*1 accurately conveyed the law to clearly trial and such, the assertion Appellant’s to consider jury, instructing them limiting a the failing to issue court erred waived, design submitted Appellant because whether the alternative instruction a request practical. feasible and specifically by Appellant submit did T.C.O., 12/24/09, the Consequently, instruction at 32-33. proposed limiting Stash, below. Vernon v. part on the of proceedings I no reversible error discern (“An (1987) 36, A.2d 441 Pa.Super. judge. the trial trial court of error that the assignment reasons, relying upon For these will not instruction give specific to a failed 1925(a) opin- Alejandro’s Pa.R.A.P. Judge affirmatively ap- it unless be considered ion, affirm respectfully I dissent. I would request that a for from the record pears in favor of CRC. judgment entered that it was made [and] such an instruction court[.]”).2 by the trial was denied
Fourth, err in judge did not the trial jury on
failing to instruct contained a
claim that Precision Cleaner Quite simply, Ap-
manufacturing defect. any competent evi-
pellant failed to adduce jury to draw permit dence that would Pennsylvania, COMMONWEALTH an inference that Precision Cleaner deviat- Appellee T.C.O., design. original ed from its 12/24/09, at 21-24. I note that CRC’s Precision
representations regarding Clean- BROOKS, Appellant. Marc capabilities do not performance er’s Precision amount to evidence of Cleaner’s Pennsylvania. Superior Court See actual, Ap- Brief for design. scientific 19, Argued May 2010. pellant at 19-20. Filed Oct. Fifth, judge the trial did not err in 8, 2010. Reargument Denied Dec. charge elaborate failing provide more risk-utility test. on the third element of Indeed,
Brief for 26-29.
alleged omission would be redundant of charge judge provided; that the trial omission, charge
even with
ference,
properly
appeal that were not
ob-
Appellant's exceptions to the
issues on
Stern,
charges
Appellant merely re-
jected
indicate that
to at the time of trial.
re
negligence
quested
comparative
(1953).
Although the
John E. lant. Hannon, Atty., Dist. for Later in
Jay W. Asst. C.B. and G.W. ceased Com., living with appellee. [Appellant] biologi- and their
cal mother. C.B. entered into foster ALLEN, LAZARUS, BEFORE: through care Children Youth Ser- FREEDBERG,* JJ. (CYS) vices and G.W. went to live with However, Joyce Broomall. [Appellant’s] ALLEN, BY J.:
OPINION rights regard visitation were not suspended until December 2004 and (“Appellant”) Marc Brooks from appeals Debíase, Lydia [sic], case worker CYS judgment imposed of sentence after a *4 was able to three or observe four of him jury convicted of two counts of endan- these visits. She testified that during victims, gering the welfare of two minor as these visits C.B. would sit close to [Ap- multiple well as sexual offenses involving pellant] “try very and to be attentive to one of the minor victims. We affirm. his father to make sure that [Appellant] trial ably per- court summarized the stayed calm.” procedural history tinent facts and as fol- However, it wasn’t until ei- lows: ther child disclosed the sex acts is the [Appellant] biological father of [Appellant] on In July committed them. longtime boyfriend and was the of C.B. year, of that C.B. told Elizabeth McKer- mother, now Sherry G.W.’s deceased nan, counselor, his trauma that he had Walls. Until the four of them— sexually been abused. Over the course C.B., G.W., Walls, Sherry [Appel- of their meetings, C.B. informed Ms. together. The children lant] tes- —lived McKernan that father his had beaten they that while [Appel- tified lived with him, sodomized him and forced him to lant], they watched him physically abuse perform oral sex. Ms. McKernan also They their mother. also testified that testified that he while made these disclo- year, the warm months of that making eye sures C.B. “would be no when their mother was absent from the contact, down, looking fidgety” and that apartment, [Appellant] sexually would “one time he ... up curled into the fetal abuse them. [Appel- C.B. testified that position after making disclosure.” Ms. him perform forced oral sex on lant] reported McKernan these allegations of him [Appellant] and that sodomized him. sexual abuse. testified that [Appellant] C.B. forced During the summer of Ms. Debí- perform him to oral sex ... “a lot [like] Brooomall, Joyce ase informed G.W.’s day,” once a and that anal sex occurred mother, adoptive making that C.B. was just frequently. however, allegations; Ms. Broomall tes- half-brother, Like her G.W. testified tified that Ms. Debíase did not reveal [Appellant] forced perform her to any specifics allegations. about oral sex on him. She testified that these About a month after Ms. Debíase con- her, incidents occurred more then ten times. tacted Ms. Broomall initiated a con- Both children [Appellant] testified that changes versation with G.W. about the threatened to beat or kill them body undergo. or their G.W.’s was about they mother if perform crying hysterically refused to G.W. then started they anyone sex acts on him or if [Appellant] told and told Ms. Broomall that they what were doing. perform forced her to oral sex on him. * Judge assigned Superior Retired Senior Court. (“IDSI”) Assault, ], disclosure, Sexual course Ms. Broo- hearing this
