Com. v. Barnhart, L.

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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. :
:
LEELAND R. BARNHART, : No. 417 WDA 2013
:
Appellant :
Appeal from the Judgment of Sentence, October 12, 2012,
in the Court of Common Pleas of Greene County
Criminal Division at Nos. CP-30-CR-0000485-2011,
CP-30-CR-0000487-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MARCH 17, 2015
A jury convicted Leeland R. Barnhart of involuntary deviate sexual
intercourse (“IDSI”) and related offenses as a result of his sexual activity
with R.B.; at the time of the offenses, R.B. was 15 years old. Herein,
appellant appeals from the judgment of sentence entered on October 12,
2012. We affirm the convictions, vacate the judgment of sentence, and
remand for resentencing
The facts, as summarized by the trial court, are as follows.
The charges against Defendant arose out of
events in the summer of 2011. On July 25, 2011,
the victim, R.B. (d/o/b 10/[-]/95) left the family
home in Carmichaels and moved in with Defendant
(d/o/b 5/[-/]1976). Her parents did not know where
she was and asked her friend K. if she knew her
whereabouts. K. said she thought R.B. might be at
“Lee’s house”. R.B.’s father went to Defendant’s
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mobile home and asked if he knew where his
daughter was. Defendant said she was not there.
R.B.’s father told Defendant that R.B. was only 15.
R.B.’s parents made fliers and posted them around
the neighborhood. They informed the police, the
district attorney and Greene County Children and
Youth Services (CYS). At some point, the parents
got a phone call from a runaway hotline informing
them that R.B. had called and asked the hotline to
tell her parents she was safe and in good health.
After about nine days, CYS located R.B. at
Defendant’s home. More precisely, a caseworker
knocked on Defendant’s door and talked to him.
After about 45 minutes of conversation, Defendant
admitted that R.B. was in the place and brought her
out. The caseworker informed the police that R.B.
had been found and then took her home to her
parents.
After police and CYS personnel interviewed
R.B., Defendant was charged with [IDSI], Sexual
Assault, Aggravated Indecent Assault, and other
sexual offenses. Of great significance in this case is
the fact that at the time of these events[,] R.B. was
15 years old. She would not be 16 until the
following October. At a separate number, Defendant
was charged with Concealing the Whereabouts of a
Child, Interfering with the Custody of a Child and
related offenses. The two numbers were joined for
trial.
Trial court memorandum, 1/31/13 at 1-2.
On May 21, 2012, a four-day jury trial began. The victim testified and
admitted that she lied about her age to others and lived her life as a
17-year-old. (Notes of testimony, 5/21-26/12 at 153.) R.B. testified that
she met appellant through her friend K.; appellant lived a few blocks away.
(Id. at 155.) The next night, she snuck out of her house to visit appellant.
During this visit, the victim had sex, including oral sex, with appellant. (Id.
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at 160.) The following night, R.B. snuck out again and went to appellant’s
house; the two engaged in sexual intercourse again. (Id. at 164.) The
victim testified that she deceived appellant about her age. (Id. at 164-165.)
The following day, Sunday, R.B. revealed her real age of 15 to
appellant upon the encouragement of K. (Id. at 166.) R.B. testified that
while appellant was initially upset, he told her “it would be all right.” (Id. at
168.) On July 23, 2011, R.B. ran away from home and went to stay with
appellant. (Id. at 170.) R.B. stayed at appellant’s house for nine days; she
testified that they had sex approximately twice a day. (Id. at 181.)
Appellant testified in his own defense. He explained that he had
known K., who lived up the street from his house with her mother, since K.
was 13 years old. (Id. at 649.) Appellant stated that when he met R.B.,
she told him she was 18 years of age. (Id. at 653.) Appellant’s time-line of
the dates they saw each other differed from R.B.’s. Appellant said they were
not physically intimate until after the fifth or sixth day they met --
approximately June 18th to June 21st. (Id. at 658-659, 672.) Appellant said
that they saw each other again the following day but they did not have sex.
(Id. at 668.) Appellant testified that he was not made aware of her real age
until the day she ran away when R.B.’s father came to his home. (Id. at
680.) Once he found out her age, he refused to have sex with R.B.
Two separate motions for continuance filed by the defense were
granted. (See docket #6, 7.) On February 8, 2012, appellant waived his
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Rule 600 rights. (Docket #12.) On February 21, 2012, the court granted a
motion for DNA testing. (Docket #15.) The trial court denied a defense
request for a psychological/competency evaluation to determine if the victim
understood her obligation to tell the truth. (Docket #21.) The
Commonwealth filed a motion in limine pursuant to the Rape Shield Law,
and the trial court granted the motion, refusing to admit into evidence R.B.’s
written admissions that she had, on other occasions, lied about her age and
had sex with older men. (Docket #3, 42.)
The jury rendered a verdict of guilty on all counts. A pre-sentence
investigation was prepared; and on October 12, 2012, appellant was
sentenced to a total sentence of 10½ to 21 years, including two mandatory
sentences required by 42 Pa.C.S.A. § 9718(a). (Docket #47.) Appellant
filed a timely post-sentence motion. A hearing was held, and thereafter, the
motion was denied. Appellant filed a timely notice of appeal and was not
ordered to file a concise statement pursuant to Pa.R.A.P. 1925(b). The trial
court has not filed an opinion, but directed this court to its memorandum
dated January 31, 2013. The following issues have been presented for our
review.
