Com. v. Mitchell, I. ( 2019 )

J-A11023-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
IAN FRANCIS MITCHELL :
:
Appellant : No. 1360 MDA 2018
Appeal from the Judgment of Sentence Entered March 7, 2018
In the Court of Common Pleas of Tioga County Criminal Division at
No(s): CP-59-CR-0000163-2017
BEFORE: BOWES, J., OLSON, J., and STABILE, J.
MEMORANDUM BY OLSON, J.: FILED JUNE 25, 2019
Appellant, Ian Francis Mitchell, appeals from the judgment of sentence
entered March 7, 2018, as made final by the denial of post-sentence motions
by order dated August 8, 2018. We affirm.
The following factual summary is based on the transcripts of testimony
from Appellant’s trial. On March 8, 2017, the victim (hereinafter “I.D.”) was
ten years old. I.D. testified that on the night of March 8, 2017, her step-
father, Appellant, entered her bedroom and was not wearing any clothes. I.D.
testified that Appellant got into bed with her and removed her clothing.
Appellant then touched the outside of I.D.’s vagina with his hand, mouth, and
penis. She testified that he tried to put his hand, mouth, and erect penis
inside of her but she managed to get him away by “kicking and punching, and
yelling.” N.T., 1/25/2018, at 76. I.D. indicated that Appellant left the room
and came back a couple of times and tried the same thing each time. Finally,
J-A11023-19
when Appellant left the room, I.D. left the house. At first, she hid outside,
then she returned to the house to get a pair of boots. Then, wearing small
pajamas and large boots, I.D. walked a quarter of a mile to a neighbor’s
house—the home of a girl with whom she went to school. It was 48 degrees
and windy that night. One of the neighbors testified that I.D. appeared on
her doorstep crying hysterically and that she said, “help, my step-dad is trying
to rape me.” N.T., 1/24/2018, at 174.1 The neighbors called the police and
an investigation followed.
During the investigation, I.D. took part in a forensic interview in which
she described what happened to her. In the interview, I.D. used childish
words such as “pee pee” when referring to her step-father’s penis. At trial,
the defense introduced I.D.’s diary into evidence. The diary contains entries
that include vulgar words and descriptions of sexual scenarios. At trial, I.D.
testified that she did not write all of the entries in the diary. She testified,
“me and my friends write in it.” N.T., 1/25/2018, at 122. I.D. also testified
that March 7, 2017 was not the first time that Appellant assaulted her. She
indicated that Appellant assaulted her regularly, at least five or more times.
The trial court summarized the procedural history of the case as follows.
[Appellant] was charged with six (6) counts of criminal attempt
rape of a child, [a] felony in the [first] degree, six (6) counts [of]
indecent assault of a person less than 13 years of age, [a] felony
in the [third] degree, six (6) counts of simple assault, [a]
misdemeanor of the [second] degree, and one (1) count of
____________________________________________
1The neighbor’s husband testified that I.D. said, “[c]an you please help me,
my step-father tried to rape me, again?” N.T., 1/24/2018, at 185.
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harassment [], a summary offense. The court held a jury trial
from January 24, 2018 through January 26, 2018[,] after which
the jury convicted [Appellant] of four (4) counts each of criminal
attempt rape of a child, indecent assault of a person less than 13
years of age, and simple assault and the court found [Appellant]
guilty of one count of harassment[.]
On March 7, 2018 the court sentenced [Appellant] to a minimum
period of 84 months[’] incarceration and a maximum period of
180 months[’] incarceration on each criminal attempt rape
conviction, [with the sentences to run consecutively], for an
aggregate sentence of a minimum of 336 months [of]
incarceration and a maximum of 720 months [of] incarceration.
The court also sentenced [Appellant] to a minimum period of 12
months[’] incarceration and a maximum period of 84 months[’]
incarceration on the first three convictions of indecent assault of
a person less than 13 years of age and ran each of those sentences
concurrently with the fourth count of criminal attempt rape of a
child. On the fourth indecent assault conviction, the court
sentenced [Appellant] to a probationary term of five (5) years and
ran that sentence consecutively with the fourth criminal attempt
rape conviction and the first three indecent assault convictions.
In addition, the court sentenced the [Appellant] to a minimum
period of [nine] months[’] incarceration and a maximum period of
24 months[’] incarceration on each of the simple assault
convictions and ran them each concurrently with the fourth
criminal attempt rape conviction and the first three indecent
assault convictions. Finally, the court also ordered the [Appellant]
be subjected to the registration requirements pursuant to the
Sexual Offender Registration Notification Act as a Tier [Three]
[O]ffender for each of the criminal attempt rape and indecent
assault convictions.[]
Trial Court Opinion, 8/8/2018, 1-2 (unnecessary capitalization removed and
footnote omitted). After some confusion regarding Appellant’s representation
and the timeliness of Appellant’s motion to modify sentence and other
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post-sentence motions,2 the trial court permitted Appellant to file the
post-sentence motions nunc pro tunc, and accepted them as timely. The trial
court denied the motions by opinion and order dated August 8, 2018. This
appeal followed.3
Appellant presents the following issues for our review.
1. Were the verdicts for four counts of attempted rape[], four
counts of indecent assault [], four counts of simple assault[],
and one count of summary harassment[], not supported by
sufficient evidence? Did the [c]ourt err[] since the jury never
rendered a verdict on count fifteen (simple assault)? Was the
testimony and evidence [] based purely on [speculation,
conjecture, and false testimony]? Was the evidence so
contradictory and speculative that fundamental due process
was violated pursuant to the Fourteenth Amendment of the
United States Constitution?
2. Were the aforementioned verdicts against the weight of the
evidence? As to count fifteen of simple assault, did the jury
not reach a verdict? Were the verdicts of guilt such that the
verdicts should shock the conscience of this Court since the
verdicts were based on speculative evidence and conjecture
and false testimony? Did the verdict violate the Fourteenth
Amendment of the United States Constitution?
3. Did Judge Wheeler err in not granting a new trial on after
discovered evidence [from] the handwriting expert and [I.D.]’s
____________________________________________
2 Appellant’s post-sentence motions requested relief based on supposed
after-discovered evidence, in the form of handwriting analysis of I.D.’s diary.
