Com. v. Kearns, L. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LEE CALVIN KEARNS, III
Appellant No. 422 WDA 2015
Appeal from the Judgment of Sentence January 7, 2013
In the Court of Common Pleas of Cambria County
Criminal Division at No(s): CP-11-CR-0000530-2011
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J. FILED APRIL 26, 2016
Appellant, Lee Calvin Kearns, III, appeals from the judgment of
sentence entered January 7, 2013, in the Court of Common Pleas of Cambria
County, following his convictions of two counts of rape of a child, 18
Pa.C.S.A. 3121(c), (the victim was a five-year-old girl) and other charges
related to the sexual assaults.1 After review, we affirm the convictions, but
reverse the judgment of sentence in part and affirm in part.
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
Although Kearns purports to appeal from the order denying his post-
sentence motion, this appeal properly lies from the judgment of sentence as
made final by the denial of post-sentence motions. See Commonwealth v.
Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003) (en banc). We have
corrected the appeals statement accordingly.
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The trial court summarized the facts behind Kearns’s convictions as
follows.
[A.F.], [the five-year old victim, H.F.’s] father and Kearns’
stepfather, testified that late in the afternoon of March 9, 2011
he walked into H.F.’s bedroom and observed Kearns grinding his
pelvis into H.F.’s pelvis. At the time both Kearns’ and H.F.’s
pants and underwear w[ere] pushed down around their ankles.
[A.F.] testified that he pushed Kearns off H.F. and made him
leave the apartment. [A.F.] testified that he was upset and had
his wife speak to [the victim] about what had happened.
Brandi Yeckley (Yeckley) testified that she is a caseworker
with Cambria County children and Youth Services (CYS) and that
in the early afternoon of March 10, 2011 she went to the
[victim’s] residence to speak with H.F. regarding the incident the
day before. Yeckley testified that CYS had been notified early the
morning of March 10th about the incident. She testified that she
spoke with H.F. privately in [her] bedroom. Yeckley explained
that H.F. was reluctant to speak but used two dolls, one
representing her and the other Kearns, to show what happened.
H.F. removed the dolls[’] clothing, laid them down, placing the
Kearns doll on top of the H.F. doll and rubbed them together.
H.F. told Yeckley that this is what Kearns would do to her on the
bed.
Yeckley testified that H.F. reported this happened on
multiple occasions and occurred whenever Kearns would help her
beat a level in a video game. H.F. indicated that Kearns told her
it was a secret and not to tell anyone. H.F. explained that Kearns
would rub his penis on her vagina and would then wipe off “goo”,
referring to semen, from her vagina. Yeckley testified that H.F.
used the terms wiener for penis and coochie for vagina.
Julie Wagner (Wagner) testified that she is a detective with
the Johnstown Police Department with training and experience
interviewing child victims. Wagner testified that she was asked
by the Stonycreek Township Police to conduct an interview with
H.F. as that department had no female officers and they believed
H.F. would be more comfortable speaking with a woman.
Wagner testified that the interview took place on March 11,
2011, two days after the incident witnessed by [A.F.], at the
Johnstown Public Safety Building. She explained that she spoke
privately with H.F. and that H.F. told her that on March 9th she
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was playing the Sonic Rush video game in her room with Kearns.
That at some point Kearns laid her down on her bed, pulled her
pants and underwear down, then pulled his pants and underwear
down, climbed on top of her and put his penis on her.
H.F. told her that it happened “a lot of times”, that Kearns
told her it was a secret, that on some occasions Kearns would
rub his penis against her vagina and on others he would put his
penis in her vagina and that she did not like how it felt. H.F. told
Wagner that when they were done Kearns would wipe off the
“goo” and they would put their pants back on. Wagner testified
that H.F. denied that there was any oral sex or digital
penetration but repeated that Kearns would on occasion put his
penis in her vagina. Finally, H.F. testified that when [A.F.] came
in and saw them she was upset because Kearns had told it was a
secret and now her father knew about it.
H.F. testified that she would play video games in her room
with Kearns and that when she got stuck on a level and he
helped her he would take off their pants and underwear and lay
her on her bed, climb on top of her and rub his penis on her
vagina. H.F. testified that Kearns would wipe off the semen and
they would get dressed again. She testified that this happened
on multiple occasions whenever she got stuck on a level in the
game and that Kearns told [her] it was a secret and not to tell
anyone.
