Opinion
199 WDA 2023 J-A09041-24
08-26-2024
COMMONWEALTH OF PENNSYLVANIA v. TERRY DEBERRY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered January 9, 2023 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0000414-2022
BEFORE: DUBOW, J., KUNSELMAN, J., and NICHOLS, J.
MEMORANDUM
NICHOLS, J.
Appellant Terry Deberry appeals from the judgment of sentence imposed following his conviction for one count each of rape of a child, unlawful contact with a minor (sexual offenses), corruption of minors, and two counts of indecent assault of a person less than thirteen years of age. On appeal, Appellant raises claims concerning Pa.R.Crim.P. 600, the trial court's evidentiary rulings, and the sufficiency of the evidence. We affirm.
18 Pa.C.S. §§ 3121(c), 6318(a)(1), 6301(a)(1)(ii), and 3126(a)(7), respectively.
The trial court set forth the following factual and procedural history:
The evidence at trial established the following. The [victim], age 13 at time of trial, testified she was nine years old when she met Appellant at her grandmother's house. She knew Appellant as the boyfriend of her Aunt Latonya. The [victim] saw Appellant and her aunt numerous times at the grandmother's house and also when the [victim] visited at an upstairs apartment of Appellant and Aunt Latonya. The [victim] has three cousins who lived with
Appellant and Aunt Latonya, and the [victim] often went to the apartment to play with them. The [victim's] first recollection of inappropriate contact by Appellant was in the kitchen of the grandmother's house when Appellant reached out and squeezed the [victim's] buttocks. On another occasion, Appellant touched the [victim's] buttocks, her breasts and her "private part" when the [victim] was watching television in the grandmother's living room. Appellant repeatedly engaged in this behavior at the grandmother's residence and also at Appellant's apartment. The [victim] testified Appellant inappropriately touched the [victim] over and under her clothing. Appellant engaged in sexual intercourse with the [victim] on Appellant's sofa and this caused the [victim] pain. Appellant also engaged in sexual intercourse with the [victim] at the grandmother's residence. There were at least two incidents of sexual intercourse: one when the [victim] was 12 years old, and another [when she was 11] years old. The [victim] was afraid to tell anyone because Appellant asked her to keep the sexual contacts a secret and told her she would get into trouble if she told anyone.
The [victim] testified Appellant entered his telephone number and saved it as a contact on the [victim's] cell phone. The name associated with Appellant's number was "Pretty Boy." The nickname Appellant used for the [victim] was "Juicy." Appellant asked the [victim] to send him pictures of her body, her whole body, as he wanted to gauge her "thickness." Thereafter, on at least one occasion the [victim] sent Appellant a photo of herself. In the photo the [victim] was partially clothed, wearing only shorts and a bra. In subsequent texts, Appellant commented about the size of the [victim's] breasts and made other inquiries which made the [victim] uncomfortable. Appellant told the [victim] in text messages he was no longer having sexual relations with the aunt and he loved the [victim].
[The victim's] father saw the text conversations between Appellant and the [victim] and became angry. Subsequently, the [victim] spoke with "Joe" at the Children's Advocacy Center about the incidents with Appellant. K.S., the [victim's] mother, testified she previously considered Appellant a friend. Appellant was her cousin's boyfriend and he had worked on K.S.'s car. Due to her association with Appellant, she had saved his cell phone number in the contacts on her cell phone. On July 26, 2021, [K.S.] received a phone call from the [victim's] father advising a grown man was calling the [victim's] phone. [K.S.] testified she didn't know what the father was talking about. The father showed [K.S.]
the [victim's] phone. [K.S.] recognized the caller's number as belonging to Appellant, both from the distinct area code of the phone number which was "815", and the fact the phone number was the same number saved on [K.S.'s] phone in her contacts as belonging to Appellant. Distraught, the mother and father drove to Appellant's residence to investigate the situation. While en route, the mother intercepted a face time video call from Appellant to the [victim] on the [victim's] phone which, by this time, the mother had taken possession of. When the mother answered the [victim's] phone, the image of Appellant's face appeared on the camera screen. Appellant spoke and [K.S.] recognized Appellant's voice. Suddenly the call was disconnected. When the [victim's] parents arrived at Appellant's residence, a confrontation ensued. The mother called the police who, inter alia, instructed the parents to take the [victim] to the hospital. The parents complied. Afterward, the mother attempted to call Appellant and learned his phone number was disconnected. The mother reviewed some of the text messages between the [victim] and Appellant and she testified to their content.
