Commonwealth v. Bolin

1

COMMONWEALTH OF PENNSYLVANIA v. ROBERT LEO BOLIN III Appellant

No. 515 MDA 2022

No. J-S28016-22

Superior Court of Pennsylvania

December 2, 2022

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered November 12, 2021 In the Court of Common Pleas of Adams County Criminal Division at No(s): CP-01-CR-0000108-2021

BEFORE: OLSON, J., McLAUGHLIN, J., and KING, J.

MEMORANDUM

McLAUGHLIN, J.

Robert Leo Bolin, III appeals from the judgment of sentence entered after a jury found him guilty of crimes involving a minor involuntary deviate sexual intercourse with a child, unlawful contact with minor, aggravated indecent assault of complainant less than 13 years of age, indecent assault of complainant less than 13 years of age, and corruption of minors.^[1] He challenges the weight of the evidence. We affirm.

The trial court summarized the factual and procedural history which we adopt and incorporate herein. Trial Court Opinion, filed May 5, 2022, at 1-4 ("1925(a) Op."). We will provide a summary. Bolin lived with J.H. and J.H.'s mother, J.B., for approximately eight years and J.H. referred to Bolin as "dad." N.T., Aug. 2, 2021, at 23-24. J.H. testified that she had trouble sleeping one night and she went downstairs to lay on the couch, where Bolin was sitting and his daughter, G., was sleeping. Id. at 26-28. J.H. testified that as she was lying on the couch, she felt Bolin move aside her shorts and underwear and penetrate her external genitals with his finger and his tongue. Id. at 31-36. She stated that when Bolin saw J.H. open her eyes, he stopped. Id. at 36.

Bolin testified in his own defense that J.H came downstairs when he was watching television, and five minutes later G. came down. N.T., Aug. 3, 2021, at 270-71. He said that J.H. had her legs on his lap, but eventually one of her legs moved on to the back of the couch, and her foot was behind his head. Id. at 272. He stated he started to get tired and laid his head between J.H.'s legs, and "gave her a peck on her thigh when [he] laid his head down." Id. at 273. He further stated that before he put his head down, he "scoot[ed] her and push[ed] her forward a little bit with [his] hand." Id. at 280. He testified that a few seconds later she went upstairs. Id. at 273.

An expert witness testified for the Commonwealth that serological analysis detected the presence of body fluids on J.H.'s underwear and an analysis of a cutting from J.H.'s underwear and of an external genital swab conducted on J.H. indicated Bolin as a likely contributor of the Y chromosome DNA found. N.T., Aug. 3, 2021, at 144, 196-199. On cross-examination, the expert agreed that the transfer of DNA to clothes while folding laundry was a possibility. Id. at 216.

A jury found Bolin guilty of all charges. The trial court sentenced him to an aggregate term of 15 to 30 years' incarceration followed by three years' probation. Bolin filed a post-sentence motion, which the trial court denied on March 3, 2022. Bolin filed a notice of appeal.

Bolin raises the following issues:

A. Did Bolin timely file a notice of appeal?

B. Did the trial court abuse its discretion when it denied Bolin's post-sentence motion for new trial on grounds that the jury's verdict was against the weight of the evidence?

Bolin's Br. at 4.^[2]

We first address whether the appeal is timely. The court sentenced Bolin on October 26, 2021.^[3] Bolin filed a post-sentence motion that was received on November 5, 2021 but not docketed until November 8, 2021. The motion challenged the verdicts as against the weight of the evidence. In March 2022, the court denied the post-sentence motion, and Bolin appealed.

This Court issued a rule to show cause why the appeal should not be dismissed as untimely, noting that the docket indicated Bolin filed his post-sentence more than ten days after the entry of the judgment of sentence, and untimely post-sentence motions do not toll the 30-day appeal period. Order, filed May 5, 2022 (citations omitted). Bolin filed a response stating he electronically filed the post-sentence motion on November 5, 2021, which was within the ten-day period for the filing of a post-sentence motion. Appellant's Answer to Order to Show Cause, at ¶ 3. He attached to his response the time-stamped copy of his post-sentence motion and the email reflecting the filing of the post-sentence motion, both of which show he filed the motion on November 5, 2021.

