J-S58022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                           Appellee

                     v.

HOWARD WESLEY WEEDON,

                           Appellant                No. 2032 MDA 2014


        Appeal from the Judgment of Sentence of October 30, 2014
            In the Court of Common Pleas of Franklin County
           Criminal Division at No(s): CP-28-CR-0002284-2013


BEFORE: GANTMAN, P.J., OLSON AND PLATT,* JJ.

MEMORANDUM BY OLSON, J.:                         FILED JANUARY 14, 2016

      Appellant, Howard Wesley Weedon, appeals from the judgment of

sentence entered on October 30, 2014 in the Criminal Division of the Court

of Common Pleas of Franklin County. We affirm.

      The trial court thoroughly summarized the facts and procedural history

in this case as follows:

      On November 3, 2013[, the Commonwealth charged Appellant
      with, inter alia, rape of a child, involuntary deviate sexual
      intercourse with a child, aggravated indecent assault of a child,
      indecent assault of a child, and endangering the welfare of a
      child [18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7),
      and 4304(a)(1)]. A two-day jury trial was held on July 23 and
      July 24, 2014. During the trial[, the testimony established the
      following facts.]

      The above charges arose from incidents spanning from the fall of
      2008 when J.N.[, the child victim in this case,] was eight or nine
      years old to August of 2013. The Commonwealth [based its
      case] primarily on the testimony of J.N. According to J.N.’s
      testimony, during this time period Appellant raped J.N. on

* Retired Senior Judge assigned to the Superior Court
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     several occasions in the trailer that they lived in and in the shed
     located near the trailer. J.N. lived in the trailer on and off until
     August 2013 when her second cousin [H.M.] became her legal
     guardian. Appellant lived in the trailer since J.N. was three.
     Counsel stipulated that Appellant was not available [during the
     following periods] to commit the alleged crimes: June 13, 2009
     to November 6, 2009; September 24, 2010 to May 14, 2012;
     and August 31, 2012 to November 20, 2012.

     J.N. testified that Appellant first raped her sometime in the fall of
     2008. That rape occurred on a school night when her mother
     was working and her sister was in bed. J.N. was watching
     Appellant play videogames at around 12[:00] a.m. Appellant
     persuaded J.N. to drink some alcohol then took her out to the
     shed. Appellant then said he wanted to take pictures of J.N.
     because he knew she wanted to be on [television]. He asked
     her to take off her pants to which she responded “no,” but he
     took them off anyway. Appellant took off J.N.’s underwear.
     Appellant then laid J.N. down on the ground, pulled his pants
     down, got on top of her, and put his penis in her vagina. J.N.
     testified that “[h]e was going back and forth and just trying to
     get it in but it wouldn’t.” Appellant eventually stopped and the
     two went back inside the trailer. Appellant then told J.N. to go
     to bed and told her not to tell anybody.

     J.N. testified that a “couple weeks” later Appellant raped her for
     a second time. Again, it was a weeknight when her mother was
     at work. J.N. was sleeping in her room and Appellant went into
     her room, woke her up, and told her “he wanted to do it again.”
     Appellant took off J.N.’s pants and underwear again. Appellant
     took off his clothes and laid her down on the bed on her back.
     Appellant then spread J.N.’s legs open and put his penis in her
     vagina. His penis went all the way in that time. J.N. testified
     that it hurt very badly. She stated that it lasted about an hour.
     Appellant made J.N. promise not to tell anybody.

     J.N. testified that when she was in seventh grade Appellant
     sexually assaulted her “like every other day except for the
     weekend,” and the assaults “jumble together.” During seventh
     grade J.N. turned 13 years old. Before she turned 13 years old
     Appellant sexually assaulted J.N. in the shed, the bathroom, and
     her mom’s room, occurring most often in the shed and
     bathroom. On these occasions Appellant “would make [her] take
     off [her] clothes and then he would lay [her] on [her] back and

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     just start.” When Appellant assaulted her in her mother’s room
     “[h]e would lay [her] on [her] back and it was kind of on the
     edge of the bed and he would get on top of [her] and move back
     and forth.”    When the assaults happened in the bathroom
     Appellant would sit J.N. down on the toilet, hold her legs apart,
     and start having sex with her. J.N. also testified that Appellant
     had made her put his penis in her mouth prior to her turning 13
     years old. On those occasions Appellant would move his penis
     up and down in her mouth for about two or three minutes and
     then stick it in her vagina. She stated that on one or two
     occasions Appellant put his mouth on her vagina and stuck his
     tongue inside her. Appellant also stuck his fingers inside of her
     “but it wasn’t very often.” J.N. testified that on one occurrence
     in the shed Appellant ejaculated and wiped it on her. She
     described it as white and sticky. Appellant also made her smoke
     marijuana with him a couple times, drink alcohol a few times,
     and watch porn once or twice.

