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HomeMy WebLinkAboutCP-21-CR-2553-2007 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : CP-21-CR-2553-2007 : : CHARGES: : (2) SEXUAL ASSAULT : (3) INDECENT ASSAULT : RICARDO HARMON, JR. : OTN: K414380-1 : AFFIANT: DET. JUSTIN SPAULDING IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 Ebert, J., June 30, 2009 — Following a jury trial in this criminal case, Defendant Ricardo Harmon, Jr. was found guilty of Sexual Assault and Indecent Assault. The Defendant is appealing to the Pennsylvania 1 Superior Court from the judgment of sentence of April 6, 2009. Defendant’s bases of appeal are as follows: 1.Defendant asserts that the evidence presented at trial was not sufficient to sustain convictions for the charges. Specifically: a.The evidence failed to establish, beyond a reasonable doubt, that penetration occurred; and b.The evidence failed to establish, beyond a reasonable doubt, that there was indecent contact. 2.Defendant asserts that the trial counsel, Peter Foster, was ineffective for stipulating to the admission of a Protection from Abuse Order (PFA). Defendant claims the unduly prejudicial nature of this evidence was not cured by the fact that the PFA order was referred to as a court order that prohibited the Defendant from 2 having contact with the victim, Maria Gonzalez, or being at her residence. This opinion in support of the judgment of sentence is written pursuant to Pa. R.A.P. 1925(a). 1 Although Defendant styles his appeal as stemming from the order denying his post-sentence motions, an appeal properly lies from the judgment of sentence made final by the denial of post-sentence motions. See Commonwealth v. Lewis, 911 A.2d 558, 561 n. 1 (Pa. Super. 2006). 2 See Defendant’s Concise Statement of Errors Complained of on Appeal, filed May 28, 2009 at 1-2. STATEMENT OF FACTS Defendant Ricardo Harmon, Jr. was arrested on September 12, 2007. The Defendant was charged with Rape, Sexual Assault, and Indecent Assault. The arrest stemmed from an August 23, 2006, incident which occurred in Mechanicsburg at the residence of the Defendant’s ex- girlfriend, Maria Gonzalez. At the time of the incident, the victim, Maria Gonzalez, had a three-year-old child (named Ricardo Harmon, III, or Ricky for short) with the Defendant. A custody arrangement existed between the two parents governing the exchange of the child. In August of 2006 the victim was living in Mechanicsburg, and the Defendant was living in Harrisburg. The custody arrangement provided for the exchange of the child at the YMCA in Harrisburg. Pursuant to a Protection from Abuse (PFA) Order, the Defendant was otherwise not permitted to have contact 3 with the victim. On August 23, 2006, a custodial exchange was scheduled to take place around 4:00 p.m.; however, the victim’s car was not working and, therefore, she could not get to the Harrisburg YMCA to deliver her child to the Defendant for the exchange. The victim called the Defendant at some time around 2:00 or 3:00 p.m. to inform him of the situation and told him that she would 4 deliver the child later than anticipated, after her mother returned from work. The Defendant 5 then communicated to the victim that he did not believe the exchange would, in fact, take place. On that particular day, and while the victim’s mother was at work, the victim was solely responsible for watching five children ranging in age from one month old to eight years old: two being her own children, two being her younger siblings, and one being her niece. At some time 3 See Order Granting Petition for Protection from Abuse (In the Court of Common Pleas of Dauphin County, No. 2005 cv 2395 ab) (July 13, 2005). 4 See Transcript of Hearing on July 16, 2008 at 25, 26. 5 See id. at 25-26. 2 before 4:00 p.m., the victim was in her house upstairs with the newborn baby, and the children were downstairs in the living room. The Defendant entered the victim’s home unannounced and 6 uninvited. The Defendant was acting nervously and told the victim that he “came to get Ricky.” Ricky was barefoot, and the victim would not let the Defendant take the child without his shoes, so she sent her young sister and daughter to go look for Ricky’s sandals upstairs. The children reported back to the victim, telling her that they could not find the sandals, so the victim went upstairs to look for Ricky’s shoes herself. The Defendant followed the victim upstairs. The victim and Defendant both entered the children’s bedroom, and the victim began to search the closet. The Defendant was behind the victim and attempted to hold and kiss her over her verbal protests. The victim turned around to face the Defendant, at which point he then dropped to his knees and attempted to pull down