Karen Wickwire, a veteran nurse practitioner at UPMC Hamot and UPMC Children's Hospital, testified as an expert in pediatric sexual abuse. Wickwire conducted two forensic examinations of the [victim]: one on July 27, 2021 and another on August 23, 2021. The [victim] reported to Wickwire the nature of Appellant's inappropriate physical contacts which included touching the [victim's] chest and buttocks, and touching her "private part" with his "private part." The [victim] reported the contacts were painful. The physical findings of redness and bumps upon the initial forensic exam were resolved by the second exam. Wickwire testified sexual intercourse with a child involving vaginal penetration can occur absent apparent injury.
The evidence was additionally supported by the testimony of the investigating officers, City of Erie Police Officers Detective Sergeant Joseph J. Spusta and Detective Salvatore Velez. Detective Spusta, stationed at the Bradley Foulk Children's Advocacy Center, possesses significant experience in investigating crimes against children, and in conducting and otherwise participating in forensic interviews of children. As part of this investigation he conducted a recorded forensic interview of the [victim] at the Center on July 30, 2021. The [victim] was 12 years old. The audio and video recorded interview was played for the jury and introduced into the record as Commonwealth Exhibit No. 2.
Detective Velez, a 20-year veteran with the City of Erie Police Department, is a detective in Major Crimes, with a focus in the Special Victims Unit. He received the Child Line Report of the allegations, and is the affiant and charging officer in the case. Detective Velez remotely observed the July 30, 2021 recorded interview of the [victim]. He identified Appellant as a suspect from the Child Line Report, the interview of the [victim], his interview of the [victim's] mother[,] and upon confirmation the telephone number associated with Appellant on the mother's phone and [victim's] uncle's phone belonged to Appellant. Velez reviewed screen shots of the texts between Appellant and the [victim], and subsequently obtained the [victim's] cell phone from which he read the texts directly.
Prior to Appellant's arrest, Velez unsuccessfully attempted to reach Appellant. Velez went to Appellant's last known address and left calling cards, but Appellant apparently vacated the premises and left no forwarding address. Appellant's girlfriend, the [victim's] Aunt Latonya, failed to return Officer Velez's telephone calls.
After Appellant's arrest, Velez conducted an audio and video recorded interview of Appellant at the police station. Prior to the interview, Velez read to Appellant the Miranda rights and Appellant executed a written waiver of those rights. The Miranda rights waiver form was introduced into the record as Commonwealth Exhibit No. 6. The audio and video recorded interview of Appellant was played for the jury and introduced into the record as Commonwealth Exhibit No. 7.
During the investigation, Velez came upon a transcript of a conversation which occurred after the charges against Appellant were filed, where Appellant stated he gave "them" a different number for his cell phone "before all this----." Velez identified the text messages in Commonwealth Exhibit No. 1 between Appellant and the [victim] as the same text messages he reviewed as part of the investigation. The texts were sexual in nature and included photographs of the [victim].
On January 9, 2023, Appellant was sentenced to an aggregate of 11 to 22 years of incarceration as follows:
Count One: Rape of Child - 10 to 20 years of incarceration;
Count Two: Unlawful Contact with Minor - 10 to 20 years of incarceration, concurrent with Count One;
Count Three: Corruption of Minors - 1 to 2 years of incarceration, consecutive to Count One;
Count Four: Indecent Assault of Person Less Than 13 Years of Age - Merged with Count One; and
Count Five: Indecent Assault of Person Less Than 13 Years of Age - 1 to 2 years of incarceration, concurrent with Count Three.
The sentences were within the standard range of the sentencing guidelines. The [trial court] directed [Appellant] to pay costs, determined Appellant was not RRRI eligible, and ordered three-year reentry supervision. The [trial court] also directed Appellant to undergo a sexually violent predator assessment.
