats while living with his 

parents as a result of the alleged abuse. Consequently, 
J. A03039/15

- 21 -

Fifth, Appellant contends the court erred in not instructing the jury 

that the testimony of the child was suspect because of the lack of a prompt 

complaint.17 Appellant’s Brief at 22-23. As a prefatory matter, we consider 

whether Appellant has preserved his objection to the jury instructions. See

Pa.R.Crim.P. 647(b); Pressley, 887 A.2d at 224. 

As the trial court opined: “As per defense counsel’s request, the 

[c]ourt read the instruction to the jury on the [c]hild’s delay in making a 

prompt complaint.” Trial Ct. Op. at 20. The court instructed the jury as 

follows:

Before you find [Appellant] guilty of the crimes charged 

in this case, you must be convinced beyond a reasonable 

doubt that the acts charged did, in fact, occur and 

that─that the─that they did, in fact, occur. The evidence 

of [the child’s] delay in making a complaint does not 

necessary [sic] make his testimony unreliable but may 

remove from it the assurance of reliability accompanying 

the prompt complaint or outcry that the victim of a crime 

such as this would ordinarily be expected to make. 

Therefore, the delay in making the complaint should be 

considered in evaluating his testimony and deciding 

whether the acts occurred. You must not consider [the 

child’s] delay in making a complaint as conclusive evidence 

that the acts did not─did not occur, excuse me. [The 

 

[Appellant] waived his right to appeal the Commonwealth’s 

introduction of evidence that the [c]hild killed his mother’s 

cats. 

Trial Ct. Op. at 15. Additionally, Appellant’s counsel cross-examined the 

child regarding his killing of cats. N.T., 12/12/12, at 204-11. 

17 These claims of error appeared as averments fifteen through eighteen in 

Appellant’s Rule 1925(b) statement. 
J. A03039/15

- 22 -

child’s] failure to promptly make a complaint in any nature 

and explanation for not making that complaint more timely 

are factors bearing on the believability of his testimony 

and should be considered by you in light of all of the 

evidence that’s presented in this case.

N.T., 12/12/12, at 490-91. 

The claim that the court did not give the requested charge is meritless. 

Furthermore, as the trial court found, Appellant did not object to the jury 

charge. Trial Ct. Op. at 20. At the conclusion of the charge, the court asked 

counsel “is there anything else?” Defense counsel responded: “Nothing, 

Your Honor. Thank you.” N.T. at 517. Therefore, the issue is waived. See

Pa.R.Crim.P. 647(b).

Issues six, seven and eight in Appellant’s statement of the issues on 

appeal18 concern the court’s discovery rulings regarding the witness Patricia 

“Patsy” Paci.19 Appellant contends the court erred in denying his motion for 

discovery of certain records and materials in the possession of the Wyoming 

County Children & Youth Services (“WCC&YS”) involving Patricia “Patsy” Paci 

and the Luzerne County Child Advocacy Center.20 Id. at 24-30. In support 

 

18 In the argument section of the brief, Appellant denominates these issues 

as issue II: “Issues relating to Impeachment of commonwealth Witness, 

Patricia Paci.” Appellant’s Brief at 24.

19 Appellant has violated Pa.R.A.P. 2119(a), (c). See note 12, supra.

20 We note that the trial court indicates that Appellant’s motion to obtain 

records from WCC&YS was denied and that “[d]efense counsel acknowledged 

that he did not know if the records existed, that the records would have 

nothing to do with the alleged victim and that the records were from sixteen 
J. A03039/15

- 23 -

of this claim, Appellant avers that he sought the court’s approval of a 

subpoena of records and materials from the WCC&YS for the preparation of 

cross-examination. Appellant’s Brief at 26. “Likewise, the lower [c]ourt 

denial of the discovery request improperly influenced the Jury’s ability to 

fairly judge [Appellant’s] guilt or innocence.” Id. 

The [c]ourt violated [Appellant’s] rights pursuant to due 

process and confrontation provisions of the Pennsylvania 

and United States Constitutions provisions, in denying 

[Appellant’s] right to impeach the credibility of Patricia 

“Patsy” Paci with the hereinbefore mentioned records of 

[WCC&YS] which may have been reflective of the 

motive or bias of Patricia “Patsy” Paci.

Id. (emphasis added).

It is well-established that “[g]enerally, on review of an order granting 

or denying a discovery request, an appellate court applies an abuse of 

 

(16) years ago.” Trial Ct. Op. at 19, citing N.T., 7/13/12, at 4-7. Our 

review of the certified record on appeal in this case did not reveal notes of 

testimony from this pre-trial hearing. Appellant’s motion for discovery of 

records from WCC&YS is dated October 16, 2012. See [Co-] Defendants’ 

Joint Motion for Discovery of Certain Records and Materials in the Possession 

of the Wyoming County Children and Youth Services, 10/16/12. Appellant 

sought discovery of any and all records in Wyoming County regarding 

Patricia “Patsy” Paci. Id. at 4-5. The trial court scheduled a hearing on this 

pre-trial motion for November 9, 2012. Order for Pre-Trial Motion, 11/5/12. 

The record does not contain notes of testimony on this date. On November 

9, 2012, the motion for Wyoming County Records was denied “after a full 

hearing on [Appellant’s] Motion for Discovery held on November 9, 2012 . . . 

.” Order, 11/9/12. The trial court opined as to the request for records from 

the Luzerne County Child Advocacy Center, “the trial court properly denied 

[Appellant’s] Motion[ ] and informed [him] that the records from [that] 

agency had to be subpoenaed.” Trial Ct. Op. at 19. The trial court refers to 

the hearing dated July 13, 2012. As previously stated, there are no notes of 

testimony from the July 13th hearing in the certified record. 
J. A03039/15

- 24 -

discretion standard.” Boich, 982 A.2d at 109. Instantly, the trial court 

opined:

With respect to [Appellant’s] Motion to obtain records 

from [WCC&YS] pertaining to the [c]hild’s caretaker, the 

Motion was properly denied. Defense counsel 

acknowledged that he did not know if the records 

existed, that the records would have nothing to do 

with the alleged victim and that the records were 

from sixteen (16) years ago.

Thus, based upon the pre-trial record, the errors raised 

by [Appellant] . . . have no merit. It is not the 

responsibility of the [t]rial [c]ourt to conduct discovery for 

[Appellant] or permit a fishing expedition for records that 

are remote and protected from disclosure.

Trial Ct. Op. at 19-20 (emphasis added and citations omitted). We agree no 

relief is due. 