the victim’s pink ‘stretch’ pants. The victim was not wearing underwear. The Defendant then began to lick the victim’s vagina, despite the victim’s attempts to pull her pants back up. The Defendant stopped briefly in response to the victim’s verbal protests. Thinking the Defendant was going to wait downstairs for her to find Ricky’s shoes, the victim left the children’s bedroom and entered the master bedroom. The Defendant, however, followed the victim into the master bedroom. The Defendant then grabbed the victim from behind and brought her down to her knees, at which point he put his hands in the victim’s pants and put his fingers on her vagina. All the while, Mr. Harmon ignored the victim’s persistent verbal protest and physical resistance. The victim “was serious” and “was telling him to stop,” “just trying to 7 hold [her] pants up the whole time.” 6 Id. at 33. 7 Id. at 38. 3 At this point, the victim’s four-year-old daughter came to the door of the master bedroom. The victim was able to get to her feet as the Defendant “shut the door in [the 8 daughter’s] face.” The Defendant then put the victim’s back against the door and attempted to take her pants off. The victim ended up on the ground, and the Defendant was on top of her. The victim continued to tell the Defendant to stop and continued to physically resist his attempts to kiss her and take her pants off. The Defendant then took his penis out of his pants and pulled the victim’s pants down again. 9 The victim “did not want to have sex with him,” and attempted to prevent the Defendant’s penis from entering her vagina with her hands. Despite her efforts, the Defendant’s penis did enter her vagina. While the victim continued her efforts to manually resist the Defendant, the Defendant ejaculated outside of her vagina and on the victim’s hand. The entire episode lasted somewhere between three and five minutes. The Defendant stood up and put his pants back on. The Defendant and the victim both heard the victim’s mother downstairs, who had returned from work sometime after 3:00 p.m. The Defendant insisted that the victim put her clothes back on. The victim wiped herself off using a T-shirt she had picked up from the floor, and the Defendant picked her up and pulled her pants back up for her. Both parties came down the stairs. The Defendant took Ricky and left the house. The victim was visibly upset and crying and told her mother what had happened. The 10 victim then called 911 to report the crime. Police officers arrived at the scene and interviewed Ms. Gonzalez. Detective Justin Spaulding of the Lower Allen Township Police Department was called to the victim’s house and assumed control of the investigation. The victim completed a written statement for Detective 8 Id. 9 Id. at 41. 10 Id.. at 45-46. 4 Spaulding. After meeting with the detective, the victim was taken to Harrisburg Hospital to meet with and undergo a forensic examination by a SAFE (Sexual Assault Forensic Examiner) nurse, Tricia Frankenstein. At this examination vaginal swabs were taken from the victim. They were examined in the Pennsylvania State Police DNA Laboratory. The results of that examination showed that a mixture of DNA was found in the victim’s vagina. The mixture of DNA was from 11 Victim, Maria Gonzalez and Defendant, Ricardo Harmon. On May 20, 2008, Ricardo Harmon, Jr. was first put on trial for the charges of Rape, Sexual Assault, and Indecent Assault, stemming from the events on August 23, 2006. In that proceeding, attorneys Matthew P. Smith, from the Office of the District Attorney, and Peter B. Foster, for the Defendant, both stipulated to the admission of a PFA order into the record. Because the order was “in the form of a consent decree and did not constitute an admission of 12 abuse on the part of the Defendant,” the Court deemed the order was admissible. The first trial judge, J. Wesley Oler, Jr., held: I believe counsel are in agreement that the Commonwealth may place the order in the record without showing it to the jury, that the order will not be permitted to go out with the jury, and that the jury will be told that there was in effect at the time of this incident an order of court which prohibited contact between the alleged victim and the Defendant without being told that it was an order entered under the 13 Protection from Abuse Act. Mr. Smith and Mr. Foster both agreed that this was satisfactory. The first trial began on May 20, 2008; however, it ended in a mistrial. The matter was then retried on July 16-17, 2008. Mr. Smith, again for the Commonwealth, asked the Court to allow the admission of the order being “described as a court order prohibiting the Defendant 11 Transcript of Hearing on July 16, 2008 at 80-81, 90-91. 12 Transcript of Hearing on May 20, 2008 at 12. 