The analysis showed that I.D., in fact, wrote the page of the diary that included
a description of sexual acts she wanted to perform with “hot boys.” Defense
Exhibit 2.
3 Appellant filed a notice of appeal on August 17, 2018. On August 20, 2018,
the trial court issued an order instructing Appellant to file a concise statement
of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On August
31, 2018, Appellant complied. On October 12, 2018, the trial court issued its
1925(a) opinion, which adopted the reasoning of its August 8, 2018 opinion.
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mother [showing] that the victim wrote the diary entries, which
contained explicit and shocking entries about wanting boys to
put their penis in her body and things of that nature, when
[I.D.] denied at trial writing these entries and said her friend,
J[.], wrote the entries[?] Did Judge Wheeler err in holding that
this was used only for impeachment [of] credibility when, in
fact, this false testimony undermined the entire truth finding
process?
4. Did the Assistant District Attorney engage in prosecutorial
misconduct during the trial when she asserted [I.D.] did not
write the diary entries, but her friend, J[.], did? Did the
Assistant District Attorney act improperly and mislead the jury
when the Assistant District Attorney on her redirect
examination of [I.D.], had her say that many entries were
written by her friend, “J”, and then argued [I.D.] did not write
the diary page? Did the Assistant District Attorney blatantly
mislead the jury and present false testimony on an extremely
important issue and thereby taint the jury by her misconduct
when after the trial, the Assistant District Attorney asserted
[I.D.] did write the diary entries?
5. Was trial counsel ineffective and was the ineffectiveness
apparent on the trial record when trial counsel allowed and/or
introduced unrelated, prior conduct of [Appellant] that clearly
tainted the jury and did not ask for a curative instruction?
6. Were the consecutive sentences imposed by Judge Wheeler
resulting in 28 years to 60 years of incarceration an abuse of
discretion? Did Judge Wheeler fail to state adequate reasons?
Did Judge Wheeler fail to properly evaluate the requirement
under 42 Pa.C.S.A. 9721(b), including the rehabilitative needs
of [Appellant] and his family? Although the individual
sentences are within the [s]entencing [g]uidelines, was the
sentence collectively an abuse of discretion and a totally
excessive sentence?
7. Did Judge Wheeler err in not allowing the defense to have a
psychiatric examination of the alleged victim, [I.D.], when
there were clearly psychological issues as to the competency
and truthfulness of [I.D.]’s testimony? Did this error violate
fundamental due process under the Fourteenth Amendment of
the United States Constitution?
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Appellant’s Brief at 13-17.
Appellant’s issues are essentially the same as the issues he presented
in his post-sentence motions. We have reviewed the parties’ briefs, the
record, and the trial court’s comprehensive opinion dated August 8, 2018. We
conclude that the trial court’s opinion adequately and accurately disposes of
the issues on appeal with the exception of issues number four and six.
Accordingly, we adopt the trial court’s opinion as our own with regard to the
other five issues,4 and we will address only the allegation of prosecutorial
misconduct and the challenge to the discretionary aspects of Appellant’s
sentence.
In the fourth issue, Appellant alleges that Assistant District Attorney
Tiffany Cummings committed prosecutorial misconduct by “allow[ing] and
assist[ing] in the presentation of false evidence to the jury.” Appellant’s Brief
at 73. Specifically, Appellant argues that Attorney Cummings encouraged I.D.
to provide false testimony and “brought out that J[.] wrote some of [the]
entries [in the victim’s diary].” Appellant’s Brief at 69. This assertion is
contradicted by the trial record. On cross-examination, defense counsel,
William Korey, Esquire, asked I.D. about the contents of her diary. Attorney
Korey referred I.D. to a specific entry, and it appears from the transcript that
I.D. had trouble finding the entry at first.
____________________________________________
4 As such, we instruct the parties to attach the August 8, 2018 trial court
opinion to all future filings pertaining to our disposition of this appeal.
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[Attorney Korey]: Have you found it?
[I.D.]: Yes.
[Attorney Korey]: Okay, could you read it, so that I’m not putting
words in your mouth, so the [j]ury could hear it?
[I.D.]: Most of this actually isn’t mine.
[Attorney Korey]: Um-hum (in the affirmative).
[I.D.]: Could I say, like—could I say something?
[Attorney Korey]: Why don’t you read it and then you can clarify
it for us, okay?
[I.D.]: “This is what I want to do to some really hot boys; I want
the boy to stick his dick in my vagina and ass, and have sex with
them all day.”
[Attorney Korey]: Okay; and then Attorney Cummings will be
able to ask you about that and you’ll be able to kind of
explain some of that.
N.T., 1/25/2018, at 119 (emphasis added).
The following exchange took place between Attorney Cummings and I.D.
on redirect examination.
[Attorney Cummings]: You wanted to explain something about the
writing in your diary. Do you want to go ahead and tell us what
you wanted to say when you were claiming that you didn’t write
that one page?
[I.D.]: Me and my friend, [“J.”], wrote some of—wrote some of
those things.
[Question clarifying the name of I.D.’s friend]
[Attorney Cummings]: So, are you saying that both you and your
friend wrote in this diary?
[I.D.]: Yes.
[Attorney Cummings]: Were you saying those specific words
[sexually explicit words] were not yours?
[I.D.]: Some of them were and some of them weren’t.
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…
[Attorney Cummings]: Okay. Even if you, whether you were or
were not the person who actually wrote the words dick, vagina
and ass on that page, did you know those words as of March,
2017?
[I.D.]: Yes.
N.T., 1/25/2018, at 127-128.
“Prosecutorial misconduct includes actions intentionally designed to
provoke the defendant into moving for a mistrial or conduct by the prosecution
intentionally undertaken to prejudice the defendant to the point where he has
been denied a fair trial.” Commonwealth v. Chmiel, 777 A.2d 459, 464 (Pa.