In the discovery motion, Appellant requested the court to order 

WCC&YS to produce the following documents:

─Any and all information contained in the investigatory 

files of the [WCC&YS] regarding Patricia “Patsy” Paci;

─any material as to whether any cases should be marked 

as founded, indicated or unfounded in the possession or 

under the control of the [WCC&YS] regarding Patricia 

“Patsy” Paci;

─any witness confession or inculpatory statement in the 

possession of the [WCC&YS] regarding Patricia “Patsy” 

Paci;

─the transcripts of recordings of any interview or 

statement of Patricia “Patsy” Paci;

─the videotapes of any interviews or statements of Patricia 

“Patsy” Paci;
J. A03039/15

- 25 -

─all written and recorded statements and substantially 

verbatim oral statements of Patricia “Patsy” Paci in the 

possession of [WCC&YS].

[Co-]Defendants’ Joint Motion for Discovery of Certain Records and Materials 

in the Possession of the Wyoming County Children and Youth Services, 

10/16/12 at 4-5. 

Appellant contends he needed the records in order to impeach the 

credibility of Patricia “Patsy” Paci. At trial, Appellant cross-examined Paci 

and stated to the court “I’m entitled to use this witness [Paci] to impeach 

[the child’s testimony] to see if he was telling the truth.” N.T., 12/12/12, at 

283. The court responded “Okay.” Id. We discern no abuse of discretion. 

See Boich, 982 A.2d at 109.

In the argument section of the brief, as issue IV, “Other Errors of Law 

that Alone or Together Acted to Deny [Appellant] of Her [sic] Right to a Fair 

Trial,” Appellant baldly raises several issues.21 Appellant’s Brief at 31-32. 

Appellant has not provided any discussion of these claims with citation to 

relevant authority. Therefore, we find these issues waived. See Johnson, 

985 A.2d at 924.

Judgment of sentence affirmed.

 

21 The claims on page thirty-one of the brief were raised as averments 

nineteen and twenty in the Rule 1925(b) statement. The claims on page 

thirty-two of the brief were raised as averments twenty one, twenty-two, 

and twenty-four to twenty-six. See Appellant’s Concise Statement of Errors 

Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), 12/24/13 at 5, 6.
J. A03039/15

- 26 -

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/9/2015
.... .,.., 

_____ ..... , . 

Coples: 

Alexis Falvello, Esquire (No. 1431 of 2011) 

Jenny Roberts, Esquire (No. 2500 of 2011) 

Assistant District Attorneys 

Andrew J. Katsock,111, Esquire 

Private Counsel 

transmit the entire record in this case to the Superior Court of Pennsylvania, 'and shall 

serve a copy of this Order and Opinion on all counsel of record. 

. . 

captioned, cases, Jt is hereby DIRECTED that the. attached Opinion Is entered pursuant 

to Pa.R.A.P. 1925(a) in response to the Defendant's Statement of Matters Complained 

of on Appeal. 

The Clerk of Courts of Luzerne County Is hereby ORDERED and DIRECTED to 

AND NOW, this 2nd day of June, 2014, upon review of the record In the aboveORDER 

........................................................... , . 

Defendant 

ROBERT CARAVELLA 

- IEAL TH OF PENNSYLVANIA IN THE ·coURT OF COMMON PLEAS 

OF LUZERNE COUNTY 

CRIMINAL DIVISION 

NO. 1431, 2500 OF 2011 

v. 

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·.··.·.·_::1, ., 

Before the Court Is the Appeal of the Defendant1 Robert Caravella, clalmlng the 

Trial Court committed twenty-two (22) errors in case No. 143·1 of 2011 and twentyseven (27) errors in case No, 2500 of 2011. By Per Curiam Order dated December 13, 

2013 the Superior Court consolidated the Appeals as the cases Involved the same 

Appellant and the same Issues. 

. ~ (""') 

The Defendant at the time of the first trlal on case 1431 of 201 ~had a,ec°i!W 

c:a c..:... :::e· 

case pending that was filed to 2500 of 2011. ~~ ~ :· 

;.t: Si: N "'11 

Procedural History Case No. 1431 of 2011 : ... ' . .. ·; ~ "F -e ~·: 

•• • v , '·Oc:, ,:,: C 

Followlng a trial by Jury, the Defendant was found guilty 'of thirtee.n @o~s ~ 

. ·~·~ 

various crimes against his minor two nieces, M... and -Sllil' t-119. The 

Defendant was charged as follows: Counts 1, 2 and 3, Involuntary De_vlate Sexual 

Intercourse with a Child, 18 Pa. C.S.A. § 3123(b), felonies of the ffrst degree; Counts 4, 

5, and 6, Aggravated Indecent Assault of a Child, 18 Pa. C.S.A. § 3125(b), felonies of 

the first degree; Counts 7 and 8, Corruption of Minors, 18 Pa. C.S.A."§. 6301 (art, 

misdemeanors of the first degree; Counts 9 and 10, Endangering Welfare of Chlldren, 

18 Pa. C.S.A. § 4304(a)1, felonies of the third degree; and Counts 11, 12 and 13, 

OPINION 

....... , . 

Defendant 

ROBERT CARAVELLA NO. 14311 2500 OF 2011 

v. CRIMINAL DIVISION 

IN THE COURT OF COMMON PLEAS 

OF LUZERNE COUNTY 

COMMONWEALTH OF PENNSYLVANIA 

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2 

twenty four (24) to forty eight (48) years as follows: 

Count One - Involuntary Devlant Sexual Intercourse with a child Less then 13 

years of age (F1) M.H. - · 60 months to 120 months mandatory mlnlmum: 

Count Two - Involuntary Deviant Sexual Intercourse with a child less than 13 

years of age (F1) S.H. - 

60 months to 120 months mandatory minimum consecutive to count 1 

Count Three -Involuntary Deviant Sexual Intercourse with a child less than 13 

years of age (F1) S.H. - · 

60 to 120 months mandatory minimum consecutive to count 2 

Count Four· Aggravated Indecent Assault of a Child (F1 )·M.H. - 

24 to 48 months consecutive to count 3 

Count Five • Aggravated Indecent Assault of a Child (F1) S.H. - 

24 to 48 months ccnseeutlve to count 4 

Count Six - Aggravated Indecent Assault of a Child (F1) S.H. - 

24 to 48 months consecutive to count 5 

Count Nine - Endangering the Welfare of Children; Course of Conduct (F3) 

12 to 24 months consecutive to count 6 

Count Ten - Endangering the Welfare of Children; Course of Conduct {F3) 

12 to 24 months concurrent to count 9 

Count Seven - Corruption of Minors (M1) 

9 to 18 months concurrent to count 10 

Count Eight - Corruption of Minors (M 1) 

9 to 18 months concurrent to count 11 

Count Eleven - Unla'-t\lful Contact with a Minor (F1) 

,, .• a.., 12 to 24 months consecutive to count 8 

Count Twelve -Unlawtul Contact with a Minor (F1) 

12 to 24 months consecutive to count 11 

Count Thirteen - Unlawful Contact with a Minor 

12 to 24 months concurrent to count 12 

Attorney. 

