Commonwealth v. Frank

1

COMMONWEALTH OF PENNSYLVANIA v. RICHARD MICHAEL FRANK Appellant

No. 1246 EDA 2022

No. J-S45014-22

Superior Court of Pennsylvania

March 3, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered March 15, 2022 In the Court of Common Pleas of Bucks County Criminal Division at No(s): CP-09-CR-0006429-2019

BEFORE: OLSON, J., STABILE, J., and MURRAY, J.

MEMORANDUM

OLSON J.

Appellant Richard Michael Frank, appeals from the judgment of sentence entered on March 15, 2022. We affirm.

The trial court ably summarized the underlying facts of this case:

In [August 2019, the victim, K.F., was 13 years old and] living with her parents and sister in Upper Southampton Township, Bucks County, Pennsylvania. K.F. was having a difficult time with life. She got upset very easily. She wasn't showering or brushing her hair. She stopped going out with her friends. She didn't want to go anywhere with her mother, father or sister. When K.F. didn't want to go with her grandfather after making plans with him, her mother pressed her on what was wrong. K.F. replied, "Uncle Richie touches me in my privates." She was on the floor in a fetal position, shaking and crying. K.F. said [Appellant] touched her in the vagina but didn't want to say anything else.

K.F.'s mother [(hereinafter "K.F.'s Mother")] called a co-worker and discussed the situation. The [co-worker] was mandated to report the incident and did so immediately. The police then contacted K.F. through her mother. An interview with a forensic interviewer at the Bucks County Children's Advocacy Center ("CAC") was conducted on September 6, 2019. The interview was conducted by Maria Nye, an experienced, licensed interviewer at the CAC. The interview was recorded, admitted into evidence as Exhibit C-2 and published to the jury.

In the interview and at trial, K.F. described two incidents that occurred between her and [Appellant]. The first occurred in July[] 2017. K.F. went to her cousin's house in Philadelphia for a sleepover. [Appellant] asked K.F. if she wanted to go downstairs to the living room and watch her favorite television show. K.F. agreed and the two went downstairs and sat on a couch. [Appellant] began rubbing K.F.'s thigh with his fingers. He moved his fingers around K.F.'s underwear and into her vagina. K.F. told [Appellant] she had to use the bathroom and left the couch. While in the bathroom, K.F. texted her mother several times requesting to come home. [K.F.'s Mother] replied she could not pick her up until after work the next day.

K.F. first revealed that she texted her mother after the first assault at the Children's Advocacy Center interview. Detective [James] Shirmer, watching the interview, contacted [K.F.'s Mother] about retrieving the text messages. [K.F.'s Mother] was able to locate her phone containing the text messages. The messages were downloaded by the police. The text messages were introduced into evidence as trial exhibit C-12.

The second incident described by K.F. was when [Appellant] and his daughter dropped off their dog at K.F.'s apartment before going on vacation in the later part of summer[] 2017. K.F. was [lying] on her back in the bottom bunk in her bedroom. [Appellant] sat next to her and began rubbing K.F.'s stomach with his fingers under her clothes. K.F. got off the bed and began following the dog around the apartment.

Trial Court Opinion, 9/15/22, at 1-2 (footnotes omitted).

Following a jury trial, Appellant was found guilty of indecent assault, endangering the welfare of children, and corruption of minors.^[1] On March 15, 2022, the trial court sentenced Appellant to serve an aggregate term of one year, less one day, to two years, less one day, for his convictions. Appellant filed a timely notice of appeal and raises two claims to this Court:

[1.] Did the trial court err in admitting the hearsay testimony of [K.F.'s Mother]?

[2.] Did the trial court err in admitting photographs of K.F. at age [11]?

Appellant's Brief at 8 (some capitalization omitted).

Both of Appellant's claims challenge the trial court's evidentiary rulings. As we have held:

The admissibility of evidence is a matter within the sound discretion of the trial court and will be reversed only where there is a clear abuse of discretion. Our standard of review of a challenge to an evidentiary ruling is therefore limited. Abuse of discretion is not merely an error of judgment, but rather where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Herring, 271 A.3d 911, 918 (Pa. Super. 2022) (quotation marks, citations, and corrections omitted).

First, Appellant claims that the trial court erred when it admitted "the hearsay testimony of [K.F.'s Mother]." Appellant's Brief at 12. This claim fails.

