J-S77017-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMES ARTHUR A. MCQUEEN
Appellant No. 12 EDA 2014
Appeal from the Judgment of Sentence January 8, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003799-2011
BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.**
MEMORANDUM BY JENKINS, J.: FILED DECEMBER 22, 2014
A jury convicted Appellant James McQueen of rape, involuntary deviate
sexual intercourse, unlawful contact with a minor, endangering the welfare
of a child, indecent assault and corruption of minors1. The court sentenced
Appellant to an aggregate sentence of 32½-65 years’ imprisonment.
Appellant filed timely post-sentence motions which were denied by operation
of law. Appellant filed a timely appeal to this Court, and both Appellant and
the trial court complied with Pa.R.A.P. 1925. For the reasons provided
below, we affirm.
The trial court summarized the evidence adduced during trial as
follows:
____________________________________________
**
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 3121, 3123, 6318, 4304, 3126, and 6301, respectively.
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This case proceeded to trial on September 20, 2012.
The following witnesses testified for the
Commonwealth: complainant J. M., a minor, Alethia
McQueen (‘Alethia’), Police Officer Elizabeth Strange,
Police Detective Joseph Jenkins, and Dr. Maria
McColgan.
J. M. testified that, as a child, she lived at numerous
addresses. N. T. 9/20/12 at 50. At age four, she
lived at Fairview Court in New Jersey, after which
she moved to Pennsauken, New Jersey, then the
Tamarack Apartments in New Jersey, and then to
975 Jackson Street in New Jersey. N. T. 9/20/12 at
47-49. Following these moves, she lived on 16th
Street in the City and County of Philadelphia, then at
her step-grandmother's house, and finally her
current address, 2326 West Thompson Street in
Philadelphia. N. T. 9/20/12 at 50. She lived at her
current address with her mother and Appellant, her
stepfather. N. T. 9/20/12 at 51.
J. M. testified that in the Tamarack Apartments,
when she was approximately seven years old,
Appellant penetrated her anus with his penis. N. T.
9/20/12 at 52-54, 79. She was too young to know it
was his penis, but she remembered the pain, and
knew Appellant had been the one to hurt her. N. T.
9/20/12 at 53. This happened only once at that
location. N. T. 9/20/12 at 55. At an unspecified later
date, Appellant blindfolded J. M., but she was able to
look down beneath the scarf and saw his penis, and
then knew that he had penetrated her with his penis
at this earlier date. N. T. 9/20/12 at 54.
The family moved to 957 Jackson Street, where the
abuse occurred again. N. T. 9/20/12 at 55-56.
Several times, Appellant called J. M. into the room
he shared with J. M.'s mother. N. T. 9/20/12 at 58,
61. He then tied a scarf around J. M.'s eyes and told
her he was checking her teeth, and it would hurt less
when she could not see. N. T. 9/20/12 at 56. Though
J. M. at first thought Appellant was checking her
teeth with his thumb, she was later able to peek
below the edge of the scarf, and saw he was actually
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putting his penis into her mouth. N. T. 9/20/12 at
56-57. During these sessions of abuse, Appellant
instructed J. M. to ‘suck it like a lollipop and a
popsicle.’ N. T. 9/20/12 at 58-59. On another
occasion, Appellant took J. M.'s clothes off and
penetrated her anus and once, her vagina. N. T.
9/20/12 at 60, 62. J. M. did not tell anyone what was
happening because she was frightened about what
would happen to her. N. T. 9/20/12 at 59-60.
When J. M. was ten (10) years old, the family moved
to 16th Street in Philadelphia. N. T. 9/20/12 at 65.
On an unspecified date at 16th Street, J. M.'s mother
went to work and J. M. lay down in her bed. N. T.
9/20/12 at 64-65. Appellant came up to the bed and
forced his penis inside J. M.'s anus. N. T. 9/20/12 at
65. When J. M. woke up to find him doing this, she
cried. N. T. 9/20/12 at 71. Later, Appellant wrote J.
M. a letter saying he was sorry, but J. M. threw the
letter out. N. T. 9/20/12 at 71. This was the first
time she had showed him he was hurting her; during
other assaults, she pretended to be asleep, N. T.
9/20/12 at 71. The assaults occurred multiple times
at the 16th Street house. N. T. 9/20/12 at 65.
J. M. and her family also lived with Charlene
McQueen, Appellant's mother, for a time. N. T.
9/20/12 at 65. In this residence, too, Appellant
forced his penis inside of J. M.'s anus. N. T. 9/20/12
at 66-67.
J. M. and her family next moved to her
grandmother's house. N. T. 9/20/12 at 67. Appellant
did not live with them the entire time but on one
night, he came to J. M.'s room [and] penetrated her
anus with his penis. N. T. 9/20/12 at 67-68.
