J-A30017-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

BERNARD G. SHERO

Appellant No. 2164 EDA 2013

Appeal from the Judgment of Sentence June 12, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0003529-2011

BEFORE: LAZARUS, J., MUNDY, J., and PLATT, J.*

MEMORANDUM BY MUNDY, J.: FILED MARCH 24, 2015

Appellant, Bernard G. Shero, appeals from the June 12, 2013 

aggregate judgment of sentence of eight to 16 years’ imprisonment, 

followed by five years’ probation, after he was found guilty of one count 

each of rape of a child, involuntary deviate sexual intercourse (IDSI), 

endangering the welfare of a child (EWOC), corruption of minors, and 

indecent assault.1 After careful review, we affirm.

The trial court summarized the relevant facts and procedural history of 

this case as follows.

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 4304(a)(1), 6301(a)(1)(i), and 

3126(a)(7), respectively.
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The victim’s parents, J.G. (hereinafter “Father”) and 

S.G. (hereinafter “Mother”) married in 1981 and had 

two sons, J.G., Jr. (hereinafter “Brother”) and the 

victim “D.G.” The victim and his family resided in 

the northeast section of Philadelphia. Father was a 

police sergeant, and Mother was a nurse. Both 

parents had attended Catholic school and wanted to 

provide their sons with a similar education. They 

enrolled D.G. and Brother at St. Jerome’s School, the 

Archdiocese parochial school located within walking 

distance of their home.

D.G. began attending St. Jerome’s School in 

kindergarten. Physically, D.G. was small for his age. 

Despite this, D.G. was very active in school sports 

and he participated in many extra-curricular 

activities at St. Jerome’s, including serving as altar 

boy. Mother recalled that D.G. was an active and 

rambunctious young boy. D.G.’s classmate and 

fellow altar boy, [J.S.P.], remembered D.G. as a 

“happy kid [who] was always joking.”

When D.G. was in seventh and eighth grades 

at St. Jerome’s, however, some of his friends noticed 

a marked change in D.G.’s demeanor. According to 

[J.S.P.], D.G. became “real dark,” and secluded 

himself from everybody. Another friend and 

classmate, [R.B.], confirmed this change in D.G.’s 

personality, testifying that D.G. became a “loner” 

and “did not talk to too many people.” During this 

same time period, D.G. complained of testicular pain. 

D.G. was examined by a pediatrician and a urologist 

but the cause of the pain was never determined. 

According to Mother, around this time D.G.’s appetite 

diminished and he lost weight. Defense witnesses, 

including St. Jerome’s teachers, testified that they 

did not recall any change in D.G.’s behavior.

After graduating from St. Jerome’s, D.G. 

attended Archbishop Ryan High School where his 

behavior quickly spiraled out of control. D.G. 

became a heavy drug abuser and was expelled from 

Archbishop Ryan for possession of drugs and 

weapons. After his expulsion, D.G. attended the 
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International Christian High School where he became 

good friends with fellow student [L.H.]. Early in their 

friendship, D.G. and [L.H.] were socializing in D.G.’s 

basement when D.G. confided to [L.H.] that two 

priests and a teacher had sex with him when he was 

in the 5th and 6th grades. [L.H.] was stunned by 

this revelation, but D.G. did not want to discuss 

further details of the incident at that time.

[L.H.] testified that there was a teacher at the 

International Christian High School whom neither he

nor D.G. liked because the teacher was “really 

touchy, feely” and because of “weird vibes that came 

from him all the time, weird sexual-type vibes.” 

Shortly after the conversation in D.G.’s basement, 

D.G. and [L.H.] were in a classroom at school when 

the teacher exhibited what they deemed “creepy” 

behavior. On this occasion, D.G. again mentioned 

the prior sexual abuse to [L.H.].

D.G.’s high school years were a nightmare for 

D.G. and his parents. According to Mother, D.G. cut 

his wrists, drew images of a gun to his head, and 

wrote suicide notes. He obtained psychiatric help at 

an in-patient psychiatric facility, but the treatment 

did not help and “things continued to get worse and 

worse.” D.G.’s drug addiction worsened as he 

continued to use drugs including marijuana, 

Percocet, Oxycontin, LSD, and ultimately became a 

“full blown heroin addict.” Over the years, D.G. was 

treated at over twenty drug rehabilitation clinics. 

During this same time period D.G. was arrested 

several times for offenses including retail theft and 

possession of drug paraphernalia. D.G.’s most 

recent arrest for possession of heroin occurred in 

November 2011.

D.G.’s parents could not understand the 

complete change in their son’s behavior and 

personality and became concerned that there were 

serious issues at the root of the problem. Mother 

and Father pleaded with D.G. to open up to them but 

D.G. refused. When D.G. was eighteen or nineteen 

years old, however, he suddenly confessed to his 
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parents that a priest had sexually abused him. After 

that revelation, D.G. immediately “shut down” again 

and refused to discuss it further with his parents. It 

was apparent to Mother and Father that D.G. was 

not ready or willing to reveal his entire story. Out of 

concern for D.G.’s fragile and agitated state, and 

fearing that he would disappear and overdose on 

drugs, Mother and Father decided not to report this 

revelation to the police.

The underlying issues driving D.G.’s selfdestructive behavior finally began to emerge in detail 

in January 2009, when D.G. was approximately 20 

years old. While undergoing treatment for his heroin 

addiction at a drug rehabilitation facility called SOAR, 

D.G. broke down during a group therapy session and 

revealed to his drug counselor the fact that he had 

been sexually abused while a young student at St. 

Jerome’s. On January 30, 2009, with the 

encouragement of his drug treatment counselor, 

D.G. called the Philadelphia Archdiocese hotline to 

officially report the abuse. That day, D.G. spoke 

with Louise Hagner, the victim assistance coordinator 

for the Archdiocese. Hagner’s duties included 

receiving reports from victims alleging sexual abuse 

and working to begin providing services to the 

victims.

D.G.’s initial phone call to the Archdiocese 

hotline ultimately led to investigations by the 

Philadelphia District Attorney’s Office and Grand 

Jury. These investigations brought to light the 

details of the sexual abuse of D.G. at the hands of 

Appellant, a lay teacher at St. Jerome’s, and two St. 

Jerome’s priests, Charles Engelhardt and Edward 

Avery. All three men were indicted and warrants 

were issued for their arrests.

