J-S24005-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

MICHAEL O’BRIEN 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1329 WDA 2022

Appeal from the Judgment of Sentence Entered April 22, 2022

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

No(s): CP-61-CR-0000818-2020

BEFORE: BOWES, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY BOWES, J.: FILED: August 20, 2024

Michael O’Brien appeals from the aggregate judgment of sentence of 

twenty-five to seventy years of imprisonment imposed after being convicted

of numerous sexual offenses against his adopted minor daughter, K.O. We 

affirm.

We glean the following background from the certified record. Appellant 

and his wife, Carrie O’Brien, adopted K.O. from China in 2008 when K.O. was 

four years old. In 2020, Mrs. O’Brien informed the Pennsylvania State Police 

that she believed Appellant was sexually abusing K.O. After an investigation, 

the Commonwealth filed a criminal information charging Appellant with thirtythree offenses, asserting that between 2015 and 2019, Appellant habitually 

sexually assaulted K.O. The matter ultimately proceeded to a jury trial. 

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* Former Justice specially assigned to the Superior Court.
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K.O., then seventeen years of age, testified to the following. Appellant 

penetrated her vagina with his fingers and performed oral sex on her more 

than 200 times over an approximately five-year period. He also penetrated 

her vagina with his penis four separate times. Since she was afraid that no 

one would believe this was happening, K.O. surreptitiously recorded two 

conversations between her and Appellant on her iPad, referencing the abuse 

in general terms as “touching” and asking why he was doing it. During one of 

the discussions, Appellant indicated that the impetus for his conduct was at 

least in part that he was sexually frustrated due to lack of sex with Mrs. 

O’Brien. He did not refute her allegations that any touching occurred. 

Appellant also told K.O. not disclose what was happening because that would 

cause him and Mrs. O’Brien to divorce and would lead to him being in jail.

The Commonwealth next called Mrs. O’Brien to testify against Appellant. 

Mrs. O’Brien learned of the acts approximately ten months before charges 

were filed, when she found one of the videos that K.O. recorded and saved on 

the computer. She then confronted Appellant, who stated “[K.O.] wasn’t 

supposed to tell you.” N.T. Trial, 3/17/22, at 78. This statement was admitted 

over counsel’s objection that it was a privileged communication between 

spouses. Notably, at the time Mrs. O’Brien approached Appellant, he did not 

deny performing the acts, nor did he accuse K.O. of lying. 

Additionally, Mrs. O’Brien testified that shortly after learning of 

Appellant’s conduct, she and Appellant legally separated and initiated divorce 

proceedings. During her direct examination, Mrs. O’Brien twice mentioned 
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that she had obtained a Protection from Abuse (“PFA”) order against Appellant 

after learning about the abuse. In each instance, counsel promptly objected 

to the testimony as improper propensity evidence and moved for a mistrial. 

The trial court denied both motions; however, after the second time the PFA 

was referenced, the court issued a cautionary instruction to the jury not to 

consider any reference to a PFA order or proceeding. When the court asked 

counsel if the provided instruction was adequate, counsel indicated in the 

affirmative.

The Commonwealth also called as a witness Terri Watson, who served 

with Appellant in the military reserves in 2002-2003. Ms. Watson attested 

that she began a romantic relationship with Appellant after he and Mrs. O’Brien 

legally separated. A short time later, she learned from Appellant that he was 

under investigation relating to the alleged incidents, and she discussed the 

matter with him. Appellant conceded to her that he had sexual intercourse 

with K.O. one time shortly after her fifteenth birthday. Ms. Watson thereafter

ended her relationship with Appellant and cancelled an upcoming trip they had 

planned together. 

At the conclusion of trial, the jury found Appellant guilty as to all thirtythree counts, which included rape and involuntary deviate sexual intercourse. 

The trial court subsequently sentenced him as indicated hereinabove. 

Appellant filed a timely post-sentence motion, requesting, inter alia, a new 

trial based on the trial court overruling his privilege objections. More than 
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120 days later, the court entered an order deeming the motion denied by 

operation of law.

This timely appeal followed.1 The trial court ordered Appellant to file a 

concise statement of errors pursuant to Pa.R.A.P. 1925(b) and he complied. 

The court thereafter issued a responsive opinion.

Appellant presents the following two issues for our review:

I. Whether the lower court erred or abused its discretion and 

committed an error of law when it failed to grant [Appellant]’s 

motion of spousal privilege and allowed [Appellant]’s wife to 

testify regarding confidential communications between she and 

[Appellant] in contravention of 42 Pa.C.S. § 5914[.]

II. Whether the lower court erred as a matter of law or abused its 

discretion by failing to grant [Appellant]’s motion for a new trial 

based upon the prosecutor’s attempt to improperly introduce 

evidence of a [PFA] order previously entered against 

[Appellant].

