J-S77017-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                    IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JAMES ARTHUR A. MCQUEEN

                            Appellant                No. 12 EDA 2014


            Appeal from the Judgment of Sentence January 8, 2014
             In the Court of Common Pleas of Philadelphia County
             Criminal Division at No(s): CP-51-CR-0003799-2011


BEFORE: STABILE, J., JENKINS, J., and STRASSBURGER, J.**

MEMORANDUM BY JENKINS, J.:                      FILED DECEMBER 22, 2014

        A jury convicted Appellant James McQueen of rape, involuntary deviate

sexual intercourse, unlawful contact with a minor, endangering the welfare

of a child, indecent assault and corruption of minors1. The court sentenced

Appellant to an aggregate sentence of 32½-65 years’ imprisonment.

Appellant filed timely post-sentence motions which were denied by operation

of law. Appellant filed a timely appeal to this Court, and both Appellant and

the trial court complied with Pa.R.A.P. 1925.      For the reasons provided

below, we affirm.

        The trial court summarized the evidence adduced during trial as

follows:
____________________________________________


**
     Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S. §§ 3121, 3123, 6318, 4304, 3126, and 6301, respectively.
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          This case proceeded to trial on September 20, 2012.
          The    following   witnesses     testified   for   the
          Commonwealth: complainant J. M., a minor, Alethia
          McQueen (‘Alethia’), Police Officer Elizabeth Strange,
          Police Detective Joseph Jenkins, and Dr. Maria
          McColgan.

          J. M. testified that, as a child, she lived at numerous
          addresses. N. T. 9/20/12 at 50. At age four, she
          lived at Fairview Court in New Jersey, after which
          she moved to Pennsauken, New Jersey, then the
          Tamarack Apartments in New Jersey, and then to
          975 Jackson Street in New Jersey. N. T. 9/20/12 at
          47-49. Following these moves, she lived on 16th
          Street in the City and County of Philadelphia, then at
          her step-grandmother's house, and finally her
          current address, 2326 West Thompson Street in
          Philadelphia. N. T. 9/20/12 at 50. She lived at her
          current address with her mother and Appellant, her
          stepfather. N. T. 9/20/12 at 51.

          J. M. testified that in the Tamarack Apartments,
          when she was approximately seven years old,
          Appellant penetrated her anus with his penis. N. T.
          9/20/12 at 52-54, 79. She was too young to know it
          was his penis, but she remembered the pain, and
          knew Appellant had been the one to hurt her. N. T.
          9/20/12 at 53. This happened only once at that
          location. N. T. 9/20/12 at 55. At an unspecified later
          date, Appellant blindfolded J. M., but she was able to
          look down beneath the scarf and saw his penis, and
          then knew that he had penetrated her with his penis
          at this earlier date. N. T. 9/20/12 at 54.

          The family moved to 957 Jackson Street, where the
          abuse occurred again. N. T. 9/20/12 at 55-56.
          Several times, Appellant called J. M. into the room
          he shared with J. M.'s mother. N. T. 9/20/12 at 58,
          61. He then tied a scarf around J. M.'s eyes and told
          her he was checking her teeth, and it would hurt less
          when she could not see. N. T. 9/20/12 at 56. Though
          J. M. at first thought Appellant was checking her
          teeth with his thumb, she was later able to peek
          below the edge of the scarf, and saw he was actually

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          putting his penis into her mouth. N. T. 9/20/12 at
          56-57. During these sessions of abuse, Appellant
          instructed J. M. to ‘suck it like a lollipop and a
          popsicle.’ N. T. 9/20/12 at 58-59. On another
          occasion, Appellant took J. M.'s clothes off and
          penetrated her anus and once, her vagina. N. T.
          9/20/12 at 60, 62. J. M. did not tell anyone what was
          happening because she was frightened about what
          would happen to her. N. T. 9/20/12 at 59-60.

