Com. v. Lee, D.

Opinion

J-S24029-18 & J-S24030-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

DONOVON NEAL LEE, :

:

Appellant : No. 1526 MDA 2017

Appeal from the Judgment of Sentence, May 24, 2017, in the Court of Common Pleas of Franklin County, Criminal Division at No(s): CP-28-CR-0000474-2015.

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA

:

v. :

:

:

DONOVON NEAL LEE, :

:

Appellant : No. 1527 MDA 2017

Appeal from the Judgment of Sentence, May 24, 2017, in the Court of Common Pleas of Franklin County, Criminal Division at No(s): CP-28-CR-0000475-2015.

BEFORE: OLSON, J., KUNSELMAN, J., and MUSMANNO, J. MEMORANDUM BY KUNSELMAN, J.: FILED JULY 17, 2018 Donovan Neal Lee appeals from the judgment of sentence entered following his convictions for indecent assault1 and corruption of a minor.2 Lee

contends that the trial court erred in denying his claim that the verdict was

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1 18 Pa.C.S.A. § 3126. 2 18 Pa.C.S.A. § 6301(a)(1)(ii).

J-S24029-18 & J-S24030-18

against the weight of the evidence. Upon review, we affirm the trial court’s decision, but vacate that portion of Lee’s sentence designating him a sexually violent predator (SVP).

Lee’s convictions resulted from acts he perpetrated on two of his female relatives. Lee is C.M.’s uncle. When C.M. was three or four years old, Lee began sexually assaulting her. This continued until C.M. was in fourth or fifth grade. Her family did not learn of Lee’s actions until C.M. was almost twelve.

Lee is W.B.’s cousin. When W.B. was five years old, Lee sexually assaulted W.B. This incident, which was discovered immediately, occurred around the same time that it was discovered that Lee had been sexually assaulting C.M.

The incidents with both girls were investigated and charges filed against Lee under Docket Nos. CP-28-CR-0000474-2015 and CP-28-CR-0000475- 2015 respectively. By order of court, C.M. and W.B.’s cases were tried together before a jury on December 5 and 6, 2016. The trial court aptly summarized the testimony and evidence presented at trial in its September 8, 2017 Opinion, which we incorporate as though fully set forth herein.

The jury found Lee guilty of one count of indecent assault and one count of corruption of a minor at docket number 474-2015 for offenses committed against his niece, C.M. Additionally, the jury found Lee guilty of one count of indecent assault and one count of corruption of a minor at docket number 475-2015 for offenses committed against his cousin, W.B. After an

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evidentiary hearing, Lee was determined to be a sexually violent predator. He was sentenced to an aggregate period of incarceration of 25 years to 50 years. The trial court entered a sentencing order at each docket number. Lee filed post-sentence motions claiming that the verdicts were against the weight of the evidence. By Order dated September 8, 2018, the trial court denied Lee’s post-sentence motions. These appeals followed.3 Both Lee and the trial court complied with Pa.R.A.P. 1925.

Lee raises the following issues:

I. The verdict issued by the jury is against the weight of the evidence produced at trial and the verdict should be overturned and an order for a new trial should be issued.

A. The only direct evidence of [Lee’s] alleged abuse of his niece [C.M.] (Docket 474-2015) is her own testimony which was in conflict of [Lee’s] testimony and the testimony of his mother, Joyce Lee.

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3 In filing his appeals in these cases, Lee filed an original notice of appeal signed in blue ink bearing both lower court docket numbers with “475” highlighted in the caption at trial court docket number 475-2015, and subsequently docketed in this Court at No. 1527 MDA 2017. The notice was then photocopied and filed at trial court docket No. 474-2015, with “474” highlighted in the caption, and subsequently docketed in this Court at No. 1526 MDA 2017.

The notices of appeal filed in these cases were technically not in compliance with the rules since one was merely a copy and each notice contained both docket numbers instead of just the respective, applicable number. Nonetheless, we will accept them as sufficient to satisfy the requirements of Pa.R.A.P. 341. A notice was filed with the applicable case number highlighted at each respective trial court docket number. Cf. Commonwealth v. Walker, 2018 WL 2448643 (Pa. 2018) (holding separate notices of appeal must be filed when convictions arise from separate dockets, effective prospectively from June 1, 2018).

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B. The only direct evidence of [Lee’s] alleged abuse of his [cousin] [W.B.] (Docket 475-2015) is her own testimony which was in conflict of [Lee’s] testimony and the testimony of his mother, Joyce Lee and his brother, Duncan Lee.

II. Did the court err by denying [Lee’s] request for a new trial because the jury verdict of guilt[y] was against the weight of the evidence?

See Lee’s Brief at 13.

Lee argues that C.M.’s testimony was not very detailed and was inconsistent. Moreover, the claimed abuse was not reported until three years later. Regarding the evidence in the case involving W.B., Lee argues that the testimony offered by different witnesses was inconsistent and the information conveyed about the circumstances of the incident varied at different points in time. Moreover, Lee claims that W.B.’s mother had motive to fabricate these allegations of abuse. For these reasons, Lee contends his convictions were against the weight of the evidence. We disagree.

When reviewing a challenge to the weight of the evidence, our standard of review is as follows:

The essence of appellate review for a weight claim appears to lie in ensuring that the trial court's decision has record support.

Where the record adequately supports the trial court, the trial court has acted within the limits of its discretion.