Because Bolin filed his post-sentence motion on November 5, 2021, within ten days of the judgment of sentence, the filing tolled the appeal period. Commonwealth v. Green, 862 A.2d 613, 618 (Pa.Super. 2004) (en banc) ("[T]he time for filing an appeal can be extended beyond 30 days after the imposition of sentence only if the defendant files a timely post-sentence motion."). Bolin therefore properly filed his notice of appeal within 30 days of the entry of the order addressing his post-sentence motion. See Pa.R.A.P. 720(A)(2). His appeal is timely.

Before this Court, Bolin challenges the trial court's rejection of his weight claim. He argues the Commonwealth's physical proof was "beyond weak." Bolin's Br. at 17. He claims the DNA expert could not identify the type of cell from which the male DNA profile at issue came and it was not "implausible, based on the Commonwealth's expert-witness testimony, that Bolin's DNA profile ended up on the underwear, because Bolin "handled the laundry." Id. at 17-18. He further challenges the evidence regarding the underwear and whether the clothing was worn by J.H. when the alleged incident occurred as "incredibly weak," noting the testimony differed as to when the underwear was transferred to the police. Id. at 18. He further argues he lived with J.H. for eight years without any reported incidents and he gave a "valid and justified reason" for the events. Id. He claims his version was "more detailed" than J.H.'s version and J.H. had an opportunity to discuss the allegations with J.B. Id. at 19.

A weight claim is for the trial court in the first instance. See Commonwealth v. Stiles, 143 A.3d 968, 980 (Pa.Super. 2016). The trial court may sustain a weight challenge and grant a new trial only "when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail." Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (citation omitted). "The weight of the evidence is exclusively for the finder of fact who is free to believe all, part, or none of the evidence and to determine the credibility of the witnesses." Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003) (quoting Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999)). We review the trial court's rejection of a challenge to the weight of the evidence for an abuse of discretion. Commonwealth v. Windslowe, 158 A.3d 698, 712 (Pa.Super. 2017).

The trial court found the verdict was not against the weight of the evidence. It noted Bolin's "protestations of innocence" do not render the verdict against the weight of the evidence, and the jury was entitled to judge the credibility of the witnesses and resolve any conflicts in the testimony. It further noted J.H.'s "strong emotional reaction to the assault," and that she reported the assault within a day. 1925(a) Op. at 11-12. The court found the conflicting evidence regarding J.H.'s underwear did not result in a verdict that was against the weight of the evidence, noting the jury was entitled to believe Bolin was guilty regardless of inconsistent testimony. The court pointed out that DNA consistent with Bolin's profile was found on J.H.'s external genitals, which corroborated J.H.'s account. Id. at 12.

After review of the briefs, the trial court record, the relevant law, and the well-reasoned opinion of the Honorable Shawn C. Wagner, we conclude the court did not abuse its discretion in denying the motion challenging the weight of the evidence and affirm on the basis of the trial court's opinion. Id. at 11-13.

In his Rule 1925(b) statement, Bolin challenged the sufficiency of the evidence supporting his unlawful contact conviction. Defendant's Statement of Errors Complaint of on Appeal filed Mar. 31, 2022. In its 1925(a) opinion, the trial court agreed with Bolin, and requested that we vacate the conviction and remand for resentencing. 1925(a) Op. at 10. However, Bolin did not include in his appellate brief a challenge to the sufficiency of the evidence. Bolin's Br. at 4. He therefore has abandoned the claim. Pa.R.A.P. 2116(a) ("No question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby."). Bolin's counsel seems to believe that the trial court vacated the conviction. See Bolin's Br. at 6, 20 (noting trial court agreed there was insufficient evidence supporting unlawful contact conviction and requesting that this Court "reverse and vacate [Bolin's] judgment of convictions and sentence and remand for a new trial on all charges, less the charge for unlawful contact - the conviction for which was vacated due to insufficient evidence"). By the time the court issued its Rule 1925(a) opinion, it had lost jurisdiction to vacate any of the convictions or amend the sentence. See Pa.R.A.P. 1701(a) ("Except as otherwise prescribed by these rules, after an appeal is taken or review of a quasijudicial order is sought, the trial court or other government unit may no longer proceed further in the matter."); 42 Pa.C.S.A. § 5505 ("Except as otherwise provided or prescribed by law, a court upon notice to the parties may modify or rescind any order within 30 days after its entry, notwithstanding the prior termination of any term of c...