Com. v. Vaughn, R. ( 2019 )

J. A20005/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RICHARD A. VAUGHN SR., : No. 94 MDA 2019
:
Appellant :
Appeal from the Judgment of Sentence Entered June 13, 2018,
in the Court of Common Pleas of Franklin County
Criminal Division at No. CP-28-CR-0001395-2016
BEFORE: GANTMAN, P.J.E., McLAUGHLIN, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED: NOVEMBER 19, 2019
Richard A. Vaughn, Sr., appeals from the June 13, 2018 judgment of
sentence entered by the Court of Common Pleas of Franklin County following
his conviction of corruption of minors, unlawful contact with a minor—sexual
offenses, criminal attempt (indecent assault of a person less than 16 years of
age), and indecent assault of a person less than 16 years of age.1 After careful
review, we affirm.
The record reflects the following factual and procedural history: On the
evening of March 19, 2016, the victim was at the apartment of his stepmother,
B.D.P., with his brother and appellant. (Notes of testimony, 2/6/18 at 20-22.)
1 18 Pa.C.S.A. §§ 6301(a)(1)(ii), 6318(a)(1), 901(a), and 3126(a)(8),
respectively.
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Appellant had been talking to B.D.P., whom he was dating, when he started
wrestling with the victim. (Id. at 21, 23.) As he was wrestling with the victim,
appellant grabbed the victim’s “private area” and “started [] rubbing it and
putting it up against him through [the victim’s] clothes, but he didn’t go
through [the victim’s] clothes.” (Id. at 23.) The victim also testified that
appellant French kissed him, which the victim testified tasted like coffee and
cigarettes. (Id. at 25-26.) B.D.P. testified that appellant admitted to her that
he kissed the victim and that he had sexually explicit dreams about the victim.
(Id. at 49-50.)
A jury convicted appellant of the aforementioned offenses on
February 6, 2018. On June 13, 2018, the trial court sentenced appellant to a
term of 25-50 years’ incarceration. On June 14, 2018, the trial court granted
appellant’s motion for an extension of time to file post-sentence motions.
Appellant timely filed post-sentence motions on July 23, 2018, which the trial
court denied in an order entered December 13, 2018. Appellant filed a notice
of appeal on January 11, 2019.
Before we can address the issues appellant raises on appeal, we must
first determine whether this appeal is properly before us. Where, as here, the
defendant files a timely post-sentence motion, the notice of appeal shall be
filed within 30 days of the entry of the order deciding the motion. See
Pa.R.Crim.P. 720(B)(3)(a). When the motion is deemed denied by operation
of law, the clerk of courts shall enter an order deeming the motion denied on
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behalf of the trial court and serve copies on the parties. See
Pa.R.Crim.P. 720(B)(3)(c). The notice of appeal shall be filed within 30 days
of the entry of the order denying the motion by operation of law. See
Pa.R.Crim.P. 720(A)(2)(b).
Here, the 120-day period for decision on appellant’s post-sentence
motion expired on November 20, 2018. The clerk of courts, however, failed
to enter an order deeming the motion denied by operation of law on that date.
Instead, the trial court ruled on the motion on December 13, 2018, outside
the 120-day period, and appellant filed a notice of appeal within 30 days of
the entry of that order. Ordinarily, such an appeal would be untimely. This
court, however, has held that an administrative breakdown of the trial court
occurs when the clerk of courts for the trial court fails to enter an order
deeming post-sentence motions denied by operation of law pursuant to
Pa.R.Crim.P. 720(B)(3)(c). See Commonwealth v. Patterson, 940 A.2d
493, 498-499 (Pa.Super. 2007), citing Commonwealth v. Perry, 820 A.2d
734, 735 (Pa.Super. 2003). Accordingly, due to an administrative breakdown
in trial court operations, we decline to quash appellant’s appeal as untimely
and will review appellant’s appeal on its merits.
Appellant raises the following issues for our review:
I. Whether the trial court erred in denying
appellant’s request for a new trial on the
grounds that Noella Rodriguez should have been
allowed to authenticate and testify to the
previous inconsistent statements of
Commonwealth witness [B.D.P.]?
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II. Whether the trial court erred in finding sufficient
evidence for a conviction for corruption of
minors – defendant age 18 or above?
III. Whether the trial court erred in finding sufficient
evidence for conviction for unlawful contact with
minor – sexual offenses?
IV. Whether the trial court erred in finding sufficient
evidence for conviction for criminal attempt –
ind [sic] asslt [sic] person less [sic] 16 yrs [sic]
age?
V. Whether the trial court erred in finding sufficient
evidence for conviction for ind [sic] asslt [sic]
person less [sic] 16 yrs [sic] age?
VI. Whether the trial court erred in finding that the
conviction for corruption of minors – defendant
age 18 or above was not against the weight of
the evidence?
VII. Whether the trial court erred in finding that the
conviction for unlawful contact with minor –
sexual offenses was not against the weight of
the evidence?
VIII. Whether the trial court erred in finding that the
conviction for criminal attempt – ind [sic]
asslt [sic] person less [sic] 16 yrs [sic] age was
not against the weight of the evidence?
IX. Whether the trial court erred in finding that the
conviction for ind [sic] asslt [sic] person
less [sic] 16 yrs [sic] age was not against the
weight of the evidence?
Appellant’s brief at 6 (extraneous capitalization and citations omitted).
In his first issue, appellant contends that the trial court erred when it
did not permit him to call Noella Rodriguez to authenticate Facebook messages
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allegedly sent to her by B.D.P. and to testify to the previous inconsistent
statements allegedly made by B.D.P. (Id. at 13.) Specifically, appellant avers
that the Facebook messages and Rodriguez’s testimony would establish that
B.D.P. “acknowledged that she coerced the victim into fabricating the story,
that she lied to law enforcement and that she knew he would be an easy target
due to a past conviction.” (Id.)
