Com. v. Franklin, C. ( 2023 )

J-S36028-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CURTIS FRANKLIN :
:
Appellant : No. 1261 WDA 2021
Appeal from the Judgment of Sentence Entered July 27, 2021
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0000044-2021
BEFORE: STABILE, J., KING, J., and COLINS, J.*
MEMORANDUM BY KING, J.: FILED: April 28, 2023
Appellant, Curtis Franklin, appeals from the judgment of sentence
entered in the Allegheny County Court of Common Pleas, following his jury
trial convictions for involuntary deviate sexual intercourse (“IDSI”), criminal
solicitation, aggravated indecent assault of a child, two counts of criminal
attempt-rape, indecent assault-person less than 13, endangering the welfare
of children (“EWOC”), corruption of minors, and indecent exposure.1 We
affirm.
The trial court set forth the relevant facts and procedural history of this
case as follows:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
118 Pa.C.S.A. §§ 3123(b); 902(a); 3125(b); 901(a); 3126(a)(7); 4304(a)(1);
6301(a)(1)(ii); and 3127(a), respectively.
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The convictions arose out of a series of incidents that took
place over a period of approximately seven years, starting
when J.C. [(“Victim”)] was 8 years old. Appellant is the
paternal great uncle of [Victim]. [Victim] testified that
during this seven year period, she and her family, which
consisted of her mother, father and three brothers, moved
three times. With each move, Appellant maintained a
presence with the family, either through temporarily living
with them or by helping to babysit and/or care for [Victim],
and her siblings. Through the collective testimony of
[Victim]’s parents, Ms. Cannon and Mr. Walker, it was clear
that Appellant was a constant presence in the family’s life.
He benefited as a trusted member of the family as Ms.
Cannon and Mr. Walker assisted him with housing, took him
to medical appointments, helped with his care, and ran
errands for him.
The abuse began when Appellant lived with [Victim] and her
family at a home located in McKees Rocks. During a time
when [Victim]’s father was in the hospital, Appellant was
watching her and her siblings. On a day when her mother
was at the hospital visiting her father, [Victim] testified that
Appellant touched her chest area and vagina beneath her
clothing. Although [Victim] was unable to provide a specific
date for this incident, her mother testified that the family
lived at the McKees Rocks residence when [Victim] was
between the ages of 6 and 12 years old and her father
testified that he was hospitalized in 2014.
The family then moved from McKees Rocks to a home on
Clairhaven Street in Crafton. Although Appellant did not live
with them at this home, he was a visitor and occasionally
stayed overnight. On one particular overnight stay,
Appellant was allowed to sleep in [Victim’s] bedroom. It
was during this night that [Victim] awoke to Appellant
performing oral sex on her. She detailed that she was
dressed in a shirt and pants, but that when she woke up
both her pants and underwear were pulled down to her
ankles. She detailed that Appellant stopped when he heard
a noise and she fled into a bathroom and locked herself
inside.
When [Victim] was in the 6th grade her family moved to their
current residence located on Lawson Avenue in Crafton.
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Although Appellant did not live with them, he remained a
frequent visitor and stayed overnight. The abuse continued
as he created opportunities to be alone with [Victim] to
perpetrate the abuse by asking [Victim]’s parents to run
errands for him. She testified to numerous incidents.
Sometimes he would touch her buttock or her chest when
he came into a room, but the abuse continued to escalate.
One day [Victim] was alone in a bedroom when Appellant
pulled down her pants and underwear and attempted to
vaginally penetrate her with his penis. [Victim] testified that
she shielded her vagina with her hand and could feel his
penis push up against her hand. Although Appellant was
unable to perform penile penetration on this day, Appellant
did penetrate [Victim]’s vagina with his fingers, despite her
physical efforts to get away. Appellant attempted vaginal
intercourse with [Victim] a second time while her parents
were out of state and he was in charge of supervising the
children. On this day, [Victim] was laying on the living room
couch watching television when Appellant laid on top of her.
Appellant pulled down [Victim]’s pants and underwear and
attempted vaginal intercourse, but again she was able to
block him with her hand. Appellant’s abuse of [Victim] also
included repeated requests for her to perform oral sex on
him.
The trauma from these years of sexual abuse led to [Victim]
self-mutilating, by cutting her skin with razor blades. Her
mother discovered this in November of 2020 and [Victim]
then disclosed the abuse to her mother, which led to a
criminal investigation and subsequent charges in this case.
An expert in the field of child sexual abuse and disclosure,
called by the Commonwealth, provided testimony about
how and why children may delay disclosing abuse and that
cutting or other forms of self-harm are ways sexual abuse
victims act out on the pain.
Appellant testified at trial that he moved from Chicago to
Pittsburgh to have access to medical treatment for
underlying health issues. He confirmed that he either lived
with [Victim]’s family or was a frequent visitor who also
supervised the children at times, but denied that he ever
sexually abused [Victim].
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(Trial Court Opinion, filed 2/17/22, at 4-6).
During a charging conference, Appellant’s counsel objected to the court
instructing the jury with standard jury instruction 3.09—credibility of
defendant as witness.2 The court overruled Appellant’s objection and gave
the following instruction to the jury:
Court: The defendant took the stand as a witness in this
case. In considering the defendant’s testimony, you are to
follow the general instructions I just gave you for judging
the credibility of any witness. You should not disbelieve the
defendant’s testimony merely because he is the defendant.