Doctor Lawrence Rosenberg (Rosenberg) testified that he
is a pediatrician with significant training and experience in
examining child victims of sexual assault He testified that he
examined H.F. on March 14, 2011, three days after the incident,
and that during the examination H.F. told him Kearns put his
penis in her vagina. Rosenberg testified that his examination
revealed H.F.’s hymen to be thinner than is normal and showed
scarring that was abnormal and was several months old.
Rosenberg testified that neither of these conditions was likely
the result of an accident. Finally, he testified that to a reasonable
degree of medical certainty the physical evidence was highly
suspicious of sexual abuse and that H.F. had been the victim of
such abuse.
Trial Court Opinion, 4/25/13 at 3-6.
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Following a bench trial on October 10, 2012, the trial court convicted
Kearns of two counts each of Rape of a Child, Attempted Rape of a Child,
Indecent Assault, and one count of Corruption of Minors. On January 7,
2013, the trial court sentenced Kearns to an aggregate term of 10 to 20
years’ imprisonment, followed by 32 years of probation.
Kearns filed a timely appeal, which this Court dismissed due to his
counsel’s failure to file a brief. Kearns later filed a pro se PCRA petition. The
PCRA court appointed counsel and subsequently reinstated Kearns’s direct
appeal rights nunc pro tunc. Kearns filed a post-sentence motion, which the
trial court denied. This timely appeal followed.
Kearns’s first two issues challenge the trial court’s decision to permit
CYS caseworker Brandi Yeckley and detective Julie Wagner to testify at trial
pursuant to the tender years statute, 42 Pa.C.S.A. § 5985.1. “[T]he
admission of evidence is within the sound discretion of the trial court and will
be reversed only upon a showing that the trial court clearly abused its
discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super.
2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citations omitted).
The tender years exception to the hearsay rule provides that an out of
court statement of a minor victim or witness regarding, among others, a
crime of sexual assault, is admissible if:
(1) The court finds in an in camera hearing, that the evidence is
relevant and that the time, content and circumstances of the
statements provided sufficient indicia of reliability; and (2) the
child either (i) testifies at the proceeding; or (ii) is unavailable as
a witness.
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42 Pa.C.S.A. § 5985.1. “The tender years exception allows for the admission
of a child’s out-of-court statement due to the fragile nature of young victims
of sexual abuse.” Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa.
Super. 2002) (citation omitted). The factors to be considered by a trial court
in determining whether the child declarant was likely to be telling the truth
when the statement was made include:
(1) the spontaneity and consistent repetition of the
statement(s); (2) the mental state of the declarant; (3) the use
of terminology unexpected of a child of similar age; and (4) the
lack of motive to fabricate.
Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa. Super. 2005) (citation
omitted).
Here, Kearns argues that the trial court failed to hold an in camera
hearing to determine if the hearsay testimony had sufficient indicia of
reliability. A review of the record indicates that there was no in camera
hearing on the reliability of the hearsay statements. Following Kearns’s
objection to the testimony of Yeckley and Wagner at the bench trial, the
court stated that it would first listen to the witnesses’ testimony and then
make a determination whether the tender years Exception was satisfied. See
N.T., Bench Trial, 10/10/12 at 83-84. Notably, the record indicates that
Kearns did not request an in camera hearing to determine the reliability of
the hearsay testimony.
The tender years statute requires a party to give notice, including
details of the proffer, of the intention to present hearsay evidence under the
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exception. See 42 Pa.C.S.A. § 5985.1(b). The purpose of the notice
requirement is to “provide the adverse party with a fair opportunity to meet
the statement.” Id. Kearns argues that the statute requires an in camera
hearing before the trial court may admit a hearsay statement pursuant to
the exception. However, we conclude that, so long as the notice provision is
satisfied, it is incumbent upon the adverse party to identify and object to
any issue with the proposed testimony. The trial court is not required to hold
an in camera hearing on any issue under the statute unless the adverse
party raises it. As noted, Kearns did not request a hearing on the reliability
of the out-of-court statements. Thus, the trial court was not required to
have a hearing on the issue.