I. DID THE COURT ERR BY ALLOWING THE
COMMONWEALTH TO AMEND THE
INFORMATIONS ON THE LAST DAY OF TRIAL
WHEN THE AMENDMENT MAY HAVE
MATERIALY [sic] CHANGED THE DEFENSE
CAUSING PREJUDICE TO THE APPELLANT?
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II. DID THE COURT ERR BY GRANTING AND THEN
DENYING DEFENDANT’S REQUEST FOR A
COMPETENCY EVALUATION OF THE VICTIM TO
DETERMINE IF SHE UNDERSTOOD HER DUTY
TO TELL THE TRUTH WHEN THE VICTIM WAS
UNDER THE AGE OF 18, HAS A PROPENSITY
FOR LYING, AND PRESUMABLY DID NOT
UNDERSTAND HER DUTY TO TELL THE TRUTH?
III. DID THE TRIAL COURT ERR BY NOT ALLOWING
THE VICTIM’S OUT OF COURT WRITTEN
STATEMENTS TO BE INTRODUCED AT TRIAL
AND INTO EVIDENCE?
IV. DOES THE MANDATORY SENTENCING
REQUIREMENT FOR [IDSI] VIOLATE
DEFENDANT’S CONSTITUTIONAL RIGHT
AGAINST EXCESSIVE, CRUEL AND UNUSUAL
PUNISHMENT, AND IS OVERBROAD AND
OVERREACHING BY INCLUDING ORAL SEX AS
“DEVIATE”, AND/OR DOES THE STATUTE
IMPOSE A GROSSLY DISPROPORTIONATE
SENTENCE FOR BEHAVIOR THAT IS DEEMED
NORMAL BY SOCIETY?
V. WAS THE JURY’S VERDICT BEYOND THE
WEIGHT OF THE EVIDENCE AND/OR WAS
THERE SUFFICIENT EVIDENCE TO CONVICT
APPELLANT OF THE CRIMES CHARGED WHEN
THE VICTIM TESTIFIED THAT SHE HAD LIED
ABOUT HER AGE AND GENERALLY LIES ABOUT
HER AGE AND HOLDS HERSELF OUT TO BE
OLDER THEN SHE ACTUALLY IS[?]
VI. DID THE COURT THE COURT [sic] VIOLATE
APPELLANT’S DUE PROCESS RIGHTS BY
FORCING HIM TO WAIVE HIS RULE 600
SPEEDY TRIAL RIGHTS IN ORDER TO OBTAIN
EXCULPATORY EVIDENCE FROM THE
COMMONWEALTH?
Appellant’s brief at 18-19.
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The first issue presented concerns whether the trial court properly
granted the Commonwealth leave to amend the information pursuant to
Pa.R.Crim.P. 564. The trial court permitted the Commonwealth to amend
the criminal information at the conclusion of trial to correct a defect in
statutory recitation and to alter the dates of several alleged offenses.
Appellant argues that he was prejudiced by the late amendment of a
criminal information. We disagree.
According to Pa.R.Crim.P. 564, the court may permit amendment of an
information “when there is a defect in form, the description of the
offense(s), the description of any person or any property, or the date
charged, provided the information as amended does not charge an additional
or different offense.” Pa.R.Crim.P. 564. Moreover, “[u]pon amendment, the
court may grant such postponement of trial or other relief as is necessary in
the interests of justice.” Commonwealth v. Roser, 914 A.2d 447, 454
(Pa.Super. 2006.) “[T]he purpose of Rule 564 is to ensure that a defendant
is fully apprised of the charges, and to avoid prejudice by prohibiting the last
minute addition of alleged criminal acts of which the defendant is
uninformed.” Commonwealth v. Sinclair, 897 A.2d 1218, 1221
(Pa.Super. 2006). “[O]ur courts apply the rule with an eye toward its
underlying purposes and with a commitment to do justice rather than be
bound by a literal or narrow reading of the procedural rules.”
Commonwealth v. Grekis, 601 A.2d 1284, 1288 (Pa.Super. 1992).
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The original criminal information at case number 485-CR-2011
charged appellant with various crimes involved in concealing the
whereabouts of the victim from July 7, 2011 to August 2, 2011. During trial,
testimony was offered to indicate that the concealment and related crimes
did not occur until the victim had run away from home on July 25th. At the
conclusion of trial, the Commonwealth was permitted to amend the
information by changing the date of occurrence from July 7th to July 25,
2011.
The court also permitted the Commonwealth to amend the information
at case number 487-CR-2011 by deleting a reference to the victim being
under the age of 13, which was inadvertently included in the statutory
recitation, although the specific facts in the “to-wit” section listed the
victim’s accurate age and listed the accurate section charged. It had never
been alleged that the victim was under 13 at any time.
Appellant now argues that the amendments altered his defense.
