J-A08039-26
2026 PA Super 134
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EUSEBIO SERGIO RODRIGUEZ :
:
Appellant : No. 1505 EDA 2025
Appeal from the Judgment of Sentence Entered May 14, 2025
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001563-2021
BEFORE: LAZARUS, P.J., PANELLA, P.J.E., and KING, J.
OPINION BY PANELLA, P.J.E.: FILED JUNE 23, 2026
Eusebio Sergio Rodriguez appeals from the judgment of sentence
entered in the Court of Common Pleas of Monroe County for his convictions of
indecent assault person less than 13 years of age, 18 Pa.C.S.A. § 3126(a)(7),
and corruption of minors, 18 Pa.C.S.A. § 6301(a)(1)(i). Rodriguez argues that
the trial court erred by denying his motion for a mistrial where a witness
mentioned that Rodriguez was incarcerated in violation of the trial court’s
pretrial order granting his motion in limine, and by sustaining the
Commonwealth’s objection that his question on recross-examination went
beyond the scope of redirect. After careful review, we affirm.
We glean the following from the certified record. In 2021, Rodriguez was
charged with aggravated indecent assault of a child, 18 Pa.C.S.A. § 3125(b);
unlawful contact with a minor—sexual offenses, 18 Pa.C.S.A. § 6318(a)(1);
indecent assault person less than 13 years of age, 18 Pa.C.S.A. § 3126(a)(7); J-A08039-26
and corruption of minors, 18 Pa.C.S.A. § 6301(a)(1)(i), for sexually abusing
his neighbor’s daughter between January 22, 2010, and January 31, 2012.
The matter proceeded to trial on June 24 and 25, 2024. During the trial, the
Commonwealth withdrew the charge of aggravated indecent assault of a child.
After the jury was unable to reach a verdict, the trial court declared a mistrial.
The Commonwealth retried Rodriguez. Prior to trial, the Commonwealth
withdrew the charge of unlawful contact with minors. On January 6, 2025,
Rodriguez filed a motion in limine, requesting that the trial court “preclude
any testimony or presentation that informs the jury that [Rodriguez] is being
held in custody.” Motion in Limine, 1/6/25, at 2. The trial court granted the
motion.1 Jury selection took place on January 7, 2025, and a one day trial
commenced on January 9, 2025.
At the trial, the Commonwealth called the following witnesses: (1) the
victim, (2) an expert in sexual assault victim responses, and (3) the victim’s
aunt, who testified about the victim disclosing the abuse to her. The victim
testified that when she was approximately nine or ten years old, her siblings
and mother moved from New York City to Pennsylvania. Her father continued
1 Although it is undisputed that the trial court granted Rodriguez’s motion in
limine, see N.T., 1/9/25, at 146, this order is not in the certified record provided to this Court. Although we generally cannot rely on matters de hors the record, because it is undisputed that the court granted the motion, we will rely on the representations of the trial court and parties as to this procedural fact. See Commonwealth v. Greer, 866 A.2d 433, 435 n.2 (Pa. Super. 2005) (taking judicial notice of orders that are not contained in the certified record).
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to live in New York City for work. Her mother would visit her father and stay
with him every other weekend. During that time, the victim and her siblings
would stay at Rodriguez’s house. Rodriguez was a friend of her mother’s and
lived two houses down from them. Rodriguez would frequently be at their
house. See N.T., 1/9/25, at 46-50.
Notably, the victim testified that at times, she would be alone with
Rodriguez at his house. See id. at 51. She described an incident when she
was alone with him at his house when Rodriguez put his hand inside her pants
and touched her vagina for five to ten minutes. See id. at 51-52. She testified
that she never told anyone at that time because she was “scared of [her]
dad.” Id. at 52. She also testified that Rodriguez had a “ham radio room” in
his house and he enticed her to go in there to use the radios and then
“countless times” touched and rubbed her vagina. See id. at 54-55.
On cross-examination, defense counsel questioned the victim about her
testifying on Rodriguez’s behalf in 2013, when she was eleven or twelve years
old, that he had never “touched [her] inappropriately.” See id. at 68-70. The
Commonwealth objected to counsel’s characterization of her testimony, after
which counsel rephrased and asked the victim whether she testified that
Rodriguez had “never done anything inappropriate to [her.]” Id. at 71-72.
Counsel also asked the victim about her testimony at the 2021 preliminary
hearing and the previous 2024 trial. See id. at 72-82.
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On redirect, the Commonwealth refreshed the victim’s recollection with
the transcript of her 2013 testimony regarding whether she was ever asked
at that time if Rodriguez “touched [her] inappropriately.” See id. at 88-93.
On recross-examination, defense counsel asked her whether in 2013 she was
asked whether she ever went to his house alone, to which the Commonwealth
objected. See id. at 93-95. The trial court sustained the objection because
the question went beyond the scope of redirect. See id. at 94-95.
