J-S61041-15

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,

 Appellee

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R.C.S.,

 Appellant

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IN THE SUPERIOR COURT OF

PENNSYLVANIA

 No. 33 MDA 2015

Appeal from the Judgment of Sentence Entered December 3, 2014,

in the Court of Common Pleas of Perry County,

Criminal Division, at No(s): CP-50-CR-0000349-2012

BEFORE: PANELLA, WECHT, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.: FILED NOVEMBER 20, 2015

R.C.S. (Appellant) appeals from the judgment of sentence imposed 

following his convictions for involuntary deviate sexual intercourse (IDSI) 

with a complainant who suffers a mental disability; aggravated indecent 

assault with a complainant who suffers a mental disability; statutory sexual 

assault of a person under the age of 16; endangering the welfare of 

children; corruption of minors; possession of a controlled substance with 

intent to deliver; and possession of drug paraphernalia. We affirm.

Appellant was arrested in August of 2012 and charged with the 

aforementioned offenses, related to allegations of ongoing sexual abuse of 

his minor daughter. During the execution of a search warrant on Appellant’s 

home, officers from the Penn Township police department photographed and 
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seized several sexual devices, including two vibrating dildos, a large plastic 

penis, and a penis ring. 

The matter proceeded to a jury trial. On May 29, 2014, Appellant 

made an oral motion to preclude the admission of the sexual devices. The 

trial court denied this request. The devices were admitted as evidence at 

trial over Appellant’s objection and displayed to the jury during the 

Commonwealth’s case-in-chief.

At the conclusion of trial, the jury convicted Appellant of the 

aforementioned charges. On December 3, 2014, the sentencing court, 

having determined that Appellant was not a sexually violent predator, 

imposed upon Appellant an aggregate sentence of 151⁄2 to 31 years of 

imprisonment. This timely-filed appeal followed. Both the trial court and 

Appellant complied with the requirements of Pa.R.A.P. 1925.

Appellant raises the following issue on appeal: “Did the trial court 

abuse its discretion by admitting various sex toys into the record, and 

permitting their publication to the jury, where the prejudicial impact of such 

evidence outweighed its probative value?” Appellant’s Brief at 4 (footnote 

omitted).

Our standard of review is well-settled.

In reviewing a trial court’s ruling on the admissibility of 

evidence, our standard of review is one of deference. Questions 

concerning the admissibility of evidence are within the sound 

discretion of the trial court ... [and] we will not reverse a trial 

court’s decision concerning admissibility of evidence absent an 
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abuse of the trial court’s discretion. 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. [I]f in reaching 

a conclusion the trial court over-rides [sic] or misapplies the law, 

discretion is then abused and it is the duty of the appellate court 

to correct the error.

Commonwealth v. Belknap, 105 A.3d 7, 9-10 (Pa. Super. 2014) (citations 

and quotations omitted).

On appeal, Appellant does not challenge the relevance of the sexual 

devices.1 Rather, Appellant contends that admission of the sexual devices 

was inflammatory and unduly prejudicial; thus, the trial court erred in failing 

to balance the prejudicial effect of the evidence against its probative value, 

and by failing to place its rationale in denying Appellant’s oral motion on the 

record. Appellant’s Brief at 9. Additionally, Appellant argues that the trial 

court erred in failing to consider the less prejudicial option of admitting 

photographs of the sexual devices in lieu of presenting the actual items to 

the jury. Id. at 10.

Pennsylvania Rule of Evidence 403 provides that “[t]he court may 

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

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

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

 

1

Indeed, prior to trial, defense counsel stipulated “that certain sexual toys 

were seized from the residence” while maintaining her belief that “the jury 

did not need to see them.” N.T., 5/29/2014, at 9.
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cumulative evidence.” The Comment to Rule 403 explains that “[u]nfair 

prejudice means a tendency to suggest decision on an improper basis or to 

divert the jury’s attention away from its duty of weighing the evidence 

impartially.”

Contrary to Appellant’s argument on appeal, there is no requirement 

that the trial court place on the record its analysis of the aforementioned 

balancing test. As this Court recently explained,

[an appellant] is entitled to no relief resulting from the trial 

court’s failure to articulate its balancing test on the record. We 

presume that trial courts know the law, and there is nothing in 

this record to suggest that this trial court did not understand its 

duty to weigh the evidence in accord with the Rules of Evidence. 

Such weighing and the general consideration of the admissibility 

of evidence is a discretionary ruling which trial courts routinely 

engage in mentally. There is no requirement that it record these 

mental deliberations on the record. We are satisfied from the 

trial court’s discussion of why it considered the [] evidence 

admissible that it understood the applicable criteria, and 

mentally engaged in the appropriate balancing test. Appellant’s 

argument that the trial court has to think out loud has no merit, 

and we reject it.

Commonwealth v. Hairston, 84 A.3d 657, 667 (Pa. 2014).

Moreover, a review of the record convinces us the trial court properly 

concluded that admission of the sexual devices to the jury did not create a 

danger of confusing the issues, misleading the jury, undue delay, wasting 

time, or needlessly presenting cumulative evidence. Appellant was charged 

with myriad crimes, including IDSI, which required the Commonwealth to 

prove as an element of the offense that Appellant engaged in deviate sexual 
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intercourse. The term “deviate sexual intercourse” includes “penetration, 

however slight, of the genitals or anus of another person with a foreign 

object for any purpose other than good faith medical, hygienic or law 

enforcement procedures.” 18 Pa.C.S. § 3101 (emphasis added). As the 

Commonwealth explained, “[d]uring her interview at the Children’s Resource 

Center [...] [the victim] testified as to specific sex toys that were used on 

her, those -- some of those items were seized and they’re corroborative 

evidence.” N.T., 5/29/2014, at 10. 

Finally, we discern no undue prejudice to Appellant. Although he 

contends that the decision to publish to the jury “grotesque, highly 

inflammatory sex toys” was designed to “[assail] the sensibilities of the jury, 

which was already contending with graphic and disturbing testimony fraught 

with credibility issues,” Appellant’s Brief at 11, we are cognizant that the rule 

providing for the exclusion of unfairly prejudicial, yet relevant, evidence does 

not require the court to “sanitize the trial to eliminate all unpleasant facts 

from the jury’s consideration where those facts are relevant to the issues at 

hand and form part of the history and natural development of the events 

and offenses for which the defendant is charged.” Commonwealth v. Page, 

965 A.2d 1212, 1220 (Pa. Super. 2009). Based on our review of the record, 

admission of the sexual devices did not have the tendency to suggest 

decision on an improper basis, nor did it divert the jury’s attention away 

from its duty of weighing the evidence impartially.
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Finally, we cannot conclude that it was an abuse of discretion to admit 

the sexual devices themselves, as opposed to photographs of those items. 

The record reflects that Appellant did not seek this alternative in his pre-trial 

motion. Nonetheless, as is the case with the admission of weapons or 

narcotics evidence, such evidence is clearly admissible where it can be 

shown that the evidence was used in the crime charged. See, e.g., 

Commonwealth v. Stokes, 78 A.3d 644, 654 (Pa. Super. 2013) 

(discussing generally the admissibility at trial of physical evidence directly 

connected to the crime charged). As outlined above, the Commonwealth met 

this burden, and the trial court determined that probative value of the 

evidence outweighed any prejudicial effect. Therefore, the Commonwealth 

was entitled to present the sexual devices to the jury.

For all of the foregoing reasons, we hold that Appellant is not entitled 

to relief. Thus, we affirm his judgment of sentence.
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Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/20/2015