Opinion
J. A27007/14 No. 417 WDA 2013
03-17-2015
COMMONWEALTH OF PENNSYLVANIA v. LEELAND R. BARNHART, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence, October 12, 2012, in the Court of Common Pleas of Greene County
Criminal Division at Nos. CP-30-CR-0000485-2011, CP-30-CR-0000487-2011
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.:
A jury convicted Leeland R. Barnhart of involuntary deviate sexual intercourse ("IDSI") and related offenses as a result of his sexual activity with R.B.; at the time of the offenses, R.B. was 15 years old. Herein, appellant appeals from the judgment of sentence entered on October 12, 2012. We affirm the convictions, vacate the judgment of sentence, and remand for resentencing
The facts, as summarized by the trial court, are as follows.
The charges against Defendant arose out of events in the summer of 2011. On July 25, 2011, the victim, R.B. (d/o/b 10/[-]/95) left the family home in Carmichaels and moved in with Defendant (d/o/b 5/[-/]1976). Her parents did not know where she was and asked her friend K. if she knew her whereabouts. K. said she thought R.B. might be at "Lee's house". R.B.'s father went to Defendant's
mobile home and asked if he knew where his daughter was. Defendant said she was not there. R.B.'s father told Defendant that R.B. was only 15. R.B.'s parents made fliers and posted them around the neighborhood. They informed the police, the district attorney and Greene County Children and Youth Services (CYS). At some point, the parents got a phone call from a runaway hotline informing them that R.B. had called and asked the hotline to tell her parents she was safe and in good health. After about nine days, CYS located R.B. at Defendant's home. More precisely, a caseworker knocked on Defendant's door and talked to him. After about 45 minutes of conversation, Defendant admitted that R.B. was in the place and brought her out. The caseworker informed the police that R.B. had been found and then took her home to her parents.Trial court memorandum, 1/31/13 at 1-2.
After police and CYS personnel interviewed R.B., Defendant was charged with [IDSI], Sexual Assault, Aggravated Indecent Assault, and other sexual offenses. Of great significance in this case is the fact that at the time of these events[,] R.B. was 15 years old. She would not be 16 until the following October. At a separate number, Defendant was charged with Concealing the Whereabouts of a Child, Interfering with the Custody of a Child and related offenses. The two numbers were joined for trial.
On May 21, 2012, a four-day jury trial began. The victim testified and admitted that she lied about her age to others and lived her life as a 17-year-old. (Notes of testimony, 5/21-26/12 at 153.) R.B. testified that she met appellant through her friend K.; appellant lived a few blocks away. ( Id . at 155.) The next night, she snuck out of her house to visit appellant. During this visit, the victim had sex, including oral sex, with appellant. ( Id . at 160.) The following night, R.B. snuck out again and went to appellant's house; the two engaged in sexual intercourse again. ( Id . at 164.) The victim testified that she deceived appellant about her age. ( Id . at 164-165.)
The following day, Sunday, R.B. revealed her real age of 15 to appellant upon the encouragement of K. ( Id . at 166.) R.B. testified that while appellant was initially upset, he told her "it would be all right." ( Id . at 168.) On July 23, 2011, R.B. ran away from home and went to stay with appellant. ( Id . at 170.) R.B. stayed at appellant's house for nine days; she testified that they had sex approximately twice a day. ( Id . at 181.)
Appellant testified in his own defense. He explained that he had known K., who lived up the street from his house with her mother, since K. was 13 years old. ( Id . at 649.) Appellant stated that when he met R.B., she told him she was 18 years of age. ( Id . at 653.) Appellant's time-line of the dates they saw each other differed from R.B.'s. Appellant said they were not physically intimate until after the fifth or sixth day they met -- approximately June 18th to June 21st. ( Id . at 658-659, 672.) Appellant said that they saw each other again the following day but they did not have sex. ( Id . at 668.) Appellant testified that he was not made aware of her real age until the day she ran away when R.B.'s father came to his home. ( Id . at 680.) Once he found out her age, he refused to have sex with R.B.