Appellant’s brief at 4.

Appellant’s first issue claims that the trial court erred in admitting 

testimony from Mrs. O’Brien that Appellant told her, “[K.O.] wasn’t supposed 

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1 Generally, if a court does not decide a post-sentence motion within 120 days, 

it shall be deemed denied by operation of law. See Pa.R.Crim.P. 720(B)(3)(a). 

In that event, “the clerk of courts shall forthwith enter an order on behalf of 

the court . . . that the post-sentence motion is deemed denied.” Pa.R.Crim.P. 

720(B)(3)(c). Here, after expiration of the 120-day period, the clerk of courts 

did not enter the order deeming the motion denied until the trial court did so 

on its own initiative. We have held that under similar circumstances, this 

constitutes a “breakdown in the court system.” Commonwealth v. Perry, 

820 A.2d 734, 735 (Pa.Super. 2003). Accordingly, in the interest of judicial 

economy, we exercise our power under Pa.R.A.P. 105(a) to disregard these 

technical errors and consider the appeal as properly filed within thirty days 

from the trial court order denying the post-sentence motion.
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to tell you,” in contravention of the privilege of confidential communications 

between spouses at § 5914. This presents a question of law, which is subject 

to de novo, plenary review. See Commonwealth v. Spetzer, 813 A.2d 707, 

715 (Pa. 2002).

Section 5914 states as follows: “Except as otherwise provided in this 

subchapter, in a criminal proceeding neither husband nor wife shall be 

competent or permitted to testify to confidential communications made by one 

to the other, unless this privilege is waived upon the trial.” 42 Pa.C.S. § 5914. 

Our High Court has noted that “[§] 5914, which is waivable only by the spouse 

asserting the privilege, prevents a husband or wife from testifying against 

their spouse as to any communications which were confidential when made 

and which were made during the marital relationship.” Commonwealth v. 

Small, 980 A.2d 549, 561 (Pa. 2009) (citation omitted). Further:

For § 5914 to apply, it is also essential the communication be 

made in confidence and with the intention that it not be divulged.

We look to whether the spouse making the statement had a 

reasonable expectation the communications would be held 

confidential. Generally, the presence of third parties negates the 

confidential nature of the communication. Even if privileged 

testimony under § 5914 is erroneously admitted into 

evidence, it is harmless error if it is merely cumulative of 

other admissible testimony.

Id. at 562 (cleaned up, emphasis added).

This Court has stated that, “[u]nder the harmless error doctrine, we 

must vacate the order on review to correct the error unless we are convinced 

beyond a reasonable doubt that the error is harmless.” Commonwealth v. 
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Murray, 248 A.3d 557, 576 (Pa.Super. 2021) (cleaned up). This doctrine 

“reflects the reality that the accused is entitled to a fair trial, not a perfect 

trial.” Commonwealth v. Wilson, 286 A.3d 1288, 1300 (Pa.Super. 2022) 

(citation omitted). It also seeks to “promote . . . public respect for the criminal 

process by focusing on the underlying fairness of the trial rather than on the 

virtually inevitable presence of immaterial error.” Id. at 1301. 

Appellant contends that the statement he made to Mrs. O’Brien was 

uttered during their marriage with no one else present, and hence privileged. 

See Appellant’s brief at 11. He further claims that he never waived the 

privilege at trial or otherwise. Id. Appellant concludes that Mrs. O’Brien was 

“not allowed to divulge confidential communications”, even if she were 

otherwise competent to testify against him generally pursuant to other rules 

or statutes. Id. at 12.

In rejecting Appellant’s claim, the trial court relied upon § 5913, a 

separate provision addressing spouses as witnesses against each other. That 

statute iterates the following, in relevant part:

Except as otherwise provided in this subchapter, in a criminal 

proceeding a person shall have the privilege, which he or she may 

waive, not to testify against his or her then lawful spouse except 

that there shall be no such privilege:

. . . .

(2) in any criminal proceeding against either for bodily injury 

or violence attempted, done or threatened upon the other, 

or upon the minor children of said husband and wife, or the 

minor children of either of them, or any minor child in their 

care or custody, or in the care or custody of either of them;
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. . . .; or

(4) in any criminal proceeding in which one of the charges 

pending against the defendant includes murder, involuntary 

deviate sexual intercourse or rape.

42 Pa.C.S. § 5913.

The trial court concluded that use of the word “shall” in the statute 

makes it clear that the spousal privilege did not apply based on the charges 

herein, and that Mrs. O’Brien’s testimony regarding Appellant’s statement was 

therefore admissible. Id. at 7. For its part, the Commonwealth agrees with 

the trial court that the spousal communication was properly admitted pursuant 

to § 5913. See Commonwealth’s brief at 2-3.

