Com. v. Dok, S.

J. A17036/19
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
SOPHA DOK, : No. 1700 EDA 2018
:
Appellant :
Appeal from the Judgment of Sentence May 4, 2018
in the Court of Common Pleas of Montgomery County
Criminal Division at No. CP-46-CR-0008835-2016
BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 21, 2019
Sopha Dok appeals from the May 4, 2018 judgment of sentence entered
by the Court of Common Pleas of Montgomery County following his conviction
of rape of a child, statutory sexual assault, endangering the welfare of a child,
and corruption of a minor.1 After careful review, we affirm.
The trial court set forth the following factual and procedural history:
[The victim] was in elementary school, living with her
mother, [J.S.], when [appellant] came to live with
them. [Appellant] and [J.S.] went on to have two
children together. The five of them lived as a family.
The abuse began when [the victim] was a middle
school student. It spanned years and resulted in a
pregnancy when [the victim] was 13 years of age.
[The victim] underwent an abortion in September of
2010, and until November 8, 2016, it remained a
1 18 Pa.C.S.A. §§ 3121(a)(2) and (c), 3122.1(a), 4304(a), and 6301(a)(1),
respectively.
J. A17036/19
secret that the pregnancy was the product of
[appellant’s] abuse. At that time, [the victim]
revealed this secret to her mother. [J.S.] confronted
[appellant] and went to [the] police to report the
sexual abuse. An investigation ensued. [Appellant]
was arrested and charged.
[Appellant] proceeded to a three-day jury trial on
January 22, 2018, at which the following facts were
developed. [The victim] credibly testified that around
the time she was in middle school, when she was 11,
12, and 13, she was sexually abused by [appellant],
her stepdad. [The victim] testified about the first time
she was sexually abused by him. It was at night, while
her two half-siblings were asleep and her mom was at
work working the overnight shift. She recalled that
she was downstairs on the living room couch, and
although her memory of this first incident was dim,
she remembered that [appellant] said something
about his penis being referred to as a squid or
octopus. She remembered being touched
inappropriately, but she did not remember whether it
was under or over her clothes.
[The victim] testified that the sexual abuse occurred
over a long period of time. [Appellant] told [the
victim] that what they were doing was a secret and
that if the secret came out that her mom would be
unable to care for her and her siblings by herself. [The
victim] believed this to be true. When [appellant]
would touch her over her clothes he would touch her
breasts, her buttocks and her vagina. She specifically
recalled a time that [appellant] would not let her go
out with her friends unless she performed oral sex on
him.
[The victim] testified about the time she was in middle
school and had to have an abortion because of the
sexual abuse. [The victim] explained that [appellant]
had raped her, as he did on many occasions. The
victim remembered this happened more than
10 times. [Appellant] never did anything to protect
against pregnancy. [The victim] detailed for the jury
how when she became pregnant in middle school at
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about age 13, by him, he was the one who broke the
news of the pregnancy to her mother. He told [the
victim’s] mother a fictitious story about some boy
from Texas that [the victim] met on the playground
and had sex with. [The victim’s] mother was furious
with her. [The victim] ultimately had an abortion to
terminate the pregnancy.
From that time on, whenever [the victim] and her
mother would have arguments, her mother would call
her a “whore,” and other similar names. These
arguments lasted until November 8, 2016 when [the
victim] finally told her mother what really happened.
Around the time she was pregnant, [the victim]
confided in her best friend, [D.B.], who was also a
13-year-old middle schooler.
During her testimony, [the victim] credibly explained
how all of these memories were difficult and painful to
recall, and that a lot of it was blocked from her
memory. She told the jury how it was difficult to be
in court and testify.
She also described the circumstances that gave rise
to her recantation letter, dated May 1, 2017. At the
time she was living with her grandmother, who
connected her with an attorney. [The victim’s]
grandmother had made it clear before [the victim]
began to live with her that she was going to associate
herself with [appellant] and possibly attempt to keep
him out of trouble. This fact was very hurtful to [the
victim] how her grandmother would not be there for
her when she had been raped.
The letter began, “I [the victim] would like to recant
and dismiss all information previously given to any
authority figure . . . I would not like to proceed any
further with this case, investigation. . . . . .” [The
victim’s] grandmother was present when [the victim]
wrote the letter. Specifically, as to the word
“recant[,”] [The victim’s grandmother looked it up in
the dictionary. [The victim] really did not know what
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the word meant. She did not mean to use that to
mean that what happened was not true.
Also to testify at trial was [J.S.], [the victim’s] mother,
who verified that cover-story that [appellant] told her
about [the victim’s] pregnancy, i.e., that [the victim]
met a boy on the playground and that she brought
him back to the house to have sex with him. It was a
story that did not make sense to her. [J.S.] also
testified about the argument [she] and [the victim]
had that brought out the secret about the abuse.
