J

- A12003

- 22

NON

- PRECEDENTIAL DECISION

- SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TIMOTHY QUINN RODEHEAVER, SR.

Appellant :

:

:

:

:

:

:

:

: IN THE SUPERIOR COURT OF

PENNSYLVANIA

No. 983 WDA 2021

Appeal from the Judgment of Sentence Entered June 2, 2021

In the Court of Common Pleas of Fayette County

Criminal Division at CP

- 26

- CR

- 0000405

- 2019

BEFORE: MURRAY, J., McCAFFERY, J., and COLINS, J. *

MEMORANDUM BY MURRAY, J.: FILED: MAY 20, 2022

Timothy Quinn Rodeheaver, Sr. (Appellant) appeals from the judgment

of sentence impos ed after a jury convict ed him , with respect to child/victim

(A.), of two counts each of involuntary deviate sexual intercourse with a chi ld

( IDSI

- C) , aggravated indecent assault

- complainant less than 13 years of

age, and indecent assault

- person less than 13 years of age; with respect to

two children (A. and M.), the jury found Appellant guilty of two counts of

corruption of minors

. 1 Upon review, w e affirm.

The trial court recount ed the underlying facts and procedural history as

follows :

_________________ __________ ______ ____ _______

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S.A. §§ 3123(b), 3125( a )(7), 3126( a )(7), and 6301( a )(1)(ii).J

- A12003

- 22

- 2

-

At trial, the Commonwealth presen ted the testimony from [ M. ]

, born [in 2005 ] , and [ A. ] , born [in 2007 .] [ M. ] testified [ Appellant ]

touched her breasts and vaginal area. This had been happening

to her for as long as she could remember. She testified that her

clothes were on when the tou ching occurred. She testified that

there was never a time when her clothes were off. In December

2019, she and her sister discussed [Appellant] touching them and

they then informed their parents.

[ A. ] testified that [Appellant] began touching her inapp ropriately

when she was seven or eight years of age. On two occasions, [ A. ]

testified that [Appellant] put his mouth on her vaginal area

, touching her with his tongue. Both children previously

participated in forensic interviews and the video of their in terviews

was played during the trial.

The Commonwealth also presented the testimony of []

Pennsylvania State Trooper Robert Wilson [Trooper Wilson]

. During his testimony, the prosecutor asked [ Trooper Wilson] if he

had the opportunity to speak with [ Appellant ] and [Trooper

Wilson] responded that he did not. The prosecutor then asked

[Trooper Wilson] if he attempted to speak with [ Appellant ]

. [Trooper Wilson] responded to the question by stating “I did. He

r eferred me to his attorney.” At that time, defense counsel

objected on the basis of [Appellant’s] Fifth Amendment right to

remain silent and his right to be represented by counsel. After

discussion, counsel requested a mistrial and this was denied by

the court. A curative instruction was included in the jury

instructions. [ Appellant ] presented character witnesses and then

testified himself. There was no questioning of [ Appellant ] by the

prosecution about his failure to respond to [Trooper Wilson’s]

req uest for an interview nor was it raised in either counsel’s

closing arguments.

After a jury trial on May 5

- 6

, 2021, [the jury convicted Appellant

of the above crim es]. After the verdict was entered, [Ap pellant ]

was sentenced to six (6) to (12) years ’ inc arceration. Thereafter,

[ Appellant ] filed a timely Post Sentence Motion and then an

Amended Post Sentence Motion. The [trial c]ourt denied

[ Appellant’s ] Post Sentence Motion.

Trial Court Opinion, 10/14/21, at 1

- 2 (unnumbered) (record citations

omitted)

.J

- A12003

- 22

- 3

-

Appellant timely appealed , and both A ppellant and the trial court have

complied with Pa.R.A.P. 1925. Appellant presents two questions for review :

I. Whether the Commonwealth presented insufficient evidence

of penetration, however slight, to sustain the co nvictions for

[IDSI

- C] and A ggravated I ndecent A ssault; thus warranting

the entry of the judgment of acquittal?

II. Whether the [trial c]ourt committed an abuse of discretion

in denying [Appellant’s] motion for mistrial based upon the

prosecuting officer’s testimony that [Appellant] did not give

a statement to police when contacted, but referred the

police to his attorney

, as same constituted a violation of

[Appellant’s] Fifth Amendment right to remain silent and

Sixth Amendment right to counsel; t hus warranting a new

trial?

