Opinion
J-S05042-16 No. 315 MDA 2015
02-17-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. STEPHEN MICHAEL KENNEDY, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence March 26, 2014 in the Court of Common Pleas of Lebanon County
Criminal Division at No.: CP-38-CR-0001208-2013 BEFORE: BENDER, P.J.E., SHOGAN, J., and PLATT, J. MEMORANDUM BY PLATT, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Stephen Michael Kennedy, appeals nunc pro tunc from the judgment of sentence imposed following his jury conviction of involuntary deviate sexual intercourse with a child and related offenses. He asserts he was denied counsel for his preliminary hearing, alleges several due process violations, claims evidentiary errors, and challenges the weight and sufficiency of the evidence. We affirm, in part on the basis of the trial court's opinions.
In his notice of appeal, Appellant incorrectly purports to appeal from the order granting him PCRA relief and reinstating his direct appeal rights. ( See Notice of Appeal, 2/12/15). A direct appeal is taken from the judgment of sentence. We have amended the caption accordingly.
The trial court filed an opinion explaining its order which denied the post-sentence motion, on August 1, 2014. The trial court also filed a Rule 1925(a) opinion on April 15, 2015, which included a reference to its prior opinion of August 1, 2014. We attach a copy of both opinions.
In its opinions, the trial court fully and correctly sets forth the relevant facts and procedural history of this case. Therefore, we have no reason to restate them at length here. For clarity and the convenience of the reader we note briefly that Appellant's conviction stemmed from an episode on the night of January 9/10, 2008, when he had the then-five year-old victim perform oral sex on him, while he was babysitting her and her younger sister. The victim informed her grandmother, and an investigation began.
Immediately preceding trial, after notice by the Commonwealth, the court conducted a Tender Years hearing. At trial a serologist and a DNA expert testified that Appellant's DNA was found in seminal fluid on a comforter (blanket) in the bedroom of the victim's mother, where the victim testified the sexual assault occurred. Appellant testified on his own behalf, denying that anything inappropriate happened. ( See N.T. Trial, 1/09/14, at 174). He denied knowledge of how the DNA got on the blanket, but maintained that he had borrowed it previously, right after Thanksgiving, when he first moved into his apartment. ( See id. at 179, 190). The victim's mother testified that she had only received the comforter weeks later, as a Christmas gift. ( See id. at 142).
After his jury conviction of all counts, Appellant, through preceding counsel, filed an omnibus post-sentence motion. ( See Post Sentence Motions, 4/04/14). The motion sought a new trial, alleging the verdict was against the weight of the evidence. Appellant also objected to the trial court's admission of testimony about the victim's previous statements to her grandmother, a Children and Youth Services case worker and a police officer, all of whom had investigated the victim's claims, under the Tender Years Doctrine. ( See id. at 2). Finally, Appellant objected generally to the sufficiency of the evidence. ( See id. at 3).
The trial court denied the post-sentence motion on August 1, 2014. Appellant's previous direct appeal was quashed for untimeliness on October 6, 2014. Appellant filed a pro se Post Conviction Relief Act (PCRA) petition, 42 Pa.C.S.A. §§ 9541-46, on December 22, 2014. On the same date the PCRA court appointed Appellant's current counsel.
After his direct appeal rights were reinstated, on January 27, 2015, this nunc pro tunc appeal followed. Current counsel filed a new statement of errors. ( See Concise Statement, 2/23/15); see also Pa.R.A.P. 1925(b). As already noted, the trial court filed a Rule 1925(a) opinion on April 15, 2015, which included a reference to its prior opinion of August 1, 2014. See Pa.R.A.P. 1925(a).
On appeal, Appellant raises twelve issues, framed as the following eight questions, for our review:
1. [W]as [Appellant] denied his constitutional right to legal representation when he was not afforded an attorney for his [p]reliminary [h]earing, where [Appellant] explicitly requested representation[?]
2. [W]as [Appellant] denied his right to due process when he was not given the requested records of his [p]reliminary [h]earing, which could have been used to impeach witnesses' testimonies at [t]rial[?]
3. [W]as [Appellant] denied his right to due process when the Commonwealth failed to disclose evidence to defense until minutes before the commencement of [t]rial, where the Commonwealth had had said evidence in its possession for several years, and where [Appellant] had requested the disclosure of all evidence, as [Appellant] was unable to examine said evidence and adequately consult with [t]rial [c]ounsel so as to prepare a valid defense[?]
4. [W]as [Appellant] denied his right to due process when the Commonwealth failed to disclose information regarding the alleged victim's mother and guardian who were involved with police charges and a pending Children and Youth investigation, and thereby given plea deals, which allowed for lighter sentences, and were subsequently sentenced on the day in which [Appellant] was charged[?]
5. [Did the t]rial [c]ourt [err] when it held a Tender Years Hearing minutes before Trial, where [Appellant] did not have sufficient notice of such a proceeding[?]
6. [Did the t]rial [c]ourt [err] when it permitted the testimony adduced from the Tender Years Hearing to be used at [t]rial[?]