13 Id. 5 14 from having contact with her or from going to the residence, her residence.” Mr. Foster, for the Defendant, stipulated to Mr. Smith’s request. In the second trial on July 17, 2008, the jury found Mr. Harmon not guilty on the charge of Rape and guilty on the charges of Sexual Assault and Indecent Assault. Trial counsel represented Mr. Harmon through sentencing. After sentencing, counsel was permitted to 15 withdraw. Mr. Harmon was determined to be indigent and the Public Defender was appointed to represent him on October 20, 2008. Defendant’s timely appeal followed. DISCUSSION I.Sufficiency of Evidence The Defendant appeals on the basis of insufficiency of evidence, asserting that the evidence presented at trial was not sufficient to sustain convictions for the charges of Sexual Assault and Indecent Assault. In reviewing a sufficiency claim, the Court must view the evidence in the light most favorable to the Commonwealth as the verdict winner to determine if the fact-finder could have found each element of the crime proven beyond a reasonable doubt. Commonwealth v. Kerrigan, 920 A.2d 190, 194 (Pa. Super. 2007). 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. Id. at 195. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. The trier of fact, while passing upon the credibility of witnesses and the weight of the evidence produced, is free to 14 Transcript of Hearing on July 16, 2008 at 5. 15 See Order of Court, filed October 20, 2008. 6 believe all, part, or none of the evidence. Id. In applying these principles to the case at hand, this Court must examine Harmon’s convictions for Sexual Assault and Indecent Assault. The Defendant first asserts that the evidence failed to establish, beyond a reasonable 16 doubt, that penetration occurred. Penetration must be established in order to prove sexual intercourse, which is a requisite element of the offense of Sexual Assault. The offense of Sexual Assault is defined as follows: “a person commits felony of the second degree when that person engages in sexual intercourse or deviate sexual intercourse with a complainant without the complainant’s consent.” 18 Pa. Cons. Stat. § 3124.1 (2007). Sexual intercourse, in turn, has been defined thus: “In addition to its ordinary meaning, includes intercourse per os or per anus, with some penetration, however slight; emission is not required.” 18 Pa. Cons. Stat. § 3101 (2007). Therefore, in order to sustain Harmon’s conviction for Sexual Assault, the evidence admitted at trial has to establish that Harmon achieved some degree of penetration, however slight, with the complainant and without the complainant’s consent. A rape victim’s uncorroborated testimony to penile penetration is sufficient to establish sexual intercourse. Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008). While the Superior Court has explicitly made it clear that uncorroborated testimony is sufficient to establish penetration in cases of rape, this standard also applies to cases of Sexual Assault. 18 Pa. Cons. Stat. § 3106 (2007) states: “The credibility of a complainant of an offense under this chapter shall be determined by the same standard as is the credibility of a complainant of any other crime. The testimony of a complainant need not be corroborated in prosecutions under this chapter.” The offense of Sexual Assault is defined in the very same Chapter 31 of Title 18. Therefore, the standard applying the language of § 3106 as set forth by the Superior Court in both Wall is applicable to the testimony of Maria Gonzalez. 16 See Defendants Concise Statement of the Errors Complained of on Appeal, filed May 28, 2009 at 1. 7 Ms. Gonzalez did testify that the Defendant successfully penetrated her vagina with his 17 penis. When asked, “Did his penis go into you at all,” Ms. Gonzalez replied “Yes, it did.” The jury was free to believe all or any part of Ms. Gonzalez’s testimony regarding the penetration as establishing sexual intercourse. Circumstantial medical evidence is not necessary to prove the element of penetration. See Wall, 953 A.2d at 584. Despite the fact that the SAFE nurse found no evidence of trauma to the victim’s vagina, she did testify that a lack of trauma is not 18 inconsistent with a sexual assault. Furthermore, the evidence must be viewed in the light most favorable to the Commonwealth as the verdict winner. Viewed in this light, Ms. Gonzalez’s testimony does show that penile penetration did occur. A mere conflict in testimony does not render the evidence insufficient. Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005). Moreover, Defendant’s DNA was found on the vaginal swab taken from the victim during her SAFE nurse examination. Therefore, even Mr. Harmon’s direct testimony that his penis did not penetrate the victim’s vagina does not render Ms. Gonzalez’s testimony insufficient or incapable of being found credible by the jury. This evidence is not so weak and inconclusive that, as a matter of law, there is no probability of the fact that she was penetrated. The Superior Court has held that the victim’s uncorroborated testimony is sufficient to establish sexual intercourse. As such, the Commonwealth presented sufficient evidence to establish penetration. The Defendant also asserts that the evidence failed to establish, beyond a reasonable 19 doubt, that indecent contact occurred. Indecent contact is a requisite element of the offense of Indecent Assault. The offense of Indecent Assault is defined as follows: A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant 17 See Transcript of Hearing on July 16, 2008 at 41. 18 Id. at 109. 19 See Defendants Concise Statement of the Errors Complained of on Appeal, filed May 28, 2009 at 1. 8 to have indecent contact with the person, or intentionally causes the complainant to come into contact with seminal fluid, urine, or feces for the purpose of arousing sexual desire in the person or the complainant and the person does so without the complainant’s consent. See 18 Pa. Cons. Stat. § 3126(a)(1) (2007). Indecent contact, in turn, has been defined thus: “Any touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire in either person.” 18 Pa. Cons. Stat. § 3101 (2007). Therefore, in order to sustain Harmon’s conviction for Indecent Assault, the evidence admitted at trial has to establish that Harmon did have some indecent contact with the complainant. In Thompson v. Thompson, 963 A.2d 474 (Pa. Super. 2008), the Superior Court agreed with the trial court’s determination that the evidence was sufficient to establish Indecent Assault in a factual scenario strikingly similar to the one at hand. There, a father committed Indecent Assault against the mother of his child when she arrived at his house to pick up their child. The mother testified that the father grabbed her in a sexual way, grabbing her breasts and crotch, while making lascivious comments. The trial court there found this evidence to be sufficient to establish that the father committed an Indecent Assault against the mother, and the Superior Court agreed. See id. at 478. Furthermore, the Superior Court has defined the scope of indecent contact as including any touching of an intimate part of a victim’s person that occurs within the context of an intimate situation and without any legitimate purpose (such as contact initiated during the course of a medical examination). See Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006). This includes contact with something as seemingly mundane as a victim’s mouth, which the Superior Court has qualified as an intimate part of a victim’s person. Id. Moreover, the Superior Court found there that the Defendant’s sexually-charged comments 9 revealed that the touching of the victim was done for the purpose of arousing or gratifying his sexual desire. Id. Here, the victim’s testimony establishes that the Defendant made contact with intimate and sexual parts of her person. Ms. Gonzalez testified that the Defendant succeeded in his 20 attempt to lick her vagina. The Defendant was surely not performing these actions to serve a medical or other non-intimate purpose. His clear purpose was the arousal or gratification of his own sexual desire. The victim testified that the Defendant made comments that “my thing went 21 down because you don’t want me…you don’t want me because I wouldn’t kiss him.” The Defendant then licks the victim’s vagina. It is obvious from this exchange that the fact finder was free to infer that the Defendant engaged in the intimate touching for the sole purpose of arousing and gratifying his sexual desire. Id. For these reasons, the Commonwealth presented evidence sufficient to establish the existence of indecent contact. II.Ineffective Assistance of Counsel Appellant contends that his trial counsel was ineffective for stipulating to the admission 22 of a verbal reference to a “court order” which was based on a consent decree in a PFA case. The testimonial reference during the trial did not in any way use the term PFA or Protection From Abuse. Generally, claims of ineffective counsel are not to be raised on direct appeal but rather are to be brought in a petition under the Post Conviction Relief Act (PCRA). Commonwealth v. Grant, 813 A.2d 726, 738 (Pa. 2002); see 42 Pa. Cons. Stat. §§ 9541-46 (2007). See also Commonwealth v. Nischan, 928 A.2d 349, 356 (Pa. Super. 2007). In Grant, the Pennsylvania Supreme Court abrogated the rule requiring new counsel to raise claims of previous counsel’s ineffectiveness at the first opportunity after new counsel is appointed and 20 See Transcript of Hearing on July 16, 2008 at 36. 