Appellant’s Brief at 6 (reordered for disposition)

.

In his first issue, Appellant argues the evidence was insufficient to

support his convictions of IDSI

- C and aggravated indecent assault of a child

because the Commonwealth did not prove the penetration element of either

crime. Appellant’s Brief at 16

- 18. Appellant argues A.’s testimony that on

two occasions, Appellant “put his mouth on me” and his “tongue” touched her

“vagina ,” was in sufficient to demonstrate “any actual pene tration.” Id. at 17;

N.T., 5/5/21, at 35. We disagree.

Pertinently:

We review claims regarding the sufficiency of the evidence by

considering whether, viewing all the evidence admitted at trial in

the light most favorable to the verdict winner, there is sufficient

evidence to enable the fact

- finder to find every element of the

crime beyond a reasonable doubt. Further, a conviction may be

sustained wholly on circumstantial evidence, and the trier of fact

— while passing on the credibility of the witnesses a nd the weight of

the evidence

— is free to believe all, part, or none of the evidence.J

- A12003

- 22

- 4

-

In conducting this review, the appellate court may not weigh the

evidence and substitute its judgment for the fact

- finder.

Commonwealth v. Miller , 172 A.3d 632, 640 (Pa. Super. 2017) (citations

omitted).

A person is guilty of IDSI

- C “when the person engages in deviate sexual

intercourse with a complainant who is less than 13 years of age.” 18 Pa.C.S.A.

§ 3123(b). Deviate sexual intercourse is “[s] exual intercourse per o s or per

anus between human beings [.]” 18 Pa.C.S.A. § 3101.

A person is guilty of aggravated indecent assault of a child when the

person engages “in penetration, however slight, of the genitals or anus of a

complainant with a part of the person’s body f or any purpose other than good

faith medical, hygienic or law enforcement procedures[.]” 18 Pa.C.S.A. §

3125(b). This Court has determined “that the term ‘penetration, however

slight’ is not limited to penetration of the vagina; entrance in the labia is

sufficient.” Commonwealth v. Hawkins , 614 A.2d 1198, 1200 n.1 (Pa.

Super. 1992) (citations omitted).

Penetration may be proven by circumstantial evidence. See

Commonwealth v. Wall , 953 A.2d 581, 584 (Pa. Super. 2008). Further,

“the uncorroborated testim ony of the complaining witness is sufficient to

convict a defendant of sexual offenses.” Commonwealth v. Bishop , 742

A.2d 178, 189 (Pa. Super. 1999); see also Commonwealth v. Trimble , 615

A.2d 48, 50 (Pa. 1992) (testimony of child victim alone may support conviction

for sex offenses). Also, the Commonwealth is not required to present forensicJ

- A12003

- 22

- 5

-

evidence of penetration. See Commonwealth v. Gibson , 951 A.2d 1110,

1140 (Pa. 2008) (no constitutional requirement for police to conduct forensic

analysis of eviden ce).

Here, A. testified in response to the Commonwealth’s questions as

follows :

[ Commonwealth]: Okay. [A.], you testified about [Appellant]

touching you over the clothes, was there ever a time that he would

touch you without the clothes on?

[A.]: Once, like, twice.

[ Commonwealth]: What would he do during those two instances?

[A.]: Put his mouth on me.

[ Commonwealth]: What part of his mouth would touch what part

of your body?

[A.]: My vagina.

[ Commonwealth]: And can you explain in a little more detail how

that happened?

[A.]: It happened.

[ Commonwealth]: Okay. Did he

– what part of his mouth?

[A.]: Tongue.

[ Commonwealth]: And that was under your clothes?

[A.]: Yes.

N.T., 5/5/21, at 35.

The above testimony, if credited by t he jury, was sufficient to prove

penetration. See Commonwealth v. Ortiz , 457 A.2d 559, 561 (Pa. Super.J

- A12003

- 22

- 6

-

1983) (“entrance in the labia is sufficient” to constitute penetration). As the

evidence was sufficient for the jury to convict Appellant of IDSI

- C and

aggravated indecent assault, his first issue lacks merit.

In his second issue, Appellant claims the trial court erred in denying his

motion for a mistrial after Trooper Wilson testified Appellant “ referred the

police to his attorney when he att empted to speak with [him]. ” Appellant’s

Brief at 12 . Appellant argues:

By allowing the trial to continue, the jury was f ree to speculate or

infer guilt even with the cautionary instruction given as to why

[Appellant] would not at a minimum categorical ly and immediately

deny the horrible accusations against him if he was in fact not

guilty and as to why a not guilty person would already have

retained counsel

.