Upon Endangering Debíase, Assault and Indecent who she mall contacted Ms. Children, in that the of the Welfare Phillapel- Maria then contacted believes indentify failed la, Sexual Abuse agent an of [CYS’s] turn, the Defendant? Marc Brooks as informed Phillapella, Ms. Unit. Police Kuryan Officer of the Chester sufficient the evidence was 2. Whether received infor- that she had Department beyond a reasonable to establish allegations abuse mation about sexual guilty doubt that investi- and G.W. While Assault, made IDSI, As- Indecent Sexual Kuryan Officer allegations, gating sault, Endangering the Welfare ob- both G.W. and C.B. and interviewed Children, in that Common- each of recorded statements from tained the commis- failed to wealth relaying allegations of sexual them fixed the crime on date sion of (except forth above for C.B.’s abuse set certainty and within with reasonable allegation sodomy). let statutory period; prescribed *5 trial, via in and G.W. testified frame set forth
At alone the time [Appel- alleged about the abuse Informations? video Criminal subjected Ms. McKer- them to. lant] met its 3. Whether nan, Broomall, Kuryan Officer Ms. con- prove by clear and burden court about the disclo- open testified person that a is vincing evidence made to them and G.W. had sures C.B. when most sexually predator violent abuse. regarding Law statute’s criteria Megan’s of the (cita- been met and when 12/29/09, have not at 2-4 Opinion, Trial Court omitted). repeat not a sex offender? person is tions of Although jury acquitted Appellant Brief at 5. C.B., it con- by all sexual offenses claimed claims, Appellant pres- In his fust two him offenses multiple
victed of the sexual sufficiency challenges to the separate ents and convicted he committed G.W. his convictions. supporting of the evidence endangering him of the welfare of each of review is well settled: Our standard subsequently sen- child. The trial court apply reviewing The standard we of twen- aggregate tenced him to an term is whether sufficiency of the evidence forty-five years of ty-two and one-half to admitted at tri- viewing all evidence addition, In the trial court imprisonment. to the light al in the most favorable that was a sex- Appellant later determined winner, evi- verdict there sufficient Megan’s ually predator violent under to find dence to enable the fact-finder Appel- appeal Law.1 This followed. Both beyond crime every element of the with complied lant and the trial court have applying In reasonable doubt. 1925(a). Pa.R.A.P. test, weigh the evi- may we above on Appellant following raises the issues for judgment and substitute our dence appeal: addition, we note the fact-finder. circumstances estab- that the facts and
1.Whether the evidence was sufficient need not by the Commonwealth beyond a reasonable lished establish innocence. every possibility of guilty preclude Appellant doubt regarding a defendant’s Any Inter- doubts [Involuntary Deviate Sexual §§ 1. 42 Pa.C.S.A. 9791-9799.9. by the fact-finder
guilt may be resolved
in court identification of [Appellant] as
in-
unless the evidence is so weak and
conjunction
Marc Brooks in
with the
conclusive that as a matter of law no
other testimony identifying Marc Brooks
-
may
fact
drawn from
probability of
be
perpetrator
as the
of the crimes was
the combined circumstances.
Com-
identify
sufficient to
[Appellant] as the
may
its
monwealth
sustain
burden
responsible
individual
for the crimes.
proving every element of the crime be-
(cita-
12/29/09,
Trial
Opinion,
Court
at 6
by
yond a reasonable doubt
means
omitted).
tions
Our review of the record
wholly circumstantial evidence. More-
supports the trial court’s conclusions. Be-
over,
test,
in applying the above
cause the victims
via
testified
closed-circuit
be evaluated
all
entire record must
television, in-court identification of Appel-
actually
evidence
received must be con-
Nevertheless,
impossible.
lant was
Finally,
of fact
sidered.
