Opinion
J-S70039-17 No. 685 MDA 2017
04-04-2018
COMMONWEALTH OF PENNSYLVANIA v. RONALD B. LEESE, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence June 25, 2015
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0004076-2014 BEFORE: GANTMAN, P.J., SHOGAN, J., and OTT, J. MEMORANDUM BY OTT, J.:
Ronald B. Leese, Jr., appeals, nunc pro tunc, from the judgment of sentence imposed on June 25, 2015, in the Court of Common Pleas of York County. A jury found Leese guilty of statutory sexual assault, involuntary deviate sexual intercourse ("IDSI"), aggravated indecent assault, incest, corruption of minors, indecent assault, and selling or furnishing liquor or malt or brewed beverages to minors. The trial court sentenced Leese to an aggregate term of 10½ to 21 years' incarceration. In this appeal, Leese challenges the weight of the evidence, the sufficiency of the evidence supporting his aggravated indecent assault conviction, and the sentence imposed for his IDSI conviction. Upon review, we affirm.
18 Pa.C.S. §§ 3122.1(b), 3123(a)(7), 3125(a)(8), 4302(b), 6301(a)(1)(ii), 3126(a)(8), and 6310.1(a), respectively.
The trial court set forth the factual history as follows:
This case arises out of a sexual assault that happened between April 26, 2014 and April 27, 2014 at the modular home of Ella Fake at 10304 Kohler Road, Felton, York County, Pennsylvania. At the time of the incident, Ella Fake shared the modular home with her brother, Alan Kilgore, and [Leese]. On the evening of April 26, 2014, the fourteen-year-old victim, M.H., had an argument with her mother and texted her uncle, [Leese], telling him that she wanted to leave the house and asked him to pick her up. [Leese] woke up his stepfather, M.H.'s step-grandfather, Alan Kilgore, and told him that M.H. wanted to stay at their place for the night. Mr. Kilgore and [Leese] drove to M.H.'s home, picked her up, and took her to their home at 10304 Kohler Road.
Shortly after arriving, Mr. Kilgore went back to bed and [Leese] and M.H. remained in the living room area alone. At the time, [Leese] had been living in the modular home and was using the living room as his bedroom and was using the couch as a bed. While they were in the living room, M.H. asked [Leese] if he had any marijuana and [Leese] told her he did not. [Leese] did inform M.H. that he had Vicodin pills and took two pills out of a silver pill holder on his keychain. M.H. took the pills and drank them down with tea or water. Later that evening, [Leese] gave M.H. a fruity drink, like Boone's Farm, and M.H. tried the drink. M.H. stated that she found the drink was strong, knew that the drink had alcohol in it, and [Leese] told her that he had put tequila in the drink. [Leese] later gave M.H. a little bottle of wine and M.H. drank the bottle.
As the night progressed somewhere between 1:30 a.m. and 2:00 a.m. on April 27, 2014, M.H. started to feel different and knew the pills were affecting her. M.H. was sitting on the couch, leaning against one of the arm rests, and [Leese] came over to her and removed her blue sweatpants and underwear she was wearing. After removing her pants and underwear, [Leese] began touching M.H.'s sides and back with his hands and proceeded to kiss her neck and chest area. [Leese] then took his penis and placed it into M.H.'s vagina and anus. [Leese] then told M.H. that he wanted to engage in oral sex with her and put his penis in M.H.'s mouth. Afterwards, [Leese] performed oral sex on M.H. by putting his mouth and tongue inside and
outside of M.H.'s vagina. [Leese] then took his hands and touched the inside and outside of M.H.'s vagina. M.H. estimates that all of this took place over the course of three or four hours. M.H. testified that several times throughout the assault, [Leese] ejaculated semen; once inside of her anus and another time she observed that semen landed on her blue sweatpants that were lying on the floor in between the television and the couch. During the assault, [Leese] whispered that M.H. was "tight" and that "this must stay our little secret." At the time this assault took place, M.H. was fourteen years old; [Leese] was thirty-three years old; M.H. was the whole blood niece of [Leese]; and [Leese] and M.H. were never married. Mr. Kilgore took M.H. home around 7:00 or 8:00 p.m. on April 27, 2014.
