Com. v. D.B. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
D.B. :
:
Appellant : No. 389 EDA 2019
Appeal from the Judgment of Sentence Entered December 14, 2018
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001786-2017
BEFORE: PANELLA, P.J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: MARCH 31, 2021
D.B.1 appeals from the judgment of sentence imposed following his jury
conviction in the Court of Common Pleas of Philadelphia County (trial court)
of attempted rape of a child, involuntary deviate sexual intercourse with a
child, unlawful contact with a minor, endangering the welfare of a child,
corruption of a minor, indecent assault of a person less than thirteen years of
age and aggravated indecent assault of a child.2 We affirm.
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* Retired Senior Judge assigned to the Superior Court.
1 Initials are used to denote the names of most of the individuals throughout
this Memorandum to protect the identity of the minor children involved. See
Superior Court I.O.P. 424(A).
2 18 Pa.C.S. §§ 901(a), 3121(c), 3123(b), 6318(a)(1), 4304(a)(1),
6301(a)(1)(ii), 3126(a)(7) and 3125(b).
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I.
A.
This case arises from D.B.’s sexual abuse of S.J.C. when she was eleven
years old. S.J.C. is the oldest child of D.B.’s then-girlfriend, B.J. (Mother),
who moved into D.B.’s home with her five children in North Philadelphia in
May 2016. (See N.T. Trial, 10/02/18, at 34-35, 39, 65). S.J.C.’s sister,
A.J.C., is one year younger than S.J.C. and is also implicated in the abuse.
(See id. at 34). During the relevant time period, Mother worked the night
shift at Target and left the children in D.B.’s care. (See id. at 38).
At D.B.’s October 2018 jury trial, S.J.C. testified that the abuse began
in the fall or winter of 2016. (See id. at 76-77).3 During the first incident,
D.B. kissed S.J.C. on the mouth while they watched a movie with Mother, who
had fallen asleep. (See id. at 39-40). D.B. then called S.J.C. to his bedroom
alone while Mother was at work and her siblings were asleep and he touched
her breasts, butt and vagina. (See id. at 41-44). As the abuse progressed,
D.B. began to remove both of their clothing during the episodes. (See id. at
42, 45). On at least one occasion, he moved his penis up and down on S.J.C.’s
vagina and ejaculated into a towel. (See id. at 46-47). D.B. forced S.J.C. to
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3 S.J.C. was thirteen years old and was living with her maternal grandmother,
L.C., at the time of trial. (See N.T. Trial, 10/02/18, at 6, 34).
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perform oral sex on him and told her he would hurt her sisters if she told
anyone about the abuse. (See id. at 49-50).
At one point, S.J.C. told Mother that D.B. was touching her
inappropriately. (See id. at 51). After Mother spoke to D.B about this, the
abuse stopped only temporarily. (See id.). However, during 2016, D.B.
looked in on A.J.C. while she showered. (See id. at 57).4
On January 9, 2017, as S.J.C. and A.J.C. walked together to school, D.B.
drove up to them, put a Butterfinger candy in S.J.C.’s pocket and drove away.
(See id. at 52, 77). The girls threw the candy and became visibly upset.
(See id. at 52-53). S.J.C. was taken to the principal’s office and she disclosed
the abuse to school counselor Dr. Christina Green-Lee “because it started to
get too much for [her].” (Id. at 53). S.J.C. felt “like a weight lifted off [her]
chest” and she and her siblings immediately moved in with L.C.
(Grandmother). (Id. at 54).
On cross-examination, S.J.C. testified that before her family moved in
with D.B., he would sometimes hit her when she disagreed with or disobeyed
him. (See id. at 64). She did not want to live with D.B. even before the
sexual abuse started. (See id. at 68-69). When Grandmother took her to
the hospital for an examination relating to her allegations, S.J.C. would not
remove her clothing. (See id. at 85-86). On redirect examination, S.J.C.
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4 D.B. was charged in a separate case for the allegations relating to A.J.C.
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explained that she did not want the doctors to look at her private area because
she did not want anyone to touch her. (See id. at 88).
A.J.C. testified that when she was ten years old, D.B. came into the
bathroom while she was naked in the shower and opened the shower curtain
to look at her. (See id. at 97-98, 100).5 She closed the curtain and told
Mother and S.J.C. about the incident the next day. (See id. at 102-03).
Mother yelled at D.B. and he did not look at A.J.C. in the shower again. (See
id. at 103).
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5Prior to trial, the court granted the Commonwealth’s motion in limine seeking
admission of other acts evidence in the form of A.J.C.’s testimony pursuant to
Pennsylvania Rule of Evidence 404(b)(2). Rule 404(b) provides:
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a crime, wrong, or other
act is not admissible to prove a person’s character in order to show
that on a particular occasion the person acted in accordance with
the character.
(2) Permitted Uses. This evidence may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or
lack of accident. In a criminal case this evidence is admissible
only if the probative value of the evidence outweighs its potential
for unfair prejudice.
Pa.R.E. 404(b)(1)-(2).
