J-S22020-23
2023 PA Super 201
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
HAROLD WALKER :
:
Appellant : No. 376 WDA 2022
Appeal from the Judgment of Sentence Entered February 11, 2022
In the Court of Common Pleas of Allegheny County
Criminal Division at No: CP-02-CR-0007381-2019
BEFORE: OLSON, J., STABILE, J., and MURRAY, J.
OPINION BY STABILE, J.: FILED: October 13, 2023
Appellant, Harold Walker, appeals from his judgment of sentence of
30½-61 years’ imprisonment for rape of a child and related offenses.
Appellant argues that the trial court erred by asking prospective jurors during
voir dire whether they could follow the principle that the testimony of the
alleged victim standing alone, if believed, could constitute sufficient proof
upon which to find the defendant guilty of sexual assault beyond a reasonable
doubt. We conclude that this inquiry was proper, and we affirm.
The trial court accurately summarized the evidence adduced as follows:
At trial, the victim in this case, eighteen-year-old M.W., testified
that in 2013, she lived at home with her mother and her infant
sister. She testified that Appellant [] was her mother’s boyfriend
at the time and would sometimes babysit them. M.W. testified
that when her mother was at work, Appellant would enter her
bedroom, take off her underwear, and put his penis into her
vagina. She testified that Appellant first did this to her when she
was ten years old and it would happen approximately every other
day. When M.W. was twelve, she told her mother and
grandmothers what Appellant was doing to her. She also told her
J-S22020-23
doctor, who then tested her for a sexually transmitted infection
(“STI”). M.W. testified that her mother did not believe her and
became angry with her. M.W. stated that she started to punch
walls, break things, and cut herself to deal with her trauma. When
M.W. was sixteen years old, she disclosed to one of her teachers,
Kimberly Dunbar.
M.W. remembered having a forensic interview and testified that
she believed that she disclosed the incidents to the interviewer.
The forensic interview was recorded and played at trial. M.W., her
recollection refreshed by the playing of the interview, was asked
why she didn’t disclose to the interviewer, and she responded that
she was scared of what would happen if she did.
Dr. Jennifer Clarke of the Child Advocacy Center at Children’s
Hospital of Pittsburgh, testified as an expert witness in pediatrics
and the diagnosis of child abuse. Dr. Clark reviewed M.W.’s
medical records and observed that M.W. had been diagnosed with
trichomoniasis, an STI, when she was eleven years old. The
records indicate a concern for sexual abuse; however, the child
did not disclose and the physical examination was normal. Dr.
Clarke testified that a normal physical examination does not
preclude the occurrence of sexual abuse. On September 9, 2015,
Dr. Clarke interviewed M.W. as part of a follow-up from the
physical examination. Dr. Clarke testified that M.W. disclosed
sexual abuse by her mother’s boyfriend. M.W. said that she
wanted it to stop, but also stated that if Dr. Clarke told anyone,
M.W. would lie and say that she had a boyfriend who gave her the
STI. Based on the disclosure and the STI, Dr. Clarke diagnosed
M.W. with sexual abuse. Dr. Clarke further stated that M.W.
would not have been able to contract trichomoniasis from wearing
another person’s underwear.
Anna Henderson, M.W.’s maternal grandmother, and Kimberly
Dunbar, M.W.’s former teacher, both testified that M.W. disclosed
that Appellant had sexually abused her.
Pa.R.A.P. 1925 Opinion (“Opinion”), 9/23/22, at 3-4.
On August 8, 2019, Appellant was charged with multiple sexual
offenses. On August 9, 2021, Appellant was convicted on all counts following
a jury trial. On February 11, 2022, the court imposed sentence. Appellant
-2-
J-S22020-23
filed timely post-sentence motions, which the court denied, and a timely notice
of appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises two issues in this appeal:
1. Did the trial court err by permitting the Commonwealth to ask
prospective jurors during voir dire whether they could follow the
legal principle that an alleged victim’s testimony, standing alone,
[was] sufficient proof upon which to find [Appellant] guilty, as that
question did not meet the purposes of jury selection and misstated
the burden of proof?
2. Did the trial court abuse its discretion by committing two errors
in the course of imposing a manifestly excessive aggregate
sentence: (a) it focused inordinately on the gravity of the offense
and the victim impact at the expense of [Appellant’s] character
and rehabilitative needs; and (b) it considered improper factors?