On October 28t 20131 the Defendant was sentenced to an aggregate sentence of 

At the time of verdict, the Defendant made a motlon to waive the ninety day 

sentencing mandate on case 1431 of 2011 until completion of his second trial on Case 

2500 of 2011 that was granted by the Court noting no objection from the District 

Contact/Communication with a Minor. 18 · Pa. C.S.A. § 631 S(a). felonies of the first · 

degree. 

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3 

facility. 

•·· _. ~ :.: . 

thirty-five and one-half (35 ~) years to seventy-one (71) years in a state correctional 

No. 1431 of 2011. Therefore, an aggregate sentence on both cases was Imposed of 

The sentence was ordered to run consecutive to the sentence Imposed in case 

. On October 28, 2013 this Court sentenced the Defenda_nt in coniunctlon with 

case 1431 of 2011. He was sentenced on case 2500 of 2011 as to an aggregate 

sentence of eleven and one-half (11 ~) years to twenty-three {23) years as follows: 

Count One - Conspiracy to commit Rape of a Child {F1) 

84 months to 168 months; 

Count Two - · Corruption of Minors {M1) 

9 months to 18 months consecutive to Count 3; 

Count Three -Disseminating Sexual Materials to a Minor (F3) 

9 months to 18 months consecutive to Count 6; 

Count Four - Endangering the Welfare of Children (F3) 

12 months to 24 months consecutive to Count 1; 

Count Five - ·· Endangering the Welfare of Children (F3) : '· ""- 

12 months to 24 months consecutive to Count 4; 

Count Six • Endangering the Welfare of Children (F3) 

12 months to 24 months consecutive to Count 5; 

count. 

of the third degree, with the Defendant's minor son the victim in each enumerated 

Procedural History Case No. 2500 of 2011: 

Following a trial by jury, the Defendant was found guilty of Count 1, Criminal 

Conspiracy (Rape of Child), 18 Pa. C.S.A. § 903, a felony of the first degree; Count 2, 

Corruption of Minors, 18 Pa. C~S.A. § 6301 (A) 1, a misdemeanor of the first degree; and 

Counts 3, 4 and 5, Endangering Welfare of Children, 18 Pa. C.S.A. § 4304(A) 1, felonies 

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4 

Appeals:· 

On November 27, 2013 the Defendant filed a Notice of Appeal wlth the Luzerne 

County Clerk of Courts in both Case No. 1431 of 2011 and Case No. 2500 of 2011. 

On December 4, 2013 and December 17, 2013, respectively, this Court issued 

an Order In each case directing the Defendant to file of record a Concise Statement of 

Errors Complained of on Appeal pursuant to Pa. R.A.P. 1925(b) and serve a copy of 

same upon the District Attorney and this Court pursuant to Pa. R.A.P. 1925(b)(1). 

On December 24, 2013 the Defendant filed a Concise Statement of Errors 

Complafned of on Appea! alleglng twenty-two (22) errors of the Trial Court In case No. 

1431 of 2011 and twenty-seven (27) errors of the Trial Court in case No. 2500 of 2011. 

The Commonwealth requested ah extension of time atter receipt of all ordered 

transcripts to file a Response to the Concise Statement of Matters Complained of on 

Appeal. 

The Commonwealth filed their Responses to Defendant's Concise Statements on 

February 24, 2014 and February 26, 2014, respectively. 

Summary of Factual History of Case No. 1431 of 2011: 

The Defendant's deviant behavior was first documented between 2002 and 2005 

wherein the Defendant's nieces, S4IIIII and Mllfl, alleged that the Defendant 

placed his mouth and tongue on their private parts (vagina) and asked them to place 

their mouths on his private parts (penis). He showed S ... magazines of naked 

· · ·· grown-ups ahd showed M<91t child pornography·before he would sexually assault the 

children. Between 2002 and 2004, the girls1 family lived In a double-block home in 

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.·-;·-:-_._·:· ·.·.:·· 

5 

2 The child was the victim In the subsequent crlmlnal trfat wherein the Defendant and carol Hann were convicted. 

1 Carol Hann was the co-defendant of Defendant herein she was convicted by a Jury on December 12, 2007 of Rape 

of a Chlld, Incest and other charges, 

hands and put his mouth and tongue on her private parts, "On. the front, inside and 

outside." (04/23/12 N.T. p. 171-73). She also described the Defendant's action when 

masturbating (putting his hand up and down on his pents), moaning and white discharge 

coming out of his penis onto toilet paper that he was holding. (04/23/12 N.T. p. 174-75) S- testified that she was also sexually assaulted in her uncle's bedroom in 

Plymouth. She again described the layout of the rooms and stated that her uncle 

the veins. And at the end it looked different, and there was a hole at the end of lt", 

(4/23/12 N.T. p. 170). S- attested tnather uncle would hold her legs open with his 

Defendant's penis as follows: "lt was the same color as his normal skin. You could see 

Plymouth, Pennsylvania. 

S- eleven (11) years old and In the sixth grade at the time of trial, testified 

that she first recollected the Defendant Improperly touching her when she was three (3) 

or four (4) years old. (04/23/12 N.T. p. 164-65) SP a described the residence in 

detail including the layout of the rooms. (04/23/12 N.T. p. 166-67). She testified that her 

uncle would take her to his bedroom in Nanticoke and ask her to take off her pants. 

She remembered that the Defendant would open hls pants with the zipper down and tell 

her to put her mouth on his private parts. (04/23/12 N.T. p, 168-69}. She described the 

In 2004 their aunt. uncle and cousin vacated the residence and moved to 

,· 

herein) and their son Colton.2 (04/23/12, N.T. p. 164-65; 204). 

Nanticoke with· their mothers twin· sister Carol Hann 11 her husband (the Defendant 

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,, . : ) : 

'. ~ .· ' -, ', ... ' . , .· ' ~ 

6 

forth between the shared home and that the Defendant was the sole supervisor of his 

daughters at times. 

'disclosed. (04/23/12 N.T. p. 234-36). He testified that his daughters would go back and 

N. T. p. 218). 

S A § and Mc Q Us father testified that In 2009 his daughter ~ told him 

that Uncle Bobby had touched her. He indicated that he asked S 

she told him what happened to her. He went to the police one week after M•1•• 

recollected that he told her not to tell anyone and that she did not know It was wrong. 

Morgan stated that the sexual assaults occurred more than five (5) times. (04/23/12 

M seventeen ( 17) years old at the time of trial, testified that she was 

around six (6) years old when her uncle made would make her watch chlld pornography 

with him from his computer. She recollected thathewould make. herslt on his lap while 

he watched the child pornography and then he would take her upstairs to his room. 