On Wednesday, April 30, 2014, M.H. went to a prescheduled counseling session with her counselor, and informed her during this session that [Leese] had sexually assaulted her. After receiving this information, the counselor informed M.H.'s mother, Rhonda Brecht, and the three went to the hospital so M.H. could receive a safety exam. SAFE Nurse Amy Alquist performed the exam on M.H. and observed redness and bleeding inside M.H.'s vagina near the cervical opening and observed venous pooling and two lacerations to M.H.'s anus and rectum. Nurse Alquist determined that the injuries were consistent with M.H.'s story.
Sometime between 9:30-9:45 p.m. on April 30, 2014, Trooper Jonathan Colarusso received a call from the hospital to meet with M.H. and Ms. Brecht about the sexual assault. Trooper Colarusso interviewed M.H. and Ms. Brecht and later obtained consent from Ms. Brecht to search her home for evidence. During the search, Trooper Colarusso discovered the blue sweatpants that M.H. stated she wore on the night of the assault. Trooper Colarusso observed a white dried substance inside the waistband area and also
inside the crotch area of the sweatpants. Trooper Colarusso logged the sweatpants into evidence and the sweatpants were sent to the National Medical Services Laboratories for DNA analysis. Forensic Biologist Jennifer K. Sears performed tests on the sweatpants and determined that seminal fluids and sperm cells were present on the sweatpants and when comparing the results with [Leese's] DNA, it was at least 7 trillion times more likely to have originated from [Leese] than any other random individual.Trial Court Opinion, 7/12/2017, at 3-8 (internal citations omitted).
Trooper Colarusso also obtained M.H.'s iPod from her stepmother ... after M.H. informed him that she had had conversations in the past with [Leese], before the sexual assault, and many of them were "sexually suggestive in nature." One such text messaging conversation on March 5, 2014, involved M.H. asking [Leese], known as "Uncle Bug" in the messages, for some blue raspberry wave and [Leese] responding: "I can try babe but I don't drink that shit so know [now] I have to stop twice ... you will owe me that sweet little ass." On that same day, in another text message, [Leese] told M.H. "you are sexy little bitch! Lmao." M.H. testified in court that after the assault, [Leese] called her the day after and the next few days where he told her that he felt guilty about what happened. Based on all the information he received, Trooper Colarusso obtained an arrest warrant and [Leese] was arrested on May 15, 2014 at his workplace.
The court's statement that Leese put his tongue and mouth "inside" M.H.'s vagina somewhat mischaracterizes part of M.H.'s testimony. M.H. did testify Leese performed oral sex on her. However, she specifically stated, "His mouth and tongue [were] touching my vagina. Well, the outside of it." N.T., 3/9/15, at 103.
The court recited the procedural history of this case as follows:
On March 12, 2015, [Leese] was convicted of Statutory Sexual Assault, [IDSI], Aggravated Indecent Assault, Incest, Corruption of Minors, Indecent Assault, and Furnishing Alcohol to Minors, and acquitted on the charge of Unlawful Contact or Communication with a Minor, after a jury trial at which [Leese] was represented by Farley G. Holt, Esq. On June 25, 2015, [Leese] was sentenced to serve 5-10 years' incarceration on the statutory sexual assault count, 10-20 years' incarceration on the [IDSI] count, 5-10 years' incarceration on the aggravated indecent assault count, 4-8 years' incarceration on the incest count, 2-4 years' incarceration on the corruption of minors count,
1-2 years' incarceration on the indecent assault count, and 6-12 months['] incarceration on the furnishing alcohol to minors count. All counts were set to run concurrently to one another, except for the furnishing alcohol to minors count which was set to run consecutively, giving [Leese] a total aggregate sentence of 10½ to 21 years' incarceration.Id. at 1-3 (footnotes omitted).
