J-S20007-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

LEE CALVIN KEARNS, III

                            Appellant                 No. 422 WDA 2015


            Appeal from the Judgment of Sentence January 7, 2013
              In the Court of Common Pleas of Cambria County
             Criminal Division at No(s): CP-11-CR-0000530-2011


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.                             FILED APRIL 26, 2016

        Appellant, Lee Calvin Kearns, III, appeals from the judgment of

sentence entered January 7, 2013, in the Court of Common Pleas of Cambria

County, following his convictions of two counts of rape of a child, 18

Pa.C.S.A. 3121(c), (the victim was a five-year-old girl) and other charges

related to the sexual assaults.1 After review, we affirm the convictions, but

reverse the judgment of sentence in part and affirm in part.


____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
  Although Kearns purports to appeal from the order denying his post-
sentence motion, this appeal properly lies from the judgment of sentence as
made final by the denial of post-sentence motions. See Commonwealth v.
Dreves, 839 A.2d 1122, 1125 n.1 (Pa. Super. 2003) (en banc). We have
corrected the appeals statement accordingly.
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      The trial court summarized the facts behind Kearns’s convictions as

follows.
            [A.F.], [the five-year old victim, H.F.’s] father and Kearns’
      stepfather, testified that late in the afternoon of March 9, 2011
      he walked into H.F.’s bedroom and observed Kearns grinding his
      pelvis into H.F.’s pelvis. At the time both Kearns’ and H.F.’s
      pants and underwear w[ere] pushed down around their ankles.
      [A.F.] testified that he pushed Kearns off H.F. and made him
      leave the apartment. [A.F.] testified that he was upset and had
      his wife speak to [the victim] about what had happened.

             Brandi Yeckley (Yeckley) testified that she is a caseworker
      with Cambria County children and Youth Services (CYS) and that
      in the early afternoon of March 10, 2011 she went to the
      [victim’s] residence to speak with H.F. regarding the incident the
      day before. Yeckley testified that CYS had been notified early the
      morning of March 10th about the incident. She testified that she
      spoke with H.F. privately in [her] bedroom. Yeckley explained
      that H.F. was reluctant to speak but used two dolls, one
      representing her and the other Kearns, to show what happened.
      H.F. removed the dolls[’] clothing, laid them down, placing the
      Kearns doll on top of the H.F. doll and rubbed them together.
      H.F. told Yeckley that this is what Kearns would do to her on the
      bed.

             Yeckley testified that H.F. reported this happened on
      multiple occasions and occurred whenever Kearns would help her
      beat a level in a video game. H.F. indicated that Kearns told her
      it was a secret and not to tell anyone. H.F. explained that Kearns
      would rub his penis on her vagina and would then wipe off “goo”,
      referring to semen, from her vagina. Yeckley testified that H.F.
      used the terms wiener for penis and coochie for vagina.

            Julie Wagner (Wagner) testified that she is a detective with
      the Johnstown Police Department with training and experience
      interviewing child victims. Wagner testified that she was asked
      by the Stonycreek Township Police to conduct an interview with
      H.F. as that department had no female officers and they believed
      H.F. would be more comfortable speaking with a woman.
      Wagner testified that the interview took place on March 11,
      2011, two days after the incident witnessed by [A.F.], at the
      Johnstown Public Safety Building. She explained that she spoke
      privately with H.F. and that H.F. told her that on March 9th she

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     was playing the Sonic Rush video game in her room with Kearns.
     That at some point Kearns laid her down on her bed, pulled her
     pants and underwear down, then pulled his pants and underwear
     down, climbed on top of her and put his penis on her.

           H.F. told her that it happened “a lot of times”, that Kearns
     told her it was a secret, that on some occasions Kearns would
     rub his penis against her vagina and on others he would put his
     penis in her vagina and that she did not like how it felt. H.F. told
     Wagner that when they were done Kearns would wipe off the
     “goo” and they would put their pants back on. Wagner testified
     that H.F. denied that there was any oral sex or digital
     penetration but repeated that Kearns would on occasion put his
     penis in her vagina. Finally, H.F. testified that when [A.F.] came
     in and saw them she was upset because Kearns had told it was a
     secret and now her father knew about it.

          H.F. testified that she would play video games in her room
     with Kearns and that when she got stuck on a level and he
     helped her he would take off their pants and underwear and lay
     her on her bed, climb on top of her and rub his penis on her
     vagina. H.F. testified that Kearns would wipe off the semen and
     they would get dressed again. She testified that this happened
     on multiple occasions whenever she got stuck on a level in the
     game and that Kearns told [her] it was a secret and not to tell
     anyone.

