Com. v. Weedon, H.

J-S58022-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HOWARD WESLEY WEEDON,
Appellant No. 2032 MDA 2014
Appeal from the Judgment of Sentence of October 30, 2014
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0002284-2013
BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.
MEMORANDUM BY OLSON, J.: FILED JANUARY 14, 2016
Appellant, Howard Wesley Weedon, appeals from the judgment of
sentence entered on October 30, 2014 in the Criminal Division of the Court
of Common Pleas of Franklin County. We affirm.
The trial court thoroughly summarized the facts and procedural history
in this case as follows:
On November 3, 2013[, the Commonwealth charged Appellant
with, inter alia, rape of a child, involuntary deviate sexual
intercourse with a child, aggravated indecent assault of a child,
indecent assault of a child, and endangering the welfare of a
child [18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7),
and 4304(a)(1)]. A two-day jury trial was held on July 23 and
July 24, 2014. During the trial[, the testimony established the
following facts.]
The above charges arose from incidents spanning from the fall of
2008 when J.N.[, the child victim in this case,] was eight or nine
years old to August of 2013. The Commonwealth [based its
case] primarily on the testimony of J.N. According to J.N.’s
testimony, during this time period Appellant raped J.N. on
* Retired Senior Judge assigned to the Superior Court
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several occasions in the trailer that they lived in and in the shed
located near the trailer. J.N. lived in the trailer on and off until
August 2013 when her second cousin [H.M.] became her legal
guardian. Appellant lived in the trailer since J.N. was three.
Counsel stipulated that Appellant was not available [during the
following periods] to commit the alleged crimes: June 13, 2009
to November 6, 2009; September 24, 2010 to May 14, 2012;
and August 31, 2012 to November 20, 2012.
J.N. testified that Appellant first raped her sometime in the fall of
2008. That rape occurred on a school night when her mother
was working and her sister was in bed. J.N. was watching
Appellant play videogames at around 12[:00] a.m. Appellant
persuaded J.N. to drink some alcohol then took her out to the
shed. Appellant then said he wanted to take pictures of J.N.
because he knew she wanted to be on [television]. He asked
her to take off her pants to which she responded “no,” but he
took them off anyway. Appellant took off J.N.’s underwear.
Appellant then laid J.N. down on the ground, pulled his pants
down, got on top of her, and put his penis in her vagina. J.N.
testified that “[h]e was going back and forth and just trying to
get it in but it wouldn’t.” Appellant eventually stopped and the
two went back inside the trailer. Appellant then told J.N. to go
to bed and told her not to tell anybody.
J.N. testified that a “couple weeks” later Appellant raped her for
a second time. Again, it was a weeknight when her mother was
at work. J.N. was sleeping in her room and Appellant went into
her room, woke her up, and told her “he wanted to do it again.”
Appellant took off J.N.’s pants and underwear again. Appellant
took off his clothes and laid her down on the bed on her back.
Appellant then spread J.N.’s legs open and put his penis in her
vagina. His penis went all the way in that time. J.N. testified
that it hurt very badly. She stated that it lasted about an hour.
Appellant made J.N. promise not to tell anybody.
J.N. testified that when she was in seventh grade Appellant
sexually assaulted her “like every other day except for the
weekend,” and the assaults “jumble together.” During seventh
grade J.N. turned 13 years old. Before she turned 13 years old
Appellant sexually assaulted J.N. in the shed, the bathroom, and
her mom’s room, occurring most often in the shed and
bathroom. On these occasions Appellant “would make [her] take
off [her] clothes and then he would lay [her] on [her] back and
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just start.” When Appellant assaulted her in her mother’s room
“[h]e would lay [her] on [her] back and it was kind of on the
edge of the bed and he would get on top of [her] and move back
and forth.” When the assaults happened in the bathroom
Appellant would sit J.N. down on the toilet, hold her legs apart,
and start having sex with her. J.N. also testified that Appellant
had made her put his penis in her mouth prior to her turning 13
years old. On those occasions Appellant would move his penis
up and down in her mouth for about two or three minutes and
then stick it in her vagina. She stated that on one or two
occasions Appellant put his mouth on her vagina and stuck his
tongue inside her. Appellant also stuck his fingers inside of her
“but it wasn’t very often.” J.N. testified that on one occurrence
in the shed Appellant ejaculated and wiped it on her. She
described it as white and sticky. Appellant also made her smoke
marijuana with him a couple times, drink alcohol a few times,
and watch porn once or twice.
