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HomeMy WebLinkAboutCP-21-CR-0000781-2008 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : : CHARGES: (1) RAPE OF A CHILD : (2) INV. DEV. SEX. INTERCOURSE : (3) INV. DEV. SEX. INTERCOURSE : WITH A CHILD : (4) STATUTORY SEX. ASSAULT v. : (5) AGGRAV. INDECENT ASSAULT : UPON A CHILD : (6) AGGRAV. INDECENT ASSAULT : (7) INDECENT ASSAULT UPON A : CHILD : (8) CORRUPTION OF MINORS : (9) INDECENT ASSAULT KENNETH JAMES CLARK: OTN: K386405-5 : CP-21-0781-2008 IN RE: OPINION PURSUANT TO PA. R.A.P. 1925 OLER, J., June 15, 2010. In this criminal case involving child abuse, Defendant was found guilty following a jury trial of Rape of a Child, Involuntary Deviate Sexual Intercourse, Involuntary Deviate Sexual Intercourse with a Child, Statutory Sexual Assault, Aggravated Indecent Assault upon a Child, Aggravated Indecent Assault, Indecent 1 Assault upon a Child, Corruption of Minors, and Indecent Assault. He received an aggregate sentence in accordance with the mandatory minimum sentence 2 required by law. From the judgment of sentence, Defendant has filed an appeal to the 3 Pennsylvania Superior Court. The bases for the appeal have been expressed in Defendant’s statement of errors complained of on appeal as follows: 1 Verdict Slips, January 27, 2009. 2 Order of Court, October 27, 2009. Several of the offenses carried mandatory minimum sentences of ten years in a state correctional institution, which was the aggregate minimum sentence imposed by the court. Id. Defendant was found by the court to be a sexually violent predator. Id.; see Opinion and Order of Court, October 8, 2009. 3 Defendant’s Notice of Appeal, filed April 1, 2009. 1. The evidence presented by the Commonwealth was insufficient to sustain a conviction of Rape of a Child in that the only witness to testify to these events was the victim who gave vague testimony about when and how she was assaulted and the medical evidence only supported penetration which may be self-inflicted. 2. The evidence presented by the Commonwealth was insufficient to sustain a conviction of Involuntary Deviate Sexual Intercourse in that the victim gave vague testimony about when and how she was assaulted and one witness who gave testimony regarding pictures that were not presented at trial and the medical evidence only supported penetration which may be self-inflicted. 3. The evidence presented by the Commonwealth was insufficient to sustain a conviction of Involuntary Deviate Sexual Intercourse with a Child in that the only witness to testify to these events was the victim who gave vague testimony about when and how she was assaulted and one witness who gave testimony regarding pictures that were not presented at trial and the medical evidence only supported penetration which may be self-inflicted. 4. The evidence presented by the Commonwealth was insufficient to sustain a conviction of Statutory Sexual Assault in that the only witness to testify to these events was the victim who gave vague testimony about when and how she was assaulted and one witness who gave testimony regarding pictures that were not presented at trial and the medical evidence only supported penetration which may be self-inflicted. 5. The evidence presented by the Commonwealth was insufficient to sustain a conviction of Aggravated Indecent Assault in that the only witness to testify to these events was the victim who gave vague testimony about when and how she was assaulted and the medical evidence only supported penetration which may be self- inflicted. 6. The evidence presented by the Commonwealth was insufficient to sustain a conviction of Indecent Assault in that the only witness to testify to these events was the victim who gave vague testimony about when and how she was assaulted and the medical 4 evidence only supported penetration which may be self-inflicted. This opinion in support of the judgment of sentence is written pursuant to Pennsylvania Rule of Appellate Procedure 1925(a). STATEMENT OF FACTS In considering a challenge to the sufficiency of the evidence in a criminal case, a court is to view “the evidence in the light most favorable to the 4 Defendant’s Concise Statement of the Errors Complained of on Appeal, filed April 26, 2010. 2 Commonwealth as verdict winner” and to draw “all proper inferences favorable to the Commonwealth” from the evidence presented. Commonwealth v. O’Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290. A challenge to the sufficiency of the evidence does not implicate a weighing of the evidence. Commonwealth v. Butler, 2004 PA Super 294, ¶9, 856 A.2d 131, 135. 5 At trial in this case, a 15-year-old girl, who was born on September 28, 67 1994, testified that when she was about eleven years old, Defendant (whose date 8 of birth was August 14, 1970) and his girlfriend (whose date of birth was June 4, 910 1987), both of whom lived together in the same mobile home park as she did, 11 subjected her to a sexual encounter on a couch in their residence. In the encounter, according to the child, the Defendant penetrated her vagina with his 1213 penis while his girlfriend held her hand and patted her head. 14 The child testified that numerous encounters of a similar nature followed 15 over the next two years, sometimes involving a vibrating device which they 16 inserted into her vagina, and including an encounter occurring at a certain hotel 17 to which Defendant and his girlfriend transported her, a few miles from the 5 N.T. 22, Trial, January 22-27, 2010 (hereinafter N.T. __). 