Appellant had agreed to surrender himself to 

police immediately following the issuance of his 

arrest warrant. When Appellant failed to surrender 

himself to authorities as planned, Police Detective 

Drew Snyder and other members of law enforcement 

went to Appellant’s apartment to apprehend him. 
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Detective Snyder found the Appellant in his home 

under the influence of what was described as 

sleeping pills. During a search of Appellant’s 

apartment, no prescription bottle or other evidence 

was found to indicate what type of pills Appellant 

had taken. However, Detective Snyder found an 

envelope addressed to Appellant’s parents that 

contained a letter, a cashier’s check, and cash. This 

letter was determined to be a suicide note in which 

Appellant apologized to his parents for the “burden 

[his] situation” had caused. The letter also described 

the location of Appellant’s various assets and 

personal effects. An ambulance transported 

Appellant to the hospital for medical treatment and 

observation. After a few hours of observation in the 

hospital’s emergency department, Appellant was 

released into police custody.

D.G.’s accounts of the sexual abuse committed 

by Appellant and the priests varied at different 

stages of the investigations. A large portion of the 

jury trial consisted of the defense presenting 

witnesses and evidence highlighting the 

inconsistencies and generally attacking D.G.’s 

credibility. The prosecution provided evidence and 

witnesses to account for the inconsistencies and 

corroborate D.G.’s allegations. The jury, as factfinders [sic], ultimately made a credibility 

determination in favor of D.G. and found Appellant 

guilty. The following description of Appellant’s 

sexual abuse of D.G. reflects D.G.’s consistent sworn 

testimony before the Grand Jury and during the jury 

trial.

One afternoon during the spring of his 6th 

grade year, D.G. was serving school detention. 

Appellant was the detention supervisor that day and 

offered to give D.G. a ride home. D.G. got into the 

car with Appellant and told him where he lived. 

Appellant, however, drove in the opposite direction 

to a secluded parking lot in Pennypack Park in 

northeast Philadelphia. Appellant parked, and D.G. 

recalled that they “sat there and [Appellant] talked 

to [D.G.] for a minute” and asked if “[he] ‘messed’ 
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with girls.” Appellant urged D.G. into the back seat 

of the car and Appellant joined him. Once in the 

backseat, Appellant started to rub D.G.’s back and 

undress him. They both began to caress each 

other’s legs and genitals, and D.G. testified that 

Appellant had D.G. “give [him] a hand job.” 

Appellant next had D.G. perform oral sex on him and 

then attempted to have anal sex with D.G. D.G. 

screamed and struggled when Appellant attempted 

to have anal sex, at which point Appellant had D.G. 

continue to perform oral sex on him instead. 

Appellant ultimately ejaculated on the floor and 

demanded that D.G. get dressed, get out of the car, 

and walk home. No other incidents of sexual abuse 

occurred between Appellant and D.G. beyond this 

one incident.

Trial Court Opinion, 12/17/13, at 2-6 (internal citations and footnotes 

omitted).

On April 12, 2011, the Commonwealth filed an information, charging 

Appellant with the above-mentioned offenses, as well as one count each of 

aggravated indecent assault and criminal conspiracy.2 On January 14, 2013, 

Appellant proceeded to a lengthy, joint jury trial with Charles Englehardt.3 

At the conclusion of which, on January 30, 2013, the jury found Appellant 

guilty of one count each of rape of a child, IDSI, EWOC, corruption of 

minors, and indecent assault. The aggravated indecent assault charge was 

____________________________________________

2 18 Pa.C.S.A. §§ 3125(a)(7) and 903, respectively.

3 Engelhardt’s appeal is currently pending before this Court at 2040 EDA 

2013. As discussed infra, Avery pled guilty to certain charges in exchange 

for a lighter sentence. Appellant agreed to be tried jointly with Engelhardt. 

Commonwealth’s Brief at 5 n.2.
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nolle prossed, and the criminal conspiracy charge was quashed. On June 12, 

2013, the trial court imposed an aggregate sentence of eight to 16 years’ 

imprisonment, followed by five years’ probation.4 On June 19, 2013, 

Appellant filed a timely motion for modification of sentence, which the trial 

court denied without a hearing on July 9, 2013. On July 11, 2013, Appellant 

filed a timely notice of appeal.5

On appeal, Appellant raises the following six issues for our review.

I. Did the trial court abuse its discretion in 

allowing the Commonwealth to present 

evidence of Appellant’s inappropriate behavior 

with other school children?

II. Did the trial court abuse its discretion in 

allowing the jury to hear a doctor testify that 

the victim’s testicular pain was consistent with 

sexual abuse?

III. Did the [trial] court abuse its discretion in 

refusing to grant relief to [] Appellant from 

claims of prosecutorial misconduct in the 

[Commonwealth]’s closing speech to the jury?

IV. Did the trial court abuse its discretion in 

allowing the [Commonwealth] to cross-

____________________________________________

4 Specifically, the trial court sentenced Appellant to eight to 16 years’ 

imprisonment for rape of a child, eight to 16 years’ imprisonment for IDSI, 

three-and-one-half to seven years’ imprisonment for EWOC, five years’ 

probation for corruption of minors, and five years’ probation for indecent 

assault. The terms of imprisonment were to run concurrently to each other. 

The two probationary terms were to run concurrently to each other, but 

consecutive to the aggregate term of imprisonment.

5 Appellant and the trial court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.
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examine Father Edward Avery with references 

to other student victims in order to paint Avery 

as a serial child offender and overcome Avery’s 

denial of guilt as to D.G.?

V. Did the [trial] court abuse its discretion in 

imposing a sentence of 8 to 16 [years’] 

imprisonment upon Appellant?

VI. Should Appellant’s motion for remand to [the 

trial] court based upon newly discovered 

evidence be granted?

Appellant’s Brief at 3. In Appellant’s supplemental brief, he raises the 

following additional issue.6

[Whether this] Court should remand this matter to 

the [trial court] to allow an evidentiary hearing 

because the prosecution denied him the due process 

of law to which [] Appellant was entitled under the 

federal and state constitutions by reason of the 

Commonwealth’s failure to inform his trial counsel 

that Judy Cruz-Ransom, whom we now know (from 

her deposition) had been interviewed by the 

prosecutors prior to the criminal trial, had provided 

information which was material and favorable to the 

defense, to wit, that the testimony provided by social 

worker Louise Hagner regarding her interview with 

complainant D.G. on January 30, 2009 was 

corroborated and confirmed by another witness, i.e., 

Judy Cruz-Ransom[?]

Appellant’s Supplemental Brief at 4-5. Appellant’s first, second, and fourth 

issues pertain to the trial court’s evidentiary rulings during the trial. We 

____________________________________________

6 On July 29, 2014, this Court accepted Appellant’s “Application ... to Amend 

Brief and Reproduced Record for Appellant” as a supplemental brief. 

Superior Court Order, 7/29/14, at 1.
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begin by noting our well-settled standard of review regarding evidentiary 

issues. 