Super. 2001). Preliminarily, Attorney Cummings did not “bring out” the
testimony as Appellant alleges. Attorney Cummings simply asked I.D. to
clarify her testimony. Attorney Korey specifically told I.D. that Attorney
Cummings would do so after refusing to allow I.D. to explain herself on
cross-examination. I.D. began to explain that she did not write all of the diary
during cross-examination by Attorney Korey.
While Appellant’s handwriting expert concluded that the page in
question was written by I.D., there is absolutely no support in the record
for Appellant’s bald assertion that Attorney Cummings somehow knew I.D.
was not being truthful in her response. Therefore, Attorney Cummings did
not intentionally elicit false testimony. Moreover, Attorney Cummings
clarified that whether or not I.D. was the one who wrote the entry, she was
familiar with those explicit words. Appellant places a great deal of emphasis
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on the diary and the fact that I.D. allegedly lied about writing that page.
Appellant introduced the diary to show that I.D. knew the types of graphic
words that she pretended not to know in her forensic interview. I.D. admitted
as much.5 Therefore, Appellant was not prejudiced in any way by this
allegedly false testimony.
Appellant also argues that the Assistant District Attorney misled the jury
when she stated during her closing argument that I.D. did not write the
particular page in the diary that contained the explicit words. According to
Appellant, this misrepresentation was further exacerbated when the Assistant
District Attorney indicated in the supplemental reply to Appellant’s post-
sentence motions that I.D. did write the page in question. Appellant argues
that these representations by the Assistant District Attorney raise “very
serious concerns about the integrity of the prosecution” and places the
____________________________________________
5 Notably, I.D. also explained quite cogently why she pretended not to know
the words in her interview,
[Attorney Korey]: [C]an you help us understand why you testify—
excuse me, why you make statements at one time in the forensic
interview where you have a hard time describing body parts and
you call your step-father’s penis a pee pee and yet you’re very
descriptive in your diary of vagina, penis, and ass—
[I.D.]: --because—because when you’re writing things down, it’s
not talking to an adult. I’m sure when you’re a kid, you don’t say
those kinds of things to adults, but you can say that to your friends
or you can write it in your diary.
N.T., 1/25/2018, at 121.
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“integrity of the trial . . . at issue.” Appellant’s Brief at 73. These arguments
are meritless. Nothing in the record leads this Court to believe that the
Assistant District Attorney lacked integrity or that her actions placed the
integrity of the entire trial in question. To the contrary, the Assistant District
Attorney acted professionally, responsibly and appropriately at all relevant
times. The representations made by the Assistant District Attorney were
based upon the information that she had at the time. As I.D.’s statements
regarding the authorship of the diary were clarified during and after trial, the
Assistant District Attorney properly represented her understanding of I.D.’s
statements. The record does not contain any proof of prosecutorial
misconduct. Appellant’s fourth claim fails.
Turning to the sixth issue, Appellant challenges the discretionary
aspects of his sentence. The trial court addressed this issue in its opinion of
August 8, 2018. We agree with the trial court’s assessment, but to dispose of
the issue in the clearest way possible, we explain why Appellant failed to
present a substantial question regarding the propriety of his sentence.
Pursuant to statute, Appellant does not have an automatic right to
appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b).
Instead, Appellant must petition this Court for permission to appeal the
discretionary aspects of his sentence. Id. In order to reach the merits of a
discretionary sentencing challenge,
we must engage in a four part analysis to determine: (1) whether
the appeal is timely; (2) whether Appellant preserved his or her
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issue; (3) whether Appellant’s brief includes a concise statement
of the reasons relied upon for allowance of appeal with respect to
the discretionary aspects of sentence; and (4) whether the concise
statement raises a substantial question that the sentence is
appropriate under the Sentencing Code.
Commonwealth v. Foust, 180 A.3d 416, 439 (Pa. Super. 2018) (cleaned
up). Appellant’s appeal is timely, he preserved the issue and his brief contains
a concise statement of reasons relied upon in accordance with Pa.R.A.P.
2119(f). However, Appellant’s concise statement fails to raise a substantial
question that the sentence is inappropriate.
In his 2119(f) statement, Appellant argues that his consecutive
sentences are “mean[-]spirited and harsh[.]” Appellant’s Brief at 46.
Appellant’s sentence for each charge is within the standard guideline range.
See 204 Pa.C.S.A. § 303, et seq.
[A] defendant may raise a substantial question where he receives
consecutive sentences within the guideline ranges if the case
involves circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an excessive sentence;
however, a bald claim of excessiveness due to the consecutive
nature of a sentence will not raise a substantial question.
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super. 2013).
Appellant’s statement contains slightly more than a bald claim of
excessiveness, in that he mentions that the sentencing court failed to consider
Appellant’s rehabilitative needs. However, failure to adequately consider
mitigating factors generally does not raise a substantial question.
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
“Moreover, where, as here, the sentencing court had the benefit of a
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pre-sentence investigation report, we can assume the sentencing court was
aware of relevant information regarding the defendant’s character and
weighed those considerations along with mitigating statutory factors.”
Commonwealth v. Rhoades, 8 A.3d 912, 919 (Pa. Super. 2010) (internal
quotations and citations omitted). As such, Appellant’s case - a prosecution
involving serial acts of attempted sexual violence against a child member of
his own family - does not involve circumstances under which the application
of the guidelines is clearly unreasonable. Thus, Appellant failed to present a
substantial question, and, he is not entitled to appeal the discretionary aspects
of his sentence. Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/25/2019
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Circulated 05/31/2019 02:39 PM
CONTht101{ \VEALTH OF PENNSYLV Ai"ITA
VS
IAN FRANCIS MitCEELL :NQ.163·CR.2017
OPINION
Attempt Rape .of a Child,-.fe}.ony in the. i.si ,degree, six .(6) "GOUQ.ts. Indecent.Assault.of a Persoa
Less� 13 Years-of Age, Felonyin:the·3l'li degree, so: (6) counts of Simple Assault,
-- _.__ _. �···-···"' .
Misdemeanor·ofthe:.2nd_negree,_-and':0�e·.(l)·couµt.of�assme0:t-.&ibjec:t.Otberto Physicai
Contact; a Smnm.mjr. offense. The court held ajury-tr,ial from. January 24, 201:8 tbro� January.
