J-S10039-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                    IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

DEBORAH ANNE KEELEY,

                            Appellant                No. 2016 EDA 2015


             Appeal from the Judgment of Sentence March 17, 2015
                in the Court of Common Pleas of Chester County
               Criminal Division at No.: CP-15-CR-0002679-2013


BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY PLATT, J.:                         FILED FEBRUARY 05, 2016

        Appellant, Deborah Anne Keeley, appeals from the judgment of

sentence of March 17, 2015, entered following her open guilty plea to three

counts of involuntary deviate sexual intercourse with a child, one count of

aggravated indecent assault of a child, four counts of indecent assault of a

child, three counts of corruption of minors, one count of endangering the

welfare of a child, and twelve counts of criminal conspiracy.1    Specifically,




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*
    Retired Senior Judge assigned to the Superior Court.
1
  18 Pa.C.S.A. §§ 3123(a), 3125(a)(7),            3126(a)(7),   6301(a)(1)(i),
4304(a)(1), and 903, respectively.
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Appellant challenges the denial of her pre-trial motion for a change of venue.

For the reasons discussed below, we affirm.2

       We take the underlying facts and procedural history in this matter

from the trial court’s July 28, 2015 opinion and our independent review of

the certified record.

       [In] December 2012, [twenty-three]-year-old victim [one]
       [(victim one)], born on 11/29/89, reported to Trooper Heather
       Heffner, of the Pennsylvania State Police Reading Barracks that
       when she was approximately [five] or [six] years old, through
       the age of [twenty-two], she was sexually and physically abused
       by [co-defendant] biological father [(Father)].    [Victim one]
       reported that the physical and sexual abuse occurred when they
       resided at different homes in Chester, Montgomery, and Berks
       counties from 1996-2012.

             The sexual and physical abuse that occurred from 1996-
       2001, when they lived at 920 Levengood Road in Montgomery
       County, at times, also involved [Appellant] when [victim one]
       was between the ages of [six-eleven]. [Appellant] was the
       former girlfriend of [Father], and she lived with him and his two
       daughters, [victim one] and [victim two], from 1996-2001.
       [Appellant] along with [Father] also had two biological children
       during that timeframe. [Appellant and Father] were over the
       age of [eighteen], responsible for the welfare, protection and
       care of the minor children at their home.

             While [victim one] lived with [Appellant] at the Levengood
       Road residence, [Father] would force [victim one] to touch his
       penis with her hands and mouth on a regular basis, as well as
       touch her genitals with his hands and mouth. These sexual
       assaults would mostly occur in the master bedroom, but also, at
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2
  This Court may affirm for any reason, including reasons that are different
from those of the trial court. See Commonwealth v. Hernandez, 886
A.2d 231, 240 (Pa. Super. 2005), appeal denied, 889 A.2d 1122 (Pa. 2006).




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     times, in [victim one’s] bedroom. The sexual assaults occurred
     both before and after school, and sometimes at night. [Father]
     also forced [victim one] and her sister, [victim two], who was
     one year younger than [victim one], to perform oral sex on each
     other in their basement while he watched. The victims were
     approximately [six] and [seven] years old when that conduct
     occurred.

           [Father] would routinely punish both [victim one and
     victim two] by smashing their heads together, slapping them in
     their faces, and whipping them with a belt. [Appellant] would
     also routinely beat the victims by slapping them and pulling their
     hair. [Appellant] fought frequently with [victim two], and on
     numerous occasions placed a pillow over [victim two’s] face
     when she couldn’t stop coughing, causing her to lose [breath]
     and urinate in her clothing. On multiple occasions, [Appellant]
     forced [victim two] to sleep in urine-soaked clothing. If the
     victims sustained visible bruising as a result of their assaults,
     [Appellant] would keep them home from school so that no one
     would observe their injuries. Both [victims] were terrified of
     [Appellant and Father].

           [Father and Appellant] deprived the victims of food on a
     regular basis. There was a lock on their refrigerator at times,
     and when the victims were hungry, they, sometimes, ate out of
     the garbage or dog food.