On July 6, 2015, [Leese], through his attorney, Farley G. Holt, Esq., filed three post-sentence motions: a motion for judgment of acquittal, a motion for a new trial, and a motion for reconsideration of sentence. On August 20, 2015, [the trial court] issued an order denying all three post-sentence motions.
On September 12, 2016, [Leese] filed a pro se petition pursuant to the PCRA. .... On April 4, 2017, [the PCRA court] issued an order granting reinstatement of [Leese's] Appeal Rights nunc pro tunc and ordered that an appeal be filed within fifteen days. On April 18, 2017, [Leese's] counsel filed a Notice of Appeal to the Superior Court. On May 25, 2017, [Leese's] counsel filed a motion for extension of time to file the [Pa.R.A.P. 1925(b)] statement of errors [complained of on appeal]. On May 30, 2017, [the trial court] granted [Leese's] motion for extension of time. On June 15, 2017, [Leese's] counsel filed a statement of [errors] complained of on appeal.
Based on our disposition, we will address Leese's first two issues together. In his first issue, Leese argues the trial court erred when it denied his claim that the verdict was against the weight of the evidence. See Leese's Brief at 29. Leese attacks the credibility of M.H.'s testimony based on her (1) delay in reporting the incident; (2) history of suicide attempts and schemes to "get [Leese] in trouble"; (4) statements that she was not sure if the assault was real and her "inappropriate, laughing manner" with the SAFE nurse; (3) failure to describe Leese's penis piercing; (5) normal behavior and friendly text message exchanges with Leese in the days after the incident; (6) threat of retaliation against Leese after learning Leese had told M.H.'s mother about M.H.'s theft of Xanax; and (7) absence of toxicology evidence to support M.H.'s testimony that Leese drugged her prior to the assault. See id. at 30-32.
In his second issue, Leese argues the evidence was insufficient to support his conviction of aggravated indecent assault. See id. at 32. Leese contends the Commonwealth failed to adduce evidence that Leese used his finger to penetrate M.H.'s vagina or anus. Leese asserts M.H. testified that Leese touched her with his hands, but she did not clearly describe digital penetration. See id. at 34.
Upon our review of the record, the parties' briefs, and the relevant law, we conclude the trial court thoroughly addressed and properly disposed of Leese's first two claims on appeal in its opinion. See Trial Court Opinion, 7/12/2017, at 9-18 (finding (1) the jury's verdict was not against the weight of the evidence because (a) M.H. recalled sufficient details of the sexual assault, which were corroborated by the medical testimony of SAFE Nurse Amy Alquist; (b) M.H. identified the specific pair of sweatpants she was wearing, and Trooper Colarusso recovered those sweatpants, which had semen stains on them; (c) none of Ella Fake's or Alan Kilgore's testimony helped weigh the evidence in favor of Leese; (d) the jury was free to decide whether all, part, or none of Leese's testimony was credible, and it is clear the jury did not find Leese credible in light of the testimony given by M.H.; and (e) M.H.'s testimony was not so incredible or contrary to the evidence that Leese's guilty verdict shocked the conscience of the court; and (2) the evidence was sufficient to support Leese's conviction of aggravated indecent assault because (a) M.H. testified that Leese used several parts of his body to penetrate her vagina and anus; (b) there is no evidence that Leese's conduct was for good faith medical, hygienic or law enforcement reasons; (c) Leese was at least four years older than M.H. at the time of the incident; (d) Leese and M.H. were never married to each other; (e) M.H.'s testimony presented an account of what Leese did to her, how long the incident lasted, and where it occurred; and (f) SAFE Nurse Alquist's medical testimony regarding M.H.'s injuries corroborated M.H.'s account of the assault). Accordingly, we rest upon the court's well-reasoned basis with respect to those issues.
See Commonwealth v. Widmer , 744 A.2d 745, 753 (Pa. 2000) (setting forth our standard of review regarding a weight claim); Commonwealth v. Lyons , 79 A.3d 1053, 1067 (Pa. 2013) (same), cert. denied, 134 S.Ct. 1792 (U.S. 2014); see also Commonwealth v. Melvin , 103 A.3d 1, 39-40 (Pa. Super. 2014) (setting forth our standard of review regarding a sufficiency argument), appeal denied, 112 A.3d 651 (Pa. 2015).
