J-S40045-15


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,             :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                 Appellee                 :
                                          :
                    v.                    :
                                          :
FRED MITCHELL,                            :
                                          :
                 Appellant                :     No. 438 WDA 2015

       Appeal from the Judgment of Sentence Entered March 5, 2015
             in the Court of Common Pleas of Fayette County,
           Criminal Division, at No(s): CP-26-CR-0001539-2013

BEFORE:     FORD ELLIOTT, P.J.E., DONOHUE, and STRASSBURGER,* JJ.

MEMORANDUM BY STRASSBURGER, J.:          FILED AUGUST 31, 2015

      Fred Mitchell (Appellant) appeals from the aggregate judgment of

sentence of 39 to 78 years’ imprisonment entered following his convictions

for, inter alia, rape by forcible compulsion, rape of a child, involuntary

deviate sexual intercourse (IDSI) by forcible compulsion, and IDSI with a

complainant under 16 years of age. We affirm.

      A prior panel of this Court summarized the history of this case as

follows.

      On February 24, 2012, M.N, then four years old, went to the
      doctor for a routine checkup. While in the doctor’s office, she
      informed Joyce Ames, her paternal grandmother, that her
      “cookie” hurt. She indicated that she was referring to her genital
      area. She also referred to her anus as “celery.” She continued
      to expound that Appellant put his “peanut” in her “cookie,” and
      she explained that “Fred” told her about those terms. The
      doctor instructed Ames to take M.N. to Children’s Hospital for an
      evaluation.


*Retired Senior Judge assigned to the Superior Court.
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           On March 13, 2012, M.N. was interviewed at A Child’s
     Place at Mercy by Sara Gluzman, a forensic interviewer trained in
     evaluating and interviewing children who are suspected victims
     of abuse. During the course of the interview, Gluzman asked
     M.N. if there are places people are not supposed to touch.3
     M.N., in response, drew a picture and told Gluzman it was a
     “boob” and people are not supposed to touch it. Gluzman
     showed M.N. an anatomical depiction of the human body, which
     she uses with all children she interviews, and asked M.N. what
     she called different areas of the body. M.N. used the term
     “coochie.” When Gluzman asked what she uses “coochie” for,
     M.N. explained her mother called it “peachie” and that it is used
     “to pee.” M.N. told Gluzman that Appellant put his “part” in her
     “peachie” and “butt.” M.N. also said it happened “[m]ore than
     one time.” Following the interview, Dr. Mary Carrasco, the
     director of A Child’s Place at Mercy, performed an examination of
     M.N., which did not reveal physical evidence of abuse.4
          _______
          3
            The interview was recorded and played during the trial.
          The exchange between M.N. and Gluzman during the
          interview is included in the transcript of the trial.
          4
            Dr. Carrasco testified at trial as an expert in pediatric
          child abuse. She testified that the lack of physical findings
          “does not mean nothing occurred. … [M]ost of the time,
          that is 94% of the time, there will be no physical evidence
          of sexual abuse.”

     … A three-day jury trial commenced on January 8, 2014. M.N.,
     Ames, M.N.’s mother, Gluzman, and Dr. Carrasco testified on
     behalf of the Commonwealth. After the Commonwealth rested,
     two defense witnesses testified. On January 10, 2014, the jury
     found Appellant guilty of all charged offenses.

           Following the guilty verdicts, the Commonwealth filed its
     notice of intention to seek mandatory sentences pursuant to 42
     Pa.C.S.A. § 9718(a).5 The trial court conducted a sentencing
     hearing on April 3, 2014 and imposed the mandatory minimum
     sentences sought by the Commonwealth [for an aggregate
     sentence of 40 to 80 years of imprisonment].




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             _______
             5
               Section 9718 provides for mandatory minimum sentences
             of, inter alia, not less than ten years’ imprisonment for
             rape of a child and not less than ten years’ imprisonment
             for any conviction under [18 Pa.C.S.] § 3123 (relating to
             IDSI),when the victim is less than sixteen years of age. 42
             Pa.C.S.A. § 9718(a).

Commonwealth           v.   Mitchell,   No.   578   WDA   2014,   unpublished

memorandum at 2-4 (Pa. Super. January 22, 2015) (citations and some

footnotes omitted).

      On appeal to this Court, Appellant raised five issues, including the

following:

      I.    Whether the evidence was legally and factually insufficient
      to show that [Appellant] committed the crimes of Rape, Forcible
      Compulsion, Rape of a Child, IDSI Forcible Compulsion, IDSI
      Person Less than 16 years of Age, beyond a reasonable doubt[?]

      II.  Whether the trial judge committed reversible error in
      permitting [M.N.] to testify on the lap of her grandmother, Joyce
      Ames, despite a sequestration of witnesses and over defense
      counsel’s objection[?]

Id. at 5 (quoting Appellant’s Brief).

      This Court held that Appellant waived his challenge to the sufficiency

of the evidence by failing to specify in his concise statement of errors

complained of on appeal which elements of the crimes lacked proof beyond a

reasonable doubt.      Id. at 8. The panel nonetheless proceeded to address

the merits of the claim:

      We observe that had Appellant properly preserved this issue, he
      would not be entitled to relief.   In support of this claim,



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      Appellant asks this court to reweigh the evidence presented at
      trial. Specifically, Appellant recounts, “[t]he defense presented
      two witnesses, both of [whom] testified that this could have
      been a scheme devised by [M.N.’s mother]….” The jury in this
      case was free to credit M.N.’s testimony and disregard the
      speculative testimony proffered by the defense.              See
      [Commonwealth v. Kearney, 92 A.3d 51, 64 (Pa. Super.
      2014)].       Moreover, “it is well-established that          the
      uncorroborated testimony of the complaining witness is sufficient
      to convict a defendant of sexual offenses.” Commonwealth v.
      Castelhun, 889 A.2d 1228, 1232 (Pa. Super. 2005) (citations
      and quotation marks omitted). Therefore, viewing the evidence
      in the light most favorable to the Commonwealth, sufficient
      evidence was presented to find Appellant guilty of the charged
      offenses beyond a reasonable doubt. See [Commonwealth v.
      Patterson, 91 A.3d 55, 66 (Pa. 2014)].

