J-S19044-20
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSEPH BLEDSOE, :
:
Appellant : No. 1552 EDA 2019
Appeal from the Judgment of Sentence Entered September 14, 2018
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006872-2015
BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY MUSMANNO, J.: Filed: July 16, 2020
Joseph Bledsoe (“Bledsoe”) appeals, nunc pro tunc, from the judgment
of sentence entered following his conviction of one count each of rape,
involuntary deviate sexual intercourse (“IDSI”), sexual assault, incest,
endangering the welfare of a child, corrupting the morals of a minor, statutory
sexual assault, unlawful contact with a minor, and intimidation in a child abuse
case.1 We affirm.
The trial court described the trial evidence, viewed in a light most
favorable to the Commonwealth, as follows:
Between August of 2013, and February 19, 2015, [Bledsoe]
had a sexual relationship with his biological daughter, K.[(also
referred to as “the victim”)], who[,] at the time[,] was between
the ages of 15 and 16[,] and was living with [Bledsoe]. In August
of 2013, K.[] moved in with [Bledsoe] and her grandmother in
____________________________________________
1 18 Pa.C.S.A. §§ 3121(a), 3123(a)(1), 3124.1, 4302(a), 4304(a)(1),
6301(a)(1)(ii), 3122.1(b), 6318(a)(1), 4958(a)(2)(ii).
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West Philadelphia. Before that, she had lived with her mother,
step-father[,] and other siblings, and [Bledsoe] had been absent
from her life since she was approximately 2 or 3 years old.
[Bledsoe] and K.[]’s first sexual encounter occurred a few
months before she moved in with him. K.[] and her younger
sister, also [Bledsoe’s] daughter, spent the night at [Bledsoe’s]
house. Both girls were watching television on the couch. After
K.[]’s sister fell asleep on the couch, [Bledsoe] brought K.[]
upstairs to his bedroom and performed oral sex on her, made her
perform oral sex on him, and then engaged in vaginal intercourse
with her. After having sex with K.[], [Bledsoe] told her that what
they did was their “secret[,]” and that he would get in trouble if
she told anyone.
Shortly after K.[] moved in with [Bledsoe] in August of
2013, [Bledsoe] and K.[] began regularly engaging in sexual
activity. From that time until the last time they engaged in sexual
activity on February 19, 2015, a time period of nearly a year and
a half, [Bledsoe] and K.[] had sex a few times a week. This
included oral and vaginal sex. During this time, [Bledsoe] would
withhold money, such as money for lunch, or not pay for things
like clothes, shoes, and K.[]’s cell phone[,] unless K.[] continued
having sex with him.
In February of 2015, K.[] told her boyfriend[,] George
Campbell [(“Campbell”),] about her sexual encounters with her
father. Campbell insisted that K.[] should report [Bledsoe’s]
conduct to the police, but she did not want to get the police
involved. On February 22, 2015, Campbell came to [Bledsoe’s]
house to confront [Bledsoe] about what K.[] had told him, but
[Bledsoe] demanded that Campbell leave. However, a few hours
later, Campbell came back to the house to again confront
[Bledsoe], but [Bledsoe] refused to let him inside. K.[] attempted
to go outside to see Campbell, but [Bledsoe] physically restrained
her from doing so. Campbell heard the struggle going on inside
the house and called the police. When the police arrived, they
heard screaming and a commotion coming from inside the house.
Police knocked on the door, identified themselves, and asked the
occupants to open the door. When [Bledsoe] opened the door,
K.[] rushed out of the house crying. [Bledsoe] and Campbell
started yelling at each other, and [Bledsoe] proceeded to run
towards Campbell. Police ordered [Bledsoe] to stop and then
physically restrained him when he failed to do so. After police put
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[Bledsoe] in the back of their vehicle, [Bledsoe] began yelling for
K.[] and saying he wanted to speak to her. Meanwhile, K.[]
informed Officer Geneva Russell that [Bledsoe] had been sexually
abusing her. When this information was relayed to the other
officers on the scene, [Bledsoe] was placed under arrest.
… K.[] was transported to Philadelphia Children Alliance,
where she told staff about her sexual relationship with [Bledsoe].
On February 23, 2018, a sexual assault nurse performed a forensic
examination on K.[] and collected DNA from inside [of] her vagina.
Later, detectives collected DNA swabs from [Bledsoe] and
Campbell. The DNA found inside [of] K.[]’s vagina matched that
of [Bledsoe].
On March 8, 2015, [Bledsoe] called K.[] from prison and
instructed her to tell detectives that she and Campbell had planted
[Bledsoe’s] sperm in her vagina. Again, K.[] did as [Bledsoe]
instructed and testified at [Bledsoe’s] preliminary hearing on June
18, 2015, that she and Campbell had planted [Bledsoe’s] semen
in her vagina.
Trial Court Opinion, 2/15/19, at 3-5 (citations and footnote omitted).
A jury subsequently convicted Bledsoe of the above-described charges.