On January 18, 2023, Appellant filed a post-sentence motion. Appellant generically averred the verdicts and special question answers were against the weight of the evidence, and the evidence at trial was insufficient to support the verdicts or affirmative answers to special questions. On January 19, 2023, the court denied the motion.Trial Ct. Op., 5/5/23, at 2-7 (citations omitted and some formatting altered).
See Miranda v. Arizona, 384 U.S. 436 (1966).
Appellant filed a timely notice of appeal and a court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed an opinion addressing Appellant's claims.
On appeal, Appellant raises the following issues for our review:
1. Whether the trial court erred in denying [] Appellant's request for relief pursuant to [Pa.R.Crim.P.] 600?
2. Whether the trial court committed an abuse of discretion and/or error of law when it admitted, over objection, the testimony of Detective Velez, that constituted inadmissible hearsay?
3. Whether the Commonwealth failed to present sufficient evidence to prove the charges of rape of a child, unlawful contact with a minor, corruption of minors and indecent assault?Appellant's Brief at 4 (formatting altered).
Rule 600
In his first issue, Appellant contends that the trial court erred when it denied Appellant's motion for nominal bail pursuant to Pa.R.Crim.P. 600. Appellant's Brief at 11-15. Specifically, Appellant argues that the Commonwealth failed to establish that he "presented a danger to any person or the community that could not be abated by available bail conditions." Id. at 15.
In response, the Commonwealth argues that this issue is moot because Appellant has been convicted and sentenced and is, therefore, no longer subject to pretrial incarceration. Commonwealth's Brief at 7.
The Pennsylvania Rules of Appellate Procedure permit the immediate review of an order pertaining to bail. Commonwealth v. Talley, 236 A.3d 42, 49 n.2 (Pa. Super. 2020) (citing Pa.R.A.P. 1762(b)(2)), aff'd, 265 A.3d 485 (Pa. 2021). Our Supreme Court has recognized that a challenge to a denial of nominal bail pursuant to Pa.R.Crim.P. 600 when a defendant has been convicted and is serving a sentence is "technically moot." Commonwealth v. Sloan, 907 A.2d 460, 464-65 (Pa. 2006); see also Commonwealth v. Samuel, 102 A.3d 1001, 1006 (Pa. Super. 2014).
The Sloan Court reached the merits of the nominal bail issue, concluding that an exception to the mootness doctrine existed in that case. See Sloan, 907 A.2d at 465 (noting that this Court may decide technically moot issues on the merits where they are of a recurring nature yet capable of repeatedly evading review and involve issues of important public interest). We further note that in Talley, this Court recognized that although the Rule 600 nominal bail claim before it was "technically moot," it nonetheless reached a merits decision because part of the defendant's claim was derived from the allegation that "the wrongful denial of nominal bail deprived him of a meaningful opportunity to assist in his own defense and, as such, contributed to his conviction." Talley, 236 A.3d at 49 n.2. However, in the instant case, Appellant has not raised an issue that is capable of repetition yet likely to evade review, important to the public interest, or established that he will suffer detriment without this Court's decision. See Interest of N.E.M., 311 A.3d 1088, 1094 (Pa. 2024) (identifying the exceptions to the mootness doctrine). Accordingly, we discern no exception to the mootness doctrine. See id.
Here, Appellant has been convicted and is appealing from the judgment of sentence. Therefore, because Appellant is no longer in pretrial detention, has been convicted, is serving his sentence and the appeal is from the judgment of sentence, we decline to address this issue further as it is moot. See Sloan, 907 A.2d at 464-65; Samuel, 102 A.3d at 1006.
Evidentiary Claim
Appellant next contends that the trial court erred when it admitted inadmissible hearsay testimony from Erie City Police Detective Salvador Valez regarding the confirmation of Appellant's cell phone number. Appellant's Brief at 16.
The Commonwealth responds that the trial court's admission of the testimony in question was a harmless error. Commonwealth's Brief at 6-7.
We review a trial court's evidentiary rulings for an abuse of discretion. Commonwealth v. Thompson, 314 A.3d 922, 926 (Pa. Super. 2024). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Commonwealth v. Santos, 176 A.3d 877, 882 (Pa. Super. 2017) (citation omitted).
