Commonwealth v. Moore

42 Pa. D. & C.5th 198, 2014 Phila. Cty. Rptr. LEXIS 3
CourtPennsylvania Court of Common Pleas, Lawrence County
DecidedOctober 31, 2014
DocketNos. 167, 1229, 1232 of 2012
StatusPublished

This text of 42 Pa. D. & C.5th 198 (Commonwealth v. Moore) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Lawrence County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Commonwealth v. Moore, 42 Pa. D. & C.5th 198, 2014 Phila. Cty. Rptr. LEXIS 3 (Pa. Super. Ct. 2014).

Opinion

COX, J.,

Before the court for disposition is the petition for writ of habeas corpus filed at case number 167 of 2012, C.R., and the omnibus pretrial motions filed at case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R., on behalf of the defendant Frank Leroy Moore, Jr. At case number 167 of 2012, C.R., the defendant asserts that the Commonwealth is unable to establish a prima facie case for the charges of indecent Assault and corruption of minors as there is a lack of evidence that the defendant had improper contact with the victim. At case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R., the defendant argues that the evidence seized pursuant to the search warrant obtained and executed by Detective Brian Cuscino on June 13, 2012, should be suppressed as the information contained in the affidavit of probable cause used to procure the search warrant was state. The Commonwealth has also raised a motion to consolidate cases concerning all three of the aforementioned cases.

C.M., the victim at case number 167 of 2012, C.R., who was born on September 16, 1996, previously lived with her father, the defendant. She recalled an incident when she was approximately eleven or twelve years old, in which the defendant touched her inappropriately. The victim testified that during the summer before she entered either sixth or seventh grade, one evening she was in the living room of her residence watching television with her [201]*201father while her mother was upstairs sleeping. The victim asked the defendant to tickle or rub her back, which was a normal request for her to make. The defendant began rubbing her back and her shirt was removed. At that time, the victim laid down and pretended to be asleep because she was afraid. The defendant then removed the victim’s pants and underwear while the victim kept her eyes closed as she did not want to see what, was happening. The defendant proceeded to place his finger inside of her vagina for several minutes. For the duration of these events, the defendant remained completely clothed. The victim terminated the encounter by wrapping herself in a blanket and going upstairs. She did not inform anyone about these events until 2012 when she confided in her friend Brad Nulsen and she eventually informed her mother of those events as well.

At case numbers 1229 of 2012, C.R., and 1232 of 2012, C.R., Corporal Richard Conti, Jr., of the New Castle Police Department began investigating the defendant for having surveillance equipment in his home as Corporal Conti received reports from a juvenile, who saw a video of herself and another juvenile taking a shower. On July 31, 2008, Corporal Conti was able to obtain a search warrant for the defendant’s residence, which he executed on that date. He seized two computers and several videotapes that were stored at the New Castle Police station in a permanent evidence locker. Corporal Conti viewed one of the videotapes and discovered videos of juvenile females showering interspersed between recorded episodes of the television show Star Trek. However, no charges were filed in 2008 relating to the videotapes or the computers and the cases remained dormant until the Fall of 2012 when the investigations were revived by Detective Brian Cuscino of the New Castle Police Department. At that time, the victim at case number 167 of 2012, C.R., informed [202]*202Detective Cuscino that she was touched inappropriately by the defendant. Detective Cuscino was also notified that there was an open investigation from 2008 concerning the defendant and the evidence was still in the custody of the Newcastle Police Department. OnJune 13,2012, Detective Cuscino applied for and received a search warrant for the contents of the computers in order to have the contents of the computers extracted by the Pennsylvania State Police computer lab at Edinboro University. The computers were returned to Detective Cuscino in September of 2012, and several images of juveniles showering were extracted from one of the computers. Detective Cuscino also viewed the videotapes during his investigation.

The defendant was then charged with aggravated indecent assault of a child1, aggravated indecent assault-complainant less than 16 years old2, indecent assault-without consent of other3, indecent assault-person less than 13 years of age4 and corruption of minors-defendant age 18 or above5 at case number 167 of 2012, C.R. He also was charged with four counts of photographing, videotaping, depicting on computer or filming sexual acts6 and eight counts of child pornography7 at case number 1229 of 2012, C.R. In addition, at case number 1232 of 2012, C.R., the defendant was charged with three counts of photographing, videotaping, depicting on computer or filming sexual acts8 and three counts of child pornography9.

[203]*203In his petition for writ of habeas corpus filed at case number 167 of 2012, C.R., the defendant contends that the Commonwealth is unable to establish a prima facie case for the charges of indecent assault and corruption of minors as there is a lack of evidence that the defendant improperly touched the victim.

Indecent assault is defined as:

(a) Offense defined. — 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;
(7) the complainant is less than 13 years of age. 18 Pa.C.S.A. § 3126(a)(1) and (7).

The phrase indecent contact includes “a sexual or intimate part of the victim’s body is brought into contact with any part of the defendant’s body, without the victim’s consent, for the purpose of arousing or gratifying a sexual desire.” Commonwealth v. Grayson, 379 Pa. Super. 55, 62, 549 A.2d 593, 596 (1988). The crime of indecent assault was created to address the widespread concern for the outrage, disgust and shame engendered in the victim. Commonwealth v. Whetstine, 344 Pa. Super. 246, 254, 496 A.2d 111, 781 (1985) (citing Commonwealth v. Capers, 340 Pa. Super. 136, 489 A.2d 879 (1985)). Additionally, uncorroborated testimony of the complaining witness is sufficient to convict a defendant of sexual offenses. Commonwealth v.

[204]*204Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005) (quoting Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. 1999)). In Castelhun, the Commonwealth presented the testimony of the victim, who stated that the appellant repeatedly touched her in a sexual manner by placing his penis in her mouth, digitally penetrating her vagina and inserting his pents into her vagina. The Castelhun

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Cite This Page — Counsel Stack

Bluebook (online)
42 Pa. D. & C.5th 198, 2014 Phila. Cty. Rptr. LEXIS 3, Counsel Stack Legal Research, https://law.counselstack.com/opinion/commonwealth-v-moore-pactcompllawren-2014.