          When J. M. was ten (10) years old, the family moved
          to 16th Street in Philadelphia. N. T. 9/20/12 at 65.
          On an unspecified date at 16th Street, J. M.'s mother
          went to work and J. M. lay down in her bed. N. T.
          9/20/12 at 64-65. Appellant came up to the bed and
          forced his penis inside J. M.'s anus. N. T. 9/20/12 at
          65. When J. M. woke up to find him doing this, she
          cried. N. T. 9/20/12 at 71. Later, Appellant wrote J.
          M. a letter saying he was sorry, but J. M. threw the
          letter out. N. T. 9/20/12 at 71. This was the first
          time she had showed him he was hurting her; during
          other assaults, she pretended to be asleep, N. T.
          9/20/12 at 71. The assaults occurred multiple times
          at the 16th Street house. N. T. 9/20/12 at 65.

          J. M. and her family also lived with Charlene
          McQueen, Appellant's mother, for a time. N. T.
          9/20/12 at 65. In this residence, too, Appellant
          forced his penis inside of J. M.'s anus. N. T. 9/20/12
          at 66-67.

          J. M. and her family next moved to her
          grandmother's house. N. T. 9/20/12 at 67. Appellant
          did not live with them the entire time but on one
          night, he came to J. M.'s room [and] penetrated her
          anus with his penis. N. T. 9/20/12 at 67-68.

          When J. M. was eleven (11) years old, the family
          moved to 2326 W. Thompson Street. N. T. 9/20/12
          at 68. J. M. often slept on the couch in her one year
          old brother’s room because she was afraid of the
          dark. N. T. 9/20/12 at 69-70. One night while J. M.
          and her brother slept, Appellant came into the room
          and assaulted J. M. in the same manner as earlier

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          occasions, penetrating her anus with his penis. N. T.
          9/20/12 at 70-72. The assaults occurred numerous
          times at that location. N. T. 9/20/12 at 70-72.

          On March 10, 2011, J. M., Appellant, and Alethia
          attended the Jehovah's Witness Kingdom Hall, where
          they read a Bible excerpt about rape. N. T. 9/20/12
          at 72-73, 97. J. M.'s eyes welled with tears and her
          mother asked her what was wrong. N. T. 9/20/12 at
          73, 97. When J. M. refused to speak, Alethia took J.
          M. into the bathroom. N. T. 9/20/12 at 73, 97. J. M.,
          shaking and stuttering, still did not want to tell her
          mother why she was crying. N. T. 9/20/12 at 97.
          Finally, J. M. said, ‘[Appellant] isn't the person you
          thought he was.’ N. T. 9/20/12 at 97. Though J. M.
          was still reluctant to talk, she finally admitted to
          Alethia that Appellant came into her room when he
          thought she was asleep and penetrated her anally.
          N. T. 9/20/12 at 73, 97.

          Alethia was hurt and frightened, because J. M. was
          reluctant to go home with her mother, but wanted to
          live with her grandmother instead. N. T. 9/20/12 at
          99. Despite her mental anguish, however, Alethia did
          not doubt her daughter was telling the truth. N. T.
          9/20/12 at 99. That night, when they went home,
          Alethia slept in her daughter's room until J. M. fell
          asleep. N. T. 9/20/12 at 100. Eventually she went
          back to her own room, where she stayed awake for
          most of the night. N. T. 9/20/12 at 100. At this time,
          she did not say anything to Appellant regarding the
          information J. M. had revealed; she took him to work
          as she usually did. N. T. 9/20/12 at 100; N. T.
          9/21/12 at 29. She then called Taylor Brandy
          (‘Brandy’), the minister at Kingdom Hall, for advice.
          N. T. 9/20/12 at 100; N. T. 9/21/12 at 29. Brandy
          advised Alethia to call the police, which she did. N. T.
          9/20/12 at 73, 100.

          On March 11, 2011, Police Officer Elizabeth Strange
          received information of a rape at 2326 West
          Thompson Street. N. T. 9/20/12 at 27-28. Alethia
          told Officer Strange she should speak to J. M.,
          because J. M. had something to tell her. N. T.