Appellant claims he was prejudiced as he had to prepare a defense for a
larger time frame and then did not have to use it. Appellant also argues
that since the amended date is beyond the first time that he had sexual
intercourse with the victim, he would not have testified to having had
intercourse with the victim before July 25, 2011 had that date originally
been used. (Appellant’s brief at 30.)
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We agree with the trial court that these assertions are not the type of
prejudice contemplated by the rules. (Trial court memorandum, 1/31/13 at
6.) Further, as the Commonwealth notes, appellant never sought to have
the two cases severed, so the admissions concerning the sexual nature of
the relationship prior to July 25th would have been inadmissible in the trial
involving the non-sexual charges. The victim testified that she had sex with
appellant from July 7th through the time she returned home. The jury
obviously found R.B.’s testimony credible and convicted him based on her
rendition of the facts. We cannot find the amendment of the date fatal to
appellant’s case.
Next, appellant argues the trial court erred by denying appellant’s
request for a competency evaluation of the victim to determine if she
understood her duty to tell the truth, as she was under the age of 18 and
has a propensity for lying.1 (Appellant’s brief at 33.) Following our review,
we find this claim to be meritless.
Generally, a witness is presumed competent to testify, and the burden
falls on the objecting party to demonstrate that a witness is incompetent.
Commonwealth v. Walter, 93 A.3d 442, 451 (Pa. 2014). When a witness
is at least 14 years old, he or she is entitled to the same presumption of
competence as an adult witness. Commonwealth v. McLaurin, 45 A.3d
1Initially, a motions court judge granted the motion for an evaluation and
competency hearing; however, on February 23, 2012, the Honorable Brianna
Christine vacated the order.
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1131 (Pa.Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013), overruled
on other grounds by Commonwealth v. Pander, 100 A.3d 626(Pa.Super. 2014). However, in the case of a child witness, once evidence of
corruption is established, the court must make a searching judicial inquiry
into the mental capacity of a witness under the age of 14; that investigation
involves whether the child witness has the following: “(1) capacity to
observe or perceive the occurrence with a substantial degree of accuracy;
(2) ability to remember the event which was observed or perceived;
(3) ability to understand questions and to communicate intelligent answers
about the occurrence, and (4) consciousness of the duty to speak the truth.”
Commonwealth v. Delbridge, 855 A.2d 27, 39 (Pa. 2003)
(“Delbridge I”). See also Commonwealth v. Delbridge, 859 A.2d 1254(Pa. 2004) (“Delbridge II”) (explaining judicial competency investigations
apply in cases where sexual abuse complainants are young children because
child’s memory is uniquely susceptible to falsely implanted suggestions
which may cause child difficulty in distinguishing fact from fantasy when
called to testify).
“These concerns clearly become less relevant as a witness’ age
increases, ultimately being rendered totally irrelevant as a matter of law by
age fourteen.” Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa.Super.
2006), appeal denied, 912 A.2d 1291 (Pa. 2006) (emphasis added). In
Judd, the juvenile sexual assault victim was 15 years old when she testified
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at trial. The court stated “any issue with her inability to correctly remember
the events in question is properly a question of credibility not of taint.” Id.
at 1229.
Based on the foregoing, we discern no error in the trial court’s decision
to deny appellant’s request for a psychological evaluation. There is no
dispute that the victim was 15 years and 9½ months old at the time of the
offenses and 16 when she testified. (Appellant’s brief at 25.) See
McLaurin, supra; Judd, supra. Hence, she was presumed competent, and
any allegation concerning her lies to appellant and her parents goes to her
credibility, not competency. Commonwealth v. Page, 59 A.3d 1118, 1130
(Pa.Super. 2013). “A determination of credibility lies solely within the
province of the factfinder. Moreover, any conflict in the testimony goes to
the credibility of the witnesses and is solely to be resolved by the factfinder.”
Commonwealth v. Price, 616 A.2d 681, 685 (Pa.Super. 1992) (internal
citations omitted). Furthermore, in Commonwealth v. Robinson, 5 A.3d
339, 342-344 (Pa.Super. 2010), appeal denied, 19 A.3d 1051 (Pa. 2011),
this court upheld the trial court’s refusal to permit the defense to present
expert testimony on the subject of memory error as it would be another way
to improperly permit an expert to comment on the credibility of a witness.
The victim testified that she had lied about her age to appellant and to
others. This admission, however, does not demonstrate an inability to
understand the duty to tell the truth. Appellant has failed to overcome the
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presumption that R.B. was competent to testify beyond his assertion that
she lives in a “fantasy world.” (Appellant’s brief at 34.) However, trial
counsel had the opportunity to repeatedly challenge the victim’s credibility
on cross-examination and attempted to depict her as a dishonest girl who
fabricated the assault. Likewise, we find no merit to appellant’s suggestion
that R.B.’s memory was tainted by the police and caseworkers, citing to
Delbridge I, supra. Delbridge I is distinguishable as it involved the
influence of authority figures over young children, ages six and four, who
made allegations of sexual abuse. We will not disturb the court’s
determination.
The third claim presented is whether the trial court erred by not
allowing the victim’s out-of-court written statement to be introduced at trial.
(Appellant’s brief at 38.) No relief is due.
