J-S33010-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    MATTHEW DARDEN                             :
                                               :
                       Appellant               :   No. 454 EDA 2017

            Appeal from the Judgment of Sentence January 12, 2017
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0002495-2015


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS, P.J.E.

MEMORANDUM BY OTT, J.:                                    FILED JULY 26, 2018

        Matthew Darden appeals from the judgment of sentence imposed

January 12, 2017, in the Philadelphia County Court of Common Pleas. The

trial court sentenced Darden to an aggregate term of 38 to 76 years’

imprisonment following his jury conviction of, inter alia, involuntary deviate

sexual intercourse (“IDSI”) and aggravated indecent assault,1 for the sexual

assault of his 12-year-old stepdaughter.           On appeal, he challenges the

sufficiency of the evidence supporting the jury’s determination that the victim

was less than 13 years old at the time of the assault. For the reasons below,

we affirm.

        The trial court summarized the evidence presented at trial as follows:

____________________________________________


   Former Justice specially assigned to the Superior Court.

1   See 18 Pa.C.S. §§ 3123(b) and 3125(b), respectively.
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      The complaining witness, H.M., testified that she had been
      sexually violated by [Darden, her stepfather,] twice while she was
      only twelve years old. H.M.’s date of birth is April [], 1998.

             The complainant testified that [Darden] told her to tell him
      if she had ever had sex. Therefore, on March 20, 2011, H.M. told
      [Darden] that she had had sex with a boy, after which [Darden]
      digitally penetrated her vagina with his finger. Furthermore, H.M.
      had been told by [Darden] “not to tell my mom because it would
      break [her] heart.”

            The complainant testified that the next physical contact
      happened when she was twelve years old as well. H.M. testified
      that [Darden] told her to lay down on the bed so he could perform
      the “root” ritual on her because she was “obsessed” over the boy
      she had had sex with. Complainant testified that the ritual was
      [Darden] performing oral sex on her.

             Testimony from H.M.’s brother states that when H.M. was
      fourteen, she told her brother about the past sexual abuse.
      Furthermore, H.M.’s father, [C.M.], testified that complainant
      went to live with him in Georgia right after the time of the sexual
      abuse, which he testified was when she was thirteen. H.M.
      testified that she left shortly after the abuse and stayed with her
      father in Georgia for a year.

             Finally, Loukisha Ford, a school counselor, testified that in
      January 2015, H.M. told her that she had been sexually abused
      by [Darden] “a few years prior.” On cross examination, Ms. Ford
      testified that it was “two or three years ago.”

Trial Court Opinion, 7/11/2017, at 3-4 (record citations omitted).

      Darden was subsequently arrested and charged with IDSI (victim less

than 13 years old), aggravated indecent assault (victim less than 13 years

old), indecent assault (victim less than 13 years old), unlawful contact with a




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minor, endangering the welfare of a child, and corruption of minors.2 The case

proceeded to a jury trial, and on September 1, 2015, the jury found Darden

guilty of all charges, with the exception of indecent assault. On January 12,

2017, the trial court sentenced Darden to an aggregate term of 38 to 76 years’

imprisonment.3 Although still represented by counsel, Darden filed a pro se

notice of appeal on January 17, 2017.4

       Subsequently, Darden sent the trial court a letter criticizing counsel’s

representation and seeking new counsel.           Counsel responded by filing a

motion to withdraw on March 17, 2017, which the trial court denied on March

31, 2017. Thereafter, Darden filed in this Court a motion to proceed pro se

or with new counsel on appeal.           By order dated June 5, 2017, this Court

____________________________________________


2See 18 Pa.C.S. §§ 3123(b), 3125(b), 3126(a)(7), 6318(a)(1), 4304(a)(1),
and 6301(a)(1), respectively. We note Darden was also charged with rape of
a child (18 Pa.C.S. § 3121(c)) and sexual assault (18 Pa.C.S. § 3124.1),
however, those charges were dismissed by the Commonwealth prior to trial.

3 Specifically, the court imposed the following sentences on each count, and
ordered them to run consecutively: IDSI, 16 to 32 years’ imprisonment;
aggravated indecent assault, eight to 16 years’ imprisonment; unlawful
contact, 10 to 20 years’ imprisonment; endangering the welfare of a minor,
two to four years’ imprisonment, and corruption of minors, two to four years’
imprisonment.

4 On January 30, 2017, the trial court ordered Darden to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Darden complied with the court’s directive, and filed a concise statement on
February 20, 2017.




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remanded the case to the trial court for a Grazier5 hearing. However, on

September 11, 2017, Darden sent this Court a letter, pro se, withdrawing his

request for a Grazier hearing. Accordingly, on January 16, 2018, this Court

entered an order vacating its June 5, 2017, order.

       The sole issue on appeal is a challenge to the sufficiency of the evidence

supporting the jury’s determination that the victim was less than 13 years of

age when the sexual abuse occurred for the charges of IDSI and aggravated

indecent assault. See Darden’s Brief at 14.

