Commonwealth v. Wells

COMMONWEALTH OF PENNSYLVANIA v. ANTWAIN WELLS Appellant

J-S02014-21

No. 1034 EDA 2020

SUPERIOR COURT OF PENNSYLVANIA

April 8, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered October 18, 2019

In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0000120-2018

BEFORE: BENDER, P.J.E., KUNSELMAN, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.:

Appellant, Antwain Wells, appeals from the judgment of sentence of 20-50 years' imprisonment, imposed after a jury convicted him of involuntary deviate sexual intercourse with a person less than 16 years of age (IDSI), 18 Pa.C.S. § 3123(a)(7); aggravated indecent assault of a person less than 16 years of age, 18 Pa.C.S. § 3125(a)(8); and unlawful contact with a minor as a sexual offense, 18 Pa.C.S. § 6318(a)(1). We affirm.

The trial court summarized the background of this case as follows:

Procedural History

On April 23, 2019, Appellant ... proceeded to trial before this [c]ourt, sitting without a jury. He was convicted of [the above-stated offenses]. Sentencing was deferred for a presentence report and mental health evaluation.

A sentencing memorandum, with exhibits, was filed by counsel for Appellant on October 16, 2019. A sentencing memorandum, with exhibits, was filed by the Commonwealth on October 17, 2019.

On October 18, 2019, Appellant was sentenced to 8-20 years['] incarceration on the IDSI conviction[,] 8-20 years['] incarceration on the [u]nlawful [c]ontact with a [m]inor conviction, and 4-10 years['] incarceration on the [a]ggravated [i]ndecent [a]ssault conviction. All of the sentences were imposed consecutively, for an aggregate sentence of 20-50 years[' imprisonment].

On October 25, 2019, Appellant filed a timely motion for reconsideration of sentence. That motion was denied by operation of law on February 24, 2020.

A timely notice of appeal was filed on March 12, 2020.

Pursuant to Pa.R.A.P. 1925(b)(2) and (3), the [c]ourt entered an order on June 8, 2020, directing the filing of a [s]tatement of [e]rrors complained of on [a]ppeal pursuant to Pa.R.A.P. 1925(b), not later than [21] days after entry of the order, or after preparation of all necessary transcripts.

A timely [Rule] 1925(b) statement of errors was filed on July 7, 2020.¹, ²Factual History

Trial Evidence¹

¹ On [a]ppeal, Appellant only raises issues relating to sentencing. Accordingly, the recitation of the trial evidence will, for the most part, be limited to a summary of the conduct giving rise to the offenses or otherwise relevant to sentencing.

The complainant, A.D., was a 15-year old, ninth grade high school student in November of 2017. She lived with her mother, and younger brother and sister. A.D. had an older sister who did not live with her. A.D. travel[ed] to and from school by trolley and bus. The trip to school took A.D. about an hour and a half.

At the time of the incident, Appellant had been the boyfriend of A.D's[] mother for several years. Appellant lived with A.D. and her family at a prior address, but he was not living with them attheir then[-]current address. Although Appellant was not her biological father, A.D. called Appellant "Dad" for a time.

On the morning of November 29, 2017, A.D. left home to catch the trolley to school. While walking to the trolley, Appellant called out to A.D. from his car and offered her a ride to school. While en route, Appellant told A.D. [that] he had to make a stop. He pulled into a parking area and left the car for about two minutes, while A.D. remained in the car playing a game on her phone.

Upon returning to the car, Appellant spoke on his phone for a minute, and then locked the car doors. Feeling uncomfortable, A.D. started talking nervously about the game she was playing, to which Appellant responded, ["Y]ou're not advanced enough for the game I want to play.["] Appellant then said to A.D.: "[Y]ou're about to suck my dick." When A.D. said she was not, Appellant pulled out a screwdriver, which he held to A.D.'s neck. He then demanded that A.D. perform oral sex. Appellant pulled his pants down[,] and A.D. then proceeded to do so. As she was describing these events at trial, A.D. stopped and asked the [c]ourt[,] "[C]an we take a break?"

At some point, Appellant told A.D. to pull her pants down and then to get in the back seat of the car, which she did. Appellant went to the back seat with A.D., said he was going to make her vagina wet[,] and proceeded to put his mouth on her vagina. Appellant then placed his fingers in A.D.'s vagina, before attempting to place his penis in her vagina. Appellant's efforts were extremely painful to A.D.[,] and he was not able to insert his penis into her vagina. Appellant then ordered A.D. to turn around and he stood behind her, outside the car, as she lay face-down on the back seat, with her lower body outside of the car.

