Commonwealth v. Myers

1

COMMONWEALTH OF PENNSYLVANIA v. RAYTI MYERS Appellant

No. 195 EDA 2021

No. J-A05040-23

Superior Court of Pennsylvania

April 20, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered October 29, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at CP-51-CR-0006654-2017

BEFORE: LAZARUS, J., KUNSELMAN, J., and MURRAY, J.

MEMORANDUM

MURRAY, J.

Rayti Myers (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of unlawful contact with a minor, endangering the welfare of a child (EWOC), corrupting the morals of a minor, and indecent assault of a person less than 13 years of age.^[1] We affirm.

The trial court recounted the evidence presented at trial as follows:

On August 2-9, 2018, [Appellant] appeared ... for [a jury] trial. Eleven-year-old victim M.P. testified ... that she used to live with her mother, [Appellant], and her two younger brothers in an apartment. Her mother worked long hours at the airport so [M.P.] primarily was cared for by her stepfather [Appellant]. M.P. stated that she was watching a movie on her mother's bed when [Appellant] entered the room, turned her onto her back, and put his penis into her vagina. She stated that "white stuff" came out of his penis and that he cleaned himself off with a towel. M.P. stated that he washed and dried the towel and then put it on the baby's crib. She testified that the next day at school, she told her teacher that she had been raped by her stepfather. The school notified the police, who took her to the hospital to be examined. (N.T. 8/2/18, p. 56-120).

M.P. further testified that besides the rape, on numerous other occasions[, Appellant] would lick her buttocks, vagina, and nipples, touch her breasts and vagina, and put his tongue in her mouth. He also digitally penetrated her vagina with two of his fingers. [Appellant] offered her $10 to perform oral sex on him, but when she refused, he raped her. M.P. testified that [Appellant] threatened to hurt her mother if M.P. told anyone about the abuse. Despite [Appellant's] threats, M.P. stated that she had told her mother multiple times about [Appellant] touching her inappropriately, but her mother did nothing. Id.

M.P.'s aunt, Geneiah Moment ("Moment") testified next. She stated that she learned about [Appellant] sexually abusing M.P. on the same day that M.P. told school officials. She testified that she saw M.P. at her grandmother's house that same day and that M.P. told her about the rape and how [Appellant] had offered her money in exchange for oral sex. Moment testified that thereafter she took M.P. to a clinic to get tested for sexually transmitted diseases. (N.T. 8/3/22, 7-17).

Next, Denise Wilson ("Wilson"), Manager of Forensic Services at the Philadelphia Children's Alliance, testified that M.P. was interviewed in her office by forensic interviewer Michelle Kline. The Commonwealth then played a video recording of that interview for the jury. Id. at 19-31.

Police Officer Jill Cawley testified that on May 5, 2017, she received a radio call regarding a child reporting a rape at school and the police officer already on the scene was requesting a female officer to make the child feel more comfortable. At the school, Officer Cawley asked M.P. what happened, and M.P. said "her stepfather told her that he would give her $20 to suck his dick and that he bent her over and put it in her front." Officer Cawley testified that M.P. told her that her crotch hurt and that she had told her mom several times about the ongoing abuse. Id. at 32-45.

Dr. Maria McColgan, a board-certified child abuse pediatrician and Fellowship Director at the CARES Institute, testified next as an expert in child physical and sexual abuse[,] with expertise in the diagnosis and treatment of child sexual abuse. She testified that M.P. was examined in the Emergency Room on May 5, 2017, and was examined again approximately one month later on June 5, 2017, at the Child Protection Program (CPP) at St. Christopher's Hospital.

Dr. McColgan had reviewed the reports from each of these visits. She testified that the examiner at the Emergency Room noted a vulva vaginal erythema, meaning a diffused redness to the outside of the vagina and vulva. She stated that this was a non-specific irritation that could be the result of anything from sexual abuse to poor hygiene. At her follow-up exam at CPP, M.P.'s examination was normal without any sign of injury or infection. Dr. McColgan testified that studies have shown this is consistent with a history of sexual abuse, even with penetration. She further testified that it is normal to not find any male DNA in a rape kit collected on a prepubescent child since there is usually a delay in reporting and the child would have wiped away any external DNA, which is where children's rape kits are swabbed. Id. at 49-73.

