OPINION BY PANELLA, J.
Appellant, Gerald A. Sandusky, appeals from the judgment of sentence entered October 9, 2012, in the Court of Common Pleas of Centre County. We affirm.
A jury convicted Sandusky of 45 counts relating to the sexual abuse of young boys. The eight victims, now all adults, testified in detail about the sexual depravity they suffered as young boys at Sandusky's hands. Combined, the abuse spanned a thirteen-year period, 1995 to 2008. Sandusky met all the victims through a non-profit he founded called The Second Mile, an organization with the declared purpose of serving Pennsylvania's underprivileged and at-risk youth.
Immediately prior to sentencing, the trial court held a hearing at which time it determined that Sandusky was a sexually violent predator. The trial court then imposed an aggregate period of incarceration of thirty to ninety years. Sandusky filed post-sentence motions, which the trial court denied after a hearing. This timely appeal followed.
Sandusky first argues that the trial court erred in refusing to give the jury the prompt complaint instruction found at Section 4.13A of the Pennsylvania Suggested Standard Criminal Jury Instructions.
In relation to an issue such as this, our scope and standard of review is as follows:
Commonwealth v. Thomas, 904 A.2d 964, 970 (Pa.Super.2006) (internal citations, quotation marks, and brackets omitted).
The premise for the prompt complaint instruction is that a victim of a sexual assault would reveal at the first available opportunity that an assault occurred. See id. The instruction permits a jury to call into question a complainant's credibility when he or she did not complain at the first available opportunity. See Commonwealth v. Prince, 719 A.2d 1086, 1091 (Pa.Super.1998). However, there is no policy in our jurisprudence that the instruction be given in every case.
"The propriety of a prompt complaint instruction is determined on a case-by-case basis pursuant to a subjective standard based upon the age and condition of the victim." Thomas, 904 A.2d at 970. For instance, "[w]here an assault is of such a nature that the minor victim may not have appreciated the offensive nature of the conduct, the lack of a prompt complaint would not necessarily justify an inference of fabrication." Commonwealth v. Jones, 449 Pa.Super. 58, 672 A.2d 1353, 1357 n. 2 (1996).
At the charging conference the trial court denied the requested instruction, reasoning that in its view "the research is such that in cases involving sexual abuse[,] delayed reporting is not unusual and, therefore, is not an accurate indicia of honesty and may be misleading." N.T., Trial, 6/21/12, at 4. In its opinion addressing Sandusky's post-sentence motions, the
The trial court opted to give only the standard credibility charge without the addition of the prompt complaint charge as it reasoned that "the jury would be more appropriately guided" by that charge. Id., at 10. The standard credibility charge, in the trial court's opinion, instructed the jury to consider "the specific credibility issues raised by the defense: memory, self-interest, motive, and bias." Id. The trial court concluded its thoughts on the prompt complaint instruction as follows:
Id., at 11.
Although well intentioned, the trial court's analysis of the prompt complaint instruction and its application to cases involving children is not supported in the case law. See, e.g., Commonwealth v. Lane, 521 Pa. 390, 398, 555 A.2d 1246, 1251 (1989) ("[I]t is important to note that evidence of a prompt complaint should also be considered when the victim is a child.") (emphasis added). As noted, its application is not determined by a blanket standard, but rather on a case-by-case basis. See Thomas, supra.; Commonwealth v. Ables, 404 Pa.Super. 169, 590 A.2d 334, 340 (1991).
The prompt complaint instruction provides, in pertinent part, that evidence of "delay in making a complaint does not necessarily make [the victim's] testimony unreliable, but may remove from it the assurance of reliability accompanying the prompt complaint or outcry that the victim of a crime such as this would ordinarily be expected to make." Pennsylvania Suggested Standard Criminal Jury Instructions Section 4.13A(2). The instruction further states that the failure to promptly complain and the victim's explanation for the failure "are factors bearing on the believability of [the victim's testimony] and must be considered by you in light of all the evidence in the case." Id., at (3).
In this case, the trial court should have evaluated the appropriateness of the instruction with respect to the age and maturity of each victim. There is no question that there was lengthy delay in all but one of the victims' complaints; however, this fact alone does not justify the prompt complaint instruction. Because we can find no discussion by the trial court as to whether the minor victims would have "appreciated the offensive nature" of Sandusky's conduct, we must determine if the trial court's lack of analysis prejudiced Sandusky. See Commonwealth v. Marshall, 824 A.2d 323, 328 (Pa.Super.2003) (an error is harmless if the court determines that the error could not have contributed to the verdict). We conclude there was no prejudice.