The day before trial, the Commonwealth filed a motion in limine
pursuant to the Rape Shield Law, 18 Pa.C.S.A. § 3104, to prohibit appellant
from using R.B.’s written statements to CYS and to the police which
contained the victim’s admission that she was having sex with older men
when they did not know her age. In the statements, R.B. averred that she
would lie to her friend K. about her age, and K. would unknowingly confirm
her age to men. Appellant sought to introduce these statements to show the
victim had acted in conformity in the present case as she had in the past.
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Appellant argued that the word “relationship” could be substituted for “sex”
so the victim’s scheme could be brought before the jury.
The court ruled the probative value was not outweighed by the
prejudice the victim would receive by her sexual past coming into evidence.
The motion was granted and the statements were not to be admitted. The
trial court ruled, however, that appellant could question R.B. about lying to
others, lying to men, and lying about her age. Appellant could not ask her
about lying to older men to have sex with them, as such questioning would
violate the Rape Shield Law.
We find no error in the trial court’s order prohibiting the defense from
impeaching R.B.’s credibility using her past sexual history. Appellant sought
to introduce R.B’s prior written statements admitting she had previously
engaged in sex with men who did not know her age in an attempt to show
she acted in conformity with appellant as she had in the past. Appellant
cites Pa.R.E. 404, which states, “in a criminal case, subject to limitations
imposed by statute, evidence of a pertinent trait of character of the alleged
victim is admissible when offered by the accused, or by the prosecution to
rebut the same.”
However, as the trial court notes, appellant overlooks the limitation of
the Rape Shield Law. Under Section 3104, “[e]vidence of the specific
instances of the alleged victim’s past sexual conduct . . . shall not be
admissible in prosecution . . . except evidence of the alleged victim’s past
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sexual conduct with the defendant where consent of the alleged victim is at
issue and such evidence is otherwise admissible pursuant to the rules of
evidence.”
Here, none of the evidence appellant sought to introduce involved
evidence of R.B.’s sexual conduct with appellant. Evidence of past sexual
conduct by the victim with third persons is not admissible for any purpose;
such evidence has been determined to be of little relevance to the issue of
consent between the victim and a defendant who has not personally
engaged in prior sexual conduct with the victim. Commonwealth v. Dear,
492 A.2d 714, 718 (Pa.Super. 1985). R.B.’s sexual past has no bearing on
the veracity of her allegations against appellant. In Commonwealth v.
Beltz, 829 A.2d 680, 684 (Pa.Super. 2003), we determined that a rape
victim’s prior sexual conduct with another man besides defendant was
inadmissible because it was not “of a nature to negate the intercourse
between the victim and appellant.” The fact that R.B. may have lied to other
men and engaged in sexual activity is not dispositive of the sexual
interaction between appellant and R.B.
Further, as the Commonwealth points out, “appellant was not without
the benefit of having the jury know that the victim lied regarding her age.
Victim’s credibility was adequately brought before the jury without the
prejudicial effect of having her sexual history explored.” (Commonwealth’s
brief at 30-31.) By R.B.’s own admission, she repeatedly lied to others
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about her age. The trial court properly granted the Commonwealth’s motion
in limine.
Next, appellant claims that the ten-year mandatory sentence pursuant
to 42 Pa.C.S.A. § 9718 (relating to offenses against infant persons), for a
violation of 18 Pa.C.S.A. § 3123(a)(7), is cruel and unusual punishment in
violation of Article 1, Section 13 of the Pennsylvania Constitution. We,
however, are mindful of the United States Supreme Court’s decision in
Alleyene, U.S. , 133 S.Ct. 2151 (2013), in which the Court
expressly held that any fact increasing the mandatory minimum sentence for
a crime is considered an element of the crime to be submitted to the fact-
finder and found beyond a reasonable doubt. Here, the court imposed two
mandatory minimum sentences under Section 9718 (governing sentences
for certain offenses committed against minor victims) for appellant’s
convictions of [IDSI] and aggravated indecent assault. (Docket #47.) We
are mindful that Alleyne was published after sentence was imposed in this
case, but it applies nevertheless. See Commonwealth v. Watley, 81 A.3d
108, 118 (Pa.Super. 2013) (en banc) (holding violations of Alleyne could
not be waived).
Recently, this court directly addressed the constitutionality of
Section 9718 in Commonwealth v. Wolfe, A.3d , 2014 WL
7331915 (Pa.Super. 2014). In Wolfe, a jury convicted the defendant of sex
crimes committed against a minor victim, including two counts of IDSI. The
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court imposed ten-year mandatory minimum sentences for each IDSI
conviction, pursuant to Section 9718(a)(1). On appeal, this court
emphasized that Section 9718 “contains the same format” as the
unconstitutional statues at issue in Commonwealth v. Newman, 999 A.3d
86 (Pa.Super. 2014) (en banc) (relying on Alleyne and holding
Section 9712 is unconstitutional as it “permits the trial court, as opposed to
the jury, to increase a defendant’s minimum sentence based upon a
preponderance of the evidence that the defendant was dealing drugs and
possessed a firearm, or that a firearm was in close proximity to the drugs”),
and Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014)
(involving appeal of sentence arising from jury trial; extending logic of
Alleyne and Newman to Sections 42 Pa.C.S.A. §§ 9712, 9713 and holding
those sections are likewise unconstitutional insofar as they permit automatic
increase of defendant’s sentence based on preponderance of evidence
standard). Id. at *5. Consequently, the Wolfe court held Section 9718 is
also facially unconstitutional.
