Loading...
HomeMy WebLinkAboutCP-21-CR-0001479-2010 COMMONWEALTH : IN THE COURT OF COMMON PLEAS OF : CUMBERLAND COUNTY, PENNSYLVANIA : V. : : MICHAEL EDWARD NEUMANN : CP-21-CR-1479-2010 IN RE: OPINION PURSUANT TO PA.R.C.P. 1925 Masland, J., August 31, 2012:-- Defendant, Michael Edward Neumann, appeals this court’s judgment of sentence following his conviction by a jury of a litany of sexual crimes against his daughter, K.N., and step-daughter, S.W. He complains of the following errors on appeal: 1. There was insufficient evidence presented at trial to sustain convictions on the above-captioned charges due to the conflicted and ambiguous testimony of the witnesses. 2. The verdicts of guilty were against the weight of the evidence. 3. Allegations of acts which occurred outside the Commonwealth of Pennsylvania, over which the Court had no jurisdiction were improperly introduced at trial. 4. The tenor and wording of the Court’s instructions to the jury were biased and suggested support for the Commonwealth’s version of the facts, resulting in a de facto directed verdict. Concise Statement of Matters Complained of on Appeal, filed June 20, 2012. For the following reasons, Defendant’s convictions and this court’s judgment of sentence should be affirmed in all respects. CP-21-CR-1479-2010 I. Facts The sad facts of this case may be summarized as follows. The Defendant began more than a decade of abuse when he started inappropriately touching K.N.’s breasts and vagina and forcing her to stroke his penis when she was 1 between the ages of five and seven. This escalated to his forcing her to perform 2 oral sex on him when she was seven years old. By the time she was ten, 3 Defendant had begun inserting dildos into K.N.’s vagina and anus. During this time he also frequently displayed pornography to K.N. in an attempt to entice her 4 to engage in sexual activity. At age twelve, he began having vaginal intercourse 56 with K.N. Soon after, he began having anal sex with K.N. He would also have 7 K.N. insert her fingers into his anus for the purpose of deriving sexual pleasure. Everything that occurred was non-consensual, frequent, and physically painful for 8 K.N. While it was going on, K.N. never informed anyone about the abuse due to her fear of the Defendant as he had been violently abusive with her and other 9 members of the household. The first time K.N. discussed the abuse was when her step-sister, S.W., opened up to her about suffering very similar abuse at the Defendant’s hand. K.N.’s step-sister, S.W., suffered a parallel pattern of abuse during her time in the Defendant’s household. S.W. is the daughter of the Defendant’s wife 1 Notes of Testimony, November 14, 2010, vol. I at 106-07. (N.T. vol. I at __). 2 N.T. vol. I at 110. 3 N.T. vol. I at 112-13. 4 N.T. vol. I at 124. 5 N.T. vol. I at 121. 6 N.T. vol. I at 115. 7 N.T. vol. I at 117. 8 N.T. vol. I at 115-16. 9 N.T. vol. I at 129-32. -2- CP-21-CR-1479-2010 and is unrelated to him biologically. The Defendant began engaging in vaginal 10 intercourse with S.W. when she was around thirteen years old. This occurred 11 two to three times a month until S.W. left the home five years later. He would also frequently digitally penetrate her vagina while showing her pornography, 12 beginning when she was fourteen years old. When she was fourteen or fifteen, 13 the Defendant engaged in anal intercourse with S.W. This happened again 14 when she was between the ages of fifteen and seventeen. As with K.N., all of 15 this activity was non-consensual and often physically painful for S.W. S.W. 16 never refused the Defendant’s advances out of fear of physical violence. She 17 did not report the abuse until much later for the same reason. Ultimately, however, S.W. did report the abuse following an incident that occurred when she was eighteen years old. Just after her high school graduation, the Defendant ordered her upstairs to his bedroom where he had 18 vaginal intercourse with her. He did not wear a condom and ejaculated inside 19 her, telling her “I want you to have my kids.” As with all the other abuse, this encounter was non-consensual and S.W. complied with the Defendant’s 20 demands out of fear. 10 N.T. vol. I at 56. 11 N.T. vol. I at 58. 12 N.T. vol. I at 45. 13 N.T. vol. I at 48. 14 N.T. vol. I at 48. 