***

A motion for a new trial based on a claim that the verdict is against the weight of the evidence is addressed to the discretion of the trial court. A new trial should not be granted because of a mere conflict in the testimony or because the judge on the same facts would have arrived at a different conclusion. Rather, the role of the trial judge is to determine that notwithstanding all the facts,

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certain facts are so clearly of greater weight that to ignore them or to give them equal weight with all the facts is to deny justice.

***

An appellate court's standard of review when presented with a weight of the evidence claim is distinct from the standard of review applied by the trial court. 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.

Commonwealth v. Clay, 64 A.3d 1049, 1054–55 (Pa. 2013) (citations omitted) (emphasis added). Absent an abuse of discretion, the trial court’s decision will not be disturbed. See Commonwealth v. Griffin, 515 A.2d 865, 869 (Pa. 1986). An abuse of discretion “is not merely an error in judgment. Rather, it involves bias, partiality, prejudice, ill-will, manifest unreasonableness or a misapplication of the law.” Commonwealth v. West, 937 A.2d 516, 521 (Pa. Super. 2007) (citation omitted). By contrast, a proper exercise of discretion “conforms to the law and is based on the facts of record.” Id.

In denying Lee’s motion, the trial court assessed all of the evidence presented in this matter. See Trial Court Opinion, 9/18/17, at 4-14. Lee, in arguing his motion, only gave credence to his testimony and those that testified on his behalf, his mother and brother, and completely discounted the testimony of the victim’s despite the existence of corroborating evidence. The trial court explained:

Upon review of the evidence presented at trial, we cannot find that the jury’s verdict was against the weight of the evidence.

Both children were consistent in their reports to the adults

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involved. C.M.’s testimony was consistent with her report to her aunt and to Voss [a forensic interviewer]. W.B.’s immediate report to her mother was consistent with what she told Thomas [her father’s brother] and then Voss during the CAC [Children’s Advocacy Center] interview. The children both used ageappropriate language and descriptions in relating what [Lee] did to them. W.B.’s report was supported by DNA evidence.

[Lee] had a significant interest in the outcome of the trial and the jury was free to consider that interest in weighing his testimony.

[Lee’s] suggestion that Alicia [W.B.’s mother] put W.B. through the trauma of a sexual assault examination, CAC interview, and trial because she was upset that the [Lee] did not want to engage in a sexual relationship with her was clearly rejected by the jury.

There was no motive suggested for C.M. to fabricate the allegations she made other than ‘she’s a liar.’ While neither Joyce Lee nor Duncan Lee ever saw [Lee] alone with C.M., it should go without saying that if the child and [Lee] were alone, neither Joyce nor Duncan Lee were there. Their lack of observation of [Lee] in the act of assaulting C.M. does not disprove the child’s allegations.

Trial Court Opinion, 9/18/17, at 4-14. Consequently, the trial court concluded that “[w]e cannot say that the jury’s verdict is so contrary to the evidence so as to shock our sense of justice.” Id. at 15.

In view of the trial court’s thorough review of the record and rationale for denying Lee’s post-sentence motion, we conclude that the trial court properly exercised its discretion in denying Lee’s weight challenge. The parties are directed to attach a copy of that opinion in the event of further proceedings.

Before concluding our analysis, however, we raise sua sponte, the legality of Lee’s designation as a sexually violent predator (SVP). See generally, Commonwealth v. Muhammed, 992 A.2d 897 (Pa. Super.

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2010). Regarding the process for designating a convicted criminal defendant an SVP, this Court has summarized:

In [Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)], our Supreme Court held that the registration requirements under SORNA constitute criminal punishment. [Id.] at 1218. In light of Muniz, this Court determined: “[Under Apprendi [v. New Jersey, 530 U.S. 466 (2000)] and Alleyne [v. United States, 570 U.S. 99, (2013)], a factual finding, such as whether a defendant has a mental abnormality or personality disorder that makes him . . .

likely to engage in predatory sexually violent offenses, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder.”

Commonwealth v. Butler, 173 A.3d 1212, 1217 (Pa.

Super. 2017) (internal quotations and citations omitted).

The Butler Court further held “section 9799.24(e)(3) of SORNA violates the federal and state constitutions because it increases the criminal penalty to which a defendant is exposed without the chosen fact-finder making the necessary factual findings beyond a reasonable doubt.” Id.

at 1218. The Court therefore concluded that trial courts no longer can designate convicted defendants as SVPs or hold SVP hearings “until our General Assembly enacts a constitutional designation mechanism.” Id. The Butler Court directed trial courts to apply only the applicable tierbased registration period, as those periods apply based on the conviction itself, and not due to any additional fact not found, under SORNA’s procedures, by the fact-finder. The Court ultimately reversed the order finding the defendant to be an SVP and remanded to the trial court for the sole purpose of issuing appropriate notice of the defendant’s tierbased registration period. Id.

Commonwealth v. Golson, 2018 WL 2473514 at *7 (Pa. Super. 2018).

Here, Lee was designated an SVP on May 24, 2017. While this appeal was pending, our Supreme Court decided Muniz on July 19, 2017, and this Court decided Butler on October 31, 2017. In light of the holdings of Muniz

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and Butler, as summarized above in Golson, Lee’s SVP status constitutes and illegal sentence. Thus, we are constrained to vacate that portion of Lee’s sentence designating him to be an SVP and remand to the trial court to issue a revised notice to Lee pursuant to 42 Pa.C.S.A. § 9799.23 (governing reporting requirements for sex offenders).

