Commonwealth v. Hooks

921 A.2d 1199, 2007 Pa. Super. 85, 2007 Pa. Super. LEXIS 392
CourtSuperior Court of Pennsylvania
DecidedMarch 27, 2007
StatusPublished
Cited by25 cases

This text of 921 A.2d 1199 (Commonwealth v. Hooks) 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
Commonwealth v. Hooks, 921 A.2d 1199, 2007 Pa. Super. 85, 2007 Pa. Super. LEXIS 392 (Pa. Ct. App. 2007).

Opinions

OPINION BY

TAMILIA, J.:

¶ 1 Delmar Hooks appeals from his February 28, 2006, judgment of sentence of four to ten years incarceration imposed after he was convicted by a jury of both aggravated indecent assault on a person less than 16 years of age,1 statutory sexual assault2, and indecent assault.3 Appellant raises a single issue for our review.

Did the Commonwealth fail to present sufficient evidence to establish that the victim was “under 16 years of age” at the time that the offenses of statutory sexual assault and aggravated indecent assault were committed and, therefore fail to meet their burden of proof as to a material element of those crimes, thereby warranting dismissal of those charges ... ?

Appellant’s brief at 4. Having thoroughly considered the applicable and relevant statutory and case law, we conclude the trial court applied an appropriate analysis to the underlying matter and we affirm the judgment of sentence.

¶2 While there was legitimate dispute as to certain facts important to the case, the facts relevant to the issue on appeal are not in dispute. On March 9, 2005, sometime after 8:00 p.m., appellant, who on that date was 23 years of age, had a sexual encounter with the complainant, who was born on March 10, 1989. Thus, the encounter occurred one day prior to complainant’s birthday, the 16th anniversary of her birth.

¶ 3 Although the complainant and appellant presented different versions of the events of March 9, 2005, the two provided similar accounts as to the non-essential facts. On the day in question, appellant was working as a door-to-door salesman selling vacuum cleaners and cleaning products for a company based in Elmira, New York. Although based in Elmira, appellant’s job assignments were not limited to the Elmira area and, on the day in question, appellant was working door-to-door in the Greater Scranton suburb of Clarks Summit, Pennsylvania. Early in the eve[1201]*1201ning, around 7:00 p.m., appellant knocked on the door of the complainant’s residence. The complainant opened the door at which time appellant explained that he was making door-to-door calls demonstrating cleaning products and asked if he could enter the home and conduct a cleaning demonstration. The complainant indicated that her mother was not home and there would be no point in him conducting a demonstration. Appellant allegedly responded that, as he got paid for each demonstration conducted, he would like to conduct the demonstration despite the absence of the mother of the house. Either for that reason, or because it was cold outside, the complainant opened the door, allowed appellant entrance and offered him a drink. As appellant drank the drink provide to him, the parties engaged in some small talk, possibly of a flirtatious quality. Eventually, appellant left while stating that he would return later.

¶ 4 Approximately an hour later, appellant returned to the residence and despite the fact her mother had not returned home, the complainant allowed appellant to once again enter the home. Once inside, the two again began talking and, in the complainant’s words, appellant acted in a very forward and “cocky” manner. According to the complainant, appellant stated that he wanted to kiss her and came and sat down next to her on the couch and began rubbing her leg. Eventually, a sexual encounter ensued, although appellant and the complainant provided vastly differing versions of the events.

¶ 5 The complainant indicated to police, and testified at trial, that appellant eventually engaged in sexual intercourse with her. Although she indicated she did not offer physical resistance, she testified that she asked appellant to leave, told him “no” when he asked if he could have intercourse with her and that the act of intercourse was not with her consent. In contrast, appellant testified they never had intercourse but that they kissed and fondled one another and eventually engaged in mutual masturbation until appellant climaxed.

¶ 6 Following an investigation initiated when a friend of the complainant’s called police,4 appellant was charged with rape by forcible compulsion, statutory sexual assault, aggravated indecent assault with a person less than 16 years of age, indecent assault, indecent exposure and sexual assault. As noted above, a jury convicted him of statutory sexual assault, aggravated indecent assault/person less than 16 years of age and indecent assault; he was acquitted of the remaining charges.

¶ 7 As previously stated, appellant was sentenced to four to ten years imprisonment on the aggravated indecent assault charge; no sentence was imposed on the remaining counts as they merged for sentencing purposes. A motion for reconsideration of sentence was denied on March 10, 2006, and this timely appeal followed.

¶ 8 Before addressing appellant’s single issue on its merits, we must address a matter of issue preservation. On April 4, 2006, the court directed appellant to file a concise statement of matters complained of on appeal within 14 days pursuant to Pa.R.A.P.1925. Accordingly, appellant was required to file his statement by April 18, 2006. Appellant did file a Rule 1925 [1202]*1202statement, but did not do so until April 25, 2006, one week beyond the time allowed by the court’s Order. Moreover, the record is devoid of any indication that an enlargement of time for filing appellant’s Rule 1925 statement was sought and received.

¶ 9 While upon its face, appellant’s 1925 statement appears untimely, we note:

However, there are caveats to a finding of waiver. First, the trial court must issue a Rule 1925(b) order directing an Appellant to file a response within fourteen days of the order. Second, the Rule 1925(b) order must be filed with the prothonotary. Third, the pro-thonotary must docket the Rule 1925(b) order and record in the docket the date it was made. Fourth, the prothonotary shall give written notice of the entry of the order to each party’s attorney of record, and it shall be recorded in the docket the giving of notice. See Pa. R.C.P. 236. If any of the procedural steps set forth above are not complied with, Appellant’s failure to act in accordance with Rule 1925(b) will not result in a waiver of the issues sought to be reviewed on appeal.

Forest Highlands Crnby. Ass’n v. Hammer, 879 A.2d 223, 227 (Pa.Super.2005) (citation omitted). Our review of the record, and particularly of the docket, reveals that despite the mandates of Pa.R.Crim.P. 114, Orders and Court Notices: Filing; Service; and Docket Entries, and Commonwealth v. Hess, 570 Pa. 610, 810 A.2d 1249 (2002) the docket fails to indicate the date and manner of service of the court’s Rule 1925 Order. Thus, while the first three requirements for finding waiver for failing to comply with Rule 1925 are present, the fourth requirement for the finding of waiver has not been met here. Consequently, we return to the merits of appellant’s appeal.

¶ 10 Appellant’s sole issue involves the determination of the age of the victim as a material element of the charges of statutory sexual assault and aggravated indecent assault of a person less than 16 years of age. The definition of these two offenses follows:

§ 3122.1.

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Cite This Page — Counsel Stack

Bluebook (online)
921 A.2d 1199, 2007 Pa. Super. 85, 2007 Pa. Super. LEXIS 392, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-hooks-pasuperct-2007.