On September 14, 2018, the trial court sentenced Bledsoe to an aggregate
term of 35-70 years in prison. Bledsoe filed post-sentence Motions on
September 21, 2018. On September 25, 2018, the trial court granted trial
counsel’s request to withdraw from representation, and appointed James
Berardinelli (“Attorney Berardinelli”) to represent Bledsoe for litigation of his
post-sentence Motions and any appeal. However, while the post-sentence
Motions were pending, Bledsoe filed a pro se Notice of Appeal, which was
docketed at 2964 EDA 2018. On December 28, 2018, the trial court denied
Bledsoe’s post-sentence Motions, thereby perfecting Bledsoe’s appeal to the
Superior Court. See Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa.
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2011) (stating that when a premature appeal is filed during the pendency of
post-sentence motions, the trial court retains jurisdiction to decide the
motions; the appeal is perfected upon the filing of an order denying post-
sentence motions).2 Thereafter, Bledsoe filed a court-ordered Pa.R.A.P.
1925(b) Concise Statement of matters complained of on appeal. The trial
court filed an Opinion on February 15, 2019.
On May 16, 2019, this Court dismissed Bledsoe’s appeal filed at docket
number 2964 EDA 2018, because his counsel had failed to file an appellate
brief. That same day, Bledsoe filed a counseled Petition for relief pursuant to
the Post Conviction Relief Act (“PCRA”),3 seeking reinstatement of his direct
appeal rights, nunc pro tunc. The PCRA court granted Bledsoe’s Petition on
May 24, 2019. Thereafter, Bledsoe filed the instant nunc pro tunc appeal,
followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters
complained of on appeal.
Bledsoe presents the following claims for our review:
I. Is [Bledsoe] entitled to an arrest of judgment and/or a new
trial in the above[-]captioned matter on the ground that the
evidence was insufficient to establish the offenses of [r]ape by
____________________________________________
2 Bledsoe filed two additional Notices of Appeal from the same judgment of
sentence. On December 12, 2018, Bledsoe re-filed the Notice of Appeal that
he had filed at 2964 EDA 2018, which this Court docketed at 100 EDA 2019.
On January 22, 2019, Attorney Berardinelli filed a counseled Notice of Appeal,
which this Court docketed at 255 EDA 2019. This Court ultimately dismissed
the appeals filed at 2964 EDA 2018 and 100 EDA 2019 as duplicative of the
appeal filed at 255 EDA 2019.
3 See 42 Pa.C.S.A. §§ 9541-9546.
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[f]orcible [c]ompulsion and [IDSI,] since the Commonwealth’s
evidence failed to establish that the sexual intercourse and deviate
sexual intercourse in question was accomplished through forcible
compulsion?
II. Did the lower court err in precluding evidence of sexual activity
between [K.] and her boyfriend as a potential source of the sperm
discovered by the [K.]’s rape kit?
III. Did the [trial] court err[] in permitting Dr. Ralph Riviello [(“Dr.
Riviello”)] to testify to the contents of the [K.]’s medical records
when he had not been qualified as a records custodian and the
Commonwealth failed to lay the proper foundation for a business
record?
Brief for Appellant at 2-3.
Bledsoe first challenges the sufficiency of the evidence underlying his
convictions of rape by forcible compulsion and IDSI. See id. at 9. Specifically,
Bledsoe claims that the Commonwealth failed to prove the element of forcible
compulsion, which is necessary to establish each offense. See id. According
to Bledsoe, “K.[] did not describe being exposed to any physical coercion
during the course of her sexual relationship with [Bledsoe].” Id. at 10.
Bledsoe disputes the trial court’s statement that he had refused to pay for
clothing or K.’s cell phone unless she had sex with him. Id. Bledsoe asserts
that this is a mischaracterization of K.’s testimony. Id.
Bledsoe argues that, in her testimony, K. indicated that, upon revealing
to Bledsoe that she had a boyfriend, she did not receive “lunch money or stuff
like that or [a] new pair of shoes, or something like that.” Id. Bledsoe states,
“Thus, it is clear that [his] decision to withhold food or clothing from K. was
not contingent upon her engaging in sex, but rather, her involvement with her
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boyfriend, of whom [Bledsoe] did not approve.” Id. at 10-11. According to
Bledsoe, “the only remaining factors cited by the [trial] court to establish
forcible compulsion[] were the age and relationship of the parties.” Id. at 11.
In its Opinion, the trial court set forth the appropriate law, addressed
Bledsoe’s claim, and concluded that it lacks merit. See Trial Court Opinion,
2/15/19, at 6-11. We agree with and affirm on the basis of the trial court’s
Opinion with regard to Bledsoe’s first claim. See id.
In his second claim, Bledsoe argues that the trial court improperly
disallowed evidence related to K. and her boyfriend, “when the intended
purpose was to establish the boyfriend as a potential source of the sperm
discovered by the [K.]’s rape kit.” Brief for Appellant at 11. Bledsoe
acknowledges that evidence related to a victim’s sexual past is inadmissible.
Id. Bledsoe argues, however, that such evidence is admissible to
demonstrate an alternative source of the semen found in the victim. Id.