Having determined, after careful review, that the Honorable Carol L.
Van Horn, in her Rule 1925(a) opinion, ably and comprehensively disposes of
appellant’s first issue on appeal, with appropriate reference to the record and
without legal error, we will adopt the trial court’s opinion as our own and affirm
on the basis of that opinion as to appellant’s first issue. Specifically, the trial
court found that appellant, as the proponent of social media evidence, failed
to present any direct or circumstantial evidence to establish that B.D.P. was
the author of the communication in question.
In his final eight issues, appellant blends challenges of the sufficiency
and the weight of the evidence.2 Our supreme court has explained the
difference between the two distinct grounds for appealing a conviction:
2 We note that the Pennsylvania Rules of Appellate Procedure require the
argument section of a brief to be divided into as many parts are there are
questions to be argued. Pa.R.A.P. 2119(a). Here, the argument section of
the brief contains two headings corresponding to nine questions to be argued.
(See appellant’s brief at 8-18.) We have the authority to dismiss or quash an
appeal if the defects in an appellant’s brief are substantial and hinder our
ability to render meaningful appellate review. Pa.R.A.P. 2101;
Commonwealth v. Levy, 83 A.3d 457, 461 n.2 (Pa.Super. 2013). Here, we
find that our ability to conduct meaningful appellate review has not been
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The distinction between these two challenges is
critical. A claim challenging the sufficiency of the
evidence, if granted, would preclude retrial under the
double jeopardy provisions of the Fifth Amendment to
the United States Constitution, and Article I, Section
10 of the Pennsylvania Constitution, Tibbs v. Florida,
457 U.S. 31 [] (1982); Commonwealth v. Vogel, []
461 A.2d 604 ([Pa.] 1983), whereas a claim
challenging the weight of the evidence if granted
would permit a second trial. Id.
A claim challenging the sufficiency of the evidence is
a question of law. 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. Commonwealth v. Karkaria, []
625 A.2d 1167 ([Pa.] 1993). Where the evidence
offered to support the verdict is in contradiction to the
physical facts, in contravention to human experience
and the laws of nature, then the evidence is
insufficient as a matter of law. Commonwealth v.
Santana, [] 333 A.2d 876 ([Pa.] 1975). When
reviewing a sufficiency claim the court is required to
view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all
reasonable inferences to be drawn from the evidence.
Commonwealth v. Chambers, [] 599 A.2d 630
([Pa.] 1991).
A motion for new trial on the grounds that the verdict
is contrary to the weight of the evidence[] concedes
that there is sufficient evidence to sustain the verdict.
Commonwealth v. Whiteman, [] 485 A.2d 459
([Pa.Super.] 1984). Thus, the trial court is under no
obligation to view the evidence in the light most
favorable to the verdict winner. Tibbs, 457 U.S. at
38 n.11 []. An allegation that the verdict is against
the weight of the evidence is addressed to the
discretion of the trial court. Commonwealth v.
Brown, [] 648 A.2d 1177 ([Pa.] 1994). A new trial
hindered, despite appellant’s violation of the Rules of Appellate Procedure.
Accordingly, we shall reach a decision on the merits.
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should not be granted because of a mere conflict in
the testimony or because the judge on the same facts
would have arrived at a different conclusion.
[Thompson v. City of Philadelphia, 493 A.2d 669,
673 (Pa. 1985).] A trial judge must do more than
reassess the credibility of the witnesses and allege
that he would not have assented to the verdict if he
were a juror. Trial judges, in reviewing a claim that
the verdict is against the weight of the evidence do
not sit as the thirteenth juror. Rather, the role of the
trial judge is to determine that “notwithstanding all
the facts, certain facts are so clearly of greater weight
that to ignore them or to give them equal weight with
all the facts is to deny justice.” Id.
Commonwealth v. Widmer, 744 A.2d 745, 751-752 (Pa. 2000) (footnote
omitted).
We first turn to appellant’s sufficiency of the evidence claims. Appellant
argues that the Commonwealth failed to introduce sufficient evidence to
warrant convictions of corruption of minors, unlawful contact with a minor,
indecent assault, and criminal attempt (indecent assault). (Appellant’s brief
at 5.) In his brief, appellant acknowledges, “if the fact finder believes the
testimony of the victim, then the evidence is unequivocally sufficient.” (Id.
at 10.) Appellant, however, also contends that the “right to challenge the
sufficiency of the evidence must still exist, even if the fact finder believes the
uncorroborated testimony of a sexual assault victim.” (Id.) We find that
appellant waived his sufficiency of the evidence claims on appeal.
[W]hen challenging the sufficiency of the evidence on
appeal, the [a]ppellant’s [Pa.R.A.P.] 1925 statement
must specify the element or elements upon which the
evidence was insufficient in order to preserve the
issue for appeal. Such specificity is of particular
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importance in cases where, as here, the [a]ppellant
was convicted of multiple crimes each of which
contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.
Commonwealth v. Hoffman, 198 A.3d 1112, 1125 (Pa.Super. 2018),
quoting Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa.Super. 2009),
appeal denied, 3 A.3d 670 (Pa. 2010).
Here, in his Rule 1925(b) statement, appellant generally alleges that the
trial court erred in finding that the Commonwealth put forth sufficient evidence
to convict appellant of corruption of minors, unlawful contact with a minor
(sexual offenses), indecent assault, and criminal attempt (indecent assault).
(See appellant’s Rule 1925 statement.) Appellant does not identify which
element or elements in which the Commonwealth failed to meet its burden for
any of the convictions for which he is challenging the sufficiency of the
evidence. Accordingly, appellant has waived these issues on appeal.3
3 Even if appellant were to have preserved the sufficiency of the evidence issue
on appeal, his argument that the “right to challenge the sufficiency of the
evidence must still exist, even if the fact finder believes the uncorroborated
testimony of a sexual assault victim,” runs counter to our established case
law. We have repeatedly held that the “uncorroborated testimony of the
complaining witness is sufficient to convict a defendant of sexual offenses.”