.16_, 2018.aftet which the jucy:cqnv.icted Defendant of four {4) countseach of Criminal Att�mpt-
Rape of··a Child; Ind.e.ceiitAssault of a P�rson Less-thaa 13 YearS of Age, and Simple Assault
and the ·dbtnt:found Defendant guilty ·0,fqne:coU:o.t. of'Harassment .... Subject,A,nother" to Physical
Contact:
Ori.March 7/2018 the.court sentenced the Defendant to a minimum period of-84.mont4s
�on_a,ncf .a maximum period of. l&O·months 'incarceration.on �� Ctimiriaj: Aftempt
Rape bop:viction and for the sentences to ron coasecutively, for-an aggregate sentence ofa
minimum of336 -months .incarcerationandamaximum
. ·. . . . . . .. of'.120
. ... . months.incarceration,
. .. . 'The court
also sentenced Defsndantte :a:-:tninimum._:peciod of 12 months incarceration and a IIUWmum
·period of.84 mon.�-incaroetmfon on·the·first three.convictions. pflndecent:Assault of aPerson
· Less than 1� Years of Ageandraa each of those-sentences
,
concurreatly
.
\\rith the fuprth connt qf
Criminal Atte01pt Rape of a .Chi.kl tn1 the fourth Indecent Assault conviction the court
sentenced Defendant to aprobarionary term offive·.(5) years and ran that senieace consecutively
with the fourth Criminal Att.empt Rape conviction � the first three Indecent Assault
...... ....--····· ..... ,... .••..•...... ·--·······--·--·--······· ···----- ·---·-----·······---·············-----·-··· ····· ············--- .
convietions. In addffion., the·c;�urt. sentenced t,he· Deferidantto a minimum period o·f9 mot1�
incarceration and amaximum. pei.iod of.24 months incarceration on each �f the Simtlte:A:$sault
convictions and· ran them -each concurrentf y with the f9m1h Criminal A.ttempfhpe· convicfion
end.the firstthreel!idecent.As�ult convictions. Finally, tbe·<::QUrt.s�qteno�d th�.I)efendantt-O 45
to 90 �ys err the lli:rassmen.t conviction and ratj the sentence concurrently with the·fourtli
Criminai Attem:pt . &iq,e eonvietion, Jbe court also ordered the Defendant be subject 'to the.
!e$.Ismtt.i6.t\���ts_P.�U9 th� S� ...Q�mter.Re��icm..Np�atlon.Act as.a Tier.
.3 o.ffendei;, for each pfthe Criminal Attempt Rape �d Indeoent ;Assault Convictions.'
During the fuajority,ofpi:e.··trial.�dings, trial, and sentencing Derendarir�
.tepesented byAtt�·William Kerey.Esq Mer sentencing Defeadant applied for, and
»,
qualified for, appointed counsel and the.court appointed �Y Edward.J, Rymsza, Esq. At
·this ·pomt there .,.'\'a.S·:co�i:Cl.11. over who represented Defendant as .he did net want Attomey
Rymsza to. represent him and Attorney Korey continued :to. sooput· .filings. Eventually. Defendant
privately retained Attorney Sam.uel Stretton, Esq_ to represent hitn and AttomeJK.orey continu�d
to represent.Defeadant as· co-counsel and Attorney Rymw,a:wi,.s ultimately-permitted to withdraw
his representation ..
To the middle-of the.confusion over Defendant'srepresentation, Attorney Korey filed,
among multiple at/ler. filings; a Motion to Modify Sentence on March 19;, 2018 and a motion
titi,ed. ·�tjon To $e.t J,..side. Yerdict With RequestFor Afl.Evidentiary Hearing. An:� Wrth
Companion Moti.on.Jur.Rect,tSai Se;� A Replacement Judge Rule OnEnclosed Requests Far
t T,be.cofut.did :ndf order tbe'E>efendaqt to undergo an evaluation with the Sexual Offender
Assessm,eµt Bo,a.rd.{SOAB} priorto :sentencing because at the time ·of.the Def.endant.'.� coqvi9tjoo
!he SeXJJ..af Vi.ole.ntiPreruttor designati.o.n bad been found unconstitutional .and the SOAB was not
performmg·evalua:firms.. See Ctim.monwealth v·. Butler, 1·.13 �ld. l21� (Pit.Supe.r .. 20:17).
Relief" (herem.llf!er "Post-Sentence N10601t) oa March �;l,201-.8. ·The. Motion·to.:Moility:
Sentence was 1imelr fi1ed ..under Pa;R..CntiJ.2 °' 7?q ·21$- th�� day after .sentencing fell-on a
\Ye�ke.JJ.ci a:ndAttomeyKorey filed the motion that M0,od�y. ;µtorney Korey, however, filed the
Post-Sentence Motion two days later. � April "3, 201 &," however, t.he court issued an Order
.eccepting' ali previous filed post-sentence motions nunc pro. tune and considering them · timely
Post-Conviction' Companion Motions Seeking Special Relief'! (herei:naftet "'Amendeq Post-:
'Sentence Motion.I) on April 2.5; 2018. Attorney. Str.etton then field an Anlen.ded Motion to .j
·Modify And Reconsider The Sentence and Amended Motion P9r A. New Trial And Arr,e.st Of I
r
Judgtnent.(hereinafre.r""Amen_ded Post-SeatenceModon II} on°.or·aborii..JUile2{5; 201.8: The court
held a heating .rm a.U:post--trfal �ODS on July s-;. 201-�'" At that.headng the Defendant; through·
M.omey Stretto� orally· abandoned all motiO.ns- fil� 1zy Attorney Korey, exceptfor a request for·
t:bt.tetum of property. wb.fol:ds not ripe �t this time as ¢�. case i's still periding; .and argued only
those motions .flied by Attom�y Stretton,
On March 20,,20-118 the Commonwealth filed an.obj®.hon to Defendant's motion to.
modify sentence. arg:u.i.rig :the motion w�· filed mor�.thantenia1s after sentencing. The
Commonwealth also filed.an objecfron to Defendant's Amended Post-Sentence MotionIl
.claiming-it wes amending an untimely filed motion, either the Post-Sentence Motion or
.J\lnen.de4.- ,Post-Sentence Motion �-and was.taerefore itself untimely� T;h�. GoIDID,onweiith.now.
coacedes
. ...
the original .MotiQ� to 1v!'o($fy .Semence was timely
·. filed .and .therefore the Amended·
':Motion to Modify Sentence.was an amendment to a. timely filed. motion but continues. to argue
.the op:ginaf°Po&t-S.entence Motion-was untimely. The court.however, is permined to grant a
· ···· ·· ··· ··--·--· ·-···---------------------------
de� the right to. file post-sentence motions nunc.pro. rune for suff;jcient oeuse as. long as the
motions
. were tiled within thitfy. (30) .da,YB- of sentencing.