15 N.T. vol. I at 48. 16 N.T. vol. I at 61. 17 N.T. vol. I at 60. 18 N.T. vol. I at 67. 19 N.T. vol. I at 67. 20 N.T. vol. I at 70-71. -3- CP-21-CR-1479-2010 Immediately following this final incident of abuse, S.W. informed a friend of 21 what happened. The friend then informed her mother, who contacted the 22 police. After retrieving items of clothing from her home, S.W. was transported 23 to a hospital and a rape kit was performed. The Defendant’s DNA was found 24 on S.W.’s underwear. A subsequent search of the Defendant’s home revealed pornography and a dildo that S.W. was able to identify as the object with which 25 Defendant had penetrated her twice when she was fifteen. At trial, the Defendant testified on his own behalf and categorically denied 26 touching K.N. in a sexually inappropriate manner. He made a similar denial 27 regarding S.W. He did, however, admit to one instance of sexual intercourse 28 with S.W. Specifically, he admitted to the incident of intercourse that resulted in the discovery of his D.N.A. on S.W.’s underwear. He described the event as follows, On the 25th, sometime around 10:00 in the morning, [S.W.] joined me in bed on her own. I was mildly knocked out with drugs because, as I said, I had a bad back, so I was under prescription medications. I woke up enough to say what’s going on, or something to that effect, and she said—and I clearly remember she says I want this, and she climbed on top of me, 29 and we had intercourse.” 21 N.T. vol. I at 68. 22 N.T. vol. I at 68. 23 N.T. vol. I at 68 24 N.T. vol. I at 68. 25 N.T. vol. I at 78, 83-84. 26 Notes of Testimony, November 16, 2010, vol. II at 298. (N.T. vol. II at __). 27 N.T. vol. II at 303. 28 N.T. vol. II at 302-03. 29 N.T. vol. II at 302-03. -4- CP-21-CR-1479-2010 Ultimately, the jury found the Defendant not credible and returned verdicts of guilty on all counts. The court sentenced him to an aggregate term of 23 to 46 years imprisonment and declared the Defendant a Sexually Violent Predator. II. Discussion A. Sufficiency of the Evidence “The standard of reviewing the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offense beyond a reasonable doubt.” Commonwealth v. Strouse, 909 A.2d 368, 368-69 (Pa. Super. 2006). “The Commonwealth need not preclude every possibility of innocence or establish the defendant’s guilt to a mathematical certainty.” Commonwealth v. Brotherson, 888 A.2d 901, 904 (Pa. Super. 2005). “The finder of fact—here, the jury— exclusively weighs the evidence, assesses the credibility of witnesses, and may choose to believe all, part, or none of the evidence.” Commonwealth v. Sanchez, 36 A.3d 24, 39 (Pa. 2011) (internal citations omitted). 1. Rape of a Child The Defendant was convicted of one count of rape of a child, relating to K.N. A person commits the offense of rape of a child when he engages in sexual intercourse with a victim who is less than thirteen years of age. 18 Pa. C.S. § 3121(c). Here, K.N. testified that the Defendant began engaging in sexual -5- CP-21-CR-1479-2010 30 intercourse with her when she was twelve years old. This credible testimony was sufficient for the jury to render a verdict of guilty for this count. 2. Incest The Defendant was convicted of one count of Incest. A person is guilty of incest if he knowingly has sexual intercourse with a descendent of the whole or half blood. 18 Pa.C.S. § 4302. Here, it was never disputed that K.N. is the Defendant’s biological daughter, and she credibly testified that he engaged in sexual intercourse with her. Thus, there was sufficient evidence for the jury to render a verdict of guilty for this count. 3. Involuntary Deviate Sexual Intercourse – Child Over 12 Under 16 The Defendant was convicted of two counts of Involuntary Deviate Sexual Intercourse. A person commits this offense when he engages in deviate sexual intercourse with a victim who is less than 16 years of age when he is four or more years older than the victim and the two are unmarried. 18 Pa.C.S. § 3123(a)(7). Here, both victims testified to numerous instances of nonconsensual anal and oral sex that occurred when they were between the ages of twelve and sixteen. The jury obviously found the victims credible and that testimony alone constitutes sufficient evidence. 