J-A20002-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

Appellee

v.

PETER J. MOORE 

Appellant

:

:

:

:

:

:

:

 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

No. 1375 MDA 2016

Appeal from the Judgment of Sentence August 2, 2016

In the Court of Common Pleas of York County 

Criminal Division at No(s): CP-67-CR-0003656-2014

BEFORE: GANTMAN, P.J., PANELLA, J., and FORD ELLIOTT, P.J.E.

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 10, 2017

Appellant, Peter J. Moore, appeals from the judgment of sentence 

entered in the York County Court of Common Pleas, following his jury trial 

convictions of aggravated assault and endangering welfare of children 

(“EWOC”).1 We affirm. 

In its opinions, the trial court fully and correctly sets forth the relevant 

facts and procedural history of this case. Therefore, we have no reason to 

restate them. 

Appellant raises the following issues for our review:

THE TRIAL COURT ERRED WHEN IT ADMITTED PRIOR BAD 

ACTS EVIDENCE BECAUSE THERE WAS NO SUBSTANTIAL 

SIMILARITY OR LOGICAL CONNECTION BETWEEN THE 

____________________________________________

1 18 Pa.C.S.A. §§ 2702(a)(8) and 4304(a)(1), respectively. 
J-A20002-17

- 2 -

PROFFERED TESTIMONY AND THE CURRENT INCIDENT IN 

ORDER TO JUSTIFY ADMISSION UNDER PA.R.E. 404(B). 

THE TRIAL COURT ERRED WHEN IT ADMITTED PRIOR BAD 

ACTS EVIDENCE BECAUSE THE PROBATIVE VALUE OF THE 

PROFFERED EVIDENCE DID NOT [OUTWEIGH] ITS 

PREJUDICIAL EFFECT TO JUSTIFY ADMISSION. 

THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT’S 

REQUEST FOR A MISTRIAL AFTER A COMMONWEALTH 

WITNESS TESTIFIED TO A PRIOR ADMISSION OF ABUSE 

NOT PART OF THE PLEA TO A CONVICTION THE 

COMMONWEALTH SOUGHT TO ADMIT UNDER PA.R.E. 

404(B). 

(Appellant’s Brief at 4). 

The admissibility of evidence is a matter within the sound discretion of 

the trial court and will not be reversed absent an abuse of discretion. 

Commonwealth v. Drumheller, 570 Pa. 117, 135, 808 A.2d 893, 904 

(2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156 L.Ed.2d 137 (2003) 

(quoting Commonwealth v. Stallworth, 566 Pa. 349, 363, 781 A.2d 110, 

117 (2001)). In this context:

The term “discretion” imports the exercise of judgment, 

wisdom and skill so as to reach a dispassionate conclusion, 

within the framework of the law, and is not exercised for 

the purpose of giving effect to the will of the judge. 

Discretion must be exercised on the foundation of reason, 

as opposed to prejudice, personal motivations, caprice or 

arbitrary actions. Discretion is abused when the course 

pursued represents not merely an error of judgment, but 

where the judgment is manifestly unreasonable or where 

the law is not applied or where the record shows that the 

action is a result of partiality, prejudice, bias or ill will. 

Commonwealth v. Reese, 31 A.3d 708, 716 (Pa.Super. 2011) (en banc). 

After a thorough review of the record, the briefs of the parties, the 
J-A20002-17

- 3 -

applicable law, and the well-reasoned opinions of the Honorable Michael E. 

Bortner, we conclude Appellant’s issues on appeal merit no relief. The trial 

court opinions comprehensively discuss and properly dispose of the 

questions presented. (See Opinion is Support of Order, filed June 23, 2015, 

at 2-8; Trial Court Opinion, filed December 9, 2016, at 11-14) (finding: (1-

2) Appellant’s guilty plea in connection with 2003 shaking incident provided 

substantial evidence of prior bad act; also substantial similarities existed 

between current case and 2003 incident; specifically, both victims were 

Appellant’s infant sons and required hospitalization due to injuries, both 

incidents occurred at Appellant’s home when Appellant was only adult 

present, and Appellant attributed both victims’ injuries to “accidental” falls; 

additionally, 2003 incident was not too remote, in light of Appellant’s 

incarceration time between two cases; further, probative value of 2003 

incident outweighed prejudicial effect, due to current victim’s inability to 

explain cause of his injuries; 2003 incident was necessary to prove 

Commonwealth’s current case beyond reasonable doubt; court can and did 

issue cautionary instruction to overcome any undue prejudice caused by 

introduction of evidence pertaining to 2003 incident; (3) Commonwealth did 

not specifically attempt to elicit fleeting reference to second shaking incident 

in 2003, which was not part of Appellant’s 2003 guilty plea; additionally, 

accidental reference to second shaking incident was not overly prejudicial, 

because jury viewed reference as part of single 2003 shaking incident; 
J-A20002-17

- 4 -

further, passing mention of second 2003 shaking incident was not 

determinative in light of substantial testimony at jury trial, which included 

Appellant’s admission to 2003 shaking incident; under these circumstances, 

inadvertent reference to second shaking incident in 2003, did not deprive 

Appellant of his right to fair trial; thus, court properly denied Appellant’s 

request for mistrial). Accordingly, we affirm on the basis of the trial court’s 

opinions. 

Judgment of sentence affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/10/2017
plead nolo contendere to Criminal Attempt Homicide. 