Commonwealth v. Cramer, 195 A.3d 594, 602 (Pa.Super. 2018), citing
Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa.Super. 2005)
(collecting cases). This court has further held that even in cases where
defense witnesses present contradictory evidence, a victim’s uncorroborated
testimony, if believed by the fact-finder, is sufficient to warrant a conviction
of sexual offenses. Commonwealth v. Davis, 650 A.2d 452, 455 (Pa.Super.
1994), aff’d. on other grounds, 674 A.2d 214 (Pa. 1996) (collecting cases).
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Hoffman, 198 A.3d at 1125, quoting Gibbs, 981 A.2d at 281;
Commonwealth v. Williams, 959 A.2d 1252, 1257-1258 (Pa.Super. 2008).
In his weight of the evidence challenge, appellant dismisses the
testimony against him at trial as “nonsensical and contradictory.” (Appellant’s
brief at 11.) Appellant further argues that “[i]t is preposterous to believe that
[appellant], who had never before met the victim or his brother, decided to
sexually assault the victim immediately after meeting him, in front of his
brother and the person he considers to be his mother.” (Id.) In closing,
appellant argues the following:
The evidence that should be believed is that of
[appellant]; [t]hat he did not sexually assault a child
that he had just met; that he did not sexually assault
a child in front of his brother and stepmother without
either one noticing; that he did not admit to or make
the outlandish and horrific allegations as claimed by
[B.D.P.].
Id. at 12.
The weight of the evidence is exclusively for the finder
of fact, which is free to believe all, part, or none of the
evidence, and to assess the credibility of the
witnesses. Commonwealth v. Johnson, [] 668 A.2d
97, 101 ([Pa.] 1995). . . . An appellate court cannot
substitute its judgment for that of the jury on issues
of credibility. Commonwealth v. DeJesus, [] 860
A.2d 102, 107 ([Pa.] 2004).
Commonwealth v. Palo, 24 A.3d 1050, 1055 (Pa.Super. 2011), appeal
denied, 34 A.3d 828 (Pa. 2011).
Here, appellant extends an invitation for us to reassess the jury’s
credibility determinations in his favor. This is an invitation that we must
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decline. Because we cannot substitute the jury’s judgment on witness
credibility with our own, we conclude that the trial court did not abuse its
discretion when it denied appellant’s weight of the evidence claims.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/19/2019
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IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, CRIMINAL ACTION
vs. No: 1395-2016
Richard A. Vaughn, Post Conviction Relief Act
Defendant
Honorable Carol L. Van Horn
OPINION sur PA. R.A.P. 1925(a) AND ORDER OF COURT
Before Van Horn, P.J.
236
IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, CRIMINAL ACTION
vs. No: 1395-2016
Richard A. Vaughn, Post Conviction Relief Act
Defendant
Honorable Carol L. Van Horn
STATEMENT OF THE CASE
On February 6, 2018, following a jury trial, Richard Vaughn ("Defendant")
was convicted of 18 § 6301 §§Alii, Corruption of Minors - Defendant Age 18 or
Above, 18 § 6318 §§Al, Unlawful Contact With Minor- Sexual Offenses, 18 §
90 I §§A, Criminal Attempt - Indecent Assault Person Less than 16 Years of Age,
and 18 § 3126 §§A8, Indecent Assault Person Less than 16 Years of Age. On June
13, 2018, the Defendant was sentenced to an aggregate term of 25-50 years of
incarceration in a state correctional facility and was classified as a tier III sex
offender. On July 23, 2018, the Defendant filed a Motion for Post-Sentence Relief.
A hearing was held on September 6, 2018. The Defendant filed a Brief in Support
of Motion for Post-Sentence Relief on October 5, 2018. The Commonwealth filed
a Brief in Support on November 8, 2018. On December 12, 2018, this Court
entered an Order and Opinion Denying Defendant's Post-Sentence Motion.
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On January 11, 2019, Defendant filed a Notice of Appeal. On January 14,
2019, this Court directed the Defendant to file a Concise Statement of the Errors
Complained of on Appeal ("Concise Statement") pursuant to Pa.R.A.P. 1925(b )( 1 ).
Defendant filed a Concise Statement on January 25, 2019. The Court will now
respond to Defendant's claims of error in this Opinion and Order of Court pursuant
to Pa.R.A.P. 1925(a).
ISSUES
Defendant raises the following issues in his Concise Statement:
1. Whether the Trial Court erred in denying Appellant's
request for a new trial on the grounds that Noella
Rodriguez should have been allowed to authenticate
and testify to the previous inconsistent statements of
Commonwealth witness Bonnie Del Pezzo.
2. Whether the Trial Court erred in finding sufficient
evidence for the convictions for 18 § 6301 §§Alii
Corruption of Minors - Defendant Age 18 or Above,
18 § 6318 §§Al Unlawful Contact With Minor, 18 §
901 §§A Criminal Attempt - Indecent Assault Person
Less than 16 Years of Age, 18 § 3126 §§A8 Indecent
Assault Person Less than 16 Years of Age?
3. Whether the Trial Court erred in finding the
convictions for 18 § 6301 §§Alii Corruption of
Minors - Defendant Age 18 or Above, 18 § 63 18
§§Al Unlawful Contact With Minor, 18 § 901 §§A
Criminal Attempt - Indecent Assault Person Less than
16 Years of Age, 18 § 3126 §§A8 Indecent Assault
Person Less than 16 Years of Age were not against
the weight of the evidence?