. ·.Commonwealtb v. Dreves, �9 A2:d
. ..
1122, B 28 (P.a.StWer. 2003). :If°the court chooses to .grant a derendarit:the right.to file post-
.sentence motions :ni.,ncpro t'tf.Tlc ifmust do' so expressly.. Io. Suffi.ctent cause. e�sre.d.:·in.:this case
dne to the· 90Dfw;ion over.Defendant'srepreseatation arthe time the JJOSt-$eiltence motions were
_th�·�ely-¥.742
A.2d 178,'189 {P�'Buper. 1999)),
p� does any act which constimtes.a subsiantial.step.toward the commission qfthat crime." l8
P.e..C:-S. §901fa:). Rape ofa Chila is when· ap.ersoo. has 5� intercourse with a complainant
under the age:.of th.u:teep ( 13),. l & Pa. C:S�. :§3121.(.c) .. Indecent Assault of .of a Person Less· than,
13 years of age occurs when a person bas indecent .contact:witjl a compl� '. andthe:
q;inipla'.mands ..under tbe ·�e.of thirteen (13) af the time, l8 Pa.C.S, §3126(a)(7). fitially,
SµI_Ipfe.�sarilt, as charged. in �is case, requires-a person to· attempt by physical menace to. put
another in fear. of imminent serious bodily injury. i 8 Pa. C, S. §270 Ha.)(3).
·---·--··-....... -·-
At trial tbe-ool:y evidence tb.e Connaonwealth presented regarding the alleged .assaults
was the victim, LD. 's, testilnony� LD. testified that on�e night ofMaJ.tcb 8� 2Dl7 she was lying
in bed. ln her bedroom .in. the .home she shared with her mother, stepfather {the Defendant), and
brothers in Millerton; Peil.D.SyJ:v.ariia when the Defendant entered the bedroom naked. Trial
·rranscript.Dav 2, Januarv 25. 20J 8. 72-73. She testified the Defend.ant then climbed inw bed
"Wl1Il: her and took off some of'her clothes. ·� .Aftertakin:g off some ofber clothes, I.D. testµit!d,
the Def�danttpu�b�d her�-�- w¥n ;his hand, tong@; oo.d penis_:� attempt� tpJnsir.tJfil, -·· _.. _ .. _
three body parts into her vagina, .but was unsuccessful, Id. at 74-75. l.D. · testified she was able to
get the. Defendant off ofh-er by kickinghim, punching him, and screaming. Irl. at 76. According
to I.D., the Defendant left and reentered her bedroom multiple times that night and When he
would reenter he would perform the same actions, · Id. at 78,
Later in herdlrect�on; LD, testified the.Defendant touchaj.h.Grv.ngina five(S) or :·::," -·
mare times prior to the night of March R, 2017 while the family lived m the Millertori house. Id.
at 88�90 . .She.stated that d� those five(S) or more previous incidents the Defendanttouched
her vagina with his mouth and penis. Id; at 92.
I.D ..also testified to her age and date. of birth and, therefore, �e age requirements for the
Criminal Attempt Rape and Indeceat.Assault, as charged.were met Id:. at 55.
I.0.'�.testimon)r that on March 8,.2017 Defendantentered.her room, disrobed.her,
touched her. v.agma
. with. his band, mouth,. and penis,
. and. attempted
. to rnser; each body part into
her vagina
.
was sufficient for tbe jury to find him guilty ofone
. cocnt.each of Criminal Attempt
.
Rape, lndecentAssaul], and Simple Assault ay att�ptingto in�hls.penis into l.D.'s vagina
Defendant ·took a: substantial step· towards having sexual intercourse '\¥.i.tb LD; when she was
under tl¢ Elge of'thirteen (13). Hii intent to have sexual intercoerse with her tan be. i.nf�ed by
his actions of attempting to lnsen his penis into her. vagina. See Commonwealth v. Chance, 4$"8
A.2d 1371. 1374 (Pa.Super. ,I 9&3 ); In t(;}u,ching l.D. 's yagina Wim b,is hand, mouth.. and penis,
Defendant:had indecent c'onfB:ci with LD. when she. v;'B:S underthe age ·bf thirteen (D).
Defendant' s actions in the bedroom also gave the jury .suffloieat.evideaee that )le attempted·
through phymcal menace to put 1.D. in fear ofimminent serious bodily injury as by placing his
mouth, hand, and penis on her vagina
·--· --�-�······:·· . ······- ..... ...... ......
,.,,., "',.. ···-·a jury
�.. conldhave.reasonably
.. ... .... ..... ..
,,,.,. . -. -
believed.LD.
. -··. -·- . ...
wasin fear of -
., .,
imminear serious' bodily mjtuy.
Def�ndant' s a.ctions on March gt!i were also sufficient for the jucy
.
to find him gtii.lty
.
of an.
ackii.tkmal count each of Criminal An.empt Rape, Indecent Assau14 and Si.mple Assault. LD.
testified th� after Defendant assaulted her the first time that hight he exited and reentered the
room -OJ.'l. multiple· occasions ..Upon :his reentry Defendant assaalted LD; in the .same manner he
did durirtgthe initial assallit. While LD. did:not testify.as to bowmany times the Defendant
exited and reentered the. I'OOI.11 ibat.oight, the jury, based on LD� 'stestimony, could have.
r�onably inferred that' �t least one additional assaulrtock place subsequent to the initial one.
