Com. v. Kilgus, B.

• Court: Superior Court of Pennsylvania
• Decided: October 22, 2021
• Docket: 1025 MDA 2020
• Status: Unpublished

Opinion

J-S22012-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRENT JAMES KILGUS : : Appellant : No. 1025 MDA 2020

Appeal from the Judgment of Sentence Entered July 8, 2020 In the Court of Common Pleas of Montour County Criminal Division at No(s): CP-47-CR-0000135-2018

BEFORE: PANELLA, P.J., McCAFFERY, J., and PELLEGRINI, J.*

MEMORANDUM BY PANELLA, P.J.: FILED: OCTOBER 22, 2021

Brent James Kilgus (“Appellant”) appeals from the judgment of sentence

entered in the Montour County Court of Common Pleas on July 8, 2020.

Additionally, Appellant’s court-appointed counsel seeks to withdraw pursuant

to Anders v. California, 386 U.S. 738 (1967). We affirm the judgment of

sentence and grant counsel permission to withdraw.

Appellant was charged with various crimes arising from allegations that

he had, over a year-long period, sexually assaulted a family member who was

under the age of nine at the relevant times. On February 12, 2020, a jury

found Appellant guilty of rape of a child, statutory sexual assault, aggravated

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* Retired Senior Judge assigned to the Superior Court. J-S22012-21

indecent assault of a child, corruption of minors, and indecent assault of a

child.1

On July 8, 2020, Appellant was sentenced to 120 to 240 months’

incarceration, plus three years’ probation for rape of a child, 60 to 120 months’

incarceration for aggravated indecent assault, 12 to 24 months’ incarceration

for corruption of minors, and 9 to 18 months’ incarceration for indecent assault

of a child. The count for statutory sexual assault merged with the count for

rape of child for purposes of sentencing.

On August 6, 2020, Appellant filed a pro se notice of appeal. As we found

private counsel was still listed as attorney of record, we docketed counsel as

appellate counsel and issued a docketing statement to complete pursuant to

Pa.R.A.P. 3517 and requested a concise statement be filed pursuant to

Pa.R.A.P. 1925(b).

On August 27, 2020, Appellant filed a pro se concise statement, in which

he raised the following issues: (1) the victim did not testify in the courtroom

but rather over video, (2) there was no proof of penetration provided during

trial, and (3) a doctor’s report that had been made regarding Appellant had

not been provided during trial.

1 18 Pa.C.S.A. § 3121(c), 18 Pa.C.S.A. § 3122.1(b), 18 Pa.C.S.A. § 3125(a)(7), 18 Pa.C.S.A. § 6301(a)(1)(ii), and 18 Pa.C.S.A. § 3126(a)(7), respectively.

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On September 3, 2020, we entered an order finding Appellant had failed

to file a timely docketing statement, and directing a docketing statement be

filed by October 5, 2020. Again, service of this request was made on counsel

of record.

On October 20, 2020, due to counsel’s continued failure to file a

docketing statement on behalf of Appellant, we remanded to the trial court for

a determination of abandonment. An abandonment hearing was held on

November 12, 2020, during which trial counsel testified that he had informed

Appellant that he did not believe there were grounds for an appeal and

Appellant never directed him to file an appeal. Trial counsel testified that he

did not hear back from Appellant and only later found out that Appellant had

filed the pro se notice of appeal. The trial court found trial counsel’s testimony

credible and found there had been no abandonment. However, since Appellant

was unable to continue to retain private counsel, the trial court appointed a

public defender to represent Appellant on appeal.

Conflict counsel was subsequently appointed and filed a docketing

statement on Appellant’s behalf. Counsel later filed an Anders brief. On March

11, 2021, we entered an order striking the Anders brief based on counsel’s

failure to file an application to withdraw as counsel. We directed counsel to

file either an advocate’s brief or an application to withdraw along with an

Anders brief that complied with all of the procedural and substantive

requirements of Anders.