[finder]
court,
found
the trial
the victims’ testi-
credibility
while
of wit-
passing upon
mony, coupled -withMs. Debiase’s in-court
weight
nesses and the
of the evidence
identification, was sufficient to establish
all, part
free
produced, is
to believe
Appellant
perpetrator
was the
none of the evidence.
sexual abuse.
cites no
authority
Jones,
Commonwealth v.
704 in
reply
support
his
brief to
his assertion
denied,
(Pa.Super.2005),
587 Pa.
appeal
ignore
that we must
C.B.’s entire testimo-
(2006) (citations
686,
In addition to the statu regarding The reasons for jury’s C.B. the tory charged elements of the crimes be unknown, verdict are Appellant’s spec- doubt, a yond reasonable the Common ulation that C.B. was found not to be credi- identity wealth must also establish the Jones, speculation. ble is mere supra See the the perpetrator defendant as of the (explaining that deciding when the credi- crimes. first claims that the bility weight of a witness and the of the case, Commonwealth failed to do so in this produced, evidence the jury as fact finder thereby causing jury spec the to resort to all, is free to believe part none of the guilty ulation to arrive at verdicts. evidence). rejected Appellant’s
The trial court Appellant next claims that the evi claim as follows: dence was insufficient to sustain his con case,
In the prosecution’s instant victions “the because Commonwealth failed evidence, favorably, when viewed most present any tending prove to evidence to identify [Appellant] was sufficient to any commission of the crime on date perpetrator charged of the crimes. certainty, fixed with reasonable within the testified that his dad’s name statutory period, alleged let alone that the Marc Brooks and that made him his dad crimes were May-Au committed between do “sexual stuff.” Elizabeth McKernan gust of 2001 as in the charged criminal testified that C.B. told her that his fa- Appellant’s informations.” Brief at 11. ther had beaten him. G.W. testified As this has Court summarized: that she used to live with Marc Brooks and that give duty prosecution she “was made to Marc It is the “fix to Lydia oral sex.” [Ap- alleged Debíase identified the date when an offense oc- Brooks, pellant] in court as Marc certainty....” curred with reasonable biological Jette, 533, father of C.B. Ms. Debiase’s Commonwealth v. 818 A.2d 858 omitted). Devlin, (citation Appellant con- Citing supra, (Pa.Super.2003)
535
failed to
tends
Commonwealth
advising
of so
defendant
purpose
of-
any
the date
of the sexual
establish
alleged
to
when an offense
of the date
with “reasonable certain-
fenses occurred
him
provide
is to
have been committed
According Appellant,
the Common-
ty.”
meet
notice to
with sufficient
prove
wealth’s “failure to
a defense. Com-
charges
prepare
any single day within
crimes occurred on
24,
Gibbons, 567 Pa.
784
v.
monwealth
forth in the
the four month
set
(2001).
A.2d 776
informations,
any date
let alone
criminal
However,
not redu
process is
“[d]u[e]
statute,
provide
within the
does
formula,” and
cible to a mathematical
particularity
uphold
court with sufficient
always
does not
the Commonwealth
Brief at 17.
the conviction.”
of an al
prove
specific
date
need
disagree.
We
v.
leged crime. Commonwealth
rejected Appellant’s
court
The trial
888,
515-516,
333 A.2d
892
460 Pa.
claim:
(1975). Additionally, “indictments must
“required
is not
Commonwealth
[T]he
manner and
be read
a common sense
of a crime
single specific
date
overly
in an
to be construed
are not
instead,
instance,
leeway
every
v.
technical
sense.” Commonwealth
vary with the nature of the crime
would
(Pa.Su
Einhorn,
911 A.2d
of the victim
age
and the
and condition
v.
(quoting
per.2006)
of the ac
rights
balanced
Ohle,
566, 588, 470 A.2d
503 Pa.
McClucas,
cused.” Commonwealth
(1983)).
leeway regarding
Permissible
449, 455,
68, 70-
Pa.Super.
with,
alia,
inter
provided
the date
varies
omitted).
