Commonwealth v. Callen

198 A.3d 1149

COMMONWEALTH of Pennsylvania

v.Keith Richard CALLEN, Appellant

Commonwealth of Pennsylvania

v.Keith Callen, Appellant

Commonwealth of Pennsylvania

v.Keith Richard Callen, Appellant

Commonwealth of Pennsylvania

v.Keith Callen, Appellant

No. 883 WDA 2017

No. 884 WDA 2017

No. 1590 WDA 2017

No. 1591 WDA 2017

Superior Court of Pennsylvania.

Argued June 5, 2018

Filed October 31, 2018

Richard J. Cromer, Pittsburgh, for appellant.

Michael W. Streily, Deputy District Attorney, Pittsburgh, for Commonwealth, appellee.

BEFORE: OLSON, J., DUBOW, J., and MUSMANNO, J.

OPINION BY OLSON, J.:

Appellant, Keith Callen, appeals from the judgment of sentence entered on May 9, 2017, as made final by the denial of Appellant's post-sentence motion on June 1, 2017, and from the amended judgment of sentence, entered on September 27, 2012, which corrected a clerical error in the original sentence. We dismiss Appellant's appeals at docket numbers 1590 WDA 2017 and 1591 WDA 2017 as duplicative. We also vacate Appellant's judgment of sentence, reverse his convictions, and remand.

On October 4, 2016, the Commonwealth filed two separate informations against Appellant in the Court of Common Pleas of Allegheny County. The first information, which was filed at Docket Number CP-02-CR-0009926-2016 (hereinafter "Case One"), accused Appellant of committing numerous sexual offenses against D.G. and K.G. when they were minors. The second information, filed at Docket Number CP-02-CR-0009929-2016 (hereinafter "Case Two"), accused Appellant of committing numerous sexual offenses against B.M. when B.M. was a minor. That day, the Commonwealth provided Appellant with notice that it intended to try the offenses at both informations together. See Pa.R.Crim.P. 582(B)(1) ; Commonwealth's Rule 582(B)(1) Notice, 10/4/16, at 1.

On October 31, 2016, Appellant filed pre-trial motions at both docket numbers and claimed, among other things: that the trial court must sever the cases at the two docket numbers and that, as to Case One, venue was improper in Allegheny County.¹ Appellant's Pre-Trial Motion at Case Two, 10/31/16, at ¶¶ 30-38; Appellant's Pre-Trial Motion at Case One, 10/31/16, at ¶¶ 11-22 and 38-44. With respect to the severance issue, Appellant claimed that the trial court must sever the offenses charged at Case One from those at Case Two because the evidence at each docket number would not be admissible in a separate trial for the other and the offenses were not based on the same act or transaction. See Appellant's Pre-Trial Motion at Case One, 10/31/16, at ¶¶ 38-44.

As to the venue issue, Appellant claimed that, with respect to D.G. and K.G., all of the alleged criminal acts occurred in Butler County, Pennsylvania – not Allegheny County. Further, Appellant claimed, even though the Commonwealth accused him of sexually abusing B.M. in Allegheny County, the events with respect to D.G. and K.G. were an "entirely different criminal episode than that which [Appellant was accused of committing against B.M.] in Allegheny County." See id. at ¶¶ 11-22. Thus, in essence, Appellant claimed that, since all of the events as to D.G. and K.G. occurred in Butler County, the trial court was required to transfer Case One to Butler County. See id. ; see also Appellant's Brief at 47 and 42 n.16 (claiming that the trial court erred when it refused to "transfer [Case One] to Butler County").

On January 3, 2017, the trial court heard oral argument on Appellant's pre-trial motions. See N.T. Oral Argument, 1/3/17, at 9-14. During this argument, the Commonwealth conceded that the criminal acts with respect to D.G. and K.G. occurred in Butler County. Id. at 11; see also Commonwealth's Brief at 23-24 (conceding that "the[ ] assaults [against D.G. and K.G.] occurred in Butler County during the years 2000-2002"). However, the Commonwealth claimed that venue in Case One was proper in Allegheny County "because these sexual assaults have taken place over a length of time and this conduct is a course of conduct [and because] the district attorney's offices [of Allegheny County and Butler County] consulted with each other and it was determined that Allegheny County would prosecute as to all victims here." N.T. Oral Argument, 1/3/17, at 11-12. At the conclusion of argument, the trial court denied the motions. Id. at 14.