The admissibility of evidence is at the discretion of 

the trial court and only a showing of an abuse of that 

discretion, and resulting prejudice, constitutes 

reversible error. An abuse of discretion is not merely 

an error of judgment, but is rather the overriding or 

misapplication of the law, or the exercise of 

judgment that is manifestly unreasonable, or the 

result of bias, prejudice, ill-will or partiality, as 

shown by the evidence of record. Furthermore, if in 

reaching a conclusion the trial court over-rides or 

misapplies the law, discretion is then abused and it is

the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa. Super. 2013) (en 

banc) (internal quotation marks and citations omitted), appeal denied, 83 

A.3d 167 (Pa. 2013).

In his first issue, Appellant avers that the trial court abused its 

discretion when it admitted evidence that “Appellant had engaged in 

inappropriate behavior with other school children at the different schools 

where he was a parochial school teacher.” Appellant’s Brief at 11. The 

Commonwealth counters that said evidence became admissible when 

Appellant “opened the door” by “put[ting] the issues of his relationship with 

... other children and his reasons for leaving St. Jerome’s at issue[.]” 

Commonwealth’s Brief at 13.

Pennsylvania Rule of Evidence 404(b) governs admissibility of 

evidence of prior bad acts.
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Generally, evidence of prior bad acts or 

unrelated criminal activity is inadmissible to 

show that a defendant acted in conformity with 

those past acts or to show criminal propensity. 

Pa.R.E. 404(b)(1). However, evidence of prior 

bad acts may be admissible when offered to 

prove some other relevant fact, such as 

motive, opportunity, intent, preparation, plan, 

knowledge, identity, and absence of mistake or 

accident. [Id. at] 404(b)(2). In determining 

whether evidence of other prior bad acts is 

admissible, the trial court is obliged to balance 

the probative value of such evidence against 

its prejudicial impact. Commonwealth v. 

Powell, 956 A.2d 406, 419 (2008).

[Commonwealth v. Sherwood, 982 A.2d 483, 497 

(Pa. 2009), cert. denied, Sherwood v. 

Pennsylvania, 559 U.S. 1111 (2010)]. The 

Commonwealth must prove beyond a reasonable 

doubt that a defendant has committed the particular 

crime of which he is accused, and it may not strip 

him of the presumption of innocence by proving that 

he has committed other criminal acts. 

Commonwealth v. Stanley, 398 A.2d 631, 633 

([Pa.]1979); Commonwealth v. Constant, 925 

A.2d 810, 821 (Pa. Super. [2006]), appeal denied, 

932 A.2d 1285 (2007).

Commonwealth v. Ross, 57 A.3d 85, 98-99 (Pa. Super. 2012) (en banc) 

(parallel citations omitted), appeal denied, 72 A.3d 603 (Pa. 2013).

In this case, the Commonwealth filed a motion in limine seeking to 

admit evidence at trial concerning Appellant’s alleged inappropriate behavior 

towards other students at St. Jerome’s and other schools in which he was 

employed as a teacher. The trial court denied the Commonwealth’s motion, 

but with a caveat that said evidence would become admissible if Appellant 

opened the door. Specifically, the evidence at issue was the following.
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Several examples of Appellant’s inappropriate 

behavior were presented to rebut, and possibly 

explain why students may have harassed Appellant. 

[R.B], one of D.G.’s friends from St. Jerome’s 

testified that he recalled Appellant giving girls back 

rubs and snapping one girl’s bra straps. The parent 

of a student at Nazareth Academy, where Appellant 

previously taught, testified to being very 

uncomfortable and prohibiting her son from 

associating with Appellant after Appellant invited her 

son and his friends into his home. The parent of a 

student at Saint Michael’s School in Levittown, 

Pennsylvania, where Appellant also previously 

taught, testified to observing Appellant allowing 

female students to touch his belt buckle and tie and 

taking pictures of female students in the recess yard.

Trial Court Opinion, 12/17/13, at 8 (citations omitted).

At trial, Appellant gave the following opening statement to the jury.

We will present witnesses who will testify as to the 

reputation of both of these [d]efendants and those 

reputation witnesses will say that they have good 

reputations, excellent reputations for being peaceful 

and law-abiding people.

...

Now the [Commonwealth] may suggest that 

[Appellant] left Saint Jerome’s because he had been 

involved in some nasty behavior with [D.G.] but no 

allegation was made then. No allegation was made 

in 2009.

Why did he leave? He left because the kids were 

bullying him. He couldn’t take it anymore. His mom 

bought a house in the neighborhood so he wouldn’t 

have to drive because he did have a car and we will 

show you the car and he has a license. He can drive 

but it is not too good because of his vision. He is 

legally blind in one eye. The other eye is severely 

afflicted.
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So they got him a house and he moves into the 

house and in a space of three or four months, he 

can’t stay there anymore. Why? Because the kids 

from Saint Jerome’s come to his house at night and 

throw rocks at his house.

He sees a job advertised at the end of the school 

year in another Catholic school and he leaves, not 

because he is guilty of a crime, no crime has been 

alleged, and is this the kind of guy who would do the 

things that [D.G.] alleges?

N.T., 1/14/13, at 113, 119-121. Appellant also presented his mother as a 

witness in his own defense, who testified, consistent with Appellant’s 

opening statement, that he left St. Jerome’s due to kids throwing rocks at 

his home and making him feel uncomfortable. N.T., 1/22/13, at 108, 113.

The trial court concluded that the Commonwealth’s evidence regarding 

Appellant’s alleged inappropriate behavior with other students became 

relevant based on the following.

During his opening arguments, and throughout 

the trial, Appellant’s attorney presented Appellant as 

a hapless and non-violent victim of aggressive 

students. For example, Appellant’s mother testified 

that Appellant told her that the children were 

harassing him and throwing rocks at his home. 

However, portraying Appellant as a victim was only 

part of the picture as it failed to also show how 

Appellant’s inappropriate and bizarre behavior 

towards the young students may have precipitated 

this unwelcome attention from the students. 

Appellant attempted to show that he was victimized 

by students, but the evidence presented by the 

Commonwealth demonstrates that Appellant 

victimized the students. Such victimization is clearly 

a pertinent trait considering the nature of the 

charges against Appellant of victimizing and abusing 

D.G. in this case.
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...

It is also important to note that [the trial 

c]ourt originally granted Appellant’s pretrial motion 

in limine to exclude the [] evidence of Appellant’s 

inappropriate behavior with other students and 

parents’ concerns. However, once Appellant opened 

the door by presenting Appellant’s character as the 

victim of bullying and ostracism, and in fact made it 

one of the showpieces of his defense, this Court 

determined that Appellant’s strange behavior with 

other young students was relevant and admissible as 

rebuttal evidence by the Commonwealth.

Trial Court Opinion, 12/17/13, at 7-8 (internal citations omitted; emphasis in 

original).