Next to testify was [D.B.], [the victim’s] best friend in
middle school, [who] verified that [the victim] told her
that it was [appellant] who got her pregnant when
they were in eighth grade.
The defense called on [P.S.], grandmother to
[appellant’s] children, to testify as a character
witness. Through cross-examination the defense
strategy was to challenge [the victim’s] credibility,
and attempt to suggest that [the victim] made up
these allegations. The defense pointed to the
recantation letter and suggested that [the victim]
made up the allegations because it was during an
argument between her and her mother that they came
out.
At the conclusion of the trial, [appellant] was
convicted of the aforementioned charges.[2] He was
sentenced on May 4, 2018 to an aggregate term of 10
to 20 years’ imprisonment. A post-sentence motion
was filed on May 11, 2018, which was never ruled on.
On May 22, 2018, a notice of appeal was filed. A
concise statement of errors complained of on appeal
was ordered and after an extension was granted,
[appellant complied.]
2The Commonwealth brought a total of 146 charges for various sexually based
offenses against appellant. Of those charges, the jury convicted appellant of
one count each of rape of a child, statutory sexual assault, endangering the
welfare of a child, and corruption of a minor. The Commonwealth
nolle prossed the remaining charges.
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Trial court opinion, 11/15/18 at 1-5 (citations to the record and footnote
omitted). The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).
In its opinion, the trial court noted that appellant’s notice of appeal was
filed prematurely, as post-sentence motions were still pending before the trial
court. (See id. at 5 n.1.) Indeed, in cases where a trial court denies an
appellant’s post-sentence motion while an appeal which originated from a
premature notice of appeal is pending, this court will treat the premature
notice of appeal “as having been filed after entry of [an] order denying
post-sentence motions.” Commonwealth v. Ratushny, 17 A.3d 1269,
1271 n.4 (Pa.Super. 2011); see also trial court opinion, 11/15/18 at 5 n.1.
Here, as noted by the trial court, appellant’s post sentence motions were
denied by operation on November 7, 2018, while the instant appeal was still
pending before this court. Accordingly, despite the premature notice of
appeal, this case is now properly before us, and we may review the merits.
Appellant raises the following two issues for our review:
1. Does [a]ppellant’s conviction offend due
process pursuant to the holding in
Commonwealth v. Devlin, 333 A.2d 888 (Pa.
1975)[,] requiring the vacation of the judgment
of [appellant’s] sentence?
2. Was the evidence insufficient as a matter of law
for the jury to convict [appellant] of Count 11
Rape of a Child (F1) 18 Pa.C.S.[A.] § 3121(a)(2)
and (c)?
Appellant’s brief at 2.
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In his first issue on appeal, appellant contends that the trial court erred
when it denied appellant’s motion for judgment of acquittal on the grounds
that the Commonwealth failed to amend the bills of information to reflect the
dates of the offenses proven at trial, thereby violating his right to due process.
(Appellant’s brief at 21.) The Commonwealth argues that it “proved the dates
of abuse with sufficient specificity to satisfy due process,” and that appellant
is not entitled to relief. (Commonwealth’s brief at 7.)
As this court has previously noted, “[a] motion for judgment of acquittal
challenges the sufficiency of the evidence to sustain a conviction on a
particular charge, and is granted only in cases in which the Commonwealth
has failed to carry its burden regarding that charge.” Commonwealth v.
Emanuel, 86 A.3d 892, 894 (Pa.Super. 2014), appeal denied, 95 A.3d 276(Pa. 2014), quoting Commonwealth v. Foster, 33 A.3d 632, 634-635
(Pa.Super. 2011).
In his argument, appellant relies upon our supreme court’s decision in
Devlin, supra. In Devlin, the Commonwealth charged the defendant with
sodomy, alleging that the crime took place sometime between February of
1971 and April of 1972.3 Id. at 889. The defendant was convicted of sodomy
and our supreme court reversed the judgment of sentence, holding that the
prospect of defending a “charge of conduct occurring anywhere within a
3The victim was a 22-year-old man with intellectual disabilities who had the
mental capacity of a first or second grade child and the emotional capacity of
an even younger child. Id. at 889.
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fourteen-month period was . . . a fundamentally unfair burden.” Id. at 891
(footnote omitted). The court recognized that while the Commonwealth
established that the crime was committed within the statutory period of
limitations, “the date of the commission of the offense must be ‘fixed with
reasonable certainty.’” Id. at 890, citing Commonwealth v. Levy, 23 A.2d
97 (Pa.Super. 1941). Accordingly, the court concluded that the
Commonwealth’s 14-month time frame for the commission of the crime failed
to meet the “‘sufficient particularity standard of Levy,” and to “hold otherwise
would violate the notions of fundamental fairness embedded in our legal
process.” Id. at 890-891.