Judgment of sentence affirmed in part, SVP designation vacated. Case remanded with instructions. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 07/17/2018

Circulated 06/06/2018 11:47 AM

IN THE COURT OF COMMON PLEAS OF THE 39TH JUDICIAL DISTRICT -

OF PENNSYLVANIA FRANKLIN COUNTY BRANCH

Commonwealth of Pennsylvania CP-28-CR-474-20I5 CP-28-CR-475-2015

v.

Donovon Neal Lee Angela R. Krom, Judge OPINION

Before the Court is the Post Sentence Motion ("Motion)" filed by the defendant on June 1, 2017. Defendant's Motion seeks a new trial and argues that the jury's verdict was against the weight of the evidence. For the reasons that follow, we find the jury's verdict consistent with the weight of the evidence. Accordingly, Defendant's Motion will be denied.

STATEMENT OF THE CASE

After trial by jury held December 5 and 6, 2016, the defendant was found guilty of one count f indecent assault, a felony of the third degree pursuant to 18 Pa.C.S. §3126(a)(7)(ii),I

18 Pa.C.S. §3126 provides: (a) A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and:

(1) the person does so without the complainant's consent (2) the person does so by forcible compulsion;

(3) the person does so by threat of forcible compulsion that would prevent resistance by a person of reasonable resolution:

(4) the complainant is unconscious or the person knows that the complainant is unaware that the indecent contact is occurring;

(5) the person has substantially impaired the complainant's power to appraise or control his or her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants or other means for the purpose of .preventing resistance:

(6) the complainant suffers from a mental disability which renders the complainant incapable of consent:

(7) the complainant is less than 13 years .of age; or (8) the complainant is less than 16 years of age and the person is four or more years older than the complainant and the complainant and the person are not married to each other.

(b) Grading.7=Indecent assault shall be 2raded: as follows:

( offense under. subsection. (a)(1) or (8) is a misdemeanor of the second degree.

(2) An offense Under subsettiori (a)(2), (3), (4).:(5) or (6) is a Misdemeanor of the first degree.

and. one count of corruption of Minor, also a felony of the.. third degree pursuant 0..18 Pa.C.S

§6301(a)(I )(ii),2 at docket number c.Pi,28CR-474-201.5 for offenses committed against his young niece, C. M. The defendant was also found guilty of one count of indecent assault, misdemeanor of the first degree, and one cOunt of con-uption of minori also a misdemeanor of the first degree, at case number CP-28-CR475-2015, for offenses committed against his young:

:second cousin, W. B.3 Pursuant to 42 Pa.C.S. §9799.24, the defendant was ordered to undergo a

sexual offender assessment to determine if he met the statutory criteria of a sexually violent.

predator.

On May 24, 2017, after evidentiary hearing, the defendant was determined a sexually

Violent predator. He was subsequently sentenced to an aggregate period of incarceration of

months t6.600 months (25 years to 50 years) in a state correctional institution based on the.

(3) An offense under subsection. (a)(7) is a misdemeanor of the first degree unless any of the .foliowing.

apply; in which. case. it is a felony of the degree:

OA.. is a second or subsequent offense.

(ii). There has been a.course of conduct of indecent assault by the person.

The indecent assault was committed by touching the complainant's sexual. or intimate parts with sexual or intimate parts of the person.

(iv) The. indecent assault is committed by touching the person's sexual or intimate parts with the comp rai nant's.sexual or intimate parts..

2 18 Pa.C.S. *KM (a)(1..) provide. s:

(i) Except as provided in subparagraph (ii), whoever, being of the age of 18 years and.: upwards, by any act corrupts or tends to corrupt the morals of any minor less than 1.8 years of age, or who aids, abets, entices or.

encourages any such minor in the commission of any criine, or who knowingly assists or encourages such minor in violating his or her parole or any Order. of court, commits a misdemeanor of the first degree.

(ii) Whoever. being of the age of 18 years. and upwards, by any course of conduct in violation of Chapter 3.1 (relating to sexual offenses) corrupts or tends to corrupt the morals of any..roinor.less than 18 years of age, or who aids, abets, entices or encourages any such minor in the commission of an offense. under Chapter 31 commits a felony of the third degree.

Docket numbers .CP-28-CR-474-20.1.5 and Cl?.18,-475.?20.1..5 were joined for trial. by Order of the Honorable Jeremiah D. ZOOk, filed December 7, 2015. (Note: Judge Zook's Order appears to be erroneously dated October 7,

2015).

application of 42 Pa.C:S. §9.71$.2(a)(1). to docket 475-2015 and thedefenclarit's prior indecent assault conviction.4 Thereafter, the defendant filed the instant M.otion.

After having.receive.d.the defendant's written argument in supportaf his.. Motion., and

mindful dour obligation to decide" the defendants post. sentence motion pursuant to the timeline.

set forth in Pa.R.Crim.pi...720 (B)(3)(a),. we. address the defendant s claims as follows:

DISCUSSION

The. delendantelaims the, verdict returned by the juryiS against the weight of the.

evidence produeed.attrial and should be overturned and a new trial ordered because:

The only direct evidence of the.defendant's alleged abuse of his niece...[siej (docket 474-2015) is. her own testimony which was in conflict.of defendants.

testimony and the testimony of his mother, Joyce Lee.