(04/23/12 N.T. p. 210-211 ). She described the pornography as children and adults 

touching each other. Once upstairs, M .. testified that the Defendant would take her 

clothes off and touch her vagina with his tongue and fingers. He made her rub his penis 

with her hands and put his penis In her mouth. (04/23/12 N.T. p. 210-213). She 

eight (8) years old. (04/23/12 N.T. p. 178). 

things but she trusted her uncle at the time. She eventually told her sister when she was 

forget about it and was. embarrassed. s:•• stated that she did. not want to do these 

(4) years old and that she did not tell anyone that It happened because she wanted to 

, 

p, 176-77). ~ attested that the last time her uncle touched her was when she four 

touched her in the manner described approximately ten (10) times. in all. (04/23/12 N.T. 

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· . .:'. · '. ,.<·:: 

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7 

hereinafter referred to as "Child". The incestuous relationship began when the Child 

was·elght (8) years old and·continued until he was twelve (12) years of age. The-sexual 

relatfonship was not discovered until several months after the Child was removed from 

the couple's home due to the unsanitary and deplorable conditions at the child's 

wife, Carol Ann Hann, who was charged with having a sexual relationship with her son, 

On Case 2501 of 2011, the Defendant, Robert Caravella, was tried along with his 

occurred after:the completion of the jury trial wherein the Defendant was found guilty of 

multiple accounts of sexual assault wherein his two minor nieces where the victims. 

were mad at his wife. (04/23/12 N.T. p. 326;.32). 

Summary of Factual· History of Case No. 2500 of 2011: 

On December 7, 2012, the Jury rendered a verdict regarding the Defendant, 

Robert Caravella on · a second criminal action Involving his minor son. This trial 

adult watching the girls and that It is possible that he had access and opportunity to 

molest the girls. He thought the girls came forward with these allegations because they 

his house to play with his son. He was never alone with the girls and he Is Innocent of 

all crimes charqed .. On cross-examination, he agreed that sometimes. he was the only 

The Defendant testified In his defense. He testified that the girls often came to 

did not believe them. (04/23/12 N.T. p. 2p5-58). 

19, 2010, Detective Shultz and others interviewed the children at the Child Advocacy 

Center In Wilkes-Barre. · The girls cried and were afraid that no one would bellevs them. 

The father was upset and the mother would not cooperate or get Involved because she 

' the allegations after he received a call from their father on August 2, 2010. ·on August 

· Oetectve Captain Wiiiiam Shultz of the Nanticoke police department investigated · 

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residence. At the time of his removal from the residence, the house was in a 

deplorable condition in that It overwhelmingly smelled of human urine and .the walls, 

carpet and the sink were vlslbly filthy. There was garbage strewn throughout the 

residence, rotten food on the kitchen counters and small flles and random insects flying 

throughout the kitchen. The house was also infested with cats that Defendant would 

catch and raise. The floors were covered in dirt and filth and were sticky to the touch. 

(12/12/12 N.T. p. 84-87; 103-107). The Child was covered in dirt and smelled of body 

odor and urine. The officer required the Chlld to take an Immediate shower at the local 

ambulance company due to .the overwhelming smell. The Child was taken into 

protective custody by Luzerne County Chlldren & Youth and at the request of Ms. Hann, 

the Chlld went to live with her female cousin, Patricia Paci. (12/12/12 N.T. p. 89-90; 

107-08). 

The Child attested that when he resided with his parents he rarely bathed or 

showered and recalled showering once a month. He rarely brushed his teeth, did not cut 

his own food, and did not get dressed or 'Change his clothes for significant periods of 

time. The Child testified that he ate with his hands. He noted that he, his father and his 

autistic uncle would urinate on the floor In the house. He also recollected having flea 

bites, especlally during the summer months. (12/12/12 N.T. p. 173-76) 

Upon residing with Ms. Paci, the Child ate with his hands, did not know how to 

use a knife, shower, brush his teeth, button, zip or tie. The chlld's eyes were sensitive 

· ·tc:f light and he needed glasses. · Although his parems'ctalmsd he was cyber schooled 

through Commonwealth Connections Academy, the Child did not know how to use the 

computer for school work but stated that he knew how to use the computer to watch 

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. . }' : . .... •. 

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9 

,,,,::.··,.·. because his wife.said It never-happened. 

The Defendant testified that he never showed pornography to his son. He 

testified that it was Impossible for his wife to have sexual relations with their .son 

they died. {12/12/12 N.T. p.185-87). 

acts and coached him as to how to better perform. (12/12/12 N.T. p. 181-82). He 

further testified that there were times when his mother forced him to have sex and out of 

anger he would kill one of tier cats. In detail he explalned how he boxed the cats until 

the floor and on one occasion killed Ms. Paol's cat. (12/12/12 N.T. p. 249-54; 264). 

In January of 2011, when Ms. Paci turned on the shower for the Child, he pulled 

down his pants and underwear and asked Ms. Paci If she would be his mother. After 

Ms. Paci scolded the Child for his actions, she explained that mothers do not have 

sexual relations with their children. The following day, Ms. Paci enrolled the Child In 

therapy at the Children's SeNlce Center. (12/12/12 N.T. p. 269-70). 

At trial, the Child testified that he. had a sexualrelatlonshlp with his mother since 

he was eight (8) years old. (12/12/12 N.T. p. 181). His father, the Defendant, Robert 

Caravella, began showing him pornography at the age of seven (7) and on his eighth 

birthday his father called him upstairs to have sex with his mother. (12/12/12 N.T. p. 

180-81). He attested that he had sex with his mother approximately four (4) times a 

week usually while his father observed. He noted that his father watched the sexual 

' . 

stared at women's chests. When he would get mad at Ms. Paci, he would urinate on 

pornography. The Child masturbated In front of people on the outside of his clothes and 

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regarding the failure to make a prompt complalnt. (2/17/12 N.T. pp. 350-351 J 372, 448- 

448). Therefore, the errors Defendant raises In paragraphs 8-11 must fall. 

examination of the chlld victims was, therefore, properly denied. 

Defendant's Statement of Errors set forth In paragraphs 8-11; allege that this 

Court erred In failing to Instruct the jury regarding lack of prompt complalnt. Defendant's 

aUegations of error, however, are without merit. . This .. ,Qourt did give the Jury instruction 

was properly denied. As noted by the Court, other than his request for the examination, 

the Defendant failed to provide a compl?IJtng reason or a substantial need for the 

psychiatric examination. Com. v. Baich, 2009 Pa. Super. 195, 982 A.2d 102, 110 (Pa. 