Thus th� evidence was sufficient to sustain asecond conviction on each charge. based on.
Defendant's actionson tlre ·bight of March .gt 2017:
In addition to the assarilts on March gtn� ID. testified DefendaQ.t assaultedher on five (S).
·OI' more prev.ioll$ occasions by tcnchlng her vagina with, his mouth and penis. The.jury could
have reasonably found that by touc:hin.glD.'s'va:gina with his penis Defendanrtcok a substantial
step to:w.ards �vin$ sexual intercourse Witb. lier. They also could. reasonably infer that by
touching I.Q;;sv�w.ith bis penis Defendant-manifested the.intem to. have.sexual intercourse
with I..D. These are the two
. requirements .i'J.ecessa:ry
. to sustain a, conviction for Cru:ni.nal Attempt
Rape .and the jury;s finding of both ofthem is supported by ID..;$ testimony) as.viewed in the.
light most favorableto the Cemmonwealtb, The fact that Defendant did not followthtough with
. having s�xtihl intercourse with.I.D. dufi.ng-these assaults dees.aet. negate his interi! to do so, 6r .the
substantial step he took in.furtherance of doing so. J,D. 's testimony of these previous-assaults
.also provides su,.fficieti.t evidence tt> suppart.conviction-s of'Indecent Assault and Simple. Assault,
The evidence is thus sµfficient to �pport the jury's· convictions of Defendant for two more sets
of coun.ts
-. of...Crirm,nal
""·--···----··--. -·-·-······ :· .-.-··-.-...... .. . ... . -- ....Ra�
A,ti:empt _
. . ..... - Indecent Ass�t,
.
and-.
Si.tn�le
- Ass�iil!:_
.·. .
In .light ofthe above, and as the testimony of the -t1ctini in a sexual assault case 'ls
. . .
sufficient in and ofitselfto support a conviction, the court will �Y Defendant's request. for a
pew vial ?r arrest ofjudgmenfbased on insufficiency of the evidence.
n. Weight.oftheEvidenee
.. ; ..:.:.. ·. •: . �. -�-" .
. Defendant also asserts the jury1s verdict was against the -weight of the.evidence preseilt¢,d
·� triar. The. question ofthe weight of the evidence is almost exclusively in the hands of the jury
as finder of fact. C.Ommonwealth v. Champney, 832 A2d403� 408 (Pa. 2003)fmternal citations
)
omitted), A courr.shculd only overtum a jury's verdict if it.is so against the, evidence as to shock
ones sense ofjustice. Seeld. Thejuryr;i,S factunder. is free to believe all, some, ornone-of the
evidence presented and h is their �le to make all credibility determinatioas. a,
The trial .in this caselasted three days with testimony from. multiple witnesses, including·
lengthj• cross-examinations, With thatbe.ing.said, the case essentially bpijs down to. the
testimony of two witnesses, lD. and the .Defendant, LD. testified i;he Defendant sex�Uy
assaulted her cm multiple occasions. The Defendant testified he did no such thing and l.D. was
makjog all dfthis up; Therf;! was no physical evidence or third party �ye witness testimony. ·. The
_____
..... ········-···········-·.. ·•··· ...
;...._
················--·------- .. ·-------
...,;._ .....
--- ..-·----·-..·-··-·····-··--·-..-·
csse was a classic she said he said. After h� the testimony, tb.ejtity apparently believed LD;
over the Defendant; They found her testimooy mote credible than .his. Th.at was tl;icir ·
prei:oJ.rtive as the. fact finder; The finding is not.so against the evidence as 'to shock the court's
.. .'
sense ofJ�ce and the court w.il1, therefore, net �verrule thejury' s determination, The court
will deny Defen�t's request · for a new trial and arrest ofjudgment based on his weight oftbe
evidence claim.
Defendant's.next post-sentence motion is a: request Iora new trial based on the court' s
denial ofDefendanr' s pre-trial motions for the .court to require I.D. to undergo a psychiatric
evaldmi.on.. A trial court has- .the �µ.thority to.order a -victim to undergo an involllEltary·.
psychological evaluation if there are concerns regarding the victim' s competency to testify as a
witness. ConciLonwealth v. Boicp.. 982}�.2d 102 (Pa.:Super. 2009�� Gi� the serious privacy.
implic:ationsofsu�h an. order..however; the involuntary psychological evaluation shoufdncrt be
the starting' point.for a: competency review but should rather only be required when the "record
unequivccally demonsl:tates acompellirig need for'the.examination," Id. at 110 (citing
CornmonwealthY. Alston. 864A.2d 539 (Pa.Super. 2004)(en ba,u;)); Tue court is tlila� of,
-, and Defendant does not present any; iega[ authority that would pemul ittn force a witness to
undergo an involuntary psychological evaluation for any other reason.
Defendant's -argument is 'based on. .fueallegmort
. the court erred in redacting a
psycb()logical examination .pf LD .. provided to the Defendant. before trial. that was .contained in
1
The court notes Defendanr's Amended Post-Sentence Motion 1I refers to the court's denial of a
request for a Psychiatric evahiation while Defendant' s pre-trial motions requested the court order
LD. undergo a psychological evaluation, This discrepancy does rujt alter the. court".s -analysis.
.. ········--········ ··-··· ----·-·-·-····--·-··--- --··-···--····" _
the Tioga Cal:Wty Department .of Ruman Services.records and that 1,D;�s diary .contradicts "most
. of-what the victim... said," Initially� wli.en a defendant requests records ftam a family service
a,gen.cy. the. ci:mrt is required to perlotm an in camera review- and tben provide the defendant with
anything he or.she is entitled to; PeCRsvlvariiav. Rltchle. 480U.S. 391 {19&7). That is.theexsc!
process the ·court undertook in this case. No part of the redacted portion of the psyehologica;
evaluation contained a.try information the Defendant 'was .entitled to. The co.url does not believe a
. defendarit. �bpcld be �g.t.LtJ:e.g.__�_.a.n��:9.9.��JlLJ,n�r�bJ��c.aus.�_h.e_ocs�e is .entitled to.a . ---··------------- .
