Commonwealth v. Golson

189 A.3d 994

COMMONWEALTH of Pennsylvania

v.Brian GOLSON, Appellant

No. 256 EDA 2017

Superior Court of Pennsylvania.

Submitted May 7, 2018

Filed June 4, 2018

Francis M. Walsh, Norristown, for appellant.

Robert M. Falin, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Tracy S. Piatkowski, Assistant District Attorney, Norristown, for Commonwealth, appellee.

Kevin R. Steele, Assistant District Attorney, Norristown, for Commonwealth, appellee.

BEFORE: PANELLA, J., MURRAY, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant Brian Golson¹ appeals from the judgment of sentence of fifty (50) years to one hundred (100) years in prison entered in the Court of Common Pleas of Montgomery County on August 9, 2016, following his convictions of numerous sexual offenses. For the reasons that follow, we vacate the portion of Appellant's sentence finding him to be a sexually violent predator and affirm in all other respects.

The trial court detailed the facts and procedural history herein as follows:

In or about September 2014, Amber Beck was sexually assaulted in Pottstown, Montgomery County. N.T. May 28, 2015[,] at 54–55. On a date prior to the assault, a car in which [Appellant] was a passenger pulled over and offered Ms. Beck a ride, which she accepted. Id. at 57–58.^[2] She knew the driver and had previously used drugs with him; [Appellant] was a passenger in the car and introduced himself as Breon. Id. at 138; 57–58. On the evening of the assault, Ms. Beck was walking home, alone, from a convenience store. Id. at 58. On her way to get cigarettes from another store, she ran into [Appellant] on the corner of King and Hanover Streets. Id. at 59. She recognized him from their previous encounter. Id. He asked her for a cigarette, which she gave him. Id. at 60. She told him she was on her way to get more, at which time he offered to walk with her because "pretty young girls shouldn't be walking around Pottstown at night." Id. She thought he seemed friendly and protective and that she could trust him. Id. He convinced her to come with him to a friend's house and told her that they could get cigarettes from the friend. Id. They proceeded to walk to a house on Walnut Street. Id. at 61. When they arrived at the house, there were three men sitting on the porch; [Appellant] signaled to the men and they told him to walk into the alley. Id. at 62. [Appellant] instructed Ms. Beck to sit on the curb. Id. At this point, he spoke with a man he identified as his nephew in the backyard, out of her earshot. Id. at 63–64. They returned to the alley and the man identified as the [Appellant's] nephew told her to get on the ground, when she did not comply, she was kicked in the back. Id. at 64. She lay on the ground. Id. at 65.

At this point, she heard [Appellant] and his nephew discussing a "jimmy," which she understood to be slang for a condom. Id. Two additional men were outside at this point, but Ms. Beck could not see them. Id. There was further discussion about obtaining a condom. Id. [Appellant] told the men that he knew she was clean. Id. Fearing she was about to be raped, Ms. Beck told the men she had a terminal pregnancy. Id. at 66. [Appellant] said she could do other things; at which point his nephew indicated it was her lucky day. Id. At this time, the additional men went back inside leaving the [Appellant] and his nephew in the alley with Ms. Beck. Id. at 67. [Appellant] told her to get up, and she tried to get away, but [Appellant] pulled out a knife. Id. at 68. He then threatened to kill her and her fiancé who was in jail at that time. Id. He held the knife to her collarbone and told her if she helped him, he'd help her. Id. at 69. [Appellant's] nephew told her to get back on the ground, and she did. Id. He then pulled down his pants and told her to perform oral sex on him, which she did. Id. at 70. At some point, he ordered her to get up and pulled down her pants and began touching her before forcing her to get back down and finish Id. at 71. The nephew ejaculated, and she tried to get away, but [Appellant] followed her. Id. at 71–72. [Appellant] told her that he wanted to help her get cleaned up and that there was a house they could go to. Id. at 73. Afraid to walk away from him, he took her to "Uncle Dave's" house on North Charlotte Street. Id.

On the porch, he took out her pack of cigarettes, which he took from her when she way laying in the alley, and took crack cocaine out of the pack and proceeded to smoke it. Id. at 74. Ms. Beck indicated that she was going to go home[.] [Appellant] told her to sit on his lap if she wanted her cigarettes and her money back. Id. at 75. He pulled her closer to him and reached into her bra. Id. He also pulled down her pants and fondled her butt. Id. at 76. When she told him no and that she wanted to leave, he became aggressive. Id. She told him to keep her money and cigarettes and pulled up her pants and started to leave. Id. When she made it to the street, she ran until she returned to her home. Id. at 77. Upon arriving home, she told her roommate some of what happened to her, omitting the sexual assault. Id. He urged her to call the police, but she refused because [Appellant] had threatened her and her fiancé. Id.