The Pennsylvania Rules of Evidence generally prohibit the admission of hearsay evidence, subject to enumerated exceptions. Pa.R.E. 802 (rule against hearsay); see also Pa.R.E. 803, 803.1, 804 (exceptions to the rule against hearsay). Our Supreme Court has explained: "Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Hearsay evidence is not admissible except as provided by the Pennsylvania Rules of Evidence, th[e Pennsylvania Supreme] Court, or by statute." Commonwealth v. McCrae, 832 A.2d 1026, 1034 (Pa. 2003) (citing Pa.R.E. 801(c), 802). "An out-of-court statement is not hearsay when it has a purpose other than to convince the fact finder of the truth of the statement." Commonwealth v. Busanet, 54 A.3d 35, 68 (Pa. 2012).
In Commonwealth v. Rush, 605 A.2d 792 (Pa. 1992), the defendant appealed his convictions for aggravated assault and possession of an instrument of crime based on allegations that he stabbed the owner of a bookstore. Rush, 605 A.2d at 793. In that case, prior to the stabbing, the defendant told the bookstore owner that his hobby was making picture frames out of cigarette boxes. Id. During the investigation, a detective visited the defendant's home, which he shared with his mother. Id. at 795. At trial, the detective testified that when he asked the defendant's mother if she had any picture frames that the defendant made, she gave the detective a picture frame made out of cigarette boxes. Id. The defendant's mother was not called to testify during the trial. Id.
The Rush Court concluded that because the defendant's mother was never called to testify, her "implied statement that [the defendant] had made the picture frame was not subject to cross examination, and [the defendant] did not have an opportunity to confront the witness. The implied statement was hearsay and did not fall into any hearsay exceptions." Id. (citing Chambers v. Mississippi, 410 U.S. 284 (1973)).
However, this Court has explained:
Not all errors at trial, . . . entitle an appellant to a new trial, and the harmless error doctrine, as adopted in Pennsylvania, reflects the reality that the accused is entitled to a fair trial, not a perfect trial. . . . Harmless error exists when, inter alia, the erroneously admitted evidence was merely cumulative of other untainted evidence which was substantially similar to the erroneously admitted evidence.
Harmless error is a technique of appellate review designed to advance judicial economy by obviating the necessity for a retrial where the appellate court is convinced that a trial error was harmless beyond a reasonable doubt.Commonwealth v. Lewis, 39 A.3d 341, 351 (Pa. Super. 2012) (citations omitted and some formatting altered).
In the instant case, Appellant raises a hearsay challenge to the following testimony from Detective Velez during the Commonwealth's direct examination:
Q: How did you develop [Appellant] as a suspect?
A: I had received initial information along with the 104, and through the course of the interview, after the hearing -- speaking to the interview, [Detective ] Joseph Spusta's interview, that she referred to TY. I confirmed that with [K.S. as well as confirming the phone number from her for [Appellant]. Furthering along, when I spoke to [K.S.'s] brother --
[Appellant's counsel]: I'm going to object to any hearsay at this point.
The Court: Overruled. All he said was he spoke to the person.
[Appellant's counsel]: I just wanted -- I didn't want to miss my chance to object because it sounded like he wasn't really done, and I wanted to make the objection clear before he gets to what he was told in.
The Court: Bit premature, so it's overruled.
[Detective Velez]: Then I spoke to her brother. He showed me on his phone that was the number he had for [Appellant] as well.
[Appellant's counsel]: Your Honor, that's my objection. It's hearsay.
The Court: Overruled. It's not a statement.N.T. Trial, 11/15/22, at 135.
The victim testified at trial that TY was another nickname for Appellant. N.T. Trial, 11/15/22, at 26.
K.S. is the victim's mother. N.T. Trial, 11/15/22, at 88.
In its Rule 1925(a) opinion, the trial court addressed Appellant's claim as follows:
Detective Velez's testimony that the [victim's] uncle showed him the uncle's cell phone which contained Appellant's stored cell phone number did not constitute improper hearsay testimony. Velez's testimony reveals his investigation included his personal observation of Appellant's cell phone number on the uncle's cell phone. The [trial court] properly overruled the hearsay objection. The testimony of Velez did not include an out-of-court statement. Even if error occurred, any such error was harmless. A plethora of evidence was introduced at trial that Appellant generated the offensive text message communications to the [victim].Trial Ct. Op. at 9-10.