.portion of the. document. Not does the cOUFt believe the D� should b.e entitled to a
1
documen; just because of its inclusion in a family service recard 'When he w�uld not otherwise be
�edtoit.
I
. Secondly, the assertion lD. 's diary "contradicted most" of what. she said:is. a gross.
mischarecterizarlon ofthecolitents:ofth�
-,
diary, The di.a.ryd.,oes not comradict I.b.:'siestimony
I
-1
as � cli� does not address those events.
I..
ofthe circumstances of the night of March 8, 2017
The. diary does not contradict I.D. �s t�timony regarding earlier incidents of abuse perpetrated· by
Ddendant as the diary does not address those incidents. The diary cannot contradict statements
or testimony it does not address.
Finally, and.mo.st.importamly, theabovearguznents are not the ones trial counsel made in
his request for the. court to order I.D. to. undergo a psychological evaluation. On August 29�
2.017, as part of his consolidated pre�trial motions, trla.l counsel fileda motien.requestingLl) .
• undergo a psychological ci.-amination. This motion wasfour(4) paragraphs iongand asserted
counsel became a aware of mental health. and beh.,w:i�l health issues ofl..I)., the P.efendsnt,
I.D.'s step-father, and her mctioa were concerned aboutl;D. 's wellbeing, and that a
psychnlogical evaluation would· be beneficial. ta t�e; prosecution 'in the. interest -Qf justice and YI.BS
.in LD. '·s best.iaterests, The court denied this request. On January 19, ZQ'l:8 trial COUPSei filed
motien requesting 'the court reconsiderits previous ·denial -�f the Defense, reqµest 1pr I.D. to
undergo a psychoiogicf!l examlnaticm, .That motion reiterated the reasons included �- 'the 0.rigi.$tl
motion and:�d··:t®·assertion· nit is crucialthafher mental :health-� evaluated, esp�ia11y a;,
linked to b.e.r false-representatlouby way of so-called forensic tape. recorded pres�atio°' ar.tbe
Habeas proceeding, as contrasted with h�t written rfNelationfin her diary,"
evaluation comes· dose to alleging LD. was incompetent to testify at trial, The mcstgenereus
· reading, of themotion for reco$i�lon. is tfuµ· �e � a contradiction betweea whar LD .. said
• ,, ·i
during a forensic .interview al the Children's.Advocacy Center and whai she wrote in her diary.
This contradiction, .ho'wt:ver� would tl.ear�y. .go to-1.D/s credibility as a.witness.and nother I
!
I
_ ...· compytency; The-record is devoid of�y evidence ot'lD.' s ib.cqmpetence let alone .fue:· . .., ,• ·!I
I
I
nnequivo¢ally. compellingevidence required to oy�rcome her privacy ·ri�hts and.force her to l
undergo an involuntary psychclogical ev.�iiatio�
The court correctly denied.Defendant's requests for l.D; to undergo a psychologic.al
evaluation and Will therefore deny his post-senrence motion fora new trial based on. the. court's
denW or:thatreqµest.
· IV, �r Discevered Evid-ei:>.ce
The 'Defendant next asserts he-is entitled to a new- trial: due to the.diseovery 9(. new
evidence after hi� ri.onviction. To be entitled. to a new trial based on after discovered· evidence, a
Defendsntraust show the e"19�nce "(L) cpitl_d notheve been 9b�·p.rior.t.othe.conclusion,of-
the trial .by the exercise of reasonable diligence, (1)' -is DDt. merely corroborative or cumulative;
-------------------- .
. (3) will not be used solely to impeach the credibility ofa witness; and (4) would lik�ly result ·ill a
different verdictif a new trial were granted," Commonwealth v. Padillas,.99TA.2d 35-6.� 363
(Pa.Super, 2010Xquoting Co�onwealth v. Pimf!t!:. 9.50 A.2d270, 292{Pa. 20.0&.)) If all four i :
requirements� nC>t J;D.et t.ben the defendmt i.s not eo:titie_d�. a new i:riaL
the purported after discovered evidence put forward in this case is the testimony ·off.
handwriting e;q:,en who testified a! the hearing on the post.. sentence motions that I.D. is tbe
. ·-----. -----·ib.di:vidua.l who wrote .eve.rythit1g .in the. diary presented. to.her at.trial,· in.apparenfcoiifliciw:HK-·-····-·------------------�---
. . .
� testimony fbat some.of' the entries were 'Written by a friend ..of hers. This testimony does not
satisfy alLfow requirements necessary for a new trial based on rlter discovered evidence as its
sole purpose would be. to attack Lb.'s �bilit;y.. She lied about not writing all. the entries in the. I
i.
diazy therefore she is also lying about the �legatiarµi of abuse by Defendant. The handwriting ·,!.
i
:,::• ;.. - . · ·te.stim.oo-y proeides no '.su.bstaJ}tive value. . .. ·-. '"'')':·
1n his.Amended Post-SearenceMetioa Il t.he Defense contends :.[tJhis' new evidencewill
aot be used solely to impeach the credibility of [I.JD. it wm. be used to show that the diary was,
in fact; her hand and ail that itcotrteiaed was what she wrote, and not what.she said at trial."
(emphasis ad�d). The court agreesthat at a new trial the Defense would aU�mpt to _use the
handwriting expert's testimoQy to show the truth was not what I.D: said at trial: The court is also-
unable to describe a more perfect example of using evidence solely to impeach a witness'
•Io.. a filing subs��t to the post-sentence motfons. hearing, the Defendant notes the
Commonwealth' s sbiftirig ar�ents regarding l.D. "s testimony about the. diary and. the
.impilcatioes of said. testimony. 'W'hile Itistrue. the.Commonwealth makes different arguments _in
......... , -,.., _.. .,_.. _ ·------·--------·--·
their post-sentence filings than tbey did-at trial.that shift does not.alter the purpose the Defendant
would use the hand'Writin.geipert s testimony fur ata newjrial. The testimony wauld:still be
1
used solely to. unpeacb I.D.' s er.edibility.