(1986) (internal quotations
rights
the nature of the crime and the
case,
weighs
this balance
the instant
[Einhorn,
A.2d at
the accused.
heavily in favor of the victims. Time is
560(B)(3), stat
Pa.R.Crim.P.
See
978].
[Appellant]
not essential to the crimes
for the
*7
that
it shall be sufficient
ing
charged
was
with. See Commonwealth
Niemetz,
431,
422
provide
Pa.Super.
to
in the infor
282
438
Commonwealth
v.
(1980)
1369, 1373
(holding
A.2d
that time
mation,
an
precise
if the
date of
offense
where defen
was not “of
essence”
known,
that the of
allegation
is not
an
charged
rape,
was
and convicted of
dant
or about
fense was committed on
intercourse,
involuntary
sexual
deviate
period
by
within the
fixed
stat
date
of mi
corruption
indecent assault and
ute of limitations.
[McClucas,
nors);
(apply
However,
if
even
the balance did not
G.D.M.,
victims in both
Groff,
Sr. and
in favor of
weigh
[Appellant] so as to
specific
identified
during
pro-
incidents
necessary
render
it
for the Common-
abuse,
longed period of
or their testimony
wealth
that the
crimes
was corroborated
other witnesses. Al-
May
occurred between
2001 and August
though Appellant correctly discusses the
provide
the Commonwealth did
ev-
cases,
facts of those
neither holds that due
idence sufficient to prove the crimes oc-
process requires a victim of sexual abuse
curred within this time frame. C.B. tes-
provide
temporal testimony
specific
tified that the alleged crimes occurred
incidents that
occurred
a prolonged
“every day” and G.W.
[Ap-
testified that
Devlin,
of abuse. As
noted
pellant] abused her when it
warm
pattern
process
of due
picked
“[t]he
out
outside and she was wearing shorts.
in the facts and circumstances of each
N.T.,
Viewing
9/17/2008
(citation
case.”
was ”). a requiring of law certainty’ question evidence is a of degree ‘reasonable appropri- scope of review. plenary Supreme supra, “our Finally, in regarding the of review ate standard to balancing approach for a opted Court is whether sufficiency of the evidence accused interests of the conflicting resolve trial and all admitted at the evidence to the when it came the victim vis-á-vis therefrom, drawn inferences reasonable as to the proven to be specificity required light in the most favorable when viewed crime.” Com time-frame of as the verdict to the Commonwealth Fanelli, Pa.Super. v. monwealth winner, all the support to is sufficient banc). (1988) (en Ap a review- the offenses. As elements of how the lack of never asserted pellant has court, weigh not the evi- may we ing or victims’ in the information specificity for judgment and substitute our dence prepare him unable to testimony rendered Furthermore, a that of the fact-finder. charges brought against a defense to all, part believe fact-finder is free to testimony Considering him. the victims’ presented. none of the evidence case, Appellant’s general in this vis-á-vis violation, sentencing our to process hearing prior of a due At the assertion law applicable review of the record and determine whether Com- court shall the trial court’s conclusion con- supports proved by has clear and monwealth testimony sufficient to the victims’ the individual is a evidence that vincing the informations filed the Com support Accordingly, sexually predator. violent that, process if due monwealth such sufficiency of the evi- reviewing occurred, yield it must violation in fact regarding the determination dence McClucas, of the victims. See rights status, the trial we will reverse SVP that, because (explaining A.2d at 71 only if the has court Commonwealth a period offenses occurred over the sexual convincing clear and evidence presented time, say prepared “we are not court to enable the trial sufficient specificity seri chronological the lack of required that each element determine ability ously upon appellant’s encroached has been satisfied. by the statute himself’). to defend Haughwout, 837 A.2d reasons, Thus, Ap- all (citations for above omit- (Pa.Super.2003) challenge to the sufficien- pellant’s second ted). cy supporting of the evidence his convic- sexually predator is defined as A violent
tions is without merit. of a “person who has been convicted set forth in sexually violent offense as appeal, final claim on
In his
(relating
registration)
9795.1
section
that the trial court erred
asserts
sexually violent
to be a
who is determined
concluding
abused
discretion
its
and/or
(relating to
under section 9795.4
predator
met
burden of
that the Commonwealth
its
assessments)
abnormality
mental
due to a
proving by
convincing
clear and
evidence
*9
that makes the
personality
or
disorder
sexually
pre
that
was a
violent
in
sexu
likely
engage
predatory
person
issue concerns
dator. Since
evidence,
ally
that
violent offenses.” Commonwealth
sufficiency of the
we note
835,
Krouse,
(Pa.Super.2002)
