J. A27007/14

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
LEELAND R. BARNHART,                      :          No. 417 WDA 2013
                                          :
                          Appellant       :


           Appeal from the Judgment of Sentence, October 12, 2012,
               in the Court of Common Pleas of Greene County
              Criminal Division at Nos. CP-30-CR-0000485-2011,
                           CP-30-CR-0000487-2011


BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND MUSMANNO, JJ.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                   FILED MARCH 17, 2015

        A jury convicted Leeland R. Barnhart of involuntary deviate sexual

intercourse (“IDSI”) and related offenses as a result of his sexual activity

with R.B.; at the time of the offenses, R.B. was 15 years old.          Herein,

appellant appeals from the judgment of sentence entered on October 12,

2012.     We affirm the convictions, vacate the judgment of sentence, and

remand for resentencing

        The facts, as summarized by the trial court, are as follows.

                    The charges against Defendant arose out of
              events in the summer of 2011. On July 25, 2011,
              the victim, R.B. (d/o/b 10/[-]/95) left the family
              home in Carmichaels and moved in with Defendant
              (d/o/b 5/[-/]1976). Her parents did not know where
              she was and asked her friend K. if she knew her
              whereabouts. K. said she thought R.B. might be at
              “Lee’s house”. R.B.’s father went to Defendant’s
J. A27007/14


            mobile home and asked if he knew where his
            daughter was. Defendant said she was not there.
            R.B.’s father told Defendant that R.B. was only 15.
            R.B.’s parents made fliers and posted them around
            the neighborhood. They informed the police, the
            district attorney and Greene County Children and
            Youth Services (CYS). At some point, the parents
            got a phone call from a runaway hotline informing
            them that R.B. had called and asked the hotline to
            tell her parents she was safe and in good health.
            After about nine days, CYS located R.B. at
            Defendant’s home. More precisely, a caseworker
            knocked on Defendant’s door and talked to him.
            After about 45 minutes of conversation, Defendant
            admitted that R.B. was in the place and brought her
            out. The caseworker informed the police that R.B.
            had been found and then took her home to her
            parents.

                   After police and CYS personnel interviewed
            R.B., Defendant was charged with [IDSI], Sexual
            Assault, Aggravated Indecent Assault, and other
            sexual offenses. Of great significance in this case is
            the fact that at the time of these events[,] R.B. was
            15 years old.      She would not be 16 until the
            following October. At a separate number, Defendant
            was charged with Concealing the Whereabouts of a
            Child, Interfering with the Custody of a Child and
            related offenses. The two numbers were joined for
            trial.

Trial court memorandum, 1/31/13 at 1-2.

      On May 21, 2012, a four-day jury trial began. The victim testified and

admitted that she lied about her age to others and lived her life as a

17-year-old. (Notes of testimony, 5/21-26/12 at 153.) R.B. testified that

she met appellant through her friend K.; appellant lived a few blocks away.

(Id. at 155.) The next night, she snuck out of her house to visit appellant.

During this visit, the victim had sex, including oral sex, with appellant. (Id.


                                     -2-
J. A27007/14


at 160.) The following night, R.B. snuck out again and went to appellant’s

house; the two engaged in sexual intercourse again.         (Id. at 164.)    The

victim testified that she deceived appellant about her age. (Id. at 164-165.)

      The following day, Sunday, R.B. revealed her real age of 15 to

appellant upon the encouragement of K. (Id. at 166.) R.B. testified that

while appellant was initially upset, he told her “it would be all right.” (Id. at

168.) On July 23, 2011, R.B. ran away from home and went to stay with

appellant. (Id. at 170.) R.B. stayed at appellant’s house for nine days; she

testified that they had sex approximately twice a day. (Id. at 181.)

      Appellant testified in his own defense.       He explained that he had

known K., who lived up the street from his house with her mother, since K.

was 13 years old. (Id. at 649.) Appellant stated that when he met R.B.,

she told him she was 18 years of age. (Id. at 653.) Appellant’s time-line of

the dates they saw each other differed from R.B.’s. Appellant said they were

not physically intimate until after the fifth or sixth day they met --

approximately June 18th to June 21st. (Id. at 658-659, 672.) Appellant said

that they saw each other again the following day but they did not have sex.

(Id. at 668.) Appellant testified that he was not made aware of her real age

until the day she ran away when R.B.’s father came to his home. (Id. at

680.) Once he found out her age, he refused to have sex with R.B.

      Two separate motions for continuance filed by the defense were

granted. (See docket #6, 7.) On February 8, 2012, appellant waived his



                                      -3-
J. A27007/14


Rule 600 rights. (Docket #12.) On February 21, 2012, the court granted a

motion for DNA testing.     (Docket #15.)          The trial court denied a defense

request for a psychological/competency evaluation to determine if the victim

understood    her   obligation   to   tell   the   truth.     (Docket   #21.)    The

Commonwealth filed a motion in limine pursuant to the Rape Shield Law,

and the trial court granted the motion, refusing to admit into evidence R.B.’s

written admissions that she had, on other occasions, lied about her age and

had sex with older men. (Docket #3, 42.)

      The jury rendered a verdict of guilty on all counts.           A pre-sentence

investigation was prepared; and on October 12, 2012, appellant was

sentenced to a total sentence of 10½ to 21 years, including two mandatory

sentences required by 42 Pa.C.S.A. § 9718(a).               (Docket #47.)   Appellant

filed a timely post-sentence motion. A hearing was held, and thereafter, the

motion was denied.     Appellant filed a timely notice of appeal and was not

ordered to file a concise statement pursuant to Pa.R.A.P. 1925(b). The trial

court has not filed an opinion, but directed this court to its memorandum

dated January 31, 2013. The following issues have been presented for our

review.