Rodriguez called as a witness Detective Donald Scarfo, of the Pocono
Mountain Regional Police Department and the affiant in this case. Relevant to
this appeal, in response to defense counsel’s question of “[w]hat investigation
did you do to determine whether or not Mr. Rodriguez owns a firearm[;]”
Detective Scarfo responded “[w]ell we executed a search warrant on his home
in 2020, and he’s been incarcerated—[.]” Id. at 144. Defense counsel moved
for a mistrial on the grounds that the testimony violated the trial court’s
pretrial ruling. See id. at 144-45. The trial court denied the motion and gave
the jury the following instruction:
Ladies and gentlemen of the jury, you may have heard testimony
that [Rodriguez] is incarcerated. Please know that that is not
evidence before you for your consideration. It is not relevant to
this case. So, please disregard that, it has no bearing on guilt or
innocence and it is not a fact that you may consider at all in your
deliberations or consideration of this case. I want to review with
you the presumption of innocence, burden of proof, and the
definition of reasonable doubt. . . .
Id. at 153.
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The jury found Rodriguez guilty of both charges. On May 14, 2025, he
was sentenced to 19 to 60 months incarceration for indecent assault person
less than 13 years of age and 16 to 60 months for corruption of minors,
imposed consecutively for an aggregate term of 35 to 120 months
incarceration. He did not file a post-sentence motion however he filed a timely
appeal. Both Rodriguez and the trial court complied with Pennsylvania Rule of
Appellate Procedure 1925. See Pa.R.A.P. 1925(a)-(b).
Rodriguez raises two issues for our review.
1. Whether the trial court erred where it denied [Rodriguez’s]
motion for mistrial after Police-Detective witness testified that
[Rodriguez] has been incarcerated, where the trial court had
granted [Rodriguez’s] motion in limine precluding presentation of
evidence pertaining to [Rodriguez’s] incarceration?
2. Whether the trial court erred where it sustained [the
Commonwealth’s] objection and prohibited [Rodriguez] from
questioning the witness regarding inconsistent testimony at a
prior trial for being beyond the scope of redirect examination?
Appellant’s Brief, at 7 (record citations omitted).
In his first issue, Rodriguez challenges the trial court’s denial of his
motion for a mistrial.
The denial of a motion for a mistrial is assessed on appellate
review according to an abuse of discretion standard. It is primarily
within the trial court’s discretion to determine whether defendant
was prejudiced by the challenged conduct. On appeal, therefore,
this Court determines whether the trial court abused that
discretion. An abuse of discretion is not merely an error of
judgment; rather, discretion is abused when the law is overridden
or misapplied, or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will,
as shown by the evidence or the record.
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Commonwealth v. Padilla, 923 A.2d 1189, 1192 (Pa. Super. 2007)
(citations omitted).
Rodriguez argues the trial court erred in denying his motion for a mistrial
because, by ruling pretrial that any reference to Rodriguez’s incarceration was
prohibited, the trial court determined that such evidence would be so unfairly
prejudicial that it could not be addressed with a curative instruction. See
Appellant’s Brief, at 18-19. He argues that Detective Scarfo intentionally
sought to introduce his incarceration, as the answer was not responsive to
defense counsel’s question. See id. at 22-26. Additionally, he argues that this
case is controlled by Padilla which, according to Rodriguez, demonstrates
that when a pretrial ruling precluding mention of a defendant’s incarceration
is violated such a violation is so prejudicial that prejudice cannot be mitigated
by a curative instruction and therefore warrants reversal. See id. at 27-30.
We disagree with Rodriguez’s view of Padilla. This Court has previously
explained that Padilla did not create a bright line rule which requires a mistrial
whenever a pretrial ruling prohibiting mention of the defendant’s incarceration
is violated. We have explained:
[T]he Padilla Court’s prejudice analysis was not limited to the fact
that the pretrial ruling had precluded the at-issue testimony.
[Padilla, 923 A.2d] at 1196. The Court also considered that the
jury had overheard the side bar conference addressing the matter,
the inadequacy of the curative instruction issued, and the
problematic subsequent questioning by the prosecutor.
Ultimately, the court found the instruction was too vague to
remedy the infraction. Id. Accordingly, a proper application of
Padilla should view the violation of a pretrial order prohibiting a
prejudicial remark as an important factor in our analysis, but not
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as an automatic determination that the error was prejudicial and
a new trial must be ordered.