838
upon
relied
any claim that the trial court
(en
denied,
banc),
573 Pa.
designating
appeal
a
insufficient evidence when
(2003)
(quoting
Pa.C.S.A.
an
reviewed under the A.2d 586
defendant as
SYP is
9792)
omitted), disapproved
§
(emphasis
following standard:
(i)
grounds,
prior
on other
Commonwealth v.
The individual’s
criminal rec-
(2006).
Meals,
590 Pa.
“Mental is a (ii) Whether the individual completed a acquired person condition of that affects any prior sentences. capacity the emotional or volitional of the (iii) Whether the individual participated predisposes in a manner that
person
in
programs
available
for sexual offend-
person to the commission of criminal sexu-
ers.
a degree
person
al acts to
that makes the
(3)
individual,
Characteristics of the
in-
safety
menace to the health and
of other
cluding:
§
persons.” 42
Pa.C.S.A.
(i) Age of the individual.
specifically
The statute
details
pro-
(ii)
illegal
Use of
drugs by the individu-
by which an
cess
individual is deter-
al.
mined to be an
After a
SVP.
defendant
(iii)
illness,
Any mental
mental disability
specified
is convicted of an offense
in
abnormality.
or mental
9795.1,
Section
such as indecent assault
aggravated
(iv)
[and
indecent assault
Behavioral characteristics that con-
case],
instant
the trial court must order
tribute to the individual’s conduct.
Sexual
[State
Assessment
Offenders]
(4)
supported
Factors that are
in a sex-
Board to
assess
defendant for the
ual offender assessment filed as criteria
appropriateness of an SVP classification.
reasonably related to the
risk
reof-
9795.4(a).
§
See 42 Pa.C.S.
The admin-
fense.
istrative officer of the Assessment Board
9795.4(b).
§
Pa.C.S.A.
assigns
then
one of its members to con-
Following the submission of a written
duct the
pursuant
assessment
to Section
report containing the assessment and a
9795.4(b).
praecipe
by the district attorney,
filed
Haughwout,
means necessary to achieve the offense. addition, witnesses. the individual (iii) The nature sexual contact shall right have the to counsel and to with the victim. lawyer have a appointed represent him if he (iv) cannot afford one. If the Relationship of the individual to the requests individual expert another as- victim. sessment, the provide individual shall (v) Age of the victim. copy expert assessment to the (vi) Whether the offense included a dis- attorney district prior hearing. play cruelty by unusual the individual 9795.4(e)(2). § 42 Pa.C.S.A. during the commission of the crime.