           Doctor Lawrence Rosenberg (Rosenberg) testified that he
     is a pediatrician with significant training and experience in
     examining child victims of sexual assault He testified that he
     examined H.F. on March 14, 2011, three days after the incident,
     and that during the examination H.F. told him Kearns put his
     penis in her vagina. Rosenberg testified that his examination
     revealed H.F.’s hymen to be thinner than is normal and showed
     scarring that was abnormal and was several months old.
     Rosenberg testified that neither of these conditions was likely
     the result of an accident. Finally, he testified that to a reasonable
     degree of medical certainty the physical evidence was highly
     suspicious of sexual abuse and that H.F. had been the victim of
     such abuse.

Trial Court Opinion, 4/25/13 at 3-6.




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      Following a bench trial on October 10, 2012, the trial court convicted

Kearns of two counts each of Rape of a Child, Attempted Rape of a Child,

Indecent Assault, and one count of Corruption of Minors. On January 7,

2013, the trial court sentenced Kearns to an aggregate term of 10 to 20

years’ imprisonment, followed by 32 years of probation.

      Kearns filed a timely appeal, which this Court dismissed due to his

counsel’s failure to file a brief. Kearns later filed a pro se PCRA petition. The

PCRA court appointed counsel and subsequently reinstated Kearns’s direct

appeal rights nunc pro tunc. Kearns filed a post-sentence motion, which the

trial court denied. This timely appeal followed.

      Kearns’s first two issues challenge the trial court’s decision to permit

CYS caseworker Brandi Yeckley and detective Julie Wagner to testify at trial

pursuant to the tender years statute, 42 Pa.C.S.A. § 5985.1. “[T]he

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.” Commonwealth v. Fransen, 42 A.3d 1100, 1106 (Pa. Super.

2012), appeal denied, 76 A.3d 538 (Pa. 2013) (citations omitted).

      The tender years exception to the hearsay rule provides that an out of

court statement of a minor victim or witness regarding, among others, a

crime of sexual assault, is admissible if:

      (1) The court finds in an in camera hearing, that the evidence is
      relevant and that the time, content and circumstances of the
      statements provided sufficient indicia of reliability; and (2) the
      child either (i) testifies at the proceeding; or (ii) is unavailable as
      a witness.

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42 Pa.C.S.A. § 5985.1. “The tender years exception allows for the admission

of a child’s out-of-court statement due to the fragile nature of young victims

of sexual abuse.” Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa.

Super. 2002) (citation omitted). The factors to be considered by a trial court

in determining whether the child declarant was likely to be telling the truth

when the statement was made include:

      (1) the spontaneity and consistent repetition of the
      statement(s); (2) the mental state of the declarant; (3) the use
      of terminology unexpected of a child of similar age; and (4) the
      lack of motive to fabricate.

Commonwealth v. Hunzer, 868 A.2d 498, 510 (Pa. Super. 2005) (citation

omitted).

      Here, Kearns argues that the trial court failed to hold an in camera

hearing to determine if the hearsay testimony had sufficient indicia of

reliability. A review of the record indicates that there was no in camera

hearing on the reliability of the hearsay statements. Following Kearns’s

objection to the testimony of Yeckley and Wagner at the bench trial, the

court stated that it would first listen to the witnesses’ testimony and then

make a determination whether the tender years Exception was satisfied. See

N.T., Bench Trial, 10/10/12 at 83-84. Notably, the record indicates that

Kearns did not request an in camera hearing to determine the reliability of

the hearsay testimony.

      The tender years statute requires a party to give notice, including

details of the proffer, of the intention to present hearsay evidence under the

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exception. See 42 Pa.C.S.A. § 5985.1(b). The purpose of the notice

requirement is to “provide the adverse party with a fair opportunity to meet

the statement.” Id. Kearns argues that the statute requires an in camera

hearing before the trial court may admit a hearsay statement pursuant to

the exception. However, we conclude that, so long as the notice provision is

satisfied, it is incumbent upon the adverse party to identify and object to

any issue with the proposed testimony. The trial court is not required to hold

an in camera hearing on any issue under the statute unless the adverse

party raises it. As noted, Kearns did not request a hearing on the reliability

of the out-of-court statements. Thus, the trial court was not required to

have a hearing on the issue.