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DISCUSSION
I. Whether the Evidence at Trial Was Insufficient to Support the Convictions
The standard for review for sufficiency of the evidence was included in this
Court's December 13, 2018 Opinion and Order of Court which is attached. In
order to prove a charge of Indecent Assault Person Less than 16 Years of Age, the
Commonwealth is required to show that the complainant is less than 16 years of
age, and the defendant is four or more years older than the complainant and the
complainant and the defendant are not married. In addition, the Commonwealth
must show that the defendant had indecent contact with the complainant, caused
the complainant to have indecent contact with the defendant, or intentionally
caused the complainant to come into contact with seminal fluid, urine or feces for
the purpose of arousing sexual desire in the defendant or the complainant. 18
Pa.C.S. § 3126 (a)(8).
The evidence at trial showed the victim to be 13 or 14 years old at the time
1
of the alleged crimes. Transcript of Proceedings of Trial-by-Jury ("T.P."), Com.
v. Vaughn, No. 1395 of 2016, February 6, 2018, 20-21. Evidence was presented
indicating that the Defendant was more than four years older than the victim. T.P.,
41. The victim in this case testified to the Defendant grabbing the victim's private
parts and the Defendant putting the victim's private parts against the Defendant
I
The victim testified at the trial on February 6, 2018. At the time of his testimony he testified
that he was 15 years old and he testified about events that took place in March 2016. T.P., 21.
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through the victim's clothing. T.P. 23. The victim also testified that the Defendant
tongue-kissed the victim. T.P., 25.
After the completed indecent assault articulated above, evidence was
presented that the Defendant attempted to assault the victim again. In order to
prove a charge of Criminal Attempt - Indecent Assault Person Less than 16 Years
of Age, the Commonwealth must show that a defendant, with the intent to commit
a specific crime, does any act which constitutes a substantial step toward the
commission of the crime. 18 Pa.C.S. § 901.
Evidence at trial shows that after the Defendant grabbed the victim's private
parts and tongue-kissed him, he again attempted to grab the victim's private area,
but the victim was able to wrest himself away from the Defendant's grasp. T.P.,
26-27.
In order to prove a charge of Unlawful Contact with Minor - Sexual
Offenses, the Commonwealth must show that a defendant was intentionally in
contact with a minor and committed any of the specified offenses in Chapter 31,
Sexual Offenses. In the instant case the offense is Indecent Assault Person less
than 16 Years Old; the elements are listed above. 18 Pa.C.S. § 6318 (a)(l).
There was evidence presented at trial indicating the Defendant's intention to
make contact with the victim on several occasions during the events described by
the victim. The Defendant initiated the contact. T.P., 24. He grabbed the victim
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and started shaking him. T.P., 24. The Defendant grabbed the victim's private area
intentionally. T.P., 25. The Defendant intentionally tongue-kissed the victim. T.P.,
25.
The other issues raised by Defendant in his Concise Statement mirror the
issues raised in his Post-Sentence Motion and they were thoroughly addressed by
this Court in our December 13, 2018 Opinion and Order of Court which is
attached. Accordingly, this Court declines to address the issues again, and we refer
the Superior Court to the reasoned analysis set forth in our previous Opinion.
In summary, this Court found the Defendant was unable to sufficiently
authenticate the written evidence being offered and that the Defendant's
prospective witness was unable to reliably verify that the person she communicated
with over electronic means was the Commonwealth's witness, so the Defendant
was therefore unable to offer reliable impeachment evidence of a prior inconsistent
statement. This Court also found the Defendant's weight and sufficiency
arguments to be without merit. For these reasons, this Court respectfully requests
that the Superior Court affirm our December 13, 2018 Order dismissing
Defendant's claims.
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IN THE COURT OF COMMON PLEAS OF THE 39™ JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, CRIMINAL ACTION
vs. No: 1395-2016
Richard A. Vaughn, Post Conviction Relief Act
Defendant
Honorable Carol L. Van Horn
ORDER OF COURT
'/:;
AND NOW THIS§__ DAY OF FEBRUARY, 2019, pursuant to Pa.
R.A.P. 1931(c),
IT IS HEREBY ORDERED THAT the Clerk of Courts of Franklin
County shall promptly transmit to the Prothonotary of the Supreme Court the
record in this matter along with the attached Opinion sur Pa. R.A.P. 1925(a).
Pursuant to Pa. R. Crim. P. 114, the Clerk of Courts shall immediately
docket this Opinion and Order of Court and record in the docket the date it was
made. The Clerk shall forthwith furnish a copy of the Opinion and Order of Court,
by mail or personal delivery, to each party or attorney, and shall record in the
docket the time and manner thereof
By the Court,
Carol L. Van Horn, J.
copies:
Franklin County District Attorney's Office
Shawn M. Stottlemyer, Esq., Counsel for Defendant
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Circulated 10/24/2019 04:02 PM
IN THE COURT OF COMMON PLEAS OF THE 39· .. JUDICIAL DISTRICT
OF PENNSYLVANIA- FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, CRIMINAL ACTION
vs. No: 1395-2016
Richard A. Vaughn,
Defendant
Honorable Carol L. Van Horn
OPINION AND ORDER
Before Van Horn, J.
243
IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, CRIMINAL ACTION
vs. No: 1395-2016
Richard A. Vaughn,
Defendant
Honorable Carol L. Van Horn
STATEMENT OF THE CASE
On February 6, 2018, following a jury trial, Richard Vaughn ("Defendant") was
convicted of 18 § 6301 §§Alii, Corruption of Minors - Defendant Age 18 or Above, 18 § 6318
§§Al, Unlawful Contact With Minor- Sexual Offenses, 18 § 901 §§A, Criminal Attempt-
indecent Assault Person Less than 16 Years of Age, and 18 § 3126 §§A8, Indecent Assault
Person Less than 16 Years of Age. On June 13, 2018, the Defendant was sentenced to an
aggregate term of 25-50 years of incarceration in a state correctional facility and was classified
as a tier III sex offender. On July 23, 2018, the Defendant filed a Motion for Post-Sentence
Relief. A hearing was held on September 6, 2018. The Defendant filed a Brief in Support of
Motion for Post-Sentence Relief on October 5, 2018. The Commonwealth filed a Brief in
Support on November 8, 2018.