We further note that while the trial court did not conduct an in camera
hearing, it ultimately concluded that Yeckley’s and Wagner’s testimony
clearly established sufficient indicia of reliability to permit the introduction of
the hearsay testimony at trial. In the words of the well-reasoned opinion of
the trial court:
Here, as it was a non-jury trial, the [c]ourt did not conduct an in
camera hearing but permitted Yeckley and Wagner to testify and
then determined whether their testimony was admissible under
the tender years exception. In determining that their testimony
was admissible the [c]ourt observed: that H.F. was under twelve
years old; she had testified; she was describing an enumerated
offense; and that the time, content and circumstances of the
statements she made to Yeckley and Wagner had sufficient
indicia of reliability. N.t. 10/10/12 pp. 92-94. With respect to the
issue of reliability the [c]ourt notes that: the statements were
made within forty-eight hours of the incident on March 9th; they
were consistent with each other and with H.F.’s testimony in
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court; the questions asked by Yeckley and Wagner were open
ended and not suggestive; they were supported by [Dr.]
Rosenberg’s testimony; they included descriptions of anatomy
and sexual acts a five[-]year[-]old would not be expected to
know, including descriptions of an erect penis and ejaculation;
and the defense offered no reason to believe that H.F. had
fabricated the statements.
Trial Court Opinion, 4/25/13 at 7-8. We agree with the trial court’s
assessment and are satisfied that there were sufficient indicia of reliability
with respect to the statements made by H.F. to Yeckley and Wagner to
permit their admission under the tender years exception. Accordingly, we
conclude that the trial court did not abuse its discretion in admitting the
hearsay statements.
Kearns next argues that the evidence was insufficient to support his
conviction of rape of a child where the Commonwealth failed to establish
penetration occurred on March 9, 2011. See Appellant’s Brief at 13. The
following standard governs our review of a challenge to the sufficiency of the
evidence.
As a general matter, our standard of review of sufficiency claims
requires that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence. Evidence
will be deemed sufficient to support the verdict when it
establishes each material element of the crime charged and the
commission thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish guilt to a
mathematical certainty. [T]he facts and circumstances
established by the Commonwealth need not be absolutely
incompatible with the defendant's innocence. Any doubt about
the defendant’s guilt is to be resolved by the fact finder unless
the evidence is so weak and inconclusive that, as a matter of
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law, no probability of fact can be drawn from the combined
circumstances.
Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)
(citation omitted). The factfinder, while passing upon the credibility of
witnesses and the weight of the evidence produced, is free to believe all,
part or none of the evidence. See Commonwealth v. Valentine, 101 A.3d
801, 805 (Pa. Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015).
Furthermore, the Commonwealth may sustain its burden by means of wholly
circumstantial evidence. See Commonwealth v. Diggs, 949 A.2d 873, 877
(Pa. 2008).
“A person commits the offense of rape of a child, a felony of the first
degree, when the person engages in sexual intercourse with a complainant
who is less than 13 years of age.” 18 Pa.C.S.A. § 3121(c). Sexual
intercourse is defined by statute as follows: “[i]n addition to its ordinary
meaning, [sexual intercourse] includes intercourse per os or per anus, with
some penetration however slight; emission is not required.” 18 Pa.C.S.A. §
3101. This Court has clarified that the term “penetration however slight” is
not limited to penetration of the vagina, as entrance in the labia will suffice.
See Hunzer, 868 A.2d at 505-506.
Here, Kearns essentially argues that despite H.F.’s statements to
Detective Wagner that Kearns had inserted his penis into her vagina on prior
occasions, the Commonwealth failed to establish that penetration occurred
on March 9, 2011, when H.F.’s father observed Kearns “grinding” on top of
H.F. Based on our review of the evidence, we disagree. [A.F.] testified that
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on March 9, 2011, he walked into H.F.’s bedroom and observed Kearns lying
on top of H.F. on the bed and that both had their genitals exposed. See
N.T., Non-Jury Trial, 10/10/12 at 68. [A.F.] stated that Kearns was “grinding
away” against H.F.’s vaginal area. Id. at 69. Detective Wagner testified that
H.F. told her two days after the incident that Kearns had rubbed his “wiener”
on her “coochie.” Id. at 97-98. Based on the forgoing, the factfinder was
presented with sufficient evidence, when viewed in the light most favorable
to the Commonwealth, to establish that Kearns penetrated, however slightly,
H.F.’s labia with his penis on March 9, 2011. Kearns challenge to the
sufficiency of the evidence therefore fails.