The only direct evidence of the defendant's alleged abuse of his niece (docket 475-2015) is her own testimony which was in conflict of defendant's testimony and the testimony of his mother, Joyce Lee and his brother, Duncan Lee.

Post 'Sentence Motion, ¶3, At the. outset we note. "a. motion for new trial 'on the 'grounds that the verdict is.: contrary

ta the weight of the 'evidence, concedes that there is sufficient evidence to sustain the verdict." cQminoii*ealtli v. Widmer. 744 A.2d 745, 751 (Pa. 2000)* (internal citation, omitted). The law is

Well -settled that a motion, for a new:trial based on...aclaim that the verdict is against. the. weight of the..evidenceiis addressed to the discretion of the trial court and a new trial should not..be *granted merely because of a .conflict in theteStimony or because the Judge on the same facts would.have arrived at a different concluSiOri.. COnimonniedlth v.. Clay, 64A3d. 1.049,. 1054-55 (Pa. 2013). "Trial, judges in reviewing aiclaim that the Verdict is against the. weight of the evidence do not sit as the thirteenth juror." (70111171017Wealth V, Wi.elmer, 744 A.2d 745., 752 (Pa. 2000). "Rather, the 4 Defendant" was convicted.of indecent assault at docket CP-23.-,R-.9.54-2013 and sentenced on May 14, 2014.

role of the trial Judgeis to determine that notwithstanding all the facts, *certain facts are so clearly Of greater weight that to ignore them or to give them i equal weight with all the. facts is to deny justice. Clay, 64 A.3.0 1054-55 .(Citation omitted). A new trial should be awarded only when 't1-4e: jury's verdict is.so contrary to the evidence as to shock one's sense ofijustiee.and the: award of a new trial is. imperative. so that right may be given another opportunityto prevail.' Id. .at 1055.

Certainly, "[tihe Weight Of 'the evidence iS..exclitsivelyfor the finder of fact r,j who is free to. belieVe all, none or Some. of the evidence..and to determine the. credibility of the witnesses." Commonwealth v. Talbert, 129 A.3d 536; 545 (Pa Super. 2015), appeal denied, I3.8. A.114 (Pa,. 2016), quoting commonwealth v. Johnson, 668 A.2d 97, 191 (Pa. 1995). it is the jury, as the fact finder that has the duty to determine the credibility of the testimony and evidence-presented:at trial. Talbert, 129...A.3dat.546.

Because the trial jUdgehas.had the.oppoitunity to hear and see the evidence presented, an appellate court ill give the graVest consideration to the findings .and reasons advanced bythe trialjudge when revieWing.atrial.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 verdictNyas or was not against the. weight of the evidence and that.a new trial should be granted in the interest of...justice.

Commonwealth v, Leatherby, 116.A.3.d 73, 82 (Pa_ Super. 201.5).

Understanding These legal principles, we, "mist review the evidence presented at: trial in each docket:

C. NI testified yia .conternporaneott$. alternative method.5 C. M. told the jury that -she is now 14years old and in the eighth grade.. She also told thelury that she was in.court because,

The Honorable Douglas W. Hertnan, nOw:Seniorludge,..iSStied an Opinion and Order on Deceniber.I.8, 2014, granting the' Commonwealth's Tender Years.Modon and Motion for Closed -Circuit Testimony, permitting CM:and W.B. to testify via conternpbrartebus,alternative methbd atboth the .preliminary hearinsi. arid at trial. See 42 .Pa.C,S, §5985.

.4

"my.tiricle had molested me." N.T. 12/5/16 at 42. The child explained that herUncle, DOnovan. Lee, touched her inappropriately with. his hands in her "areas' "more than once." Id. When asked

if her "areas" were."thepart that you go peeotit. M.'responded, "Yes.' Id. She was:

. .

'around three or four yeatt old When it...started and in, fourthof fifth grade when it'stopped 12/5/1.6.4 42-43.. Hetouchedher under.her clothes. He rubbed her and ithurt most of the time, 'Mike he would just do.it too hard.."1\1.T. 12/5/16 at43.

C. M. recalled theft-St time it happened; they were in the..defenclant's bedroom at 429.

Ramsey Avenue in. ChaMbershurg and he was changing her diaper. .N.T. 1215/16 at 43-44, 54.

They were onthe floor, by the door. RT. 12/5/16 at 54. :Her grandmother wasn't up yet. Id. On that occasion his handstayed on the of.herbody. C. M. testifiedthat her brothers, WhOlre older than her but too young at the time to understand what waS happening to her,. were in the room at the time. N.T. 12/5/16 at 55.. She also described her Oldest brother, now Seventeen years old, as *having a mental diability.andi not comprehending things '"as: well as:we do." Id.

C. M. explained. that the incidents:happened in several rooms of the defendant'S.home, ineltiding his bedroom atid .the hallway .outSide.of the bathroom. *MT. 12/5/16.at 44-45,.52. In responselo. questions frorn.the defendant's Counsel, Q.M. explained that she'was at her grandmother's house every other weekend because her mother worked. 12/5/1.6.at 53. Her grandmother watched C.M. and her brothers. Id. They Spent* night. Id. There were 'a few times when the.defendant's.younger brother, Duncan., was also there. Id. Duncan.. neyertouched her; buthe never did anything to make. the..defendant stop. Id. C,N4. told the 'defendant 'to stop, but he wouldn't 12/5/16.at46. Eventually. Ae.Stopped going to her grandma's house and would go to her aunt's, Anita Barnhart's, 'house, instead. Id.