(vii) capacity The mental of the victim. April At the hearing *10 (2) case, history, including: Haworth, Prior offense the present Dr. Thomas a of- sexually in violent engage predatory member of the and psychologist licensed § Assessment 9792. Sexual Offender fenses.” Pa.C.S.A. Pennsylvania Board, a re- Appellant, authored assessed [Appel evaluation of Dr. Haworth’s for Commonwealth. port, and testified in very to that found similar lant] with the cooperate refused Appellant Askew, A.2d [907 reviewing process. Upon assessment Askew, the defen (Pa.Super.2006) ]. above, Dr. enumerated statutory factors sexually a violent was classified dant a sex- Appellant that opined Haworth grounds that the Com predator on According to Dr. ually predator. violent expert testified monwealth’s Person- Haworth, suffered from Appellant personality a suffered from defendant Specified, ality Disorder Not Otherwise pedo- NOS with antisocial and disorder him to predisposed and that this disorder case, Dr. Ha- features. In this philic offenses. In ad- the commission of sexual “a [Appellant] presented worth testified dition, found that Dr. Haworth in na of behavior antisocial pattern facilitated the relationship to his victims (Dr. N.T., 4/23/2009, at 31-32 ture.” therefore met the pattern of abuse and [Ap only diagnosing Haworth resisted SVP Re- legal “predatory.” definition of personality with full antisocial pellant] 12/16/08, presented Appellant at 11. port, history of the lack of disorder because expert, own Dr. Timo- testimony of his years). Additionally, juvenile from his with Dr. Foley, agree P. who did not thy sexually [Appellant] was convicted of Haworth’s conclusions. six-year-old abusing girl a accused conflicting testimo- Presented with this four-year-old a sexually abusing of [ ] ny, Appellant the trial court concluded that Thus, Dr. Haworth not boy. though did sexually predator: was a violent diagnose [Appellant] with explicitly hearing, At the the Commonwealth’s “personality disorder NOS with antiso Haworth, expert, Dr. Thomas testified features,” pedophilic diagno cial and his [Appellant’s] past acts unusual principal diag to the sis was identical crimes, history cruelty, previous violent nosis in Askew. abuse, allegations re- prior of substance 12/23/09,at 15-16. Opinion, Trial Court conjoined with a male victim garding
[Appellant’s] personality brief, disorder asserts that Appellant Within his (NOS)[,] rendered specified otherwise him classifying the trial court erred in as a sexually predator. violent [Appellant] sexually predator because he “did violent N.T., 4/23/2009, 28-29, [Appel- majority” statutory not meet the Timothy Foley, testi- expert, Dr. lant’s] criteria, “especially compared when to oth- classify [Appellant] that he would fied Appel- that consider this issue.” er cases with disorder NOS but that personality According Appellant, lant’s Brief at 12. believe that such a he did not disorder were not these other factors “[b]eeause mental statutory met the definition of case, appears though it present [his] abnormality therefore did not deem sexually preda- violent was branded [he] sexually pre- to be a violent [Appellant] he was convicted of a solely tor because N.T., 4/23/2009, at 126-[2]7. dator. Appellant’s Brief at sexual offense.” Thus, point of contention primary disagree. We experts two was whether between the the ev- thorough Our review of qualified as a personality disorder NOS supports the identiary hearing transcript abnormality personality dis- “mental as a likely trial court’s classification person that makes the order *11 court; sexually predator. violent As this Court trial Superior “the stepped Court recently has summarized: beyond its it authority reweighed when evidence, giving more regard weight to the various to the ‘ab- [W]ith assessment 9795.4, factors listed in Section there sent’ than factors those found and relied court”). statutory requirement no that all of upon by the trial any particular them or number of them Thus, because convictions present be in support absent order to amply are supported by sufficient evi- an SVP designation. The factors are dence, and the supports Appellant’s record check list with each one weighing sexuálly classification as a preda- violent necessary some fashion for or against tor, we affirm Appellant’s judgment of sen- Rather, designation. presence SVP tence. or absence of one or more might factors Judgment of sentence affirmed. simply suggest presence or absence of one or particular types more of men-
tal abnormalities. Judge LAZARUS files a Dissenting
Thus, while
Opinion.
the Board is to examine
all
the factors listed under Section
DISSENTING OPINION BY
97954.4, the Commonwealth does not
LAZARUS, J.:
any
have to show that
certain factor is
present or absent in a particular case.
Because the Commonwealth failed to es-
Rather,
question
for the SVP court
tablish when the offenses against G.W.
is whether
the Commonwealth’s evi
any
occurred with
particularity, defen-
dence,
assessment,
including the Board’s
dant’s fundamental due process rights
shows that
the person convicted of a
and, therefore,
were violated
I respectfully
sexually violent offense has a mental
dissent.
abnormality or disorder making that
This case stems from Brooks’ alleged
person likely
engage
predatory
abuse
C.B. and G.W. Brooks is the
sexually violent offenses. 42 Pa.C.S.A.
biological father of
formerly
C.B. and
§
Having
a hearing
conducted
boyfriend of G.W.’sdeceased mother Sher-
presented
considered the evidence
ry
trial,
Walls.1 At the time of
C.B. was a
it,
the court then decides whether a
12-year-old male
14-year-
and G.W. was a
defendant is to
designated
be
an SVP
old female. C.B. and G.W. each testified
and thus made subject
registra
to the
via closed-circuit television that' Brooks
tion requirements
Pa.C.S.A.
abused them inside an apartment
they
9795.1(b)(3).
