Com. v. Lemmon, A. ( 2022 )

J-S28022-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ANDRE LEMMON SR :
:
Appellant : No. 2803 EDA 2019
Appeal from the Judgment of Sentence Entered April 29, 2019
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0000517-2018
BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J.*
MEMORANDUM BY DUBOW, J.: FILED JANUARY 25, 2022
Appellant, Andre Lemmon Sr., appeals from the Judgment of Sentence
entered on April 29, 2019, in the Court of Common Pleas of Philadelphia
County after a jury convicted him of multiple counts of sex crimes committed
against his minor daughter. Appellant challenges, inter alia, the sufficiency of
the Commonwealth’s evidence to convict him of Involuntary Deviate Sexual
Intercourse (“IDSI”) with a Child. After careful review, we affirm.
For approximately five years, Appellant perpetrated repeated acts of
sexual abuse against N.L., his minor daughter, and A.J., his minor
stepdaughter. This appeal involves Appellant’s abuse of N.L.1 As a result of
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* Retired Senior Judge assigned to the Superior Court.
1The Commonwealth’s case against Appellant for his abuse of N.L. is docketed
at CP-51-CR-000517-2018. The Commonwealth’s case against Appellant for
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the abuse, the Commonwealth charged Appellant with Rape by Forcible
Compulsion, Rape of a Child, IDSI by Forcible Compulsion, IDSI with a Child,
Aggravated Indecent Assault of a Child, Unlawful Contact with a Minor,
Endangering the Welfare of Children, and Incest.2
Relevant to the instant case, on the morning of the first day of trial,
Appellant made an oral motion to pierce the Rape Shield Law, seeking to
present testimonial evidence about an incident that occurred in August 2017,
where Appellant “smacked” N.L. for sending sexually explicit text messages
and threatened that she would suffer “severe repercussions” if anything
similar happened again. N.T. Trial, 2/21/19, at 6-8. After argument, the court
denied the motion.
Appellant’s jury trial began on February 21, 2019. The Commonwealth
presented the testimony of N.L., A.J., Appellant’s minor son A.L., the victims’
mother Sheron Jones, Special Victims Unit Detectives Pete Marcellino and
Patricia Eberhart, Philadelphia Children’s Alliance forensic interviewer Carolina
Castano, and child abuse pediatrician Dr. Marita Lind. Defendant testified in
his defense. The Commonwealth presented evidence to show that Appellant
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abuse of A.J. is docketed at CP-51-CR-000499-2018. The trial court
consolidated these cases for trial. In this Court, Appellant filed separate
appeals of each case, each with its own briefs and distinct arguments. We
address these appeals separately. Appellant’s appeal of the case involving A.J.
is docketed in the Superior Court at 2753 EDA 2019.
2 18 Pa.C.S. §§ 3121(a)(1), 3121(c), 3123(a)(1), 3123(b), 3125(b),
6318(a)(1), 4304(a)(1), and 4302(a), respectively.
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began abusing N.L. in 2012 or 2013, when N.L. was nine years old. Appellant
performed oral and vaginal sex on N.L., and digitally penetrated her vagina.
On February 25, 2019, a jury convicted Appellant of the above crimes.
On April 29, 2019, the court sentenced Appellant to an aggregate term of 9½
to 19 years’ incarceration.3 Appellant timely filed a post-sentence motion,
which the court denied.
Appellant timely filed a Notice of Appeal. Both Appellant and the trial
court complied with Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
1. Did the trial court err when it denied [Appellant]’s Motion to
Pierce the Rape Shield [Law]?
2. Did the trial court err by overruling [Appellant]’s objection to
the Commonwealth’s statement, in closing argument, that there
was no evidence of physical abuse?
3. Was the evidence insufficient to prove [Appellant] guilty of
[IDSI] with a Child where the Commonwealth failed to prove that
N.L. was less than 13 years of age at the time of the deviate sexual
intercourse?
Appellant’s Br. at 4 (reordered for ease of analysis).
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3 Additionally, at docket number 499-2018, the court sentenced Appellant to
serve a term of 20 to 40 years’ incarceration for crimes committed against
A.J., to be served consecutively to the sentence imposed in the instant case.
Appellant’s total aggregate sentence is, therefore, 29½ to 59 years’
incarceration.
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In his first issue, Appellant challenges the trial court’s decision to deny
his motion to pierce the Rape Shield Law, made on the eve of trial.4 Appellant’s
Br. at 11. Critically, Appellant made this motion orally, and did not file a
written motion with a proffer of the evidence that Appellant wanted to
introduce about N.L.’s prior sexual conduct in August 2017. Appellant has
waived this issue.
The Rape Shield Law commands that a defendant, seeking to introduce
evidence of a complainant’s past sexual conduct, “shall file a written motion
and offer of proof at the time of trial.” 18 Pa.C.S. § 3104(b) (emphasis added).
This Court has ruled that the defendant’s filing of a written motion is
mandatory. Commonwealth v. Burns, 988 A.2d 684, 690-91 (Pa. Super.
2009) (en banc) (citations omitted). Failure to file a written motion waives our
review on appeal. See id. See also Commonwealth v. Beltz, 829 A.2d 680,
684 (Pa. Super. 2003) (concluding that failure to make written motion bars
review of trial court decision to exclude); Commonwealth v. Lampe, 1205
EDA 2019, 2020 WL 6196134 at *7 (Pa. Super. 2020) (“Because [Appellant]
did not file a written motion pursuant to section 3104, but only made an oral
objection, we cannot review this claim.”); Commonwealth v. Jones 551
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4We review such decisions for an abuse of discretion. Commonwealth v.