Appellant’s Brief at 4.
In his first argument, Appellant contends that the court erred by
allowing the Commonwealth to ask the following question to prospective jurors
during voir dire:
Under Pennsylvania law, the testimony of the alleged victim
standing alone, if believed by you, is sufficient proof upon which
to find the defendant guilty in a sexual assault case. Thus, you
may find the defendant guilty if the testimony of the alleged victim
convinces you beyond a reasonable doubt that the defendant is
guilty. Would you be able to follow this principle of law? 1
____________________________________________
1 Although the transcript of voir dire proceedings is not in the certified record,
the Commonwealth admits that it has “no reason not to believe” that the court
asked this question during voir dire. Commonwealth’s Brief at 7 n.1.
Accordingly, we will assume both that the court asked this question and that
Appellant raised a timely objection.
-3-
J-S22020-23
Commonwealth’s Proposed Voir Dire Questions, at ¶ 1. We hold that this
question was proper.
The scope of voir dire rests within the sound discretion of the trial court,
and we will not reverse the court’s decisions on voir dire absent a palpable
abuse of discretion. Commonwealth v. Mattison, 82 A.3d 386, 397 (Pa.
2014). The sole purpose of voir dire is the “empaneling of a competent, fair,
impartial, and unprejudiced jury capable of following the instructions of the
trial court.” Commonwealth v. Delmonico,
251 A.3d 829, 832 (Pa. Super.
2021). Neither party is “permitted to ask direct or hypothetical questions
designed to disclose what a juror’s present impression or opinion as to what
his decision will likely be under certain facts which may be developed in the
trial of a case.” Commonwealth v. Knight,
241 A.3d 620, 640 (Pa. 2020).
Voir dire “is not to be utilized as a tool for the attorneys to ascertain the
effectiveness of potential trial strategies.”
Id.
Additionally, a court will not be found to abuse its discretion during voir
dire examination by refusing to permit questions whose subject matter falls
within the province of the court to address in its instructions to the jury.
Commonwealth v. Perea, 381 A.2d 494, 497 (Pa. Super. 1977);
Commonwealth v. Ritter,
615 A.2d 442, 446-447 (Pa. Super. 1992).
Questions however that seek a prospective juror's opinion about a principle of
law are not permissible under voir dire examination. Commonwealth v.
Bright,
420 A.2d 714, 717 (Pa. Super. 1980).
-4-
J-S22020-23
Appellant claims that the Commonwealth asked its voir dire question for
the improper purpose of determining what the prospective jurors’ attitudes
would be when “asked to pass upon the guilt of [Appellant] after having been
presented with nothing more than [the victim’s] uncorroborated allegations.”
Appellant’s Brief at 35. Relatedly, Appellant insists that the question was
improper because it “was in the nature of a jury instruction” and it inquired
“into each prospective juror’s understanding and opinion of specific principles
of law and their ability to accept and act upon them....” Id. at 32-33. We
disagree.
The voir dire question was derived from a standard jury instruction,
which reads:
The testimony of [name of victim] standing alone, if believed by
you, is sufficient proof upon which to find the defendant guilty in
this case. The testimony of the victim in a case such as this need
not be supported by other evidence to sustain a conviction. Thus
you may find the defendant guilty if the testimony of [name of
victim] convinces you beyond a reasonable doubt that the
defendant is guilty.
Pa. SSJI (Crim) 4.13B. In turn, this jury instruction came from 18 Pa.C.S.A.
§ 3106, a statute pertaining to sexual assault cases, which provides:
The credibility of a complainant of an offense under this chapter
shall be determined by the same standard as is the credibility of
a complainant of any other crime. The testimony of a complainant
need not be corroborated in prosecutions under this chapter. No
instructions shall be given cautioning the jury to view the
complainant’s testimony in any other way than that in which all
complainants’ testimony is viewed.
18 Pa.C.S. § 3106.
-5-
J-S22020-23
The Commonwealth had a proper purpose for asking the voir dire
question. Its purpose was to identify jurors who hold fixed beliefs that are
untenable under Section 3106—specifically, the belief that a defendant’s guilt
cannot be established beyond a reasonable doubt in a rape case (1) without
DNA or other forensic evidence or (2) when the case boils down to the word
of the complainant versus the word of the defendant (a so-called “he said, she
said” case). Any prospective juror holding either of these fixed beliefs had to
be questioned further and had to be excused for cause if he could not set aside
those beliefs. See Commonwealth v. Kelly, 134 A.3d 59, 60 (Pa. Super.