According to Bledsoe, the trial court disallowed such evidence because (1) a
subsequent analysis determined that the DNA profile of the semen found in
the victim matched his profile, and (2) he had failed to file a written motion
seeking to introduce evidence of K.’s prior sexual activity to establish an
alternative source. Id. at 12. In so holding, Bledsoe argues, the trial court
ignored his counsel’s cross-examination of the DNA expert regarding the
“process by which she arrived at her conclusions[.]” Id. Further, Bledsoe
contends that the trial court ignored the fact that in Commonwealth v.
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Majorana, 470 A.2d 80 (Pa. 1983), the Pennsylvania Supreme Court held
that the exclusion of evidence of the victim’s prior sexual activity, offered to
explain an alternative source of the sperm found on the victim’s body,
constituted error, despite the absence of a written motion. Brief for Appellant
at 12.
The following standard governs our review of the admissibility of
evidence:
Admission of evidence is within the sound discretion of the trial
court and will be reversed only upon a showing that the trial court
clearly abused its discretion. Admissibility depends on relevance
and probative value. Evidence is relevant if it logically tends to
establish a material fact in the case, tends to make a fact at issue
more or less probable or supports a reasonable inference or
presumption regarding a material fact.
Judicial discretion requires action in conformity with law,
upon facts and circumstances judicially before the court, after
hearing and due consideration. An abuse of discretion is not
merely an error of judgment, but if in reaching a conclusion the
law is overridden or misapplied or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record, discretion
is abused.
Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)
(quoting Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super.
2006) (en banc) (internal citations omitted)).
In its Opinion, the trial court addressed this claim and concluded that it
lacks merit. See Trial Court Opinion, 2/15/19, at 11-12. We agree with the
sound reasoning of the trial court, as stated in its Opinion, and affirm on this
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basis with regard to Bledsoe’s second claim. See id. We additionally observe
the following.
Prior to trial, the trial court specifically asked whether the defense would
inquire into the sexual history of the victim. N.T., 7/9/18, at 14. Defense
counsel responded, “No.” Id. Nevertheless, defense counsel presented a
Motion in limine to present evidence, which was revealed in discovery, that
the victim was involved in a non-consensual sexual relationship with another
man at the time of the alleged incident. Id. at 15-16. The trial court inquired
into the relevance of such evidence in the instant case. Id. at 16. Although
Bledsoe alleged the third-party abuse, he did not claim that such evidence
would exculpate him from the instant charges. See id. at 21. Defense counsel
proffered that
It’s not just my client who she supposedly had whatever type of
sexual conduct. There are at least two other males that we would
allege were having some type of sexual relationship…. [I]f there’s
trauma and/or issues that go beyond the rape, if there’s assaults
or other issues, I think that can be brought in, I believe, under
the law. Not the actual incident[,] but physical intimidation [is]
permitted.
Id. at 22. The trial court deferred ruling on the issue until defense counsel
produced law supporting Bledsoe’s position. Id. at 22-23.
At trial, a discussion occurred as to whether defense counsel could
challenge the DNA evidence by proving that the semen found in the victim’s
vagina came from someone other than Bledsoe. Id. at 92. The trial court
ultimately ruled as follows:
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[B]ased on what I’m hearing, you really don’t have any articulable
grounds for challenging the DNA evidence, you don’t have an
expert report that says the analysis is wrong, [or] any kind of a
chain of custody issue that you have evidence that you can
proffer. Something like that I would agree with the
Commonwealth.
On the other hand, I agree with you that[,] to the extent
that they introduced her sexual history with the boy[]friend … to
show how the relationship changed, I think, and why there was
more of a motive for her to disclose these things to her
boy[]friend[,] and how this whole thing surfaced, that you can ask
questions to attack the credibility of those statements[,] because
you can always do that ….
You’re certainly not revealing for the first time that she had
sexual relations with this man during the time period that she was
having sexual relations with your client, according to what they
contend.
I don’t think you can[,] and I won’t allow you to get into
new areas that are unrelated completely to what the
Commonwealth was getting into, like, for instance, an alternative
source of the semen.
Id. at 95-96. Thus, the trial court permitted Bledsoe only to inquire within
the scope of the evidence brought out by the Commonwealth. Id. at 96-97.
We discern no error or abuse of discretion, as there is no indication that the
proposed evidence would not have exculpated Bledsoe.
In his third claim, Bledsoe argues that the trial court improperly
permitted Dr. Riviello to testify regarding the contents of the victim’s medical
records. Brief for Appellant at 12. Bledsoe argues that Dr. Riviello was not
qualified as a “records custodian.” Id. Further, Bledsoe argues that the
Commonwealth failed to lay the proper foundation to allow the medical records
to be admitted as a business record. Id. Bledsoe, citing Pa.R.E. 803(6),
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asserts that “[m]erely characterizing a document as a business record is
insufficient to justify its admission, because a business record, which contains
multiple levels of hearsay, is admissible only if each level falls within a
recognized exception to the hearsay rule.” Id. at 13. According to Bledsoe,
Dr. Riviello testified regarding the collection of the rape kit swabs from the
victim, which were used in the DNA analysis. Id. Bledsoe further directs our
attention to Dr. Riviello’s testimony that the victim had identified Bledsoe as
the perpetrator. Id. at 12-13. However, Dr. Riviello had no direct knowledge
of these events. Id. at 13. Because the Commonwealth failed to properly
establish any of the requirements for admission of Dr. Riviello’s testimony
under Pa.R.E. 803(6), Bledsoe asserts that the trial court improperly admitted
this evidence at trial. Id.