After careful review of the certified record, we conclude the trial court 

did not abuse its discretion. As noted by the trial court, Appellant directly 

put his relationship with students at issue from the very beginning of the 

trial. The Commonwealth was permitted to rebut Appellant’s evidence, at a 

minimum, to give the jury a possible explanation for the harassment he had 

received from other students. See, e.g., Commonwealth v. Constant, 

925 A.2d 810, 819-820 (Pa. Super. 2007) (evidence of prior confrontation 

with officer admissible to rebut defendant’s theory that subsequent shooting 

was accidental), overruled on other grounds, Commonwealth v. Minnis, 

83 A.3d 1047, 1053 (Pa. Super. 2014) (en banc)

7

; Commonwealth v. 

____________________________________________

7 We note Constant has since received federal habeas relief in the Western 

District of Pennsylvania on grounds unrelated to the Rule 404(b) issue 

(Footnote Continued Next Page)
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Days, 784 A.2d 817, 821 (Pa. Super. 2001) (evidence of prior conviction 

properly admitted to rebut defendant’s evidence that he was a non-violent 

person).

Although Appellant avers that the Commonwealth’s evidence was 

inadmissible because he did not take the stand at trial, this Court has not 

found such a distinction meaningful in the past. See Commonwealth v. 

DuPont, 730 A.2d 970, 980-981 (Pa. Super. 1999) (evidence of defendant’s 

prior bad acts admissible to rebut defense expert’s testimony); 

Commonwealth v. Gelber, 594 A.2d 672, 679-680 (Pa. Super. 1991) 

(evidence of prior bad acts admissible to rebut claim of self-defense in 

defendant’s written confession), appeal denied, 605 A.2d 332 (Pa. 1992). 

To the extent Appellant argues that the Commonwealth’s evidence 

should not have been admitted under Rule 403 because its prejudicial effect 

outweighed its probative value, we reject this argument as well. Generally, 

Rule 403 will exclude otherwise admissible evidence where the “probative 

value is outweighed by a danger of one or more of the following: unfair 

prejudice, confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence.” Pa.R.E. 403.

In the case sub judice, as noted above, Appellant first introduced 

evidence and argued to the jury that he left St. Jerome’s due to the students 

(Footnote Continued) _______________________

discussed in this Court’s opinion. Constant v. Pa. Dep’t of Corr., 912 F. 

Supp. 2d 279, 308 (W.D. Pa. 2012).
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vandalizing his home and harassing him. The Commonwealth’s evidence to 

rebut Appellant’s theory was highly relevant. Based on these considerations, 

we conclude Appellant is not entitled to relief on his first issue. See 

Fischere, supra.

In his second issue on appeal, Appellant avers that the trial court 

abused its discretion when it permitted Dr. Gerald Margiotti, D.G.’s 

pediatrician, to testify that D.G.’s complaint of testicular pain was consistent 

with sexual abuse. Appellant’s Brief at 5. The Commonwealth makes two 

arguments in response. First, the Commonwealth urges us to summarily 

reject Appellant’s arguments, as said evidence was only admitted against 

Engelhardt, not Appellant. Commonwealth’s Brief at 18. Second, even if 

this Court were to consider Appellant’s claim, the trial court did not abuse its 

discretion. Id.

Our Supreme Court has held that a defendant cannot complain about 

evidence admitted only against a co-defendant.

Pennsylvania has long permitted the limited 

admission of evidence only as to one party or for one 

purpose. See Pa.R.E. 105 (“When evidence which is 

admissible as to one party or for one purpose but not 

admissible as to another party or for another 

purpose is admitted, the court upon request shall, or 

on its own initiative may, restrict the evidence to its 

proper scope and instruct the jury accordingly.”); 

Commonwealth v. Updegrove, 198 A.2d 534, 537 

([Pa.]1964) (evidence that “is admissible for one 

purpose ... is not inadmissible because it does not 

satisfy the rules applicable to some other capacity or 

even because the jury might consider it in the latter 

capacity”) (citation omitted); Commonwealth v. 
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Wright, 323 A.2d 349, 351-52 ([Pa. Super. 1974) 

(“Evidence which is admissible for one purpose does 

not become inadmissible merely because it would be 

inadmissible if offered for another purpose.”) 

(citation omitted). In fact, it is “common” in joint 

trials that “evidence is admissible against one codefendant but inadmissible against another.” 

Commonwealth v. Travers, 768 A.2d 845, 847 

([Pa.] 2001). See also Commonwealth v. 

Patterson, 546 A.2d 596, 601 ([Pa.] 1988)

(possible prejudicial effect of introduction of evidence 

against only one of two defendants in joint trial was 

no “more harmful than the prejudicial effect ... 

habitually tolerate[d] in joint trials where evidence is 

introduced against only one of the defendants”). A 

party generally cannot vicariously litigate the claims 

of another party.

Commonwealth v. McCrae, 832 A.2d 1026, 1034 (Pa. 2003) (parallel 

citations omitted), cert. denied, McCrae v. Pennsylvania, 543 U.S. 822 

(2004).

In this case, Dr. Margiotti testified that D.G. complained of testicular 

pain in 1999. N.T., 1/22/13, at 39-40. This was one year before D.G. 

suffered abuse from Appellant, as D.G. testified that the incident with 

Appellant took place in the Spring of 2000. N.T., 1/15/13, at 242. Dr. 

Margiotti’s testimony was only relative to incidents involving Engelhardt. 

Appellant is not permitted to argue that the trial court abused its discretion 

in admitting testimony against Engelhardt. See Commonwealth v. Bond, 

652 A.2d 308, 314 (Pa. 1995) (summarily rejecting the appellant’s argument 

that “the codefendant’s mother testified that her son had called her from jail 

and said ‘Mom, they arrested me for another murder[]’” prejudiced him 
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where our Supreme Court held “[a]ny prejudice arising from the testimony 

of the co[-]defendant’s mother could only attach to the co[-]defendant, not 

appellant[]”). Based on these considerations, we conclude Appellant is not 

entitled to relief on this issue. See McCrae, supra.

In his fourth issue, Appellant avers that the trial court abused its 

discretion when it permitted the Commonwealth to cross-examine Edward 

Avery about other boys Avery had allegedly molested. Appellant’s Brief at 

39-40. The Commonwealth counters that the evidence was admissible to 

impeach Avery’s credibility and even if it was improper, Appellant did not 

suffer any prejudice as a result. Commonwealth’s Brief at 37.

At trial, the Commonwealth called Avery during its case-in-chief. 