4. Involuntary Deviate Sexual Intercourse with a Child The Defendant was convicted of one count of Involuntary Deviate Sexual Intercoursewith a Child, relating to his daughter, K.N. 30 N.T. vol. I at 119. -6- CP-21-CR-1479-2010 A person commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age. 18 Pa.C.S. § 3123(b). K.N. testified that the Defendant performed oral sex on her when she was 31 as young as nine years old. Her credible testimony constitutes sufficient evidence to affirm the Defendant’s guilt as to this count. 5. Aggravated Indecent Assault – Lack of Consent The Defendant was convicted of two counts of aggravated indecent assault – lack of consent. A person commits this offense when he knowingly engages in nonconsensual penetration, however slight, of the genitals or anus of a victim. 18 Pa. C.S. § 3125(a)(7). K.N. testified to frequent instances of 32 nonconsensual digital penetration of her vagina and anus by the Defendant. S.W. testified the Defendant engaged in nonconsensual digital penetration of her 33 vagina when she was fourteen years old. The victims’ credible testimony constitutes sufficient evidence to affirm the jury’s verdict as to these counts. 6. Aggravated Indecent Assault of a Child The Defendant was convicted of one count of Aggravated Indecent Assault of a Child, relating to K.N. A person commits that offense when he knowingly engages in nonconsensual penetration, however slight, of the genitals or anus of a victim where the victim is less than 13 years of age. 18 Pa. C.S. § 3125(b). 31 N.T. vol. I at 110 32 N.T. vol. I at 112-13. 33 N.T. vol. I at 45-46. -7- CP-21-CR-1479-2010 Here, K.N. testified that the Defendant began regularly digitally penetrating her vagina without her consent when she was between five and seven years 34 old. This credible testimony constitutes sufficient evidence for the jury to reach a guilty verdict on this count. 7. Aggravated Indecent Assault of a Child Under 16 The Defendant was convicted of two counts of aggravated indecent assault of a child under sixteen while he was more than four years older. A person commits this offense when he penetrates the genitals or anus of a victim, however slightly, and the victim is under sixteen and the person is more than four years older than the child. 18 Pa. C.S. § 3125(a)(8). K.N. testified to the Defendant’s frequent, ongoing digital penetration of her vagina during the time when she was between thirteen and sixteen years 35 old. S.W. testified that the Defendant penetrated her with his fingers and with a dildo on several occasions when she was between the ages of thirteen and 36 sixteen. Again, this credible testimony constitutes sufficient evidence for the Defendant’s convictions for these offenses. 8. Indecent Assault – Lack of Consent The Defendant was convicted of two counts of indecent assault – lack of consent. A person commits this crime if he has indecent contact with a victim without her consent. 18 Pa. C.S. § 3126(a)(1). Indecent contact is any touching of the sexual or other intimate parts of the victim for the purpose of arousing or gratifying sexual desire in either person. 18 Pa. C.S. § 3101. 34 N.T. vol. I at 106. 35 N.T. vol. I at 112-13. 36 N.T. vol. I at 46, 78. -8- CP-21-CR-1479-2010 Here, both victims credibly testified that the Defendant had frequent nonconsensual indecent contact with them. Their credible testimony is sufficient evidence to sustain these conviction. 9. Indecent Assault on a Child Under 16 The Defendant was convicted of two counts of indecent assault on a child under sixteen. A person commits this crime if he has indecent contact with a child under the age of sixteen and he is more than four years older than the child. 18 Pa. C.S. § 3126(a)(8). K.N. testified that the Defendant touched her chest and vagina and forced 37 her to stroke her penis when she was younger than sixteen. She also testified that he forced her to insert her fingers into his anus for the purpose of his sexual 38 gratification when she was fifteen years old. For her part, S.W. testified that the Defendant inappropriately touched her chest and vagina while showing her 39 pornography when she was fourteen years old. As throughout, their credible testimony constitutes sufficient evidence to affirm the jury’s guilty verdicts as to these two counts. 