The Wolfe court noted:
We recognize that this specific case is unique insofar
that the additional fact triggering the mandatory
sentence is also contained as an element within the
subsection of the IDSI statute under which [the
defendant] was convicted. Therefore, in order to
convict Appellant of IDSI, the Commonwealth was
already required to prove beyond a reasonable doubt
that the victim was less than 16 years old.
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However, we are not concerned with Appellant's
conviction in this appeal, only the imposition of the
mandatory minimum sentence.
....
[I]n this case, although the jury was required to find
that the victim was less than 16 years of age in
order to convict Appellant, we cannot ignore the
binding precedent from an en banc decision of this
Court. Newman stands for the proposition that
mandatory minimum sentence statutes in
Pennsylvania of this format are void in their entirety.
Newman, supra; Valentine, supra. As
Section 9718 is indistinguishable from the statutes
struck down in Newman and Valentine, we are
constrained to conclude that Section 9718 is also
facially void. As a result, we conclude the trial court
erred in imposing the ten-year mandatory minimum.
Id. at *5-6 (internal citations omitted).
Herein, at the sentencing hearing, the court applied Section 9718.
Based on the cases cited, we vacate and remand for resentencing.
The next issue presented purports to challenge the sufficiency of the
evidence and claims the verdict was against the weight of the evidence. We
would affirm the sufficiency of the evidence claim based on the trial court’s
opinion. (Trial court memorandum, 1/31/13 at 6-8.)
Our standard of review concerning the weight of the evidence is as
follows.
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
of whether the verdict is against the weight of the
evidence. Because the trial judge has had the
opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration
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to the findings and reasons advanced by the trial
judge when reviewing a trial court’s determination
that the verdict is against the weight of the
evidence. One of the least assailable reasons for
granting or denying a new trial is the lower court’s
conviction that the verdict was or was not against
the weight of the evidence and that a new trial
should be granted in the interest of justice.
This does not mean that the exercise of
discretion by the trial court in granting or denying a
motion for a new trial based on a challenge to the
weight of the evidence is unfettered. In describing
the limits of a trial court’s discretion, we have
explained[,] [t]he term “discretion” imports the
exercise of judgment, wisdom and skill so as to
reach a dispassionate conclusion within the
framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge.
Discretion must be exercised on the foundation of
reason, as opposed to prejudice, personal
motivations, caprice or arbitrary actions. Discretion
is abused where the course pursued represents not
merely an error of judgment, but where the
judgment is manifestly unreasonable or where the
law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or
ill-will.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis
omitted) (citations omitted).
Instantly, appellant’s argument focuses on the fact that the victim lied
to appellant about her age. Appellant cites evidence favorable to his
position. For example, appellant directs our attention to R.B. not being able
to identify what specific tattoos were on appellant’s body, not knowing what
a circumcised penis is, and the fact that appellant was not an identified
sperm contributor in the underwear tested. As the Commonwealth notes,
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the jury was aware of each of these factors and aware of appellant’s version
of the events. While appellant may articulate a plausible alternative
scenario, such a claim is dependent on the credibility of the witnesses,
which, as stated, is within the sole province of the jury. Thus, we discern no
abuse of discretion by the trial court in denying appellant’s challenge to the
weight of the evidence.
In his final question, appellant suggests that the Commonwealth
purposefully failed to timely disclose exculpatory evidence, the DNA test
results from R.B.’s underwear, which forced appellant to give up his
constitutional right to a speedy trial and waive his Rule 600 speedy trial
rights. Appellant’s argument is illogical as he was brought to trial well within
the 365-day period. Pa.R.Crim.P. 600(A)(2)(a). The criminal complaint was
filed August 12, 2011, and appellant’s trial began 283 days later on May 21,
2012. No relief is due.
Accordingly, we affirm appellant’s convictions, but we vacate the
judgment of sentence and remand for resentencing without imposition of
mandatory minimum sentences.
Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction relinquished.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2015
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IN THE COURT OF COMMON PLEAS OF GREENE COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA
vs. Nos. 485, 487, Criminal 20 11
LEELAND R. BARNHART,
Defendant.
.
MEMORANDUM
Defendant, LecJand Barnhart. has filed Post-TriaJ Motions asking Hl0t we declare;l
"mistrial" or order another appropriate remedy.
nle charges against DeJenoonl arose out of events in the summer of 20 J 1. On July 25,
20 II , Ihe victim, R.B. Cd/olb: 1011 &195) lett the family home in Carmichaels and moved in with
Defendanl (dlo/b: 51] 31976). Her parcnts did not know where she was and l:Isked her friend K. if
she knew her whereabouts. K said she thought R.B. might be at "Lee's house", Rn:s father
went to DefeudaJlI's mobile home and iJsked if he knew when~ his daughter was. Defendant srud
she was not there. R.B . IS father told Defendant tna1 R.B . was on ly IS. R.B.·s parents made niers
and posled them around the neighborhood . TI1CY inform ed the policc, the district aHome), and
Greene County Children and Youth Services (CYS). At some point. the parents got a phone call
from a runaway ho(ljne infomling them thaI R.l3. had caIJed and asked the hOliine to tell her
parents she was safe and in good health. After abou t nine day!;, CYS located R.B. at Defendant's
home. More precisdy, a caseworker knocked on Defendant 's door and talked to him . After about
45 minutes of conversation, Defendant admith::d that R.B. was in the place and brought her out.