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          9/20/12 at 29. Shaking and terrified, J. M.
          proceeded, over the course of twenty (20) or
          twenty-five (25) minutes, to tell Officer Strange
          about her stepfather's abuse. N. T. 9/20/12 at 29-
          30. She said that at night, Appellant, her stepfather,
          would come into her room and tie a scarf around her
          eyes, telling her that they were ‘playing dentist’ and
          he was going to ‘check her teeth.’ N. T. 9/20/12 at
          30-31. However, while J. M. was blindfolded,
          Appellant would insert his penis into her mouth. N. T.
          9/20/12 at 30-31. She also admitted that Appellant
          forced his penis into her rectum and it was painful,
          and the abuse was ongoing and had occurred
          multiple times. N. T. 9/20/12 at 30, 36, 43.

          Alethia learned for the first time of the blindfolding at
          Special Victims Unit (‘SVU’). N. T. 9/20/12 at 100-
          101. She then recalled a day in the past, when J. M.
          was five or six, and she walked into the bathroom to
          find Appellant with J. M. N. T. 9/20/12 at 101-102. J.
          M. was blindfolded and Appellant was wearing a
          towel, and seemed startled Alethia had come home.
          N. T. 9/20/12 at 101-102. Although Alethia had a
          bad feeling about the incident and left for her
          mother's house with J. M., she did not want to
          believe her suspicions about her own husband. N. T.
          9/20/12 at 102-103. Appellant attempted to explain
          that he was taking a look at J. M.'s loose tooth to see
          if it needed to be taken out. N. T. 9/20/12 at 103.
          Alethia went back to him, hoping her mind was
          playing tricks on her. N. T. 9/20/12 at 104.

          Based on this interview, Officer Strange called the
          SVU and was told to bring J. M. down for an
          interview. N. T. 9/20/12 at 31-32. Officer Strange
          waited for part of the interview because she
          ‘believed J. M. was telling the truth and [she] saw
          the hurt.’ N. T. 9/20/12 at 32. J. M. looked like she
          ‘didn't know what to do.’ N. T. 9/20/12 at 32. Alethia
          also believed J. M. because J. M. had never been a
          troublesome child, and had never lied to Alethia
          before. N. T. 9/20/12 at 108.




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          Detective Joseph Jenkins interviewed J. M. at SVU.
          N. T. 9/20/12 at 74. During the interview, J, M. told
          Detective Jenkins about the incidents where
          Appellant would ‘check her teeth,’ blindfolding her
          and then placing his penis into her mouth. N. T.
          9/21/12 at 60. She also reported the incidents of
          Appellant forcing his penis into her anus. N. T.
          9/21/12 at 60. Subsequent to the interview,
          Detective ]enkins prepared an arrest warrant. N. T.
          9/21/12 at 55.

          After Appellant's arrest, he attempted to contact
          Alethia McQueen numerous times, but she did not
          answer the phone. N. T. 9/20/12 at 109. Eventually
          they communicated by letter, because despite what
          had happened, Appellant was still her son's father
          and she loved him. N. T. 9/20/12 at 110. Though
          they discussed other issues, including religion,
          Appellant's previous infidelities, or other issues in
          their marriage, Alethia could not bring herself to
          discuss what had happened to J. M. N. T. 9/20/12 at
          111. Eventually, she stopped sending him letters.
          N.T. 9/20/12 at 112. Charlene McQueen, Appellant's
          mother, told Alethia two or three times [] that she
          and J. M. did not have to show up at court and no
          one could make them. N. T. 9/21/12 at 15. Because
          the abuse did not occur that day, J. M. was not taken
          to the hospital. N. T. 9/20/12 at 32. To collect
          biological and DNA evidence, the incident usually had
          to have occurred within 72 hours. N. T. 9/21/12 at
          58.

          On September 15, 2011, a nurse practitioner at St.
          Christopher's hospital examined J. M. N. T. 9/20/12
          at 76; N. T. 9/21/12 at 84-85. J. M. was negative for
          STDs and her examination was ‘overall normal,’ with
          no findings of injury or trauma. N. T. 9/21/12 at 87-
          88. J. M. did have a creamy white discharge in her
          vaginal area, which was slightly excessive for a
          typical child going through puberty. N. T. 9/21/12 at
          88.