Super. Ct. 2009). (2/17/12 N.T. pp. 7·12). · Defendant's request for a psychiatric 

Defendant's request for a psychiatric examination of the child victims, however, 

The Defendant argues that this Court erred when it denied his request for 

psychological and psychiatric examinations of the child victims. The Defendant alleges 

In his Statement of Errors in paragraphs 1 and 2 that: 

The Court erred when It denied the Defendant's Motion that the Court 

order psychological and psychiatric examinations ofthe-al/eged chlld 

victims to assess their competency to testify In this case and to 

advise the Court as to whether the children were prone to lie or 

assess their rellablllty as factual witnesses to testify In this case. 

this Court or not preserved with an objection and are therefore waived. 

3-7, 12, 16, and 21 which were either not raised by defense counsel and ruled upon by 

The Defendant raises twenty-two (22) Issues for Appeal. None of the issues 

raised, however, have any merit. Every one of the twenty-two (22) Issues are 

addressed below except for those boilerplate allegatlons of error set forth in paragraphs 

Issues on Appeal in Case No. 1431 of 2011: 

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···.'!. 

11 

conviction of a sexually violent offense, but prior to sentencing, the court shall order the 

: . . 

same error in paragraph 14 as he did in paragraph 22 in Case No. 2500 of 2011 below, 

the reasoning set forth In Case No. 2500 is Incorporated herein by reference as though 

set forth In Its entirety herein In response to the alleged error in paragraph 14. 

With respect to the alleged error in paragraph 22, alleging that this court erred In 

the process used to find the"Defendant a sexually violent predator, this Court followed 

Pennsylvania law. 42 Pa. C.S.§ 9799.10, et seq. Pennsylvania law requires that after a 

In paragraphs 14 and 22, the Defendant clalms that this Court erred when It 

classified the Defendant as a sexually violent predator and also claims this Court erred 

in the process used to find the Defendant a sexually violent predator. Since the 

Defendant was sentenced In both cases at the same time and the Defendant raised the 

fail. 

evidence. Com. v. Woodruff, 447 Pa. Super. 222, 668 A.2d 1158 (1995). There Is no 

question here that· when ·viewing the evidence In a light most favorable to' the 

Commonwealth that there was sufficient evidence to establish Defendant's guilt on all 

charges beyond a reasonable doubt. Defendant's claims of alleged error therefore must 

direct and circumstantial can be considered equally when assessing sufficiency of 

whether, viewing all of the evidence at trial, as well as all of the reasonable lnfer~nces 

to be drawn therefrom, in a light most favorable to Commonwealth, the jury could have 

found that each element of offense was proven beyond a reasonable doubt, and both 

~rrors · raised by Defendant in paragraphs 13, 17-19 must also fall. Defendant's · 

arguments of error go to the sufficiency of the evidence. 

In reviewing sufficiency of evidence claims, the Superior Court must determine 

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12 

agreed that his proposed questions In one through flve were already covered in the 

During thls Court's review of Defendant's proposed voir dire, defense counsel 

... ,.:,..,· ... ~·- ta:': 

omitted). Only a gross abuse of discretion w!II result In the trial court being overruled. 

Commonwealth v. Lark, 504 A.2d 1291, 350 Pa. Super. 558, 565 (1986). (citation 

. . 

refused to ask several of the volr dire questions proposed by the Defendant. The scope 

of volr dire examination of the Jury is for the sound discretion of the trial court. 

Defendant a sexually violent predator. Based upon the foregoing, Defendant's 

allegatlons of error must be denled. 

The Defendant claims In paragraph· 15 that this court erred when it denied or 

numerous request for continuances, this Court dld not err in the process used to find the 

Assessment Board. After a lengthy hef;lrlng, the court found the Defendant to be a 

Sexually Violent Predator. 

Since this Court applied the law as written, and accommodated the Defendant's 

At the time of sentencing, the Defendant did not present the long awaited expert report 

and testified on his own behalf as to the recommendatlons of the Sexual Offender 

he could not locate a defense expert and then to waft for completion of the evaluation. 

Sexual Offender recommendation. The Defendant filed several continuations In that the 

The sentencing of the Defendant in this matter was continued upon the 

Defendant's request several times so the Defendant could attain his own expert on the 

Pa.·c.s.§ 9799.24. 

' the individual meets the legal criteria to be designated a sexually violent predator. 42 

. . . 

Individual to be assessed by the Sexual Offenders Assessment Board to determine if 

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. . : ..... 

13 

dismissing a juror who may not, have been fair, Impartial and unprejudiced based-upon 

her llfe experiences. 

Juror number 7 demonstrates the effectiveness of this Court's voir dire process In 

There is no question that this Court's volr dire process was designed to secure a 

competent) fair, impartial and unprejudiced jury for the Defendant. For example, the 

questions asked by this Court during volr dire and at sidebar of one of the jurors 

revealed that Juror number 7 suffered from child abuse, her daughter was abused as a 

child and her granddaughter was raped when she was a senior In high school. 

(04/23/12 N.T. pp. 65-66). Juror number 7 was dismissed for cause. The dismissal of 

Court explored the possible bias of some of the prospective Jurors by questioning them 

Individually at sidebar. 

this Court did ask the prospective jurors generally whether they, or a friend or family 

member had been a victim of a crime, and whether they questioned their ability to be 

fair because the charges concerned sexual conduct with a minor. Additionally, this 

overly specific questions proposed by Defendant was not a gross abuse of discretion as 

In addition to this Court providing general Instructions, this Court did adopt 

Defendant's voir dire questions, 1, in part; .16 and 21. This Court's refusal to permit the 

(04/23/12 N.T. pp. 7·10). 

, 

Court denying his volr dire questions 6-91 111 13~ 15 arid 17-20 claim Ing that the Court's 

ruling prevents him from being able to Intelligently exercise the Defendant's right to 

challenge for cause and also to intelligently use his allotment for peremptory challenges. 

. general Instruction. (04/23/12 N.T. p. 6). Defense· counsel otherwise objected to this 

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14 

abllity to present an alibi defense because alibi has never been an Issue. The alibi 

defense was never asserted by Defendant. The Defendant has simply argued that the 

offenses dld not happen. The testimony that was established during trial did not make It 

lmposslble for him to be the perpetrator. Where a defense rests on timing rather than 

location, It Is not considered an alibi. Commonwealth v. Siieo, 32 A.3d 753, 767 (Pa. 

Super.2011 ). Thus, Defendant's alleged error in paragraph 20 must fail. 

Addltlonally, the lack of specificity of dates has not affected the Defendant's 

(Pa.Super, 2010). 

occurred over a period of months or years. Commonwealth v. Brooks, 7 A.3d 852, 858 

of conduct Involving a child especially when the course of conduct ls alleged to have 

was committed on or about any date fixed within the statute of llmltatlonsl.]" Moreover, 

the Commonwealth Is afforded greater latitude where the offense is a continuous course 

. . . . 