      We further note that while the trial court did not conduct an in camera

hearing, it ultimately concluded that Yeckley’s and Wagner’s testimony

clearly established sufficient indicia of reliability to permit the introduction of

the hearsay testimony at trial. In the words of the well-reasoned opinion of

the trial court:

      Here, as it was a non-jury trial, the [c]ourt did not conduct an in
      camera hearing but permitted Yeckley and Wagner to testify and
      then determined whether their testimony was admissible under
      the tender years exception. In determining that their testimony
      was admissible the [c]ourt observed: that H.F. was under twelve
      years old; she had testified; she was describing an enumerated
      offense; and that the time, content and circumstances of the
      statements she made to Yeckley and Wagner had sufficient
      indicia of reliability. N.t. 10/10/12 pp. 92-94. With respect to the
      issue of reliability the [c]ourt notes that: the statements were
      made within forty-eight hours of the incident on March 9th; they
      were consistent with each other and with H.F.’s testimony in

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      court; the questions asked by Yeckley and Wagner were open
      ended and not suggestive; they were supported by [Dr.]
      Rosenberg’s testimony; they included descriptions of anatomy
      and sexual acts a five[-]year[-]old would not be expected to
      know, including descriptions of an erect penis and ejaculation;
      and the defense offered no reason to believe that H.F. had
      fabricated the statements.

Trial Court Opinion, 4/25/13 at 7-8. We agree with the trial court’s

assessment and are satisfied that there were sufficient indicia of reliability

with respect to the statements made by H.F. to Yeckley and Wagner to

permit their admission under the tender years exception. Accordingly, we

conclude that the trial court did not abuse its discretion in admitting the

hearsay statements.

      Kearns next argues that the evidence was insufficient to support his

conviction of rape of a child where the Commonwealth failed to establish

penetration occurred on March 9, 2011. See Appellant’s Brief at 13. The

following standard governs our review of a challenge to the sufficiency of the

evidence.

      As a general matter, our standard of review of sufficiency claims
      requires that we evaluate the record in the light most favorable
      to the verdict winner giving the prosecution the benefit of all
      reasonable inferences to be drawn from the evidence. Evidence
      will be deemed sufficient to support the verdict when it
      establishes each material element of the crime charged and the
      commission thereof by the accused, beyond a reasonable doubt.
      Nevertheless, the Commonwealth need not establish guilt to a
      mathematical certainty. [T]he facts and circumstances
      established by the Commonwealth need not be absolutely
      incompatible with the defendant's innocence. Any doubt about
      the defendant’s guilt is to be resolved by the fact finder unless
      the evidence is so weak and inconclusive that, as a matter of



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      law, no probability of fact can be drawn from the combined
      circumstances.

Commonwealth v. Mauz, 122 A.3d 1039, 1040-41 (Pa. Super. 2015)

(citation omitted).   The factfinder, while passing upon the credibility of

witnesses and the weight of the evidence produced, is free to believe all,

part or none of the evidence. See Commonwealth v. Valentine, 101 A.3d

801, 805 (Pa. Super. 2014), appeal denied, 124 A.3d 309 (Pa. 2015).

Furthermore, the Commonwealth may sustain its burden by means of wholly

circumstantial evidence. See Commonwealth v. Diggs, 949 A.2d 873, 877

(Pa. 2008).

      “A person commits the offense of rape of a child, a felony of the first

degree, when the person engages in sexual intercourse with a complainant

who is less than 13 years of age.” 18 Pa.C.S.A. § 3121(c). Sexual

intercourse is defined by statute as follows: “[i]n addition to its ordinary

meaning, [sexual intercourse] includes intercourse per os or per anus, with

some penetration however slight; emission is not required.” 18 Pa.C.S.A. §

3101. This Court has clarified that the term “penetration however slight” is

not limited to penetration of the vagina, as entrance in the labia will suffice.

See Hunzer, 868 A.2d at 505-506.

      Here, Kearns essentially argues that despite H.F.’s statements to

Detective Wagner that Kearns had inserted his penis into her vagina on prior

occasions, the Commonwealth failed to establish that penetration occurred

on March 9, 2011, when H.F.’s father observed Kearns “grinding” on top of

H.F. Based on our review of the evidence, we disagree. [A.F.] testified that

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on March 9, 2011, he walked into H.F.’s bedroom and observed Kearns lying

on top of H.F. on the bed and that both had their genitals exposed. See

N.T., Non-Jury Trial, 10/10/12 at 68. [A.F.] stated that Kearns was “grinding

away” against H.F.’s vaginal area. Id. at 69. Detective Wagner testified that

H.F. told her two days after the incident that Kearns had rubbed his “wiener”

on her “coochie.” Id. at 97-98. Based on the forgoing, the factfinder was

presented with sufficient evidence, when viewed in the light most favorable

to the Commonwealth, to establish that Kearns penetrated, however slightly,

H.F.’s labia with his penis on March 9, 2011. Kearns challenge to the

sufficiency of the evidence therefore fails.