J.N. testified to the final time that Appellant raped her. It was in
August of 2013 when she had wanted to go on vacation with
[H.M.]. J.N.’s mother said she could not go. Appellant told J.N.
that if she had sex with him he would allow her to go on vacation
with [H.M.]. J.N. testified that on that day she and Appellant
were sitting in the living room and Appellant made her smoke
marijuana. He then took her to the bathroom and had sex with
her.
On cross-examination[, counsel for Appellant] questioned J.N.
about the inconsistencies in her story as it related to her initial
interviews and her testimony at trial. J.N. replied that her story
had not changed but rather had cleared up in her head. J.N. told
Children and Youth [Services (CYS)] that the first rape occurred
on a couch in the shed. However, she testified at trial that it
happened on the floor. She also told [CYS] that she only drank
alcohol one time but testified at trial that it happened a few
times. J.N. told [CYS] and a doctor and nurse at the hospital
that she did not experience any pain during the sexual
encounters but at trial stated that the pain was an 11 on a scale
from 1 to 10. She told [CYS] that Appellant’s penis never
touched anywhere but her vagina. However, in a second
interview with [CYS] she stated that his penis touched her
mouth. When asked by [CYS] where the incidents occurred[,]
J.N. said the shed and bathroom but did not mention her
mother’s bedroom or her own bedroom. However, in a second
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interview with [CYS] she said it also occurred in her mother’s
bedroom. When asked why she sometimes said no to certain
questions in different situations J.N. testified that she feels
uncomfortable and “get[s] all jumbled up and stuff and I can’t
really think right.”
The Commonwealth also presented two video recordings of
interviews of J.N. conducted by [Nicholas] Ranney an intake
caseworker at Franklin County [CYS]. The video interview
recorded on October 25, 2013 was admitted as Commonwealth’s
Exhibit 6. The video interview recorded on October 29, 2013
was admitted as Commonwealth’s Exhibit 7. Mr. Ranney
testified briefly as to the interviews.
[Jennifer] McNew is a forensic nurse consultant at Meritus
Medical Center. She was qualified as an expert witness and
testified in the area of pediatric forensic medical examinations
and child sexual assaults. Ms. McNew conducted a forensic
interview of J.N. and a medical exam which included a “special
look” at the genitalia area. Ms. McNew’s findings regarding
J.N.’s genitalia were that J.N. “had a normal exam.” However,
she stated that over 90% of exams in cases where children
allege to have been sexually assaulted come back normal. J.N.’s
test came back negative for sexually transmitted diseases.
[Dr. David] Turkewitz, Chairman of Pediatrics at York Hospital
Wellspan was qualified as an expert witness in the area of
pediatric forensic medical examinations and child sexual
assaults. Dr. Turkewitz testified that over 95% of children who
are sexually abused have normal exams. He stated that the fact
that J.N. had a normal exam had no bearing on whether she was
sexually abused despite her claim that she had been raped
several times. Dr. Turkewitz’s opinion that J.N. was raped was
based [on] what J.N. told Ms. McNew. Dr. Turkewitz wholly
disagreed with each point made by defense expert witness Dr.
[Robert] Stratton.
Dr. Stratton, an emergency room doctor, was qualified as an
expert witness in family medicine. He testified that to a
reasonable degree of medical certainty he did not believe that
there was evidence of penile vaginal penetration of J.N. He
based his opinion on the criminal complaint, the report from Ms.
McNew, the Gettysburg Hospital lab reports, medical reports of
Appellant, and literature regarding specific aspects of the case.
