Com. v. Ritter, W. (memorandum)
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J-A06010-13 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. WILLIAM SCOTT RITTER, JR. Appellant No. 975 EDA 2012 Appeal from the Judgment of Sentence October 26, 2011 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002238-2009 BEFORE: PANELLA, J., ALLEN, J., and PLATT, J.* MEMORANDUM BY PANELLA, J. FILED NOVEMBER 06, 2013 Appellant, William Scott Ritter, Jr., appeals from the judgment of sentence entered on October 26, 2011, in the Court of Common Pleas of Monroe County. After careful review, we affirm. On February 7, 2009, Detective Ryan Venneman of the Barrett Township Police Department was conducting undercover operations investigating the crime of internet sexual exploitation of children in a Yahoo Instant Messenger chat room. Detective Venneman was acting as a young female named Emily when he was contacted online by Ritter, posing as delmarm4fun, a 44-year-old male from Albany, New York. At the onset of ____________________________________________ * Retired Senior Judge assigned to the Superior Court. J-A06010-13 the online chat, Emily specifically identified herself to Ritter as a 15-yearold female from the Poconos. The online conversation was sexual in nature. During the conversation, Ritter provided Emily with a link to his webcam, asking her to share photographs with him. Ritter was particularly interested in whether Emily s ex-boyfriend took any traditional ex pics of her, by which he meant nude or provocative photographs. In response to Ritter s repeated requests to send additional photos, Emily transmitted a photograph to which Ritter replied, that l [sic] get a reaction. Ritter then stated that he was waiting for [ Emily ] to put up another pic so [he] can continue to react. The webcam was operational at the time and displayed a man s face and upper body area. When queried as to what he meant by react, Ritter responded that he reacted below the screen, where [his] hands are, indicating his hands are down lower. Ritter then communicated to Emily that he was having a big reaction here and asked Emily if she would like to see more. Ritter then adjusted the webcam to focus on his genital area where he exposed himself to Emily and proceeded to masturbate. Ritter turned off the webcam for a period of time. He, however, continued to engage in sexually explicit communications with Emily, including asking her if she tasted her ex-boyfriend s penis, her favorite sexual position, if her ex-boyfriend ejaculated inside her, if he used a condom, and if she performed oral sex on him. Emily cautioned Ritter that she was only 15 years old and she did not want them to get in trouble -2- J-A06010-13 because of their respective ages. Unfazed by Emily s age, Ritter asked Emily, you want to see it finish? Ritter then turned on the webcam and ejaculated in front of the camera for Emily. Detective Venneman then notified Ritter of his undercover status and the undercover operation and directed Ritter to call the police station. Ritter was subsequently charged with unlawful contact with a minor (sexual offenses), 18 PA.CONS.STAT.ANN. § 6318(a)(1), unlawful contact with a minor (open lewdness), 18 PA.CONS.STAT.ANN. § 6318(a)(2), unlawful contact with a minor (obscene and other sexual materials and performances), 18 PA.CONS.STAT.ANN. §6318(a)(4), corruption of minors, 18 PA.CONS.STAT.ANN. § 6301(a)(1), criminal use of a communications facility, 18 PA.CONS.STAT.ANN. § 7512(a), and indecent exposure, 18 PA.CONS.STAT.ANN. § 3127. Prior to trial, the Commonwealth uncovered information, via a Google search, of Ritter s prior arrests from online sex sting operations in New York. The public internet search yielded news articles reporting that, in April 2011, Ritter communicated online in a chat room with an undercover police officer posing as a 14-year-old female and arranged to meet the girl at a local business in Albany. Ritter arrived at the designated location and was questioned by the authorities; however, he was released without any charges being filed. Two months later, Ritter was again caught in the same kind of sex sting after he tried to lure what he thought was a 16-year-old -3- J-A06010-13 female to a fast food restaurant. Ritter was subsequently charged, but the Albany District Attorney placed the case on hold. Upon discovery of the publicly available articles regarding Ritter s prior engagement in internet sex stings, the Commonwealth requested and later received copies of those records from the Albany County District Attorney s Office. The Commonwealth provided Ritter with copies of the records in compliance with Pa.R.Crim.P. 573. Unbeknownst to the Commonwealth, the New York state records were sealed at the time they were forwarded to the Commonwealth, prompting the Commonwealth to return the records to the Albany County District Attorney s Office. A petition to unseal the records was subsequently filed and granted by the trial court in Albany County1. Thereafter, the Commonwealth filed a notice of prior bad acts as well as a motion in limine seeking to introduce the New York arrest records at trial. In response thereto, Ritter filed a motion for dismissal/change of venue as well as a motion in limine seeking to preclude this evidence. The trial court held a hearing on the motions. At the hearing, the Commonwealth s exhibits, consisting in part of the New York arrest records, were admitted under seal. After