The caseworker infotmed the police that R.B. had been found and then took her home to ber
parents.
5
Circulated 02/27/2015 12:44 PM
After police and CYS personnel interviewed RB., Defendant was charged with
Involuntary Deviate Sexual Intcrcourse, Sexual Assault, Aggravatcd [ndecent Assault and other
sexudl oiTenses. Of great signiflc;Ulce in this case is the fact that at the time of these events R.B.
was 15 years o ld. She would not bc 16 lIntil the following OClober. Al a separate number,
Defendant was charged with Concealing the Whereabouts of a Child, lnterfering with the
Custody of ii Child and related offenses. The two nllmbers were joined for trial.
Ancr a. four day trial in May of2012, the jury rendered a verdict orguilty on all COllnts A
presentcnce investigation was prepared and on October 12, 2012, Defendant was sentenced to a
total sentence of 10 and ~ to 21 years, including the mandatory 10 year sentence required by 42
Pa. C.S.A. § 9718(a),
Defendant filed timely post-maJ motions and a supporting brief. The Commonwealth
responded and wc heard ora} argument We will consider Defendant's issues individually.
Sufficiency of Evidence
As noted above there were two sets of charges brought against Delcndanl, the sexual
offcnses and the interference with custody offenses. R.B. testified thllt she went to Defendant's
mobile home on or about July 25, 2011, and stayed there, more or less continuously, until she left
with the CYS caseworker on August 2. 2011. The only significant intcrruption in her stay was
when she and Defendant weniio a mOlel in Uniontown for two days. tDefendant says he took
R.B. to the motel and she stayed there alone) .
According to R.B., she met Defendant through her friend K. and after spending some
time with him over a period of days or weeks snuck out of her house on two occasions during the
night and visited Defendant (they only lived a few block apart) . During these nighttime visits,
tney had sex. including oral sex . According to Defendant, he believed at that time that R.B. was
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18, because that is how old she said she was and he believed her. On the morning of J uJy 25,
2011, R.B .'s father appeared at Defendant's home asking her whereabouts. Only then did
Defendant learn that she was only 15. R.B. 's father left and shol1ly thereafter R. B. appeared at
the house, with luggage. She Ihen admilted to Defendant that she was only 15. Regardless.
Defendant let her move in. Although they were together for the next nine days, sa id Defendant.
except when he went to wo rk, or when she stayed by herself at the motel in Uniontown, they did
not have sex. According to R.B ., Ihey had sex a lot. Whatever physical evidence existed, and it
was not much, was inconclusive.
In considering a sufficiency of the evidence claim, a Court must delennine whether the
ev idence and all reasonab le inferences therefrom received or viewed in the light most favomble
to the verdict winner were sufficient to enable the fact finder to find every element orthe crime
charged beyond a reasonable doubt. Commonwealth v, Kling, 73 I A.2d 145 (Pa. Super 1999).
Here, it seems to be Defendant's position lhat because R.B. admitted telling K . and others at
various times thai she was either 17 or 18, her testimony that she and Defendant had sex after
July 25, 2011, was literally incredible; that no jury could possibly find her believable. This, of
course, is nol the law. A fact finder is free to believe some, all or none of a witness's testimony.
even when a witness admits to having previously lied. Commonwealth v. Parente, 133 A.2d 561,
(Pa. Super 1957); Commonwealth v. Hayes, 460 A.2d 791 (Pa. Super 1983). The testimony of
the victim, standing alone, is sufficienllo convict in sex offense prosecutions. Commonwealth v.
Purcell, 589 A.2d 217 (Po. Super 1991).
Defendant also argues that the evidence showed lhat R.B. was rree to leave at any lime
and therefore he cou ld not be guilty of concea ling [he whereabouts of a child and interfering with
the custody of a child. Defendant misunderstands what he is charged with. He was not charged
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with kidnapping or unla...vful restraint or false imprisonment, all of which have an element of
force or compulsion. The offenses he was charged with contained no such e lement.
Weight of the Evidence
Defendant also contends that the jury's verdict was against the weight of the evidence. A
motion for a new trial on grounds that the verdict is contrary to lhe weight oHhe evidence
concedes that there is sufficient evidence to sustain the verdict. It is an appeal to the trial court to
award rt new trial because the jury's verdict is so contrary to the evidence as to shock one's se-nse
of justice and make the award of a new tria l necessary so that right might be given, another
chance to prevail. Commonwealth v. Hodge, 658 k2d 386 (Pa. Supcr 1995).