K.S.F., 102 A.3d 480, 483 (Pa. Super. 2014).
We note that the trial court granted an unrelated, written motion by Appellant
seeking to pierce the Rape Shield Law with evidence of N.L.’s conduct on the
date that she disclosed Appellant’s sex abuse. See N.T. Trial, 2/21/19, at 11.
This decision is not at issue.
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MDA 2018, 2019 WL 1752987 at *4 (Pa. Super. 2019) (failure to file a “written
motion or offer of proof [] prior to trial . . . was fatal to Appellant’s claim and
bars our review of the trial court’s decision”).
Appellant’s oral motion on the eve of trial does not comply with the Rape
Shield Law and precludes our review. As a result, this issue is waived.
In his second issue, Appellant claims that the trial court erred by
overruling his objection to a statement the Commonwealth made to the jury
during closing argument, that Appellant did not physically abuse N.L.
Appellant’s Br. at 12-13. Appellant argues that the jury did not hear testimony
about whether Appellant had physically abused N.L. Id. In fact, Appellant
attempted to introduce into evidence that he “smacked” N.L. in August 2017,
but the trial court precluded Appellant from introducing this evidence. Id.Appellant concludes that the Commonwealth’s statement misled the jury. Id.
at 13. Appellant, however, has waived this issue.
Our Rules of Appellate Procedure unequivocally require that an appellant
support each question he or she raises with discussion and analysis of
pertinent authority. See Commonwealth v. Johnson, 985 A.2d 915, 924
(Pa. 2009). See also Pa.R.A.P. 2111 and 2119 (listing argument requirements
for appellate briefs). “[W]here an appellate brief fails to provide any discussion
of a claim with citation to relevant authority or fails to develop the issue in
any other meaningful fashion capable of review, that claim is waived.”
Johnson, supra at 924. See Pa.R.A.P. 2101 (explaining that substantial
briefing defects may result in dismissal of appeal).
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Here, Appellant has failed to cite any legal authority and develop his
argument by applying relevant legal principles. Instead, he baldly concludes
that the court erred by overruling his objection, without identifying any legal
basis to compel a different result. By failing to cite and apply legal authority,
Appellant has given us no framework within which to review and evaluate his
claim. As a result, he has waived this issue.
In his third issue, Appellant challenges the sufficiency of the evidence
to convict him of IDSI With a Child, arguing that the Commonwealth failed to
establish that N.L. was younger than 13 years old when he engaged in deviate
sexual intercourse with her. Appellant’s Br. at 11.
Our standard of review applicable to challenges to the sufficiency of
evidence is well settled: “Viewing the evidence in the light most favorable to
the Commonwealth as the verdict winner, and taking all reasonable inferences
in favor of the Commonwealth, the reviewing court must determine whether
the evidence supports the fact-finder’s determination of all of the elements of
the crime beyond a reasonable doubt.” Commonwealth v. Hall, 830 A.2d
537, 541-42 (Pa. 2003). Circumstantial evidence is sufficient to sustain a
conviction, and the trier of fact—while passing on the credibility of the
witnesses and the weight of the evidence—is free to believe all, part, or none
of the evidence. Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super.
2014). In conducting this review, the appellate court may not weigh the
evidence and substitute its judgment for that of the fact-finder. Id.-6-
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Finally, although a conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not establish guilt to a
mathematical certainty.” Commonwealth v. Brunson, 938 A.2d 1057, 1058
(Pa. Super. 2007) (citation omitted). “[T]he facts and circumstances
established by the Commonwealth need not preclude every possibility of
innocence.” Commonwealth v. Orr, 38 A.3d 868, 872 (Pa. Super. 2011)
(citations omitted). “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. (citations and emphasis omitted).
A person commits IDSI with a Child “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). “Deviate sexual intercourse” includes oral or anal
intercourse. Id. at § 3101.
The trial court found the Commonwealth’s evidence sufficient to prove
that N.L. was younger than 13 years old when Appellant engaged in deviate
sexual intercourse with her. Trial Ct. Op., at 12-13. In support, it referenced
testimony by N.L. that Appellant performed oral sex on her when Appellant
lived in West Philadelphia. Id. at 12. Other testimony established that
Appellant lived in West Philadelphia sometime between November 2014 and
November 2016. Id. at 13. The court recognized that N.L. was born in June
2003 and, therefore, turned 13 years old in June 2016. Id. The court reasoned
that the jury “could infer[] that N.L. w[as] eleven or twelve years old [when
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Appellant performed oral sex on her and, t]hus, the evidence—construed in
the light most favorable to the verdict winner—is sufficient to prove IDSI with
a child.” Id.
After careful review, we conclude that the record supports the trial
court’s finding. See N.T. Trial, 2/21/19, at 58, 71-72, 80, 103, 122-23.
Although the evidence does not preclude the possibility that Appellant
subjected N.L. to oral sex after June 2016, when N.L. was 13 years old, this
possibility is not grounds for reversal. It is the jury’s sole province as fact-
finder to resolve doubts regarding a defendant’s guilt. It is not our role to
reweigh this evidence and decide that Appellant engaged in deviate sexual
intercourse with N.L. between June 2016 and November 2016. Based on our
review of the record, we conclude that the evidence is not “so weak and
inconclusive that as a matter of law no probability of fact may be drawn from
the combined circumstances.” Orr, 38 A.3d at 872. As a result, we will not
disturb the jury’s verdict.
In summary, we conclude that Appellant waived his first two issues and
the Commonwealth’s evidence was sufficient to support the jury’s verdict that
Appellant committed IDSI with a Child.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/25/2022
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