Avery previously pled guilty to IDSI and criminal conspiracy and was 

sentenced to two-and-one-half to five years’ imprisonment. N.T., 1/17/13, 

at 140-141. Relevant to this appeal, during its direct examination, the 

Commonwealth read into the record the recitation of the facts from Avery’s 

guilty plea hearing.8 Specifically, the factual basis for Avery’s guilty plea to 

IDSI was that “sometime during the spring of 1999, [Avery] was 57 years 

old at the time. While he was serving as a priest at Saint Jerome’s Parish, 

he engaged in oral sexual intercourse with 10-year-old [D.G.]” Id. at 156-

157. Avery acknowledged he knew those were the facts to which he pled 

____________________________________________

8 Appellant did not object to the relevance of this testimony when Avery took 

the stand at trial, nor does Appellant raise such a challenge on appeal.
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guilty. Id. at 157. However, during questioning by the Commonwealth at 

trial, Avery asserted his innocence, despite his guilty plea, and stated that 

“[he] had no contact whatever [sic] with [D.G.]” Id. at 161. Avery also 

testified that he only pled guilty to get a better sentence. Id. at 160. Avery 

repeated these assertions on cross-examination. Id. at 177, 180-181. On 

redirect examination, the Commonwealth questioned Avery about six other 

complainants, R.F., R.C., H.A., M.M., G.F., and S.L., all of whom had made 

claims of sexual abuse against Father Avery. Id. at 208-209. Avery denied 

these allegations. Id. at 210. It is this testimony that Appellant objects to, 

arguing that it was impermissible under Rule 404 and unfairly bolstered 

D.G.’s credibility. Appellant’s Brief at 40.

However, before we may address the merits of this claim, we must 

first ascertain whether Appellant has preserved it for our review. It is 

axiomatic that “[i]ssues not raised in the lower court are waived and cannot 

be raised for the first time on appeal.” Pa.R.A.P. 302(a). In addition, 

Pennsylvania Rule of Evidence 103 permits a party to challenge the 

admission of evidence if the party timely objects and “states the specific 

ground, unless it was apparent from the context[.]” Pa.R.E. 103(a)(1)(B). 

This Court has consistently held that “[i]f counsel states the grounds for an 

objection, then all other unspecified grounds are waived and cannot be 

raised for the first time on appeal.” Commonwealth v. Bedford, 50 A.3d 
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707, 713 (Pa. Super. 2012) (en banc) (citations omitted), appeal denied, 57 

A.3d 65 (Pa. 2012).

In the case sub judice, Appellant did not object on the basis of Rule 

404, or improper bolstering grounds at trial. Rather, the only objection that 

was made was that the question pertaining to R.C. “was outside the scope of 

everything.” N.T., 1/17/13, 208. Although the trial court responded that 

“[i]t is absolutely proper impeachment at this time[,]” Appellant did not note 

any additional basis for his objection, despite having the opportunity to do 

so. Id. As Appellant may not raise a Rule 404 argument for the first time 

on appeal, we deem this issue waived. See Bedford, supra.

In his third issue, Appellant avers that the trial court abused its 

discretion when it denied his request for a mistrial after he objected to two 

instances in the Commonwealth’s summation that he believes amounted to 

prosecutorial misconduct. Appellant’s Brief at 25. Specifically, Appellant 

alleges the Commonwealth made an improper remark when it implied that 

there were more charges to come against Engelhardt. Id. at 32. Appellant 

also avers the Commonwealth misstated that D.G. was absent for three-andone-half days from school during the fourth quarter of the school year in 

2000. Id. at 25. Appellant argues this was critical to defense strategy 

because Appellant “attempted to show that such a dramatic event was not 

likely to have occurred since [D.G.]’s report card for that time period showed 
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[D.G.] had not missed a single day of school during that reporting period.” 

Id. 

Our standard of review for a claim of 

prosecutorial misconduct is limited to whether the 

trial court abused its discretion. In considering this 

claim, our attention is focused on whether the 

defendant was deprived of a fair trial, not a perfect 

one. Not every inappropriate remark by a 

prosecutor constitutes reversible error. A 

prosecutor’s statements to a jury do not occur in a 

vacuum, and we must view them in context. Even if 

the prosecutor’s arguments are improper, they 

generally will not form the basis for a new trial 

unless the comments unavoidably prejudiced the 

jury and prevented a true verdict.

Bedford, supra at 715-716.

First, as to the Commonwealth’s reference that no other accusations 

had been made against Engelhardt “yet,” the Commonwealth made the 

following statements to the jury during its summation.

[Engelhardt’s c]ounsel told you Engelhardt’s picture 

was everywhere. You heard him choose his words 

carefully, not one child, not one student has come 

forward. He picked his words carefully. Sometimes 

the subtle is more powerful than the obvious. What 

he also didn’t tell you was no child, no student has 

come forward yet. No child, no student has had the 

courage that [D.G.] has because what he did takes 

some guts[.]

N.T., 1/25/13, at 142.

In this case, it is not disputed that this portion of the Commonwealth’s 

closing argument was directed at Engelhardt. As noted above, Appellant 

cannot vicariously litigate claims of another party. See McCrae, supra. 
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Although Appellant “joined” in Engelhardt’s motion for a mistrial on this 

issue, it does not alter the fact that Appellant cannot be prejudiced by 

remarks that were directed at Engelhardt and not at him, when they did not 

implicate Appellant in any way. See id.; Bond, supra.

As to D.G.’s absences, in its summation the Commonwealth stated 

that D.G. was absent from school for three-and-one-half days during the 

fourth quarter of the 1999-2000 school year. N.T., 1/25/13, at 90, 122, 

125-126. The Commonwealth acknowledges that this is not correct. See 

Commonwealth’s Brief at 40 (stating, “the prosecutor was mistaken as to 

which quarter of the 1999-2000 school year included the victim’s absences 

from school[]”). However, the Commonwealth also argues that Appellant is 

not entitled to a new trial as he was not prejudiced by this mistake of fact in 

the Commonwealth’s closing argument. Id.

Without evidence that the Commonwealth’s misstatement was 

intentional, Appellant’s argument cannot succeed. See, e.g., 

Commonwealth v. Simmons, 662 A.2d 621, 639 (Pa. 1995) (concluding a 

new trial was not warranted where, “a review of the record does not show 

that the prosecutor’s paraphrasing or misquotation of [a witness]’s 

testimony was deliberate[]”) (citation omitted), cert. denied, Simmons v. 

Pennsylvania, 516 U.S. 1128 (1996); Commonwealth v. Mollett, 5 A.3d 

291, 311 (Pa. Super. 2010) (stating, “[a] prosecutor’s declaration[s] during 

an opening or closing statement constitutes reversible error only if the 
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prosecutor deliberately attempts to destroy the objectivity of the jury[]”) 

(emphases added), appeal denied, 14 A.3d 826 (Pa. 2011).

In addition, the trial court also carefully instructed the jury regarding 

closing arguments as follows.