2016) (it is appropriate to use voir dire examination to disclose fixed opinions
or expose other reasons for disqualification of prospective jurors).
Two recent unpublished decisions provide persuasive authority for
finding the voir dire question proper: Commonwealth v. Antill, 2019 WL
2950181 (Pa. Super., Jul. 9, 2019), and Commonwealth v. Wilson,
2020
WL 5423952 (Pa. Super., Sep. 10, 2020), vacated on different grounds,
272
A.3d 446 (Pa. 2022).2 In both cases, we held that voir dire questions identical
in substance to the question herein were asked for a proper purpose. In
Antill, the Commonwealth asked prospective jurors, “Under Pennsylvania law,
the testimony of the victim standing alone, if believed by you, is sufficient
proof upon which to find the defendant guilty if the testimony of the victim
____________________________________________
2 See Pa.R.A.P. 126(b) (non-precedential memoranda of Superior Court filed
after May 1, 2019 may be cited for their persuasive value).
-6-
J-S22020-23
convinces you beyond a reasonable doubt that the defendant is guilty. Would
you be able to follow this principle of law?”3 Antill, 2019 WL 2950181, *1. A
panel of this Court explained:
Antill argues that “questions which are in the nature of jury
instructions are wholly inappropriate for voir dire examination.”
In support of this proposition, Antill cites to ... Bright.... Upon
reviewing Bright, we conclude Antill’s argument stretches the
language of that opinion beyond the breaking point.
In Bright, the defendant sought to ask prospective jurors
regarding their ability to dissent from the views of the majority of
their fellow jurors. [See Bright, 420 A.2d at 717]. The trial court
refused the defendant’s request. See id. Importantly, this Court
held that “the question was in the nature of a jury instruction and
that, since the court gave proper instructions, no error occurred
from the refusal to allow the question.” Id. After examining the
trial court’s instructions to the jury, the Bright panel concluded
“the [trial] court’s opening remarks and closing instructions ...
clearly demonstrate the trial court adequately and correctly
instructed the jury.” Id.
As a result, the Bright Court did not affirmatively hold that the
proposed instruction should be excluded due to its similarity to a
jury instruction. Instead, the Court merely found that the trial
court did not err in excluding the question since the trial court
properly instructed the jury on the relevant points of law.
Here, Antill is attempting to turn Bright into a bright-line rule that
would effectively eviscerate our standard of review. We decline
to accept Antill’s invitation to create a new standard for voir dire
proceedings.[2]
[2]Antill also cited Commonwealth v. Perea, 381 A.2d 494 (Pa.
Super. 1977), Commonwealth v. Hoffman, 398 A.2d 658 (Pa.
Super. 1979), and Commonwealth v. Ritter, 615 A.2d 442 (Pa.
Super. 1992), for the same proposition as Bright. Each of these
precedents are similar to Bright, in that this Court reviewed a
trial court ruling denying a requested jury instruction. See
Perea, [381 A.2d] at 496; Hoffman, [398 A.2d] at 660; Ritter,
____________________________________________
3 The question in Antill had one sentence. The question in the present case
has two sentences but expresses precisely the same concepts.
-7-
J-S22020-23
[615 A.2d] at 446-447. None of them created the bright line rule
sought by Antill here.
Turning to the circumstances at hand, the Commonwealth’s case
was based almost entirely on the victim’s testimony. Pursuant to
this state of affairs, we cannot conclude the court abused its
discretion when it permitted a question designed to expose any
fixed opinions of the jurors regarding the lack of physical or
corroborating evidence. As such, the question was used to
“secure a competent, fair, impartial and unprejudiced jury” and
was not used to ascertain the effectiveness of a potential trial
strategy. See [Commonwealth v.] Ellison, 902 A.2d [419,]
423-24 [(Pa. 2006)].
Id. at *1-2 (some citations omitted); see also Wilson, 2020 WL 5423952,
at *5-7 (citing above passage in Antill). This analysis provides persuasive
support for our conclusion that the Commonwealth had a proper purpose for
asking the voir dire question in the present case.