     J.N. testified to the final time that Appellant raped her. It was in
     August of 2013 when she had wanted to go on vacation with
     [H.M.]. J.N.’s mother said she could not go. Appellant told J.N.
     that if she had sex with him he would allow her to go on vacation
     with [H.M.]. J.N. testified that on that day she and Appellant
     were sitting in the living room and Appellant made her smoke
     marijuana. He then took her to the bathroom and had sex with
     her.

     On cross-examination[, counsel for Appellant] questioned J.N.
     about the inconsistencies in her story as it related to her initial
     interviews and her testimony at trial. J.N. replied that her story
     had not changed but rather had cleared up in her head. J.N. told
     Children and Youth [Services (CYS)] that the first rape occurred
     on a couch in the shed. However, she testified at trial that it
     happened on the floor. She also told [CYS] that she only drank
     alcohol one time but testified at trial that it happened a few
     times. J.N. told [CYS] and a doctor and nurse at the hospital
     that she did not experience any pain during the sexual
     encounters but at trial stated that the pain was an 11 on a scale
     from 1 to 10. She told [CYS] that Appellant’s penis never
     touched anywhere but her vagina.          However, in a second
     interview with [CYS] she stated that his penis touched her
     mouth. When asked by [CYS] where the incidents occurred[,]
     J.N. said the shed and bathroom but did not mention her
     mother’s bedroom or her own bedroom. However, in a second

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     interview with [CYS] she said it also occurred in her mother’s
     bedroom. When asked why she sometimes said no to certain
     questions in different situations J.N. testified that she feels
     uncomfortable and “get[s] all jumbled up and stuff and I can’t
     really think right.”

     The Commonwealth also presented two video recordings of
     interviews of J.N. conducted by [Nicholas] Ranney an intake
     caseworker at Franklin County [CYS].     The video interview
     recorded on October 25, 2013 was admitted as Commonwealth’s
     Exhibit 6. The video interview recorded on October 29, 2013
     was admitted as Commonwealth’s Exhibit 7.        Mr. Ranney
     testified briefly as to the interviews.

     [Jennifer] McNew is a forensic nurse consultant at Meritus
     Medical Center. She was qualified as an expert witness and
     testified in the area of pediatric forensic medical examinations
     and child sexual assaults. Ms. McNew conducted a forensic
     interview of J.N. and a medical exam which included a “special
     look” at the genitalia area. Ms. McNew’s findings regarding
     J.N.’s genitalia were that J.N. “had a normal exam.” However,
     she stated that over 90% of exams in cases where children
     allege to have been sexually assaulted come back normal. J.N.’s
     test came back negative for sexually transmitted diseases.

     [Dr. David] Turkewitz, Chairman of Pediatrics at York Hospital
     Wellspan was qualified as an expert witness in the area of
     pediatric forensic medical examinations and child sexual
     assaults. Dr. Turkewitz testified that over 95% of children who
     are sexually abused have normal exams. He stated that the fact
     that J.N. had a normal exam had no bearing on whether she was
     sexually abused despite her claim that she had been raped
     several times. Dr. Turkewitz’s opinion that J.N. was raped was
     based [on] what J.N. told Ms. McNew. Dr. Turkewitz wholly
     disagreed with each point made by defense expert witness Dr.
     [Robert] Stratton.

     Dr. Stratton, an emergency room doctor, was qualified as an
     expert witness in family medicine.      He testified that to a
     reasonable degree of medical certainty he did not believe that
     there was evidence of penile vaginal penetration of J.N. He
     based his opinion on the criminal complaint, the report from Ms.
     McNew, the Gettysburg Hospital lab reports, medical reports of
     Appellant, and literature regarding specific aspects of the case.