Endangering another Person, and Endangering the Welfare of a Child. The Defendant also. 

Defendant entered pleas of guilty to Aggravated Assault, Simple Assault, Recklessly 

for child abuse wherein his, then, three month old son was the victim. In the 2003 case, the 

The Commonwealth seeks to introduce evidence of the Defendant's 2003 convictions 

I. Motion in Limine 

Support of that Order. 

law, this Court has Granted the Commonwealth's motion and now issues this Opinion in 

on that motion on December 3, 2014. After consideration of all evidence, argument, and case 

On July 17, 2014, the Commonwealth filed a Motion in Limine. A Hearing was held 

OPiNIO'N IN SUPPORT.OF ORDER 

Joseph D. Caraciolo, Esquire 

Counsel for the Defendant 

Stephen R. McDonald, Esquire 

Counsel for the Commonwealth 

COUNSEL OF RECORD: 

PETER J. MOORE, 

Defendant 

v. 

COMMONWEALTH NO. CP-67-CR-0003656-2014 

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

Circulated 09/14/2017 04:07 PM
·. t~ . • .. · •. .. ; .. 

2 

In plain words, at some point, the repetition of similar events is less attributable to 

The absence of mistake or accident theory is based upon the doctrine of chances. Id. 

admission of the proposed evidence of past child abuse. 

absence of mistake or accident theory of admissibility as we believe it is firm grounds for 

.proposed use of the evidence to show motive. Id. at I 26. Similarly, we only address the 

the absence of mistake or accident, they did not need to examine Commonwealth's other 

stated that because the proposed evidence, in that case, was admissible as tending to prove 

Rose, 396 A.2d 1221 (Pa. 1979) (citation omitted)) (emphasis added). the Donahue Court 

Id. (quoting Commonwealth v. Clayton, 532 A.2d 385 (Pa. 1987) (citing Commonwealth v, 

[Elvidence of other crimes is admissible when it tends to prove (1) motive; (2) 

intent; (3) absence of mistake or accident; (4) a common scheme.plan or 

design embracing commission of two or mote crimes so related to each other 

that proof of one tends to prove the others; or (5) to establish the identity of 

the person charged with the commission of the crime on trial-in other words, 

where there is such a logical connection between the crimes that proof of one 

will naturally tend to show that the accused is the person who committed the 

other. [Citation omitted.] When the evidence is relevant and important to one 

of these five issues, it is generally.conceded that the prejudicial effect may be 

outweighed by the probative value. [Footnote omitted.] 

summated as follows: 

however, exceptions, which out Supreme Court, in Commonwealth v. Donahue, neatly 

is presently charged. Commonwealth v. Donahue, 549 A.2d 121, 125 (Pa. i988): There are, 

o.f past crimes is inadmissible to prove that the defendant committed the crime with which he 

When Commonwealth seeks to admit past crimes, "[t)he general rule is that evidence 
up off of [the victim J. Id. Unable to ascertain what was wrong with the victim, the decision 

3 

closed the freezer door, [the elder of the two children] was already in the process of getting 

and cry. (N.P.H., 6/2/14, at 9.) Lisa testified that the Defendant told her that "by the time he 

informed Lisa that he had been retrieving ice from the freezer when he heard the children fall 

children, how the kids were during her absence. (N.P.H., 6/2/14, at 6.) The Defendant 

victim. (N.P.H.~ 6/2/14, at 5-6.) Lisa inquired of the Defendant, who had been watching the 

at 4.) At some point after her return, Lisa noticed that there was something wrong with the 

Moore, was out shopping at the time of the incident. (Notes of Preliminary Hearing, 6/2/14, 

At the preliminary hearing, it was established that the motherof the victim, Lisa 

adequate similarity between the 2003 case of child abuse and the incident sub Judice. 

substantial evidence of the prior child abuse. Ergo, we are left to examine whether there is 

entered pleas in the earlier case, it is axiomatic that the Commonwealth can establish 

act and that there is adequate similarity between the two cases. Id. at 127. As the Defendant 

theory, Commonwealth must establish that there is substantial evidence of the prior criminal 

For evidence of prior abuse to come in under the absence of mistake or accident 

the same ledger. Id. at 126-27. 

demonstrated by a bookkeeper who makes multiple errors in his favor in the same year and in 

bookkeeper twice errs in his favor in instances ten years apart; however, ill intent is fairly 

makes use of a bookkeeper analogy in which it is likely innocent happenstance where a 

coincidence and is more indicative of a blameworthy state of mind. The Donahue Court 
4 

was made to seek out medical attention. (N.P.H., 6/2/14, at 13.) Testimony was taken from 

Doctor Lori Frasier as an expert witness. (N.P.H., 6/2/14, at 33.) Doctor Frasier had 

examined the victim and reviewed his records. Id. Doctor Frasier testified that the victim had 

fractures to his lower legs known as torus fractures or buckle fractures. (N.P.H., 6/2/14, at 34- 

35.) Doctor Frasier stated that the injuries could not have occurred in the manner described 

by the Defendant and that, in her expert opinion, they were evidence of child abuse. (N.P.H., 

6/2/14, at 36.) 