Pennsylvania Rule of Criminal Procedure 720 provides that the trial judge shall decide
the motion within 120 days or the motion will be considered denied as a matter of law, unless an
extension is granted. Here, once the Post-Sentence Motion was filed, the Court granted the
parties a great deal of time to develop arguments both before and after the hearing. Although it
is currently more than 120 days since the filing of the Post-Sentence Motion, the Court will
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nonetheless render an Opinion on the merits. It is further noted that the Clerk of Courts has not
entered an Order deeming the Motion denied. Pa.R.Crim.P. 720(B)(3)(c).
ISSUES
The Defendant raised two issues in his Motion for Post-Sentence Relief and his Brief in
Support of Motion for Post-Sentence Relief.
1. In the Defendant's Motion for Judgment of Acquittal, the defendant claims that there is
insufficient evidence to sustain a conviction for Indecent Assault of a Person Less than 16
Years of Age or for Criminal Attempt; therefore there is insufficient evidence to sustain
convictions for Corruption of Minors - Defendant Age 18 or Above or for Unlawful
Contact with Minor - Sexual Advances. In the alternative, in his Motion for the Arrest of
Judgment, he challenges the weight of the evidence claiming that no probability of fact
can be drawn from the combined circumstances and that the stories told by the victim and
the Commonwealth's witness are nonsensical and contradictory. He requests that the
Court grant the Defendant a verdict of not guilty on all counts or grant a new trial
because of this insufficiency and weight issue.
2. In his Motion for a New Trial the Defendant claims that he attempted to offer
impeachment evidence in the form of a prior inconsistent statement made by Bonnie Del
Pezzo. The evidence consisted of screen shots of a Facebook Messenger conversation
that purportedly took place between Bonnie Del Pezzo, witness for the Commonwealth,
and Noella Rodriguez. The Defendant claims that the messages allegedly sent by Bonnie
Del Pezzo show a "conspiracy to have defendant prosecuted for alleged sexual contact
with the alleged victim."! The Defendant claims the Court erred when he was not
permitted to call Noella Rodriguez to the stand in order to authenticate the screen shots of
1
Defendant's Motion for Post-Sentence Relief, 1395-2017, filed July 23, 2018, para. 20.
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messages allegedly sent using Facebook's Messenger application. The Defendant also
claims NoeJla Rodriguez should have been able to testify about inconsistent statements
purportedly made by Bonnie Del Pezzo over the Facebook Messenger application.
PRETRIAL
The Defendant first mentioned electronic communications between Bonnie Del Pezzo
and Noella Rodriguez in a prose Motion for Discovery filed on December 21, 2016.2 Counsel
for the Defendant fiJed a discovery request on April 13, 2017; there was no mention of electronic
data pertaining to communications between Bonnie Del Pezzo or Noella Rodriguez. The
Commonwealth turned over copies of the screen shots to the defense. In the Defendant's Motion
to Modify Bail, filed on November 6, 2017, the Defendant first mentioned the screen shots of the
Facebook Messenger messages purportedly reflecting a conversation between Bonnie Del Pezzo
and Noella Rodriguez.
On January 12, 2018, the Defendant filed a Motion to Compel. In the motion, the
Defendant made several arguments and requests related to the disputed Facebook Messenger
conversation:
1. The Commonwealth's duty to disclose requires the prosecution to obtain and
tum over the electronic data pertaining to the purported conversation.
Commonwealth v. Burke, 781 A2d 1136 (Pa. 2001); Brady v. Maryland, 373
U.S. 83 (1963).
2. The Commonwealth has a duty not to use perjured testimony in efforts to
convict and may not acquiesce to its witnesses' perjured testimony.
Commonwealth v. Martinez, 380 A.2d 747 (Pa. 1977).
2
Prose Motion for Discovery, 1395-2016, filed on December 21, 2016.
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3. Defendant requested the Court to order Bonnie Del Pezzo to comply with the
Defendant's subpoena which requested data related to Bonnie Del Pezzo's
Facebook account.
4. Defendant requested that the Court order Facebook to produce information
relating to the purported Faccbook Messenger conversation.
On January 26, 2018, the Court denied the Defendant's Motion to Compelr' The
Court noted that the defense had not provided authority to support its position that the
Commonwealth should be made to authenticate Facebook messages. It also noted that
the defense had been provided with copies of the screen shots which could be used in
cross-examination of the Commonwealth's witness. The ruling was based on the
Commonwealth's assertion that it had provided the Defendant with everything in its file
regarding the Facebook Messenger conversation.
DISCUSSION
I. Whether the Evidence at Trial Was Insufficient to Support the Convictions or Whether
the Verdict is Against the Weight of the Evidence
The first issue in this Post-SentenceMotion concerns the sufficiency and weight of the
evidence presented at trial. The standard for review for a sufficiency of the evidence challenge is
well settled:
The standard we apply in reviewing the sufficiency of evidence is whether viewing all the
evidence admitted at trial in the light most favorable to the verdict winner, there is
sufficient evidence to enable the fact-finder to find every element of the crime beyond a
reasonable doubt. In applying the above test, we may not weigh the evidence and
substitute our own judgment for the fact finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not preclude every possibility of
innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The Commonwealth may sustain
3
Order of Court, CR-1395-2016, January 26, 2018. ·
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its burden of proving every element of the crime beyond a reasonable doubt by means of
wholly circumstantial evidence. Moreover, in applying the above test, the entire record
must be evaluated and all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and the weight of evidence
produced, is free to believe all, part or none of the evidence.