10. Indecent Assault of a Child The Defendant was convicted of one count of indecent assault of a child, relating to K.N. A person is guilty of that offense if he has indecent contact with a child younger than thirteen years of age. 18 Pa. C.S. § 3126(a)(7). 37 N.T. vol. I at 106-07. 38 N.T. vol. I at 117. 39 N.T. vol. I at 45. -9- CP-21-CR-1479-2010 K.N. testified that the Defendant began inappropriately touching her chest and vagina when she was between five and seven years old. Her credible testimony is sufficient evidence to support this conviction. 11. Statutory Sexual Assault The Defendant was convicted of two counts of statutory sexual assault. A person is guilty of that offense if he has sexual intercourse with a victim who is under the age of sixteen and he is more than four years older than the victim. 18 Pa. C.S. § 3122.1. K.N. testified that the Defendant regularly engaged in sexual intercourse 40 with her from the age of twelve. S.W. testified that the Defendant began 41 engaging in sexual intercourse with her when she was thirteen years old. Again, the victims’ credible testimony is sufficient to support these convictions. 12. Sexual Assault The Defendant was convicted of two counts of sexual assault. A person commits that crime when he engages in sexual intercourse or deviate sexual intercourse with a victim without her consent. 18 Pa. C.S. § 3124.1. K.N. testified that the Defendant had sexual intercourse with her 42 numerous time and always without her consent. S.W. also testified that the Defendant had sexual intercourse with her numerous times and always without 43 her consent. Also, the investigation into S.W.’s final assault yielded D.N.A. 40 N.T. vol. I at 119. 41 N.T. vol. I at 56. 42 N.T. vol. I at 115-16. 43 N.T. vol. I at 61, 71. -10- CP-21-CR-1479-2010 44 evidence from the Defendant on her underwear. This credible testimony coupled with the physical evidence of the Defendant’s D.N.A. is sufficient to support these convictions. 13. Corruption of Minors The Defendant was convicted of two counts of corruption of minors. A person commits that crime when, “being of the age of 18 years and upwards, by any act corrupts or tends to corrupt the morals of any minor less than 18 years of age ….” 18 Pa.C.S. § 6301(a)(1). K.N. testified that the Defendant showed her pornography while she was a 45 child in an attempt to entice her to engage in sexual activity. S.W. testified that the Defendant also showed her pornography for the same reason when she was 46 fourteen years old. As throughout, this credible testimony constitutes sufficient evidence to support the jury’s verdicts as to these two charges. 14. Conclusion – Sufficiency of the Evidence Ultimately, the Defendant’s challenge to the sufficiency of the evidence of every count against him asks the Superior Court to reevaluate a record that is replete with facts and to disregard the jury’s obvious findings. It is axiomatic that this court may not substitute its judgment for that of the fact-finder and where the record contains support of the convictions, they may not be disturbed. Commonwealth v. Duncan, 932 A.2d 226, 231 (Pa. Super. 2007). For that reason, this challenge must fail. 44 N.T. vol. I at 68. 45 N.T. vol. I at 124. 46 N.T. vol. I at 45. -11- CP-21-CR-1479-2010 B. Weight of the Evidence Defendant contends the jury verdicts were against the weight of the evidence inasmuch as his testimony contradicted that of S.W. and K.N. The court disagrees. 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. Palo, 24 A.3d 1050, 1055 (Pa. Super. 2011). An appellate court cannot substitute its judgment for that of the jury on issues of credibility. Id. Here, the jury, confronted with contradictory testimony, obviously credited that of K.N. and S.W. over the Defendant. When we denied Defendant’s post- sentence motion that challenged both the sufficiency and weight of the evidence, we noted our limited authority to upset the jury’s verdicts. Having heard the same evidence, overturning the jury’s determination of guilt on even one charge is an action we would not countenance. Similarly, the jury’s determination should remain undisturbed on appeal. C. Evidence of Acts Occurring Outside the Commonwealth Defendant further complains the Commonwealth inappropriately introduced evidence of alleged crimes occurring outside this court’s