Appellant proceeded to a jury trial on February 27, 2017. The trial court thoroughly summarized the evidence presented during the trial:

[With respect to victim B.M., at Case Two, the evidence] established that[,] in 2010, when she was 12 years old, [B.M.] began to take gymnastics lessons at Jewart's Gymnastics in the Hampton Township area of Allegheny County. [Appellant] was one of several coaches that worked with her group. In December 2010, [B.M.] began to take private lessons with [Appellant] one [ ] day a week, while also continuing her group lessons with [Appellant] and other coaches four [ ] days a week. When she was 12 and 13 years old, [Appellant] began to text her, initially about her lessons and, later, about school and personal matters. During this time[,] he told her that if he was her age, he'd want to date her.

In [March 2012, Appellant] was fired from Jewart's Gymnastics and began working at Trinity Gymnastics in the West Deer Township area of Allegheny County. At [Appellant's] request, [B.M.] quit training at Jewart's and began training with [Appellant] at Trinity Gymnastics. In [August 2012, B.M.] attended Woodward Gymnastics Camp and [Appellant] went with her, despite the fact that he was not on the camp's coaching staff. During this time period, [Appellant] was texting [B.M.] pictures of himself and telling her that he loved her. At some point, [B.M.'s] mother saw the text messages, became upset[,] and forbade [B.M.] from having any more contact with [Appellant]. [Appellant] was removed from her group at Trinity Gymnastics and the two had no contact for almost a year, until [B.M.] attended a gymnastics camp at the University of Michigan in the summer of 2013, where [Appellant] was coaching. [B.M.] wanted to return to training with [Appellant] and an agreement was made with [B.M.'s] mother whereby she would be permitted to return to training with [Appellant] but that her mother had to be present at all times.

In [July 2013, B.M.'s] mother did not attend a training session. At that session, [Appellant] had [B.M. lie down] on the vault table so he could stretch her. He positioned her so that she was [lying] on her back with her leg on his shoulder and he put his finger under her shorts and underpants and inserted it into her vagina. [B.M.] testified that this touching occurred several times until the end of [August 2013]. Throughout this time, [Appellant repeatedly told B.M.] that he did not have a good home life.

In August 2013, [Appellant] left Trinity for reasons unknown to [B.M.] and moved to the Elite Athletic Center in Butler[, Pennsylvania]. [B.M.] and four [ ] other gymnasts went with him. [Appellant] continued to train [B.M.] and continued to put his fingers in her vagina while he was stretching her. This occurred multiple times throughout 2013 and 2014, when [B.M.] was in 10^th grade. As the holiday season approached, [Appellant] gave [B.M.] several gifts, including a Victoria's Secret sweatshirt and leggings and an infinity ring that said "Love" on the front and had "Forever Love" engraved on the inside.

In [March 2014, Appellant took B.M.] and several other gymnasts to a state competition. [Appellant] picked [B.M.] up first and before the other students arrived, he had sexual intercourse with her in his vehicle. [At the time, B.M. was 16 years old]....

Thereafter, [Appellant], while purporting to rehab [B.M.] from an ACL tear, would have [B.M.] (who was by then 17 and driving herself to gymnastics practice) meet him in the parking lot of the Home Depot in Butler before practice and they would have sexual intercourse in his car. Additionally, he requested oral sex from [B.M.], but she refused. This pattern continued until [November 2015], when [B.M. and Appellant had an argument and B.M. ended the relationship]. Thereafter, [B.M.] began to attend therapy and disclosed the abuse to her therapist, who reported the incidents to Child Line.

With regard to the charges at [Case One], the Commonwealth presented the testimony of [sisters D.G. and K.G. D.G. was born in 1993 and K.G. was born in 1994]. They testified that when they were [four and three years old, respectively], their mother married Mearl Trapper Clark, the best friend of [Appellant] since childhood. Over the years Clark was married to their mother, the girls had many contacts with [Appellant], whom they called "Uncle Keith" and had visited his home on many occasions.

On several occasions [from approximately 1998 until 2002, when D.G. was between the ages of five and nine and K.G. between the ages of four and eight], Clark brought the girls to [Appellant's Butler County] home or [Appellant] would come to Clark's [Butler County] home when his wife was at work. [Appellant] and Clark instructed the girls to put on skirts and remove their underpants. They then asked the girls to do cartwheels and would pose them bent over with their legs spread apart and photographed them.

On other occasions, [Appellant] would take [K.G.] into another part of his house by herself and would instruct her to take off her clothing and would then touch her vagina with his fingers and mouth.

Mearl Clark testified and confirmed [D.G. and K.G.'s] testimony and indicated that on two occasions he saw [Appellant] touch [K.G.'s] vagina and put his penis between her legs to simulate intercourse.

[Further, D.G. and K.G. testified that, even though Appellant's abuse of them ended in 2002, they did not report the abuse until 2016. D.G. and K.G. both testified that they finally stepped forward to report the abuse after they saw news stories that Appellant had been arrested for sexually abusing B.M. See N.T. Trial, 2/28/17, at 184-185 and 230.]

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