the hearing, the trial court entered an order and accompanying opinion granting the Commonwealth s motion in limine, ____________________________________________ 1 Ritter filed a motion to vacate the order entered unsealing the record in Albany County which was denied. Ritter then appealed that decision to the Supreme Court of the State of New York, Appellate Division. -4- J-A06010-13 permitting evidence of Ritter s prior bad acts in New York to be admitted at trial. Following a jury trial, Ritter was found guilty of all but one count. Prior to sentencing, the Supreme Court of the State of New York, Appellate Division reversed and vacated the order of the Albany County court unsealing Ritter s records. Ritter then filed a motion for a new trial pursuant to Rule 704(B) or in the alternative to postpone sentencing. The trial court sentenced Ritter on October 26, 2011. At the time of sentencing Ritter made an oral motion for extraordinary relief. After extensive argument regarding the New York records, the trial court denied Ritter s request for a new trial and sentenced Ritter to an aggregate period of 18 to 66 months imprisonment. Ritter filed post-sentence motions, which the trial court denied. This timely appeal followed. On appeal, Ritter raises the following issues for our review. 1. Did the trial judge err in allowing the prosecution to bring out at trial the Appellant s two police encounters involving like conduct in New York in 2001? a. Should the trial judge have granted the Appellant a new trial when it became known that the New York courts had ruled on October 20, 2011 that the evidence of the Appellant s police encounters in New York in 2001 should never had been unsealed and made available to Pennsylvania prosecutors? b. Did the trial judge abuse her discretion in admitting the New York evidence under Rule 404(b) and Rule 403? c. Should the trial judge have granted the Appellant s motion for mistrial at the conclusion of the prosecutor s cross-examination of the Appellant and his closing -5- J-A06010-13 speech to the jury which emphasized the New York evidence? d. Should the trial judge have granted the Appellant s motion for a mistrial during the cross-examination of the Appellant with a statement he allegedly made to New York investigators? e. Has the Commonwealth established that this error was harmless beyond a reasonable doubt? Appellant s Brief, at 2-3. We review a trial court's decision to grant ¦ a motion in limine with the same standard of review as admission of evidence at trial. Commonwealth v. Flamer, 53 A.3d 82, (Pa. Super. 2012) (citation omitted). The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion. Commonwealth v. Weakley, 972 A.2d 1182, 1188 (Pa. Super. 2009). [If] the trial court overrides or misapplies the law, discretion is then abused and it is the duty of the appellate court to correct the error. Commonwealth v. Surina, 652 A.2d 400, 402 (Pa. Super. 1995) (internal citations and quotations omitted). In determining whether evidence should be admitted, the trial court must weigh the relevant and probative value of the evidence against the prejudicial impact of that evidence. Weakley, 972 A.2d at 1188 (citation omitted). After a careful review of the certified record, as well as the briefs of the parties, we are confident that the trial court did not err in allowing the admission of Ritter s New York records into evidence. The New York records -6- J-A06010-13 were unsealed at the time of their production to the Commonwealth by the Albany County Court and at the time of Ritter s jury trial. The records elicited a common scheme or plan as well as Ritter s propensity for crimes involving the internet sexual exploitation of children and their probative value outweighed any prejudicial effect to Ritter. The trial court ably and methodically reviewed and analyzed all of the issues raised by Ritter related to admissibility of the New York records in its opinion filed on March 20, 2012. As such, we affirm Issues 1(a) and (b) on the basis of that well-written decision. See Trial Court Opinion, filed 3/20/12. Similarly, the issues presented by Ritter in subsections (c), (d), and (e) supra, lack merit. Ritter argues that the trial court erred in denying his motion for a mistrial at the conclusion of the Commonwealth s crossexamination of Ritter and, the Commonwealth s closing argument to the jury as both elicited improper testimony relating to statements Ritter made to New York investigators. We disagree. The decision to declare a mistrial is within the sound discretion of the [trial] court and will not be reversed absent a flagrant abuse of discretion. A mistrial is an extreme remedy ¦ [that] ¦ must be granted only when an incident is of such a nature that is unavoidable effect is to deprive defendant of a fair trial. Commonwealth v. Bracey, 831 A.2d 678, 682-683 (Pa. Super. 