Com. v. Colbert, T.

CourtSuperior Court of Pennsylvania
DecidedApril 20, 2018
Docket759 MDA 2017
StatusUnpublished

This text of Com. v. Colbert, T. (Com. v. Colbert, T.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Com. v. Colbert, T., (Pa. Ct. App. 2018).

Opinion

J-S09021-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TIMOTHY LYNN COLBERT : : Appellant : No. 759 MDA 2017

Appeal from the Judgment of Sentence March 29, 2017 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005064-2014, CP-67-CR-0007786-2014

BEFORE: GANTMAN, P.J., McLAUGHLIN, J., and PLATT*, J.

MEMORANDUM BY MCLAUGHLIN, J.: FILED APRIL 20, 2018

Timothy Lynn Colbert (“Appellant”) appeals from the March 29, 2017

judgment of sentence. We conclude the Commonwealth presented sufficient

evidence to support the convictions, the verdict was not against the weight

of the evidence, and the trial court did not err in finding the convictions for

certain sex crimes did not merge. However, we vacate the finding that

Appellant was a sexually violent predator (“SVP”) and remand for

proceedings consistent with this memorandum.

Appellant, who was born on January 27, 1964, N.T., 11/9/16, at 92,

was charged at two separate dockets for crimes committed against his step-

daughter, B.F., and his daughter, A.M. The trial court held a consolidated

jury trial.

____________________________________ * Retired Senior Judge assigned to the Superior Court. J-S09021-18

B.F., who was born in November 1997, testified that when she was in

the sixth grade, she had trouble sleeping one night. Appellant was in the

living room and told her to stay with him. Appellant touched her nipple,

breast, and her vagina on the inside of her underwear while in the living

room and in her bedroom after she went upstairs. N.T., 11/7/16, at 77-80.

Appellant left after B.F. told him that she would tell her mother if he did not

stop. Id. at 77. B.F. told her mom about the incident three or four years

later and told the police about one year after she told her mom. Id. at 94-

96.

B.F.’s mother, J.D., testified that sometime in the winter of 2012-

2013, B.F. came to her bedroom, burst into tears, and told her that one

night when she was having trouble sleeping, Appellant had touched her

“behind and . . . . the back of [her] vagina.” Id. at 101-102. Detective Justin

Feeney also testified that B.F. told a forensic interviewer about the incident,

and the details were consistent with her testimony at trial. Id. at 116.

A.M., who was born in August 1998, testified that when she was five

or six years old, when she stayed with Appellant at her uncle’s house,

Appellant undressed her, laid naked behind her, and touched her breast.

N.T., 11/9/16, at 7, 8, 27. When she was 10 to 12 years old, while in her

bedroom at a farmhouse in Seven Valleys, Appellant touched her chest and

her vagina under her clothes on several occasions. Id. at 9-11. Appellant

also touched A.M.’s vagina underneath her clothes when he was driving,

sometimes penetrating her vagina with his fingers. Id. at 11-13. The car

-2- J-S09021-18

was a “bigger car” and the assaults always occurred when they were on a

dirt road that led to the house. Id. at 12. In addition, when A.M. was in the

eighth grade, Appellant came to her room, put his fingers inside her vagina

and had vaginal intercourse with her. Id. at 15. When A.M was in the ninth

grade she told a friend of the events. Id. at 20-21. She told her school

counselor when in the tenth grade. Id. at 22.

A.M. further testified that when the incidents happened, Appellant was

usually drunk, and that he got belligerent and angry when drunk. Id. at 30-

31. Further, when he raped her, Appellant was drunk, knocking things over,

and had difficulty keeping his balance. Id. at 16, 41-42. A.M. also testified

that her stepmother was downstairs or picking up one of her step-siblings

when the assaults happened. Id. at 30.

C.D., A.M.’s friend, testified that A.M. told her that Appellant raped

her. Id. at 57-58. Further, the parties stipulated that if Matthew McGee was

called as a witness he would testify that he was a guidance counselor, that

A.M. disclosed to him that Appellant molested and raped her, and that he

reported the allegations to ChildLine and to A.M.’s mother. Id. at 61.

Deborah Nandor-Levin, a forensic nurse, also testified. Ms. Nandor-

Levin examined A.M. and found no signs of injury. Id. at 75, 81. She further

testified that a normal exam does not mean assault did not happen because:

the nature of the abuse may not have caused injury; the hymen stretches

without injury; and, if an injury occurred, it would have been healed by the

time of the exam, which was two years after the assault. Id. at 81-83. The

-3- J-S09021-18

nurse further testified that it is normal for children to disclose sexual abuse

days or years after the abuse due to embarrassment and fear. Id. at 83-84.

Appellant testified and denied the events. Id. at 99-119.

For the crimes against B.F., the jury found Appellant guilty of

corruption of minors, indecent assault without consent, and indecent

assault-complainant less than 16 years of age.1 For the crimes against A.M.,

the jury found Appellant guilty of statutory sexual assault, sexual assault,

aggravated indecent assault without consent, aggravated indecent assault-

complainant less than 16 years of age, aggravated indecent assault of a

child,2 indecent assault without consent, indecent assault-complainant less

than 13 years of age,3 corruption of minors, and incest.4

On March 29, 2017, for the crimes against B.F., the trial court

sentenced Appellant to nine to 18 months’ incarceration for the corruption of

minors conviction and three to six months’ incarceration for the conviction

for indecent assault without consent.5 For the crimes against A.M., the trial

____________________________________________

1 18 Pa.C.S.A. § 6301(a)(1), 3126(a)(1), and 3126(a)(8), respectively.

2 18 Pa.C.S.A. §§ 3122.1 and 3124.1, 3125(a)(1), 3125(a)(8) and 3125(b), respectively.

3 18 Pa.C.S.A. § 3126(a)(7).

4 18 Pa.C.S.A. § 4302.

5 The trial court merged the conviction for indecent assault-complainant less than 16 years of age for sentencing purposes.

-4- J-S09021-18

court sentenced Appellant to 20 to 40 months’ incarceration for the statutory

sexual assault conviction, 60 to 120 months’ incarceration for the sexual

assault conviction, 48 to 96 months’ incarceration for the conviction for

aggravated indecent assault without consent, 48 to 96 months’ incarceration

for the conviction for aggravated indecent assault-complainant less than 16

years of age, 12 to 24 months’ incarceration for the corruption of minors

conviction, 78 to 156 months’ incarceration for the conviction for aggravated

indecent assault of a minor, and 36 to 72 months’ incarceration for the

incest conviction.6 The trial court ordered all sentences to run consecutive to

each other, for an aggregate sentence of 314 to 628 months’ incarceration.

The trial court further found Appellant to be an SVP. N.T., 3/29/17, at 16.

Appellant filed a post-sentence motion, arguing the trial court awarded

too little credit for time served, the evidence was insufficient to support the

convictions, the verdict was against the weight of the evidence, and the trial

court erred in not merging the convictions for statutory sexual assault and

sexual assault and in not merging the convictions for aggravated indecent

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