.5

C.M. first told her anntabout the assaults. two years ago when.her aunt asked her why she:

didn't want to: go to: her grand other's house anymore.. N.T. 12/5/16 at 46-41: The child eventually.eNplained that she didn't want to go. because Donovon.was there. Wheit her aunt asked:What happened, she told her. MT, 12/5/16..at 47. C.M. testified, "J told her Donovon would.totich me inappropriately." .Id Thepair told C,M.'s.mother.the following day. Id. C.M. explained her delay in reporting, "Like I..feel would feel like people would blame me .because I didn't tell. f.didn'ttell,..like.sponer.when it was.happening,.when I could hay.e: stopped it". N.T. 12/5/16 at 48, After reporting the assaults to her mother, spoke with someone at the Children's Advocacy Center.. N.T. 12/5/16...at 49: C.M. learned about the allegations by W.B. after she reported what happened to her to her aunt. N.T. 12/5/16 at 50, 52.:

C. M.'s great-aunt, Anita Barnhart (Anita"),teStified that she sawiC. M. about every other weekend in..September of 2014. She and C. M. were very close at the timeand remain so. N.T. 12/5/16 at 83:. Anita identified the defendant andexplained that he is het nephew. NT 12/5116 at 84. In 2012, the defendant lived with his inOther,.:Joyee Lee; On RarnSey.AVenue in Chambersburg. Id. C.. mothe ..wOrked two.jobS. and Joyce was taking Care of the.childreit 1\1T.1215/16 at 86-87.

On September 19,2014, C: M. was at Anita7s house. Anita had been :trying to figure out why C..M..was.refusing to go:to her grandmother's house, so she.asked. her. N.T, 1215/.1.6.at 87. At first,.the.child dianot.reply. When Anita looked at C. M. again, the child was crying_ N.T. 12/5/16 .at.88.. She told.C. M. that she could tell her. what was going on, that. she: would do whatever she could to get it stopped.. Id. C, M. then. told her that the defendanttouchedher in herprivate .areas. N.T. 12/5/16 :at H. Anita then stopped:the.conversation because she knew she had to inv..olv6 mother. Id. Anita described C. M. as: very. seared of the defendant.. Id.

Anita testified that when C. M. told het abOut what the defendant did, she did not know about what happened to W. B. N.T. 12/546 at..90-91...

Betty George (lIettym),.C.. M.'s mother, testified .that C. M. Was born 'in September, 2002. N.T. 12/5/1.6 at 91 Thedefendatitis, her brother and.C. M.'s uncle. N.T. 1215116 at 92-

93. *from 2006 through 2012,c.. M. stayed with Betty's family while, she worked; specifically, C....M. sta.yed.with Joyce Lee.onRamsey Avenue in.ChambetsbUrg. .N.T. 12/5116at 93, She becarneawaxeof C. M.'s' allegations when.heraunt,..Anita Barnhart, called her at work. id.

.13etty did not contact the police untilthe following day;..she told her 'mother, first. N.T. 12/5/16:at 97.. She. leatned ab.outthe allegations involving W. B. after C. M. catne..fOtw-ard, when she received a call from thepolice. N.T. 12/5/16. at 94. When the subjectof the.defendant comes up,

C. M. is..."very seated, kind Of by herself, like, withdrawn from people." N.T. 12/5/16:at 95 The case has been bard nn.the family, fiettY does not have airelationship with her mother or brothers

anymore. N:T. 12/5/16 at.96..

Alicia Barnhart ("Alicia"), motherof.W.. B., identified the defendant arid.explainedthat he is her husband Patriek'S.co.utin.6. N.T. 12/5/16 at '60. W. R. was libmin April, 2009; making' the Child seven years old at the..time of trial. N.T. .12/5/1.6 at 59. During the relevant time. period, the Barnhart family, including Alicia, Patrick, their Children, and ratriek's:parents, all lived together"in a three7story Borne on King Street in ChamberSburg.. N.T. 1215/16 at 64-65.. Alicia and her huSbandshated.a. bedroomon the third floor; the' children's bedroom, including was on. the second. floor. Id. Prior'to the September.17. ,:2014:inciderit, Alicia spent tirri6

6 Alicia identified Commonwealth's Exhibit 1, a family tree diagram showing Patrick's family including the defendant; the defendant's parents. Joyce and James Lee; the defendant's aunt by marriage, Anita Barnhart: and Betty (Lee) George, the defendant's sister and C. M.'s mother. W. B.'s grandfather, Patrick Barnhart, Sr., is the brother ofJoyce Lee; making W.B. and the defendant second cousins. N.T. 12/5/16 at 61-63.

with the defendant at her home on King Street "a couple of times a week" watching movies, playing card gatnes.and..piaying .video...games. N.T. 12/5/16 at 63-64, On September 17,2014, arourld..6:00J;Q0 p.m.., the defendant was at Alicia's house. N.T.