Com. v. Mucci, 143 AJd 399, 408-409 (Pa. Super. 2016).
The Defendant claims that because there was insufficient evidence to support the
convictions, the convictions should be reversed. Regarding the weight of the evidence, the
Defendant acknowledges precedent whereby the uncorroborated testimony of a sexual assault
victim is sufficient to convict a defendant, Com. v. Davis, 650 A.2d 452, 455 (Pa. Super. J 994),
but posits that in this case the verdict is so contrary to the evidence that it shocks one's sense of
justice. Com. v. Charlton, 902 A.2d 554, 561 (Pa. Super. 2006).
In order to prove a charge of Corruption of Minors-Defendant Age 18 or Above, the
Commonwealth is required to show that a defendant is over 18 years of age, and that he, by the
commission of any act in violation of Chapter 31 (relating to sexual offenses), corrupted or
tended to corrupt the morals of any minor less than 18 years of age. 18 Pa.C.S. § 6301 (A)(l)(ii).
In the instant case, the act in violation of Chapter 31 is Indecent Assault.
In order to prove a charge of Indecent Assault Person Less than 16 Years of Age, the
Commonwealth is required to show that the complainant is less than 16 years of age, and the
defendant is four or more years older than the complainant and the complainant and the
·� defendant are not married. In addition, the Commonwealth must show that the defendant had
indecent contact with the complainant, caused the complainant to have indecent contact with the
defendant, or intentionally caused the complainant to come into contact with seminal fluid, urine
or feces for the purpose of arousing sexual desire in the defendant or the complainant. 18 Pa.C.S.
§ 3126 (a)(8).
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In order to prove a charge of Criminal Attempt - Indecent Assault Person Less than 16
Years of Age, the Commonwealth must show that a defendant, with the intent to commit a
specific crime, does any act which constitutes a substantial step toward the commission of the
crime. 18 Pa.C.S. § 901.
In order to prove a charge of Unlawful Contact with Minor - Sexual Offenses, the
Commonwealth must show that a defendant was intentionally in contact with a minor and
committed any of the specified offenses in Chapter 31, Sexual Offenses. In the instant case the
offense is Indecent Assault Person less than 16 Years Old; the elements are listed above. 18
Pa.C.S. § 6318 (a)(l).
Regarding sufficiency, the evidence at trial showed the victim to be 13 years old at the
time of the alleged crimes. The victim in this case testified to the Defendant grabbing the
victim's private parts and the Defendant putting the victim's private parts against the Defendant
through the victim's clothing. Transcript of Proceedings of Trial-by-Jury ("T.P."), Com. v.
Vaughn, No. 1395 of 2016, February 6, 2018, 23. The victim also testified that the Defendant
tongue-kissed the victim. T.P., 25. In addition to the victim's testimony, the victim's mother
testified that the Defendant admitted to her that he had kissed the victim and had previous sexual
thoughts and dreams about the victim. T.P., 49-50.
The jury in this case weighed the credibility of the victim and the witness and was able to
determine from the evidence all the elements of the crimes were established. Com. v. Hopkins,
747 A.2d 910, 914 (Pa. Super. 2000). The verdict in the case is not contrary to the evidence and
the Motion for Judgment of Acquittal is denied.
Regarding the weight of the evidence, the jury found the victim's testimony credible and
chose not to believe the Defendant's version of the events when he testified. N.T., 125-50. The
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fact-finder was permitted to resolve all issues of credibility, resolve conflicts in evidence, make
reasonable inferences from the evidence, believe all, none, or some of the evidence and the jury
ultimately judged the Defendant guilty. Com. v, Gooding, 818 A.2d 546 (Pa. Super. 2003).
Based on this, we cannot conclude that the verdict is "so contrary to the evidence as to shock
one's sense of justice." Com. v. Charlton, 902 A.2d at 561. The verdict was not against the,
weight of the evidence and the Motion in Arrest of Judgment is also denied.
II. Whether Noella Rodriguez Should Have Been Permitted to Be Called to the Witness
Stand In Order to "Testify and Authenticate" the Previous Inconsistent Statements
The first issue is whether the Court erred by denying the Defendant the opportunity to
call Noella Rodriguez to have her authenticate the screen shots of a Facebook conversation
purported to impeach Bonnie Del Pezzo's credibility as a witness. The second issue is whether
the Court erred by denying the Defendant the opportunity to call Noella Rodriguez to testify to
inconsistent statements made by Bonnie Del Pezzo via the Facebook Messenger application. For
reasons stated below, the Court finds that it did not err by denying the Defendant the opportunity
to call Noella Rodriguez for the authentication of the screen shots of the Facebook Messenger
conversation. The Court also finds that it did not err by denying the Defendant the opportunity
to call Noella Rodriguez for the purposes of impeachment of the witness because Bonnie Del
Pezzo denied having the subject message. conversation with Noella Rodriquez and she also
denied ownership of the account from which the messages were sent.
A. Authentication of Screen Shots ofFacebook Messenger Conversations
Authentication is required prior to the admission of evidence. The proponent of the
evidence must introduce sufficient evidence that the matter is what it purports to be. Pa.R.E.
901(a). Testimony of a witness with personal knowledge that a matter is what it is claimed to be
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can be sufficient. Pa.R.E. 90l(b)(l) (emphasis added). Circumstantial evidence can also be used
to establish authenticity if a person cannot authenticate the matter. Pa.R.E. 90l(b)(4).
The question of what proof is necessary to authenticate social media evidence such as
Facebook Messenger communication was dealt with by the Pennsylvania Superior Court in
Commonwealth v. Mangel, 181 A.3d 1154, 1159-64 (Pa. Super 2018). The Court in Mangel .
outlined the few appellate cases in Pennsylvania that have contemplated the appropriate
requirements necessary for the introduction of electronic communication evidence such as cell
phone messages and social media communications over cell phones and computers. Id.
