Commonwealth v. McGhee

230 A.3d 1277

COMMONWEALTH of Pennsylvania

v.Rodney MCGHEE Appellant

No. 1986 EDA 2018

Superior Court of Pennsylvania.

Argued March 4, 2020

Filed March 31, 2020

Mark D. Mungello, Philadelphia, for appellant.

Andrew J. Greer, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: STABILE, J., KING, J., and STEVENS, P.J.E.^*

OPINION BY STEVENS, P.J.E.:

Appellant Rodney McGhee appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on April 25, 2018. Following our review, we affirm.

The trial court set forth the relevant facts and procedural history herein as follows:

FACTS

[Victim] [D.R]¹ was seven years old when she and her two siblings moved in with her aunt, [A.R.] and her daughter.² 03/31/17 N.T. at 31-33; 04/03/17 N.T. at 33-34.¹ Sometime around 2002, Appellant moved into the home as well after beginning a relationship with [A.R.]. 03/31/17 N.T. at 34; 04103/17 NJ. at 35. [Victim]'s aunt worked long hours during the night as a CNA. 03/31/17 N.T. at 35. While [Victim]'s aunt was at work, Appellant would occasionally watch the children. 04/03/17 N.T. at 36-37.

When the [Victim] was nine, Appellant began tickling the [Victim] on her vagina outside of her clothing. 04/03/17 N.T. at 38. Appellant later began instructing the [Victim] to come into his bedroom. Id. at 39. On one occasion, [Victim] and Appellant were watching a movie and eating food when Appellant began to touch her breasts, buttocks, and vaginal areas. Id. N.T. at 39-40. Appellant lubricated his penis with baby oil and penetrated [Victim] Id. at 41. After this occurrence, sexual acts between [Victim] and Appellant continued for a couple of years. Id. at 41-42. Appellant also made [Victim] perform oral sex on him, and he also performed oral sex on her. Id. at 44 45. Appellant told [Victim] that her aunt never cared about her or her siblings and that her aunt wouldn't believe the allegations if she ever told her. Id. at 47.

When [Victim] was thirteen, Appellant became jealous that she was talking to younger guys, which made [Victim] no longer interested in having sexual relations with him. Id. at 47-48. At this point, [Victim] made up a lie to her aunt so Appellant could be removed from the home. Id. at 48. In 2015, [Victim] confessed to her aunt about her sexual relationship with Appellant after her aunt tricked her into thinking he had already disclosed the information to her. Id. at 51. [Victim]'s aunt became suspicious of their relationship when Appellant began calling her home years after they had broken up. 03/31/17 N.T. at 40. After [Victim] confessed, the police were called and she was taken to the Special Victims Unit. 04/03/17 N.T. at 53.

¹ N.T. refers to the Notes of Testimony taken at the jury trial before the Honorable Gwendolyn N. Bright on March 30 - April 4, 2017.

Trial Court Opinion, filed 12/21/18, at 1-2.

Following a jury trial, on April 4, 2017, Appellant was convicted of Rape of a Minor, Unlawful Contact with a Minor, Involuntary Deviate Sexual Intercourse (IDSI), Statutory Sexual Assault, Endangering Welfare of Children, and Indecent Assault. On April 25, 2018, Appellant was sentenced to an aggregate term of six (6) years to twelve (12) years in prison, to be followed by seventeen (17) years of probation and lifetime registration. Appellant filed his Motion for Reconsideration of Sentence on May 6, 2018, wherein he challenged, inter alia , the weight of the evidence to sustain his convictions. See ¶ 4. The trial court denied Appellant's post sentence motion in its Order entered on May 9, 2018.

Appellant filed a timely appeal on May 11, 2018, and the trial court issued its Order pursuant to Pa.R.A.P. 1925 on August 1, 2018. Appellant filed his six-page concise statement of matters complained of on appeal on August 21, 2018. Therein, Appellant raised seven (7) allegations of error, several of which included subissues.³

The trial court issued its Rule 1925(a) Opinion wherein it found no merit to any of the claims on December 21, 2018.

In his appellate brief, Appellant presents the following Statement of the Questions Involved:

1. Whether the trial court judge abused her discretion by exercising a judgment that was not only erroneous, but was also manifestly erroneous in the court's ruling that:

A) The Department of Health Services (DHS) records of the Victim's incarceration were not to be produced and reviewed or that the [c]ourt was to proceed without the production of those records.

