Commonwealth v. Carney

1

COMMONWEALTH OF PENNSYLVANIA v. DANIEL CARNEY Appellant COMMONWEALTH OF PENNSYLVANIA Appellant v. DANIEL CARNEY Appellee

Nos. 2999 EDA 2022, 3105 EDA 2022

No. J-A26038-23

Superior Court of Pennsylvania

August 16, 2024

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

Appeal from the Judgment of Sentence Entered July 26, 2022 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002644-2019, CP-45-CR-0002644-2019

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

MEMORANDUM

KING J.

Appellant Daniel Carney, and Cross-Appellant, the Commonwealth of Pennsylvania, appeal from the judgment of sentence entered in the Monroe County Court of Common Pleas, following Appellant's jury trial convictions for attempted sexual assault, aggravated indecent assault, simple assault, and indecent assault.^[1] We affirm.

The relevant facts of this appeal are as follows. For Labor Day weekend in 2019, Appellant gathered with friends and family at the Shawnee Inn. Appellant was scheduled to marry his fiancée, Nicole Norris,^[2] on Sunday, September 1, 2019, and the wedding party had several events planned throughout the weekend. On Friday, August 30, 2019, Appellant, Ms. Norris, and members of the wedding party spent the afternoon rafting, paddleboarding, and consuming alcohol on the Delaware River. One of the bridesmaids, R.F. ("Victim"), became intoxicated. The trial court described what happened next:

[Victim] stated that on the date of the incident, after consuming some beer and a shot of vodka she was feeling the effects of intoxication. After leaving the river trip, the victim was standing in the parking lot of the Shawnee Inn and she was cold. The victim wanted to go inside to get warm and [Appellant] led her inside. Then she remembers [Appellant] tell[ing] her that she was beautiful and trying to touch her. [Appellant] then "came onto" her harder and kissed her. After that the victim lost consciousness. She awoke to [Appellant] biting her nipple and she immediately pushed him away. [Appellant] was pulling her and pulled her down on top of him. Although she was trying to pull away, the victim was being held down by her shoulders and arms. At some point the victim's top and bottom of her bathing suit were off and [Appellant] was touching her in her vagina and telling her to relax. [Appellant] penetrated her vagina with his finger. He was rubbing himself on her and actually touching her vagina. At that point the victim hit her head on the wall behind [Appellant] and lost consciousness.

The next thing she heard was [Ms. Norris] screaming his ([Appellant's]) name. At this point, the victim was on top of [Appellant]. The victim testified that she was very upset and she felt very violated. She stated that she was not aware of what happened….

(Opinion and Order Denying Post-Sentence Motions, filed 11/4/22, at 11-12) (record citations omitted).

Victim came to realize that Appellant had taken her inside the men's locker room at the resort. At some point, Ms. Norris entered the locker room, discovered Victim and Appellant, and quickly exited. As Appellant began to button his pants, the maid of honor entered the locker room, "grabbed [Appellant] and pushed him out." (N.T. Trial, 5/9/22, at 76). The maid of honor encouraged Victim to "stay here," but Victim proceeded out into the hallway. (Id. at 78). Another member of the wedding party, Beau Norris, ultimately transported Victim to his house where she spent the night.

On Saturday, August 31, 2019, Victim woke up feeling sore. Nevertheless, Victim continued to participate in wedding events, including the rehearsal dinner. At the dinner, Victim overheard other guests discussing what had transpired in the locker room the day before. Because her recollection was hazy, Victim went to the resort's security department to inquire about surveillance footage from the hallway leading to the locker room. Security personnel recovered the surveillance video and reviewed it with Victim. The video confirmed that Appellant and Victim walked down the hallway leading to the men's locker room. Victim was "extremely unsteady on her feet and swaying." (Affidavit of Probable Cause, dated 10/3/19, at 2). Just before they reach the locker room, Appellant "is observed turning around and pulling the victim into the locker room." (Id.)

On Sunday, September 1, 2019, the wedding ceremony proceeded as planned. Hours before the ceremony, however, Appellant sent the following text message to Victim:

… I want to apologize again for everything, can we please just be happy as possible for [Ms. Norris] today, mistakes are behind us and I just need total closure before I do this, this is why I'm sending this, I'm as happy as ever to marry [Ms. Norris].

(N.T. Trial, 5/9/22, at 119). The message continued:

I know this is terrible as well, but my dick was out in the shower, we never did do it, but would you consider taking Plan B to make damn certain just in case, there is almost no chance but still, please tell me yes, I'm begging you.