Please keep in mind ... that you are not bound by 

[counsels’] recollection of the evidence nor by their 

perspective of what the evidence shows. It is your 

recollection of the evidence and your recollection 

alone that must guide your deliberations.

...

If, in my instructions to you, I refer to some 

particular evidence, it is your recollection of that 

evidence and yours alone that governs. You are not 

bound by recollection of the facts nor by the 

recollection of Counsel in their arguments to you nor 

are you to conclude that any evidence which I call to 

your attention or which Counsel has called to your 

attention is the only evidence which you should 

consider. It is your responsibility to consider all of 

the evidence that you end up thinking is relevant in 

deliberating upon your verdict.

N.T., 1/25/13, at 2-3, 160-161.

It is axiomatic that “[t]he jury is presumed to follow the [trial] court’s 

instructions.” Commonwealth v. Roney, 79 A.3d 595, 640 (Pa. 2013) 

(citation omitted), cert. denied, Roney v. Pennsylvania, 135 S. Ct. 56 

(2014). Furthermore, our Supreme Court has held that courts may deem a 

prosecutorial misstatement cured by the trial court instructing the jury that 

arguments of counsel are not evidence as it did here. Commonwealth v. 

Smith, 995 A.2d 1143, 1164 (Pa. 2010) (citation omitted), cert. denied, 
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Smith v. Pennsylvania, 131 S. Ct. 518 (2010). As the trial court gave 

such an instruction in this case, we conclude the trial court did not abuse its 

discretion in this instance. See Bedford, supra.

In his fifth issue, Appellant avers that the trial court imposed a 

sentence which is “excessive and unreasonable[.]” Appellant’s Brief at 43. 

Specifically, Appellant avers that the trial court’s sentence was especially 

unreasonable given that the trial court imposed a sentence that was above 

even the aggravated range of the sentencing guidelines. Id.

At the outset, we note that this issue on appeal pertains to the 

discretionary aspects of his sentence. It is axiomatic that in this 

Commonwealth “[t]here is no absolute right to appeal when challenging the 

discretionary aspect of a sentence.” Commonwealth v. Tobin, 89 A.3d 

663, 666 (Pa. Super. 2014) (citation omitted). When an appellant forwards 

an argument pertaining to the discretionary aspects of the sentence, this 

Court considers such an argument to be a petition for permission to appeal. 

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014) 

(en banc) (citation omitted), appeal denied, 104 A.3d 1 (Pa. 2014). “[A]n 

[a]ppeal is permitted only after this Court determines that there is a 

substantial question that the sentence was not appropriate under the 

sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042 (Pa. 

Super. 2013) (en banc) (internal quotation marks and citation omitted).
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Prior to reaching the merits of a discretionary sentencing issue, this 

Court is required to conduct a four-part analysis to determine whether a 

petition for permission to appeal should be granted. Commonwealth v. 

Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014) (citation omitted), appeal 

denied, 99 A.3d 925 (Pa. 2014). Specifically, we must determine the 

following.

(1) [W]hether appellant has filed a timely notice of 

appeal, Pa.R.A.P. 902, 903; (2) whether the issue 

was properly preserved at sentencing or in a motion 

to reconsider and modify sentence, Pa.R.Crim.P. 

[708]; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a 

substantial question that the sentence appealed from 

is not appropriate under the Sentencing Code, 42 

[Pa.C.S.A.] § 9781(b).

Id. 

In the case sub judice, we note that Appellant filed a timely notice of 

appeal. We further observe that Appellant has included a Rule 2119(f) 

statement in his brief. Appellant also filed a timely motion for 

reconsideration of sentence in the trial court. Therefore, we proceed to 

determine whether Appellant has raised a substantial question for our 

review.

“The determination of what constitutes a substantial question must be 

evaluated on a case-by-case basis.” See Commonwealth v. Edwards, 71 

A.3d 323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 

75 (Pa. 2013). “A substantial question exists only when the appellant 
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advances a colorable argument that the sentencing judge’s actions were 

either: (1) inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the sentencing 

process.” Id. (citations omitted). “Additionally, we cannot look beyond the 

statement of questions presented and the prefatory 2119(f) statement to 

determine whether a substantial question exists.” Commonwealth v. 

Provenzano, 50 A.3d 148, 154 (Pa. Super. 2012) (citation omitted).

In his Rule 2119(f) statement, Appellant argues “the sentencing court 

concentrated solely on the nature of the offense and disregarded mitigating 

and statutory factors[.]” Appellant’s Brief at 10. Appellant also argues that 

the sentence is unreasonable because it is outside the guidelines. Id. at 9. 

We have stated that a failure to consider the required sentencing factors 

under 42 Pa.C.S.A. § 9721(b) raises a substantial question. See, e.g.,

Commonwealth v. Coulverson, 34 A.3d 135, 143 (Pa. Super. 2011) 

(stating, “to the extent that [Appellant]’s claim impugns the trial court’s 

failure to offer specific reasons for the sentence that comport with the 

considerations required in section 9721(b) ... we conclude that it raises a 

substantial question of the court’s justification in extending standard range 

sentences to the statutory maximum[]”). In addition, this Court has 

concluded that a substantial question is presented for our review when a 

defendant complains of an excessive sentence that was above the 

guidelines. Commonwealth v. Griffin, 804 A.2d 1, 7 (Pa. Super. 2002) 
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(citation omitted), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 

Griffin v. Pennsylvania, 545 U.S. 1148 (2005). As a result, we grant 

Appellant’s petition for permission to appeal the discretionary aspects of his 

sentence, and we proceed to address the merits of his claims.

We begin by noting our well-settled standard of review.

Sentencing is a matter vested in the sound discretion 

of the sentencing judge, and a sentence will not be 

disturbed on appeal absent a manifest abuse of 

discretion. In this context, an abuse of discretion is 

not shown merely by an error in judgment. Rather, 

the appellant must establish, by reference to the 

record, that the sentencing court ignored or 

misapplied the law, exercised its judgment for 

reasons of partiality, prejudice, bias or ill will, or 

arrived at a manifestly unreasonable decision.

Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) 

(citations omitted), appeal denied, 105 A.3d 736 (Pa. 2014).

As noted above, Appellant argues that the trial court imposed an 

excessive sentence that exceeded even the aggravated range of the 

sentencing guidelines. Appellant’s Brief at 43. Appellant also argues that 

the trial court failed to give consideration to certain sentencing factors 

mandated by Section 9721(b) of the Sentencing Code. Id. at 45.

Section 9721(b) addresses the factors that a sentencing court must 

consider and provides, in relevant part, as follows.

§ 9721. Sentencing generally

...
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(b) General standards.--In selecting from the 

alternatives set forth in subsection (a), the court 

shall follow the general principle that the sentence 

imposed should call for confinement that is 

consistent with the protection of the public, the 

gravity of the offense as it relates to the impact on 

the life of the victim and on the community, and the 

rehabilitative needs of the defendant. The court 

shall also consider any guidelines for sentencing .... 