Appellant then inserted his penis into A.D.'s rectum and proceeded to move it back and forth inside her. Appellant then made A.D. suck his penis again, at which point he ejaculated.

Appellant then ordered A.D. into the back seat of the car, and told her to lie flat. At some point[,] she climbed back into the front seat. Appellant then drove A.D. to school and dropped her about a block from school. On the way, Appellant asked A.D. if she was mad at him and told her that if she said anything he will [sic] kill her mother. Appellant then gave A.D. $12 or $13. He also told A.D. that if she didn't say anything, he would give her money and get her the iPhone he knew she wanted.

When A.D. arrived at school, she told her older sister, who was also a student there, that a friend had been raped and that the man threatened to kill her mother, and asked for advice on what to do. Her sister advised A.D. to tell the friend to tell someone, then they parted. After about 20 minutes, A.D. texted her sister that the friend was actually her. Also, while A.D. was in school, Appellant was texting her that she was a liar. He continued to text A.D., saying he was sorry, then calling her a liar and reminding her of a deal she had made, apparently referring to getting her the iPhone and giving her money if she didn't tell anyone what happened.

A.D. left school and went with her sister to her sister's godmother's house. From there[,] the police were called. A.D. was taken to the hospital for an examination and [was] later interviewed by the Philadelphia Children's Alliance.... Appellant's DNA was found in ... A.D.'s pants and underwear, with protein from seminal fluid.

Sentencing

Prior to sentencing, the [c]ourt received the [p]re[-s]entence [i]nvestigation [r]eport, the [m]ental [h]ealth [e]valuation, and the sentencing memorandum of each side. Additionally, the [c]ourt heard the arguments of counsel, heard from Appellant's mother, and heard a letter written by A.D. Appellant declined the opportunity for allocution.

A.D.'s letter was read at sentencing as follows:

Dear Judge Campbell, my name is [A.D.], and I'm about to be 17 years old. Currently, I'm living in the foster care system after I was sexually abused by [Appellant] just after my 15th birthday. I'm here today because I want you to know how it[ has] affected my life so that you understand why I would like to see [Appellant] locked up for as long as possible. I met [Appellant] from my mother. That was her boyfriend and I knew him for some time. My mom didn't have a job so every time she needed money[,] she would run to him. He used to pay most of the bills. When there was no food in the house, he'd bring us food. As time went on, we got really close and we developed a bond. I called him dad and I really trusted him. When the assault happened, it took a toll on my life. I became very depressed and not myself. I was happier before. I now have my wall up and I find it hard to trust people. I always feel mad nowand I'm easily irritated. I didn't think about what people thought of me before, but now I have to. I could wear what I wanted and not be worried. Now I feel very sensitive and cry very easily. Since this happened[,] I don't like being home alone. I can't be around men without feeling uncomfortable. It's affected my ability to be in a relationship because when other men try to touch me[,] I think of [Appellant]. I also get triggered by shows and hearing other stories of sexual assault. Before this happened[,] I was living with my family and not feeling like an orphan. Now I am in foster care where I worry about where I'm going to live and who I'm going to live with. I haven't seen my younger sister or brother for two years. I think they're mad at me for telling the truth about what happened. This changed my relationship with my mother too. I am unable to forgive her for not believing me and putting things in people's head[s] about me that weren't true. This ruined her too because now she's homeless, sad, and saying she wants to kill herself. It[ has] led to her depression and need for medication. She hasn't been able to recover enough to do what's needed so that we can go home if we wanted to. When I found out that I had to testify in front of the judge, the man that did this to me, and everybody, I felt really scared and emotional. I didn't want to talk about it. I wanted to push it to the back of my head and pretend it never happened. When I found out I had to testify, I felt broke[n]. I wanted to kill myself. I felt that everyone will [sic] look at me different[ly]. It was really stressful. I didn't want to see his face. I was also scared to testify because [Appellant] told me that if I said anything[,] there would be consequences. He said he would kill my family and even if he was in jail[,] he knew people to do his dirty work. The reason I did testify is because I wanted [Appellant] to be in jail. I don't want him on the street. I know what kind of person he is, and I didn't want him out there, out so that he could do this to other people like his nieces and nephews. I was scared but I

...