§
shared with Brooks and Walls. C.B. testi-
Feucht,
Commonwealth v.
fied that Brooks forced him to perform
(citations omitted).
381 (Pa.Super.2008)
oral sex and that Brooks
him.
sodomized
discussing the absence
statutory
of certain
G.W. testified that Brooks forced her to
factors and discussing the facts of other
perform oral sex on him. Both testified
cases, Appellant is essentially asking this
Brooks threatened them with physical
reweigh
Court to
them. This we cannot
they
abuse if
comply.
did not
do. See generally, Commonwealth v.
Meals,
(2006)
jury
Pa.
864 390, Thek, 546 Pa.Super. 376
(“IDSI”)
monwealth v.
compulsion,
two
by forcible
(1988).
83, 90
com- A.2d
threat of forcible
by
of IDSI
counts
child,
of a
two
counts of IDSI
two
pulsion,
in arrest of
upon a motion
passing
In
assault,
two counts of
counts of sexual
testimony which has
all of the
judgment,
consent,
two
lack of
indecent assault
must be
into evidence
been admitted
com-
by forcible
indecent assault
counts of
is viewed
evaluated. This evidence
of a
of indecent assault
two counts
pulsion,
the
favorable to
Common-
light
most
by
child,
of indecent assault
and one count
is enti-
wealth and
Commonwealth
compulsion.2
threat of forcible
favorable infer-
the benefit of all
tled to
may
which
be drawn from
ences
of the same
Brooks
jury acquitted
The
evidence.
his
sexu-
they related to
charges jury,
The
how-
toward C.B.
al misconduct
Pa.Super.
Groff,
v.
378
Commonwealth
ever,
two counts of
(1988)
Brooks of
convicted
1237,
353,
citing
1242
Com-
548 A.2d
a child
the welfare of
endangering
201,
Meadows, 471 Pa.
369
v.
monwealth
(“EWOC”),
from his conduct to-
arising
(1977).
1266
A.2d
trial court sen-
G.W.3 The
ward C.B. and
Devlin,
was accused of
the defendant
term of
aggregate
Brooks to an
tenced
Id.
sodomizing mentally
retarded adult.
forty-five
one-half
twenty-two and
proof at tri-
at 889. The Commonwealth’s
imprisonment.
years’
at
only that the crime occurred
provided
al
time
the fourteen-
unspecified
was
some
argues that
the evidence
Brooks
February, 1971 to
month
from
period
convictions be
insufficient to sustain his
argued that
April, 1972. Id. Defendant
did not establish
cause the Commonwealth
allegation as
with sufficient because
Commonwealth’s
the dates of the offenses
he
vague,
the offense was so
v.
to the time of
certainty.4 He relies on Commonwealth
(1975),
a defense to
Devlin,
precluded
preparing
from
in the facts and circumstances
dates
*13
G.D.M.,
is not
to a
process
case. Due
reducible
on which the offense occurred.
Therefore,
mathematical formula.
we
specificity
proof
of the date of a
circumstances,
these
[u]nder
we find
required
which will be
or the
crime
process
due
concerns of Devlin
accept-
amount of latitude which will be
victim,
here,
are satisfied where the
Certainly,
able.
the Commonwealth
ongo-
can at least
the times when an
fix
always prove
single specific
need not
ing course
molestation commenced
Any leeway permissi-
date of the crime.
and when it ceased.
vary
ble would
with the nature of the
added).
Id.
(emphasis
at 990
of the
age
crime and the
and condition
judice,
In the case sub
we
presented
are
victim,
rights
balanced
with a similar situation involving offenses
accused.
alleges
the Commonwealth
occurred con-
(citations
Devlin,
quo
which to frame his defense.
“at
began
least” establish when the abuse
by
the lack of
presented
Given
evidence
G.D.M.,
and when the abuse ended.
trial,
at
the trial
instead,
majority,
A.2d
990. The
distin
court’s conclusion that the Commonwealth
guishes
cursory
in a
along
G.D.M.
fashion
sufficient
presented
evidence to
Brooks,
with another case cited
Com
May
between
2001 and Au-
abuse occurred
Groff,
monwealth v.
378 Pa.Super.
*15
2001 is
The trial
gust
unsupportable.