Trusting in the verity of the representations Commonwealth has made regarding the 

2003 incident of child abuse, we have no doubt that any information that might lead to a 

reconsideration of our analysis will be brought to our attention by either of the parties. With 

this in mind, in the Commonwealth's motion we are informed that both the 2003 victim and 

the victim in our present case were the Defendant's infant sons at the times of their respective 

injury. (Commonwealth's Motion, 7/17/14, at unnumbered 5-6.) Each incident occurred at 

the Defendant's home and while he was the only adult present. (Commonwealth's Motion, 

7/17/14, at unnumbered 6.) Both incidents involved injury requiring hospitalization. Id. At 

the time of the 2003 incident, the Defendant made similar claims that he was not the cause of 

the injuries and that, rather, the injuries were caused by an accidental fall. Id. Most striking is 

the identical claim the Defendant initially made in the 2003 case that the victim received his 

injuries from a fall. Based upon the Commonwealth's representations, we believe there is 

adequate similarity between the incidents. 
577 A.2d 609, 614 (Pa. Super. Ct. 1990)). In Smith, the incidents were found to be so similar 

5 

excessive."' 635 A.2d 1086, 1090 (Pa. Super. Ct. 1993) (quoting Commonwealth v. Frank; 

separated by a lapse of time will not likely prevent the offer of evidence unless the time is 

that the details of each criminal incident are nearly identical, the fact that the incidents ate 

Smith, which dealt with the common plan exception, we find that, '"if the evidence reveals 

should consider the remoteness of the proffered prior criminal act. In Commonwealth:v. 

exceptions other than absence of mistake or accident, the Donahue Court instructs us that we 

Id. We repeat that, while our research seems to indicate that temporal issues are reserved for 

wherein a prior crime is too remote in time to come in against a defendant in a present matter. 

between the incidents. Id. at 128. The Donahue Court implies that there may be instances 

Donahue, the issue was addressed but summarily dismissed as there were but three years 

prior criminal act that Commonwealth seeks to admit. 549 A.2d 121, i 27-28 (Pa. 1988). In 

The Donahue case instructs us that we are to consider the remoteness in time of the 

the Donahue Court addressed this concern and so shall we. 

when admitting evidence of past crimes under the absence or accident exception. However, 

prior bad act and the current accusation does not appear, from our research, to be an issue 

which occurred in 2014, amounts to more than a decade. Granted, length of time between the 

between the incidents. The amount of time from the 2003 incident until the current incident, 

is adequate similarity between the two cases, our only other concern is the length of time 

Having found that there is substantial evidence of the prior criminal act and that there 
In Commonwealth v. Gordon, our Supreme Court stated that: 

the prejudicial effect is greater and, in our estimation, it is not. 

omitted)) (emphasis added). The probative value is clearly present. The question is whether 

probative value. Commonwealth v. Donahue, 549 A.2d 121, 125 (Pa.1988). (citations 

exceptions], it is generally conceded that the prejudicial effect may be outweighed by the 

We remember that, "[w]hen the evidence is relevant and important to one of ... [the 

probative value of the proffered evidence. 

evidence of the 2003 incident is to weigh whether the prejudicial effect is greater than the 

remote in time as to preclude its admission. The final consideration before admitting 

adequate similarity between the two cases. We also find that the prior criminal act was not so .. ,, 

have found that there is substantial evidence of the prior criminal act and that there is 

the first and second incident." (Commonwealth's Motion, 7/17/14, at unnumbered 5.) We 

Court that the Defendant, "was incarcerated for the large majority of the time period between 

(citing Commonwealth v. Rush, 646 A.2d 557 (Pa. 1994)). Commonwealth has informed this 

spent incarcerated from their analysis of remoteness. 836 A.2d 966, 911 (Pa. Super. Ct. 2003) 

guidance on the .remoteness question, the Superior Court excluded the time the defendant had 

Commonwealth v. 0 'Brien, which, again, deals with the common plan exception but provides 

that a period of ten to twenty years separating them was not considered excessive. Id. In 

Whether relevant evidence is unduly prejudicial is a function in part of the 

degree to which it is necessary to prove the case of the opposing party. Here, 

the Commonwealth was required to prove that a non-consensual touching 

6 
regarding the Defendant's prior incident involving child abuse is admissible to show an 

bad acts to prove their case beyond a reasonable doubt in the instant case. As such, evidence 

scheme or plan, Id., we believe Commonwealth needs the evidence of the Defendant's 2003 

of prior bad acts to show motive, intent, absence of mistake or accident, and a common 

designed to be." Id. And just as the Gordon Court felt that Commonwealth required evidence 

the other crimes evidence would be prejudicial to Gordon[;]'' however, "(t]hat is what it is 

that it ignores the purpose of the exceptions. As the Gordon Court stated, "[w]ithout doubt, 

unnecessary for Commonwealth to prove their case. The flaw with such a line of thinking is 

defendant-says victim's-treating-physician says situation and evidence of the 2003 incident is 

That, in other words, this is not the he-said she-said situation in Gordon; but, rather, this is a 

one expert witness who, aside from reputation and ego, is a disinterested party to the events. 

It could be argued that Commonwealth will be able to present the testimony of at least 

evidence than was the case in Gordon. 

it is even more necessary for the Commonwealth to be allowed to avail itself of prior bad acts 

the alleged incident and is therefore incapable of offering even uncorroborated testimony then 

673 A.2d 866, 870 (Pa. 1996). As the victim in our present case was art infant at the time of 

occurred, the purpose of which was sexual gratification. [footnote omitted] 

Gordon denies that the touching occurred, and since the uncorroborated 

testimony of the alleged victim in this case might reasonably lead a jury to 

determine that there was a reasonable doubt as to whether Gordon committed 

the crime charged, it is fair to conclude that the other crimes evidence is 

necessary for the prosecution of the case. 

