Com. v. Fehir, R. ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RICHARD J. FEHIR, JR. :
:
Appellant : No. 1355 WDA 2018
Appeal from the Judgment of Sentence Entered April 24, 2018
In the Court of Common Pleas of Beaver County
Criminal Division at No(s): CP-04-CR-0000434-2016
BEFORE: PANELLA, P.J., BENDER, P.J.E., and DUBOW, J.
MEMORANDUM BY PANELLA, P.J.: FILED DECEMBER 20, 2019
Richard J. Fehir, appeals from the judgment of sentence entered on April
24, 2018, in the Court of Common Pleas of Beaver County, following his
conviction of multiple counts of rape,1 involuntary deviant sexual intercourse
(IDSI),2 sexual assault,3 aggravated indecent assault,4 indecent assault,5
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1 18 Pa.C.S.A. §§ 3121(a)(1), (2) and (c).
2 18 Pa.C.S.A. §§ 3123(a)(1), (2), (7), and (b).
3 18 Pa.C.S.A. § 3124.1.
4 18 Pa.C.S.A. §§ 3125(a)(1), (2), (3), (7), and (b).
5 18 Pa.C.S.A. §§ 3126(a)(1), (2), (3), (4), (7), and (8).
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indecent exposure,6 unlawful contact with a minor,7 corruption of a minor,8
and endangering the welfare of a child.9 On appeal, Fehir claims the evidence
was insufficient to sustain his conviction for rape of a child and the trial court
erred in allowing the Commonwealth to re-open its case-in-chief, after Fehir
moved for a judgment of acquittal, to allow formal identification of him as the
perpetrator. After review, we affirm.
The trial court summarized the facts behind Fehir’s conviction as
follows.
On January 16, 2018, [Fehir] proceeded to a jury trial in this
matter. . . . The Commonwealth called [the Victim] to testify. [The
Victim] testified that she is familiar with Richard Fehir because he
was her stepfather. Testimony by [the Victim] provided that
Richard Fehir “raped and molested [the Victim] for ten years”
beginning when she was “about five.”. . .
****
[The Victim] testified that [ ] Fehir would come into her room at
night and watch her while she was sleeping or pretending to sleep.
[ ] Fehir would touch [the Victim] inappropriately, he would
massage “down [her] back to [her] butt and then [her] thighs[;]”
this is where it started. [The Victim] further indicated that
eventually, [ ] Fehir would pull down her pants and “put his mouth
on [her] vagina[.]” The Victim testified that [ ] Fehir would
perform these acts “[a]t least a few times a month when he would
go out[.]”. . .
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6 18 Pa.C.S.A. § 3127(a).
7 18 Pa.C.S.A. § 6318(a).
8 18 Pa.C.S.A. § 6301(a)(1).
9 18 Pa.C.S.A. § 4304(a)(1).
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When [the Victim] was seven or eight years old, she testified that
things got worse,
[i]t went from [Fehir] putting his mouth on [her]
vagina, he would put his hands on it. Then he would
come in his boxers and he would take his penis out
and he would rub it on [her] vagina.
[The Victim] testified that she would try to prevent this from
happening by “locking the door, but there was a key to [her] door,
so he would just open it.” The Victim indicated that, during the
times when [ ] Fehir would put his mouth on her vagina, there
was penetration with his tongue. [The Victim] further provided
that “[Fehir], would rub his penis on [her] vagina with [her] pants
pulled down and [] he accidently went inside [her].” As a result
of [ ] Fehir’s penis entering the Victim’s vagina, “[she] bled” and
[ ] Fehir told her she “should get cleaned up, so [she] had to go
take a shower.” According to [the Victim], she told her mother
that she was bleeding but didn’t say why; this occurred “before
[she] hit puberty” and “[she] might have been 15.” [The Victim]
also testified about a time when she was six or seven years old
when [ ] Fehir was rubbing his penis on her and there was
penetration. This incident likewise caused the Victim to bleed.
The Victim stated that [ ] Fehir caused penetration with his penis
as well as contact with his semen when she was about fourteen or
fifteen years old, testifying as follows:
[h]e took me to his bedroom. While I pretended to
sleep, he carried me in, and he was rubbing his penis
on my vagina without clothes. My pants were pulled
down. He had accidentally went all the way inside of
my vagina with his penis, and he ejaculated onto me,
onto my vagina. That’s when he told me that I should
probably go get cleaned up, and I cried in the shower.
The Victim testified that once she hit puberty, [ ] Fehir was more
careful about his actions in that “[h]e would make sure not to go
inside [her] with his penis.”