          Dr. Maria McColgan testified at trial that it is normal
          for child victims of sexual abuse to delay disclosure

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            and that they do not tell every detail right away, out
            of shame. N. T. 9/21/12 at 89-90. It is rare for a
            child to lie about sexual abuse. N. T. 9/21/12 at 90.
            Additionally, Dr. McColgan testified that more than
            95% of the time she has examined a child victim of
            sexual abuse, the examination is ‘normal’ or not
            specific. N. T. 9/21/12 at 91. Fewer than 5% of the
            times, she has discovered definitive evidence of
            penetration. N. T. 9/21/12 at 91. Even after 24
            hours, it is rare to recover sperm or DNA from a
            child. N. T. 9/21/12 at 100.

            Prison tape recordings, involving Appellant, Alethia
            McQueen, Charlene McQueen, and Appellant's sister,
            were played for the jury on September 21, 2012. N.
            T. 9/21/12 at 49-52. The court reporter did not
            transcribe the substance of those tapes. N. T.
            9/21/12 at 47-52.

            Tanzania Cook and Charlene McQueen testified in
            Appellant's defense. Appellant took the stand in his
            own defense. Tanzania Cook testified she had known
            Appellant since childhood and, beginning in October
            or November 2010, had a physical relationship with
            him continuing until January 2011. N. T. 9/21/12 at
            112-113. She never spoke with Alethia McQueen. N.
            T. 9/21/12 at 115.

            Charlene McQueen (‘McQueen’) testified she is
            Appellant's mother and Appellant, Alethia, and J. M.
            lived with her for a time. N. T. 9/21/12 at 116-117.
            She visited Appellant in prison with Alethia. N. T.
            9/21/12 at 118-119. She spoke over the phone with
            Appellant in prison and stated she felt he had a split
            personality and needed treatment. N. T. 9/21/12 at
            123.

            Appellant testified in his own defense. He denied his
            guilt on all charges and claimed the accusations were
            fabricated because Alethia was furious with him for
            his infidelities. N. T. 9/21/12 at 128-130, 132, 134,
            138, 145.

Trial Court Opinion, pp. 3-8.

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      Appellant raises two issues in this appeal:

            DID THE TRIAL COURT COMMIT ERROR WHEN IT
            PERMITTED THE PROSECUTION TO INTRODUCE
            RECORDED PRISON PHONE CALLS OVER THE
            OBJECTION OF TRIAL COUNSEL WHEN TRIAL
            COUNSEL HAD JUST RECEIVED THE RECORDED
            PHONE CALLS THE VERY SAME DAY?

            DID THE TRIAL COURT COMMIT AN ABUSE OF
            DISCRETION BY IMPOSING UPON THE APPELLANT A
            MANIFESTLY EXCESSIVE SENTENCE OF THIRTY TWO
            AND ONE-HALF YEARS (32½) TO SIXTY FIVE (65)
            YEARS?

Brief For Appellant, p. 7.

      In his first argument, Appellant claims that the trial court erred by

refusing to preclude the Commonwealth from introducing tape recordings of

conversations Appellant had in prison with other family members after his

arrest.   Appellant claimed that the Commonwealth violated its duty under

Pa.R.Crim.P. 573 to produce these recordings sufficiently in advance of trial

for Appellant’s attorney to listen to the recordings and prepare his defense.

N.T., 9/19/12, pp. 14-15. The delay in producing the recordings, Appellant

says, was prejudicial due to the crucial nature of this evidence.      In his

words, the recordings “were material to the verdict because they have the

appellant informing other family members that if J.M. does not appear the

case will likely be dismissed. This is powerful evidence which the jury likely

used to infer guilt.” Brief for Appellant, p. 16.