I 

! 

7 
8 

~4Uc.&# 

DATED: June~,2015 /,?"MICHAELE. BORTNER, JUDGE 

BY THE COURT, 

Limine. 

For the reasons stated above, the Court hereby Grants the Commonwealth's Motion in 

II. Conclusion 

1086, 1090 (Pa. Super. Ct. 1993). 

Claypool, 495 A.2d 176, 179-180 (Pa. 1985)); see also Commonwealth v. Smith, 635 A.2d 

prior bad acts had been admitted. 982 A.2d 483, 497 (Pa. 2009) (citing Commonwealth v. 

Commonwealth v. Sherwood, the Court noted that a cautionary instruction was proper when 

prior bad acts evidence, we believe a cautionary instruction will be necessary. In 

In order to overcome any undue prejudice that might result from our admission of the 

absence of mistake or accident. 
Prior Crimes Under Rule of Evidence 404(b). A Hearing on this motion was set for October 

1 

Commonwealth docketed their Commonwealth's Motion in Limine to Present Evidence of 

Older, and Endangering Welfare of Children-Parent/Guardian. On July 17, 2014, the 

Defendant 18 or Older, Aggravated Assault-Victim Less Than 6 and Defendant 18 or 

2014, the Appellant was charged with Aggravated Assault-Victim Less Than I 3 and 

The pertinent history of this case is as follows. Via an Information filed on July 1, 

I. Procedural History 

issues this Opinion in support of the Judgment of Sentence. 

entered in his case on August 2, 2016. The Court has reviewed the record. The Court now 

Moore, by and through his counsel, appeals to the Superior Court of Pennsylvania the Order 

The Court received a Notice of Appeal, docketed on August2i.12016, that Peter J. 

-'i •• 

OPINION IN SUPPORT OF ORDER PURSUANT TO RULE 1925(a) 9F THF.v 

RULES OF APPELLATE PROCEDURE a 

Anthony J. Tambourino, Esqui~~ 

Counsel for Defendant g 

17, 

c:-:- 

;:;rStephen R. McDonald, Esquire 

Counsel for the Commonwealth 

PETER J. MOORE, 

Defendant/ Appellant 

COUNSEL OF RECORD: 

v. 

NO. CP-67-CR-0003656-2014 

COMMONWEAL TH 

Appellee 

IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA 

CRIMINAL DIVISION 

Circulated 09/14/2017 04:07 PM
29, 2014 and was rescheduled for December 3, 2014. At the conclusion of the December 3, 

2014 Motion in Limine Hearing, the Court reserved its decision and ordered briefs to be 

filed. After much consideration, the Court issued an Order and Opinion granting the 

Commonwealth's Motion in Limine on June 23, 2015. 

Trial was delayed due to Hearings being held on September 3 and September 28 of 

2015 to address issues regarding the payment of a defense expert. These issues were resolved 

on October 6, 2015 and the case was listed for trial. The trial was further delayed by status 

hearings to determine the progress of the Appellant's expert in generating reports. On March 

3, 2016 it was determined that all of the Appellant's reports had been provided to the 

Commonwealth and trial was scheduled to begin May 16, 2016. 

On May 19, 2016, a jury found the Appellant guilty of Counts 2 and 3, which were, 

respectively, Aggravated Assault-Victim Less Than 6 and Defendant 18 or Older and 

Endangering Welfare of Children-Parent/Guardian. The jury acquitted the Appellant of 

Count 1 Aggravated Assault-Victim Less Than 13 and Defendant 18 or Older. Sentencing 

was held on August 2, 20 I 6. On Count 2, the Appellant was sentenced to two and one-half to 

five years of incarceration plus costs and on Count 3, the Appellant received a consecutive 

sentence of one and one-half to three years of incarceration with attendant costs. 

On Augustzz, 2016, the Appellant fi]ed a timely Notice of Appeal. On August 25, 

2016, pursuant to the Pennsylvania Rules of Appellate Procedure, Rule 1925(b), the 

Appellant was directed to file a statement of matters complained of. Following our grant of 

2 
3 

Appellant's request to allow trial counsel, Joseph D. Caraciolo, to withdraw, the Office of the 

Public Defender of York County entered their appearance on September 14, 2016. On 

September 15, owing to necessary transcripts not having been docketed, Appellant's counsel 

requested and was granted an extension oftime to file the Appellant's Statement of Matters 

complained of until October 17, 2016. As Appellant's counsel only received the transcripts 

on October 14, 2016, a second request to extend the filing of Appellant's Statement of 

Matters Complained of was made on October 17, 2016. The Appellant was granted until 

November 18, 2016 to file the Appellant's Statement. On November 18, 2016, the Appellant 

filed his Statement of Errors Complained Pursuant to Pa.R.A.P. 1925(b ). 