Initially, we note that whether Mrs. O’Brien was competent to testify 

against Appellant pursuant to § 5913 has no bearing as to whether she could 

disclose confidential communications between them. Our High Court has 

made it clear that §§ 5913 and 5914 “are separate rules, and § 5913’s 

exception preventing a spouse from asserting the privilege in certain criminal 

proceedings does not trump § 5914.” Small, 980 A.2d at 561 (citation 

omitted). Thus, the trial court could not simply rely on the fact that an 

exception was met in § 5913 regarding Mrs. O’Brien’s general competency to 

testify against Appellant to justify introducing a confidential communication 

between them, as defined by § 5914.

That said, we must still determine whether the communication at issue 

was confidential, and if so, whether its admission was harmless. Assuming 

arguendo that Appellant’s implicit concession of guilt was privileged pursuant 
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to § 5914, as he contends, we nevertheless find that any error in admitting 

the statement was harmless since it was cumulative of the other evidence of 

guilt proffered against Appellant, particularly the videos recorded by K.O. 

Therein, Appellant did not deny K.O.’s references to him touching her. Rather, 

he expressed his hope that it felt good for her and provided a motive for the 

acts. Similarly, Mrs. O’Brien testified that when she confronted Appellant after 

discovering one of the videos, he never disputed engaging in the conduct 

referred therein, nor did he at any point accuse K.O. of being dishonest. 

Likewise, Appellant admitted to Ms. Watson that he had sexual intercourse 

with K.O. and defended the act on the grounds he and K.O. were not 

biologically related. This statement rendered cumulative Appellant’s 

concession to Mrs. O’Brien as to that particular act. Finally, if we interpret 

Appellant’s remark to literally mean that he instructed K.O. to keep the sexual 

abuse a secret, it was duplicative of K.O.’s testimony that she was pressured 

not to disclose the acts because it would lead to Appellant’s divorce and a jail 

sentence.

In all, we are convinced beyond a reasonable doubt that any error 

arising from the erroneous admission of this sole statement is harmless. See

Murray, 248 A.3d at 576. Therefore, no relief is due.

In his remaining claim, Appellant asserts that the court erred in denying 

his motions for a new trial based on alleged prosecutorial misconduct, arising 

from the two references Mrs. O’Brien made to obtaining a PFA order against 
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him. See Appellant’s brief at 12-14. The following governs our consideration 

of this issue:

A motion for a mistrial is within the discretion of the trial court. A 

mistrial upon motion of one of the parties is required only when 

an incident is of such a nature that its unavoidable effect is to 

deprive the appellant of a fair and impartial trial. It is within the 

trial court’s discretion to determine whether a defendant was 

prejudiced by the incident that is the basis of a motion for a 

mistrial. On appeal, our standard of review is whether the trial 

court abused that discretion.

Commonwealth v. Bennett, 225 A.3d 883, 890 (Pa.Super. 2019) (citation 

omitted).

In discussing this issue, the trial court opined, inter alia, that a mistrial 

was not warranted because any alleged prejudice was ameliorated when it 

provided the following cautionary instruction to the jury: “I would ask the 

jury to put out of their minds any mention of a PFA or what a PFA is, and that 

anything that you may have heard you are not to consider at all.” N.T. Trial, 

3/17/22, at 111; see also Trial Court Opinion, 1/13/23, at 7. Appellant does 

not directly address this contention in his brief, instead merely asserting that 

he was prejudiced by the references to the PFA and that the Pennsylvania 

Rules of Evidence did not permit the testimony, since the Commonwealth 

never provided prior notice of its intent to introduce the evidence. See

Appellant’s brief at 12-14.

We conclude that the trial court did not abuse its discretion in denying 

Appellant’s requests for a mistrial. “It is well-settled that jurors are presumed 

to follow the trial court’s cautionary instructions.” Commonwealth v. 
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Goods, 265 A.3d 662, 672 (Pa.Super. 2021) (citation omitted). After Mrs. 

O’Brien mentioned obtaining a PFA order against Appellant a second time, the 

court informed the jury that it was not to consider anything about PFA 

proceedings in this case. Appellant has not convinced us through any 

argument or citation to pertinent law that the instruction given by the trial 

court was insufficient to cure any prejudice arising therefrom. This is 

especially true as, in this instance, Appellant’s counsel indicated to the court 

that the instruction was adequate. Thus, Mrs. O’Brien’s remarks were not “of 

such a nature that [their] unavoidable effect [wa]s to deprive” him of a “fair 

and impartial trial.” Bennett, 225 A.3d at 890.

Since Appellant has presented no issues warranting relief, we affirm his 

judgment of sentence.

Judgment of sentence affirmed.

DATE: 8/20/2024