In its Opinion, the trial court determined that Bledsoe waived this claim,
by failing to object to the admission of the contested testimony at trial, or in
a motion in limine. Trial Court Opinion, 2/15/19, at 13. Our review of the
record confirms the trial court’s analysis, and its conclusion is sound. See id.
We therefore affirm on the basis of the trial court’s Opinion with regard to this
claim. See id.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/16/20
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OPINION •
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8232047841
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BRONSON,J. February I 5, 2019
On July 12, 2018, following a jury trial before 1his Court, defendant Joseph Bledsoe was
clnvicted of one count each of rape (18 Pa.C.S. § 3121 (•XI)), involuntary deviate sexual
I
iflcrcoursc r'IDSl")(l 8 Pa.C.S. § 3 I 23(a)( I)), sexual assault ( 18 Pa.C.S. § 3124.1 ), incest (18
Pa.C.S. § 4302(a)), endangering the welfare ofa child (18 Pa.C.S. § 4304(aXI)), corrupting the
�,orals of a minor ("CMOM") (18 Pa.C.S. § 6301 (a)(I Xii)), statutory sexual assauh (18 Pa.C.S.
I
§ 3122.l(b)), unlawful contact with a minor (18 Pa.c.s. § 6318 (•XI)), And inlimidotion in a
l
child abuse case (18 Pa.C.S. § 4958 (a)(2)(ii)). On September 14, 2018, the Court imposed
c!onsecutivc
terms of l O to 20 years of incarcemtiou tor the rape charge, 1 O to '20 years of
incarceration for the IDSI charge, 10 to 20 years of incarceration for the unlawful contact with a
1�1inor charge, and S to 10 years of incarceration for the intimidation ofa witness charge. In
'
a,Odition, the Court imposed concurrent terms of.) to 6 years incarcemticn for the statutory
I
srxual assault charge, 3 Y, to 7 years incarceration for the incest charge, 1 Vi lO 3 years
incarceration for the endangering a welfare of a child charge, and l � to 3 years incarceration for
the CMOM charge, for an aggregate sentence of 35 10 70 years incarceration.'
1 :Due lO n,ergcr, defendant was not seruenced on the sexual as$1ul1 ehurge .
•
Defendant filed post-sentence motions on September 21, 2018. On September 25, 2018,
the Court granted trial counsel Douglas Dolfman's motion to withdraw as counsel. On
September 27, 2018, the Court appointed James Berardinelli to replace Mr. Dolfman and handle
the post-sentence motions and any appeal. On October 3, 2018, while post-sentence motions
were still pending before this Court, defendant filed a premature prose Notice of Appeal to the
Superior Court. On December 28, 2018, the Court denied defendant's post-sentence motions.
'
1.ihe order denying his motions perfected defendant's appeal by operation of law. See
I .
Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa. 2011) (where premature appeal is filed during
Jndency of post-trial motions, the trial court retains jurisdiction to decide the motions, and the
!
abpeal is deemed to be perfected upon the filing of an order denying the motions). That same
day, the Court issued an order directing defendant to file a Concise Statement of Errors
I
Complained of on Appeal pursuant to Rule l 925(b) of the Pennsylvania Rules of Appellate
Procedure. 2
: In his Rule 1925(b) Statement of Errors, defendant claims that: 1) the evidence was
1lgally insufficient to sustain his convictions for rape by forcible compulsion and IDSI by
I
forcible compulsion; 2) the Court "erred in precluding evidence of sexual activity between the
complainant and her boyfriend when the intended purpose was to establish the boyfriend as a
I
potential source of the sperm discovered by the complainant's rape kit"; and 3) the Court "erred
j permitting Dr. Ralph Riviello to testify to the contents of the complainant's medical records
when he had not been qualified as a records custodian and the Commonwealth failed to lay the
proper foundation for a business record[.]" Defendant's Concise Statement of Errors
l
2
Defendant subsequently filed two additional Notices of Appeal to the Superior Court from the same judgment here
at issue. On December 12, 2018, defendant refiled the same Notice of Appeal that he had filed on October 3, 2018
(Superior Ct. Docket No. I 00 EDA 2019). Then, on January 22, 2019, Mr. Berardinelli filed a counseled Notice of
Appeal on behalf of defendant (Superior Ct. Docket No. 255 EDA 2019).
2
Complained of on Appeal ("Statement of Errors") at�� 1-3. For the reasons set forth below,
defendant's claims are either waived or without merit and the judgment of sentence should be
affirmed.