The Appellant appeals for the following reasons. Firstly, Appellant complains this 

Court erred in admitting the hearsay testimony of Laurynn Kauffman where no exception 

exists for hearsay statements relating to Pa.R.E. Rule 404(b) testimony. Secondly, Appellant 

believes we erred in admitting evidence of prior bad acts under Pa.RE. Rule 404(b) because 

there was no substantial similarity or logical connection between the prior bad act and the 

acts which gave rise to this case. Thirdly, the Appellant believes the probative value of the 

prior bad acts was outweighed by prejudicial effect. Fourth, the Appellant alleges that it was 

error to deny his request for a mistrial after a Commonwealth witness testified to prior abuse 

for which the Appellant had not plead guilty. Fifth, and finally, the Appellant states that we 

erred in instructing the jury on the "exclusive custody doctrine," which he avers was 

unwarranted and prone to confuse the jury. 
4 

II. Facts 

The victim's mother, Lisa Moore, testified that on the day in question, March 8, 2014, 

she awoke and the day began as it normally does. (Notes of Testimony, 5/16/16, at 131-33.) 

Lisa went shopping for one to one-and-a-half hours. Id., at 133. Upon Lisa's return, she 

noticed that her son, the victim, was fussy. Id., at 134. The AppeJlant informed Lisa that the 

kids had been playing, that the Appellant was fetching some ice from the refrigerator, that the 

freezer door obscured his view of the children, that he heard a commotion, and that when the 

Appellant looked towards the noise he saw the victim on his back with toys under and around 

him and his step-daughter Samantha atop of the victim. Id., at 136-37. 

Lisa testified that Samantha has Autism and Attention Deficit Hyperactivity Disorder. 

Id., at 157. Lisa described how Samantha can be violent and that Samantha is strong. Id., at 

158-59. The scope of Samantha's violence was described along with some of the injuries she 

has inflicted on others. Id., at 159-61. The jury then viewed videos of Samantha manifesting 

her strength and rage and some of the steps required to restrain her. Id., at 169, 172. Lisa's 

testimony was later buttressed by Dianna Falkenstein, a defense witness, who, having 

worked as a therapeutic support staffer with the family, described Samantha's strength and 

proclivity for outbursts. Id., at 451-53. ·Lisa also provided the jury with the genesis of how 

this case came to the attention of authorities when she informed the jury that, as the victim 

continued to fuss, the victim was taken to Hershey Medical Center. Id., at 141-43. 
Doctor Lori Frasier took the stand and testified that she was involved in the victim's 

diagnosis and treatment. Id., at 207. Doctor Frasier was qualified as an expert in radiology, 

pediatrics, and child abuse. Id., at 2 I 9. The jury heard that the victim suffered a particular 

kind of transverse fracture called a torus or buckle fracture, which is a fracture that occurs 

longitudinally through the legs. Id., at 225-26. Doctor Frasier testified that the force of the 

injury had to come up from below as though through the foot. Id., at 227. Doctor Frasier 

opined that the injury was odd because it was bilateral (affecting both legs) and that this was 

unusual for accidents involving a young child as great force is necessary and children are not 

coordinated enough to land on both feet equally. Id., at 228-29. The fact that both of the 

victim's fibulas and ti bias were injured added to Doctor Frasier's belief that the forces 

involved in creating the injury were greater than would be expected from a fall, or another 

child jumping onto the victim, or from someone dropping the victim. Id., at 238. Doctor 

Frasier testified that, "[i]n [her] opinion, there was nothing that supported an accidental 

mechanism [for this injury]." Id., at 239. Rather, in her expert opinion, Doctor Frasier found 

the injuries to be indicative of child abuse. Id., at 246. 

The defense offered Doctor Jeffrey Bornze to be qualified as a medical expert, which 

the Court did. Id., at 355. Doctor Bomze noted that only Doctor Frasier called the injuries 

that were sustained by the victim buckle fractures. Id., at 363. Other doctors who were 

involved in the victim's treatment, including the radiologist, described horizontal fractures. 

Id. As opposed to the vertical force necessary to induce buckle fractures, horizontal fractures 

5 
result from perpendicular force applied to the long axis of a bone. Id., at 363-64. Doctor 

Bomze described for the jury numerous accidental mechanisms that he believed were 

potential causes for the victim's injuries. Id., at 388-89. 

A Detective Jarrett Boyles was tasked with investigating the case sub Judice and he 

reported to the hospital to initiate the investigation. Id., at 301-02. There, Detective Boyles 

recorded an interview with the Appellant, which was played for the jury. Id., at 304-05. 

Detective Boyles also testified that no investigation of the scene occurred because the 

victim's family was uncooperative and because Doctor Frasier did not feel it was necessary. 

Id., at 309. 

Laurynne Kauffman took the stand and testified that she is the Appellant's former 

wife. Id., at 280. Laurynne stated that she and the Appellant have a son named Brian who 

was born on March 17, 2003. Id., at 281. On June 23, 2003, Laurynne attended a class and 

left Brian in the care of the Appellant. Id. Laurynne later received a call informing her that 

Brian was on the way to the hospital. Id. Id., at 281-82. The Appellant maintained to 

Laurynne that Brian had fallen from the couch. Id., at 283. Later, Laurynne was taken to a 

room with medical staff or police investigators, which participants she cannot remember, 

and, therein, the Appellant admitted to her that he had shaken Brian. Id., at 285. The 

investigating officer in that 2003 case was Detective, now Chief, Loper. Id., at 292. Chief 

Loper testified that despite initially denying any wrongdoing, the Appellant eventually 

admitted to shaking Brian on two occasions. Id., at 295-296. 