Appellant also contends that the voir dire question incorrectly states the
law, since it did not instruct that the victim’s testimony must be believed
beyond a reasonable doubt and be sufficient to establish each element of the
crimes with which Appellant was charged. Appellant’s Brief at 42. We hold
that the voir dire question was legally valid. Its first sentence states that the
testimony of the alleged victim, standing alone, is sufficient proof upon which
to find the defendant guilty. This precept is correct under both the text in 18
Pa.C.S.A. § 3106 that “the testimony of a complainant [in a sexual assault
prosecution] need not be corroborated” and the many decisions that follow
this precept. See, e.g., Commonwealth v. Gonzalez, 109 A.3d 711, 721
(Pa. Super. 2015). The second sentence of this question states that the
defendant may be found guilty if the alleged victim’s testimony convinces the
-8-
J-S22020-23
jury beyond a reasonable doubt that the defendant is guilty. This sentence
accurately states that the Commonwealth’s burden of proof is beyond a
reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970) (Due Process
Clause of Fourteenth Amendment “protects the accused against conviction
except upon proof beyond a reasonable doubt of every fact necessary to
constitute the crime with which he is charged”).
Appellant contends that the voir dire question is invalid because its first
sentence does not state that an accuser’s testimony standing alone, must be
believed by the jury “beyond a reasonable doubt” in order to find the
defendant guilty in a sexual assault case. Appellant’s Brief at 27. Appellant
ignores the fact that the second sentence includes the phrase “beyond a
reasonable doubt.” There is no requirement that each sentence of the voir
dire question include the phrase “beyond a reasonable doubt.” Appellant
further complains that the second sentence is defective because it lacks the
following italicized phrase, “You may find the defendant guilty if the testimony
of the alleged victim establishes each element of the crime beyond a
reasonable doubt.” Appellant’s Brief at 27. Appellant fails to cite any decision
that requires this level of detail in a voir dire question; nor do we know of any.
Even assuming that the voir dire question lacked sufficient detail, the court
corrected this omission by charging the jury in its closing instructions that the
-9-
J-S22020-23
Commonwealth had the burden of proving “each and every element of the
crimes charged” beyond a reasonable doubt. Tr. at 619-20.4
For these reasons, Appellant’s first argument does not require relief.
In his second argument, Appellant asserts that his sentence constitutes
an abuse of the trial court’s discretion, because (1) the court gave inordinate
weight to aggravating sentencing evidence and not enough weight to
mitigating evidence, and (2) the court erred by considering improper factors,
namely evidence that the victim’s relationship with her mother became
strained because her mother refused to believe her claim that Appellant
sexually abused her.
The right to appeal the discretionary aspects of one’s sentence is not
absolute, and the jurisdiction of this Court must be properly invoked. To raise
a substantial question, an appellant must satisfy the following four-part test:
(1) whether appellant has filed a timely notice of appeal, see
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has
a fatal defect, see 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. The determination of
whether a particular issue raises a substantial question is to be
evaluated on a case-by-case basis. Generally, however, in order
____________________________________________
4 We note that Antill claimed, without any supporting analysis, that the voir
dire question in that case “[did] not accurately state the law.” Id.,2019 WL
2950181, at *3. We do not consider this point persuasive due to Antill’s
failure to provide supporting analysis. Moreover, in our view, the voir dire
question in Antill was entirely valid, since it was substantively identical to the
voir dire question in the present case, which we have found valid for the
reasons given above.
- 10 -
J-S22020-23
to establish a substantial question, the appellant must show
actions by the sentencing court inconsistent with the Sentencing
Code or contrary to the fundamental norms underlying the
sentencing process.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220-21 (Pa. Super. 2011)).
With regard to Appellant’s first claim, the record confirms that Appellant
filed a timely notice of appeal and properly preserved the issue in a post-
sentence motion. He also included a Rule 2119(f) statement in his appellate
brief filed. Finally, Appellant has raised a substantial question.
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (“an
excessive sentence claim—in conjunction with an assertion that the court
failed to consider mitigating factors—raises a substantial question”).