Here, both the Defendant and the witness agree that tbey had passionate sex, including
oral sex, on two occasions before July 25, 2011. Defendant testified lhal she told K and
Defendant that she was 17. Defendant testi fied that she told him she was 18. If either tact were
true, Defendant would not be subject to the sentence mandated by 42 Pa. C.S.A. §9718(a).
According to Defendant, he first teamed R.B.'s true age when her [ather appeared at his door
asking her whereabouts. Shortly thereafter RB. showed up and moved in tor approximately nine
days. Defendant says they lived together as brother and sister; R.B. say s they had sex a lot.
including 0l'a1 sex. The isslle for the jury was entirely one of credibility,
Defendant's argument is that R.B. 's initial lie about her age renders her incredible as a
matter of law about everything e lse. We disagree . It is the core function of a jury to determine
credibilily, espec ially in a he said/she said sce nario; The jury having made its unanimou s
decision, it would be an abuse of discretion fo r the trial court to ovelTule it.
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Amendment or Information
The inJollllation as originally filed accused DefendaJll of various .>cxual offenses with
R.B.. a girl under the age of 16, between JuJy 7 and Augusl2, 2011. One of the clements of these
offenses is the victim's age. A defendant may ri!;e as a defense that he reasonably thought Ihal a
ehild was at leas t 16. 18 Pa, C,S,A. §3102. During the-course of the trial it became appa rent that
the Commonwealth could not establish Defenda.nt 's knowledge of R.B. ' s true age before July 25 ,
20 11, when her fathe r spoke to Defendant. It then moved to amend the infonnation to charge
Defendant on ly with events tilal occurred on or aner July 25, 2011.
Pa, R. Crim, p, 564 provides thnl the :'courl may allow an infonnation to be omended
when there is a defect in .. , Ihe datt! changed, pl'Ovided the infonnation as amended an additional
or different offense", Here. the amcndment obviously brought no new charges and changed 110
elements of anything Defendant was charged with, Sec Commonweal th v. J,F .. 800 A.2d 942(ra. Super 2002). It reduced Ihe time period Ihal he had to defend . Had the (ri.1 proceeded wilh
the original dates in the into rm ation, testimony may have been insufficient to show violations of
18 Pa. C.S.A. §3123(a)(7) before July 25. but it would have been suJlieienl and relevanl to
establish violations of 18 PR_C.S.A. §6318(o.)(l), Unlawful Contact with a Minor. and
§630 I (a)( 1)(i), COITupti on of a Minor.
Defendant argues that he wasprejudieed because he had to prepare a defense for the
period of July 7 to July 25, 20 I I, and then did not have to usc it. This is not the ki nd of prejudice
that wou ld entitle a defendant to relief.
Change of Judges
Next, Defendant argues that he was prejudiced because the motion judge and the trial
judge were not th e same person. We are aware of no rule, stafUte or authority which requires that
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a judge who hears a pretrial motion must then preside over the trial.
If Defendant's purpose on this issue is to usk for reconsideration of Judge TOOlhman 's
order v",cating his earlier order directing R.Il to undergo a psychological examimilion, citing
Commonwealth v. Robinson , 5 A.2d 339 (Pa Super 2010), thal molion is too late and would be
denied even if it were not tn his brief Defendant incorrectly states "Robinson and it 's [sic}
progcny all address thc matter of expert witnesses testifying for the Commonwealth and
bolstering the victim s lsic) testimony and credibility". 1n fact Robinson attempted to call an
"expert in Ole field of human memory, perception and recall" to attack the reliability of the
victim's identi fic;ltion of Robinson. Defendant's argument here is thaI there should be separate
rules for the Commonwealth and Lhe defendant. We decline to accept that argument.
Defendant argues lhal he should have had the benefit of a competency hearing to
ascertain whetb~r R.B. 's memory was tainted by the police, hcr parents and case workers. citing
Conunonwealth v. Delbridge, 855 A.2d 23 (Pa 2003). The Delbridge court considered the
question of whether taint is a subject properly explored in a competenr.;y hearing. It defined
"taint" as the implantation of false memories or distortion of nclltal memories by suggestive
interview techniques. The children in Delbridgc were ages 6 and 4 at the time of the alleged
abuse. The court observed: "The capacity of young children to testify has always been a concern
as their imm3turity can impact their ability to meet the Illlnima1 legal requirement of competency.
Common experience infonns us that children are. by their very essence, fanciful creatures who
have difficulty distinguishing fantasy from reality: who when asked a question want to give the
'right ' answer, the answer that pleases the interrogator; who arc subjeello repeat ideas placed in
their heads by others; and who have limited capacity for accurate memory". So it seems to be
Defendant's argument that R.B .. whom hc says he reasonably thought to be a young woman of
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18. a \voman for whom he bought cigarenes, is making up the part about sex with Defendant
from July 25 to August 2 , 2011. because she wanted to please the interrogators (her parents?
CYS?). This is not a case to cons ider the issue of taint.
Every witness is presumed to be competent. Pa, R. E. 601, Commonwealth v. Do\,vling,
883 A.2d 570 (Pa 2005). 111e burden is on the objecting party to demons!"'te incompetency.
Evidence that a teenage girl lied about her agc is no evidence of incompetency. Defendant was
not entitJed to a competency hearing.