6 
The Appellant took the stand and addressed much of what had already been testified 

to during the trial. The crux of his testimony was addressed by his denial of harming the 

victim on the day in question. Id., at 521-22. 

III. Matters Complained of on Appeal 

A. Rule 404(b) 

1. Testimony of Laurynn Kauffman 

The Appellant's first matter complained of is that this Court erred in admitting the 

testimony of Laurynn Kauffman because her testimony was hearsay offered for the truth of 

the matter asserted and Rule 404(b), under which that testimony was admitted, does not 

excuse hearsay requirements. To begin, Pennsylvania law requires that an appellant must 

specify where within the certified record the challenged testimony appears or else the issue is 

waived. Commonwealth v. Shotwell, 717 A.2d 1039, 1042 (Pa. Super. Ct. 1998) (citing 

Commonwealth v. Gray, 608 A.2d 534, 544 (Pa. Super. Ct. 1992) (citing Pa.R.A.P.2119(c))). 

Appellant's Statement of Errors Complained of does include a reference to page 282 of the 

trial transcript. Unfortunately, the Court cannot be certain whether the supposed hearsay 

refers to all of Ms. Kauffman's testimony or the specifically objected to testimony regarding 

a friend of Ms. Kauffman's, Bethany, who informed Ms. Kauffman that Brian was on his 

way to the hospital. As the objection at trial related to Ms. Kauffman's testimony recounting 

Bethany's words, we begin our analysis there. 

The portion of the transcript that is relevant to this matter complained of reads in 

7 
whole: 

[Attorney McDonald questioning Ms. Kauffman:] 

Q. Now, did something happen while you were at class? 

A. Yes. 

Q. \Vhathappened? 

A. What I was told happened? 

Q. How did you find out something had happened? 

A. I got a call from my girlfriend who had picked up Bethany, and she told me that - - 

Attorney Caraciolo: Objection, Your Honor. Hearsay. 

Attorney McDonald: Your Honor, this isn't for the truth of the matter. This is just to - - this 

is course of conduct. 

The Court: I'm going to Overrule. 

By Attorney McDonald: 

Q. She told you that what? 

A. That Brian was on his way to the hospital. 

(N.T., 5/16/16, at 282.) From our review of the transcript, this seems to include all of the 

testimony Ms. Kauffman offered about what Bethany told her. 

Ab initio, "[tjhe Admission or exclusion of evidence is a matter for the sound 

discretion of the trial judge." Commonwealth v. Shotwell, 717 A.2d 1039, 1042 (Pa. Super. 

Ct. 1998) (citing Commonwealth v. Stringer, 678 A.2d 1200, 1202 (Pa. Super. Ct. 1996). 

8 
"[H]earsay is an out of court statement offered to prove the truth of the matter asserted." Id. 

(citing Commonwealth v. Ellis, 700 A.2d 948, 960 (Pa. Super. Ct. 1997) (citation omitted)). 

"Certain out-of-court statements offered to explain a course of conduct are admissible as an 

exception to the hearsay rule as these statements are not offered for the truth of the matters 

asserted; they are offered to show information upon which the police acted." Id. This is 

referred to as the "police conduct rule" and it, "does not open the door to unbounded 

admission of testimony, for such would nullify an accused's right to cross-examine and 

confront the witnesses against him." Commonwealth v. Dent, 837 A.2d 571, 579 (Pa. 

Super. Ct. 2003) (citing Commonwealth v. Palsa, 555 A.2d 808, 811 (Pa. 1989)) (emphasis 

in original); See also Commonwealth v. Carroll, 513 A.2d 1069, 1071 (Pa. Super. Ct. 1986). 

In our review of case law, the course of conduct exception to the hearsay rule does not appear 

to be limited only to the conduct of police; but, rather, is applicable to the testimony of any 

witness. "It is well settled that an out-of-court statement offered to explain a course of 

conduct is not hearsay." Commonwealth v. Lewis, 460 A.2d 1149, 1152 (Pa. Super. Ct. 1983) 

(citing Commonwealth v. Cruz, 414 A.2d 1032 (Pa. 1980); Commonweatlh v. Ryan, 384 A.2d 

1243 (Pa. Super. Ct. 1978)) (A victim's testimony that another tenant told her about a 

suspicious man peering into homes and who suggested the victim observe whether he was the 

man who had raped the victim was admissible hearsay under the course of conduct 

exception.). 

In addition to the foregoing, we note that even if a court incorrectly admits hearsay 

9 
fallen from a couch, and that, eventually, the Appellant admitted to Ms. Kauffman that he 

had shaken Brian. (N.T., 5/16/16, at 281-85.) This aligned with Detective Loper's testimony 

10 

Ms. Kauffman's testimony was that her son was injured, the Appellant related that Brian had 

cumulative at worst and, still, subject to the course of conduct exception. A basic synopsis of 

impermissible hearsay then we must opine, in the alternative, that her testimony was 

If the Appellant is asserting that Ms. Kauffman's testimony was, in toto, 

affirmance as to this matter complained of. 

minimis prejudice as to have been harmless and we would, therefore, respectfully request 

the Commonwealth at trial and, even if it is not, we believe that it would be of such de 

was then on his way to the hospital. We believe this is firmly within the exception offered by 

that Bethany had informed Ms. Kauffman that Ms. Kauffman and the Appellant's son, Brian, 

The extent of testimony elicited from Ms. Kauffman about her friend Bethany was 

Id. 