Pennsylvania appellate courts have established guidelines for the authentication of cell
phone messages. In the Interest of FP., a minor, 878 A.2d 91, 96; Com. v. Koch, 39 A.3d 996,
1005 (Pa. Super. 2011 ). The In re F. P. Court rejected the notion that electronic messages are
inherently unreliable and asserted that the cases should be evaluated on a case-by-case basis to
determine "whether or not there has been an adequate foundational showing of its relevance and
authenticity." Id. The Court stated that the framework of Pa.R.E. 901 and Pennsylvania case law
is sufficient to deal with authentication of evidence. Id. In Koch, the Court rejected the
admission of cell phone message evidence, even though the cell phone was seized during the
execution of a search warrant of the defendant's home and the defendant admitted to the
ownership of the phone. Koch, 39 A.3d at I 000. The Koch Court acknowledged the challenges
inherent in the authentication of electronic data:
[T]he difficulty that frequently arises in e-mail and text message cases is establishing
authorship. Often more than one person uses an e-mail address and accounts can be
accessed without permission. In the majority of courts to have considered the question,
the mere fact that an e-mail bears a particular e-mail address is inadequate to authenticate
the identity of the author; typically, courts demand additional evidence.
Id. at 1004. Ultimately, the Koch Court ruled "authentication of electronic communications, like
documents, requires more than mere confirmation that the number or address belonged to a
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particular person. Circumstantial evidence, which tends to corroborate the identity of the sender,
is required." Id. at 1005.
The Pennsylvania Superior Court, citing a United States Appeals Court for the Third
Circuit decision, named factors for evaluating the authentication of certified Facebook
computerized records under F.R.E. 901.4 Com. v. Mangel, 181 A.3d 1154, 1161-62 (Pa. Super.
2018). Among the relevant factors: (1) the defendant testified that he owned the account from
which the messages were sent; (2) the defendant testified that he owned the device where images
were recovered that were sent after victims were commanded to do so by the defendant's
Facebook messages; (3) in a post-arrest interview, the defendant provided passwords from the
account from which Facebook messages were sent; and, most notably (4) the government
supported the accuracy of the chat logs by obtaining them directly from Facebook and
introducing a certificate attesting to the maintenance by the company's automated systems. US.
v. Browne, 834 F.3d 403, 413 (3d Cir. 2016).
It is important to emphasize that this analysis in Browne was only done through the scope
of certified records provided by Facebook. Once certified, the records also had to survive a
vigorous authentication analysis because of the inherent danger that social media platforms can
be accessed from any computer with the appropriate usemame and password. Mangel, 181 A.3d
at 1162. Social media accounts also present a challenge because of the ease with which these
accounts can be falsified. Id. So, the proponent of social media evidence must present direct or
circumstantial evidence that tends to corroborate the identity of the author of the communication
in question. Other state courts have generally held that the mere fact that an electronic
4
Relevant to this analysis, Pa.R.E. 90l(b)(4) is identical to F.R.E. 901(b)(4).
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communication, on its face, purports to originate from a certain person's social networking
account is generally insufficient, standing alone, to authenticate that person is the author. Id.
In the instant case, Bonnie Del Pezzo denied ownership of the account from which the
messages represented in the screen shots were sent. T.P., 66. Bonnie Del Pezzo denied
ownership of the device from which the messages were sent. Bonnie Del Pezzo did not provide
passwords to the accounts. Id. The Defendant did not provide a certified record from Facebook
about Noelle Rodriguez's Facebook account in an effort to authenticate the screen shots to be
offered.
It is important to note that the Defendant was offering Noelle Rodriguez as a witness in
an effort to authenticate the screen shots as impeachment extrinsic evidence. It is significant that
Bonnie Del Pezzo admitted to communicating with Noella Rodriguez on Facebook Messenger
after the date of the alleged crime, T.P., 67, but Noella Rodriguez's testimony alone is not
enough to authenticate the screen shots. Her authentication would have been valuable if it had
been accompanied by some of the other types of evidence mentioned in the cases referenced
herein. Precedence requires more evidence of the authenticity of written evidence. For the
aforementioned reasons, the Court finds that it did not err by preventing Noella Rodriguez's
from authenticating the Facebook account screen shots as evidence of a prior inconsistent
statement made by Bonnie Del Pezzo.
B. Testimony About Prior Inconsistent Statements for the Purpose of Impeachment
Rule 613 of the Pennsylvania Rules of Evidence includes a provision for the
impeachment of a witness's prior inconsistent statement:
Rule 613. Witness's Prior Inconsistent Statement to Impeach; Witness's Prior
Consistent Statement to Rehabilitate.
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(b) Extrinsic Evidence of a Witness's Prior Inconsistent Statement. Unless the
interest of justice otherwise require, extrinsic evidence of a witness's prior inconsistent
statement is admissible only if, during the examination of the witness,
(1) the statement, if written; is shown to, or not written, its content are
disclosed to, the witness;
(2) the witness is given an opportunity to explain or deny the making of
the statement; and
(3) an adverse party is given an opportunity to question the witness.
A prior inconsistent statement offered for the purposes of impeaching a witness is not
hearsay. Our courts permit non-party witnesses to be cross-examined on prior statements if
those statements contradict their in-court testimony and are offered for the purposes of
impeachment. Com. v. Brady, 507 A.2d 66, 68 (Pa. 1986). Com. v. Lively addressed the
limitation of prior inconsistent statements to impeachment purposes except in very limited
circumstances. Com. v. Lively, 610 A.2d 7 (Pa. 1992). Lively limited the use of prior
inconsistent statements for a substantive purpose to instances where the declarant made the
statement under oath at a formal proceeding, reduced the statement to a writing signed and
adopted by the witness/declarant, or where there are contemporaneous verbatim recordings of the
statement. Id at 10.