If the. offense Is a· continuing one, N Rule 560(8)(3) of the Pennsylvania Rules of Criminal 

Procedure . provides that a criminal Information 11slgned by the attorney for the 

Commonwealth shall be valid and sufficient In law if It contains ... an allegation that It 

specific dates are not required. When "the precise date of [an offense] is not known or 

Next, In paragraph . 20 the Defendant argues that the Court erred in not 

dismissing the criminal charges · against the Defendant, when the Commonwealth's 

testimony was almost devoid of any specific dates, from which the defendant might be 

able to raise an allbl defense. Defendant argues that the testimony that the crimes. took 

place "between January 1, 2002 and January 11 2005'\ but without more specificity, 

made a possible defense of alibi impossible. 

When the Commonwealth alleges a course of conduct as It did In this case, 

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2. The Court erred when It denied the Defendant's Motion that the Court 

order psychological and psychiatric examinations of the Chlld to 

assess his competency to testify. 

3. The Court erred when It denied the Defendant's Motion that the Court 

order psychological and psychiatric examinations of the Child to 

·assess whether thechlld was prone to lie or· his rellablllty as a factual ·· .: ··-·· witness to testify In the case. 

4. The Court erred In finding the Child competent to testify, even after 

the Commonwealth provided copies of records and reports of 

Interviews wherein the Child contradicted the accusations previously 

made concerning the Instant charges against the Defendant. 

Pa.Super. 456, 459, 503 A.2d 936, 937 (1986). 

Next, the Defendant argues that the Court erred when It found the Child 

competent to testify. 

preserved at each and every stage of review; otherwise, they are deemed waived and 

cannot subsequently be raised on appeal. Commonwealth v. Burchard, 349 

Consequently, the Defendant waived his right to appeal the Commonwealth's 

introduction of evidence that the Chlld killed his mother's cats. . Issues must be 

Defendant's son kflled cats while living with his parents as a result of the alleged abuse. 

The Defendant argues that he was denied a fair trial when the Court permitted 

the Commonwealth ·10 introduce evidence of the Child kllllng cats. The Defendant, · 

however, never objected to the Commonwealth's Introduction of evidence that the. 

1. The Defendant argues that he was denied a fair trial when the Court 

permitted the Commonwealth to Introduce evidence that the 

Defendant's son killed cats while llvlng with his parents as a result of 

the alleged abuse. 

(27) Issues ls addressed below. 

2011. None of the issues raised, however, have any merit. Each of the twenty-seven 

, 

The Defendant raises twenty-seven (27) issues for Appeal In Case No. 2500 of 

Issues on Appeai In Case. No. 2500. of 2011: 

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unequivocally demonstrate a compelling need for a psychological or psychiatric 

examination. Therefore, Defendant's request was properly denied . 

.. , i'n alleged error 6, Defendant argues that the Court'erred when It failed to dismiss 

the charges against the Defendant based upon promises made to the Chlld that ha 

would be able to testify In a private room. 

statements. Contradictory statements are subject to cross examination and do not 

psychiatric examination of the Child was that the Child made some contradictory 

The party alleging a witness Is incompetent to testify must prove that contention 

by clear and convlnclnc evidence. Com. v. Bolch, 2009 Pa. Super. 195, 982 A.2d 102, 

110 (Pa. Super. Ct. 2009). A court, therefore, ought not. to order an Involuntary 

psychiatric examination of a witness unless the record unequivocally demonstrates a 

compelling need for the examination. Id. The basis of the Defendant's request for a 

testify. 

was 14 years old at the time of trial. The Child was, therefore, presumed competent to 

age. Rosche v. McCoy, 397 Pa. 615,· 621, 156.A.2d 307, 310 (1959). The Chlld herein 

prevailing rule is that competency Is presumed where the child Is more than 14 years of 

601(a). Com. v. Delbridge, 578 Pa. 641, 662, 855 A.2d 27, 39 {2003). Presently, the 

Pennsylvania Is that every person Is presumed competent to be a witness. Pa.R.E. 

The Court did not err when It denied Defendant's request for psychologlcal and 

psychiatric examinations and found the Child competent to testify. The general rule in 

5. The Court erred In f lnc:Ong the Child competent to testify, even after 

the Commonwealth provided copies of records and reports of 

Interviews wherein It was disclosed that the Child was promised that 

he "would be able to testify In a private room alone" if he agreed to 

testify against his parents on the current charges. 

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was improperly communicating with the Child concerning the case and that she had to 

Defendant's argument has no merit. There was no evidence that Patricia Paci 

7. The Court erred In permitting the Child and Patricia Paci to testify 

after It was disclosed that the Child had complained that Patricia Paci, 

who was charged with the Child's custody and care, was Improperly 

cernmunlcatlnq with him concerning the case and had to be warned 

about her'lnteHerenc1f ln the case. ·· 

The record is clear that the child was never promised that he would be able to. 

testify in a private room alone if he agreed to testify against his parents on the current 

charges. Detective Parker of the Luzerne County District Attorney's Office spoke to the 

Child about testifying In court. Although the Child may have thought that he would be 

able to testify in a private room alone, Detective Parker told the Child that was not what 

would happen as he would have to most likely testify In front of his parents, however, he 

would be able to look the other way and not look atthem. (07/13/12 N.T. p. 31). 

(emphasis added). Since the Involvement of Detective Parker and Attorney Roberts in 

this case, the Child knew that he would have to testify in open court. The Child testified 

at the preliminary hearing in front of his parents so he did know that he was going to 

have to testify at trial In front of his parents. (07/13/12 N.T. p. 33). Therefore, the 

Defendant's argument that the Court should have dismissed the charges for promises 

made to the Child was properly denied as no promises were made- to the Child 

regarding his ability to testify In a private room. 

Next, the Defendant argues the Court erred In permltting the Chlld and Patricia 

Paci to testify. 

6. The Court erred In falling to dismiss· the charges against the 

Defendant after learning that the Chlld was promised that he "would 

be able to testify In a private room alone" If he agreed to testify 

against his parents on the current charges. 

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12. The Court erred In denying the Oefendant•s Motion that the Court 

Order the release and production of any Internal Investigations, 

records, cltlzen's complaints and/or personnel files of the agents of 

the Luzerne County Children & Youth Services and the Luzerne 

County Child Advocacy Center, as such records were relative to the 

credlblllty and truthfulness of representatives and employees of the 

agency who were or might have been called as witnesses In this 

matter. 

10. The Court erred In denying the Defendant's Motion for discovery of 

records and materials In the possession of the Wyoming County 

Children and Youth Services Involving Patricia Paci because Patricia 

Pael's credlblllty was In Issue. 