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Counsel proceeded to file a petition to withdraw and an accompanying

Anders brief. However, after review, we found the brief failed to comply with

the procedural requirements of Anders, as the summary of the factual and

procedural history did not contain citation to the record and counsel did not

provide any argument or pertinent authority related to the issues. We

therefore entered another order striking the Anders brief and directed counsel

again to file a brief that complies with the requirements of Anders.

Counsel subsequently filed the instant Anders brief and re-filed his

petition to withdraw.

We turn first to counsel’s petition to withdraw. To withdraw pursuant to

Anders, counsel must:

1) petition the court for leave to withdraw stating that, after making a conscientious examination of the record, counsel has determined that the appeal would be frivolous; 2) furnish a copy of the [Anders] brief to the [appellant]; and 3) advise the [appellant] that he or she has the right to retain private counsel or raise additional arguments that the [appellant] deems worthy of the court’s attention.

Commonwealth v. Cartrette, 83 A.3d 1030, 1032 (Pa. Super. 2013) (en

banc) (citation omitted). With respect to the third requirement of Anders,

that counsel inform the appellant of his or her rights in light of counsel’s

withdrawal, this Court has held that counsel must “attach to their petition to

withdraw a copy of the letter sent to their client advising him or her of their

rights.” Commonwealth v. Millisock, 873 A.2d 748, 752 (Pa. Super. 2005).

An Anders brief must comply with the following requirements:

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(1) provide a summary of the procedural history and facts, with citations to the record; (2) refer to anything in the record that counsel believes arguably supports the appeal; (3) set forth counsel’s conclusion that the appeal is frivolous; and (4) state counsel’s reasons for concluding that the appeal is frivolous. Counsel should articulate the relevant facts of record, controlling case law, and/or statutes on point that have led to the conclusion that the appeal is frivolous.

Commonwealth v. Santiago, 978 A.2d 349, 361 (Pa. 2009). “[I]f counsel’s

petition and brief satisfy Anders, we will then undertake our own review of

the appeal to determine if it is wholly frivolous.” Commonwealth v. Wrecks,

931 A.2d 717, 721 (Pa. Super. 2007) (brackets added, citation omitted).

We find counsel has complied with the preliminary requirements set

forth in Anders. Counsel filed a petition to withdraw, certifying he has

reviewed the case and determined Appellant’s appeal is frivolous. Further,

counsel attached to his petition a copy of his letter to Appellant advising him

of his rights. Counsel also filed a brief, which includes a summary of the history

and facts of the case, with citation to the record, potential issues that could

be raised by Appellant, and his assessment of why those issues are meritless.

Counsel has thus complied with the requirements of Anders.2 As of this date,

2 We note that counsel met the bare minimum requirements of Anders in order to move forward with our review. As this is counsel’s third attempt at a compliant Anders brief, the circumstances are somewhat troubling. Although the brief does include a few instances of citation to legal authority, the citations are admittedly sparse. Similarly, while the brief includes an argument section, the part devoted to facts in support of Appellant’s issues, or at the very least supporting a neutral take on Appellant’s issues, is also limited. However, the brief is sufficient to allow us to review the issues Appellant wished to raise.

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Appellant has not filed a response. We proceed to review the issues outlined

in the Anders brief.

In his first issue, Appellant argues the trial court erred in allowing the

minor victim to testify by video rather than in the courtroom. Section 5985 of

the Judicial Code governs testimony by a contemporaneous alternative

method:

(a) Contemporaneous alternative method.—Subject to subsection (a.1), in any prosecution or adjudication involving a child victim [ ], the court may order that the testimony of the child victim [ ] be taken under oath or affirmation in a room other than the courtroom and transmitted by a contemporaneous alternative method. Only the attorneys for the defendant and for the Commonwealth, the court reporter, the judge, persons necessary to operate the equipment and any person whose presence would contribute to the welfare and well-being of the child victim [ ], including persons designated under section 5983 (relating to rights and services), may be present in the room with the child during his testimony. The court shall permit the defendant to observe and hear the testimony of the child victim [ ] but shall ensure that the child cannot hear or see the defendant. The court shall make certain that the defendant and defense counsel have adequate opportunity to communicate for the purposes of providing an effective defense. Examination and cross- examination of the child victim [ ] shall proceed in the same manner as normally permitted.