2003) (internal quotation marks and citations omitted; brackets in original). -7- J-A06010-13 Here, Ritter takes issues with the following exchange during the Commonwealth s cross-examination: PROSECUTOR: So you re saying that in February of 07 you must be back in this dark place again that you were in in 2001; right? RITTER: Not as severe, but, yes, I was. PROSECUTOR: And you were back doing the same thing in regard to masturbating and so forth over the Internet; right? RITTER: Yes, sir. PROSECUTOR: And, obviously, that s a problem; correct? RITTER: Yes, sir. PROSECUTOR: You tried the best you could to contain it but you couldn t contain it; right? RITTER: Yes, sir. PROSECUTOR: Just one thing. Going back to 2001. You actually told Tom Breslin that you needed help because your problem progressed to the point where you wanted to meet underaged girls. N.T., Trial, 4/13/11, at 123-124. Defense counsel, Attorney Kohlman, objected to this line of questioning and immediately requested permission to approach the bench where he motioned for a mistrial. See id., at 124. The trial court denied counsel s request for a mistrial, but permitted Attorney Kohlman to place his reasons for requesting a mistrial on the record. See id., at 124-125. The crux of defense counsel s reasoning was that 40 some minutes of cross-examination was focused solely on events in New York and, in -8- J-A06010-13 particular, relative to out-of-court statements made by Ritter during the course of investigations in New York. See id., at 125. Defense counsel argued that the out-of-court statements referenced by the Commonwealth on cross-examination were not in the discovery provided by the Commonwealth and that the first time that [the defense] had any notification whatsoever of anything else to deal with other than the chats themselves, was approximately 11:30 in the morning on Monday the day before trial. Id., at 125-126. As such, defense counsel argued that it was extraordinarily prejudicial to allow the information to be used during crossexamination. Id., at 126. In contrast, the Commonwealth argued that Ritter opened the door to such questioning on cross-examination by his own testimony that he has a problem, that he goes on the Internet, that there is a sexual contact between adults. Id., at 127. The Commonwealth queried Ritter in an effort to elicit what kind of conduct Ritter was referring to because Ritter said he masturbates in front of woman and the whole reason he does this in 01 is to get caught by the police because he has a problem, he needs help. Id., at 127. The trial court denied defense counsel s request for a mistrial because [Ritter] testified that he never intended to enter in an adult chat room for the purpose of having inappropriate conversations with a minor. Id. As such, the testimony elicited on cross-examination was appropriate. -9- J-A06010-13 We can find no abuse of discretion in this ruling. Ritter opened the door to cross-examination on this issue by his own testimony. Lastly, we can find no abuse of discretion on the part of the trial court in denying Ritter s motion for mistrial at the conclusion of the Commonwealth s closing argument. It is well established that a prosecutor is permitted to vigorously argue his case so long as his comments are supported by the evidence or constitute legitimate inferences arising from that evidence. In considering a claim of prosecutorial misconduct, our inquiry is centered on whether the defendant was deprived of a fair trial, not deprived of a perfect one. Thus, a prosecutor's remarks do not constitute reversible error unless their unavoidable effect ... [was] to prejudice the jury, forming in their minds fixed bias and hostility toward the defendant so that they could not weigh the evidence objectively and render a true verdict. Further, the allegedly improper remarks must be viewed in the context of the closing argument as a whole. Commonwealth v. Luster, 71 A.3d 1029, 1048 (Pa. Super. 2013) (en banc) (internal quotation marks and citations omitted). Here, Ritter contends that the Commonwealth went way beyond the boundaries of intent and mistake and knowledge and for all the world was arguing common schedule, plan and design in his closing argument. See N.T. Trial, 4/14/11, at 63. Specifically Ritter takes issue with the following comments by the Commonwealth: (1) that the New York cases were important because in those incidents, Ritter twice engaged in internet chats with what he should have believed was an underage girl, see id., at 36; (2) - 10 - J-A06010-13 that the prosecutor referred to the screen name that Ritter had used, OnExhibit , as supporting an inference that he was an exhibitionist. see id., at 42; (3) that in both New York chats, Ritter referred to masturbation; see id.; (4) that in the New York cases in 2001 Ritter claimed he wanted to be caught; see id., at 43-47; and (5) that since Ritter had been engaged in similar chats in two previous occasions in New York, he had to know that in his 2009 chat in Pennsylvania, the other party could be a minor and that conversation would be illegal. See id., at 50, 53. See, Appellant s Brief at 17-19. Based upon our review of the record, we are confident that the Commonwealth s closing arguments were fully support by the evidence presented or were suitable inferences derived therefrom. As stated previously, the admission of the New York evidence was permissible as it was relevant under Rule 404(b) and unsealed at the time of its admission. Therefore, any reference to the New York information was proper. The statements made by the Commonwealth were in no means inflammatory to such a degree that it would fix bias and hostility against Ritter in the minds of the jury. For these reasons, and in light of the overwhelming evidence of Ritter s guilt, we find a new trial is not warranted on this basis. Judgment of sentence affirmed. Jurisdiction relinquished. - 11 - J-A06010-13 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 11/6/2013 - 12 -
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