The notes of testimony from the motion in limine are not a part of the certified
record. However, it is apparent from the record before us that the trial court
admitted the evidence to show a common plan and it issued a cautionary
instruction to the jury limiting its use.
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Grandmother testified that when she arrived at the Special Victims Unit
to speak with her granddaughters, S.J.C. was pale and tearful and she looked
tired and sad. (See id. at 129-30). S.J.C. reluctantly told Grandmother about
the abuse and when she asked about intercourse, S.J.C. “told me that this
man tried to put his penis in her butt and white stuff came out. . . . She told
me that he used a green towel to wipe the white stuff off the top of his penis
and he threw this green towel onto the floor.” (Id. at 131). A.J.C. was
trembling and very upset upon learning the extent of the abuse towards her
sister. (See id. at 132). Grandmother explained regarding the lack of
examination at the hospital that “S.J.C. just wasn’t having anybody touching
her or taking her clothes off and [the sisters] became quite hysterical to the
point where they said we’ll wait[.]” (Id. at 133).
Dr. Green-Lee described S.J.C.’s demeaner as very upset and in a daze
when she disclosed the abuse. (See N.T. Trial, 10/03/18, at 6-8). S.J.C. was
also limping and appeared to be in pain. (See id. at 7-8). She started to cry
and stated that her mother’s boyfriend had been touching her breasts and
vagina and that “he penetrated her vagina with his fingers . . . and humped
her vagina with his genitalia[.]” (Id. at 10).
B.
The jury found D.B. guilty of the above-listed offenses on October 4,
2018. On December 14, 2018, the trial court sentenced him to an aggregate
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term of not less than seventeen and one-half nor more than thirty-five years’
incarceration, followed by four years of probation. D.B. timely appealed.
On May 16, 2019, trial counsel filed a concise statement of errors
complained of on appeal raising two claims challenging the sufficiency and
weight of the evidence. See Pa.R.A.P. 1925(b). The trial court filed an opinion
addressing these claims on May 31, 2019. See Pa.R.A.P. 1925(a). This Court
dismissed D.B.’s appeal on December 4, 2019, for counsel’s failure to file a
brief. We then reinstated the appeal sua sponte, ordered the trial court to
appoint new counsel and granted counsel’s request to supplement the Rule
1925(b) statement. D.B. filed a supplemental statement on February 28,
2020, in which he reiterated and elaborated on the previously raised
sufficiency and weight claims. On October 27, 2020, this Court denied
counsel’s application for remand to file an additional supplemental statement
without prejudice to re-raising the issue before the merits panel.
II.
A.
D.B. argues that the trial court abused its discretion in admitting other
acts evidence consisting of A.J.C.’s testimony describing the shower incident.
D.B. also contends that this issue is not waived for his failure to include it in
his initial Rule 1925(b) statement or in his supplemental statement and this
Court should review it on the merits.
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We first address D.B.’s contention that he did not waive his Rule 404(b)
claim. Rule 1925(b) provides: “Issues not included in the Statement and/or
not raised in accordance with the provisions of this paragraph (b)(4) are
waived.” Pa.R.A.P. 1925(b)(4)(vii). Additionally, it is an appellant’s
responsibility to complete the certified record on appeal. See
Commonwealth v. Bongiorno, 905 A.2d 998, 1000 (Pa. Super. 2006) (en
banc).
In this case, the trial court did not address D.B.’s other acts claim in its
opinion, as the only issues raised in his Rule 1925(b) statements challenged
the sufficiency and weight of the evidence. Although this Court provided D.B.
with an opportunity to augment his Rule 1925(b) statement when he obtained
new counsel, the supplemental statement merely reiterated his original
claims. In his appellate brief, D.B. generally points to the lag in time between
the filing of the initial statement of errors and appointment of new counsel as
the reason for the deficiency. Compounding this issue is the absence from
the record of the notes of testimony from the motion in limine litigating
admission of the prior acts evidence. Although D.B. maintains he ordered the
notes on November 5, 2020, the Philadelphia Court Reporter’s Office has no
record of that order. In light of these circumstances, we agree with the
Commonwealth that D.B.’s Rule 404(b) claim is waived.
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B.
Moreover, even if it were not waived, D.B.’s argument would not merit
relief.6
When ruling upon the admissibility of evidence under the
common-plan exception, the trial court must examine the details
and surrounding circumstances of each criminal incident to assure
that the evidence reveals criminal conduct which is distinctive:
Relevant to such a finding will be the habits or patterns of action
or conduct undertaken by the perpetrator to commit crime, as well
as the time, place, and types of victims typically chosen by the
perpetrator. Given this initial determination, the court is bound
to engage in a careful balancing test to assure that the common
plan evidence is not too remote in time to be probative. . . .
Finally, the trial court must assure that the probative value of the
evidence is not outweighed by its potential prejudicial impact upon
the trier of fact. To do so, the court must balance the potential
prejudicial impact of the evidence with such factors as the degree
of similarity established between the incidents of criminal conduct,
the Commonwealth’s need to present evidence under the common
plan exception, and the ability of the trial court to caution the jury
concerning the proper use of such evidence by them in their
deliberations.