Two separate motions for continuance filed by the defense were granted. ( See docket #6, 7.) On February 8, 2012, appellant waived his Rule 600 rights. (Docket #12.) On February 21, 2012, the court granted a motion for DNA testing. (Docket #15.) The trial court denied a defense request for a psychological/competency evaluation to determine if the victim understood her obligation to tell the truth. (Docket #21.) The Commonwealth filed a motion in limine pursuant to the Rape Shield Law, and the trial court granted the motion, refusing to admit into evidence R.B.'s written admissions that she had, on other occasions, lied about her age and had sex with older men. (Docket #3, 42.)
The jury rendered a verdict of guilty on all counts. A pre-sentence investigation was prepared; and on October 12, 2012, appellant was sentenced to a total sentence of 10½ to 21 years, including two mandatory sentences required by 42 Pa.C.S.A. § 9718(a). (Docket #47.) Appellant filed a timely post-sentence motion. A hearing was held, and thereafter, the motion was denied. Appellant filed a timely notice of appeal and was not ordered to file a concise statement pursuant to Pa.R.A.P. 1925(b). The trial court has not filed an opinion, but directed this court to its memorandum dated January 31, 2013. The following issues have been presented for our review.
I. DID THE COURT ERR BY ALLOWING THE COMMONWEALTH TO AMEND THE INFORMATIONS ON THE LAST DAY OF TRIAL WHEN THE AMENDMENT MAY HAVE MATERIALY [sic] CHANGED THE DEFENSE CAUSING PREJUDICE TO THE APPELLANT?
II. DID THE COURT ERR BY GRANTING AND THEN DENYING DEFENDANT'S REQUEST FOR A COMPETENCY EVALUATION OF THE VICTIM TO DETERMINE IF SHE UNDERSTOOD HER DUTY TO TELL THE TRUTH WHEN THE VICTIM WAS UNDER THE AGE OF 18, HAS A PROPENSITY FOR LYING, AND PRESUMABLY DID NOT UNDERSTAND HER DUTY TO TELL THE TRUTH?Appellant's brief at 18-19.
III. DID THE TRIAL COURT ERR BY NOT ALLOWING THE VICTIM'S OUT OF COURT WRITTEN STATEMENTS TO BE INTRODUCED AT TRIAL AND INTO EVIDENCE?
IV. DOES THE MANDATORY SENTENCING REQUIREMENT FOR [IDSI] VIOLATE DEFENDANT'S CONSTITUTIONAL RIGHT AGAINST EXCESSIVE, CRUEL AND UNUSUAL PUNISHMENT, AND IS OVERBROAD AND OVERREACHING BY INCLUDING ORAL SEX AS "DEVIATE", AND/OR DOES THE STATUTE IMPOSE A GROSSLY DISPROPORTIONATE SENTENCE FOR BEHAVIOR THAT IS DEEMED NORMAL BY SOCIETY?
V. WAS THE JURY'S VERDICT BEYOND THE WEIGHT OF THE EVIDENCE AND/OR WAS THERE SUFFICIENT EVIDENCE TO CONVICT APPELLANT OF THE CRIMES CHARGED WHEN THE VICTIM TESTIFIED THAT SHE HAD LIED ABOUT HER AGE AND GENERALLY LIES ABOUT HER AGE AND HOLDS HERSELF OUT TO BE OLDER THEN SHE ACTUALLY IS[?]
VI. DID THE COURT THE COURT [sic] VIOLATE APPELLANT'S DUE PROCESS RIGHTS BY FORCING HIM TO WAIVE HIS RULE 600 SPEEDY TRIAL RIGHTS IN ORDER TO OBTAIN EXCULPATORY EVIDENCE FROM THE COMMONWEALTH?