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     Dr. Stratton testified that if [J.N.’s] story were true, i.e., she was
     raped numerous times by Appellant, that the medical exam likely
     would have showed some kind of trauma to her vaginal area
     given the size difference between Appellant and J.N. He also
     based his opinion on J.N.’s lack of bleeding and her lack of
     exposure to [sexually transmitted disease]. The fact that these
     factors were not present led him to believe that J.N. was not
     raped by Appellant.

     [H.M.] is J.N.’s second cousin and the current legal guardian of
     J.N. She took custody of J.N. shortly after the final rape took
     place in August 2013. [H.M.] testified about two months after
     J.N. had moved in J.N. told her that Appellant had sex with her
     in the past. The next morning [H.M.] set up an appointment
     with J.N.’s eighth grade guidance counselor.          Later that
     afternoon, [H.M.] set up an appointment for J.N. with Mr.
     Ranney from [CYS]. The only information [H.M.] had about the
     sexual abuse is what J.N. told her. [H.M.] testified that she did
     not tell J.N. what to say to the police.

     [R.H.], the mother of J.N. and long-time girlfriend of Appellant,
     testified for the defense. [R.H.] knew Appellant for 12 years.
     [R.H.] testified that she believed J.N. fabricated the allegations
     against Appellant because [H.M.] put her up to it. [R.H.] was
     shocked by the allegation[s] when she first heard them. She
     testified that she has genital herpes and has had chlamydia and
     believes she got those sexually transmitted diseases from
     Appellant. When asked [on direct examination] whether she
     believed that Appellant committed the sexual assaults [R.H.]
     stated she did not. On cross-examination the Commonwealth
     asked [R.H.] whether she thought Appellant was capable of
     committing a crime like this to which she responded that she did
     not. After consideration by the [trial c]ourt as to whether to
     allow the testimony, the Commonwealth asked [R.H.] about
     whether she informed a Pennsylvania State Police trooper in
     August of 2013 that Appellant had raped her. [R.H.] responded
     that she did. She subsequently testified that the allegation was
     a lie she made up in a panic and lied to police in order to get
     them to come to her residence because she and Appellant were
     arguing.

     On July 24, 2014[,] the jury found Appellant[] guilty of [the
     above-referenced charges.] On October 30, 2014[,] Appellant
     was sentenced to an aggregate sentence of 34 to 68 years of

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      incarceration and determined to be a sexually violent predator.
      On November 26, 2014[,] Appellant filed a [n]otice of [a]ppeal
      followed by a [c]oncise [s]tatement on December 23, 2014.

Trial Court Opinion, 2/27/15, at 1-7.

      On appeal, Appellant raises the following questions for our review:

      Whether the trial court abused its discretion by allowing the
      district attorney—pursuant to Pa.R.E. 404—to elicit character
      and “prior bad act” testimony when cross-examining a defense
      witness, [R.H.], regarding a prior rape allegation she had made
      against Appellant when (a) the district attorney did not provide
      defense counsel with notice of his intent to introduce such
      evidence prior to trial and the district attorney did not show
      “good cause” as to why its failure should be excused; (b) the
      district attorney did not provide an acceptable reason for
      admitting the evidence; (c) the evidence had no probative value
      regarding the charges at issue, but it was highly prejudicial to
      Appellant; and (d) defense counsel did not “open the door” to
      such testimony by his direct examination of the witness?

      Whether the trial court abused its discretion in denying
      Appellant’s motion for a mistrial after the district attorney
      questioned [R.H.] regarding a prior rape allegation she had
      made against Appellant given the obviously prejudicial nature of
      the testimony in a rape trial?

Appellant’s Brief at 13-14.

      We carefully reviewed the submissions of the parties, the certified

record, and the opinion of the trial court.     Based upon our review, we

conclude that the trial court accurately and adequately addresses each of the

contentions Appellant raises on appeal. See Trial Court Opinion, 2/27/15, at

7-17. For this reason, we adopt the trial court’s opinion as our own and hold

that Appellant is not entitled to relief for the reasons set forth therein. See

id. We direct the parties to attach a copy of the trial court’s opinion to all



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subsequent filings concerning our disposition of this appeal; however, the

names of H.M. and R.H. must be redacted.

     Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/14/2016




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