As noted by the Commonwealth, however, this court has stated the
following regarding Devlin claims involving child victims:
We conclude that for purposes of a Devlin claim, the
Commonwealth must be allowed a reasonable
measure of flexibility when faced with the special
difficulties involved in ascertaining the date of an
assault upon a young child. See Commonwealth v.
Fanelli, [547 A.2d 1201, 1203 (Pa.Super. 1988)
(en banc)]; Commonwealth v. Niemitz, [] 422
A.2d 1369 ([Pa.Super.] 1980). On the other hand, in
order to ensure a fair trial for the defendant, the
Commonwealth should conduct a thorough
examination and come forward with any evidence
which indicates when the alleged crime is most likely
to have taken place.
Commonwealth v. Groff, 548 A.2d 1237, 1241 (Pa.Super. 1988). This court
has stated that:
“the Commonwealth must be afforded broad latitude
when attempting to fix the date of offenses which
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involve a continuous course of criminal conduct.”
Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990
(Pa.Super. 2007) (quoting Commonwealth v. Groff,
[] 548 A.2d 1237, 1242 ([Pa.Super.] 1988)). This is
especially true when the case involves sexual offenses
against a child victim. Id.Commonwealth v. Brooks, 7 A.3d 852, 858 (Pa.Super. 2010), appeal
denied, 21 A.3d 1189 (Pa. 2011).
We have further stated that,
“due process is not reducible to a mathematical
formula,” and the Commonwealth does not always
need to prove a specific date of an alleged crime.
[Devlin, 333 A.2d at 892.] . . . Permissible leeway
regarding the date provided varies with, inter alia,
the nature of the crime and the rights of the accused.
See Pa.R.Crim.P. 560(B)(3), stating that it shall be
sufficient for the Commonwealth to provide in the
information, if the precise date of an offense is not
known, an allegation that the offense was committed
on or about any date within the period fixed by the
statute of limitations.
Commonwealth v. Riggle, 119 A.3d 1058, 1069-1070 (Pa.Super. 2015),
quoting Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa.Super. 2006),
appeal denied, 961 A.2d 858 (Pa. 2008).
Here, the Commonwealth alleged that appellant committed the offenses
for which he was charged “on or about Monday, January 1, 2007,” which falls
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within the statute of limitations.4 As noted by the trial court, “[t]he facts
developed at trial put the abuse spanning from 2008 to 2010[.]” (Trial court
opinion, 11/15/18 at 22.) Accordingly, because this case involved a child
victim where the precise dates of the offenses were not known, we find that
pursuant to our case law, the Commonwealth met its burden in establishing
the dates of the offenses. We further find that appellant’s due process rights
were not violated, and his first issue is, therefore, without merit.
In his second issue, appellant argues that the Commonwealth failed to
present sufficient evidence to warrant a conviction of rape of a child.
Specifically, appellant avers that the Commonwealth failed to prove beyond a
reasonable doubt that appellant engaged in either oral sex or vaginal
intercourse with C.S. when she was 12 years of age or younger. (Appellant’s
brief at 37.) The Commonwealth contends that appellant waived this issue on
appeal because he failed to include it in his Rule 1925(b) statement of errors
complained of on appeal. (Commonwealth’s brief at 14-15.) In his argument,
appellant relies upon our supreme court’s decision in Commonwealth v.
Silver, 452 A.2d 1328, 1333 (Pa. 1982), in which our supreme court described
Rule 1925(b)’s waiver provision as “clearly discretionary,” stating that waiver
4The statute of limitations requires that prosecution for major sexual offenses
commence within 12 years of the time the act is alleged to have been
committed. 42 Pa.C.S.A. § 5552(b.1). Moreover, the statute of limitations in
cases in which sexually based offenses are alleged to have been committed
against a minor is the date the minor reaches 50 years of age. 42 Pa.C.S.A.
§ 5552(c)(3).
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is only properly invoked, “where . . . omission from a statement of issues
raised on appeal defeats effective appellate review.” (See appellant’s reply
brief at 9.)
Appellant’s reliance on Silver is misplaced. The Pennsylvania Rules of
Appellate Procedure state that issues not raised in a Rule 1925(b) statement
are waived. Pa.R.A.P. 1925(b)(4)(vii). Indeed, our supreme court has also
stated that, “[a]ny issues not raised in a 1925(b) statement will be deemed
waived.” Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see also
Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005). Moreover,
Pennsylvania courts have consistently held that for sufficiency of the evidence
challenges, an appellant’s Rule 1925(b) statement “needs to specify the
element or elements upon which the evidence was insufficient.”
Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.Super. 2015), quoting
Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008)
(citation omitted). Failure to do so results in waiver of the issue on appeal.
Id.Here, appellant admits that he did not include a sufficiency of the
evidence issue in his Rule 1925(b) statement. (Appellant’s reply brief at 9.)
Accordingly, appellant’s sufficiency of the evidence issue is waived on appeal.
Judgment of sentence affirmed.
Panella, P.J. joins this Memorandum.
Olson, J. concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/21/19
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