7. [Was t]he verdict [ ] against the weight of the evidence adduced at [t]rial, where the DNA did not match the alleged victim and where the testimonies of witnesses' [sic] conflicted with one another[?]
8. [Was t]he verdict [ ] insufficient to sustain a conviction of Involuntary Deviate Sexual Intercourse with a Child; Indecent Assault of a Person Less Than Thirteen (13) Years of Age; Corruption of Minors; Endangering the Welfare of Children; and Indecent Exposure[?](Appellant's Brief, at 7-8).
Preliminarily, we are reminded of the observation by the Honorable Ruggero J. Aldisert, Senior Circuit Judge of the United States Court of Appeals for the Third Circuit, that this Court has previously cited in Kenis v. Perini Corp., 452 Pa. Super. 634, 682 A.2d 845 (1996), as well as other cases:
When I read an appellant's brief that contains ten or twelve points, a presumption arises that there is no merit to any of them. I do not say that it is an irrebuttable presumption, but it is a presumption that reduces the effectiveness of appellate advocacy. Appellate advocacy is measured by effectiveness, not loquaciousness.
J.J. DeLuca Co. Inc. v. Toll Naval Associates , 56 A.3d 402, 409-10 (Pa. Super. 2012).
Id. at 847 n. 3 (citations omitted); see also Commonwealth v. Snyder , 870 A.2d 336, 340 (Pa. Super. 2005) ("[T]he effectiveness of appellate advocacy may suffer when counsel raises numerous issues, to the point where a presumption arises that there is no merit to any of them.") (citations omitted).
In his first issue, Appellant asserts that he was denied his constitutional right to counsel at his preliminary hearing even though he "explicitly requested representation." (Appellant's Brief, at 13). The trial judge notes that this claim and certain additional claims were not raised until Appellant filed his concise statement of errors. ( See Trial Court Opinion, 4/15/15, at unnumbered page 6). We observe that Appellant does not reference in his brief where this issue was properly raised and preserved with the trial court. Accordingly, this issue is waived. See Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
Appellate courts in Pennsylvania routinely decline to entertain issues raised on appeal for the first time. Indeed, the Pennsylvania Appellate Rules of Procedure specifically proscribe such review. See Pa.R.A.P. 302(a). The Rules and case law indicate that such a prohibition is preferred because the absence of a trial court opinion can pose a "substantial impediment to meaningful and effective appellate review." Further, appellate courts normally do not consider matters outside the record or matters that involve a consideration of facts not in evidence. Most importantly, appellate courts do not act as fact finders, since to do so would require an assessment of the credibility of the testimony and that is clearly not our function.Commonwealth v. Grant , 813 A.2d 726, 733-34 (Pa. 2002) (case citations and internal quotation marks omitted). Moreover, it would not merit relief.
In a predominantly narrative driven argument which relies largely, if not exclusively, on Appellant's personal recollections, Appellant maintains that the prosecutor told him that counsel to represent him at the preliminary hearing had left his office, was on his way to court, and other similar assurances. ( See Appellant's Brief, at 14). Nevertheless, no counsel arrived.
The Commonwealth vigorously disputes all of these claims and insists that Appellant did not ask for representation, calling Appellant's facts "an absolute lie." (Commonwealth's Brief, at 7).
There is no transcript of the preliminary hearing. ( See Trial Ct. Op., 4/15/15, at unnumbered page 4). Consequentially, there is no support for any of Appellant's claims in the certified record.
This Court cannot meaningfully review claims raised on appeal unless we are provided with a full and complete certified record. Commonwealth v. O'Black , 897 A.2d 1234, 1240 (2006). This requirement is not a mere "technicality" nor is this a question of whether we are empowered to complain sua sponte of lacunae in the record. In the absence of an adequate certified record, there is no support for an appellant's arguments and, thus, there is no basis on which relief could be granted.Commonwealth v. Preston , 904 A.2d 1, 7 (Pa. Super. 2006), appeal denied, 916 A.2d 632 (Pa. 2007).
Moreover, even assuming for the sake of argument that Appellant did not receive the assistance of counsel that he requested for the preliminary hearing, he is not automatically entitled to a reversal of his conviction.
It is axiomatic that the preliminary hearing is a "critical stage" of a criminal proceeding, at which Appellant is entitled to the assistance of effective counsel. Coleman v. Alabama , 399 U.S. 1, 90 S. Ct. 1999, 26 L.Ed.2d 387 (1970); Commonwealth v. Rines , 247 Pa. Super. 429, 372 A.2d 901 (1977); Commonwealth v. Redshaw , 226 Pa. Super. 534, 323 A.2d 92 (1974). However, lack of representation at a preliminary hearing must result in specific prejudice to a defendant, Coleman , supra ; Commonwealth v. Sawyer , 238 Pa. Super. 213, 357 A.2d 587 (1976), that is, it is subject to the harmless error test. See Redshaw , 226 Pa. Super. at 536, 323 A.2d at 93. "If Appellant suffers no prejudice, he is entitled to no remedy." Rines , 247 Pa. Super. at 432, 372 A.2d at 903 (citation omitted).Commonwealth v. Carver , 436 A.2d 1209, 1211 (Pa. Super. 1981) (emphases added).