As th� handwriting.expert' s testimony does not satisfy the requir�t of not being used
�olely for impeachment purposes the _eourt does not need to analyze�the Qtbei' three after
discovered eviderrce requirements; The court will, th.erefITTe� de:c:y Defendant' s motion for a new
... --·-···-----·----tria}based 011 after discovered.evidence.--·----------· .
v. Ineffective Assmtance ofCoansel
The Defen4ant also requests a new trial based on all�gations of ineffec(ive11ess oftrial
,·
counsel, specifically trial. counsel allowing tbejury to hear testimony of certain prior'bad acts. r
'
.� :.. ·-·· Generally,
.
issues
.,
-of .ineffectiveness
.
ef'trial counsel will not beconsideredin
.. . ·. .. ...
post-sentence ·
:• ..
motions or on direct appe.al and must rather wa.itJer collateral review. Commonwealth v.. Gtmit,
813_ A.,2d 726, _73 8 (Pa.. 20021. There are two· specific �ces when a trial court bas discretion.
to address issues of trial. counsel' s ineffectiveness on post-sentence motions. Comnionwewa:li:h
. v. Holmes, 79 A3d 568, 598 (Pa. 2013). The first instance is when discrete claims �e obviously
meritorious from the record to :the ext®t immediate consideration is in the interest ofjusti.ce. [d.
The second instaneeds when there is good cause shown :fQr the trial. court to address the claims
a.rui tile defendant makes an express waiver of certain i;utme• PCRA ri.ghts: Id. at 599,
The a1legation.s of'.meffectiv�ness raised m. Defendant's P.ost-tri.al Motion II do not meet
.the �qirements s�toutJ:,y the Supreme Court to permit the court te address them. in post-
s�� motions. The claims .are not the type that are so ,©bviously meritorious from the record
.that the interests ofjustice require the court to address them on post-sentence motions, The
....... ···-··---··········.. .. ··-··· ------·--·---..-----··----
Amen,d�d Post Sentence Motion Ilalso does not iJlclµde an express waiver of Defendant's. future
PC.R..i\ rigbfs apd �o such waiverwas
. placed an tile te$0Td
. . during. t.heheari.ug
. on the motion. To
be clear, the court is not making any judgmem on the validity of the ineffectiveness claims hi$ed
by tbe Defendant, or any other p.ri�sibl� Instances .of ine.ffectiveness by trial counsel. Tbe courtis
merely saying tll¢ proper time to consider .those cl.aiins is thtoiigh any possible ,future PCR.A.
proceed.mgs. The court ·wUI, therefore, denyDefendant;s request for a .tl6'?.1 trial based on
.
-.- � -·�· .. i,
ineffectiveness of trial counsef;
�···..,. • •• • • • • • ••
'VL �rrorin Sentencing Def�n:da:nt on Count Fiftee.n Simple Assanl1
Defendant asserts the court erred in sentencing him on couni fifte¢n Simple Assault
because the jury ·d.icl not announce the verdict in open court, Rule 648 states the jucy foreperson;
upon toe jury reaching a tmanimous verdict, shall read the verdict in open court in the presence
·:-,,:
offhe judge, theCommonwealtn, ai;,.d the defend.ant Pa.R.Crim.P .. .648Q3} An orally announced
jury verdict; however, does not go into effect until it is recorded. Commonwealth v. BriruitweU,
424 A.2d 1263. 1265 (Pa.1981). If there is a conflict between the recorded verdict and the
orally announced verdict. the party moving tc.amend the recorded verdict must show by
sufficient.evidcmce tile recorded verdictdoes no.t. reflect the obvious. intent of the jury.
Commonwealth. v. Huett, 341 A2d 122, 124 {Pa. 1975).
In. the case .at bar there is no conflict.between the recorded verdict and � verdict
announced by the juryfo open court for .count fifteen since the.jury foreperson did not announce
a verdict for count fifteen iii open court. In announcing the verdiet, the foreperson anneunced
the verd.icrfor count fourteen, skipped over count fifteen, and then .aanounced the verdict for
count. sixteen. Trntl Transctjpt Dav J 1/26/18, 2�8. The Commonwealth appeared to realize tb,is
-····--····--··-·----·---
error and.requested the foreperson:reaa me verdict fo:t count fourteen,
. .
ld .. at 727. . The
foreperson then re-read the verdict for count fourteen. Id. · �. recorded ver.tjim., as indicated on
the signed verdict slip) clearly shows a v.erdictof guilty asto cenntfifteen, VerdictSlip. There
is. no ootiflict between the recorded verdict and the one announced in open. court and there is no
evidence the recorded verdiizt does not reflect the obvious intent o.f tl:iejury� Toe court,
therefore;) did not :err in sentencing :the Defendant in :a:ccordance with the recorded verdiet.aIJ.d
VII. M.odilicatia.n of Sentence
The ti.a.al issue Defendant.raises is his request to modify bis seatencedne.tc an assertion
�e. court abused. its discreficn in imposingits sentence; Under the Sentencing. Code the court
musi consider the sentencing guidelines in determining an appropriate sentence. 204 Pa O:ide
6303.1 (a). The ultimate determination of the sentence remains in .the discretion of the sentencing
court. Commonwealth v '. Jones� 640 A..2d 914, 9 lo (Pa.Super, 1994). The· decision to run a
sentence :consecutively pr concurtetitlyto other.sentences imposed at thesametime or prior.also
rests in the sound discretion of the senrencing court, Commonwealth:v. Prisk, 13 A.3d 526i533
(Pa.Super, 2011).
In sentencing Defendant ,in thls case, the. court considered the senJ.e.Qcing guidelines for
each offense. In factthe sentence impesed for each cb.llnt was within the standard range ofthe
guidelines, except for count 10 Indecent Assault which was in the mitigated range. The court, in
its. discretion, chose to run the standard range. guideline sentences f�r counts 1-4. Criminal
Attempt Rape c<:>nsecutively with each other and ran all. other.counts -concurr�tly, e.xcept for the
mitigated probationary sentence fot count 10. At the time 0£ sentencing the court. placed.its
J:
_
............., ...-..... ... , __ .. ,.----�--··-------
,
reasoning for rrnpcsing' -such sentences bn the recqrd. and. relies oil that .r��onirig as an
explanation for thesentenced imposed and.