(Id. at 121-22).

Victim later explained that prior to receiving these text messages, she "thought [Appellant] had only tried to kiss me[.]" (Id. at 123). After receiving these texts, however, Victim believed that Appellant "had done something in violation of me, I just didn't know what." (Id.) Later that night, after the wedding had ended, Victim went to Lehigh Valley Hospital-Pocono for a sexual assault forensic examination ("SAFE"). The emergency room physician and a SAFE nurse both examined Victim and observed bruising and abrasions on Victim's body. Thus, the physician diagnosed Victim as having suffered a sexual assault. (See N.T. Trial, 5/10/22, 30).

The trial court set forth the subsequent procedural history of this appeal as follows:

After an investigation, the Commonwealth filed its criminal complaint against [Appellant] on October 3, 2019. Arraignment occurred on [December] 11, 2019 after which [Appellant] filed his omnibus [pretrial] motion on January 9, 2020. A hearing on that motion was held on February 18, 2020. The court directed the parties to file briefs on the matter within 30 days of receipt of the transcript of the February 18, 2020 hearing. The transcript was completed on March 2, 2020 so briefs on [Appellant's] omnibus [pretrial] motion were initially due on April 1, 2020. However, the court granted the Commonwealth's March 1[7], 2020 motion to extend the deadline for filing briefs until April 20, 2020.

Notably, on March 16, 2020, the Pennsylvania Supreme Court issued an order declaring a general, statewide judicial emergency due to the emergence of the Covid-19 pandemic. In re General Statewide Judicial

Emergency, 228 A.3d 1281 (Pa. 2020). The order provides that the president judges of the various judicial districts "SHALL HAVE THE AUTHORITY to suspend the operation of Rule of Criminal Procedure 600 within a judicial district." Id. (capitalization in original). The Supreme Court further explained that "[t]he purport of the suspension will be that the time period of the local judicial emergency … shall be excluded from the time computation under Rule of Criminal Procedure 600(c)." Id.

That same day, on March 16, 2020, President Judge Patti-Worthington declared a judicial emergency until April 14, 2020 pursuant to the Supreme Court's order. In her order Judge Patti-Worthington declared that "[t]he operation of Rule of Criminal Procedure 600 shall be suspended in the 43^rd District during the period of the local judicial emergency." In re 43rd Judicial District Declaration of Judicial Emergency, No. M 2020 (Mar 16, 2020).

On April 1, 2020, the Supreme Court issued its second supplemental order to the March 16, 2020 declaration of judicial emergency. In that order, it extended the deadline of all filings due between March 19, 2020 and April 30, 2020, until May 1, 2020. [Appellant] timely filed his brief in support of [the pretrial] motion on April 20, 2020, but the Commonwealth did not file its brief against the motion.

President Judge Patti-Worthington extended the March 16, 2020 Declaration of Judicial Emergency ("DJE") in a number of subsequent orders. The April 1, 2020 order extended the suspension of Rule 600 to April 30, 2020. Then, on April 22, 2020, President Judge Patti-Worthington further extended the suspension until May 31. Regarding Rule 600, the April 22, 2020 order stated:

Any postponement caused by this Judicial Emergency shall be considered a court postponement and shall constitute excludable time for purposes of the application of Pennsylvania Rule of Criminal Procedure 600.

The March 16, 2020 DJE was further extended to September 7, 2020, through a May 29, 2020 order. That order provides that "Pennsylvania Rule of Criminal Procedure 600 is suspended subject to constitutional requirements." A subsequent order on September 2, 2020 extended the March 16, 2020 DJE until January 4, 2021. The final extension of the suspension of Rule 600 was enacted by the December 3, 2020 order. That order extended the March 16, 2020 DJE until June 30, 2021. Concerning Rule 600 it stated that:

Pennsylvania Rule of Criminal Procedure is SUSPENDED subject to Constitutional limitations. Any postponement caused by this Judicial Emergency shall be considered a court postponement and shall constitute excludable time for purposes of the application of Pennsylvania Rule of Criminal Procedure 600.

On July 21, 2020, [Appellant] filed a supplemental habeas motion in response to the Pennsylvania Supreme Court's decision in Commonwealth v. McClelland[, 660 Pa. 81, 233 A.3d 717 (2020)]. The court ordered a hearing on [Appellant's] motion on September 25, 2020, but the Commonwealth requested a continuance of that hearing on September 23,

...