Turning to the substance of this issue, our well-settled standard of
review concerning the discretionary aspects of sentencing is as follows:
[T]he proper standard of review when considering whether to
affirm the sentencing court’s determination is an abuse of
discretion.... [A]n abuse of discretion is more than a mere error
of judgment; thus, a sentencing court will not have abused its
discretion unless the record discloses that the judgment exercised
was manifestly unreasonable, or the result of partiality, prejudice,
bias or ill-will. In more expansive terms, our Court recently
offered: An abuse of discretion may not be found merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.
The rationale behind such broad discretion and the concomitantly
deferential standard of appellate review is that the sentencing
court [is] in the best position to determine the proper penalty for
a particular offense based upon an evaluation of the individual
circumstances before it.
Commonwealth v. Patterson, 180 A.3d 1217, 1231-32 (Pa. Super. 2018).
- 11 -
J-S22020-23
The trial court reasoned:
This Court reviewed the presentence report and the sentencing
guidelines prior to imposing sentence. (Sentencing hearing, Feb.
11, 2022 (hereinafter “ST”) at 4). The Pennsylvania Supreme
Court has held:
Where pre-sentence reports exist, we shall continue
to presume that the sentencing judge was aware of
relevant information regarding the defendant’s
character and weighed those considerations along
with mitigating statutory factors Having been
informed by the pre-sentence report, the sentencing
court’s discretion should not be disturbed.
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa.Super. 1988).
In imposing its sentence on Appellant, this Court considered the
sentencing factors listed in 42 Pa.C.S.A. § 9721(b) (the protection
of the public, the gravity of the offense in relation to the impact
on the victim and the community, and the rehabilitative needs of
the defendant), in addition to the Pre-Sentence Report. This Court
considered Appellant’s age and the letters written on his behalf
regarding his character. ST 37. In addition, the Court considered
as a mitigating factor in sentencing Appellant that he had a stale
prior record score, indicating that his previous crimes occurred
several years ago. ST 36.
However, this Court must also consider the gravity of the offense
and its impact on the victim. Although Appellant was charged with
only one count of Rape of a Child, the evidence established that
he repeatedly raped a young girl from the time she was ten years
old until she was twelve years old. Id. Appellant gave her a
sexually transmitted infection when she was eleven years old. Id.
Moreover, he was not a stranger, but a person who was placed in
a position of trust by the victim’s mother. Id. The violation of
that trust caused a rift between mother and daughter that remains
to this day. Id. Although Appellant is not responsible for repairing
this relationship, he bears a substantial portion of the blame for
creating the circumstances which damaged it. This Court
considered Appellant’s substantial need for rehabilitation and risk
to the community, and the serious nature of the crimes and the
impact of those crimes on the victim and her family in imposing
sentences that were within or below the standard range of the
Sentencing Guidelines. Since this Court appropriately considered
- 12 -
J-S22020-23
both the aggravating and mitigating factors in fashioning its
sentence, no error occurred and this issue is without merit.
Opinion at 9-10. Based on this cogent analysis, we conclude that Appellant’s
claim of abuse of discretion lacks merit.
Appellant has waived his second claim of sentencing error, an argument
that the court considered improper sentencing factors (the strain in the
victim’s relationship with her mother), because Appellant failed to raise this
objection at sentencing or in his post-sentence motion. Dunphy, supra.
Even if he had preserved this issue, it would not have required relief. At
sentencing, the court may take into account a victim impact statement
detailing the harm caused to the victim by Appellant’s crimes.
Commonwealth v. Smithton,
631 A.2d 1053, 1057 (Pa. Super. 1993); 42
Pa.C.S.A. § 9721(b) (sentencing court may consider the “gravity of the offense
as it relates to the impact on the life of the victim”). Here, the victim impact
statement was read into the record during sentencing. The victim asserted
that when she disclosed Appellant’s abuse to her mother, her mother called
her a liar and sided with Appellant, causing the victim serious emotional harm.
ST at 27-29. Because the rupture in the victim’s relationship with her mother,
and the resulting emotional trauma, was a direct result of Appellant’s crimes,
the court properly took this evidence into account when considering the
“gravity of the offense as it relates to the impact on the life of the victim.” 42
Pa.C.S.A. § 9721(b).
Accordingly, we affirm Appellant’s judgment of sentence.
- 13 -
J-S22020-23
Judgment of sentence affirmed.
DATE: 10/13/2023
- 14 -