The first issue presented concerns whether the trial court properly granted the Commonwealth leave to amend the information pursuant to Pa.R.Crim.P. 564. The trial court permitted the Commonwealth to amend the criminal information at the conclusion of trial to correct a defect in statutory recitation and to alter the dates of several alleged offenses. Appellant argues that he was prejudiced by the late amendment of a criminal information. We disagree.
According to Pa.R.Crim.P. 564, the court may permit amendment of an information "when there is a defect in form, the description of the offense(s), the description of any person or any property, or the date charged, provided the information as amended does not charge an additional or different offense." Pa.R.Crim.P. 564. Moreover, "[u]pon amendment, the court may grant such postponement of trial or other relief as is necessary in the interests of justice." Commonwealth v. Roser , 914 A.2d 447, 454 (Pa.Super. 2006.) "[T]he purpose of Rule 564 is to ensure that a defendant is fully apprised of the charges, and to avoid prejudice by prohibiting the last minute addition of alleged criminal acts of which the defendant is uninformed." Commonwealth v. Sinclair , 897 A.2d 1218, 1221 (Pa.Super. 2006). "[O]ur courts apply the rule with an eye toward its underlying purposes and with a commitment to do justice rather than be bound by a literal or narrow reading of the procedural rules." Commonwealth v. Grekis , 601 A.2d 1284, 1288 (Pa.Super. 1992).
The original criminal information at case number 485-CR-2011 charged appellant with various crimes involved in concealing the whereabouts of the victim from July 7, 2011 to August 2, 2011. During trial, testimony was offered to indicate that the concealment and related crimes did not occur until the victim had run away from home on July 25th. At the conclusion of trial, the Commonwealth was permitted to amend the information by changing the date of occurrence from July 7th to July 25, 2011.
The court also permitted the Commonwealth to amend the information at case number 487-CR-2011 by deleting a reference to the victim being under the age of 13, which was inadvertently included in the statutory recitation, although the specific facts in the "to-wit" section listed the victim's accurate age and listed the accurate section charged. It had never been alleged that the victim was under 13 at any time.
Appellant now argues that the amendments altered his defense. Appellant claims he was prejudiced as he had to prepare a defense for a larger time frame and then did not have to use it. Appellant also argues that since the amended date is beyond the first time that he had sexual intercourse with the victim, he would not have testified to having had intercourse with the victim before July 25, 2011 had that date originally been used. (Appellant's brief at 30.)
We agree with the trial court that these assertions are not the type of prejudice contemplated by the rules. (Trial court memorandum, 1/31/13 at 6.) Further, as the Commonwealth notes, appellant never sought to have the two cases severed, so the admissions concerning the sexual nature of the relationship prior to July 25th would have been inadmissible in the trial involving the non-sexual charges. The victim testified that she had sex with appellant from July 7th through the time she returned home. The jury obviously found R.B.'s testimony credible and convicted him based on her rendition of the facts. We cannot find the amendment of the date fatal to appellant's case.
Next, appellant argues the trial court erred by denying appellant's request for a competency evaluation of the victim to determine if she understood her duty to tell the truth, as she was under the age of 18 and has a propensity for lying. (Appellant's brief at 33.) Following our review, we find this claim to be meritless.
Initially, a motions court judge granted the motion for an evaluation and competency hearing; however, on February 23, 2012, the Honorable Brianna Christine vacated the order.