****
After the Commonwealth rested its case, the [d]efense made a
motion for judgment of acquittal on two bases: 1) that none of
the witnesses made an in-court identification of [ ] Fehir, and 2)
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that in viewing the evidence in the light most favorable to the
Commonwealth, no reasonable juror could find [Fehir’s] guilt
beyond a reasonable doubt. With respect to the first basis for the
motion, counsel for [Fehir] stated that during the course of the
testimony by the three lay witnesses, [the Victim], [her friend,
J.W.], and [her cousin, K.J.], and by the law enforcement officers
. . . there had at no time been an in-court identification of [Fehir]
as the perpetrator. Further, while he had been referenced by
name, the defense argued that there was not a single occasion
where [Fehir] was identified in court as the perpetrator of the
crimes, and that the Commonwealth had not proven [Fehir] was
the person who committed these offenses. Thereafter, there was
a discussion on the record, in chambers as follows:
[The Commonwealth]: Your Honor, my recollection is
there was a stipulation to his identification. I was
relying on that. I was not aware that that was an issue
that would be brought up by defense. If that is the
issue, and he wishes to address it, I would ask to recall
a witness.
[The Defense]: Well, Your Honor, they have rested
their case, and I have never stipulated to his
identification. I have done that in the past. Once they
said, do you see him in the courtroom and can you
describe what he is wearing, where he is sitting,
something to that effect. It never occurred. I never
made that stipulation because the issue never came
up.
THE COURT: Never had that one.
[The Commonwealth]: In this case, Judge, we have
his voice and we have his voice, identified[10] and we
have multiple victims coming into the courtroom and
describing their relationship with him. I can tell you
that there were times in the trial that [the Victim]
referred to him by gesturing in the courtroom and that
she did in the courtroom during her testimony and
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10During trial, the parties stipulated to the admission of a tape-recorded
conversation between the Victim and Fehir, which they played for the jury
while the Victim testified. See Trial Court Opinion, 11/16/18, at 7-8.
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that she answered my questions in the affirmative. To
me that seems to be more of a technicality than
anything else. If it’s a technicality that needs to be
corrected, I would ask leave of the Court to correct it.
[The Defense]: Well, Your Honor, whether it’s a
technicality or not I can’t speak to that, but I mean
there is a reason that we have lineups and other forms
of in person identification so that we can establish that
the person who is at defense table is the person who
is accused of the crime and committed the crime. If
you read that transcript, whether somebody nodded,
gestured, passively alluded, there is not a single
indication in this record that that person sitting in the
courtroom is the person who committed these
offenses.
[The Defense]: Even in opening statements counsel
referred to his client, Mr. Fehir, who was charged with
these crimes, who is here. I, I am astounded, Judge.
I don't understand the nature of that.
THE COURT: Insofar as the audio stipulation, I am
going to try to recall however that went. I know we
stipulated to the authentication of it.
[The Defense]: I stipulated to the admission of the
recording. That’s it. I never stipulated that that was
his voice on the recording. I simply didn’t require that
the officer come in to authenticate the recording itself.
That’s it.
THE COURT: Well, certainly I’ve been involved in
cases where the Commonwealth is permitted to re-
open their case after having closed. So I think maybe
given all of the circumstances, witnesses making
reference to him, nodding towards, pointing towards
him as the [d]efendant, given those circumstances in
order to make the record abundantly clear l am going
to allow the Commonwealth to re-open and call a
witness. I don’t know where it goes from there.
After conducting a colloquy of [Fehir] for purposes of whether he
intended to testify on his own behalf, the [trial court] permitted
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the Commonwealth to re-open its case and recall [the Victim] to
testify. At that time, [the Victim] testified that, “throughout [the]
hearing [she had] been testifying about Richard J. Fehir, Jr.[,]”
and that he was seated in the courtroom wearing “[a] blue shirt,
[and] a green-blue tie.” At that point, the Commonwealth
requested that the record reflect that [Fehir] had been identified
by the witness, and the [trial court] directed that the record reflect
the same.
Following deliberations in the case, the jury rendered a verdict of
guilty as to twenty-three (23) of the twenty-four (24) counts set
forth in the amended [i]nformation.[11] The [trial court] held a
sentencing hearing on April 24, 2018[,] at which time [Fehir] was
sentenced, by [o]rder on the same date, to an aggregate sentence
of not less than 306 months or 25 and 1/2 years to not
more than 612 months or 51 years of total confinement with a
consecutive term of probation of three years. The [o]rder further
provided that [Fehir] is to comply with the registration
requirements of 42 Pa. C.S.A. §§ 9799.1 et seq, and that he is
required to remain registered with the Pennsylvania State Police
for the remainder of his life.
Trial Court Opinion, 11/16/18, at 3-5, 8-10 (record citations omitted).
On May 1, 2018, Fehir filed a post-sentence motion, which the trial court
denied on August 28, 2018. The instant, timely appealed followed. On
September 28, 2018, the trial court ordered Fehir to file a concise statement
of errors complained of on appeal pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Fehir filed a timely Rule 1925(b) statement on October
10, 2018; the trial court filed an opinion on November 16, 2018.
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11 The Commonwealth had withdrawn count 15 of the information during trial.
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In his first issue on appeal, Fehir challenges the sufficiency of the
evidence supporting his conviction for rape of a child. Fehir’s Brief, at 8. We
find Fehir has waived this issue.