In weighing his testimony, however, you may consider the
fact that he has a vital interest in the outcome of this trial.
You may take the defendant’s interest into account just as
you would the interest of any other witness along with all of
the other facts and circumstances bearing on credibility in
____________________________________________
2 Pennsylvania Suggested Standard Criminal Jury Instruction 3.09 provides in
relevant part:
3.09 CREDIBILITY OF DEFENDANT AS WITNESS: INTEREST,
PRIOR CONVICTION, REPUTATION
1. The defendant took the stand as a witness. In
considering the defendant's testimony, you are to follow the
general instructions I gave you for judging the credibility of
any witness.
2. You should not disbelieve the defendant's testimony
merely because [he] [she] is the defendant. In weighing
[his] [her] testimony, however, you may consider the fact
that [he] [she] has a vital interest in the outcome of this
trial. You may take the defendant's interest into account,
just as you would the interest of any other witness, along
with all other facts and circumstances bearing on credibility
in making up your minds what weight [his] [her] testimony
deserves.
Pa. SSJI (Crim), §3.09 (1), (2).
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making up your minds what weight his testimony deserves.
(N.T. Trial, 5/10/21, at 298).
The jury found Appellant guilty of all charges on May 11, 2021. On July
27, 2021, the court sentenced Appellant to an aggregate of 22 to 44 years of
incarceration followed by a period of five years of probation. Appellant filed a
timely post-sentence motion on August 6, 2021, which the court denied on
September 22, 2021. On October 22, 2021, Appellant filed a timely notice of
appeal. The court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal on October 28, 2021, and
Appellant complied on December 2, 2021.
Appellant raises the following issue for our review:
Was Appellant denied his right to a fair trial and to due
process of law when his jury was instructed that jurors could
and should, “in weighing [Appellant’s] testimony, … consider
the fact that he ha[d] a vital interest in the outcome of his
trial[?]”
(Appellant’s Brief at 2).
Appellant argues that the trial court erred by reading the “credibility of
defendant as witness” instruction to the jury because it improperly instructed
the jury to scrutinize Appellant’s testimony based on Appellant’s vital interest
in the outcome of the trial. Appellant claims this instruction was particularly
improper in this case because Appellant was accused of a crime that is reviled
and the outcome of the trial hinged entirely on credibility. Appellant avers
that the instruction was also unnecessary because the court had already
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instructed the jury on credibility of witnesses generally twice before reading
the “credibility of defendant as witness” instruction. Appellant concludes the
court’s reading of this instruction was unnecessary, improper, and unduly
prejudicial, and this Court should grant relief. We disagree.
Our standard of review over a challenge to jury instructions is as follows:
When a court instructs the jury, the objective is to explain
to the jury how it should approach its task and the factors it
should consider in reaching its verdict. In examining jury
instructions, our standard of review is to determine whether
the trial court committed a clear abuse of discretion or an
error of law controlling the outcome of the case….
Moreover, in reviewing a challenge to a jury instruction the
entire charge is considered, not merely discrete portions
thereof. The trial court is free to use its own expressions as
long as the concepts at issue are clearly and accurately
presented to the jury.
Commonwealth v. Bradley, 232 A.3d 747, 759 (Pa.Super. 2020) (internal
citations and quotations omitted).
A jury charge will be deemed erroneous only if the charge
as a whole is inadequate, not clear or has a tendency to
mislead or confuse, rather than clarify, a material issue. A
charge is considered adequate unless the jury was palpably
misled by what the trial judge said or there is an omission
which is tantamount to fundamental error. Consequently,
the trial court has wide discretion in fashioning jury
instructions.
Commonwealth v. Baker, 963 A.2d 495, 507 (Pa.Super. 2008), appeal
denied, 606 Pa. 644, 992 A.2d 885 (2010) (internal citation omitted).
Additionally, “[t]he Suggested Standard Jury Instructions themselves are not
binding and do not alter the discretion afforded trial courts in crafting jury
instructions; rather, as their title suggests, the instructions are guides only.”
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Commonwealth v. Eichinger, 631 Pa. 138, 178, 108 A.3d 821, 845 (2014).
Instantly, the court’s instruction to the jury was nearly identical to
standard jury instruction 3.09. There is nothing in the court’s phrasing of the
instruction that implied Appellant provided false testimony. The instruction
also did not suggest to the jury to evaluate Appellant’s credibility in a different
way than any other witness because of his interest in the outcome. To the
contrary, the court’s instruction cautioned the jury against assessing
Appellant’s credibility solely based on his status as the defendant. It further
instructed the jury to take Appellant’s interest in the outcome of the case into
account in weighing credibility in the same manner that the jury would do so
for any other witness. Consequently, the instruction served to reinforce to
the jury that it should evaluate Appellant’s testimony based on the same
factors of credibility as other witnesses. As such, there is no merit to
Appellant’s claim that the court’s instruction erroneously suggested to the jury
to specially scrutinize Appellant’s testimony. Accordingly, we discern no error
in the court’s instruction, and Appellant’s sole issue on appeal fails. See
Bradley, supra; Baker, supra. Accordingly, we affirm.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/28/2023
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