Com. v. P.B.P

CourtSuperior Court of Pennsylvania
DecidedJune 22, 2020
Docket3026 EDA 2018
StatusUnpublished

This text of Com. v. P.B.P (Com. v. P.B.P) 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. P.B.P, (Pa. Ct. App. 2020).

Opinion

J-A04013-20

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : P.B.P., : : Appellant : No. 3026 EDA 2018

Appeal from the Judgment of Sentence Entered September 21, 2018 in the Court of Common Pleas of Philadelphia County Criminal Division at No(s): No.: CP-51-CR-0007568-2016

BEFORE: MCCAFFERY, J., STRASSBURGER, J.* and COLINS, J.*

MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 22, 2020

P.B.P. (Appellant) appeals from the September 21, 2018 aggregate

judgment of sentence of 15 to 30 years of incarceration following his

convictions for rape of a child, involuntary deviate sexual intercourse (IDSI),

endangering the welfare of a child (EWOC), corruption of a minor, and

unlawful contact with a minor, for offenses committed against his daughter,

P.H.-N. Upon review, we affirm Appellant’s convictions, affirm in part and

vacate in part his judgment of sentence, and remand for resentencing.

The trial court set forth the following recitation of facts in its Pa.R.A.P.

1925(a) opinion.

When [P.H.-N.] was 10-11 years[]old, she lived with Appellant, her father, for between three and five months, starting in about December of 2014. Prior to that time [P.H.-N.] had not really had a relationship with Appellant. The house where they lived was uninhabitable on the first floor. The second floor consisted of three bedrooms. The rear one was, for

*Retired Senior Judge assigned to the Superior Court. J-A04013-20

a period, occupied by a couple. The middle one was [P.H.-N.’s] room, but she didn’t sleep there because there was no bed in the room. Appellant and [P.H.-N.] slept in the third bedroom, which was in the front of the house. There was no operable kitchen. Appellant and [P.H.-N.] shared a bed.

At some point after they had been living together for two or three months, Appellant asked [P.H.-N.]: “Do you want me to show you what I did to your mother?” Thinking he meant a hug, [P.H.-N.] said yes. Appellant then removed [Victim’s] clothes and touched her chest, buttocks and crotch with his penis. He put his penis in her butt. Appellant engaged in this conduct every night. Appellant also put his penis in [P.H.-N.’s] mouth on more than one occasion.

When [P.H.-N.] would tell Appellant that she did not want to engage in this behavior, Appellant would get mad and tell her that she did[ no]t love him. When [P.H.-N.] would tell Appellant “no[,]” he would tell her that he would not feed her. Appellant carried through on this threat on some occasions when [P.H.-N.] told him no, and did not feed her. [P.H.-N.] did not tell anyone what her father was doing to her because she was scared and Appellant told her not to tell anyone.

In approximately April of 2015, [P.H.-N.] went to live with [G.A.], at the request of Appellant. [In the summer of 2015, P.H.-N. asked G.A. about inappropriate touching, but did not disclose the aforementioned sexual acts at that time.]

In October of 2015, [P.H.-N. was taken to Children’s Hospital for vaginal pain, discharge, and bleeding. While at the hospital, P.H.-N. disclosed the aforementioned sexual acts. Consequently, she underwent an examination and her complaint was referred] to the Department of Human Services [(DHS). P.H.-N. also underwent an additional exam at the hospital’s care clinic. The examination revealed no injuries.] The lack of such evidence is not conclusive as to whether or not a sexual assault involving penetration occurred.

[P.H.-N.] described Appellant’s conduct to the social worker [at the hospital]. She also gave a forensic interview at the Philadelphia Children’s Alliance [(PCA)], which interview was [videotaped and] witnessed remotely by the social worker and a Philadelphia Police Special Victims Unit [(SVU)] Detective.

-2- J-A04013-20

Trial Court Opinion, 2/1/2019, at 2-3 (record citations and some quotation

marks omitted).

Based upon the foregoing, Appellant was arrested and charged with,

inter alia, the aforementioned crimes. On April 30, 2018, Appellant

proceeded to a jury trial solely on the aforementioned charges. At trial, the

Commonwealth presented testimony from P.H.-N.; G.A.; SVU Detective

William Brophy; Melinda Brown, DHS social worker; Denise Wilson, manager

of forensic services at PCA;1 and Dr. Natalie Stavas, an expert in child abuse

and pediatrics. The jury also viewed P.H.-N.’s videotaped PCA forensic

interview. At the conclusion of the trial, the jury found Appellant guilty as

indicated hereinabove.

Sentencing was deferred for a pre-sentence investigation (PSI) and

mental health evaluation. On September 21, 2018, the trial court sentenced

Appellant to the following terms of incarceration: 10 to 20 years for rape of

a child, 10 to 20 years for IDSI, 5 to 10 years for EWOC, 5 to 10 years for

corruption of minors, and 5 to 10 years for unlawful contact with minors.

The 10-to-20-year terms were set to run concurrently to each other and

consecutively to the 5-to-10-year terms, which were set to run concurrently

____________________________________________

1 Wilson testified from PCA’s business records at Appellant’s jury trial regarding P.H.-N.’s forensic interview at PCA because the individual who conducted the interview was on maternity leave. N.T., 5/1/2018, at 105.

-3- J-A04013-20

to each other. Thus, Appellant received a total aggregate sentence of 15 to

30 years of incarceration.

On September 27, 2018, Appellant timely filed post-sentence motions

challenging the weight of the evidence and the discretionary aspects of his

sentence. The trial court denied the motions on October 10, 2018.

This timely-filed appeal followed.2 On appeal, Appellant challenges the

sufficiency and weight of the evidence, the denial of his motion in limine to

exclude evidence about Appellant’s ownership of weapons, and the

discretionary aspects and legality of his sentence.3 Appellant’s Brief at 14-

18.

We begin with Appellant’s sufficiency and weight claims, as they are

interrelated. On appeal, Appellant purports to raise distinct claims

challenging the sufficiency and weight of the evidence. See Appellant’s Brief

at 14-15, 44-53 (claiming evidence was insufficient to support verdict); id.

at 15-16, 53-56 (claiming the verdict was against the weight of the

evidence). However, upon review, it is evident that Appellant is only

challenging the weight of the evidence. ____________________________________________

2 Both Appellant and the trial court have complied with the mandates of Pa.R.A.P. 1925.

3Although Appellant challenges the legality of his sentence for the first time on appeal, it is not waived. See Commonwealth v. Infante, 63 A.3d 358, 363 (Pa. Super. 2013) (“As long as the reviewing court has jurisdiction, a challenge to the legality of the sentence is non-waivable[].”) (citation omitted).

-4- J-A04013-20

Appellant’s sufficiency claim does not challenge specific elements of his

convictions.4 Rather, Appellant assails P.H.-N.’s testimony as inconsistent,

speculative, conflicting, and uncorroborated. Based upon Commonwealth

v. Farquharson, 354 A.2d 545 (Pa. 1976), Appellant asserts that P.H.-N.’s

testimony could not provide sufficient evidence to sustain his convictions,

rendering the guilty verdicts based thereon pure conjecture. Appellant’s

Brief at 47-52.

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Com. v. P.B.P, Counsel Stack Legal Research, https://law.counselstack.com/opinion/com-v-pbp-pasuperct-2020.