Here, Appellant offers mere generalities about the benefit of counsel who could have asked "legally-appropriate questions" at the preliminary hearing. (Appellant's Brief, at 18). He suggests an identification issue but fails to develop it and offers absolutely no authority whatsoever in support of it. ( See id.). Instead, he basically tries to blame Charles Tapley, a friend and visitor that night. Tapley testified at trial. He claimed he just came to deliver cigarettes to Appellant and only stayed briefly. ( See N.T. Trial, 1/09/14, 153-54). The jury was able to weigh the testimony of both men and weigh their credibility.
In any event, identification is not seriously at issue in this case, where the victim knew Appellant as the babysitter who in fact had babysat her and her sister at least one previous night as well as the night in question. He was a friend of the family through the mother's boyfriend. The victim identified Appellant by name to her grandmother as her assailant. Appellant's first issue is waived and would not merit relief.
We also note that this Court has held that "[o]nce appellant has gone to trial and been found guilty of the crime, any defect in the preliminary hearing is rendered immaterial." Commonwealth v. Jackson , 849 A.2d 1254, 1257 (Pa. Super. 2004) (citing Commonwealth v. Tyler , 587 A.2d 326, 328 (Pa. Super. 1991), appeal quashed, 617 A.2d 1263 (Pa. 1992)).
In his second issue, Appellant claims a denial of due process in the failure to provide him with the transcript of the preliminary hearing. ( See Appellant's Brief, at 7). This issue is moot. We defer to the trial court's finding, previously noted, that a transcript of the preliminary hearing does not exist. Appellant's second issue does not merit relief.
Moreover, we note that, because no testimony by Appellant from the preliminary hearing was offered at trial, he suffered no prejudice from the use of uncounseled testimony.
Appellant's third issue challenges the delivery of evidence only minutes before trial began. ( See Appellant's Brief, at 7). The trial court notes this is one of the issues raised for the first time in the concise statement. ( See Trial Ct. Op., 4/15/15, at unnumbered page 6). Appellant does not reference any objection to the trial court, request for a delay of trial or a continuance, or any other objection whatsoever prior to the filing of the concise statement. ( See Appellant's Brief, at 20-23). Appellant's issue is waived. See Pa.R.A.P. 302(a).
Appellant's fourth claim is that the Commonwealth failed to advise him until shortly before trial of mother's and guardian's involvement with the police and Children and Youth Services. ( See Appellant's Brief, at 4-5, 23-25). It fails for the same reason. ( See Trial Ct. Op., 4/15/15, at unnumbered page 6); see also Pa.R.A.P. 302(a).
Appellant's fifth and sixth claims challenge the trial court's admission of testimony under the Tender Years doctrine, after a hearing, before trial. ( See Appellant's Brief, at 8). He objects to the timing of the hearing and the use of testimony at trial. ( See id. at 25-28). The claims do not merit relief.
The standard of review governing evidentiary issues is settled. The decision to admit or exclude evidence is committed to the trial court's sound discretion, and evidentiary rulings will only be reversed upon a showing that a court abused that discretion. A finding of abuse of discretion may not be made "merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Commonwealth v. Laird , 605 Pa. 137, 988 A.2d 618, 636 (2010) (citation and quotation marks omitted); see also Commonwealth v. Sanchez , 614 Pa. 1, 36 A.3d 24, 48 (2011). Matters within the trial court's discretion are reviewed on appeal under a deferential standard, and any such rulings or determinations will not be disturbed short of a finding that the trial court "committed a clear abuse of discretion or an error of law controlling the outcome of the case." Commonwealth v. Chambers , 602 Pa. 224, 980 A.2d 35, 50 (2009) (jury instructions)[.]Commonwealth v. Koch , 106 A.3d 705, 710-11 (Pa. 2014).
Here, we affirm on the basis of the trial court's opinion. ( See Trial Court Opinion, 8/01/14, at 10-16) (finding Appellant had adequate notice of hearing; and concluding testimony contained sufficient indicia of reliability, including spontaneity and consistency, victim's use of terminology that was appropriate for a child of her age, and was corroborated by physical evidence). Appellant's fifth and sixth claims do not merit relief.
Appellant also challenges the weight and the sufficiency of the evidence. ( See Appellant's Brief, at 8; see also id. at 28-49). Appellant presents, at some length, an account of the incident, highlighting perceived inconsistencies in the narrative based on his review of trial testimony. ( See id.).
As recognized by Appellant, only if the evidence is so unreliable or contradictory as to make any verdict based on it pure conjecture, is a new trial based on a weight claim warranted. ( See id. at 4). Also, on sufficiency, Appellant acknowledges that it was the province of the jury as factfinder to determine the weight of the testimony and to believe all, part or none of the evidence. ( See id. at 5).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court we conclude that there is no merit to the weight and sufficiency issues Appellant has raised on appeal. The trial court opinion properly disposes of the questions presented. ( See Trial Ct. Op., 8/01/14, at 16-21) (concluding: (1) (jury verdict did not shock one's sense of justice; and (2) evidence was sufficient to sustain jury's verdict of guilty on all charges). Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/17/2016
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