As the trial court recounted in its factual history of the case, forensic tests revealed the semen on the sweatpants was 7 trillion times more likely to have originated from Leese than any other random individual. See id. at 7.
In its brief, the Commonwealth argues Leese waived his sufficiency claim by failing to specify in his Rule 1925(b) concise statement which element(s) of the offense he was challenging. See Commonwealth's Brief at 15-18; Commonwealth v.Gibbs , 981 A.2d 274, 281 (Pa. Super. 2009), appeal denied, 3 A.3d 670 (Pa. 2010) (stating that when challenging the sufficiency of the evidence, an appellant's concise statement must specify the element or elements upon which the evidence was insufficient in order to preserve the issue for appeal). In his concise statement, Leese stated: "[Leese] specifically alleges that the elements of Aggravated Indecent Assault were not proven beyond a reasonable doubt[.]" Leese's Statement of Matters Complained of on Appeal Pursuant to Pa.R.A.P. 1925(b), 6/15/17, at 2 (unpaginated). Nevertheless, only one of the elements of the aggravated indecent assault charge was in dispute at trial, i.e., "penetration, however slight, of the genitals or anus of a complainant." See 18 Pa.C.S. § 3125(a)(8). That is the only element Leese challenges in his brief, and the trial court addressed it in its opinion. We conclude Leese's identification of the offense of aggravated indecent assault in his concise statement was sufficiently specific to permit our review of this issue.
In his third issue, Leese argues the trial court failed to provide adequate reasons on the record for his IDSI sentence of 10 to 20 years' incarceration, which exceeded the top of the aggravated range of the Sentencing Guidelines. See Leese's Brief at 35-36. Leese describes the sentence as "illegal" but concedes it does not exceed the lawful statutory maximum sentence. See id. Leese's claim does not implicate the legality of his sentence, but rather the discretionary aspects of the court's sentencing decision. See Commonwealth v. Sheller , 961 A.2d 187, 189 (Pa. Super. 2008), appeal denied, 980 A.2d 607 (Pa. 2009) (stating claim that trial court imposed sentence beyond the aggravated range of the sentencing guidelines without stating adequate reasons on the record represented a challenge to the discretionary aspects of sentencing).
A challenge to the discretionary aspects of a sentence is not absolute, but rather, "must be considered a petition for permission to appeal." Commonwealth v. Best , 120 A.3d 329, 348 (Pa. Super. 2015) (citation and internal citation omitted). To reach the merits of such a claim, this Court must determine:
(1) whether the appeal is timely; (2) whether [the defendant] preserved [the] issue; (3) whether [the defendant's] brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code.Commonwealth v. Edwards , 71 A.3d 323, 329-30 (Pa. Super. 2013) (citation omitted), appeal denied, 81 A.3d 75 (Pa. 2013). "[C]laims relating to the discretionary aspects of a sentence are waived if an appellant does not include a Pa.R.A.P. 2119(f) statement in his brief and the opposing party objects to the statement's absence." Commonwealth v. Brougher , 978 A.2d 373, 375 (Pa. Super. 2009).
Here, Leese failed to comply with the applicable procedural requirements for his discretionary sentencing challenge. Leese's brief does not contain a Rule 2119(f) statement, and the Commonwealth has objected this omission. See Commonwealth's Brief at 23-24. Moreover, Leese failed to raise any sentencing issues in his court-ordered Rule 1925(b) statement. See Commonwealth v. Lord , 719 A.2d 306, 309 (Pa. 1998) (stating: "[I]n order to preserve their claims for appellate review, [a]ppellants must comply whenever the trial court orders them to file a Statement of [Errors] Complained of on Appeal pursuant to Rule 1925. Any issues not raised in a 1925(b) statement will be deemed waived"). Therefore, Leese waived his claim regarding the discretionary aspects of his sentence. Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/4/2018
The parties shall attach a redacted copy of the trial court opinion in the event of further proceedings in this matter.
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