Com. v. Schestok, R. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
ROBERT WILLIAM SCHESTOK :
:
Appellant : No. 179 EDA 2020
Appeal from the Judgment of Sentence Entered November 21, 2019
In the Court of Common Pleas of Delaware County Criminal Division at
No(s): CP-23-CR-0006961-2018
BEFORE: SHOGAN, J., McCAFFERY, J., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED OCTOBER 09, 2020
Appellant, Robert William Schestok, appeals from the judgment of
sentence entered by the Delaware County Court of Common Pleas on
November 21, 2019, following his conviction by a jury of indecent assault and
corruption of a minor.1 We affirm.
The trial court summarized the facts of the crimes and relevant history
as follows:
Prior to trial, the Commonwealth filed a Petition to Admit
Out-of-Court Statements Under the “Tender Years Hearsay
Exception,” 42 Pa.C.S. §5985.1. The Commonwealth sought to
introduce statements made by the minor child, S.P., to her
mother, [J.D. (“Mother”)]; to her mother’s friend, [T.M.]; to
Forensic Interviewer Susanne Whiting; and to Children and Youth
Services caseworker, Crystal Maxwell. The Commonwealth also
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* Former Justice specially assigned to the Superior Court.
1 18 Pa.C.S. §§ 3126(a)(7) and 6301(a)(1)(i), respectively.
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filed a “Motion to Allow Child Witness to Testify under the
Pennsylvania Uniform Child Witness Testimony by Alternative
Methods Act.” A hearing was held on said petitions on May 16 and
May 17, 2019. At the hearing, counsel for both parties agreed to
permit S.P. to testify outside the presence of the Appellant, by
closed circuit television. With regard to the Petition to Admit Out
of Court Statements under the Tender Years Hearsay Exception,
the Commonwealth first presented the testimony of [Mother].
[Mother] testified that on January 20, 2017, she was at the
Delaware County Courthouse with her longtime friend, [T.M.], and
with S.P. for a custody hearing between her and her ex-husband,
[N.P. (“Father”)]. While [Mother] was in court, S.P.
communicated to [T.M.] in the bathroom that [Appellant] told her
that her “privacy” was like a house and people can go in and out.
After returning home, [Mother] spoke to [T.M.] in more detail
about what S.P. told her in the bathroom and then discussed it
with S.P. While she was questioning S.P. about her statement,
S.P. was putting on her underwear, thrusting upwards, and
pointing to her privates stating, “[Appellant] said my privacy is
like a house, people can go in and out.” She said [Appellant] was
someone who lived at dad’s house. S.P. also stated that
[Appellant] likes to watch her go to the bathroom and touched her
there. She explained that [Appellant] touched her while in her
bedroom and pointed to her backside. She said he touched her
“hinny” and it hurt. Later that evening, [Mother] asked for a
description of [Appellant]. S.P. explained that he is one of her
dad’s friends, an “army guy” who had short hair like [N.], her
brother; was skinny and tall; and had a tattoo on his elbow. She
pointed to her forearm when describing the elbow tattoo.
[Mother] searched [Father’s] Facebook profile for friends named
Robert and found a person fitting the description given by S.P.
She showed the picture to S.P. the next day. S.P. became
panicked and “freaked out” and said that the picture did depict
[Appellant]. S.P. later stated that [Appellant] peed on her leg and
it didn’t run off, she had to wipe it off.
Next, the Commonwealth presented the testimony of [T.M.]
[T.M.] testified that while in the bathroom with S.P. at the
Courthouse, S.P. asked her if there were locks on the bathroom
door and asked her if she knew the people that lived at [Father’s]
house. After returning to [Mother’s] house, [T.M.] testified, that
she observed S.P. laying down with her legs in a triangle, stating
it was a house and asking [T.M.] to come into her house. She was
making pelvic movements and behaving in a sexual manner. S.P.
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told her that people tried to get in the bathroom at [Father’s]
house and that [Appellant] liked to watch her pee. She also told
[T.M.] that [Appellant] slept in her bed after [Father] went to
sleep.
After the testimony of the live witnesses, the
Commonwealth submitted to the court for review, the video
recording of the forensic interview with Susanne Whiting. The
court reviewed the video[,] which was taken on May 18, 2017.
After initial introductions, Ms. Whiting asked about [Father]. In
response, S.P. said her dad is a good person, but had bad people
at his house. She explained [Appellant] is a bad person because
he was arrested and is a drug addict. She then explained that
[Appellant] was trying to touch her privates when she went to the
bathroom. She said he touched her “peepee” with his hand. She
said he was “digging it in” “back here and there[.]” She said it
happened in the downstairs bathroom at [Father’s] house. S.P.
later stated that [Appellant] touched her bottom. Ms. Whiting
gave S.P. a diagram of a girl’s body for her to circle the parts of
her body that [Appellant] touched. She explained [Appellant]
touched her hair; touched her “boobs”; wiped his finger in her
belly button; and put his finger inside her bottom[,] and it hurt.