Kearns next asserts that the trial court illegally imposed separate
sentences for rape of a child and attempted rape of a child, as those crimes
merge. See Appellant’s Brief at 16. “A claim that the trial court imposed an
illegal sentence by failing to merge sentences is a question of law.
Accordingly, our standard of review is plenary.” Commonwealth v.
Snyder, 870 A.2d 336, 349 (Pa. Super. 2005) (citation omitted).
“Our Courts have long held that where a defendant commits multiple
distinct criminal acts, concepts of merger do not apply.” Commonwealth v.
Robinson, 931 A.2d 15, 24 (Pa. Super. 2007) (en banc). See also 42
Pa.C.S.A. § 9765 (“No crimes shall merge for sentencing purposes unless
the crimes arise from a single criminal act and all of the statutory elements
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of one offense are included in the statutory elements of the other offense.”)
(emphasis added).
The preliminary consideration under Section 9765 is whether the
two crimes at issue arose from a single act. This is because [our
courts] have long held that where a defendant commits multiple
distinct criminal acts, concepts of merger do not apply.
Moreover, when determining whether a defendant committed a
single act, such that multiple criminal convictions should be
merged for sentencing, the proper focus is not whether there
was a “break in the chain” of criminal activity, but rather,
whether the actor commits multiple criminal acts beyond that
which is necessary to establish the bare elements of the
additional crime. If so, then the defendant has committed more
than one criminal act. The rationale is to prevent defendants
from receiving a “volume discount” on crime.
Commonwealth v. Yeomans, 24 A.3d 1044, 1050 (Pa. Super. 2011)
(internal citations omitted).
Here, Kearns correctly asserts that an attempt to commit an offense
and the completed offense typically merge for sentencing purposes. The
Commonwealth concedes in its brief that the sentences for attempted rape
and rape of a child should have merged. See Commonwealth’s Brief at 12
(“[T]he Superior Court should strike the costs and fines related to those two
charges.”). We agree.
At trial, the Commonwealth introduced evidence to establish two
particular criminal acts: 1) the sexual assault that Kearns was observed
committing on March 9, 2011, and 2) the testimony of Dr. Rosenberg, which
established that a two- to three-month-old scar on H.F.’s hymen was
indicative of prior sexual abuse. These acts formed the basis for the two
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counts of rape of a child with which Kearns was charged, and the
Commonwealth offered no distinct acts to support the attempted rape
charges.
Based on these facts, we are constrained to presume that the charges
of attempted rape and rape of a child arose from the same criminal acts and,
therefore, necessarily merge for sentencing purposes. Accordingly, we
vacate Kearns’s judgment of sentence imposed for his convictions on two
counts of attempted rape, as those should have merged with his convictions
for rape of a child for sentencing purposes. Our reversing of the judgment of
sentence for those two convictions does not upset the sentencing scheme.
The judgment of sentence as corrected in this memorandum is affirmed in all
other respects.
Kearns’s final claim challenges the discretionary aspects of his
sentence. “It is well settled that [w]hen a challenge to the discretionary
aspect of a sentence is raised, an appellant must provide a separate
statement specifying where the sentence falls in the sentencing guidelines,
what provision of the sentencing code has been violated, what fundamental
norm the sentence violates, and the manner in which it violates the norm.
Pa.R.A.P. 2119(f).” Commonwealth v. Sarapa, 13 A.3d 961, 962 (Pa.
Super. 2011) (internal quotes and citation omitted). Even if properly
preserved in a post-sentence motion, “such a claim is waived if an appellant
does not include a Pa.R.A.P. 2119(f) statement in his brief and the opposing
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party objects to the statement’s absence.” Commonwealth v. Foster, 960
A.2d 160, 163 (Pa. Super. 2008), aff’d, 17 A.3d 332 (Pa. 2011).
Here, Kearns has failed to provide a Rule 2119(f) statement in his
brief, and the Commonwealth has objected to this omission. See
Commonwealth’s Brief at 12-13. Accordingly, we must find Kearns’s
challenge to the discretionary aspects of his sentence waived.
Convictions affirmed. Judgment of sentence affirmed in part and
reversed in part. Jurisdiction relinquished.
Judge Olson joins the memorandum.
Judge Platt concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/26/2016
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