Saez, supra at 180 (citation omitted).
Instantly, A.J.C.’s testimony that D.B. watched her while she showered
demonstrated his common plan, scheme or design in acting in a sexually
inappropriate manner towards the young daughters of his live-in girlfriend
while she was at work and they were in his care. Further, the instances of
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6 An evidentiary abuse-of-discretion standard of review applies to a trial
court’s ruling on a motion in limine. See Commonwealth v. Saez, 225 A.3d
169, 177 (Pa. Super. 2019), appeal denied, 234 A.3d 407 (Pa. 2020).
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improper conduct towards the sisters took place during the same time period
in D.B.’s home. A.J.C.’s testimony also supported S.J.C.’s credibility, which
the defense had attempted to undermine by suggesting that she did not get
along with D.B. before she reported the abuse.
The trial court also issued the following jury instruction on the limited
use of the Rule 404(b) evidence:
You have heard evidence tending to prove that the defendant was
guilty of improper conduct for which he is not on trial. I’m
speaking of the testimony to the effect that he watched [A.J.C.]
in the shower on one occasion. This evidence is before you for a
limited purpose and that’s for the purpose of tending to show a
common plan, scheme, or design of the defendant and to rebut
any claims of fabrication. This evidence must not be considered
by you in any way other than for the purpose I just stated. You
must not regard this evidence as showing that the defendant is a
person of bad character or a criminal tendency for which you
might be inclined to infer guilt.
(N.T. Trial, 10/04/18, at 12).
This cautionary instruction properly informed the jury of the narrow
purpose for the evidence and limited any prejudicial effect of A.J.C.’s
testimony, as jurors are presumed to follow the court’s instructions. See
Commonwealth v. Rose, 172 A.3d 1121, 1131 (Pa. Super. 2017); see also
Commonwealth v. Hicks, 156 A.3d 1114, 1129 (Pa. 2017) (limiting
instructions weigh in favor of upholding admission of other acts evidence).
Accordingly, D.B.’s other acts evidence claim would lack merit, even if it were
not waived.
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III.
D.B. next challenges the sufficiency of the evidence7 supporting his
conviction of aggravated indecent assault of a child. D.B. disputes the element
of penetration because S.J.C. did not specifically testify at trial that he
penetrated her genitals or anus. D.B. points to instances in her testimony
describing various memories of the abuse where his hands or penis remained
outside of her vagina or butt.
A defendant is guilty of aggravated indecent assault of a child if he
“engages in penetration, however slight, of the genitals or anus of a
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7
The standard we apply in reviewing the sufficiency of the evidence
is whether viewing all the evidence admitted at trial in the light
most favorable to the verdict winner, there is sufficient evidence
to enable the fact-finder to find every element of the crime beyond
a reasonable doubt. In applying the above test, we may not weigh
the evidence and substitute our judgment for the fact-finder. In
addition, we note that 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. The Commonwealth
may sustain its burden of proof of proving every element of the
crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all the evidence actually
received must be considered. Finally, the trier-of-fact while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the
evidence.
Commonwealth v. Widger, 237 A.3d 1151, 1156 (Pa. Super. 2020) (citation
omitted).
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complainant with a part of the person’s body for any purpose other than good
faith medical, hygienic or law enforcement procedures” and the complainant
is less than thirteen years old. 18 Pa.C.S. § 3125(a)(7), (b). “[D]igital
penetration of the genitals or anus is sufficient to satisfy the crime of
aggravated indecent assault.” Commonwealth v. Castelhun, 889 A.2d
1228, 1233 (Pa. Super. 2005) (citation omitted).
Instantly, Grandmother gave a painstaking account of S.J.C.’s
description of D.B.’s pattern of abuse. When Grandmother specifically
questioned her granddaughter about intercourse, S.J.C. plainly reported that
D.B. tried to put his penis in her butt, that he stopped only because it was too
painful and he then ejaculated. (See N.T. Trial, 10/02/18, at 131).
Additionally, Dr. Green-Lee testified that S.J.C. informed her that D.B.
“penetrated her vagina with his fingers.” (N.T. Trial, 10/03/18, at 10). L.C.
and Dr. Green-Lee described S.J.C.’s emotional state upon disclosure as
extremely upset, sad and visibly shaken and S.J.C. appeared to be in a daze
and in physical pain. (See N.T. Trial, 10/02/18, at 130-31; see also N.T.
Trial, 10/03/18, at 7-8).
Considering the totality of the circumstances and viewing the evidence
in the light most favorable to the Commonwealth as the verdict winner, we
conclude that the evidence was sufficient to support D.B.’s conviction of
aggravated indecent assault of a child. The detailed accounts of his extensive
abuse of S.J.C. were clearly sufficient to establish the element of penetration.
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The jury, as fact-finder, heard and weighed the testimony and was free to
credit that indicating D.B. penetrated S.J.C.’s vagina with his fingers and her
anus with his penis. D.B.’s sufficiency claim merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/21
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