Generally, a witness is presumed competent to testify, and the burden falls on the objecting party to demonstrate that a witness is incompetent. Commonwealth v. Walter , 93 A.3d 442, 451 (Pa. 2014). When a witness is at least 14 years old, he or she is entitled to the same presumption of competence as an adult witness. Commonwealth v. McLaurin , 45 A.3d 1131 (Pa.Super. 2012), appeal denied , 65 A.3d 413 (Pa. 2013), overruled on other grounds by Commonwealth v. Pander , 100 A.3d 626 (Pa.Super. 2014). However, in the case of a child witness, once evidence of corruption is established, the court must make a searching judicial inquiry into the mental capacity of a witness under the age of 14; that investigation involves whether the child witness has the following: "(1) capacity to observe or perceive the occurrence with a substantial degree of accuracy; (2) ability to remember the event which was observed or perceived; (3) ability to understand questions and to communicate intelligent answers about the occurrence, and (4) consciousness of the duty to speak the truth." Commonwealth v. Delbridge , 855 A.2d 27, 39 (Pa. 2003) (" Delbridge I "). See also Commonwealth v. Delbridge , 859 A.2d 1254 (Pa. 2004) (" Delbridge II ") (explaining judicial competency investigations apply in cases where sexual abuse complainants are young children because child's memory is uniquely susceptible to falsely implanted suggestions which may cause child difficulty in distinguishing fact from fantasy when called to testify).
"These concerns clearly become less relevant as a witness' age increases, ultimately being rendered totally irrelevant as a matter of law by age fourteen." Commonwealth v. Judd , 897 A.2d 1224, 1229 (Pa.Super. 2006), appeal denied , 912 A.2d 1291 (Pa. 2006) (emphasis added). In Judd , the juvenile sexual assault victim was 15 years old when she testified at trial. The court stated "any issue with her inability to correctly remember the events in question is properly a question of credibility not of taint." Id . at 1229.
Based on the foregoing, we discern no error in the trial court's decision to deny appellant's request for a psychological evaluation. There is no dispute that the victim was 15 years and 91 months old at the time of the offenses and 16 when she testified. (Appellant's brief at 25.) See McLaurin , supra ; Judd , supra . Hence, she was presumed competent, and any allegation concerning her lies to appellant and her parents goes to her credibility, not competency. Commonwealth v. Page , 59 A.3d 1118, 1130 (Pa.Super. 2013). "A determination of credibility lies solely within the province of the factfinder. Moreover, any conflict in the testimony goes to the credibility of the witnesses and is solely to be resolved by the factfinder." Commonwealth v. Price , 616 A.2d 681, 685 (Pa.Super. 1992) (internal citations omitted). Furthermore, in Commonwealth v. Robinson , 5 A.3d 339, 342-344 (Pa.Super. 2010), appeal denied , 19 A.3d 1051 (Pa. 2011), this court upheld the trial court's refusal to permit the defense to present expert testimony on the subject of memory error as it would be another way to improperly permit an expert to comment on the credibility of a witness.
The victim testified that she had lied about her age to appellant and to others. This admission, however, does not demonstrate an inability to understand the duty to tell the truth. Appellant has failed to overcome the presumption that R.B. was competent to testify beyond his assertion that she lives in a "fantasy world." (Appellant's brief at 34.) However, trial counsel had the opportunity to repeatedly challenge the victim's credibility on cross-examination and attempted to depict her as a dishonest girl who fabricated the assault. Likewise, we find no merit to appellant's suggestion that R.B.'s memory was tainted by the police and caseworkers, citing to Delbridge I , supra. Delbridge I is distinguishable as it involved the influence of authority figures over young children, ages six and four, who made allegations of sexual abuse. We will not disturb the court's determination.
The third claim presented is whether the trial court erred by not allowing the victim's out-of-court written statement to be introduced at trial. (Appellant's brief at 38.) No relief is due.
The day before trial, the Commonwealth filed a motion in limine pursuant to the Rape Shield Law, 18 Pa.C.S.A. § 3104, to prohibit appellant from using R.B.'s written statements to CYS and to the police which contained the victim's admission that she was having sex with older men when they did not know her age. In the statements, R.B. averred that she would lie to her friend K. about her age, and K. would unknowingly confirm her age to men. Appellant sought to introduce these statements to show the victim had acted in conformity in the present case as she had in the past. Appellant argued that the word "relationship" could be substituted for "sex" so the victim's scheme could be brought before the jury.