“[W]here an appellant wishes to preserve a claim that the evidence was
insufficient, his Rule 1925(b) statement must specify the element or elements
upon which the evidence was insufficient so this Court can then analyze the
element or elements on appeal.” Commonwealth v. Roche, 153 A.3d 1063,
1072 (Pa. Super. 2017), appeal denied, 169 A.3d 599 (Pa. 2017). If a Rule
1925(b) statement does not specify the unproven element, the appellant has
waived the sufficiency on appeal. See Commonwealth v. Tyack, 128 A.3d
254, 260 (Pa. Super. 2015).
Here, Fehir’s Rule 1925(b) statement states, “Was the evidence
presented by the Commonwealth insufficient to support the jury’s guilty
verdicts?” Concise Statement of Errors Complained of on Appeal Pursuant to
Pa.R.A.P. 192b(b), 10/10/18, at 1. Thus, not only did Fehir fail to specify any
element for which the evidence was insufficient, he failed to delineate which
conviction he meant to challenge. It is evident from the trial court’s lengthy
and detailed Rule 1925(a) opinion, it had no idea that Fehir was challenging
solely the sufficiency of the evidence underlying the age element for rape of
a child. In any event, the presence of a trial court opinion evaluating Fehir’s
sufficiency claim is of no moment to our analysis, “because we apply Pa.R.A.P.
1925(b) in a predictable, uniform fashion, not in a selective manner dependent
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on an appellee’s argument or a trial court's choice to address an unpreserved
claim.” Tyack, supra at 261. Fehir has failed to preserve this issue for our
review.12
In any event, had we addressed Fehir’s claim on the merits, we would
have determined the Commonwealth presented sufficient evidence to sustain
his conviction for rape of a child for the reasons set forth in the trial court’s
opinion. See Trial Court Opinion, 11/16/18, at 13, 15.
In his second and final claim, Fehir maintains the trial court erred when
it allowed the Commonwealth to reopen the case to allow the Victim to identify
him as the perpetrator. See Fehir’s Brief, at 9. We disagree.
This Court has stated that we review a trial court’s decision to reopen a
case for an abuse of discretion. See Commonwealth v. Best, 120 A.3d 329,
347 (Pa. Super. 2015). “Under the law of this Commonwealth a trial court
has the discretion to reopen a case for either side, prior to the entry of final
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12 Even if Fehir had filed an adequate Rule 1925(b) statement, we would still
find he had waived this claim. His argument on this issue consists of a single
page. Within that argument, he fails to cite to the record. He does not discuss
the evidence. He does not even explain why the evidence was insufficient to
sustain a conviction for rape of a child because the Commonwealth failed to
prove age, while apparently conceding the evidence was sufficient to sustain
the age of elements of some for his convictions for IDSI, aggravated indecent
assault, and indecent assault. Thus, we find Fehir waived his sufficiency
argument for this reason as well. See Commonwealth v. Liston, 941 A.2d
1279, 1285 (Pa. Super. 2008) (en banc), affirmed in part and vacated in part,
977 A.2d 1089 (Pa. 2009); Pa.R.A.P. 2101.
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judgment, in order to prevent a failure or miscarriage of justice.” Id.
(citations omitted). Further, our Supreme Court has stated,
[w]here the discretion exercised by the trial court is challenged on
appeal, the party bringing the challenge bears a heavy burden. In
this respect, it is not sufficient to persuade the appellate court that
it might have reached a different conclusion . . . Rather, one must
go further and show an abuse of the discretionary power. [A]n
abuse of discretion is not merely an error of judgment, but if in
reaching a conclusion the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will, as shown by the evidence or
the record, discretion is abused.
Commonwealth v. Safka, 141 A.3d 1239, 1248-49 (Pa. 2016) (quotation
marks and citations omitted).
Here, Fehir has not met this heavy burden. His argument, apart from
boilerplate and a brief explanation of what occurred below, consists of two
sentences wherein he baldly contends the trial court’s decision to reopen the
case was both erroneous and prejudicial. Fehir’s Brief, at 9. Fehir does not
cite to any precedent to support his claim of legal error. Moreover, Fehir does
not explain how the decision was prejudicial given this was a case where
identity was not an issue because the Victim and both of the other fact
witnesses had long-standing relationships with him. Moreover, he never
addresses how the trial court abused its discretion.
In any event, after a thorough review of the record, we agree with the
argument the Commonwealth made at trial. In particular, we agree the Victim
had clearly identified Fehir by name and relationship and the lack of a formal
in-court identification of Fehir was, at worst, at technicality, particularly since
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Fehir stipulated to the admissibility of the audiotaped conversation between
himself and the Victim. See N.T. Trial, 1/18/18, at 512-14. Moreover, in its
Rule 1925(b) opinion, the trial court thoroughly addressed its reasons for
permitting the Commonwealth to reopen the case. See Trial Court Opinion,
11/16/2018, at 11-13. Because we discern no abuse of discretion or error of
law, we adopt its reasoning. See id. Fehir’s second claim does not merit
relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/20/2019
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