The Superior Court of Pennsylvania elaborated on the justification for allowing extrinsic
evidence for impeachment purposes that Rule 613 of the Pennsylvania Rules of Evidence
provides:
The common law has long recognized the right of a party to impeach the credibility
of an adverse witness by introducing evidence that the witness made one or more
statements inconsistent with his testimony at trial, so long as the inconsistency is not
collateral to the issues in the case. Such an inconsistent statement need not be under
oath.
Com v. Brown, 448 A.2d 1097, 1103-04 (Pa. Super. 1982).
In order to utilize prior inconsistent statements, "there must be evidence that the
statement was made or adopted by the witness whose credibility is being impeached.
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Commonwealth v. Baez, 4 31 A.2d 909, 912 (Pa. 1981 )("[I]t is axiomatic that when attempting to
discredit a witness' testimony by means of a prior inconsistent statement, the statement must
have been made or adopted by the witness whose credibility is being impeached.").
In the instant case, Bonnie Del Pezzo does not adopt the statements that she purportedly
made on Facebook Messenger, so it was proper for the Court to exclude any testimonial
impeachment evidence about the messages. Said another way, Bonnie Del Pezzo denies making
the statements that the screen shots purport to show. T.P., 66. The authentication analysis of the
screen shot evidence commented on above is not directly applicable to testimonial impeachment
evidence, but because there is no authority to cite regarding impeachment by prior inconsistent
statements made over computers or cell phones with the use of social media applications, this
Court finds that the impeachment evidence offered in this case was not reliable. The Court is
especially cognizant of the ease with which these accounts can be falsified. Mangel, 181 A.3d at
1162. The witness being offered by the Defendant could not verify that Bonnie Del Pezzo was
the owner of the account or that the witness was actually communicating with Bonnie Del Pezzo.
Since Bonnie Del Pezzo did not adopt the conversation, because Noella Rodriguez did not
witness Bonnie Del Pezzo type the messages, and because ownership of the account used in the
messages conversation was not established, any testimony about the conversation is too
unreliable to be used as impeachment evidence of a prior inconsistent statement pursuant to
Pa.R.E. 613.
The Court notes that counsel for both the Commonwealth and the Defendant were
mistaken about the nature of the evidence at trial. T.P., 79-80. Counsel for the Defendant stated
that "[i]t is not extrinsic" when referring to the testimony that Noella Rodriquez would offer if
called. T.P., 75. Counsel for the Defendant also stated "I don't believe it's being offered to
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impeach." T.P., 79. Counsel for the Commonwealth tried to characterize this type of prior
inconsistent statement as evidence that requires an exception to hearsay. There is no exception
I
to hearsay required for extrinsic impeachment evidence of a witness's prior inconsistent
statement. It is not examined under the rubric of hearsay evidence because it is not offered for
the substantive purposes, but for impeachment purposes. Brady, 507 A.2d at 68. Counsel for
both the Commonwealth and the Defendant were unab]e to cite the appropriate Pennsylvania
Rule of Evidence to support the arguments being advanced. N.T., 78-80.
The Court also acknowledges that this is not a thoroughly developed area of the law in
Pennsylvania and while there is case law on point in Mangel that addresses the authentication of
Facebook messages, Mangel, 181 A.3d at 1161-62, there is no case law addressing the reliability
of testimony regarding conversations conducted via social media applications. In this Opinion,
the factors used in Mangel to evaluate the reliability of testimony regarding a social media
conversation were considered in determining that the offered testimony lacked the degree of
reliability necessary.
The Court finds that it did not err by preventing Noella Rodriguez from testifying about a
prior inconsistent statement made by Bonnie Del Pezzo because the Defendant offered no
evidence in support of his position that Bonnie Del Pezzo actually communicated the statements
via the Facebook Messenger application.
CONCLUSION
After carefuJ and diligent review, the Court finds that the verdict in the case is not
contrary to the evidence and the Court finds the verdict was not against the weight of the
evidence. For these reasons, the Defendant's Motions for Judgment of Acquittal and Arrest of
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Judgment have no merit and are denied. The Court finds that it did not err when it, in the
absence of any other authentication evidence, prevented Noella Rodriguez from authenticating
the Facebook Messenger screen shots being offered as evidence. The Court finds that it did not
err when it prevented Noella Rodriguez from testifying to a prior inconsistent statement made by
Bonnie Del Pezzo via a social media application.
Having found that the Court did not err in its rulings at trial, pursuant to the attached
Order, the Defendant's Motion for a New Trial is denied.
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IN THE COURT OF COMMON PLEAS OF THE 39Tn JUDICIAL DISTRICT
OF PENNSYLVANIA - FRANKLIN COUNTY BRANCH
Commonwealth of Pennsylvania, CRIMINAL ACTION
vs. No: 1395-2016
Richard A. Vaughn,
Defendant
Honorable Carol L. Van Horn
ORDER OF COURT
AND NOW this /�day of December, 2018, upon the review and consideration of the
relevant statutes, rules and case law;
THIS COURT FINDS that the verdict in this case was not contrary to the evidence and
the Court finds the verdict was not against the weight of the evidence; the Defendant's Motions
for Judgment of Acquittal and Arrest of Judgment have no merit and are DENIED.
THIS COURT ALSO FINDS that that it did not err in its rulings at trial; therefore, the
Motion for a New Trial is DENIED.
Pursuant to Pa.R.Crim.P. 114, the Clerk of Courts shall immediately docket this Order
and record in the docket the date it was made. The Clerk shall forthwith furnish a copy of the
Order, by mail or personal delivery, to each party or attorney, and shall record in the docket the
time and manner thereof
By the Court,
Carol L. Van Hom, J.
The Clerk of Courts shall give notice to:
Franklin County District Attorney's Office
Shawn M. Stottlemeyer, Esq., Counsel for Defendant
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