(1988).7
A.2d 1237
In
doing, majori
so
the
solely
testimony
relies
on
court
C.B.’s
that
ty states that neither case
that
“holds
due
every day”
“the
crimes occurred
alleged
process requires a victim of sexual abuse
testimony that “the
and G.W.’s
Defendant
provide temporal testimony
to
specific
abused her when it was warm outside and
incidents that
during prolonged
occurred
a
wearing
she was
shorts.” Trial Court
Majority
of abuse.”
Opinion, at
12/29/09,
testimony,
at 7. This
Opinion,
however,
month,
any
on its face fails to fix
months,
year
series of
within which the
this,
I agree
While
with
I would suggest,
abuse occurred.
here,
more to
point
the
that what funda
similarly
that
perplexing
process
It
the mental due
require
does
is that
majority
upon
learned
relies
the trial
the
present
fixing
Commonwealth
evidence
dates,
faulty reasoning.
Majority
court’s
See
the date or
with reasonable certain
Indeed,
Opinion,
majority
ty, upon
at 858-59.
which the
are
crimes
said to have
Devlin,
supports
Indeed,
concludes that the record
the tri-
supra.
occurred.
in both
G.D.M.,
finding
al court’s
that the
and
pre
Commonwealth
Commonwealth
Groff
presented
testimony
sufficient
to prove
evidence
sented
either from the victim or
May
abuse occurred between
2001 and Au-
establishing,
other witnesses
with reason
court,
gust
2001. Like the trial
certainty,
able
the time frame within which
major-
ity
specify anywhere
fails to
in the record
alleged
crimes
were said to have taken
place.
where the evidence indicates that
The absence of
in
such evidence
my
abuse occurred within
time frame.
the instant matter drives
determina
Neither
the trial court nor the distin-
tion that the Commonwealth failed to es
guished majority
explained
has
how the
tablish when the offenses
with
occurred
Groff,
Groff,
In
this Court determined that
suit at the time the incident occurred.
1239;
proved
speci-
Commonwealth
with sufficient
sufficient charges a Where the Commonwealth process challenge. pra. Brooks’ due committing certain offenses with defendant Moreover, argu- the Commonwealth’s process due during period, a defined time alleged that it the dates of ment fixed simply cannot allow the Commonwealth certainty is also with reasonable abuse the crimes occurred evidence that present argues: The unavailing. past. time in the To amorphous at some even more matter involves The instant strip would be to that defendant allow this upon those which convincing facts than himself process right his due defend G.D.M., 5r.[,] inas this decided Court charges. those Common- G.D.M., Sr., continu- the abuse occurred merely cannot sustain conviction wealth in the case of ally daily over the period, offenses were by proving that C.B., in the at least 10 times case date or upon committed some unshown testified the abuse oc- G.W. Each child past. dates in the they pei-iod in which curred with apartment lived in an Chester failed to es- Because the Commonwealth Sherry defendant and Walls. with tablish when the offenses occurred Brief, at 13. particularity Commonwealth’s to withstand sufficient challenge, I would process Brooks’ due I that this case involves facts disagree vacate Brooks’ reverse the trial court and convincing presented more than those judgment of sentence. G.D.M., the victim this Court G.D.M. *16 began the abuse
was able to indicate when when the abuse ended both month Here, year. and G.W. could do than the abuse oc- allege
no more they
curred when lived with Brooks past. time in the Evi-
some undefined
dence that Brooks abused the children they
during period in which lived with Pennsylvania, of COMMONWEALTH Sherry may Brooks and Walls well have Appellee established a fixed time of when the abuse occurred. But the Commonwealth any degree with of cer-
failed establish ROBINSON, Appellant. Sandra tainty Brooks. when the children lived with Pennsylvania. Superior Court circumstances, pro- Under these due were not satisfied cess concerns Devlin 5,May 2010. Argued because the Commonwealth failed to es- Filed Oct. when the abuse occurred with rea- tablish Nov. Reargument Denied not certainty. sonable The cases herein do proposition for the the Com- stand dates at all.
monwealth need
Rather, they indicate the Commonwealth present
must at least evidence the crimes during span occurred some
charged year,
months some identified so may afforded a rea-
that the defendant be opportunity to frame his defense.
sonable