Following our review of the record, we conclude that the trial court erred when it overruled Appellant's hearsay objection. In the instant case, like the defendant's mother in Rush, the victim's uncle did not testify at trial. See Rush, 605 A.2d at 795. Accordingly, Detective Velez's testimony regarding the victim's uncle's implied statement, by showing Detective Velez Appellant's phone number as it was listed in the victim's uncle's cell phone, was inadmissible hearsay. See id. Therefore, we conclude that the trial court abused its discretion when it overruled Appellant's objection. See id.; McCrae, 832 A.2d at 1034; Thompson, 314 A.3d at 926.
However, we conclude that the trial court's error was harmless, as there was other evidence introduced at trial concerning Appellant's cell phone number. Specifically, the victim testified that Appellant put his cell phone number into her phone, and that she labeled Appellant's phone number as "Pretty Boy." N.T. Trial, 11/15/22, at 50. The Commonwealth also presented testimony from the victim's mother, K.S., who testified that she was familiar with Appellant's cell phone number and stated that she recognized Appellant's phone number on the victim's phone, which was listed under the contact "Pretty Boy." Id. at 94-95. The number in the victim's phone matched the number that K.S. had in her phone for Appellant. Id. at 96.
K.S. testified that she was able to readily recognize Appellant's phone number based on his area code, which was based in Illinois. Id. at 95.
Based on this record, we conclude that to the extent the trial court erred in admitting Detective Velez's testimony regarding the phone number as it appeared in the victim's uncle's cell phone, the error was harmless. See Lewis, 39 A.3d at 351. Indeed, the evidence was cumulative to K.S.'s testimony that the phone number at issue in the victim's phone matched Appellant's number in K.S.'s phone. See id. Accordingly, Appellant is not entitled to relief.
Sufficiency of the Evidence
Next, Appellant raises a challenge to the sufficiency of the evidence for his convictions. Appellant's Brief at 18-29. In its opinion, the trial court concluded that Appellant waived his sufficiency claims by failing to adequately specify the elements he sought to challenge on appeal in his Rule 1925(b) statement. See Trial Ct. Op. at 10.
This Court has explained that in order to "preserve a sufficiency claim, [an appellant's] Rule 1925(b) statement must specify the element or elements upon which the evidence was insufficient." Commonwealth v. Widger, 237 A.3d 1151, 1156 (Pa. Super. 2020) (citation omitted). If an appellant does not specify such elements, the sufficiency claim is waived. See Commonwealth v. Roche, 153 A.3d 1063, 1072 (Pa. Super. 2017).
Here, Appellant filed a Rule 1925(b) statement challenging the sufficiency of the evidence for all his underlying convictions. See Rule 1925(b) Statement, 3/7/23, at 2. Appellant raised the following claim in his Rule 1925(b) statement: "The defense made a timely objection to the sufficiency of the evidence (at the close of the evidence with regard to Count 2 and in a post-sentence motion as to all counts), which was denied." Id. (some formatting altered).
In his post-sentence motion, Appellant raised the following sufficiency of the evidence claim:
[Appellant] respectfully contends that the evidence presented at trial was insufficient for any trier of fact to find him guilty on any of the counts or to find any of the special questions in the affirmative.Appellant's Post-Sentence Motion, 1/18/23.
In both his post-sentence motion and his Rule 1925 statement, Appellant failed to identify the element or elements for which the evidence was insufficient. See id. Because Appellant has failed to identify the specific elements of his sufficiency claim for the trial court in his post sentence motion, nor in his Rule 1925 statement filed with this Court, his sufficiency claim has not been preserved, accordingly, the appellate review of this issue before this Court is waived. See Widger, 237 A.3d at 1156; Roche, 153 A.3d at 1072. Therefore, Appellant is not entitled to relief.
As noted above, Appellant was convicted of multiple sexually based offenses which have disparate and unrelated elements. See 18 Pa.C.S. §§ 3121(c), 6318(a)(1), 6301(a)(1)(ii), and 3126(a)(7).
For these reasons, we affirm.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.