The court ruled the probative value was not outweighed by the prejudice the victim would receive by her sexual past coming into evidence. The motion was granted and the statements were not to be admitted. The trial court ruled, however, that appellant could question R.B. about lying to others, lying to men, and lying about her age. Appellant could not ask her about lying to older men to have sex with them, as such questioning would violate the Rape Shield Law.
We find no error in the trial court's order prohibiting the defense from impeaching R.B.'s credibility using her past sexual history. Appellant sought to introduce R.B's prior written statements admitting she had previously engaged in sex with men who did not know her age in an attempt to show she acted in conformity with appellant as she had in the past. Appellant cites Pa.R.E. 404, which states, "in a criminal case, subject to limitations imposed by statute, evidence of a pertinent trait of character of the alleged victim is admissible when offered by the accused, or by the prosecution to rebut the same."
However, as the trial court notes, appellant overlooks the limitation of the Rape Shield Law. Under Section 3104, "[e]vidence of the specific instances of the alleged victim's past sexual conduct . . . shall not be admissible in prosecution . . . except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence."
Here, none of the evidence appellant sought to introduce involved evidence of R.B.'s sexual conduct with appellant. Evidence of past sexual conduct by the victim with third persons is not admissible for any purpose; such evidence has been determined to be of little relevance to the issue of consent between the victim and a defendant who has not personally engaged in prior sexual conduct with the victim. Commonwealth v. Dear , 492 A.2d 714, 718 (Pa.Super. 1985). R.B.'s sexual past has no bearing on the veracity of her allegations against appellant. In Commonwealth v. Beltz , 829 A.2d 680, 684 (Pa.Super. 2003), we determined that a rape victim's prior sexual conduct with another man besides defendant was inadmissible because it was not "of a nature to negate the intercourse between the victim and appellant." The fact that R.B. may have lied to other men and engaged in sexual activity is not dispositive of the sexual interaction between appellant and R.B.
Further, as the Commonwealth points out, "appellant was not without the benefit of having the jury know that the victim lied regarding her age. Victim's credibility was adequately brought before the jury without the prejudicial effect of having her sexual history explored." (Commonwealth's brief at 30-31.) By R.B.'s own admission, she repeatedly lied to others about her age. The trial court properly granted the Commonwealth's motion in limine .
Next, appellant claims that the ten-year mandatory sentence pursuant to 42 Pa.C.S.A. § 9718 (relating to offenses against infant persons), for a violation of 18 Pa.C.S.A. § 3123(a)(7), is cruel and unusual punishment in violation of Article 1, Section 13 of the Pennsylvania Constitution. We, however, are mindful of the United States Supreme Court's decision in Alleyene , ___ U.S. ___ , 133 S.Ct. 2151 (2013), in which the Court expressly held that any fact increasing the mandatory minimum sentence for a crime is considered an element of the crime to be submitted to the fact-finder and found beyond a reasonable doubt. Here, the court imposed two mandatory minimum sentences under Section 9718 (governing sentences for certain offenses committed against minor victims) for appellant's convictions of [IDSI] and aggravated indecent assault. (Docket #47.) We are mindful that Alleyne was published after sentence was imposed in this case, but it applies nevertheless. See Commonwealth v. Watley , 81 A.3d 108, 118 (Pa.Super. 2013) ( en banc ) (holding violations of Alleyne could not be waived).