6 N.T. 22. 7 N.T. 34. 8 N.T. 367. 9 N.T. 368. 10 N.T. 23, 25. 11 N.T. 34. 12 N.T. 34. 13 N.T. 35. 14 N.T. 39, 61, 62-63. 15 N.T. 40-41. 16 N.T. 47-48. 17 N.T. 44-47. 3 18 mobile home park. The following excerpts from the trial are representative of her testimony: How many times would you say that you have had Q . . . that type of interaction with [Defendant]? A Over 50. Q As you said, is the first time it happened when you were 11? A Yes. Q Did he put his penis inside any other part of your body? A No. Q What about your mouth? A No. Q He never put his penis in your mouth? A Not the first time but other times, yes. Q Moving on from the first time then. What was the first time he put his penis in your mouth? A I don’t remember. Q How many times did he put his penis inside your mouth? A I don’t remember how many of that, but it was a lot. Q Was this before or after you turned 13 or both? A It was both. Q Was [Defendant’s girlfriend] there when this would happen, when he put his penis inside your mouth? A Sometimes. Q Did he put any of his other body parts inside of you, fingers or anything else like that? A His fingers. Q What did he put his fingers inside of? A My vagina. Q What was [Defendant’s girlfriend] doing? A Sometimes she would help and watch or sometimes she wasn’t there. 18 N.T. 44, 417. 4 Q What about his tongue, did he ever stick his tongue inside of you? A Yes. Q Where? A My vagina. Q What about [Defendant’s girlfriend]? A Yes. Q What type of sex would you have with her? A She would um, she would finger me. Q When you say that, what would she put inside of you? A Her fingers. Q Where would she put them inside of you? A In my vagina. Q Did she put any other body parts inside of you? A Her tongue in my vagina. Q How many times would you say that up until September of 2007 that [Defendant’s girlfriend] either fingered you or put her tongue inside of you? Q Maybe over 20 something or other. Q Would you ever do that to her? A Yes. Q Can you describe to me most of the times that this happened, where did that happen, at their house, at your house, other places? 19 A At their house or else in his truck and at a hotel. * * * * Q When you said that you had sex in your house then, where in your house did you have sex with [Defendant] and [Defendant’s girlfriend]? 20 A In my bedroom. * * * * 19 N.T. 39-42. 20 N.T. 42. 5 Q How did you know when you were supposed to go to have sex with them or when they would come over to have sex at your house? A They would see that my mom would be gone because the car wasn’t there or whenever [my mom] was helping [my mom’s] boyfriend on a job, whenever [my mom and her boyfriend] would go to Maryland down there, like Thursday night I think it 21 was, he would come down before he would go to work. * * * * Q . . . [D]id you ever allow either [Defendant or his girlfriend] to take pictures of you? A Sometimes. Q Where were those pictures taken? A In [Defendant’s] bedroom, well, [Defendant’s and Defendant’s girlfriend’s] bedroom. Q They shared a bedroom? 22 A Yes, when she moved in. * * * * Q When you are in the hotel room, did you use your tongues at all? A Yes. Q Who used their tongue on whom? A [Defendant’s girlfriend] licked me and I licked her and [Defendant] licked me and he licked her. Q When you say they licked you, where did they lick you? A My vagina. Q Did their tongue actually go in, part way into your vagina? 23 A Yes. Corroboration of the child’s account of her activities with Defendant and his girlfriend over this period appeared at trial in the form of evidence tending to show the following: 21 N.T. 43. 22 N.T. 29-30. 23 N.T. 48. 6 On an occasion in March, 2007, the child’s mother had arrived home to find Defendant coming out of the child’s room without his shirt on, followed by 24 Defendant’s girlfriend, whose hair was in disarray. Defendant’s claim that he had 25 been repairing an electrical outlet in the room was a fabrication. On August 25, 2007, Defendant and his girlfriend had rented a room at the 26 hotel which the child subsequently identified to police, and had checked out a 27 few hours later. On September 3, 2007, the child’s mother discovered that the child was 2829 concealing a cell phone belonging to Defendant’s girlfriend and containing 30 photographs, sent from the cell phone of Defendant. Three of the pictures 31 showed the child (a) posed with the penis of Defendant next to her mouth, (b) 32 performing fellatio upon Defendant, and (c) performing cunnilingus upon a 33 female’s vagina. The pictures showing Defendant’s penis were captioned 3435 “Mmmmm,” and “A BJ from BJ [the child’s initials].” A fourth picture showed 36 a woman whose face was not fully displayed posed with the penis of Defendant. Further supporting the prosecution was evidence tending to show (a) that the cell phone in question had until recently been in the possession of Defendant’s 24 N.T. 123-25. 