12/5/16. at 66.. Aliciesin-laws,. as well as her.chldren Were: hOme aS**ell. N.T. 12/5/16 at 77. Alicia asked the defendant to go to her bedroom to retrieve something for her. N.T. 12/5/16 at 61.. W. B. ,came..dowtistairs.10:...the living room where Alicia was.. When Alicia asked W. B. where she had been, W. B. old 'her that.the defendant had taken her to Alicia's room. NT.. 12/5/16 at 68. Alicia asked W. B. if the defendant touchedher; W. B. said.that he touched her "bug" with his hand, licked her "bug," and pressed his "bug".againsther "bug." .N.T..12/5/16. at 68. Alicia explained that when...W. B. says "bitg"..she.is referring to heiVagina. N.T. 12/5/16 at 69. W. B..desctibed the.defendant'S "bug" as long, round, .andhatc1. Id. Alicia obtained a pictUre..Of an adult male penis from. Yaboo images, showed it to W. B.,. and asked:het...if that's what it.looked like; W. B. said, "yes." N.T. 12/5/.16.a.t..70.

Alicia asked.herhusband's brother; Thomas Barnhart, who returned home Just. after the incidentto..question W. B. to see if she told him the.saxne. thing. N.T. 12/5/16. at 71, 80. He....did, and reported that "everything lined up." Id. She then asked her brother-in-law to call her husband, who. Wasatwork.. Id Alicia did nOt..say. anything .to the defendant at that tie. . N.T. 12/5/16 at 70-71.

Alicia andher husband took the child to Meritus Medical Center .in Hagerstown. N.J..

42/5/16 at 72. W. B. did not change her .clothes:.or take a bath prior to going to the hospital, nor

did Alicia wipe the child's vaginal area.in any way. Id At Meritus.,.the medical .personnel took areport, thole picturesof W. B. and her underwear, collected W.13.'S underwear, performed an

examination, and collectedsWabs. N.T.. 12/546 at 73-74. At.the.time, the thildWas very seated.

9

Id.. at.74, Eventually,. the::police.asked that W. B. be 'interviewed at, the Children's Advocacy Center in Gettysburg. 14.

On cross-examination Alicia explained that she didn't have 'a choice hicalling the police because...the medical professionals.already had.,..blit, she Was nOtreluetaritto do so. N.T. 12/5/16 482. She' was sure something had happened. Id Since the incident,.W. B.,. who .used.to.be a sweet; loving little girl, has really bad anger And attitude.iSSues. N.T. 12/5/16 at 75. vv:13.i. Uneasy When .she.has td talk about the defendant; says She's; scared, and doesn't want to see.him ever again. Id.

Like C. M., W. B. also testified by contemporaneous alternativemethod.. W. B.. was.

seven years..oldat.the time of trial. N.T. 12/5/16 .at.:25. After examination, the,Courtfound:W. B. competent to testify. NT. 1:2/5/16 at 26: The thildoOnfitmed.she has...an older sister and.a younger brother and used. to live in a house with her grandparents, parents, sister and brother. N.T. 12/5/16* 30-32. Uncle Tommy, lived there, too. N.T. 12/5/16 at 32-33, Her:parents" *bedroom was inthe attic, where:she, was not allowed to.go. N.T..12/5/16 at.3.3.. .nonovon took herup.there andteased her on the bed with: her blanket. N..T 12/5/1.6.at 34. She was lying: dOWn. N.T. 12/5/16 at 35:. She did not like.being up there with.him 'because she wasn't allowed to bethere.. Id. W. B.. testified that she did notremember what happened in her parents' room, "rbjecattse.Ern just nervous today." N.T. .12/5/1.6 .at 36.

Rebecca Voss, a forensic interviewer employed by the Over the Rainbow Children's:

.Advocacy.C.enter, has been trained to conduct forensic interviews on children. N.T. 12/5/16 at 98-100. Voss explained herrole and responsibility in maintaining neutrality throughout the interview. N.T.. 12/546 at 100-101.. Voss interviewed W. B.: on September 2014, and.C. M, Septenber.24, 2014. The interviews were recorded and played for the jury. See.

10

COmmonwealth's Exhibits 2 (interview.ofW, B.) atid.3 (recorded interview of C. M.). Voss Confirmed the videos: were accurate depictions of The interviews, in the video W. B. related, inter alici, that she: went to. a doctorbecause Donovan touched her. She told her that hetoOk her to her Mother and father's room. He took her clothes off, tot:1CW. her "bug" with part of his tongue, and licked her..See Commonwealth's Exhibit 2.

In:her interview, C. M. told Voss, inter cilia, the. defendant touched her inappropriately WhenSlie, was little;,Startingwhen shewas still:in. diapers and continuingmitil she 1,?vasmine or ten. M. 'explained that the defendant touched her "butt" .and "private' with his hand, underneath and on top of her clothes. He. pulled her clothes down. She tried to tell him to stop, buthenever would. 'It kind of hurt. He would doit really hard. She.was.too seared to tell anyone. See .Commonwealth's Exhibit 3.