21 See Id. at 40 22 See Defendant’s Concise Statement of Errors Complained of on Appeal, filed May 28, 2009 at 1-2. 10 held that claims of ineffective assistance of counsel generally should be deferred until collateral review. See Grant, 813 A.2d at 728 (overruling the prior governing framework—which had been set forth in Commonwealth v. Hubbard, 372 A.2d 687 (Pa. 1977)—that had required new counsel to raise any ineffectiveness claims regarding prior counsel at the first possible opportunity). Underlying the Grant rule is the Supreme Court’s observation that “time is necessary for a petitioner to discover and fully develop claims related to trial counsel ineffectiveness.” Grant, 813 A.2d at 737-38. Thus, “the record may not be sufficiently developed on direct appeal to permit adequate review of ineffectiveness claims.” Id. at 737. Because appellate courts do not normally consider issues that were not raised and developed in the court below, the Grant court reasoned that “deferring review of trial counsel ineffectiveness claims until the collateral review stage of the proceedings offers a petitioner the best avenue to effect his Sixth Amendment right to counsel.” Id. at 738. In Commonwealth v. Bomar, 826 A.2d 831 (Pa. 2003), the Pennsylvania Supreme Court recognized a limited exception to the Grant deferral rule. In Bomar, trial counsel withdrew from the case after sentencing and new counsel entered the matter and filed post-sentence motions raising claims of ineffective assistance of counsel. The trial court conducted hearings at which counsel testified and later wrote an opinion addressing the merits of the ineffective assistance claims. In such circumstances, direct review of the merits of an ineffective assistance claim is permissible. See id. at 854-55. The Supreme Court later clarified this exception; holding that, for ineffectiveness issues to be addressed on direct appeal, there must be a record developed that is “devoted solely to the ineffectiveness claims.” See Commonwealth v. Davis, 894 A.2d 151, 153 (Pa. Super. 2006) (quoting Commonwealth v. Davido, 868 A.2d 431, 441 n. 16 (Pa. 2005)). 11 See also Kerrigan, 920 A.2d at 196 (holding that the Bomar exception to the Grant rule applies and direct review is therefore proper where the lower court held a hearing and addressed the ineffectiveness claim in its opinion). This limited exception to the general rule of Grant clearly does not apply here. This Court did not hold a separate hearing which addressed the ineffective assistance claim. Accordingly, it is therefore prudent to examine another Pennsylvania Supreme Court case for guidance. In Commonwealth v. Pagan, 950 A.2d 270 (Pa. 2008), the Supreme Court once again took up the issue of deferral. There, the appellant maintained that his claim of counsel ineffectiveness was “record-based.” (i.e., plainly established in the trial record) Therefore, he requested that the claim be addressed directly under the Bomar exception to Grant. In Pagan, the Supreme Court reinforced its decisions in Grant and Davis, holding that where there is no hearing on the ineffective assistance claim in the trial court; i.e., where counsel does not testify, there is an insufficient factual record to consider the claim on direct review. The claim is therefore properly dismissed without prejudice subject to the appellant’s right to pursue those claims in a petition filed pursuant to the PCRA. See id. at 97-98. Unlike this situation in Bomar, newly appointed counsel here did not file a post-sentence motion raising trial counsel’s ineffectiveness. Therefore, this Court did not hold an evidentiary hearing at which trial counsel would have been allowed to testify regarding the claim of ineffectiveness. Accordingly, there is an insufficient factual record to consider the ineffective assistance of counsel claim on direct review. The ineffective assistance of counsel claim is therefore improper at this juncture and should be dismissed without prejudice subject to the appellant’s right to bring that claim under the PCRA. 12 CONCLUSION The Commonwealth presented evidence sufficient to establish the existence of both penetration and indecent contact; therefore, the evidence is sufficient to sustain the conviction of Ricardo Harmon, Jr. for both Sexual Assault and Indecent Assault. Furthermore, the settled case law mandates that Mr. Harmon reserve his ineffective counsel claim for collateral review. The ineffective assistance of counsel claim should, therefore, be dismissed. By the Court, M.L. Ebert, Jr., J. Arla M. Waller, Esquire Deputy Public Defender Michelle H. Sibert, Esquire Chief Deputy District Attorney 13