When J. M. was eleven (11) years old, the family
moved to 2326 W. Thompson Street. N. T. 9/20/12
at 68. J. M. often slept on the couch in her one year
old brother’s room because she was afraid of the
dark. N. T. 9/20/12 at 69-70. One night while J. M.
and her brother slept, Appellant came into the room
and assaulted J. M. in the same manner as earlier
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occasions, penetrating her anus with his penis. N. T.
9/20/12 at 70-72. The assaults occurred numerous
times at that location. N. T. 9/20/12 at 70-72.
On March 10, 2011, J. M., Appellant, and Alethia
attended the Jehovah's Witness Kingdom Hall, where
they read a Bible excerpt about rape. N. T. 9/20/12
at 72-73, 97. J. M.'s eyes welled with tears and her
mother asked her what was wrong. N. T. 9/20/12 at
73, 97. When J. M. refused to speak, Alethia took J.
M. into the bathroom. N. T. 9/20/12 at 73, 97. J. M.,
shaking and stuttering, still did not want to tell her
mother why she was crying. N. T. 9/20/12 at 97.
Finally, J. M. said, ‘[Appellant] isn't the person you
thought he was.’ N. T. 9/20/12 at 97. Though J. M.
was still reluctant to talk, she finally admitted to
Alethia that Appellant came into her room when he
thought she was asleep and penetrated her anally.
N. T. 9/20/12 at 73, 97.
Alethia was hurt and frightened, because J. M. was
reluctant to go home with her mother, but wanted to
live with her grandmother instead. N. T. 9/20/12 at
99. Despite her mental anguish, however, Alethia did
not doubt her daughter was telling the truth. N. T.
9/20/12 at 99. That night, when they went home,
Alethia slept in her daughter's room until J. M. fell
asleep. N. T. 9/20/12 at 100. Eventually she went
back to her own room, where she stayed awake for
most of the night. N. T. 9/20/12 at 100. At this time,
she did not say anything to Appellant regarding the
information J. M. had revealed; she took him to work
as she usually did. N. T. 9/20/12 at 100; N. T.
9/21/12 at 29. She then called Taylor Brandy
(‘Brandy’), the minister at Kingdom Hall, for advice.
N. T. 9/20/12 at 100; N. T. 9/21/12 at 29. Brandy
advised Alethia to call the police, which she did. N. T.
9/20/12 at 73, 100.
On March 11, 2011, Police Officer Elizabeth Strange
received information of a rape at 2326 West
Thompson Street. N. T. 9/20/12 at 27-28. Alethia
told Officer Strange she should speak to J. M.,
because J. M. had something to tell her. N. T.
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9/20/12 at 29. Shaking and terrified, J. M.
proceeded, over the course of twenty (20) or
twenty-five (25) minutes, to tell Officer Strange
about her stepfather's abuse. N. T. 9/20/12 at 29-
30. She said that at night, Appellant, her stepfather,
would come into her room and tie a scarf around her
eyes, telling her that they were ‘playing dentist’ and
he was going to ‘check her teeth.’ N. T. 9/20/12 at
30-31. However, while J. M. was blindfolded,
Appellant would insert his penis into her mouth. N. T.
9/20/12 at 30-31. She also admitted that Appellant
forced his penis into her rectum and it was painful,
and the abuse was ongoing and had occurred
multiple times. N. T. 9/20/12 at 30, 36, 43.
Alethia learned for the first time of the blindfolding at
Special Victims Unit (‘SVU’). N. T. 9/20/12 at 100-
101. She then recalled a day in the past, when J. M.
was five or six, and she walked into the bathroom to
find Appellant with J. M. N. T. 9/20/12 at 101-102. J.
M. was blindfolded and Appellant was wearing a
towel, and seemed startled Alethia had come home.
N. T. 9/20/12 at 101-102. Although Alethia had a
bad feeling about the incident and left for her
mother's house with J. M., she did not want to
believe her suspicions about her own husband. N. T.
9/20/12 at 102-103. Appellant attempted to explain
that he was taking a look at J. M.'s loose tooth to see
if it needed to be taken out. N. T. 9/20/12 at 103.
Alethia went back to him, hoping her mind was
playing tricks on her. N. T. 9/20/12 at 104.
Based on this interview, Officer Strange called the
SVU and was told to bring J. M. down for an
interview. N. T. 9/20/12 at 31-32. Officer Strange
waited for part of the interview because she
‘believed J. M. was telling the truth and [she] saw
the hurt.’ N. T. 9/20/12 at 32. J. M. looked like she
‘didn't know what to do.’ N. T. 9/20/12 at 32. Alethia
also believed J. M. because J. M. had never been a
troublesome child, and had never lied to Alethia
before. N. T. 9/20/12 at 108.