Detective Sergeant Mat-tftpw Cody ("Det. Cody"). of the Chambersburg POliee .Department testified, that he retrieved A'omMerituSthe sexual assault examination kit collected. from W. B. on September 20.14, and placed it in a sealed evidence envelope., NJ. 12/5/16 at t 18. See Commonwealth's-Exhibit8. The:kit was transported to the Pennsylvania State Police lab.foranalysis. Det...Cody also used.a..bticcal Swab to collect DNA material from W. B. on July 9, 2015. See Commonwealth's Exhibit 9. The buccal swab was sent to the lab. for DNA analysis. N.T. 12/5/16 at 129-130. Det, Cody-also obtained a;search Warrant forthe defendant's DNA and then used a buccal swab to collect DNA from the defendant and sent the.swab -to the lab for analysis.. N.T. 12/5/10 at 130-i 3;1. Seet.ommonwealth.'s Exhibit 10, ,11. Det Cody's testimony established the chain.of custody for the buccal swabs, aswe,U. NT. 12/5/16 at 129- 138*. 'On cross-examination Det. Cody testified' that he did not submit the 'sexual assault kit to the lab until March of 20.15 and did not collect the defendant'S DNA until. July <4'201.5. N.T.

11

12/5/16 at. 141 There was 'no reason for the he obtained the search warrant for the defenclant's.DNA shortly .after he learned from the: lab.that there was DNA material identified through their analysis. To obtain the defendant's DNA through the use of a.seareh warrant,..he needed .a baSis. to do so. N.T, 12/5/16 at 141-i42 Det. Cody also. accompanied W. B. and her fathily to. the..Childrep"s Advocacy Center ("CAC") and observed interview with. W. a ..N.T. 12/5/16 at I 2.4, After the interview, Det. Cody learned that there may b.e.a. secend.Victim,C. M, N.T. 12/5/16 at. 125. He spoke. with. Betty George and then scheduled and attended a CAC interview with C.,,M. N.T. 12/5/16 at 126. Because nearly two years that had elapsed from the last time: C. M. indicated she had been assaulted, C. M. did not undergo a medical examination. N.T. 12/5/16'at 127.

As part of his. investigation, Det. Cody learned the defendant Wasborn in January, 1991, making him 21 years old.the last time he. assaulted *C. M. arid-23 When .he assaulted. W. B. .N.T. 12/5/16 at 128'. Det.. Cody did not interview C.. M.'S..grandparents or her father. He did not interview Duncan Lee, the defendant's brother. He also did not interview W. B. 's grandparents. N.T. 12/5/16 at:139-14Q.

.Andrea Blythe ("Blythe"), a licensed pediatric forensic nurse.exarniner testified that in September, 2014, she was a sexual assault:nurse examiner at.Meritus Medical Center.. N.T.. 12/5/16 at. 145-l46. She performed the sexual AsSaultekamitiat on. on W. B.. on September 'J8 .2014.,:at 1:00 a.m. at Meritus. N.T. 12/5/16 .at 149. Blythe collected the child'SlnderWear and a .swab from her...genital area: N.:T. 12/5/16 at 153-154: See Commonwealth's, Exhibit, 8.

*The Commonwealth's final. witnesses' were Deborah Zamboni and LaurenForce; forensic scientists employed by.the Pennsylvania State Police Laboratory,. Zamboni testified regarding: the testing for'seminal material she performed on the underWear and external genitalia swab collected.from N. B. NJ. 1216/16 at 1143. Her analysis reVedledthe presence of seminal material on the underwear and :external genitalia swab. N.T. 12(6/16 at 19-20. Zarnboni then forwarded a Cutting from :the underwear, the external genitalia. swab, and the buccal swabs from thedefendant and W. B., to the: DNA lab for further analysis. N.T. 12.16/16 at 23-24. The DNA. analysis was performed by .Force, Who explained the process in detail.. Force concluded that neither the. defendantnor any .of his.patemally related..male relatives could be excluded as contributors to...the DNA found.on N.T. 12/6/16 at 41, 43-44:

Duncan Lee ("Lee"), the defendant's younger brother, testified that he has lived at 429 Ramsey Avenue, Chambersburg during all times (relev.ant.to...this case). NJ. 12/6/16 at 50. .Lee confirmed that from 2006 to..2008, C, M. was at. his house ."a good..bit" during the week and on. weekends when her mother worked. N.T. 12/6/16 at 51. C. M, .stayedin his .Sister's room. The defendant did.not.live there the entiretirrie. NJ. 12/6/16.at 53. Lee never witnessed anything that C. M. alleged happened, nor did he witness the defendant alone with ,C. ,M. (although conceded that if they were alone, he, would not have been There). N.T. 12/6/16 at 53, 55. Lee confirmed that the defendant and' Alicia, as' well .as the defendant and...VV.. B., got along. pretty well, arid in fact, until W. B.. made...allegations against the defendant, there were:never any problems between any 'of the people.. invOlved. N.T. 12/6/16 at 54-55.

Joyce Lee .('.Joyce"), the defendant's mother 'arid C. M.'s grandmother, confirmed that in 2006' through.2012,..both .ofher sonS..lived. With her and her husband; *however, the defendantWas, in fester care and .a..juvenile.placement. from late 2006 through 2.009.. N.. T 1,2/6/16 at 5$, As to the dates he, was out of the house she explained, "lean' t, give* you an exact: I just. know it was. late.2006 to probably :2.007; maybe, 2008," N.T. 12/6/16 at..60, She never. witnessed the defendant alone with:C. M.'and never observed C. M.. to be. afraidof the defendant. Id_ C. M..

never' slept in the same. room as the defendant. Id, She never saw any inappropriate behavior between the defendant and C. M. or W. B. N.T.. 12/6/16 at 60. Joyce alleged C. M. lied about the allegations. N.T. 1.2/6/16 at 66..