Following the hearing on the Commonwealth’s Petition to
Admit Out-of-Court Statements Under the “Tender Years Hearsay
Exception,” 42 Pa.C.S, §5985.1, the court entered an order on
August 5, 2019[,] granting said petition.
On May 20, 2019, counsel for Appellant filed a Motion for
Immediate Release under Rule 600 for Incarceration in Excess of
180 Days. A hearing was held on July 1, 2019[,] on said Motion.
The motion was granted by Order dated July 24, 2019. Appellant
was ordered to be released on nominal bail with electronic home
monitoring provided he first complete a psychosexual evaluation.
On October 29, 2019, counsel for Appellant filed another
Rule 600 Motion for Dismissal for failure to bring the matter to
trial within 365 days. The motion was addressed on October 30,
2019[,] and was denied.
Jury selection was conducted on October 30, 2019[,] and
trial testimony began on October 31, 2019. The Commonwealth
first presented the testimony of the victim, S.P. S.P. testified that
[Appellant] was staying in the basement at her dad’s house and
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he touched her private part. She said her private part was her
“jay jay” and pointed to her vagina. She explained that
[Appellant] used his hand to touch her and it felt weird. She said
[Appellant] would come in her bed and sleep there and that it
happened in her bed. The Commonwealth showed S.P. a
photograph, marked as Commonwealth Exhibit 1, depicting a
man. S.P. said it was [Appellant]. She recognized his beard,
tattoo, and remembers his hat.
The Commonwealth next presented the testimony of
[Mother] and of [T.M.]. Both women testified consistent with their
testimony at the Tender Years’ Hearing regarding what S.P. told
them happened with [Appellant]. The next Commonwealth
witness was Detective Paul Corsi of the Criminal Investigation
Division of the Delaware County District Attorney’s Office.
Detective Corsi testified that S.P.’s case was referred to him in the
child abuse unit by the Ridley Township Police Department.
Delaware County [Children and Youth Services (“CYS”)] had
indicated a child they interviewed made admissions of sexual
assault. Through his investigation, Det. Corsi identified the
Appellant as the suspect who was living at [Father’s] home.
Charges were subsequently filed against Appellant.
Susanne Whiting of the Delaware County Children’s
Advocacy Center testified for the Commonwealth next.
Ms. Whiting testified that she interviewed S.P. After Ms. Whiting’s
testimony, the Commonwealth presented the testimony of
Dr. June Flock-Messam. The parties stipulated to Dr. Messam as
an expert in pediatric medicine with a specialty in child abuse.
Dr. Messam testified that she examined S.P. in three different
positions and her exam was normal. She said it was typical that,
by the time a child presents for an exam, the child’s exam is
normal based on the passage of time. Dr. Messam also discussed
her conversation with S.P. during the exam where S.P. stated that
[Appellant] touched her “private” at [Father’s] house. She
described that it happened while she was in the bathroom with
the door locked. [Appellant] got the key and came in. S.P. also
told her that [Appellant] tried to sleep in her bed. Dr. Messam
explained that S.P. was exhibiting signs of PTSD during the exam
based on her hypervigilance in trying to find out who was in the
doctor’s office.
The final witness for the Commonwealth was CYS
caseworker Crystal Maxwell[,] who testified that one of [Mother’s]
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children reported that “something happened.” She talked to S.P.
after the allegations were made. Following the Commonwealth’s
evidence, defense counsel moved for directed verdict/judgment of
acquittal for lack of evidence. Said motion was denied.
The only witness presented by the defense was S.P.’s
paternal grandmother, [D.P.], who testified that S.P. told her that
her mom told her to say [Appellant] “did stuff” to her.
After all the evidence was presented, the case was given to
the jury for deliberation. The jury returned a verdict of guilty on
both counts. On November 21, 2019, the parties returned to court
for sentencing. Defense counsel renewed his motion regarding
sufficiency of the evidence. Said motion was denied[,] and the
Court imposed the above referenced sentence.[2] Following
sentence, counsel for Appellant made a motion pursuant to
Pa.R.Crim.P. 607 regarding weight of the evidence. The motion
was listed for a hearing on December 5, 2019[,] along with the
Appellant’s Motion for Reconsideration. Both motions were
denied.
On December 31, 2019, defense counsel filed a Notice of
Appeal to Superior Court from the imposition of sentence on
November 21, 2019. On January 9, 2020, this court issued an
order for a Statement of Matters Complained of on Appeal
pursuant to Pa.R.A,P. 1925(b), which was provided by appellate
counsel on January 22, 2020. In the 1925 Statement, Appellant
raises ten allegations of error on appeal.
Trial Court Opinion, 3/11/20, at 1–6 (internal citations to the record omitted).
The trial court, as well, complied with Pa.R.A.P. 1925(a).