           One of [victim one’s] first memories of the sexual abuse
     involved [Father and Appellant], when she was about [six] years
     old, at the Levengood residence. Both [Father and Appellant]
     escorted [victim one] back to the master bedroom after they
     asked her if she wanted to “mess around.” [Victim one] did not
     know what that meant, but when they went into the bedroom
     [Father and Appellant] took off all their clothes and laid down on
     the bed. [Father] forced [victim one] to touch his penis with her
     hand and instructed her how to stroke him until he ejaculated.
     [Father] also told [victim one] to “grab and lick” [Appellant’s]
     breasts, which she did. [Father] then took [victim one’s] hand
     and put it on [Appellant’s] vagina and moved her hand to show
     her how to rub [Appellant’s] clitoris. [Father] then told [victim
     one] “to lick her pu**y” and [she] was forced to perform oral
     sex on [Appellant] after [Father] showed her how to do it, and . .
     . [Father] was naked on the bed next to them, and [victim one]


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     knelt between [Appellant’s] legs, and performed oral sex until
     she climaxed. [Appellant] did not object or refuse in any way.

           Approximately a week later [Father] requested that [victim
     one] go back to the master bedroom because [Appellant] had
     asked for her. While in their bedroom [victim one] rubbed
     [Appellant’s] clitoris like [Father] had shown her before. [Victim
     one] rubbed [Appellant’s] clitoris at least five times while they
     lived together at their Levengood Road residence. [Appellant]
     also rubbed [victim one’s] clitoris on at least one occasion while
     in the master bedroom and at [Father’s] request. All these
     sexual assaults occurred when [victim one] was under the age of
     [twelve].

           As [victim one] got older, her breasts began to grow
     around age [eleven]. [Appellant] began to touch [victim one’s]
     breasts while they were in the master bedroom as [Father]
     watched. On at least two occasions in the master bedroom,
     [Appellant] performed oral sex on [victim one] while [Father]
     watched. [Victim one] was instructed by [Father] to go to the
     master bedroom and watch [Father and Appellant] have sexual
     intercourse.   [Father] told [victim one] to touch and lick
     [Appellant’s] breasts while they continued to have intercourse,
     and [victim one] did.

            [Appellant] engaged in whatever sexual activity [Father]
     asked her to do in front of [victim one], and never refused in
     [victim one’s] presence. The sexual abuse by [Father] escalated
     to vaginal and anal rapes throughout the time she lived with
     him, and later [victim one] was also sexually assaulted by
     [Father’s] current wife, co-defendant [stepmother], when she
     was between the ages of [twelve and] her early [twenties]. All
     of these sexual assaults, and others, were reported to police only
     after [victim one] left [Father’s] residence in Berks County, at
     age [twenty-two], and felt safe in a women’s shelter.

           Trooper Heather Heffner from the Pennsylvania State
     Police Reading Barracks, the assigned investigator in this case,
     took a statement from [Appellant] on March 5, 2013, wherein
     [Appellant] admitted that [victim one] would grab her breasts
     while they were in the bedroom and at other locations in the
     house from 1996-2001. [Appellant] stated that one time [victim
     one’s] hand was on the top of [Appellant’s] bare vagina.
     [Appellant] also reported that she had observed [Father]

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      engaged in sexual abuse with [victim one] anywhere from [ten-
      fifteen] times. [Appellant] further reported that, at times, she
      saw [Father] stroking [victim one’s] vagina, and at other times
      she witnessed [victim one] stroke [Father’s] penis while they
      lived at the Levengood Road residence. [Appellant] also stated
      that she saw [victim one] performing oral sex on [Father] on one
      occasion. [Appellant] never reported the abuse to Children,
      Youth and Family services.

(Trial Court Opinion, 7/28/15, at 3-5).

      On August 29, 2013, the Commonwealth filed a criminal information

charging Appellant with the aforementioned offenses. On October 25, 2013,

Appellant filed an omnibus pre-trial motion, seeking, in part, a change of

venue and severance of her case from that of co-defendants Father and

Stepmother.     The trial court denied the motion on March 19, 2014.