The trial court's credibility instruction largely tracked Section 4.17, Credibility of Witnesses, General, of the Pennsylvania Suggested Standard Criminal
N.T., Trial, 6/21/12, at 15-17 (emphasis added).
This instruction provided the jury with a sufficient framework to question the victims' credibility. In addition, at trial, Sandusky extensively argued that the victims not only delayed in reporting, but that they did so because the abuse never occurred and that they concocted their stories for financial gain. As stated above, the trial court specifically instructed the jury that they were to consider any possible motives of the victims in coming forward. The vigorous cross-examination of the victims and arguments by defense counsel, when combined with the trial court's instructions on credibility, clearly defined the issues for the jury. Therefore, we find that, under the facts of this case, the absence of the prompt complaint instruction did not prejudice Sandusky.
Sandusky next argues that the trial court committed reversible error when it denied his objection that the prosecutor commented adversely on his choice not to testify at trial. During his closing argument, the prosecutor stated:
N.T., Trial, 6/21/12, at 140-142 (emphasis added).
Pursuant to a court-approved stipulation, counsel reserved their objections until after closing arguments. See id., at 5. After the Commonwealth's closing, Sandusky's counsel, Karl Rominger, Esquire, objected that the prosecutor committed misconduct by stating that Sandusky chose not to testify. The trial court then asked if Sandusky's counsel had "[a]nything further." Id., at 158. Counsel stated, "[n]o, Your Honor." Id. The trial court concluded that the prosecutor's statements were "fair rebuttal" and that it had "cautioned the jury again and again the defendant has no obligation to testify or present evidence in his own defense." Id. The trial court further stated that it would "caution the jury again...." Id. Attorney Rominger then stated, "[t]hank you, Your Honor." Id.
"[E]ven where a defendant objects to specific conduct, the failure to request a remedy such as a mistrial or curative instruction is sufficient to constitute waiver." Commonwealth v. Manley, 985 A.2d 256, 267 n. 8 (Pa.Super.2009) (citation omitted). Sandusky did not move for a mistrial or request a curative instruction; he merely lodged an objection. As such, this claim is not preserved for appellate review.
Sandusky next argues that the trial court's refusal to grant a continuance effectively deprived him of his Sixth Amendment right to the effective assistance of trial counsel. This is an error, he argues, that constitutes a structural defect requiring automatic reversal of the judgment of sentence under the United States Constitution. This novel argument fails.
Structural defects are a class of constitutional error. See United States v. Gonzalez-Lopez, 548 U.S. 140, 148, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006). Structural defects "defy analysis by harmless-error standards because they affect the framework within which the trial proceeds, and are not simply an error in the trial process itself." Id. (internal quotation marks, brackets and citation omitted). Few constitutional errors qualify as structural defects. In Gonzalez-Lopez, the Supreme Court identified these as the complete "denial of counsel, the denial of the right of self-representation, the denial of the right to public trial, and the denial of the right to trial by jury by the giving of a defective reasonable-doubt instruction." Id., at 149, 126 S.Ct. 2557 (internal citations omitted). The Supreme Court named a new structural defect claim in Gonzalez-Lopez: the erroneous disqualification of a criminal defendant's choice of retained counsel. See id., at 150, 126 S.Ct. 2557.
None of these claims is at issue in this case. Stripped of the structural defect artifice, Sandusky's claim, at its core, is that the trial court erred in denying his continuance requests and that that decision denied him his Sixth Amendment right to the effective assistance of counsel.
The matter of granting or denying a continuance is within the discretion of the trial court. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 11 L.Ed.2d 921 (1964). "[A] myopic insistence upon expeditiousness in the face of a justifiable request for delay can render the right to defend with counsel an empty formality." Id., at 589, 84 S.Ct. 841. However, "[n]ot every restriction on counsel's time or opportunity to investigate or to consult with his client or otherwise to prepare for trial violates a defendant's Sixth Amendment right to counsel." Morris v. Slappy, 461 U.S. 1, 11, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).
Id.