11, The Court violated the Defendant•s due process rights and right of 

confrontation provisions of the Pennsylvania and United States 

Constitutions when It denied the Defendant the right to Impeach the 

credlblllty of Patrf cla Paci with the records of the Wyoming County 

Children and Youth Services which may have been reflective of the 

motive or bias of Patricia Paci. 

8. The Court erred ln denying the Defendant's Motion for Discovery of 

certain records and materials In the possession of the Luzerne County 

· · Child Advocacy Center Involving the Child. 

9. The Court violated the Defendant1s due process rights and right of 

confrontation provisions of the Pennsylvania and United States 

Con.stltutlons when It denied the Defendant the right to Impeach the 

credlblllty of the Child, Patricia Paci and other Commonwealth 

witnesses with the records and materials in the possession of the 

Luzerne.County Child Advocacy Center Involving the Chlld which may 

have been ref Jectlve of the motive or bias of the Chlld and Patricia 

Paci. 

requests for discovery. 

be warned about her interference in the case. To the contrary, Ms. Paci inquired of 

Assistant District Attorney Roberts if they should be discussing the case with the Child. 

Attorney Roberts told them that she did not want them talking to the Child about the 

case and that the only people that he should be talking to about the case are his 

counselors. (07/13/2012 N .T. p.30). 

Defendant also argues that the Court erred when it denied the Defendant's 

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With respect to Defendant's Motion to obtain records from Wyoming County 

Children and Youth Services pertaining to the Chlld's caretaker, the Motion was 

properly denied. Oefense -counsel·-acknowledged that he did not know If the records, 

existed, that the records would have nothing to do with the alleged victim and that the 

records were from sixteen (16) years ago. (07/13/2012 N.T. pp. 4-7). 

those agencies had to be subpoenaed. (07/13/2012 N.T. pp.s, 22). 

.Children and Youth Services records. (07/13/2012 N.T. pp. 3-10). 

With respect to the Defendant's Motion for Discovery of records and/or 

complaints against Luzerne County Chlldren and Youth Services workers and his 

request for records from the Luzerne County Child Advocacy Center, the trial court 

properly denied Defendant's Motions and informed the Defendant that the records from 

were in the possesslon of the Commonwealth were provided by the Commonwealth to 

counsel for Defendant. To further the Defendant's request for discovery, the trial court 

did provide defense counsel with two Orders for additional discovery of Luzerne County 

The pre-trial record i$ clear that all of the Luzerne County Children and Youth 

Services CPS flle records as well as ,he DVD's from the Child Advocacy Center that 

14. The Court's denial of the Defendant's discovery· requests of the 

Luzerne County Children & Youth Services and the Luzerne County 

Child Advocacy Center records and the Court's refusal to conduct an 

In camera Inspection violated the Defendant's rights under the 5t11, 

101\ 11 lh, 15th and 141h Amendments to the United States Constitution 

and the Pennsylvania Constitution - - his right to due process, to a fair 

trial, to the effective assistance of counsel, to prepare a defense, to 

confront and cross-examine witnesses and Impeach their credibility. 

13. The Court erred In not conducting an in camera examination of the 

Luzerne County Chll_dren & · Youth Services and the Luzerne County 

Child Advocacy Center prosecution files and reports to determine 

their relevance within the meaning of the law and what may have been 

discoverable. 

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. -/,'· ... 

. ~·' ..... 

.. • 

·:: .. :-· _.- 

·· .. ·. 

:,. .• · .. ·,•: 

: . '... . . .'_ .~ .·.. · .. ·. ·: . . . ~. 

20 

as given must be precluded on appeal. 

381, 638 A.2d 985, 990 (1994). Therefore, Defendant's challenge to the jury Instruction 

.••• •• :.•'.# ... 

delay in making a prompt complaint. (12/12/12 N.T. pp. 423-432, 490-491). The 

Defendant never objected to the proposed jury Instruction nor proposed that the jury be 

Instructed in any other way. A defendant must object to a Jury charge at trial, lest his 

challenge to the charge be precluded on appeal. Com. v. Corley, 432 Pa. Super. 371, 

The Defendant's clalms of error In paragraphs 15 through 18 must also fail. As 

per defense counsel's request, the Court read the instruction to the Jury on the _Child's 

18. The Court erred In not Instructing the Jury that the Chlld1s motive In 

making the complaints against the Defendant following his 

considerable period of silence was relevant as affecting the Child's 

veracity. 

15. The Court erred In not Instructing the Jury that the testimony of the 

Child was rendered· suspect because of lack of prompt complaint and 

bias against the Defendant. 

16. The Court erred In not Instructing the jury that the lack of prompt 

complaint by the Chlld Is a factor that the Jury inust consider as to the 

sincerity of the Child's complaint. 

17. The Court erred In not Instructing the Jury that the lack of prompt 

complaint by the Child may Justifiably produce doubt as to whether 

the offense Indeed occurred, or whether It was a recent fabrication of 

the Child. 

remote and protected from disclosure. 

The Defendant also argues that the Court erred when It failed to Instruct the jury 

regarding the Child's lack of prompt complaint. Specifically, the Defendant argues: 

Thus, based , upon the pre-trial record, the errors raised by Defendant in 

paragraphs 8 through 14 have no merit. It Is not the responsibility of the Trial Court to 

conduct discovery for the Defendant or permit a fishing expedition for records that are 

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21 

To help determine if a Defendant should be classified as a sexually violent 

predator, the trial Judge orders an assessment to be done by the Sexual OHender 

as a sexually violent predator. 

22. The Court erred In finding that the Defendant be classltled as a,- .. ,,,,. 

sexually violent predator. 

Next, the Defendant argues that the Court erred when It classified the Defendant 

must fall. 

charges beyond a reasonable doubt. Therefore, Defendant's claims of alleged error 

Commonwealth that th~re was sufticient evidence to establish Defendant's· guilt on all 

question here that when viewing the evidence In a light most favorable to the 

I. • I· 

evidence. Com. v. Woodruff, 447 Pa. Super. 222, 668 A.2d 1158 (1995). There Is no 

whether, viewing all of the evidence at trial, as well as all of the reasonable Inferences 

to be drawn therefrom, In a light most favorable to Commonwealth, the jury could have 

found that each element of offense was proven beyond a reasonable doubt, and both 

direct and circumstantial can be considered equally when assessing sufficiency of 

20. The Court erred In not rullng that the evldence was Insufficient as a 

matter of law to establish the Defendant's guilt beyond a reasonable 

doubt on the charges. 

21. The Court erred In not finding that the Defendant was Innocent as a 

matter of law as a result of the Childs In-court testimony that he lled 

numerous times reginalng his statements to prosecutors ,1nd child 

welfare authorities. 

·In reviewing sufficiency of evidence claims, the Superior Court must determine 

must also fail. Defendant's arguments go to the sufficiency of the evidence. 