B) By permitting a Philadelphia Police Detective to give expert opinion testimony as to the concept of "grooming" when that officer was never qualified to be an expert witness;

C) By not permitting defense counsel to cross examine’ [sic] the Victim's aunt and the Victim as to when a child molester who had recently been released from prison was allowed to reside at the same residence; and

D) By not permitting defense counsel to examine the Victim's aunt and the Victim to explore the fact that men were sneaking into their residence through the Victim's window.

2. The verdict rendered against the Appellant was against the weight of the evidence especially where defense counsel brought out so many falsehoods that the Victim's aunt engaged in through trickery and deception in order to manipulate the Victim into telling the story that she did about [Appellant].

3. The Pennsylvania Supreme Court is in the process of ruling on the constitutionality of the Sexual Offender's Registration and Notification Act (SORNA) as a result may rule that the ten (10) year period of supervision that [Appellant] was sentenced to after his period of incarceration has ended is also unconstitutional, thereby requiring [Appellant] to be remanded to the trial court level for resentencing.

Appellant's Substitution Brief at 4-5.

Appellant's first issue presents numerous challenges to the trial court's exercise of its discretion pertaining to evidentiary issues. Specifically, Appellant avers the trial court abused its discretion in failing to review and rule upon the admissibility of the victim's purported DHS mental health records, in allowing a detective to provide what Appellant deems to be an expert opinion, and in sustaining two objections made by the Commonwealth in response to defense counsel's questioning. See Brief for Appellant at 11-31.

In reviewing evidentiary challenges, we note:

[o]ur standard of review regarding the admissibility of evidence is an abuse of discretion. The admissibility of evidence is a matter addressed to the sound discretion of the trial court and ... an appellate court may only reverse upon a showing that the trial court abused its discretion. An abuse of discretion is not a mere error in judgment but, rather, involves bias, ill will, partiality, prejudice, manifest unreasonableness, or misapplication of law.

Commonwealth v. Collins , 70 A.3d 1245, 1251-1252 (Pa.Super. 2013), appeal denied , 622 Pa. 755, 80 A.3d 774 (2013) (citations and quotations omitted).

In his concise statement, Appellant averred the trial court had erred in failing to allow the defense to produce any DHS records and that such evidence "would have been relevant to helping the trier of fact determine whether those records were helpful in determining whether [Appellant] was guilty or innocent." See Defendant's Statement of Matters Complained of on Appeal Pursuant to Rule 1925(B) of the Rules of Appellate Procedure statement at 4, ¶ 3(d). (unnumbered). In his appellate brief, Appellant asserts he had been prejudiced by the trial court's failure to require the production of those documents.

A review of the record reveals that when the trial court asked defense counsel to produce the records from DHS he sought to have reviewed, counsel indicated he did not have them because he "pulled [the] subpoena" although he "might send the subpoena back." N.T., 3/30/17, at 12. The trial court responded, "That's up to you. But at this point I really don't have anything [to] evaluate." Id . at 13. Thus, Appellant's assertion the trial court "refused" to review DHS records pertaining to the victim is refuted by the record. Moreover, it was not the job of the trial court to require Appellant to submit records for its review when it did not foreclose counsel from doing so; therefore, any resulting prejudice from counsel's failure to do so cannot be attributed to the trial court.

Appellant next baldly argues Detective Carol Farrell provided an expert opinion on the concept of "grooming" a victim, despite the trial court's prior ruling that she would not be proffering an expert opinion. The relevant testimony is as follows:

BY MS. RUDOPH:

Q. Now, detective, have you received during the course of your time in Special Victims Unit and the course of your training, have you received information on the concept called grooming?

A. Yes.

Q. All right. And can you just describe generally what grooming is?

MR. CAPONE: Objection, again, Your Honor.

MS. RUDOLPH: Your Honor, I think this was addressed in our motion.

THE COURT: Overruled.

BY MS. RUDOLPH:

Q. You can answer the question, detective.

A. Okay. Grooming is when a predator identifies a child who is a potential victim, gains their trust, and then he essentially begins the assault.

Q. Are there any specific things that are involved in grooming?

A. First, generally, they like to identify a potential victim. So depending on where they go on their -

THE COURT: I'm going to sustain as to this.

MR. CAPONE: Thank you, Your Honor.

MS. RUDOLPH: That's fine. Your Honor.

THE COURT: Even though there's no objection, based on previous discussions. So that's stricken.

MS. RUDOLPH: Yes, Your Honor. Those are all the questions I have for the detective. Thank you.

THE COURT: All right. You may cross-examine.

MR. CAPONE: Thank you, Your Honor. Can you instruct the jury when you strike something, Your Honor. I don't know if they know what that means.

THE COURT: I instructed them during the preliminary instructions[.]

MR. CAPONE: Okay.

N.T. 3/31/17, at...