(1) the prejudice to the appellant was nonexistent or de minimis; (2) the 

erroneously admitted evidence was merely cumulative of other untainted, 

substantially similar and properly admitted evidence; or (3) the properly 

admitted and uncontradicted evidence was so overwhelming and the 

prejudicial effect of the error was so insignificant by comparison that the error 

could not have contributed to the verdict. 

following circumstances: 

Dent, 837 A.2d 571, 582 n. 2 (Pa. Super. Ct. 2003). An error is harmless under any of the 

Commonwealth v. Hardy, 918 A.2d 766, 777 (Pa. Super. Ct. 2007) (citing Commonwealth v. 

evidence, a verdict will not be disturbed if the hearsay amounts to harmless error. 
that the Appellant admitted, after initially denying it, that he had shaken Brian. Id., at 295~96. 

While we must admit that cumulative evidence has a tendency to bolster other evidence, we 

do not believe that the hearsay testimony proffered by Ms. Kauffman amounted to anything 

more than her recounting of what led her to arrive at the hospital and how the 2003 case 

progressed. As such, we humbly request affirmance as to this matter complained of. 

2. Admission of Prior Bad Acts 

In the interest of judicial economy, the Appellant's second and third matters 

complained of are best addressed together. The second matter complained of is that it was 

error to admit evidence of the Appellant's 2003 conviction for child abuse because there was 

no substantial similarity or logical connection between that Incident and t.he current one. The 

third matter complained of is that this Court erred in admitting evidence of the Appellant's 

2003 conviction for child abuse because the probative value of that instance did not outweigh 

its prejudicial effect. Our June 23, 2015 Opinion in Support of Order delves into our 

reasoning for admitting evidence of the Appellant's 2003 conviction into the trial for the 

present case. Based upon the reasoning therein, we pray for affirmance as to these two 

matters complained of .. 

3. Denial of Mistrial 

In his fourth matter complained of, the Appellant conte~cls 'that we erred in denying a 

mistrial after Chief Loper referenced a second incident in which the Appellant abused his son 

in the 2003 case, which we admitted under Pa.R.E. 404(b) and for which we supplied our 

1 I 
12 

Q. Were there any injuries suffered in that instance? 

A. Correct. 

previous Friday? 

Q. All right. And then you said that he admitted that he had also injured the baby on the 

to me. 

ambulance that day, the medical personnel at the hospital, and then initially what he had said 

'1 

A. Yeah. That was the story that he -- the version of events, I should say, that he told the 

ambulance? 

couch, was that what he had told -- to your understanding, is that what he told the 

put the child on the couch, went into the kitchen to make a bottle, and the child rolled off the 

Q. And this version of events that he originally told you about the child rolling off, that he 

that, a couple days earlier, he did the same thing. 

Once was that Monday where the ambulance was called, and one was the Friday just prior to 

started crying, and actually admitted to shaking his son, actually, on two different occasions. 

confronted him with the medical evidence, and, at that point, Mr. Moore then broke down, 

A. ... So we went through that a couple of times, and it just wasn't making sense, so I 

[Attorney McDonald questioning Chief Loper] 

The objectionable portion of testimony was as follows: 

96.) We turn first to the testimony in question. 

reasoning in the Opinion in Support of Order filed on June 23, 2015. (N.T., 5/16/16, at 295- 
13 

375 (Pa. 1972)). 

for a mistrial." Id. (citing Kerrigan, supra, at 199; Commonwealth v. Allen, 292 A.2d 373, 

2007)). And, "[a] singular, passing reference to prior criminal. activity is usually not 

sufficient to show that the trial court abused its discretionindenying the defendant's motion 

required."' Id. (quoting Commonwealth v. Kerrigan, 920 A.2d .1.90, 199 (Pa. Super. Ct. 

the Commonwealth are considerations relevant to the determination of whether a mistrial is 

behavior, '[t]he nature of the reference and whether the remark was intentionally elicited by 

1016 (Pa. 2007)). "When the statement at issue relates to a reference to past criminal 

957 A.2d 311, 319 (Pa. Super. Ct. 2008) ( quoting Commonwealth v. Rega, 93 3 A.2d 997, 

The trial court is in the best position to assess the effect of an allegedly 

prejudicial statement on the jury, and as such, the grant or denial of a mistrial 

will not be overturned absent an abuse of discretion. A mistrial may be 

granted only where the incident upon which the motion is based is of such a 

nature that its unavoidable effect is to deprive the defendant of a fair trial by 

preventing the jury from weighing and rendering a true verdict. Likewise, a 

mistrial is not necessary where cautionary instructions are adequate to 

overcome any possible prejudice, 

the denial of a mistrial, which is as follows: 

In Commonwealth v. Parker, the Superior Court laid out the standard for overturning 

complained of. Id., at 297-99. 

sidebar discussion and the requested mistrial whose denial gives rise to this matter 

(N.T., 5/16/16, at 295-96.) Attorney Caraciolo made a timely objection, which resulted in a 

were some injuries that they noted that were in the healing stages. 