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Detective Joseph Jenkins interviewed J. M. at SVU.
N. T. 9/20/12 at 74. During the interview, J, M. told
Detective Jenkins about the incidents where
Appellant would ‘check her teeth,’ blindfolding her
and then placing his penis into her mouth. N. T.
9/21/12 at 60. She also reported the incidents of
Appellant forcing his penis into her anus. N. T.
9/21/12 at 60. Subsequent to the interview,
Detective ]enkins prepared an arrest warrant. N. T.
9/21/12 at 55.
After Appellant's arrest, he attempted to contact
Alethia McQueen numerous times, but she did not
answer the phone. N. T. 9/20/12 at 109. Eventually
they communicated by letter, because despite what
had happened, Appellant was still her son's father
and she loved him. N. T. 9/20/12 at 110. Though
they discussed other issues, including religion,
Appellant's previous infidelities, or other issues in
their marriage, Alethia could not bring herself to
discuss what had happened to J. M. N. T. 9/20/12 at
111. Eventually, she stopped sending him letters.
N.T. 9/20/12 at 112. Charlene McQueen, Appellant's
mother, told Alethia two or three times [] that she
and J. M. did not have to show up at court and no
one could make them. N. T. 9/21/12 at 15. Because
the abuse did not occur that day, J. M. was not taken
to the hospital. N. T. 9/20/12 at 32. To collect
biological and DNA evidence, the incident usually had
to have occurred within 72 hours. N. T. 9/21/12 at
58.
On September 15, 2011, a nurse practitioner at St.
Christopher's hospital examined J. M. N. T. 9/20/12
at 76; N. T. 9/21/12 at 84-85. J. M. was negative for
STDs and her examination was ‘overall normal,’ with
no findings of injury or trauma. N. T. 9/21/12 at 87-
88. J. M. did have a creamy white discharge in her
vaginal area, which was slightly excessive for a
typical child going through puberty. N. T. 9/21/12 at
88.
Dr. Maria McColgan testified at trial that it is normal
for child victims of sexual abuse to delay disclosure
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and that they do not tell every detail right away, out
of shame. N. T. 9/21/12 at 89-90. It is rare for a
child to lie about sexual abuse. N. T. 9/21/12 at 90.
Additionally, Dr. McColgan testified that more than
95% of the time she has examined a child victim of
sexual abuse, the examination is ‘normal’ or not
specific. N. T. 9/21/12 at 91. Fewer than 5% of the
times, she has discovered definitive evidence of
penetration. N. T. 9/21/12 at 91. Even after 24
hours, it is rare to recover sperm or DNA from a
child. N. T. 9/21/12 at 100.
Prison tape recordings, involving Appellant, Alethia
McQueen, Charlene McQueen, and Appellant's sister,
were played for the jury on September 21, 2012. N.
T. 9/21/12 at 49-52. The court reporter did not
transcribe the substance of those tapes. N. T.
9/21/12 at 47-52.
Tanzania Cook and Charlene McQueen testified in
Appellant's defense. Appellant took the stand in his
own defense. Tanzania Cook testified she had known
Appellant since childhood and, beginning in October
or November 2010, had a physical relationship with
him continuing until January 2011. N. T. 9/21/12 at
112-113. She never spoke with Alethia McQueen. N.
T. 9/21/12 at 115.
Charlene McQueen (‘McQueen’) testified she is
Appellant's mother and Appellant, Alethia, and J. M.
lived with her for a time. N. T. 9/21/12 at 116-117.
She visited Appellant in prison with Alethia. N. T.
9/21/12 at 118-119. She spoke over the phone with
Appellant in prison and stated she felt he had a split
personality and needed treatment. N. T. 9/21/12 at
123.
Appellant testified in his own defense. He denied his
guilt on all charges and claimed the accusations were
fabricated because Alethia was furious with him for
his infidelities. N. T. 9/21/12 at 128-130, 132, 134,
138, 145.
Trial Court Opinion, pp. 3-8.
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Appellant raises two issues in this appeal:
DID THE TRIAL COURT COMMIT ERROR WHEN IT
PERMITTED THE PROSECUTION TO INTRODUCE
RECORDED PRISON PHONE CALLS OVER THE
OBJECTION OF TRIAL COUNSEL WHEN TRIAL
COUNSEL HAD JUST RECEIVED THE RECORDED
PHONE CALLS THE VERY SAME DAY?
DID THE TRIAL COURT COMMIT AN ABUSE OF
DISCRETION BY IMPOSING UPON THE APPELLANT A
MANIFESTLY EXCESSIVE SENTENCE OF THIRTY TWO
AND ONE-HALF YEARS (32½) TO SIXTY FIVE (65)
YEARS?
Brief For Appellant, p. 7.