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Dr. Stratton testified that if [J.N.’s] story were true, i.e., she was
raped numerous times by Appellant, that the medical exam likely
would have showed some kind of trauma to her vaginal area
given the size difference between Appellant and J.N. He also
based his opinion on J.N.’s lack of bleeding and her lack of
exposure to [sexually transmitted disease]. The fact that these
factors were not present led him to believe that J.N. was not
raped by Appellant.
[H.M.] is J.N.’s second cousin and the current legal guardian of
J.N. She took custody of J.N. shortly after the final rape took
place in August 2013. [H.M.] testified about two months after
J.N. had moved in J.N. told her that Appellant had sex with her
in the past. The next morning [H.M.] set up an appointment
with J.N.’s eighth grade guidance counselor. Later that
afternoon, [H.M.] set up an appointment for J.N. with Mr.
Ranney from [CYS]. The only information [H.M.] had about the
sexual abuse is what J.N. told her. [H.M.] testified that she did
not tell J.N. what to say to the police.
[R.H.], the mother of J.N. and long-time girlfriend of Appellant,
testified for the defense. [R.H.] knew Appellant for 12 years.
[R.H.] testified that she believed J.N. fabricated the allegations
against Appellant because [H.M.] put her up to it. [R.H.] was
shocked by the allegation[s] when she first heard them. She
testified that she has genital herpes and has had chlamydia and
believes she got those sexually transmitted diseases from
Appellant. When asked [on direct examination] whether she
believed that Appellant committed the sexual assaults [R.H.]
stated she did not. On cross-examination the Commonwealth
asked [R.H.] whether she thought Appellant was capable of
committing a crime like this to which she responded that she did
not. After consideration by the [trial c]ourt as to whether to
allow the testimony, the Commonwealth asked [R.H.] about
whether she informed a Pennsylvania State Police trooper in
August of 2013 that Appellant had raped her. [R.H.] responded
that she did. She subsequently testified that the allegation was
a lie she made up in a panic and lied to police in order to get
them to come to her residence because she and Appellant were
arguing.
On July 24, 2014[,] the jury found Appellant[] guilty of [the
above-referenced charges.] On October 30, 2014[,] Appellant
was sentenced to an aggregate sentence of 34 to 68 years of
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incarceration and determined to be a sexually violent predator.
On November 26, 2014[,] Appellant filed a [n]otice of [a]ppeal
followed by a [c]oncise [s]tatement on December 23, 2014.
Trial Court Opinion, 2/27/15, at 1-7.
On appeal, Appellant raises the following questions for our review:
Whether the trial court abused its discretion by allowing the
district attorney—pursuant to Pa.R.E. 404—to elicit character
and “prior bad act” testimony when cross-examining a defense
witness, [R.H.], regarding a prior rape allegation she had made
against Appellant when (a) the district attorney did not provide
defense counsel with notice of his intent to introduce such
evidence prior to trial and the district attorney did not show
“good cause” as to why its failure should be excused; (b) the
district attorney did not provide an acceptable reason for
admitting the evidence; (c) the evidence had no probative value
regarding the charges at issue, but it was highly prejudicial to
Appellant; and (d) defense counsel did not “open the door” to
such testimony by his direct examination of the witness?
Whether the trial court abused its discretion in denying
Appellant’s motion for a mistrial after the district attorney
questioned [R.H.] regarding a prior rape allegation she had
made against Appellant given the obviously prejudicial nature of
the testimony in a rape trial?
Appellant’s Brief at 13-14.
We carefully reviewed the submissions of the parties, the certified
record, and the opinion of the trial court. Based upon our review, we
conclude that the trial court accurately and adequately addresses each of the
contentions Appellant raises on appeal. See Trial Court Opinion, 2/27/15, at
7-17. For this reason, we adopt the trial court’s opinion as our own and hold
that Appellant is not entitled to relief for the reasons set forth therein. See
id. We direct the parties to attach a copy of the trial court’s opinion to all
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subsequent filings concerning our disposition of this appeal; however, the
names of H.M. and R.H. must be redacted.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2016
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