I. FACTUALBACKGROUND
At trial, the Commonwealth presented the testimony of Philadelphia police officers
Geneva Russell, Sean Devlin, and Raymond Smith, Dr. Ralph Riviello, Jannie Rollerson,
Christian Vellani, Lizzette Vega, Michelle Kline, and the complainant, K .• 3 Defendant testified
oh his own behalf. Viewed in the light most favorable to the Commonwealth as the verdict
jinner,
I
the evidence established the following.
!
! Between August of 2013, and February 19, 2015, defendant had a sexual relationship
1
with his biological daughter, Ke, who at the time was between the ages of 15 and 16 and was
K..
I
I
living with defendant. See N.T. 7/10/2018 at 45-46, 53, 56, 113-114. In August of 2013,
I -
moved in with defendant and her grandmother in West Philadelphia. N.T. 7/10/2018 at 44-45.
1
Before that, she had lived with her mother, step-father and other siblings, and defendant had been
absent from her life since she was approximately 2 or 3 years old. N.T. 7/10/2018 at 46-48.
'
Defendant and K.e' s first sexual encounter occurred a few months before she moved in
with him. N.T. 7/10/2018 at 46-47, 53. K .• and her younger sister, also defendant's daughter,
spent the night at defendant's house. N.T. 7/10/2018 at 46-48. Both girls were watching
television on the couch. N.T. 7/10/2018 at 46. After Ke's sister fell asleep on the couch,
defendant brought K.e upstairs to his bedroom and performed oral sex on her, made her perform
I
orkl
1
sex on him, and then engaged in vaginal intercourse with her. N.T. 7/10/2018 at 46-47, 49-
'
3
Since the complainant was a minor at the time of the incident here at issue, she is referred to herein by her initials.
3
50. After having sex with Ke, defendant told her that what they did was their "secret" and that
K.
he would get in trouble if she told anyone. N.T. 7/10/2018 at 47.
Shortly after K.e moved in with defendant in August of 2013, defendant and began
regularly engaging in sexual activity. N.T. 7/10/2018 at 53-55. From that time until the last time
they engaged in sexual activity on February 19, 2015, a time period of nearly a year and a half,
defendant and K.e had sex a few times a week. N.T. 7/10/2018 at 53, 56. This included oral
and vaginal sex. N.T. 7/10/2018 at 54. During this time, defendant would withhold money, such
as money for lunch, or not pay for things like clothes, shoes, and Ke's cell phone unless K .•
continued having sex with him. N.T. 7/10/2018 at 59-60.
K..
i
In February of 2015,
encounters with her father. N.T. 7/10/2018 at 61-62. Campbell insisted that
I
K.
told her boyfriend George Campbell" about her sexual
defendant's conduct to the police, but she did not want to get the police involved. N.T.
should report
7/10/2018 at 62, 67, 70. On February 22, 2015, Campbell came to defendant's house to confront
''
defendant about what K.e had told him, but defendant demanded that Campbell leave. N.T.
7/.10/2018 at 62, 108-109. However, a few hours later, Campbell came back to the house to
I
again confront defendant, but defendant refused to let him inside. N. T. 7I10/2018 at 64-65. K .•
attempted to go outside to see Campbell, but defendant physically restrained her from doing so.
N:T. 7/10/2018 at 65-66. Campbell heard the struggle going on inside the house and called the
I
police. N.T. 7/10/2018 at 65. When police arrived, they heard screaming and a commotion
cdming from inside the house. N.T. 7/10/2018 at 147. Police knocked on the door, identified
I
themselves, and asked the occupants to open the door. Id. When defendant opened the door,
Ke rushed out ofthe house crying. N.T. 7/10/2018 at 147-148. Defendant and Campbell
4
George Campbell is also known as "Luchiano." N.T. 7/10/2018 at 60.
4
started yelling at each other, and defendant proceeded to run towards Campbell. N.T. 7/10/2018
at 148-149. Police ordered defendant to stop and then physically restrained him when he failed
to do so. N.T. 7/10/2018 at 149. After police put defendant in the back of their vehicle,
defendant began yelling for K .• and saying he wanted to speak to her. N.T. 7/10/2018 at 150.
Meanwhile, K.e informed Officer Geneva Russell that defendant had been sexually abusing her.
N. T. 7/10/2018 at 23-24, 67. When this information was relayed to the other officers on the
scene, defendant was placed under arrest. N.T. 7/10/2018 at 150-151.
After K .• disclosed to Officer Russell that defendant had been sexually abusing her,
K .• was transported to Philadelphia's Children Alliance, where she told staff about her sexual
relationship with defendant. N.T. 7/10/2018 at 77-78. On February 23, 2018, a sexual assault
nurse
I
performed a forensic examination on K.. and collected DNA from inside her vagina.
N.T. 7/10/2018 at 78; N.T. 7/11/2018 at 5, 31-32. Later, detectives collected DNA swabs from
defendant
I
and Campbell. N.T. 7/11/2018 at 6, 60, 64. The DNA found inside K .•'s vagina
I
matched that of defendant. N.T. 7/11/2018 at 96.