In every case in which the court imposes a sentence 

for a felony or misdemeanor ... the court shall make 

as a part of the record, and disclose in open court at 

the time of sentencing, a statement of the reason or 

reasons for the sentence imposed. In every case 

where the court imposes a sentence or resentence 

outside the guidelines adopted by the Pennsylvania 

Commission on Sentencing under sections 2154 ... 

the court shall provide a contemporaneous written 

statement of the reason or reasons for the deviation

from the guidelines to the commission, as 

established under section 2153(a)(14) (relating to 

powers and duties). Failure to comply shall be 

grounds for vacating the sentence for resentence 

and resentencing the defendant.

42 Pa.C.S.A. § 9721(b). We note that “a sentencing judge may satisfy [the] 

requirement of disclosure on the record of his reasons for imposition of a 

particular sentence without providing a detailed, highly technical statement.” 

Commonwealth v. Hunzer, 868 A.2d 498, 514 (Pa. Super. 2005) (citation 

omitted), appeal denied, 880 A.2d 1237 (Pa. 2005).

In this case, the trial court noted that for rape of a child and IDSI, the 

guidelines called for a standard range sentence at 54 to 60 months’ 

imprisonment, with the aggravated and the mitigated range being plus or 

minus 12 months. N.T., 6/12/13, at 26. For EWOC, corruption of minors 

and indecent assault, the guidelines standard guideline range was 
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restorative sanctions to nine months’ imprisonment, with the aggravated 

and mitigated range being plus or minus three months. Id. at 26-27.

The trial court gave the following reasons before imposing sentence. 

And it’s [the trial court’s] job to weigh the 

aggravating and mitigating factors for each of you in 

determining what would be an appropriate 

punishment. As far as mitigating factors, I do 

understand that [Appellant has] no prior record, no 

other arrests, [he has] been gainfully employed in 

[his life], no histories of violence, except as it relates 

to these convictions[.]

When [the trial court] take[s] into account the 

nature of these offenses and for the purposes of 

sentencing, it’s not just what’s good for [Appellant]. 

[The trial court has] other considerations, and those 

considerations include, in determining the purposes 

of sentencing, is punishment; what would be 

appropriate deterrents, rehabilitation.

And in weight the aggravating and mitigating 

factors and the aggravating factors are just, in and 

of itself, the nature of the offenses, it is [the trial 

court’s] determination that the standard range 

guidelines do not ... adequately address the serious 

nature of these offenses, the irreparable harm done 

to the victims and their families in this case, and nor 

would the standard guidelines do anything to 

adequately deter others from committing similar 

offenses.

...

We cannot allow adults in positions of trust, power 

and authority, with whom we entrust the care and 

well-being of our children, to abuse that trust and 

destroy lives without serious and meaningful 

consequences.

N.T., 6/12/13, at 96-98.
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Based on the trial court’s remarks at sentencing, the trial court did not 

solely rely on the seriousness of the offense as Appellant claims but rather, 

noted that it was the only aggravating factor it considered. See id. The 

trial court explicitly listed several mitigating factors it considered when 

arriving at what it believed to be an appropriate sentence. In our view, the 

trial court’s statement adequately complies with the dictates of Section 

9721(b). It does not follow that the trial court gave the mitigating factors 

described above “little or no consideration,” as Appellant claims, simply 

because the trial court concluded the seriousness of the offense warranted a 

higher sentence, outside the sentencing guidelines. Based on these 

considerations, we conclude the trial court did not abuse its discretion in 

sentencing. See Raven, supra; Hunzer, supra.

In his sixth issue, Appellant argues that this case should be remanded 

to the trial court for a hearing on a claim of after-discovered evidence. 

Appellant’s Brief at 47. Pennsylvania Rule of Criminal Procedure 720(C) 

provides that “[a] post-sentence motion for a new trial on the ground of 

after-discovered evidence must be filed in writing promptly after such 

discovery.” Pa.R.Crim.P. 720(C). In addition, the comment to Rule 720 

states that “after-discovered evidence discovered during the direct appeal 

process must be raised promptly during the direct appeal process, and 

should include a request for a remand to the trial judge[.]” Id. at cmt. We 
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note that in order to satisfy a claim of after-discovered evidence, a 

defendant must satisfy the following four-pronged test.

To obtain relief based on after-discovered evidence, 

appellant must demonstrate that the evidence: (1) 

could not have been obtained prior to the conclusion 

of the trial by the exercise of reasonable diligence; 

(2) is not merely corroborative or cumulative; (3) 

will not be used solely to impeach the credibility of a 

witness; and (4) would likely result in a different 

verdict if a new trial were granted.

Commonwealth v. Perrin, --- A.3d ---, 2015 WL 138963, at *2 (Pa. 

Super. 2015) (citation omitted).

In this case, Appellant highlights “copies of documents that have been 

discovered regarding medical and drug treatment records regarding D.G.” 

Appellant’s Brief at 48. These were discovered during the discovery phase of 

the civil case filed against Appellant. Id. The Commonwealth counters that 

the records disclosed in the criminal trial would not have been admissible, as 

they are statutorily privileged and would only have served as impeachment 

evidence. Commonwealth’s Brief at 51-52. 

Our Supreme Court has consistently reminded courts that claims of 

after-discovered evidence cannot succeed where the proffered evidence 

would only serve the purpose of impeaching the credibility of a trial witness.

Commonwealth v. Chamberlin, 30 A.3d 381, 414-415 (Pa. 2011), cert. 

denied, Chamberlain v. Pennsylvania, 132 S. Ct. 2337 (2012); 

Commonwealth v. Randolph, 873 A.2d 1277, 1283-1284 (Pa. 2005), cert. 

denied, Randolph v. Pennsylvania, 547 U.S. 1058 (2006). In addition, 
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our Supreme Court recently concluded that this rule applies regardless of the 

degree of impeachment the evidence would allegedly inflict.

We must reject as well [the defendant]’s suggestion 

the trial court erred in finding the third prong of the 

test was not met; he does so because of the degree 

of impeachment he anticipates he would inflict. Even 

if his impeachment would “destroy and obliterate” a 

witness, it is still impeachment, and the rule does 

not quantify the degree of impeachment beyond 

which the rule no longer applies.

Commonwealth v. Castro, 93 A.3d 818, 827 n.13 (Pa. 2014).

In the case sub judice, Appellant avers that D.G.’s records will serve to 

show that D.G.’s trial testimony “was part of a fantasy of sexual abuse and a 

pattern of false statements made by D.G., perhaps to excuse his acts of bad 

behavior and criminal misconduct, including selling illegal drugs[.]” 