25 N.T. 49. 26 N.T. 315-20, 351-52. 27 N.T. 496-97. 28 N.T. 93-95. 29 N.T. 465-67. 30 N.T. 173. 31 N.T. 172-73. 32 N.T. 168. 33 N.T. 168. 34 N.T. 168, 171. 35 N.T. 168, 172. 36 N.T. 174-75. 7 37 girlfriend, (b) that, upon being confronted with the cell phone by the victim’s mother and a neighbor, Defendant’s girlfriend admitted that the woman in the 38 fourth picture described above was she, (c) that during the confrontation 3940 Defendant had grabbed the cell phone and deleted the photographs, (d) that he 41 had subsequently refused to turn over the cell phone to police voluntarily, and (e) that he had destroyed the hard drive on the computer in the bedroom he shared 42 with his girlfriend before police could seize it pursuant to a search warrant. In addition, expert testimony was presented that the condition of the child’s 43 hymen was consistent with penetration. A search of the residence of Defendant 44 and his girlfriend revealed, inter alia, vibrating sex devices. The defense presented to the charges was to the effect that (a) the deleted sexual pictures had been of Defendant and his girlfriend, and did not show the 45 child, (b) the rental of the hotel room had been for the purpose of discussing a domestic problem in private and that the child had been in the room only briefly to 46 use the bathroom, (c) the conditions of the household of Defendant and his 47 girlfriend were not conducive to secret sexual encounters with a child, and (d) the child had fabricated the allegations of sexual activity, possibly because she 48 was unhappy that Defendant and his girlfriend were thinking of relocating. 37 N.T. 465. 38 N.T. 175, 177. 39 N.T. 178. 40 N.T. 113, 204, 402-04, 554-55. 41 N.T. 331, 556. 42 N.T. 379, 557, 563. 43 N.T. 259-60. 44 N.T. 348; Commonwealth’s Ex. 28. 45 N.T. 331, 402, 553. 46 N.T. 476-77. 47 N.T. 413, 464-65. 48 N.T. 511. 8 DISCUSSION Sufficiency of the evidence. On a challenge to the sufficiency of the evidence in a criminal case, the proper test is “whether, viewing the evidence in the light most favorable to the Commonwealth as verdict winner and drawing all proper inferences favorable to the Commonwealth, the trier of fact could have determined all the elements of the crime have been established beyond a reasonable doubt.” Commonwealth v. O’Bryon, 2003 PA Super 139, ¶7, 820 A.2d 1287, 1290, quoting Commonwealth v. Hagan, 539 Pa. 609, 613, 654 A.2d 541, 543 (1995); Commonwealth v. Rokowski, 2010 PA Super 3, ¶3, 987 A.2d 1215, 1217. A conviction is proper if the evidence presented at trial is sufficient to allow the “fact finder to find every element of the crime charged beyond a reasonable doubt.” Commonwealth v. Coleman, 2009 PA Super 229, ¶6, 984 A.2d 998, 1000. A challenge to the sufficiency of the evidence does not implicate a weighing of the evidence. Commonwealth v. Butler, 2004 PA Super 294, ¶9, 856 A.2d 131, 135, citing Commonwealth v. Cassidy, 447 Pa. Super. 192, 668 A.2d 1143, 1144 (1995). The trier of fact, while passing upon the credibility of witnesses and the weight to be afforded to the evidence produced, is “free to believe all, part or none of the evidence.” Commonwealth v. Griscavage, 512 Pa. 540, 543, 517 A.2d 1256, 1257 (1986) (citations omitted). In a case involving sexual abuse, the uncorroborated testimony of a victim, if credited by the jury, can be sufficient to warrant a conviction. See Act of March 31, 1995, P.L. 985, §3, 18 Pa. C.S. §3106; see Commonwealth v. Trimble, 419 Pa. Super. 108, 113, 615 A.2d 48, 50 (1992) (child victim).Furthermore, criminal responsibility may be assessed on the basis of accomplice liability. Act of Dec. 6, 1972, P.L. 1482, §1, 18 Pa. C.S. §306. A person is an accomplice of another person in the commission of an offense if, with the intent of promoting or facilitating the commission of the offense, he or she solicits such other person to commit it or aids or agrees or attempts to aid such other person in planning or committing it. Id. §306(c). 9 In the present case, the victim’s testimony was strongly corroborated by other evidence of Defendant’s commission of the offenses charged, including evidence tending to show that photographs had been taken showing Defendant and his girlfriend engaged in sexual activity with the victim. When viewed in the light most favorable to the Commonwealth, the evidence, in the court’s view, was more than sufficient to warrant a jury’s finding that Defendant, both as a principal and an accomplice, was guilty of the offenses charged beyond a reasonable doubt. For the foregoing reasons, it is believed that the judgment of sentence appealed from by Defendant was properly entered. BY THE COURT, _________________ J. Wesley Oler, Jr., J. David J. Freed, Esq. Cumberland County District Attorney Brian O. Williams, Esq. Assistant Public Defender Attorney for Defendant Gregory B. Abeln, Esq. Court-appointed Attorney Attorney for Co-Defendant (courtesy copy) 10