Recently, this court directly addressed the constitutionality of Section 9718 in Commonwealth v. Wolfe , ___ A.3d ___, 2014 WL 7331915 (Pa.Super. 2014). In Wolfe , a jury convicted the defendant of sex crimes committed against a minor victim, including two counts of IDSI. The court imposed ten-year mandatory minimum sentences for each IDSI conviction, pursuant to Section 9718(a)(1). On appeal, this court emphasized that Section 9718 "contains the same format" as the unconstitutional statues at issue in Commonwealth v. Newman , 999 A.3d 86 (Pa.Super. 2014) ( en banc ) (relying on Alleyne and holding Section 9712 is unconstitutional as it "permits the trial court, as opposed to the jury, to increase a defendant's minimum sentence based upon a preponderance of the evidence that the defendant was dealing drugs and possessed a firearm, or that a firearm was in close proximity to the drugs"), and Commonwealth v. Valentine , 101 A.3d 801 (Pa.Super. 2014) (involving appeal of sentence arising from jury trial; extending logic of Alleyne and Newman to Sections 42 Pa.C.S.A. §§ 9712, 9713 and holding those sections are likewise unconstitutional insofar as they permit automatic increase of defendant's sentence based on preponderance of evidence standard). Id . at *5. Consequently, the Wolfe court held Section 9718 is also facially unconstitutional.
The Wolfe court noted:
We recognize that this specific case is unique insofar that the additional fact triggering the mandatory sentence is also contained as an element within the subsection of the IDSI statute under which [the defendant] was convicted. Therefore, in order to convict Appellant of IDSI, the Commonwealth was already required to prove beyond a reasonable doubt that the victim was less than 16 years old.
However, we are not concerned with Appellant's conviction in this appeal, only the imposition of the mandatory minimum sentence.Id. at *5-6 (internal citations omitted).
. . . .
[I]n this case, although the jury was required to find that the victim was less than 16 years of age in order to convict Appellant, we cannot ignore the binding precedent from an en banc decision of this Court. Newman stands for the proposition that mandatory minimum sentence statutes in Pennsylvania of this format are void in their entirety. Newman , supra ; Valentine , supra . As Section 9718 is indistinguishable from the statutes struck down in Newman and Valentine , we are constrained to conclude that Section 9718 is also facially void. As a result, we conclude the trial court erred in imposing the ten-year mandatory minimum.
Herein, at the sentencing hearing, the court applied Section 9718. Based on the cases cited, we vacate and remand for resentencing.
The next issue presented purports to challenge the sufficiency of the evidence and claims the verdict was against the weight of the evidence. We would affirm the sufficiency of the evidence claim based on the trial court's opinion. (Trial court memorandum, 1/31/13 at 6-8.)
Our standard of review concerning the weight of the evidence is as follows.
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. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when reviewing a trial 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 verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice.Commonwealth v. Clay , 64 A.3d 1049, 1055 (Pa. 2013) (emphasis omitted) (citations omitted).
This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the evidence is unfettered. In describing the limits of a trial court's discretion, we have explained[,] [t]he term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will.
Instantly, appellant's argument focuses on the fact that the victim lied to appellant about her age. Appellant cites evidence favorable to his position. For example, appellant directs our attention to R.B. not being able to identify what specific tattoos were on appellant's body, not knowing what a circumcised penis is, and the fact that appellant was not an identified sperm contributor in the underwear tested. As the Commonwealth notes, the jury was aware of each of these factors and aware of appellant's version of the events. While appellant may articulate a plausible alternative scenario, such a claim is dependent on the credibility of the witnesses, which, as stated, is within the sole province of the jury. Thus, we discern no abuse of discretion by the trial court in denying appellant's challenge to the weight of the evidence.
In his final question, appellant suggests that the Commonwealth purposefully failed to timely disclose exculpatory evidence, the DNA test results from R.B.'s underwear, which forced appellant to give up his constitutional right to a speedy trial and waive his Rule 600 speedy trial rights. Appellant's argument is illogical as he was brought to trial well within the 365-day period. Pa.R.Crim.P. 600(A)(2)(a). The criminal complaint was filed August 12, 2011, and appellant's trial began 283 days later on May 21, 2012. No relief is due.
Accordingly, we affirm appellant's convictions, but we vacate the judgment of sentence and remand for resentencing without imposition of mandatory minimum sentences.
Judgment of sentence vacated; case remanded for resentencing. Jurisdiction relinquished. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/17/2015
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