Id. at 9 n.9. The panel also concluded that “the trial court did not abuse its

discretion by making an exception to the general sequestration order, and

Appellant has failed to demonstrate that he was prejudiced by the

exception.” Id. at 13.

      Although it found that all of Appellant’s stated issues were either

meritless or both waived and meritless, this Court concluded that Appellant’s

sentence was illegal under Alleyne v. United States, ––– U.S. –––, 133

S.Ct. 2151, 186 L.Ed.2d 314 (2013), and its progeny.        Accordingly, this

Court affirmed Appellant’s convictions, but vacated his judgment of sentence

and remanded for resentencing without consideration of section 9718.

Mitchell, unpublished memorandum at 26-27.

      On March 6, 2015, Appellant was resentenced without consideration of

any mandatory minimum sentencing statute to an aggregate term of 39 to



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J-S40045-15


78 years’ imprisonment. Appellant’s post-sentence motion for modification

of sentence was denied on March 11, 2015. Appellant timely filed a notice of

appeal.

      On appeal, Appellant presents two issues,1 both of which were raised

in his first direct appeal:

      I.    Whether the evidence was legally and factually insufficient
      to show that [Appellant] committed the crimes of Rape [by]
      Forcible Compulsion, Rape of a Child, IDSI Forcible Compulsion,
      IDSI Person Less than 16 years of Age, beyond a reasonable
      doubt?

      II.  Whether the trial judge committed reversible error in
      permitting [M.N.] to testify on the lap of her grandmother, Joyce
      Ames, despite a sequestration of witnesses and over defense
      counsel’s objection?

Appellant’s Brief at 7 (unnecessary capitalization omitted).

      As the trial court aptly stated, Trial Court Opinion, 4/8/2015, at 4, the

law of the case doctrine applies to Appellant’s claims. “The law of the case



1
   Appellant lists only two issues in his statement of questions involved.
Appellant’s Brief at 7. However, four additional issues are raised in the
argument portion of his brief. Those questions are not properly before us.
See Pa.R.A.P. 2116(a) (“No question will be considered unless it is stated in
the statement of questions involved or is fairly suggested thereby.”). We
note that three of the four additional issues were rejected by this Court in
Appellant’s first direct appeal, and would thus be subject to the same
analysis we provide for the claims we do address. The fourth additional
issue is a challenge to the discretionary aspects of his sentence, which we
would reject based upon Appellant’s failure to include in his brief a concise
statement of reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f). Commonwealth v. Coulverson, 34 A.3d 135, 142 (Pa.
Super. 2011) (“If the Rule 2119(f) statement is absent…, this Court may
refuse to accept the appeal.”).


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doctrine refers to a family of rules which embody the concept that a court

involved in the later phases of a litigated matter should not reopen questions

decided by another judge of that same court or by a higher court in the

earlier phases of the matter.” Commonwealth v. Fears, 86 A.3d 795, 815

(Pa. 2014) (internal quotation marks omitted). “[W]hen an appellate court

has considered and decided a question submitted to it upon appeal, it will

not, upon a subsequent appeal on another phase of the case, reverse its

previous ruling even though convinced it was erroneous.”2 Commonwealth

v. McCandless, 880 A.2d 1262, 1268 (Pa. Super. 2005). Exceptions may

be made “under exceptional circumstances, including: an intervening change

in the law, a substantial change in the facts, or if the prior ruling was clearly

erroneous and would create a manifest injustice if followed.” Id. (internal

quotation marks omitted).

      Appellant presents us with no argument that the law or facts have

changed since this Court’s prior determination.      Nor does he contend that

the prior rulings were clearly erroneous and create a manifest injustice.



2
  All of the issues were “decided” in Appellant’s prior appeal for purposes of
the doctrine of law of the case, as the court performed an even-if analysis
for the claims it determined were waived. See Commonwealth v. Reed,
971 A.2d 1216, 1220 (Pa. 2009) (“In the instant case, while the Superior
Court in Reed I determined that Reed’s claims were waived, it also
determined that even if the claims had not been waived, they were without
merit, and the court explained the basis for its conclusions. Thus, the
Superior Court’s holding in Reed I that Reed’s claim … was meritless was a
valid holding that constitutes the law of the case….”).


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Rather, Appellant merely reproduces verbatim the arguments presented in

his prior appellate brief.   This Court will not consider those arguments a

second time. See, e.g., Commonwealth v. Kratzer, 660 A.2d 102, 105

(Pa. Super. 1995) (“Kratzer argues that the trial court erred in denying the

withdrawal of his guilty plea because it was involuntary and unknowing as a

result of guilty plea counsel’s ineffectiveness and coercion.     This identical

issue was raised before and decided by a panel of this Court in [Kratzer’s

prior appeal]. … Therefore, we need not consider this issue.”).

      Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.

Prothonotary



Date: 8/31/2015




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