Id. at 15.

We review the denial of a motion for mistrial for an abuse of discretion.

Commonwealth v. Chamberlain

, 30 A.3d 381, 422 (Pa. 2011). We have

explained:

In criminal trials, declaration of a mistrial serves to eliminate the

negative effect wrought upon a defendant when p rejudicial

elements are injected into the case or otherwise discovered at

trial. A trial court may grant a mistrial 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.

It is also settled that a mistrial is not necessary where

cautionary instructions are adequate to overcome any

potential prejudice

.

Commonwealth v. Gilliam

, 249 A.3d 257, 274 (Pa. Super. 2021) (emphasis

added

, citations omitted )

, appeal denied

, 267 A.3d 1213 (Pa. 2021)

. CourtsJ

- A12003

- 22

- 7

-

“ must consider all surrounding circumstances before finding that curative

instructions were insufficient and the extreme remedy of a mistrial is

required.” Commonwealth v. Manley

, 985 A.2d 256, 266 (Pa. Super.

2009) (citation omitted).

This Court recently summariz ed cas e law pertaining to testimony

referencing a defendant’s silence. We stated:

In Commonwealth v. Adams

, 628 Pa. 600, 104 A.3d 511

(2014), our Supreme Court found harmless error where the

prosecutor elicited testimon y that referenced t he defendant’ s

post

- arrest silence because the reference was “contextual and

brief an d did not highlight [d]efendant’ s silence as evidence of

guilt,” where the Court found “it was simply utilized to recount th e

sequence of the [Commonwealth’s ] investigatio n, in particular,

how the DNA sample was obtained from [d]efendant.” Id. at 518.

See also Commonwealth v. DiNicola

, 581 Pa. 550, 866 A.2d

329, 337 (2005) (where defense counsel first crea ted inference

that Commonwealth’ s investigative efforts were minimal or one

sided, and where trooper testified both that defendant declined

police interview and that defense counsel advised trooper that

defendant denied allegations and would invoke right to remain

silent, reference to silence was “circumspect,” “limited to its

context,” and “not used in any fashi on likely to burden

[d]efendant’ s Fifth Amendment right” or create an inference of

admission of guilt since prosecution made no further reference to

defendant’ s silence, thus, defendant did not suffer prejudice);

Co mmonwealth v. Whitney

, 550 Pa. 618, 708 A.2d 471, 478

(1998) (“Even an explicit reference to silence is not reversible

error where it occurs in a context not likely to suggest to the jury

that silence is the equivalent of a tacit admission of guilt.”).

Commonwealth v. Rivera

, 255 A.3d 497, 507 (Pa. Super. 2021)

Consistent with the foregoing

, the record supports the trial court’s

determination that Trooper Wilson’s testimony “ resulted in de minimis

, if any,

prejudice. ” Rivera

, 255 A.3d at 507 (citations omitted) ; N.T. 5/5/21 at 51.J

- A12003

- 22

- 8

-

Trooper Wilson ’s testimony was “contextual and brief,” occurring during

question ing about how Trooper Wilson conducted his investigation and who

he interviewed. S ee Adams

, 104 A.3d at 518; DiNicola

, 866 A.2d at 33 7 ;

see also N.T., 5/5/21, at 49

- 51. T he Commonwealth made no further

mention of Appellant’s pre

- arrest silence or his invocation of right to counsel

.

See Adams

, 104 A.3d at 515 ; Rivera

, 255 A.3d at 508.

Finally

, the trial court gave a curative instruction

. The court advised the

jury that Appellant,

always has an absolute right in any trial to remain silent.

[Defendants] are not required to testify, they’re not required to

present witnesses. I am telling you that you may not draw any

inference of guilt from the fact that [Appellant] did not offer a

statement to the investigating officer when he was requested to

do so. He has an absolute right at that point and throughout to

remain silent and you cannot draw any inference of guilt from the

fact that he did not talk to the trooper on the day the officer

question ed him.

N.T., 5/6/21, at 63. We presume a jury follow s a court’s instruction. See

Commonwealth v. Speight , 854 A.2d 450, 458 (Pa. 2004)

. Appellant’s

second issue does not merit relief

.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 05/20/2022