Appellant filed a motion for reconsideration on December 8, 2014.           On

December 10, 2014, Appellant withdrew her motion for reconsideration and

entered an open guilty plea to the aforementioned offenses. On March 17,

2015, the trial court, after a review of the pre-sentence investigation report,

sentenced Appellant to an aggregate term of incarceration of not less than

twenty-two nor more than forty-four years.

      On March 26, 2015, Appellant filed a post-sentence motion challenging

portions of her sentence and certain of the terms of probation. Appellant did

not seek to withdraw her guilty plea. The trial court denied the motion on

June 26, 2015. Appellant filed the instant, timely appeal. On July 7, 2015,

the trial court ordered Appellant to file a concise statement of errors

complained of on appeal.      See Pa.R.A.P. 1925(b).      On July 20, 2015,

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Appellant filed a timely Rule 1925(b) statement challenging the denial of her

motion for a change of venue; Appellant did not seek to withdraw her guilty

plea.    On July 28, 2015, the trial court filed an opinion.     See Pa.R.A.P.

1925(a).

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

        (1). [Did the trial court erroneously deny] Appellant’s post-
        trial[3] motion for transfer of the proceedings to the proper
        venue per Pa.R.Crim.P.Rule130(A)[?]

(Appellant’s Brief, at 4) (underline and unnecessary capitalization omitted).

        “The standard of review for a denial of a motion for change of venue is

whether there has been an abuse of discretion on the part of the trial judge.”

Commonwealth v. Devries, 112 A.3d 663, 666 (Pa. Super. 2015) (citation

omitted).    However, prior to reviewing the merits of Appellant’s claim, we

must address whether it is properly before us.         In the instant matter,

Appellant entered an open guilty plea. It is settled that “by entering a guilty

plea, the defendant waives [her] right to challenge on direct appeal all

nonjurisdictional defects except the legality of the sentence and the validity

of the plea.”    Commonwealth v. Lincoln, 72 A.3d 606, 609 (Pa. Super.

2013), appeal denied, 87 A.3d 319 (Pa. 2013) (citation omitted).             In
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3
  The record does not show any post-trial motion for change of venue. At
most, the record reflects that, at sentencing, defense counsel stated that he
wished to note a continuing objection to the denial of the pre-trial motion
for change of venue. (See N.T. Sentencing, 3/17/15, at 69). Thus, we
assume that Appellant is, in actuality, challenging the denial of her pre-trial
motion for change of venue.



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Commonwealth v. Monaco, 475 A.2d 843 (Pa. Super. 1984), appeal

denied, 567 A.2d 652 (Pa. 1989), this Court specifically held that a general

challenge on appeal to the pre-trial denial of a motion for a change of venue,

is not viable where the appellant has pleaded guilty. See Monaco, supra at

847.

       In her brief, Appellant utterly disregards the fact that she pleaded

guilty; at no point does she advance any argument as to why she believes

that a challenge to the denial of her motion for a change of venue survived

the entry of the guilty plea. (See Appellant’s Brief, at 14-18). While this

Court did state in Monaco that a challenge to the denial of a motion for a

change of venue might be viable if made in the context of an argument that

an appellant’s guilty plea was involuntary, see Monaco, supra at 847,

Appellant never claims that her plea was involuntary and does not seek to

withdraw it.4 Thus, we find that Appellant’s challenge to the denial of her

motion for a change of venue is not a viable issue on appeal. See id.; see

also Lincoln, supra at 609.              Accordingly, we affirm the judgment of

sentence.

       Judgment of sentence affirmed.

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4
  We note that because Appellant never sought to withdraw her guilty plea
below, she waived any challenge to its voluntariness on appeal. See
Lincoln, supra at 610 (holding appellant waived challenge to voluntariness
of guilty plea on direct appeal where he did not object during plea colloquy
or move to withdraw his plea at trial court level).



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 2/5/2016




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