Appellant raises the following single issue for our review:
Whether the government failed to establish the jurisdiction
of the Delaware County Court of Common Pleas to adjudicate
[Appellant’s] case, where the prosecution did not prove at trial
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2 The trial court sentenced Appellant to time served to twenty-three months
of imprisonment for indecent assault and a consecutive one-year term of
probation for corruption of a minor. N.T. (Sentencing), 11/21/19, at 23–24.
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that the alleged Indecent Assault and Corruption of Minors
occurred within Pennsylvania’s borders?
Appellant’s Brief at 4.
Appellant’s claim is a challenge to the trial court’s subject matter
jurisdiction, which presents a question of law “for which our standard of review
is de novo.” Commonwealth v. Maldonado-Vallespil, 225 A.3d 159, 161
(Pa. Super. 2019), appeal denied, ___ A.3d ___, 23 MAL 2020 (Pa. filed
August 3, 2020) (citing Commonwealth v. Bethea, 828 A.2d 1066, 1071
n.5 (Pa. 2003)). Our scope of review is plenary. Maldonado-Vallespil, 225
A.3d at 161. This Court may affirm a judgment or verdict for any reason
appearing of record. Commonwealth v. Melvin, 103 A.3d 1, 19 (Pa. Super.
2014). Moreover, although the Commonwealth bears the burden of proving
facts sufficient to establish jurisdiction, “it may rely upon circumstantial
evidence to meet this burden.” Commonwealth v. Passmore, 857 A.2d
697, 709 (Pa. Super. 2004) (citation omitted).
Appellant’s sole argument is that the Commonwealth failed to prove that
the instant crimes occurred within Pennsylvania’s borders. Appellant’s Brief
at 10. In support, he cites Maldonado-Vallespil, 225 A.3d 159. In that
case, we held that the record was silent regarding the location where the theft
of tools stored in a vehicle occurred, and that the Commonwealth failed to
establish that any element of the crime of receiving stolen property occurred
in Pennsylvania. Id. at 162. Indeed, the Commonwealth conceded as much.
Id. Appellant posits that similarly, the instant record is devoid of evidence
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establishing that he had indecent contact with S.P. or corrupted her morals
“within the Commonwealth’s borders.” Appellant’s Brief at 13.
The trial court rejected Appellant’s argument, and held as follows:
The jury heard during voir dire that the Appellant lived in Milmont
Park. (N.T. 10/30/19, pp. 27-28)[.] Then, during the
Commonwealth’s opening statement, the jury learned that the
alleged crimes occurred at [Father’s] house in Milmont Park,
Pennsylvania.[3] (N.T.,10/31/19, p.5)[.] On direct examination of
Detective Paul Corsi, Detective Corsi testified that S.P.’s case was
referred to him through Ridley Township Police. Jurisdiction of the
court may be proven by circumstantial evidence. Commonwealth
v. Passmore, 857 A.2d 697 (Pa. Super. 2004); Commonwealth v.
Nixon, 2014 WL 10588383 (Pa. Super. 2014)[.] The jury was
free, as the factfinder in this matter, to make the reasonable
inference from the above information that the crimes were
committed in Delaware County even though the Commonwealth
did not specifically ask whether Milmont Park or Ridley Township
are located in Delaware County, PA. See, Commonwealth v.
Nixon, 2014 WL 10588383 (Pa. Super. 2014).
Trial Court Opinion, 3/11/20, at 14.
Unlike Maldonado, the instant record is not silent concerning where
Appellant’s crimes occurred. Multiple witnesses testified consistently that S.P.
stated that Appellant digitally penetrated her vagina when she was at Father’s
house. N.T., 10/31/19, at 33–42, 71, 163–164. Detective Corsi of the
Delaware County District Attorney’s Office, Crystal Maxwell of Delaware
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3 The prosecutor’s opening statement to the jury did not constitute evidence
in the case. See Commonwealth v. Parker, 882 A.2d 488, 493 (Pa. Super.
2005) (The purpose of an opening statement is to apprise the jury how the
case “will develop, its background and what will be attempted to be proved;
but it is not evidence.” Notably, we did not rely on the Commonwealth’s
opening statement in resolving the issue in this case.
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County CYS, and Susanne Whiting of the Delaware County Children’s
Advocacy Center testified that the instant crimes occurred at Father’s house.
In particular, Detective Corsi testified that this case was referred to him from
the Ridley Township Police Department. N.T., 10/31/19, at 158. Mother
testified that Ridley Township is located in Delaware County. Id. at 63.
In the case sub judice, the jury drew the reasonable inference that
Detective Corsi, Ms. Maxwell, and Ms. Whiting, all of whom were employed by
Delaware County agencies, responded to crimes that occurred within their
lawful jurisdiction. See Passmore, 857 A.2d at 709 (Commonwealth may
rely on circumstantial evidence to meet its burden of proving facts sufficient
to establish jurisdiction). Thus, we reject Appellant’s claim and affirm the
judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/9/20
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