On March 8, 2015, defendant called K .• from prison and instructed her to tell detectives
that her boyfriend, Campbell, had pressured her to fabricate that defendant was having sex with
her. N.T. 7/10/2018 at 80-83. That same day, K .• went to the Special Victims Unit and did as
'
defendant instructed. N.T. 7/10/2018 at 82-83.
On June 7, 2015, defendant sent a letter from prison to K .• instructing her to lie to
authorities and tell them that she and Campbell had planted defendant's semen in her vagina.
N;T. 7/10/2018 at 85-88. Again, K .• did as defendant instructed and testified at defendant's
preliminary hearing on June 18, 2015, that she and Campbell had planted defendant's semen in
her vagina. N.T. 7/10/2018 at 88�89.
5
II. DISCUSSION
A. Sufficiency of the Evidence
Defendant first claims that "the evidence was insufficient to establish the offenses of
Rape by Forcible Compulsion and Involuntary Deviate Sexual Intercourse by Forcible
Compulsion ... " Statement of Errors at� 1. Specifically, defendant claims that the
Commonwealth failed to establish that the sexual intercourse was accomplished through forcible
compulsion. Id. This claim is without merit.
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In considering a challenge to the sufficiency of the evidence, the Court must decide
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whether the evidence at trial, viewed in the light most favorable to the Commonwealth, together
with all reasonable inferences therefrom, could enable the fact-finder to find every element of the
Jimes charged beyond a reasonable doubt. Commonwealth v. Walsh, 36 A.3d 613, 618 (Pa.
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Super. 2012). In making this assessment, a reviewing court may not weigh the evidence and
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substitute its own judgment for that of the fact-finder, who is free to believe all, part, or none of
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the evidence. Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011). The Commonwealth
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may satisfy its burden of proof entirely by circumstantial evidence. Id. Finally, "[i]f the record
contains support for the verdict, it may not be disturbed." Commonwealth v. Adams, 882 A.2d
496, 499 (Pa. Super. 2005) (quoting Commonwealth v. Burns, 765 A.2d I 144, 1148 (Pa. Super.
2000), app. denied, 782 A.2d 542 (Pa. 2001)).
To sustain a conviction for rape, the Commonwealth must establish that the defendant
"engage[ d] in sexual intercourse with a complainant [inter alia]: ( 1) [b ]y forcible
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compulsion .... " 18 Pa.C.S. § 3121(a)(l). To sustain a conviction for involuntary deviate sexual
intercourse, the Commonwealth must prove that the defendant "engage] d] in deviate sexual
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intercourse with a complainant [inter alia]: (1) by forcible compulsion .... " 18 Pa.C.S. §
3123(a)(l ). Deviate sexual intercourse is defined to include oral intercourse. 18 Pa.C.S. § 310 l.
Here, defendant does not challenge that he had vaginal and oral intercourse with his
biological daughter, but contends that the intercourse was not accomplished through forcible
compulsion. The test for forcible compulsion for rape and IDSI is identical. Commonwealth v.
Smolko, 666 A.2d 672, 675 (Pa. Super. 1995) (citation omitted). The phrase "forcible
compulsion" includes physical force or violence, as well as "moral, psychological or intellectual
force used to compel a person to engage in sexual intercourse against that person's will."
Commonwealth v. Rhodes, 510 A.2d 1217, 1226 (Pa. 1986); see also Commonwealth v. Eckrote,
12 A.3d 383, 387 (Pa. Super. 2010); 18 Pa.C.S. § 3101. "[TJhe mere existence of a parent-child
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relationship, without more," does not constitute forcible compulsion. Commonwealth v. Titus,
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556 A.2d 425, 430 (Pa. Super. 1989). For forcible compulsion, courts consider the totality of the
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circumstances, including the following factors;
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the respective ages of the victim and the accused, the respective mental and
physical conditions of the victim and the accused, the atmosphere and physical
setting in which the incident was alleged to have taken place, the extent to which
the accused may have been in a position of authority, domination or custodial
control over the victim, and whether the victim was under duress. This list of
possible factors is by no means exclusive.
Commonwealth v. Frank, 577 A.2d 609, 618�19 (Pa. Super.), app. denied, 584 A.2d 312 (Pa.
1990) (quoting Rhodes, 510 A.2d at 1226); see Commonwealth v. Dorman, 547 A.2d 757, 762
(Pa. Super. 1988), app. denied, 571 A.2d 380 (Pa. 1989) (finding important factor to be that
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d�fendant,
"who was the victim's uncle, occupied a position of authority and trust such that the
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victim would feel coerced to submit to his demands out of a sense of duty or obedience").
Here, the evidence clearly established that defendant, who was in his late 40s, forced
K .• who was 15 or 16 years old and defendant's biological daughter, to have sex with him by
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preying upon her vulnerability and by exercising his parental authority and control. First,
defendant knew that K .• was in a particularly vulnerable position when she moved in with him,
as he testified that K.e confided in him that her step-father, Timothy Rollerson, had been
sexually abusing her since she was approximately 7 years old. N.T. 7/12/2018 at 17. Defendant
further testified that K .• asked him not to tell anyone about this sexual abuse. Id. He also
stated that he believed K.e. had moved in with him to �t away from her step-father, as she
"practically begged" to live with him to escape her step-father. N.T. 7/12/2018 at 17-18.