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      Appellant has waived this argument. The recordings are not included

in the certified record, and the court reporter did not transcribe the

recordings during trial. Therefore, we are unable to ascertain the contents

of the recordings or whether they were relevant and/or prejudicial to

Appellant. Appellant has the responsibility to ensure that the record certified

on appeal contains all of the materials necessary for the reviewing court to

perform its duty.      Commonwealth v. Griffin, 65 A.3d 932, 936

(Pa.Super.2013).    The absence of the recordings and transcripts of the

recordings is fatal to Appellant’s argument. Id.

      Even if Appellant preserved this argument for appeal, it is devoid of

substance. Appellate courts generally review discovery rulings for an abuse

of discretion.   Commonwealth v. Williams, 732 A.2d 1167, 1175 n. 5

(Pa.1999). “An abuse of discretion is more than just an error in judgment

and, on appeal, the trial court will not be found to have abused its discretion

unless the record discloses that the judgment exercised was manifestly

unreasonable, or the result of partiality, prejudice, bias, or ill-will.”

Commonwealth v. Hess, 745 A.2d 29, 31 (Pa.Super.2000).

      Pa.R.Crim.P. 573(B)(1)(b), the rule governing discovery in criminal

cases, requires the Commonwealth to produce “any written confession or

inculpatory statement, or the substance of any oral confession or inculpatory

statement, and the identity of the person to whom the confession or

inculpatory statement was made that is in the possession or control of the


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attorney for the Commonwealth.” Under this rule, the Commonwealth must

turn over all inculpatory evidence “that is relevant           and within its

possession.” Commonwealth v. Dent, 837 A.2d 571, 585 (Pa.Super.2003)

(emphasis in original).     “Where the evidence is equally accessible or

inaccessible to both the Commonwealth and the defense, the defense cannot

use the discovery rules against the Commonwealth for its failure to produce

the evidence.” Id. (Commonwealth could not be held responsible for failing

to provide retail store's surveillance videotape to defendant, when tape was

not ever in Commonwealth's possession and was overridden shortly after the

shoplifting incident; defendant did not move to produce the videotape or

subpoena the videotape from the store, and videotape was equally

inaccessible to both the Commonwealth and the defense); see also

Commonwealth v. McElroy, 665 A.2d 813, 819-20 (Pa.Super.1995)

(declining to hold prosecution responsible for tape recordings that were not

in possession of prosecution, and suggesting proper procedure for defendant

was service of subpoena duces tecum upon proper custodian of record).

      In view of these authorities, the trial court acted within its discretion

by denying Appellant’s motion to preclude use of the tape recordings during

trial. The trial court’s reasoning on this subject is persuasive:

            The Assistant District Attorney did introduce tapes
            into evidence. However, she stated on the record
            that trial counsel had provided the District Attorney's
            Office with letters from Appellant's mother citing
            telephone conversations she had had with Appellant
            in custody. N. T. 9/19/12 at 14. Trial counsel's sole

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             argument was that, because the letters had been
             provided six months before the date of trial, and the
             introduction of the tapes occurred on the day of trial,
             it was not fair. N. T. 9/19/12 at 15. This Court
             overruled the objection, citing as its reasoning that
             the defense had provided the letters which triggered
             the additional investigation into the tapes in the first
             place. N. T. 9/16/12 at 16. Appellant, though he
             could have subpoenaed the Custodian of Records of
             the Philadelphia Prison System, did not. The records
             were not within the exclusive control of the
             prosecution and, as the tapes were inculpatory
             rather than exculpatory, the District Attorney's Office
             was not required to turn them over.

Trial Court Opinion, p. 15.

        In his second argument on appeal, Appellant contends that the trial

court    abused   its   discretion   by     sentencing   him   to   32½-65     years’

imprisonment.     Appellant waived this argument by failing to raise it in his

Pa.R.A.P.    1925(b)    statement    of     matters   complained    of   on   appeal.

Commonwealth v. Lord, 719 A.2d 306, 308-09 (Pa.1998).                         Because

Appellant omitted this issue from his Pa.R.A.P. 1925(b) statement, the trial

court did not explain the rationale for his sentence in its Pa.R.A.P. 1925(a)

opinion, thus preventing us from reviewing this issue effectively.

        Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/22/2014




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