      Kearns next asserts that the trial court illegally imposed separate

sentences for rape of a child and attempted rape of a child, as those crimes

merge. See Appellant’s Brief at 16. “A claim that the trial court imposed an

illegal sentence by failing to merge sentences is a question of law.

Accordingly, our standard of review is plenary.” Commonwealth v.

Snyder, 870 A.2d 336, 349 (Pa. Super. 2005) (citation omitted).

       “Our Courts have long held that where a defendant commits multiple

distinct criminal acts, concepts of merger do not apply.” Commonwealth v.

Robinson, 931 A.2d 15, 24 (Pa. Super. 2007) (en banc). See also 42

Pa.C.S.A. § 9765 (“No crimes shall merge for sentencing purposes unless

the crimes arise from a single criminal act and all of the statutory elements




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of one offense are included in the statutory elements of the other offense.”)

(emphasis added).

      The preliminary consideration under Section 9765 is whether the
      two crimes at issue arose from a single act. This is because [our
      courts] have long held that where a defendant commits multiple
      distinct criminal acts, concepts of merger do not apply.
      Moreover, when determining whether a defendant committed a
      single act, such that multiple criminal convictions should be
      merged for sentencing, the proper focus is not whether there
      was a “break in the chain” of criminal activity, but rather,
      whether the actor commits multiple criminal acts beyond that
      which is necessary to establish the bare elements of the
      additional crime. If so, then the defendant has committed more
      than one criminal act. The rationale is to prevent defendants
      from receiving a “volume discount” on crime.

Commonwealth v. Yeomans, 24 A.3d 1044, 1050 (Pa. Super. 2011)

(internal citations omitted).

      Here, Kearns correctly asserts that an attempt to commit an offense

and the completed offense typically merge for sentencing purposes. The

Commonwealth concedes in its brief that the sentences for attempted rape

and rape of a child should have merged. See Commonwealth’s Brief at 12

(“[T]he Superior Court should strike the costs and fines related to those two

charges.”). We agree.

      At trial, the Commonwealth introduced evidence to establish two

particular criminal acts: 1) the sexual assault that Kearns was observed

committing on March 9, 2011, and 2) the testimony of Dr. Rosenberg, which

established that a two- to three-month-old scar on H.F.’s hymen was

indicative of prior sexual abuse. These acts formed the basis for the two



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counts of rape of a child with which Kearns was charged, and the

Commonwealth offered no distinct acts to support the attempted rape

charges.

     Based on these facts, we are constrained to presume that the charges

of attempted rape and rape of a child arose from the same criminal acts and,

therefore, necessarily merge for sentencing purposes. Accordingly, we

vacate Kearns’s judgment of sentence imposed for his convictions on two

counts of attempted rape, as those should have merged with his convictions

for rape of a child for sentencing purposes. Our reversing of the judgment of

sentence for those two convictions does not upset the sentencing scheme.

The judgment of sentence as corrected in this memorandum is affirmed in all

other respects.

     Kearns’s final claim challenges the discretionary aspects of his

sentence. “It is well settled that [w]hen a challenge to the discretionary

aspect of a sentence is raised, an appellant must provide a separate

statement specifying where the sentence falls in the sentencing guidelines,

what provision of the sentencing code has been violated, what fundamental

norm the sentence violates, and the manner in which it violates the norm.

Pa.R.A.P. 2119(f).” Commonwealth v. Sarapa, 13 A.3d 961, 962 (Pa.

Super. 2011) (internal quotes and citation omitted). Even if properly

preserved in a post-sentence motion, “such a claim is waived if an appellant

does not include a Pa.R.A.P. 2119(f) statement in his brief and the opposing


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party objects to the statement’s absence.” Commonwealth v. Foster, 960

A.2d 160, 163 (Pa. Super. 2008), aff’d, 17 A.3d 332 (Pa. 2011).

         Here, Kearns has failed to provide a Rule 2119(f) statement in his

brief,    and   the   Commonwealth     has    objected   to   this   omission.   See

Commonwealth’s Brief at 12-13. Accordingly, we must find Kearns’s

challenge to the discretionary aspects of his sentence waived.

         Convictions affirmed. Judgment of sentence affirmed in part and

reversed in part. Jurisdiction relinquished.

         Judge Olson joins the memorandum.

         Judge Platt concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/26/2016




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