Accordingly, a trial court exceeds its constitutional authority only
Here, from January 28, 2012, until June 15, 2012,
In orders entered on February 29, 2012, and April 12, 2012, the trial court summarily denied the continuance requests. In an order entered on May 30, 2012, however, the trial court addressed Sandusky's claim regarding the need to postpone the trial due to the volume of material provided in discovery. The trial court explained its denial as follows:
Order, 5/30/12, at 3-4.
The trial court's explanation denotes a careful consideration of the matter. The decision does not reflect a myopic insistence upon expeditiousness in the face of Sandusky's request; it was not an arbitrary denial. Therefore, we can find no constitutional error, nor abuse of discretion, in the denial of the continuance requests.
Assuming for the sake of argument, however, that the trial court did commit an error in denying the continuance requests, we would find the error harmless. This is a claim that is subject to harmless error analysis. See Morris, 461 U.S. at 12, 103 S.Ct. 1610.
Sandusky called his trial counsel, Joseph Amendola, Esquire, to testify at the post-sentence motion hearing. At the hearing, the following exchange occurred on cross-examination regarding the trial court's refusal to grant a continuance:
N.T., Post-Sentence Motion Hearing, 1/10/13, at 39-40. As evidenced by counsel's own testimony, Sandusky suffered no prejudice from the trial court's denial of the continuance requests. Therefore, this claim fails.
Lastly, Sandusky argues that the trial court erred in instructing the jury on character evidence. The trial court utilized Section 3.06, Defendant's Character (Reputation), of the Pennsylvania Suggested Standard Criminal Jury Instructions and instructed the jury as follows:
N.T., Trial, 6/21/12, at 22 (emphasis added).
Sandusky agrees with the trial court's statement that "[e]vidence of good character may by itself raise a reasonable doubt of guilt and require a verdict of not guilty." Appellant's Brief, at 55. He argues, however, "the [c]ourt immediately thereafter gave a contradictory charge," when it instructed the jury that it had to weigh and consider the evidence of good character with the other evidence in the case. Id. He maintains that if the character evidence must be weighed against other evidence "it is not being considered `in and of itself as required by [Commonwealth v.] Neely, [522 Pa. 236, 561 A.2d 1 (1989)]." Id., at 56. This very argument was rejected in Commonwealth v. Khamphouseane, 434 Pa.Super. 93, 642 A.2d 490 (1994).
It has long been the law in Pennsylvania that "[e]vidence of good character is always admissible for the defendant in a criminal case. It is to be weighed and considered in connection with all the other evidence in the cause. It may of itself, in some instances, create the reasonable doubt which would entitle the accused to an acquittal." Commonwealth v. Cleary, 135 Pa. 64, 84, 19 A. 1017, 1018 (1890) (emphasis added). See also Commonwealth v. Padden, 160 Pa.Super. 269, 50 A.2d 722, (1947) ("To be sure, it [i.e., character evidence] is to be considered with all the other evidence in the case.").
In Neely, our Supreme Court held that "[a] criminal defendant must receive a jury charge that evidence of good character (reputation) may, in and of itself, (by itself or alone) create a reasonable doubt of guilt and, thus, require a verdict of not guilty." 522 Pa. at 241, 561 A.2d at 3. The appellant in Khamphouseane argued Neely mandates that character evidence must be
The panel quoted the language from Cleary that evidence of character must be "weighed and considered in connection with all the other evidence" in the case and explained that
642 A.2d at 496.
Here, as mentioned, the trial court quoted near verbatim from Section 3.06 of the Pennsylvania Suggested Standard Criminal Jury Instructions. Thus, pursuant to Khamphouseane, the trial court committed no error in charging the jury on the issue of character evidence.
Sandusky further argues that that use of the word "weigh" with the word "must" is erroneous as "it conveyed to the jury that the character evidence had to outweigh other evidence in the case, and if it did it would then `justify' a verdict of not guilty." Appellant's Brief, at 58. The instruction does no such thing.
As the trial court aptly explains, the charge
Trial Court Opinion, 1/30/13, at 12-13. We agree, completely, with the trial court's reasoning. The trial court properly instructed the jury. Accordingly, Sandusky's argument fails.
Judgment of sentence affirmed.
At oral argument, Sandusky's counsel, Norris E. Gelman, Esquire, who we compliment for his able representation and forthright argument before the panel, admitted that this claim is technically waived.
642 A.2d at 495.