A. There appeared to be injuries. One of the things that the hospital told me was that there 
14 

2003 plea and for that reason we beg affirmance. 

which the jury was already inured by virtue of our determination to allow in evidence of the 

Commonwelath v. Laird, 988 A.2d 618, 638 (Pa. 2010)). This was a passing reference to 

impartial trial." Commonwealth v Travaglia, 28 A.3d 868, 879 (Pa. 2011) (citing 

remedy that is required only where the challenged event deprived the accused of a fair and 

., 

indicating that the abuse was not confined to a single incident. "A mistrial is an extreme 

there having been a prior conviction for child abuse and not from a few lines of testimony 

confessed to abusing his child in .2003. If there was any uridue prejudice then it comes from 

more than once was not determinative in the face of a jury having heard that the Appellant 

of pages of transcripts, the fleeting mention by Chief Loper that 'the 2003 victim was shaken 

of the 2003 incident under Pa.R.E. 404(b ). In the grand scheme of a case spanning hundreds 

have all been one incident. It bears reminding that we believe we correctly admitted evidence 

incident was not, to our mind, overly prejudicial in that we believe it appeared to the jury to 

incident. (N.T., 5/16/16, at 296.) Nevertheless, the nature of the reference to the 2003 

whether the victim in the 2003 incident suffered any injuries from the Friday shaking 

Commonwealth attempted to highlight this testimony in asking Chief Loper to repeat 

second instance of the Appellant shaking his son in 2003. That said, it is noteworthy that the 

obvious attempt by the Commonwealth to elicit information from Chief Loper regarding a 

Turning to the facts of our case, a plain reading of the transcript does not reveal any 
15 

B. Exclusive Custody Doctrine 

The Appellant's fifth matter complained of is that the Court erred in instructing the 

jury on the "exclusive custody doctrine." The Appellant avers that this was unwarranted 

under the circumstances and could have only served to confuse the jury. 

In general, "'[w]hen a court instructs the jury, the objective is to explain to the jury 

how it should approach its task and the factors it should consider in reaching its verdict."' 

Commonwealth v. Chambers, 980 A.2d 35, 49 (Pa. 2009) ( quoting Commonwealth v. 

Hartman, 638 A.2d 968, 971 (Pa. 1994)). And, "[i]nstructions on defenses or theories of 

prosecution are warranted when there is evidence to support such instructions." Id., at 49-50 

(citing Commonwealth v. Browdie, 671 A.2d 668 (Pa. 1996)). "A charge will be found 

adequate unless the issues are not made clear, the jury was misled by the instructions, or 

there was an omission from the charge amounting to a fundamental error." Id., at 50 (citing 

Von der Heide v. Com., Dep 't of Transp., 718 A.2d 286, 288 (Pa. 1998)). 

It is well established in Pennsylvania that, "[wjhere, as here, an adult has sole custody 

of a child for a period of time, and, during that time the child suffers wounds which 

unquestionably are neither self-inflicted nor accidental, the evide~ce is sufficient to allow a 

jury to infer that the adult inflicted the wounds." Commonwealth v. Paquette, 301 A.2d 837, 

840 (Pa. 1973) (citing State v. Loss, Minn., 204 N.W.2d 404 (1973; Commonwealth v. 

Johnson, 29 A. 280 (Pa. 1894); Commonwealth v. Lettrich, 31 A.2d 155 (Pa. 1943)). Phrased 

differently, 
misled or confused the jury. The Commonwealth requested an instruction on their theory of 

16 . ' . '. . 

(N.T., 5/16/16, at 536-37.) We do not believe there was any material change that would have 

injuries. 

In this case, the evidence indicates that the defendant had sole custody of the 

child during the time period in which the child sustained injuries. You, as the 

finder of fact, may examine any explanation regarding the injuries being 

accidental or self-inflicted, and if you determine that 'the explanation is 

insufficient, reject the explanation and infer the Defendant inflicted the 

reporter's transcript indicates the jury heard. The prepared instruction read as follows: 

counsel prior to our instructing the jury, reads ever so slightly :differently from what the court 

(N.T., 5/16/16, at 596.) We would note that our prepared instruction, which was shared with 

Now, in this case, the evidence indicates that the defendant had sole custody 

of the child during the time period in which the child sustained his injuries. 

You, as the finder of fact, may, but you are not requited to, examine any 

explanation regarding the injuries being accidental or self-inflicted. If you 

determine that the explanation is insufficient, reject the explanation and infer 

the defendant inflicted the injuries. 

cited above. Specifically, the jury was told the following: 

circumstantial evidence. The added language tracks the exclusive custody doctrine language 

The instruction to which the Appellant objects was added to our usual instruction on 

Paquette, supra). 

Commonwealth v. Meredith, 416 A.2d 481, 482-83 (Pa. 1980) ( citing Commonwealth v. 

[i]n this jurisdiction we have held that where an adult is given sole custody of 

a child of tender years for a period of time, and, during that time the child 

sustains injuries which may have been caused by a criminal agency, the finder 

of fact may examine any explanation offered and, if they find that explanation 

to be wanting, they may reject it and find the person having custody of the 

child responsible for the wounds. 
17 

~C.--~-- 

DATED: December __ r: , 2016 ~ E. BORTNER, JUDGE 

BY THE COURT, 

Order entered in this case on August 2, 2016. 

Based upon the reasons stated above, this Court respectfully urges affirmance of the 

III. Conclusion 

instruction was warranted. For this reason, we deferentially seek affirmance. 

the case which was supported by the evidence adduced at trial and, therefore, we believe the