Detective Carol Farrell, Special Victims Unit, testified next. She stated that she observed via closed-circuit television the Forensic Interview Specialist's interview with M.P. Later,

Detective Farrell executed a search warrant at [Appellant's] apartment, where the Crime Scene Unit took photos and collected evidence. Detective Farrell testified that she collected the clothing and rape kit from the hospital and obtained a search warrant for a buccal swab of [Appellant's] DNA. Id. at 84-97.

Police Officer Terry Tull, a member of the Crime Scene Unit, accompanied Detective Farrell when she executed the search warrant at [Appellant's] apartment. He testified that he took photographs of the apartment unit and recovered a bedsheet, a towel and swabbed a clear substance on the floor. Id. at 103-112.

Next, Police Officer Duane White testified that on May 5, 2017, he responded to a radio call regarding a "rape in progress" at Heston School, meaning that either a rape had been committed prior to the child arriving at school or while at school. At the school, he met with M.P. and a school counselor, and described M.P.'s demeanor as "dazed." He testified that when he asked M.P. what happened, M.P. told him that her stepfather had offered her money to suck his penis and that he raped her when she refused. (N.T. 8/6/18, p. 6-15).

Ernest Drummond testified next as an expert in Forensic Science. He stated that he tested items recovered from the apartment, including a top sheet, a fitted sheet, and a towel, and that he observed semen on the towel, but none on the sheets. Id. at 22-32.

David Hawkins testified next as an expert in Forensic DNA Analysis. He stated that he reviewed the results of the rape kit processed, which included two swabs from M.P.'s vaginal vault. The first sample did not include any human DNA; the second sample did not contain any male DNA. He further testified that the semen observed on the towel matched [Appellant's] DNA profile. Id. at 42-66.

Next, Jennifer Klepesky, a caseworker at the Department of Human Services, testified that M.P. was removed from her mother's care after M.P. was discharged from the emergency room on May 5, 2017. Klepesky stated that M.P.'s mother admitted that she had known about the abuse for at least six weeks and M.P. had talked to her about it on numerous occasions, but that she relied on [Appellant] for childcare so she did nothing. Id. at 72-87.

At the conclusion of Ms. Klepesky's testimony, the Commonwealth entered its exhibits into evidence and rested. Defense counsel then moved for a judgment of acquittal without any argument, which th[e trial c]ourt denied. Id. at 93-94. [Appellant] chose not to testify and defense counsel did not produce any witnesses. The jury returned with its verdict on August 9, 2018, and found [Appellant] guilty on the following counts: Unlawful Contact with a Minor, Endangering the Welfare of a Child, Corrupting the Morals of a Minor, and Indecent Assault of a Person less than 13 years of age. The jury found [Appellant] not guilty of Rape of a Child, Involuntary Deviate Sexual Intercourse, and Aggravated Indecent Assault of a Child.

Trial Court Opinion, 6/1/22, at 3-6.

On October 29, 2018, the trial court sentenced Appellant to an aggregate 8 - 20 years of incarceration. On November 8, 2018, Appellant filed a post-sentence motion challenging the sufficiency of the evidence, and the trial court's imposition of consecutive rather than concurrent sentences. The motion was denied by operation of law on May 8, 2019. Appellant did not appeal. However, Appellant subsequently filed an unopposed and ultimately successful petition under the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546, seeking reinstatement of his direct appeal rights. On December 31, 2020, Appellant filed a notice of appeal, followed by a court-ordered concise statement of errors pursuant to Pa.R.A.P. 1925(b).

Appellant presents five issues for review:

1. Whether the evidence presented at trial was sufficient to establish each and every element of the crimes of unlawful contact with a minor, indecent assault of a child endangering the welfare of a child, and corruption of a minor.

2. Whether the jury verdict was against the weight of the evidence.

3. Whether [A]ppellant's Due Process rights were violated based on the introduction of hearsay evidence at trial.

4. Whether the sentencing court abused its discretion by imposing a sentence that was not based upon the gravity of the violation, the extent of [A]ppellant's record, his prospect of rehabilitation, nor an assessment of the mitigating and aggravating factors as noted in 42 Pa.C.S. Section 9721 of the Sentencing Code.

5. Whether the sentencing court imposed a manifestly excessive sentence to such a degree that the imposition of consecutive sentences establishes evidence of the court's bias or animus

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