19. The Court erred In not finding that the charges had been fabricated by 

the Chlld and Patricia.Paci and that the Defendant was Innocent as a 

matter of law. 

The Defendant1s additronal claims of error alleged In paragraphs· 19, 20 and 21 

. , . . 

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·.,,·:- 

-.,,. ···-.- 

22 

Investigation reports. (10/28/13 N.T. p.18). 

regarding ·Case No. 1431 of 2011; the police criminal complaint and affidavit of probable 

cause; Nanticoke police incident report, Child Line report; and Child Protective Service 

participate In the report, he declined to participate. In connection with the preparation of 

her report, Ms. Burst reviewed the Sexual Offender Assessment Board Investigator's 

report; the Luzerne County Court Order for the assessment; the criminal information 

. . 

Board dated July 5, 2012. Although the Defendant was offered the opportunity to 

Pennsylvania. (10/28/13 N.T. p. 6). However, when the Defendant was asked to 

further stipulate to the Sexual Offender Assessment Board's report dated July 5, 2012, 

the Defendant would not stipulate to the findings within the report and the Defendant 

requested a hearing. (10/28/13 N.T. p. ~1). 

At the hearing, the Commonwealth presented the expert testimony of Ms. Paula 

Burst. Ms. Burst prepared a report on behalf of the Sexual Offenders Assessment 

Defendant met the statutory threshold for designation as a sexually violent predator in_ 

• 

that the Defendant retained an expert of his own, Dr. Foley, · and that Dr. Foley 

concurred with · the Sexual Offender Assessment Board's determination that the 

At the Sexual Offender Assessment Board Hearing in this case, It was revealed 

Assessment. Board ("SOAB''). 42 Pa. C.S. §9799.24. At a hearing prlor to sentencing 

the Commonwealth must establish by clear and convincing evidence that the Defendant 

has been convicted of a statutorily specified offense and has been determined, through 

a statutorily designated process, to have a mental abnormality or personality disorder 

that makes the defendant likely to engage in predatory sexually violent offenses. 42 

Pa.C.S.A. § 9799.12, "Sexually violent predator." 

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23 

Ms. Burst testified that when assessing whether or not a Defendant Is a sexually . 

violent predator, she must take Into consideration two statutory criteria. (10/28/13 N.T. 

pp. 18-20). The statute requires her to address whether or not the Defendant 

possesses either a mental abnormality or personality disorder that makes it likely that 

they will engage In predatory sexual behavior. (10/28/13 N.T. pp. 18-20). 

Ms. Burst testlfled that the Defendant met the statutory criteria to be classified as 

a sexually vfolent predator. Ms. Burst testified that the Defendant met the full diagnostic 

criteria for the mental abnormality of pedophllia as the Defendant assaulted two minor 

victims, whose ages span between· one and nine In total which meets the full 

classlflcatlon for pedophilia. (10/28/13 N.T. p. 19). Ms. Burst testified that the essential 

features of pedophllla are over the course of at least six months recurrent Intense 

sexually arousing fantasy, sexual urges or behaviors involvlng sexual contacts with a 

prepubescent child under the age of thirteen (13). Secondly, Ms. Burst explained that 

the person has acted on these sexual urges or fantasies; and, thirdly, the person rs at 

least sixteen (16) years of age and at least five years older than the child. :.-Ms. Burst 

further testified that the Defendant also met the second prong of the assessment 

criteria, as the Defendant's offenses and behavior was predatory fn nature. ( 10/28/13 

N.T. p. 20). She testified that In her opinion he will reoffend in a sexual manner as he 

meet the diagnostic criteria for pedophilia, and pedophilia is considered an acquired or 

congenital condition that Is a life-long chronic condition. His diagnosis of pedophilia 

predisposes hlm towards commlttlnp-sexual offenses in the future, and his diagnosis if'···'··· 

pedophilia means that he has an Internal drive towards sexual offending. 

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· ... ;·.·: 

24 

25. The Court erred In denying the Defendant's Post-Trial Motions for a 

. "·"Judgment of acquittal or a new trial because the verdict was based on 

Insufficient evidence and/or was against the weight of the evidence. 

26. The evidence submitted at trlal by the Commonwealth was Insufficient 

as a matter of law to establish the Defendant's guilt beyond a 

reasonable doubt on the charges. 

evidence. 

The Defendant's arguments in 25, 26 and 27 also go to the sufficiency of the 

The Court did not err when questioning or Instructing the jury. Nor did the 

Defendant object to this Court's questioning or Instructing of the Jury. Therefore, 

any claim that the Court erred Is without merit and waived. 

24. The Court erred In refusing to submit the Instructions to the Jury at the 

close of evidence that were submitted In writing by the Defendant, 

pursuant to Pa. R.Crlm.P. 647. 

23. The Court erred In refusing to Inquire of potential Jurors the questions 

submitted In writing by the Defendant, or In the alternative, to permit 

defense counsel to do so. 

Jurors and when giving Jury Instructions. 

Therefore, based upon this Court's findings, the Court did not err when it 

: classified the Defendant as a sexually violent predator. · · · 

The Defendant also claims the Court committed errors tjurlng volr dire of the 

violent predator pursuant to the Pennsyfvanla statute. (10/28/13 N.T. pp. 33-34). 

. . . . 

Based upon the credible expert oplnlon testimony of Ms. Brust of the Sexual · 

Offender Assessment Board, as well as the September 16th letter and the statements of 

counsel that the court-appointed defense expert concurred with the SOAB's 

detennination that the Defendant met the statutory threshold for designation as a. 

sexually violent predator, this Court found Ms. Burst established by clear and convincing 

evidence that the Defendant met the two criteria necessary to be deemed a sexually 

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25 

,·~ ~- . 

.. 

-~ ' 

END OF OPINION 

on all charges beyond a reasonable doubt. Therefore, Defendant's claims of alleged 

error must fall. 

jury could have found that each element of offense was proven beyond a reasonable 

doubt, and both direct and circumstantial can be considered equally when assessing 

sufflclency of evidence. Com. v. Woodruff, 447 Pa. Super. 222, 668 A.2d 1.158 (1995). 

There Is no question that when viewing the evidence in a light most favorable to the 

Commonwealth here, that there was sufficient evidence to establish Defendant's guilt 

Again, in reviewing sufficiency of evidence claims, the Superior Court · must 

determine whether! viewing all of the evidence at trial, as well as all of the reasonable 

Inferences to be drawn therefrom, In a light most favorable to the Commonwealth, the 

· 27. The Court erred In denying the Defendant's Motions for judgment of 

acquittal or 'a new trial because the Commonwealth'.s principal 

witnesses gave contradictory and Inconsistent testimony concerning 

material elements of the crimes charged thereby making the Jury's 

verdict based on lnsufffclent evidence. 

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