Appellant’s Brief at 51. Appellant requests a new trial because a second jury 

“will more clearly understand that the testimony of [D.G.] in this case 

incriminating ... Appellant[] does not support a guilty verdict.” Id. 

Assuming, without deciding, that the aforementioned records would be 

generally admissible and not privileged, we conclude that Appellant’s own 

argument reveals that their sole purpose would be to impeach D.G.’s 

credibility. See id. Therefore, we further conclude that Appellant is not 

entitled to remand to the trial court for a hearing on his claim of afterdiscovered evidence. See Perrin, supra.
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In his seventh issue, Appellant avers that the Commonwealth 

committed a Brady9violation when it withheld that Judy Cruz-Ransom, an 

investigator with the Archdiocese of Philadelphia was interviewed by the 

Commonwealth and provided the Commonwealth with information that was 

favorable to Appellant. Appellant’s Supplemental Brief at 4. The 

Commonwealth counters that Cruz-Ransom was known to the defense, and 

therefore, the Commonwealth withholding her interview with police from the 

defense cannot amount to a Brady violation. Commonwealth’s Brief at 53.

“Under Brady, the State violates a defendant’s right to due process if 

it withholds evidence that is favorable to the defense and material to the 

defendant’s guilt or punishment.” Smith v. Cain, 132 S. Ct. 627, 630 

(2012) (citation omitted). “Thus, to establish a Brady violation, an 

appellant must prove three elements: (1) the evidence at issue is favorable 

to the accused, either because it is exculpatory or because it impeaches; (2) 

the evidence was suppressed by the prosecution, either willfully or 

inadvertently; and (3) prejudice ensued.” Commonwealth v. Weiss, 81 

A.3d 767, 783 (Pa. 2013) (citations omitted). The Supreme Court has held 

that evidence is material under Brady when “the likelihood of a different 

result is great enough to ‘undermine[ ] confidence in the outcome of the 

trial.’” Smith, supra, quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995).

____________________________________________

9 Brady v. Maryland, 373 U.S. 83 (1963).
J-A30017-14

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Pursuant to Brady and its progeny, the 

prosecutor has a duty to learn of all evidence that is 

favorable to the accused which is known by others 

acting on the government’s behalf in the case, 

including the police. Kyles[, supra at 437]. 

Pursuant to Kyles, “the prosecutor’s Brady

obligation clearly extends to exculpatory evidence in 

the files of police agencies of the same government 

bringing the prosecution.” Commonwealth v. 

Burke, 781 A.2d 1136, 1142 ([Pa.] 2001). 

Moreover, there is no Brady violation when the 

defense has equal access to the allegedly withheld 

evidence. See Commonwealth v. Spotz, 896 A.2d 

1191, 1248 ([Pa.] 2006) (“It is well established that 

no Brady violation occurs where the parties had 

equal access to the information or if the defendant 

knew or could have uncovered such evidence with 

reasonable diligence[]” (internal citation omitted)).

Id. (parallel citations omitted).

In this case, Appellant raises a Brady violation on the basis of the 

following evidence purportedly obtained by the Commonwealth from CruzRansom.

The Superior Court should remand this matter to the 

[trial court] to allow an evidentiary hearing because 

the [Commonwealth] denied him the due process of 

law to which the Appellant was entitled under the 

federal and state constitutions by reasons of the 

Commonwealth’s failure to inform his trial counsel 

that Judy Cruz-Ransom, whom we now know (from 

her deposition) had been interviewed by the 

[Commonwealth] prior to the criminal trial, had 

provided information which was material and 

favorable to the defense, to wit, that the testimony 

provided by social worker Louise Hagner regarding 

her interview with ... D.G. on January 30, 2009 was 

corroborated and confirmed by another witness, i.e., 

Judy Cruz-Ransom.
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(a) Ms. [Cruz-]Ransom testified at the 

deposition of April 9, 2014 at pages 11-

13 that she had spoken with [the 

Commonwealth], along with her own 

attorney ... prior to the criminal trial in

this case.

(b) In said deposition, Ms. [Cruz-]Ransom 

testified that she was present with Louise 

Hagner on January 30, 2009 when they 

interviewed ... D.G. regarding his 

allegations of sexual abuse while a 

student at St. Jerome’s Elementary 

School in Philadelphia. Her deposition 

testimony directly corroborated and 

supported the trial testimony of Louise 

Hagner to the effect that [D.G.]’s 

demeanor seemed normal, that [D.G.] 

was not actually crying and that [D.G.] 

did not appear in any way to be under 

the influence of drugs or alcohol at the 

time of the interview.

(c) Ms. [Cruz-]Ransom further testified at 

the deposition that [D.G.] had in fact 

directed her, as the person who was 

driving the automobile, to drive to the 

location at which Appellant ... allegedly 

assaulted [D.G.], to wit, a “dumpster” in 

front of an apartment building (not in 

Pennypack Park as was testified to at 

trial by [D.G.]). Ms. Ransom also 

recalled that [D.G.] stated that 

[Appellant] had “choked” D.G. “with a 

seatbelt”, a fact which [D.G.] also denied 

at the trial.

Appellant’s Supplemental Brief at 5-6. 

Assuming arguendo that the Commonwealth was required to disclose 

the above statements from Cruz-Ransom, we conclude Appellant has not 

established that said statements were material for the purposes of Brady. 
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Appellant’s supplemental brief on its face acknowledges that the bulk of 

Cruz-Ransom’s statements were merely cumulative evidence, as they would 

serve to corroborate Hagner’s testimony. See id. at 5. In addition, the 

statements would highlight more inconsistencies in D.G.’s accounts of the 

abuse, which were already well-established to the jury by defense counsel 

through Hagner’s testimony. See, e.g., N.T., 1/23/13, at 49, 56 (Hagner 

testifying that D.G. told her that Appellant’s incident of abuse took place “by 

a dumpster[]” and it “was not Pennypack Park[]”); Commonwealth v. 

Santiago, 654 A.2d 1062, 1082 (Pa. Super. 1994) (stating, “[s]ince 

cumulative evidence is not ‘material to either guilt or punishment,’ the 

unavailability of cumulative evidence does not deprive the defendant of due 

process[]”), quoting United States v. Sanchez, 917 F.2d 607, 618 (1st Cir. 

1990), cert. denied, Santiago v. Pennsylvania, 516 U.S. 995 (1995). 

Based on these considerations, we conclude Appellant’s due process rights 

were not violated in this case. See Smith, supra; Weiss, supra.

Based on the foregoing, we conclude all of Appellant’s issues are either 

waived or devoid of merit. Accordingly, the trial court’s June 12, 2013 

judgment of sentence is affirmed.

Judgment of sentence affirmed.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/24/2015