jurisdiction. Specifically, K.N. testified that Defendant began molesting her at the age of five 47 or six while they lived in Connecticut. Because this evidence was more relevant than prejudicial, the court did not err in admitting it. 47 N.T. vol. I at 123. -12- CP-21-CR-1479-2010 Our rules provide: Although relevant, evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Pa. R.E. 403. Here, the complained of evidence is undoubtedly prejudicial, however, it is also highly probative in that it establishes the duration and pattern of abuse against K.N. and serves to corroborate both victims’ testimony of Defendant’s grooming of the victims at a young age for future abuse. As such, the probative value of the testimony outweighs any prejudicial effect and was therefore properly admitted. D. Jury Instructions Finally, Defendant argues the tenor and wording of the Court’s instructions to the jury were biased and suggested support for the Commonwealth’s version of the facts, resulting in a de facto directed verdict. Because this issue is waived, it presents no basis for a new trial. However, we note that this court takes great pains to avoid any suggestive intonations or inflections. Perhaps, the filter of the Defendant’s conscience interpreted our charge in that manner? We submit that bias cannot be found in our words and was not present in our presentation. Regardless, Defendant’s failure to object to a jury instruction when given the opportunity constitutes the waiver of that issue for appellate review. Commonwealth v. May, 31 A.3d 668, 673 (Pa. 2011); Pa. R.A.P. 302(b). Here, at the close of the jury charge, both the Defendant and the Commonwealth were -13- CP-21-CR-1479-2010 48 provided an opportunity to object. At that time, both attorneys and the undersigned entered into a discussion at side bar where Defendant’s attorney took issue with the court’s instruction regarding the defense of mistake of age. The following exchange occurred: The Court: Now, anything further, Mr. Monfredo? Mr. Monfredo: Is there any way you could explain why you keep stating this to them. I feel like it has this effect that no defense has been offered. The Court: Well, I could say that the defendant has said that this did not occur. Mr. Monfredo: I would like that. Ms. Peck: Actually, I wanted to bring that up. We talked about this. I’m sorry, Your Honor. But I agree with the statement that you put in here that the defense of mistake of age has not been offered. In fairness, I wanted to bring up that the defense of mistake of age is not available for under 14, I believe, but technically under the law it is available over 14, under 16. So it would be a defense under the law to some of these offenses. However, it hasn’t been offered. I think that’s fair, what we said, that it hasn’t been offered by the defense as a defense. The Court: I think it is fair to say that. As I had advised counsel yesterday, it was initially my intention just to leave that language out completely because it had not been offered. You had requested that I acknowledge the presence of the language, so I did it with that phrase. I am happy to explain— Ms. Peck: It could have been. The Court: --Mr. Monfredo, that it could have been offered, that a defense of age could have been offered with respect to some of the offenses. Then I could say that that was not offered because the 48 N.T. Vol. III at 458. -14- CP-21-CR-1479-2010 defendant’s case was based on the fact that this did not occur. Is that satisfactory? Mr. Monfredo: Yes. Ms. Peck: Yes. N.T. vol. III at 459-60. As is clear from the side bar exchange, Defendant’s attorney objected to the manner in which the court instructed the jury as to the defense of mistake of age. The court then discussed the matter with counsel and reached a compromise amenable to both parties. Following the supplemental jury charge, Defendant’s attorney did not renew his previously resolved objection. As such, any objection to the jury instruction has been waived and can provide no basis for appellate relief. III. Conclusion For all these reasons, the Superior Court should affirm the jury’s verdicts and this court’s judgment of sentence in all respects. By the Court, Albert H. Masland, J. Matthew P. Smith, Esquire For the Commonwealth Diane L. Morgan, Esquire For Defendant :saa -15-