In his first argument, Appellant claims that the trial court erred by
refusing to preclude the Commonwealth from introducing tape recordings of
conversations Appellant had in prison with other family members after his
arrest. Appellant claimed that the Commonwealth violated its duty under
Pa.R.Crim.P. 573 to produce these recordings sufficiently in advance of trial
for Appellant’s attorney to listen to the recordings and prepare his defense.
N.T., 9/19/12, pp. 14-15. The delay in producing the recordings, Appellant
says, was prejudicial due to the crucial nature of this evidence. In his
words, the recordings “were material to the verdict because they have the
appellant informing other family members that if J.M. does not appear the
case will likely be dismissed. This is powerful evidence which the jury likely
used to infer guilt.” Brief for Appellant, p. 16.
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Appellant has waived this argument. The recordings are not included
in the certified record, and the court reporter did not transcribe the
recordings during trial. Therefore, we are unable to ascertain the contents
of the recordings or whether they were relevant and/or prejudicial to
Appellant. Appellant has the responsibility to ensure that the record certified
on appeal contains all of the materials necessary for the reviewing court to
perform its duty. Commonwealth v. Griffin, 65 A.3d 932, 936
(Pa.Super.2013). The absence of the recordings and transcripts of the
recordings is fatal to Appellant’s argument. Id.
Even if Appellant preserved this argument for appeal, it is devoid of
substance. Appellate courts generally review discovery rulings for an abuse
of discretion. Commonwealth v. Williams, 732 A.2d 1167, 1175 n. 5
(Pa.1999). “An abuse of discretion is more than just an error in judgment
and, on appeal, the trial court will not be found to have abused its discretion
unless the record discloses that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill-will.”
Commonwealth v. Hess, 745 A.2d 29, 31 (Pa.Super.2000).
Pa.R.Crim.P. 573(B)(1)(b), the rule governing discovery in criminal
cases, requires the Commonwealth to produce “any written confession or
inculpatory statement, or the substance of any oral confession or inculpatory
statement, and the identity of the person to whom the confession or
inculpatory statement was made that is in the possession or control of the
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attorney for the Commonwealth.” Under this rule, the Commonwealth must
turn over all inculpatory evidence “that is relevant and within its
possession.” Commonwealth v. Dent, 837 A.2d 571, 585 (Pa.Super.2003)
(emphasis in original). “Where the evidence is equally accessible or
inaccessible to both the Commonwealth and the defense, the defense cannot
use the discovery rules against the Commonwealth for its failure to produce
the evidence.” Id. (Commonwealth could not be held responsible for failing
to provide retail store's surveillance videotape to defendant, when tape was
not ever in Commonwealth's possession and was overridden shortly after the
shoplifting incident; defendant did not move to produce the videotape or
subpoena the videotape from the store, and videotape was equally
inaccessible to both the Commonwealth and the defense); see also
Commonwealth v. McElroy, 665 A.2d 813, 819-20 (Pa.Super.1995)
(declining to hold prosecution responsible for tape recordings that were not
in possession of prosecution, and suggesting proper procedure for defendant
was service of subpoena duces tecum upon proper custodian of record).
In view of these authorities, the trial court acted within its discretion
by denying Appellant’s motion to preclude use of the tape recordings during
trial. The trial court’s reasoning on this subject is persuasive:
The Assistant District Attorney did introduce tapes
into evidence. However, she stated on the record
that trial counsel had provided the District Attorney's
Office with letters from Appellant's mother citing
telephone conversations she had had with Appellant
in custody. N. T. 9/19/12 at 14. Trial counsel's sole
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argument was that, because the letters had been
provided six months before the date of trial, and the
introduction of the tapes occurred on the day of trial,
it was not fair. N. T. 9/19/12 at 15. This Court
overruled the objection, citing as its reasoning that
the defense had provided the letters which triggered
the additional investigation into the tapes in the first
place. N. T. 9/16/12 at 16. Appellant, though he
could have subpoenaed the Custodian of Records of
the Philadelphia Prison System, did not. The records
were not within the exclusive control of the
prosecution and, as the tapes were inculpatory
rather than exculpatory, the District Attorney's Office
was not required to turn them over.
Trial Court Opinion, p. 15.
In his second argument on appeal, Appellant contends that the trial
court abused its discretion by sentencing him to 32½-65 years’
imprisonment. Appellant waived this argument by failing to raise it in his
Pa.R.A.P. 1925(b) statement of matters complained of on appeal.
Commonwealth v. Lord, 719 A.2d 306, 308-09 (Pa.1998). Because
Appellant omitted this issue from his Pa.R.A.P. 1925(b) statement, the trial
court did not explain the rationale for his sentence in its Pa.R.A.P. 1925(a)
opinion, thus preventing us from reviewing this issue effectively.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/22/2014
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