ON A Evidence
Certai n underwear belonging to R.B. was sent to the PSP Crime L3b in Greensburg far
DNA testing. The lab report was dated February 27, 2012. The DA sem to a copy to Defemlam
on March 9, 2012 (whjch was the same dale it was received). By that lime Defendant had
received a commitmen t to funds from the County (see Order of Februn.ry 8, 20 12) for his OW11
DNA from I)efendant as we ll as two ot her males. Tbe Commonwealth ' s experl opined that
Defcndant's DNA in R,B's underwear was likely " non-spenn" DNA.
Defendant comp lains thOl he was forced to waive his Rule 600 rights to a speedy trial in
order to obtain the benetit of the DNA ana lysis. Had he chosen, he could have gone ta tr ial with
no DNA evidence , which as it turned out is essentia lly what happened. What Defcndant seems to
be arguing is that ir the Commonwealth cannot produce a DNA report 10 sufficient time for a
defcnse expert to review it within six months oftilillg the complai nt, then a Defcndant wanted
the benefit of DNA ana lysis, he cannoi now complain thai it takes a long time to get it.
R.R.'s Prior Statements
Next, Defendant agai n argues thai R.B. 's admissions that she had on other oce-asion lied
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about her age and [hen had sex with olher men should have been presented to the jwy. He cites
and quotes Pa. R.E. 404 (a)(2)(i); " In a criminal case, subject to limi tations imposed by statute,
evidence of pertinent Irait of characte r of the a lleged victim is admissible' when offered by the
accused ... .. •·. Dt:fendanl overlooks the phrase, "subject lo limitations imJX>sed by stalute". In
cases like this there js a statute that specifically speaks 10 the situatjou. 18 Pa. e.S.A. §31 O4(a),
the Rape Shield Law. Courts mny simply not pcmlit an exploration ofa sex crime victim 's sexual
history .
Mandatory Sentence
finally. Defc::ndant argues that the len year mandatory sentence for a v iolation of 18 Pa.
C.S.A. §3123(a)(7) is enlel and unusual punishment. 111is issue has been previously presented 10
and rcjected by our Courts_ Commonwealth v_ Chm iel. 610 A.2d 1058 (pa Super 1992), appeal
denied 629 A.2d 1376, cen denied 11'1 S Ct 605, 126 L.Ed.2 569_
There is no basis 10 grant Defendant a new trial.
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IN THE COURT OF COMMON PLEAS OF GREENE COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNS YLV ANIA
vs. Nos. 485, 487, Criminal 2011
LEELAND R. BARNHART,
Defendant.
ORDER
AND NOW, this 12th day OfOciober2012, the Defendant, Leeland Barnhart, having been
convicted by a jury or his peers on May 25, 2012, the Court sentences the Defendant as follows:
At No. 487, Criminal Sessions, 2011, for the charge of Involuntary Deviate Sexual
Intercourse, in violation of Section 3123(a)(7) of the Pennsylvania Crimes Code, the Court
sentences the Defendant to a term of not less than lcn (10) years nor more than twenty (20) years
in the State Correctional System, as required by 42 Pa. C.S.A. §9718(a). For the charge of
Aggravated fndecenl Assault. in violation of Section 3125(a) of the Pennsylvania Cr imes Code,
the Court sentences the Defendant (0 a tel111 of not less than fi ve (5) years nor more than (10)
years, as required by 42 Pa. C.S.A. §9718(a), with this sentence to run concurrent with the
sentence for the viola ti on orJI23(a)(7). For the charge ofStaiutory Sex ual Assault. in violation
of Section 3122.1 of the Pennsylvania Crimes Code. the Court sentences the Defendant to a tenn
of not less than one (1) year nor more than two (2) years, to be served concurrent with his
sentence for violation of Section 3123(a)(7), For the charge o f Unlawful Contact with a Minor, in
violation of Section 6318 of the Pennsylvania Crimes Code, the Court se ntences the Defendant to
a teml afnot less than four (4) years nor more than eight (8) years. with Ihis sentence to run
concurrent with the sentence far the violation of3123(a)(7). For the charge afCorruption of
Minors ofa Sexual Nature, in violation of Section 6301(a)(I)(i) of the Pennsylvania Crimes
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Code. lhc Court sentences the Defcndant to a term of not less than (inC (I) year nor more than
two (2) years. to be served concurrent with his sentence for violation of Section 3123(0)(7). For
the charge of Indecent Assault of a Person under Age 18, in violation of Section J 126(a)(8) of the
Pennsylvania Crimes Code, the Court sentences the Defendant to term of not less than three (3)
.
months nor more than twelve (12) mO!lths, 10 be served concurrent \...·ith his sentence for violation
or Section J J 23(0)(7).
At No. 485, Criminresenttncc rnvestigation to the Department of
Corrections,
The Defendant is now remanded to lhe cuswdy oC the sheri ff pending disposition of his
case a( No. 486 , Criminal Sessions, 2011 .
AHSST: BY THE COURT:
Sherry L. Wise William R. NaHtz
CLERK OF COURTS PRESlDENT JUDGE
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