Commonwealth v. Ibrahim, 290 A.3d 674, 2022 WL 17588520, at *5-6
(Pa. Super. filed Dec. 13, 2022) (unpublished memorandum). 2 The Ibrahim
court cited Commonwealth v. Hudson, 955 A.2d 1031 (Pa. Super. 2008),
as an example of this policy.3 In Hudson, the trial court issued a curative
instruction regarding the objectionable testimony. The trial court here gave
an appropriate curative instruction regarding the detective’s testimony
discussed above. As stated in Hudson, this Court has previously held that a
“mere passing reference to prior criminal activity” is not prejudicial such that
it requires the granting of a mistrial. Id. at 1034.
2 See Pa.R.A.P. 126(b) (non-precedential decisions filed after May 1, 2019,
may be cited for persuasive value).
3 In Ibrahim, on cross-examination a defense witness mentioned that the defendant was incarcerated in violation of a pretrial order precluding any mention that the defendant was incarcerated. See Ibrahim, 2022 WL 17588520, at *1. Initially, the trial court denied the defendant’s motion for a mistrial and the jury found the defendant guilty of sexual assault but was unable to reach a unanimous verdict on the rape count. See id. at *2. The defendant made an oral motion for an arrest of judgment which the trial court granted. See id. The Commonwealth appealed. We held that the trial court erred by “misapply[ying] the holding of Padilla as mandating the issuance of a new trial when the Commonwealth violates a motion in limine.” Id. at *5 (citation omitted). We found that Ibrahim was “more in line with our decision in Hudson[]” because the trial court gave a clear and specific jury instruction, the remark was not deliberately elicited by the Commonwealth, the Commonwealth did not revisit the inadmissible statement, and the evidence presented by the Commonwealth was substantial. Id. at *6-7. Therefore, we reversed the trial court’s order and remanded for reinstatement of the sexual assault verdict and sentencing. See id. at *7.
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Instantly, the trial court explained its reasoning for denying the motion
for a mistrial, as follows.
During trial, Detective Donald Scarfo (hereinafter “Detective
Scarfo”) of the Pocono Mountain Regional Police Department was
called to testify on behalf of [Rodriguez]. Detective Scarfo testified
that he became involved in the investigation of this matter when
he was on call and received a call from police headquarters
regarding a complaint of sexual misconduct and a ChildLine
referral sometime in 2021. (N.T. 1/9/25, pp. 122-125, 132). Prior
to interviewing the victim, . . . Detective Scarfo reviewed all of the
previous reports and statements in the possession of the Pocono
Mountain Regional Police Department from 2012, when the
original complaint was filed, until the present. (N.T. 1/9/25, pp.
125-126, 131). During Detective Scarfo’s testimony, when asked
by defense counsel if he conducted an investigation into whether
[Rodriguez] owned a firearm, Detective Scarfo responded “[w]ell
we executed a search warrant on his home in 2020, and he’s been
incarcerated—”. (N.T. 1/9/25, p. 144). Following this response,
defense counsel objected and a sidebar was held. During the
sidebar, we acknowledged our Order specifically granting
Defendant’s Motion in Limine that no witnesses were to talk about
[Rodriguez’s] incarceration. (N.T. 1/9/25, p. 146). Defense
counsel requested a mistrial. (N.T. 1/9/25, p. 147-152).
While we acknowledge that any mention of a Defendant being in
custody may prejudice a Defendant pursuant to Commonwealth
v. Keeler, following a brief recess in the instant matter, we denied
[Rodriguez’s] request for a mistrial. Commonwealth v. Keeler,
216 Pa.Super. 193, 195-6 (Pa.Super.Ct. 1970). As we stated on
the record, we found that Detective Scarfo did not intentionally
make the comment about [Rodriguez’s] incarceration. (N.T.
1/9/25, p. 151). Detective Scarfo was called by the defense, and
as such, the defense was obligated to instruct Detective Scarfo of
our Order granting Defendant’s Motion in Limine regarding
[Rodriguez’s] incarceration. Id. We further ruled that a curative
instruction was being provided to the jury. The curative instruction
informed the jury that the jury may have heard testimony that
[Rodriguez] may have been incarcerated, or had been
incarcerated in the past, but that evidence was not to be
considered in their deliberations and that evidence was to have no
bearing on [Rodriguez’s] guilt or innocence. (N.T. 1/9/25, pp.
151-155). We believe our ruling was appropriate, that our curative
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instruction properly resolved the issue of Detective Scarfo’s
comment, and that a mistrial was not warranted.
Trial Court Opinion, 7/23/25, at 3-4.
We discern no abuse of discretion. As explained by the trial court, the
remark was unintentional and the witness was called by Rodriguez, not the
Commonwealth. Further, the trial court gave a specific and clear instruction
that the jury was to disregard any mention that Rodriguez was incarcerated.
