Com. v. Rosado, E.
3333 EDA 2015
| Pa. Super. Ct. | Oct 21, 2016Background
- Victim M.F., age 7, testified that her step-grandfather Eric Rosado touched her vaginal area through clothing while she sat on his lap in his Poconos home; she later disclosed similar touching that allegedly occurred over two years in Rosado’s New York apartment.
- M.F. reported the Poconos incident immediately to her grandmother and the next day to her mother; she disclosed the New York incidents only after seeing a school video about "bad secrets."
- Rosado was tried by jury, convicted of indecent assault, endangering welfare of a child, corruption of minors, and unlawful contact with a minor, and sentenced to an aggregate 30–72 months’ imprisonment.
- At trial the Commonwealth introduced prior-acts evidence of the New York incidents under res gestae/common-scheme exceptions to Pa.R.E. 404(b) and called an expert on victim behavior; defense objected to scope and prejudice.
- Rosado raised multiple claims on appeal: improper admission of prior-bad-acts; expert testimony beyond pretrial proffer; prosecutor/trial-judge commentary and related mistrial request; refusal to give a prompt-complaint instruction; and discretionary-sentencing challenges.
Issues
| Issue | Commonwealth's Argument | Rosado's Argument | Held |
|---|---|---|---|
| Admissibility of prior sexual-act evidence (Pa.R.E. 404(b)) | Prior New York incidents were admissible under res gestae and common-scheme exceptions to provide context and show a pattern of abuse. | Admission was unfairly prejudicial and offered only propensity evidence to inflame the jury. | Affirmed: trial court properly admitted prior acts as res gestae/common-scheme; probative value outweighed prejudice. |
| Scope of Commonwealth expert testimony (victim behavior) | Expert gave general testimony about victim behavior and delays; testimony responsive to defense questioning of a lay witness and within pretrial notice. | Expert testimony exceeded the pretrial proffer and ambushed defense without an expert report, causing prejudice. | Affirmed: trial court did not abuse discretion; expert testimony was limited, responsive, and not prejudicial. |
| Prosecutor and judge commentary during cross-exam / mistrial motion after summation | Remarks were permissible advocacy/oratorical flair and responsive to defense arguments; any potential prejudice was cured by instructions. | Prosecutor’s sarcastic/personal comments and judge’s remarks suggested Rosado was dishonest, creating incurable bias warranting mistrial. | Affirmed: comments did not create fixed bias; no abuse of discretion in denying mistrial; cautionary instructions sufficed. |
| Refusal to give a prompt-complaint instruction | Prompt-complaint instruction unnecessary because M.F. promptly reported the Poconos incident to family; delays for prior acts are explainable given victim’s age, relationship, and lack of force (Snoke). | Failure to give the instruction denied the jury an evidentiary tool to assess credibility given delays in reporting prior incidents. | Affirmed: no error—M.F. promptly reported the charged assault; Snoke controls where delay can be excused; general credibility instruction was sufficient. |
| Discretionary sentencing challenges (failure to consider Megan’s Law effects; reliance on community-threat as factor) | Sentence within standard range; sentencing court considered factors and acted within discretion. | Sentencing court improperly failed to consider Megan’s Law consequences and double-counted community threat, making sentence excessive. | Not reviewed on appeal: claims were not preserved in post-sentence motion, so appellate review of discretionary aspects is waived. |
Key Cases Cited
- Commonwealth v. Collins, 703 A.2d 418 (Pa. 1997) (Rule 404(b) prohibits admitting other-crimes evidence solely to show propensity)
- Commonwealth v. Ross, 57 A.3d 85 (Pa. Super. 2012) (prior-act evidence admissible to prove common scheme or plan)
- Commonwealth v. Elliott, 700 A.2d 1243 (Pa. 1997) (prior acts admissible when crimes are so related proof of one tends to prove the others)
- Commonwealth v. Dillon, 863 A.2d 597 (Pa. Super. 2004) (res gestae/complete-story exception important in sexual-assault cases)
- Commonwealth v. Dillon, 925 A.2d 131 (Pa. 2007) (recognition of res gestae exception to Rule 404(b))
- Commonwealth v. Snoke, 580 A.2d 295 (Pa. 1990) (prompt-complaint instruction unnecessary where child victim did not comprehend offensiveness and delay is explainable)
- Commonwealth v. Miller, 746 A.2d 592 (Pa. 2000) (prosecutor comments reversible only when they create fixed bias preventing fair verdict)
- Commonwealth v. Szakal, 50 A.3d 210 (Pa. Super. 2012) (standard for appellate review of expert testimony admission)