Therefore, K.. was essentially trapped at defendant's home, because her only other option was
to live with a man who had been sexually abusing her since she was 7. Moreover, defendant
knew
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he could initiate a sexual relationship with K .• without resistance or fear of being
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discovered because Mr. Rollerson had been sexually abusing K.e, and K .• did not want that
abuse disclosed.
In addition, defendant manipulated and controlled K .• by withholding favorable
treatment from her unless she continued to engage in sexual intercourse with him. K.•. lived
with defendant full time and relied on defendant for food, clothing, and other necessities. N.T.
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7/10/2 0 I 8 at 5 8-60. Defendant often refused to pay for K .• 's clothing and cell phone unless she
had sex with him. See N.T. 7/10/2018 at 59-60.
Defendant also took considerable measures to emotionally control K.B by trying to
isolate her from other family members and other men. K.a testified that defendant would tell
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her that their sexual relationship was their "secret" and that "he made [K.e.] specifically for him
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K.f and her mother, Jannie Rollerson, both
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and he loved [K..]. .. " N.T. 7/10/2018 at 57.
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testified that defendant would frequently call K .• when mother and daughter were together to
see what K.I was doing and to find out when K .• was coming home. N.T. 7/10/2018 at 58-59,
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K.
137-138. In addition, Ms. Rollerson testified that defendant would tell K .• that her mother did
not love her. N.T. 7/10/2018 at 141. also testified that when defendant learned she was
dating George Campbell, defendant said things to her, such as: "He was too old for me, we were
pretty far in age and he didn't really love me, didn't really care about me, didn't have a job. Just
he was not good, I guess." N.T. 7/10/2018 at 64.
Moreover, the evidence established that K .• was coerced to engage in a sexual
K.
relationship with defendant out of a sense of duty or obedience. When asked what she thought
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when her father told her not to tell anyone after the first time they had sex, replied: "I just
may�e
liLened and I didn't tell anybody. I thought to myself that it was wrong, but I guess I was
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just listening to my dad and I didn't tell anybody because he didn't want me to." N. T. 7/10/2018
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52-53. K .• testified that even after she disclosed defendant's sexual abuse to Campbell, she
did not want to get the police involved and have her father get in trouble. N.T. 7/10/2018 at 67,
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70.
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j The extent of defendant's domination and emotional control over K .• was exemplified
b{ events that took place after defendant was arrested. The Commonwealth introduced evidence
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of a phone call to K.. defendant made while in prison and a letter defendant sent to K.e See
N,T. 7/10/2018 at 80-82, 85-88. On March 8, 2015, before DNA testing showed that defendant's
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DNA matched the semen found in Ke's vagina, defendant called K .• from prison and directed
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h�r to tell detectives that her boyfriend, Campbell, pressured her to fabricate that defendant was
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h�ving sex with her. N.T. 7/10/2018 at 80-83; see also N.T. 7/11/2018 at 6-7. K .• testified that
sh�
did as defendant instructed because she "just wanted to get him out of it, like [ defendant]
said, and make everything go back to normal." N.T. 7/10/2018 at 82. On June 7, 2015, after
01;-JA testing showed defendant's DNA was present in
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Ke. 's vagina, defendant sent a letter from
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prison to K.I instructing her to falsely say that she and her boyfriend had planted defendant's
semen in her vagina. N.T. 7/10/2018 at 85-88. The contents of the letter are as follows:
Hey [K.e], did you get the first letter I sent you? I was waiting for you to write
back. I received your letter last month. Sorry that things are not going well for
you, but I'm glad you wrote me because there is so much I need to say to you.
Please, [K.eJ, help me get out of this. 0.k. They say that they have DNA from
the swab they took from you that night. They say my sperm was on it. You have
to say that with George's help you put it there. O.k. That should help a lot.
I'm getting a lawyer to help me and as long as you say nothing happen and that
y'all planted the sperm, I should be o.k.
I can't call you because they are recording my phone calls with you. O.k.
So don't think I'm not calling because I want to but I can't.
We have a Court date coming up June 1gth. I hope you can be ready to stand up
and tell them everything.
Talk to my sister Joyce. Let her know that you need help to undo what you do.
Maybe the lawyer can help you talk to my family, my mother, Aunt Joyce. Y'all
work together to get me out this. O.k.
Please, [K .•. ], if we would can just get over this everything will be alright. I
promise.
You have to tell them you planted the DNA from a used condom that I had
because I had girls over there all the time. Make up a good story and stick to it.
O.k.
I need your help with this [K .•]. You said you would do anything to help. This
is it and no you can't say it was consensual. That would still hurt me so don't say
that.
Say that you with the help of George fabricated this whole story along with
planting the DNA so that y'all could be together because I wouldn't allow it. O.k.
Please write back. I'm not so alone here. I could use somebody to talk to.
Do you know what you have to do because I'm counting on you to be strong and
not care what people think. Let's just get throug[h] this.