See N.T., 1/9/25, at 153. As stated in Hudson, such clear and specific
cautionary instructions cure any improper prejudice from an inadvertent and
unforeseen reference to a defendant’s prior criminal conduct. Hudson, 955
A.2d at 1034-35. As such, contrary to Rodriguez’s assertion, Padilla is not
controlling. The defense’s own witness made an unintentional passing
reference to Rodriguez being incarcerated, and the trial court gave a clear and
specific cautionary instruction for the jury to disregard that testimony. Under
those circumstances, we conclude that Rodriguez is not entitled to relief.
In his second issue, Rodriguez challenges the trial court limiting his
question on recross-examination. “The scope of redirect examination is largely
within the discretion of the trial court.” Commonwealth v. Fransen, 42 A.3d
1100, 1117 (Pa. Super. 2012) (en banc) (citation omitted). “An abuse of
discretion is not merely an error in judgment, but is rather the overriding or
misapplication of the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by
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the evidence of record.” Commonwealth v. Garnett, 328 A.3d 1181, 1186
(Pa. Super. 2024) (citation omitted).
Rodriguez asserts two grounds on which the trial court abused its
discretion in limiting his recross-examination. First, he argues that the trial
court misapplied the law when it only considered whether the question on recross was within the scope of redirect because, under Pa.R.E. 611(b), “matters
affecting credibility” are always grounds for cross-examination and his
question on recross-examination about prior inconsistent statements went to
the victim’s credibility. See Appellant’s Brief, at 34-38. Second, Rodriguez
argues that his question on recross was within the scope of redirect because
it related to the same subject that was addressed on redirect, i.e., the victim’s
prior testimony. See id. at 38-40. We are not persuaded by either argument.
Rodriguez essentially argues that the scope of recross is so broad as to
always allow questions on matters affecting witnesses’ credibility. This is not
the case. Pennsylvania courts have explained that redirect examination is
“limited to answering only such matters as were drawn out in the immediately
preceding examination[.]” Commonwealth v. Creary, 201 A.3d 749, 756
(Pa. Super. 2018) (citations omitted). It follows that recross-examination is
similarly limited. See 1 McCormick On Evid. § 32 (9th ed.) (“the scope of
recross as of right is normally confined to questions directed to explaining or
avoiding new matter brought out on redirect.”). Further,
Cross-examination is a matter of right, but the bounds of proper
cross-examination are necessarily within the sound discretion of
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the trial judge, and this is particularly so when applied to recrossexamination. It must be clear that counsel cannot be permitted to
prolong the course of trial by continually returning to matters
already considered or as to which he has been given ampl[e]
opportunity to examine; otherwise, there would be no orderly
procedure, and nothing but confusion.
Commonwealth v. Romano, 141 A.2d 597, 600 (Pa. 1958); see also
Commonwealth v. Photis, 331 A.3d 609, 2024 WL 4679061, at *3 (Pa.
Super. filed Nov. 5, 2024) (unpublished memorandum) (citing Romano, 141
A.2d at 600).
Here, notably, the Commonwealth asked the victim three times on direct
examination whether she was ever alone with Rodriguez at his house, to which
she responded yes. See N.T., 1/9/25, at 51. Rodriguez had ample opportunity
to question the victim about this on cross-examination. By not raising it on
cross-examination he bypassed his opportunity.
Additionally, his question on recross was not within the scope of redirect.
As the trial court explained,
On recross examination, defense counsel attempted to question
the victim on issues that were not raised on re-direct examination.
The Commonwealth’s re-direct was limited to the question of
whether she [was] ever asked at a previous hearing if [Rodriguez]
ever assaulted her. (N.T. 1/9/25, p. 96). The victim was not
asked whether she was alone with [Rodriguez], nor was
she asked if she ever went “over” to [Rodriguez’s] house.
(N.T. 1/9/25, pp. 93, 95-97). The defense attempted to question
the victim as to whether she was ever alone with [Rodriguez] or
whether she ever went to [Rodriguez’s] house. (N.T. 1/9/25, pp.
93, 96).
Trial Court Opinion, 7/23/25, at 5-6 (emphasis added). The difference in
questions was further highlighted by the fact that the Commonwealth directed
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the victim’s attention to pages 21 to 29 of the transcript, while on recross,
Rodriguez directed the victim to page 31. See N.T., 1/9/25, at 89, 94.
Therefore, “because [Rodriguez] had an opportunity to explore that issue on
cross-examination but did not, and because the Commonwealth did not bring
up the issue on re-direct examination[; w]e see no reason to disrupt the
court’s limitation on the scope of [Rodriguez’s] re-cross examination of [the
victim].” Commonwealth v. Hill, 242 A.3d 419, 2020 WL 6743143, at *9
(Pa. Super. filed Nov. 17, 2020) (unpublished memorandum) (citations
omitted). Accordingly, Rodriguez is not entitled to relief.
For the foregoing reasons, we affirm.
Judgment of sentence affirmed.
Date: 6/23/2026
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