The defendant testified on his own behalf and explained that from 2006 to 2009 he lived at the Ramsey Avenue address on and off.. N.T. 12/6/16..at 68... From 2009 to 2012 he was "mostly living other places, on and off, at different houses with other people." Id After he turned 18 in .2009 he bounced around different places.. N.T. 12/6/16.at 69. He admitted. convictions for retail thefts in 2011 when he was irresponsible_ N.T. 1216/16 at .70 The defendant acknowledged that C. M. and her bothers stayed every other 'weekend. He.

was there "a little bit," "once in a While." N.T. 12/6/16 at 70. He tried to aVoidbeing.drourid them and left to hang out with his friends_ N.T. 12/6/16 at 71. The defendant denied C. M.'s allegations, testifying that the incidents did not occur and that. he was never alone with C. M. N.T. 12/6/16 at 72. The defendant reported C. M. has, been known, to lie, N.T. 12/6/16.at.80.

The defendant further testified that he and Alicia were friends for 18 years and.had.a.

sexual relationship. N.T. 12/6/16 at 73-75. He testified to his activities on September 17, 2014, .and denied being .at.Alicia's. arid W. 13:'S house that day. N.T. 12/6/16 at 76-77. He believes W. B. lied and was coached by her mother because a week.priOrhe..told Alicia that he was not going to have sex with her anymore. N.T. 12/6/16 at 79. The defendant believes. Alicia put her child up to 'the lie because she wasjealous. N.T. 12/6/16 at 80. His DNA ..got in the Child's Underwear. because he had sex with her mother in their house. N.T. 12/6116 at 81.

In rebuttal the Commonwealth called Thomas Barnhart ("Thomas"), W..B.'s Thomas testified that he saw the defendant at the 379 East King Street house where Alicia and W. B. live .on. September 17, 2014.. N.T. 12/6/16 at 82-83, He came honie from school about

13.

14

5;00 p.m. Alicia told him what W. B. said happened and asked him to ask W. B...Whathappened to confirm. He did and W. B. told him the same thing. N.T. 12/6/16 at 83. He saw the defendant come down.the.stairs about a half hour or so afier he got home. N.T. :12/646 at 84. At that time. he was aware of W. B. 's accusations; but did.not.confront.the defendant.

*Upon review of the evidence presented at trial,. we cannot find that the jury7s verdict was against the weight of the evidence. Both children were consistent in their reports' to the adults

involved. C. M.'s testimony was cOnSisterit. With. her report to her aunt and to Voss. W..B.'S immediate report to her mother was consistent with what she told Thomas and then Voss during the CAC interview. The Children both used age -appropriate language and descriptions in relating what the defetidant.did.tO. them. W.B.'s report was supported by DNA evidence.

The defendant had a significantinterestin the outcome of the trial and thejury was free to consider that interest in weighing his testimony. The defendant's* suggestion that Alicia put W. B. through the trauma of a sexual assault examination. CAC interview, and trial because She was upset that the defendant did not want to engage in: &sexual relationship with her was clearly rejected by the jury. There was no. motive suggested for C.M. to..fabricate.the allegations she Made other. than "she's a liar." While neither Joyce Lee nor Duncan Lee ever saw the.. defendant alone with C. M.. it should go without saying that if the child and the defendant were alone,. neither Joyce nor Lee were there. Their lack of observation of the. defendant in the.. act of assaulting C. M. does not disprove the child's* allegations.

CONCLUSION

The jury. as the finder of fact, is required to make credibility determinations. The jury was free to believe all, part, or none of the evidence presented by the Commonwealth and the defendant. In this case, the jury's:verdict suggests that the jury rria0e. credibility determinations in favor of the Commonwealth's witnesses. We cannot say that the jury's verdict is so contrary to the evidence so as to shock our senseOlinStice.

An Order follows.

15'

IN THE COURT OF COMMON PLEAS OF THE 39TS JUDICIAL DISTRICT OF. PENNSYLVANIA -FRANKLIN COUNTY BRANCH

Commonwealth. of Pennsylvania. CP-28-CR-474-2015V .CP28-CR,475-20.15:

V.

Donovon Neal Lee Angela R. Krom, Judge ORDER OF COURT

NOW THIS S day of Septernber, 2017, upon consideration. ofthe Defendant's.

PostSentence. Motion, the:recbrd, and the. la* IT IS HEREBY ORDERED that for the reasons fully explained in thefOregoing Opinion,.Defendanfs:Post-Sentence:Motionis DENIED.

THE DEFENDANT IS ADVISED that he has.the right to appeal the denial of his ?OA-

Sentence Motion to the :Superior .C.OUrt ofPennsylvania by filing a written.Notice of Appeal

Within thirty (30) days of date of the entry Of this Order. The defendant: is further advised that he has the right to the assistance of cotinsel in the preparation of an appeal, The defendantis..al so

advised that if he is indigent he may qualify to proceed informapauperis, entitling him to a waiver of filing fees and costs ii pursuing an appeal.

Pursuant to. the :requirements of Pa. P. 1,14; the Clerk q/Canrts shall immediately docket this Order and record in the docket the date it .was made. The Clerk shall foi thwith Amish a copyglthe Order,.by mail or personal delivery, to each party or attorney, and shall .record in the docket the thrw.ancrnianner .thereof

By the :Court,.

Distribution: Franklin..Cetinty.Distriet Attorney Bri6n 0. Wiiiiarns, Esq., Counsel for Defendant