On October 16, 2014, Ms. Beck went to the Pottstown Police station because her roommate was arrested. Id. at 87. While she was on her way to the station, [Appellant] pulled up beside her in a gray minivan and proceeded to follow her down High Street. Id. He parked in the lot across from her apartment and told her he would wait for her. Id. As a result, Ms. Beck reported the sexual assault to police on that date. Id. at 89.

Mindy Cushman met [Appellant] in or around August or September 2014 when he approached her as she sat on her front steps of her apartment at 155 King Street in Pottstown, Montgomery County, waiting for her son to come home from school. Id. at 181.^[3] He took her hand, kissed it, and introduced himself. Id. She ignored him, and when her boyfriend arrived home she went upstairs. Id. at 182. In or around late August 2014, Cushman was walking home by herself. Id. [Appellant] approached her at King and Charlotte Streets, grabbed her by the left arm and told her not to scream or he would cut her up into little pieces. Id. She felt something pressed into her low back, which she thought may have been a gun. Id. at 183. He led her up Charlotte Street and took her into an abandoned building in an alley. Id. At that point, he handed her off to a tall, light-skinned African American male with short hair, who dragged her by her hair backward, up the stairs into the abandoned house. Id. Once inside the house, the unknown man forced her onto all fours and anally raped her. Id. at 186. The man then brought her back downstairs to [Appellant], at which time he tossed [Appellant] small baggies containing what Cushman recognized to be crack cocaine or cocaine. Id. at 187.

[Appellant] then took her by the arm and led her across the alley into a backyard. Id. at 188. He then pushed her to the ground, pressed his chest against hers and removed her pants. Id. Then, he vaginally raped her. Id. at 189. When he finished, she pulled her pants up and ran home where she sat in her truck and thought about what happened to her. Id. at 189–190. She was worried that her boyfriend would think she was cheating on him. Id. She removed her underwear and threw it out and changed into clean clothes that were in her truck. Id. She did not tell her boyfriend what happened to her. Id.

Ms. Cushman reported her rape to the police in October of 2014. Prior to going to the police, her friend showed her a picture of a man Cushman recognized as [Appellant]. Id. at 193. She also spoke with Amber Beck, who[m] she had known for a short time. Id. at 194. She showed Amber the picture and ultimately both women went to the police. Id.

On June 1, 2015, following a jury trial, [Appellant] was convicted of Criminal Conspiracy-IDSI Threat of Forcible Compulsion²(Amber Beck); Criminal Conspiracy–Sexual Assault³(Amber Beck); Indecent Assault—Threat of Forcible Compulsion⁴(Amber Beck); Indecent Assault—Without Consent⁵(Amber Beck); Terroristic Threats⁶(Amber Beck); Criminal Conspiracy–Rape By Threat of Forcible Compulsion⁷(Mindy Cushman); Criminal Conspiracy—Aggravated Indecent Assault⁸(Mindy Cushman); Rape–Threat of Forcible Compulsion⁹(Mindy Cushman); Sexual Assault¹⁰(Mindy Cushman); Terroristic Threats ¹¹(Mindy Cushman).

On August 18, 2015, the Commonwealth filed a Praecipe for a Sexually Violent Predator Hearing. On October 26, 2015, the Commonwealth file[d] a Notice of Intent to Seek Mandatory Twenty—Five Year Sentence. On November 4, 2015, [Appellant] file[d] a Post–Verdict Motion for a New Trial Based on After–Discovered Evidence. A hearing on the motion was held on January 4, 2016; the motion was denied by Order of January 29, 2016. On April 4, 2016 sentencing counsel entered his appearance.

[Appellant] was sentenced on August 9, 2016[,] to an aggregate term of fifty (50) to one hundred (100) years' incarceration in a State Correctional Institution, which included consecutive, mandatory minimum sentences pursuant to 42 Pa. C.S.A. § 9718.2 for Criminal Conspiracy–Rape By Threat of Forcible Compulsion (Mindy Cushman) and Criminal Conspiracy-IDSI Threat of Forcible Compulsion (Amber Beck). Mandatory minimum sentences were also imposed for Indecent Assault—Threat of Forcible Compulsion (Amber Beck), Rape–Threat of Forcible Compulsion (Mindy Cushman), concurrent to the Conspiracy sentences. He was also designated a sexually violent predator as defined in 42 Pa. C.S.A. § 9799.12.

[Appellant] filed a post-sentence motion on August 19, 2016. Following a hearing, the motion was denied by Order of December 16, 2016. The same date, sentencing counsel filed a Motion to Withdraw as counsel. On January 11, 2017, sentencing counsel filed a notice of appeal. On January 17, 2017, the [c]ourt granted sentencing cou

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