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Did you get the first letter I sent you or someone is taking your mail at your mom
house? Let me know so I won't send anymore letters there. I'll send them to my
mom's house. O.k.
Write back or let my mom know that you know what you have to do in Court o.k,
so that I can rest assured and not worry.
I hope you got my back. Just tell me you do and I can trust you. That would help
a lot, [K.B.]. Take it easy out there and love yourself. O.k. And hurry up and get
me home so I can look out for you. O.k. Write back ASAP. Need to know
what's up.
Love, dad.
N.T. 7/10/2018 at 85·88. K .• testified that after reading the letter she was afraid of what would
happen to defendant and that she just "wanted everything to go away." N.T. 7/10/2018 at 88.
Therefore, K .• did as defendant told her and told the fabricated story at defendant's preliminary
hearing. N.T. 7/10/2018 at 89.
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Accordingly, the record contained clearly sufficient evidence, beyond the mere existence
ofI defendant and Ke's relationship as father and daughter, to allow a reasonable fact-finder to
conclude, beyond a reasonable doubt, that defendant was guilty of rape by forcible compulsion
and IDSI by forcible compulsion.
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B. Excluding Evidence of Sexual Activity between Complainant and Her Boyfriend
Defendant next claims that the Court "erred in precluding evidence of sexual activity
between the complainant and her boyfriend when the intended purpose was to establish the
boyfriend as a potential source of the sperm discovered by the complainant's rape kit].]"
Statement of Errors at 1 2.
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Under Pennsylvania's Rape Shield Law, evidence of a victim's past sexual conduct is
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generally not admissible. 18 Pa.C.S. § 3104(a). Evidence of a victim's sexual interaction with a
third party offered as an explanation of the source of semen in the victim's body may be
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admissible at trial. See, e.g., Commonwealth v. Majorana, 470 A.2d 80, 84-85 (Pa. 1983).
However, "a defendant who desires to introduce evidence of the victim's prior sexual conduct
must file a written motion and make a specific offer of proof prior to trial." Commonwealth v.
Burns, 988 A.2d 684, 690 (Pa. Super. 2009), app. denied, 8 A.3d 341 (Pa. 2010) (citations
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omitted); see also 18 Pa.C.S. § 3104(b). A trial court's ruling on the admissibility of such
evidence will be reversed only where there has been a clear abuse of discretion. Commonwealth
v. KS.F., 102 A.3d 480, 483 (Pa. Super. 2014) (citation omitted).
Here, the evidence was properly excludable since defendant never filed the requisite
pretrial motion seeking to introduce the evidence. Burns, 988 A.2d at 690; 18 Pa.C.S. § 3104(b).
K.
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In any event, defendant's claim is frivolous, since he did explore K.e 's sexual relationship with
hL boyfriend, Campbell. Defense counsel's cross-examination of included the following:
[Defense counsel]: You said you had a sexual relationship with [Campbell], correct?
[K .• ]: Yes.
[Defense counsel]: You were having a sexual relationship, according to you, with
[Campbell] and your dad at the same time?
[K.• ]: Yes.
[Defense counsel]: Was it for those five months, according to you?
[K.• ]: Yes.
[Defense counsel]: From November of 2014 through February of 2015 when
everything ended?
Yes.
N.T. 7/10/2018 at 104-105.
Moreover, the DNA analysis positively identified defendant as the source of the semen in
K;e's vagina, and positively excluded Campbell as the source of the semen. N.T. 7/11/2018 at
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96. Defendant did not hire an expert to challenge this finding, and counsel's cross-examination
of the DNA expert failed to cast any doubt on the expert's conclusions. See N.T. 7/10/2018 at
99-105. Accordingly, any effort to demonstrate, through further cross-examination ofK.•
about her sex life with her boyfriend, would not have exculpated defendant. No relief is due.
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C. Admission of Complainant's Medical Records
Defendant's final claim is that the Court "erred in permitting Dr. Ralph Riviello to testify
to the contents of the complainant's medical records when he had not been qualified as a records
c�stodian and the Commonwealth failed to lay the proper foundation for a business record[.]"
Statement of Errors at 13.
"A party may claim error in a ruling to admit ... evidence only ... [if that] party, on the
record ... makes a timely objection, motion to strike, or motion in limine" Pa.R.E. 103(a).
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Here, defendant never objected in the trial court at any time to any portion of the testimony of
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Dr. Riviello on any grounds. See N.T. 7/11/2018 at 7-54 (testimony of Dr. Riviello). Because
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defendant never made a timely objection to the challenged testimony, and raises his claim for the
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first time on appeal, it is waived. Pa.RE. 103(a); Pa.R.A.P. 302(a) ("Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal."); Commonwealth v.
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Stevenson,
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894 A.2d 759, 766 (Pa. Super. 2006), app. denied, 917 A.2d 846 (Pa. 2007) (same).
III. CONCLUSION
For all of the foregoing reasons, the Court's judgment of sentence should be affirmed.
BY THE COURT:
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GLENN B. BRONSON, J.
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