As noted above, during the trial, K.F. testified that Appellant sexually assaulted her twice: first, in July 2017, when Appellant used his fingers to rub the inside of K.F.'s vagina and, second, later in the summer of 2017, when Appellant went underneath K.F.'s shirt and rubbed K.F.'s stomach. See N.T. Trial, 11/30/21, at 24-45. K.F. testified that, in 2019, she told her mother about the abuse. Her testimony on this issue was as follows:

Q: [K.F.], was there a time in 2019 that you talked to your mom about what happened between you and [Appellant]?

A: Yes.

Q: And, specifically, what was happening between you and your mom?

A: Me and my mom were arguing about something, because I didn't want to go to a soccer game with my grandpa.

Q: And why was that?

A: Because I didn't feel comfortable with men in the family.

Q: And was that as a result of what [Appellant] had done?

A: Yes.

Q: When you told your mom that you didn't want to go to this soccer event, what happened?

A: I told her - I told her I didn't want to go, because I didn't feel comfortable with men in the family because of what [Appellant] did to me. And then she said - and then we - I started crying.

Q: Okay. And did you tell your mom what happened between you and [Appellant]?

A: Yes.

Q: Okay. And when you did tell you mom, were you crying?

A: Yes.

Q: And did you tell your mom what you just told us today?

A: Yes.

Q: What did your mom do?

A: She said - she said that she's sorry, and then we - she said that we're going to tell someone about this.

Q: And was there a time that you then went to meet with a woman at the Bucks County Child Advocacy Center?

A: Yes.

Q: And did you tell her what happened between you and [Appellant]?

A: Yes.

N.T. Trial, 11/30/21, at 47-49.

After K.F.'s testimony, K.F.'s Mother testified regarding the time, in 2019, when K.F. first told her of Appellant's molestation. K.F.'s Mother testified:

Q: Can you tell me, . . . was there a time that [K.F.] spoke to you about two incidents with [Appellant]?

A: Yes.

Q: Okay. When was that, approximately?

A: It was August of 2019, because I will never forget that day.

Q: And can you tell the members of the jury what happened on that day?

A: Me and [K.F.] had gotten into a little bit of an argument because [K.F.] had been declining with her emotional state. She was just getting very upset easily at things. She wasn't showering, wasn't brushing her hair. She stopped going out with her friends. She didn't want to go out with even me, her father and her sister.

Q: Can you just tell what precipitated [K.F.] disclosing something to you?

A: She was supposed to go somewhere with her grandfather. She told her grandfather yes, and then afterwards she told me she didn't want to go. I asked her, what is going on, because something is going on. She started crying and hyperventilating. And I kept saying to her, what is wrong. She said, you want to know why I have trust issues?

[Appellant's Counsel]: I'll object as to hearsay.

[Trial Court]: Overruled.

Q: You can proceed, ma'am.

A: She said, [Appellant] touches me. And she was on the floor crying, while my younger daughter watched this. And I said, what do you mean? And she said, [Appellant] touches me in my privates.

Q: And what was her demeanor when she made these statements to you?

A: She was shaking, on the floor in a fetal position, and she wouldn't stop crying.

Q: Did she tell you where he touched her?

[Appellant's Counsel]: Objection. Hearsay.

[Trial Court]: That objection is overruled.

A: When I tried to get the information out of her, she said, in my vagina. And that's about as much information as I could get out of her at that moment.

Q: And what was her demeanor when she made that statement to you?

A: She was still crying and shaking, and I was hugging her.

Q: And what did you do with the information that she provided to you?

A: I didn't know what to do. I was trying to figure out how to help her and how to tell my husband at the same time without him doing something stupid. I called one of my co-workers asking what - you know, their advice.

I - I told [K.F.] that we will - like, let's go to bed and we'll talk about it in the morning, after we have a clearer head, and then it was reported to [the National Organization for Victim Assistance ("NOVA")].

Q: And NOVA - was a [Child Advocacy Center ("CAC")] interview then scheduled for [K.F.]?

A: Yes.

N.T. Trial, 12/1/21, at 24-28.

On appeal, Appellant claims that the trial court erred when it overruled his hearsay objections to the testimony of K.F.'s Mother. Further, Appellant claims that he is entitled to the vacation of his convictions, as the Commonwealth's case against him "rest[ed] wholly on [K.F.'s] credibility" and the admission of K.F.'s Mother's testimony allowed the Commonwealth to bolster K.F.'s credibility. Appellant's Brief at 20. The Commonwealth...