(a.1) Determination.—Before the court orders the child victim [ ] to testify by a contemporaneous alternative method, the court must determine, based on evidence presented to it, that testifying either in an open forum in the presence and full view of the finder of fact or in the defendant's presence will result in the child victim [ ] suffering serious emotional distress that would substantially impair the child victim's [ ] ability to reasonably communicate. In making this determination, the court may do all of the following:

(1) Observe and question the child victim [ ], either inside or outside the courtroom.

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(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim [ ] in a medical or therapeutic setting.

42 Pa.C.S.A. § 5985(a), (a.1).

We have previously noted that “[f]ew published decisions address §

5985, and those that do have not announced a standard for reviewing the trial

court's decision.” Commonwealth v. Hudson-Greenly, 247 A.3d 21, 25 (Pa.

Super. 2021) (citing Commonwealth v. Tyrrell, 177 A.3d 947, 952 (Pa.

Super. 2018)). In line with these other cases, we will employ the principles of

statutory construction to determine whether the Commonwealth complied

with the explicit terms of Section 5985. See id.; see also Commonwealth

v. Torres–Kuilan, 156 A.3d 1229, 1231-32 (Pa. Super. 2017).

Preliminarily, we note Appellant failed to raise an objection to the

contemporaneous hearing at any point during the hearing or during trial.

Because the issue was not preserved with a timely objection, it is waived. See

Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and cannot

be raised for the first time on appeal). In fact, Appellant not only failed to

raise an objection to the contemporaneous hearing, but also acquiesced,

through counsel, to the victim/witness coordinator sitting next to the victim

during the video testimony when the victim found it difficult to testify even

under the alternative circumstances. See N.T., 2/11/2020, at 39-40.

However, even if not waived, we find the issue is without merit.

Following a careful review of the record, we find no error on the part of the

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trial court in permitting the victim to testify via video, as the Commonwealth

met its burden pursuant to Section 5985.

A hearing was held on February 6, 2020, to determine whether the

victim should be permitted to testify via a contemporaneous alternative

method. At the hearing, the Commonwealth presented the expert testimony

of Sarah Jefferson, a licensed clinical social worker who works specifically with

children and adults who have experienced trauma. See N.T., 2/6/2020, at 28-

33. Jefferson testified that she completed a screening on the victim, and that

the victim’s results from that screening were significant for anger, post-

traumatic stress and dissociation, which likely would impact her ability to

testify in front of the jury and Appellant, and would compound her trauma and

lead to a heightened fear response. See id. at 33-41.

Based on the foregoing, the trial court did not err in crediting Jefferson’s

testimony and thereby concluding the “testimony by the alleged victim in full

view of the Finder of Fact or the [appellant’s] presence will result in her

suffering serious emotional distress that would substantially impair her ability

to reasonably communicate.” Id. at 43; see also Order of Court, 2/7/2020.

The trial court based its decision on what it heard from the victim’s therapist

as it was required to do under Section 5985. Such testimony supports a finding

that Appellant's presence would have caused serious emotional distress and

impaired the victim's ability to communicate in the courtroom. Accordingly,

this issue is without merit.

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Next, Appellant argues there was no proof of penetration provided at

trial. We construe such an argument to be a challenge to the sufficiency of the

evidence.

We review such claims through a deferential lens:

We review claims regarding the sufficiency of the evidence by considering whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact— while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder.

Commonwealth v. Miller, 172 A.3d 632, 640 (Pa. Super. 2017) (citations

omitted).

A person is guilty of rape of a child, “when the person engages in sexual

intercourse with a complainant who is less than 13 years of age.” 18 Pa.C.S.A.