       When considering a sufficiency of the evidence challenged, we are

guided by the following:

       There is sufficient evidence to sustain a conviction when the
       evidence admitted at trial, and all reasonable inferences drawn
       therefrom, viewed in the light most favorable to the
       Commonwealth as verdict-winner, are sufficient to enable the
       fact-finder to conclude that the Commonwealth established all of
       the elements of the offense beyond a reasonable doubt. The
       Commonwealth may sustain its burden “by means of wholly
       circumstantial evidence.” Further, we note that the entire trial
       record is evaluated and all evidence received against the
       defendant is considered, being cognizant that the trier of fact is
       free to believe all, part, or none of the evidence.

Commonwealth v. Diaz, 152 A.3d 1040, 1043–1044 (Pa. Super. 2016),

appeal denied, 169 A.3d 544 (Pa. 2017). Moreover, it is axiomatic that “[t]he

uncorroborated testimony of a sexual assault victim, if believed by the trier of

fact, is sufficient to convict a defendant.” Commonwealth v. McDonough,

____________________________________________


5   Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

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96 A.3d 1067, 1069 (Pa. Super. 2014), appeal denied, 108 A.3d 34 (Pa.

2015).

        Here, Darden was convicted of both IDSI and aggravated indecent

assault under the subsections that apply to victims under the age of 13 years

old. See 18 Pa.C.S. §§ 3123(b), and 3125(b). His sole contention on appeal

is “the evidence did not prove that [Darden] did anything to [the victim] before

H.M. turned 13 years old.”           Darden’s Brief at 17.   In support, Darden

emphasizes the following: (1) H.M. did not report the abuse until 2015, when

she told social worker Loukisha Ford; (2) Ford testified H.M. told her the abuse

occurred two to three years earlier, which would have been when H.M. was

13 years old;6 and (3) H.M’s brother provided a written statement in which he

claimed H.M. told him the abuse occurred when she was 13 years old. See

id. Moreover, although Darden acknowledges a social worker testified H.M.

reported the abuse occurred when she was 12 years old, the social worker

also conceded H.M. did not provide a specific date or year. See id. at 17-18.

Accordingly, Darden insists “[t]hese conflicts in the evidence and testimony

clearly show that there was reasonable doubt as to whether something

happened before or after H.M. turned 13.” Id. at 18.



____________________________________________


6   H.M. turned 13 years old on April 29, 2011.




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       However, the trial court determined the evidence was sufficient to

support the jury’s finding that H.M. was less than 13 years old when the sexual

abuse occurred. Relying on well-established case law that the testimony of a

sexual assault victim, alone, is sufficient to support a conviction, 7 the court

recounted that H.M. testified the incident when Darden inserted his finger in

her vagina occurred on March 20, 2011, and the second incident, when he

performed oral sex on her as part of a “roots” ritual, also occurred “a few days

later.” Trial Court Opinion, 7/11/2017, at 7. Therefore, H.M. would have been

under the age of 13 at the time of both incidents.

       The record supports the trial court’s findings. H.M. testified the first

incident occurred on March 20, 2011, when she was still 12 years old. See

N.T., 8/30/2016, at 77. She recalled the specific date because it was also the

date she “first had sex.” Id. H.M. later testified that the second incident, the

“roots” ritual, also occurred when she was 12 years old. See id. at 84. See

also id. at 98 (H.M. testified the “roots” ritual happened “like the beginning

of April” before she turned 13 on April 29th). Moreover, social worker, Rodney

Nicholas, testified H.M. also told him the sexual abuse occurred when she was

12 years old. See id. at 47, 57-59. Although the testimony of some of the

other witnesses was not as specific, any conflict in testimony regarding the

____________________________________________


7 See Trial Court Opinion, 7/11/2017, at 5-6, citing Commonwealth v.
Trimble, 615 A.2d 48 (Pa. Super. 1992) and Commonwealth v. Charlton,
902 A.2d 554 (Pa. Super. 2006), appeal denied, 911 A.2d 933 (Pa. 2006).

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date of the abuse was for the jury to resolve.        See Commonwealth v.

Izurieta, 171 A.3d 803, 807 (Pa. Super. 2017) (victim’s uncorroborated

testimony that sexual abuse occurred in the spring of 2012 when she was

under the age of 16, sufficient to support conviction of indecent assault of

victim less than 16 years of age). Accordingly, Darden is entitled to no relief.8

       Judgment of sentence affirmed.

       Judge McLaughlin joins this decision.

       President Judge Emeritus Stevens concurs in the result.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 7/26/18



____________________________________________


8 Darden’s claim on appeal more appropriately challenges the weight of the
evidence supporting the verdict. However, because Darden failed to challenge
the weight of the evidence before sentencing or in a post-sentence motion,
any claim on appeal is waived. See Pa.R.Crim.P. 607. Counsel indicates in a
footnote that he intended to file a post-sentence motion raising a weight claim,
but was precluded from doing so when Darden filed a pro se notice of appeal
only five days after sentencing. See Darden’s Brief at 18 n.3. Counsel does
not explain why he failed to withdraw the appeal, and request to file a post-
sentence motion nunc pro tunc. Nevertheless, at this juncture, Darden may
seek relief in a post-conviction collateral proceeding.


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