§ 3121(c). Likewise, in relevant part, a person is guilty of involuntary statutory

sexual assault “when that person engages in sexual intercourse with a

complainant under the age of 16 years ...” 18 Pa.C.S.A. § 3122.1(b). Sexual

intercourse is defined as “intercourse per os or per anus, with some

penetration however slight; emission is not required.” 18 Pa.C.S.A. § 3101.

Finally, a person is guilty of aggravated indecent assault of a child when that

person “engages in penetration, however slight, of the genitals … of a

complainant.” 18 Pa.C.S.A. § 3125(a)(7).

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The Commonwealth was not required to present any forensic evidence

or physical evidence of penetration. See Commonwealth v. Gibson, 951

A.2d 1110, 1140 (2008) (there is no constitutional requirement for the police

to conduct a forensic analysis of evidence). Like any element of an offense,

penetration can be proven with circumstantial evidence. See

Commonwealth v. Wall, 953 A.2d 581, 584 (Pa. Super. 2008).

It is well-established in Pennsylvania that “the uncorroborated

testimony of the complaining witness is sufficient to convict a defendant of

sexual offenses.” Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super.

1999); see also Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa. 1992)

(the testimony of child victim alone is sufficient to support conviction for sex

offenses).

Here, the record evidence contradicts Appellant's bald claim that no

evidence of penetration was presented. Rather, the victim unequivocally

testified that on more than one occasion, Appellant penetrated her vagina with

his penis, tongue, and finger. See N.T., 2/11/2020, at 50-52. Therefore, there

was sufficient evidence for the jury to find the element of penetration.

Finally, Appellant argues that it was an error for a report created by Dr.

Gerald Cooke, Ph.D., a forensic psychologist, to not be provided on his behalf

at trial. To the extent Appellant is challenging the trial court’s decision to not

consider the report, we find the record is devoid of any attempt to admit the

report into evidence for trial and therefore find that claim is waived. See

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Pa.R.A.P. 302. If, on the other hand, Appellant is claiming ineffective

assistance of trial counsel for not presenting this report on his behalf, such a

claim is properly preserved for collateral review.

“Our Supreme Court has made clear that ineffectiveness claims are not

to be raised in the first instance on direct appeal but must await collateral

review.” Commonwealth v. Crosby, 844 A.2d 1271, 1271-1272 (Pa. Super.

2004) (citation omitted). An exception is made where the trial court has held

a hearing on a claim of trial counsel ineffectiveness and the record has been

fully developed on that issue. In that case, the Supreme Court has held it is

appropriate for this Court to review an ineffectiveness claim on direct appeal.

See id. at 1272.

Here, the trial court has not held a hearing on the issue and the record

has not been developed at all on this issue. Therefore, we do not have a record

upon which we can review an ineffectiveness claim.3 Accordingly, to the extent

3 Notably, the report itself is absent from the certified record, although a copy

of it is included in the reproduced record. Normally, we would fault Appellant for this omission, having not met his burden to ensure the certified record contains all items necessary to review his claims. See Commonwealth v. Tucker, 143 A.3d 955, 963 (Pa. Super. 2016). However, as we are tasked with deciding counsel's request to withdraw, we would consider the interplay between the omission of the report and counsel’s request. See Commonwealth v. Wrecks, 931 A.2d 717, 723 (Pa. Super. 2007). Due to our disposition - namely, that there is no record evidence that the report was presented to the court for review and that an ineffectiveness claim is not ripe for our review - we do not find the absence of the report hampers our review of this issue.

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Appellant is claiming trial counsel ineffectiveness, it is not properly before this

Court in this procedural posture.

Having reviewed the issues raised in counsel’s Anders brief, and after

conducting our own independent review of the record, we agree with counsel

that the within appeal is wholly frivolous.4 As such, we affirm the judgment of

sentence and grant counsel leave to withdraw.

Judgement of sentence affirmed. Petition for leave to withdraw granted.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/22/2021

4 We note our independent review of the record did not reveal any additional

non-frivolous issues for appeal.

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