             I.     DID THE COURT ERR BY ALLOWING THE
                    COMMONWEALTH       TO     AMEND     THE
                    INFORMATIONS ON THE LAST DAY OF TRIAL
                    WHEN    THE    AMENDMENT    MAY    HAVE
                    MATERIALY [sic] CHANGED THE DEFENSE
                    CAUSING PREJUDICE TO THE APPELLANT?




                                        -4-
J. A27007/14


            II.    DID THE COURT ERR BY GRANTING AND THEN
                   DENYING DEFENDANT’S REQUEST FOR A
                   COMPETENCY EVALUATION OF THE VICTIM TO
                   DETERMINE IF SHE UNDERSTOOD HER DUTY
                   TO TELL THE TRUTH WHEN THE VICTIM WAS
                   UNDER THE AGE OF 18, HAS A PROPENSITY
                   FOR LYING, AND PRESUMABLY DID NOT
                   UNDERSTAND HER DUTY TO TELL THE TRUTH?

            III.   DID THE TRIAL COURT ERR BY NOT ALLOWING
                   THE VICTIM’S OUT OF COURT WRITTEN
                   STATEMENTS TO BE INTRODUCED AT TRIAL
                   AND INTO EVIDENCE?

            IV.    DOES    THE   MANDATORY     SENTENCING
                   REQUIREMENT     FOR   [IDSI]   VIOLATE
                   DEFENDANT’S    CONSTITUTIONAL    RIGHT
                   AGAINST EXCESSIVE, CRUEL AND UNUSUAL
                   PUNISHMENT, AND IS OVERBROAD AND
                   OVERREACHING BY INCLUDING ORAL SEX AS
                   “DEVIATE”, AND/OR DOES THE STATUTE
                   IMPOSE A GROSSLY DISPROPORTIONATE
                   SENTENCE FOR BEHAVIOR THAT IS DEEMED
                   NORMAL BY SOCIETY?

            V.     WAS THE JURY’S VERDICT BEYOND THE
                   WEIGHT OF THE EVIDENCE AND/OR WAS
                   THERE SUFFICIENT EVIDENCE TO CONVICT
                   APPELLANT OF THE CRIMES CHARGED WHEN
                   THE VICTIM TESTIFIED THAT SHE HAD LIED
                   ABOUT HER AGE AND GENERALLY LIES ABOUT
                   HER AGE AND HOLDS HERSELF OUT TO BE
                   OLDER THEN SHE ACTUALLY IS[?]

            VI.    DID THE COURT THE COURT [sic] VIOLATE
                   APPELLANT’S DUE PROCESS RIGHTS BY
                   FORCING HIM TO WAIVE HIS RULE 600
                   SPEEDY TRIAL RIGHTS IN ORDER TO OBTAIN
                   EXCULPATORY     EVIDENCE   FROM    THE
                   COMMONWEALTH?

Appellant’s brief at 18-19.




                                  -5-
J. A27007/14


      The first issue presented concerns whether the trial court properly

granted the Commonwealth leave to amend the information pursuant to

Pa.R.Crim.P. 564.      The trial court permitted the Commonwealth to amend

the criminal information at the conclusion of trial to correct a defect in

statutory recitation and to alter the dates of several alleged offenses.

Appellant argues that he was prejudiced by the late amendment of a

criminal information. We disagree.

      According to Pa.R.Crim.P. 564, the court may permit amendment of an

information “when there is a defect in form, the description of the

offense(s), the description of any person or any property, or the date

charged, provided the information as amended does not charge an additional

or different offense.” Pa.R.Crim.P. 564. Moreover, “[u]pon amendment, the

court may grant such postponement of trial or other relief as is necessary in

the interests of justice.”        Commonwealth v. Roser, 914 A.2d 447, 454

(Pa.Super. 2006.) “[T]he purpose of Rule 564 is to ensure that a defendant

is fully apprised of the charges, and to avoid prejudice by prohibiting the last

minute addition of alleged criminal acts of which the defendant is

uninformed.”       Commonwealth             v.   Sinclair,   897   A.2d   1218,    1221

(Pa.Super. 2006).       “[O]ur courts apply the rule with an eye toward its

underlying purposes and with a commitment to do justice rather than be

bound   by     a   literal   or    narrow    reading    of   the   procedural     rules.”

Commonwealth v. Grekis, 601 A.2d 1284, 1288 (Pa.Super. 1992).



                                            -6-
J. A27007/14


        The original criminal information at case number 485-CR-2011

charged    appellant   with   various   crimes   involved    in   concealing   the

whereabouts of the victim from July 7, 2011 to August 2, 2011. During trial,

testimony was offered to indicate that the concealment and related crimes

did not occur until the victim had run away from home on July 25th. At the

conclusion of trial, the Commonwealth was permitted to amend the

information by changing the date of occurrence from July 7th to July 25,

2011.

        The court also permitted the Commonwealth to amend the information

at case number 487-CR-2011 by deleting a reference to the victim being

under the age of 13, which was inadvertently included in the statutory

recitation, although the specific facts in the “to-wit” section listed the

victim’s accurate age and listed the accurate section charged. It had never

been alleged that the victim was under 13 at any time.

        Appellant now argues that the amendments altered his defense.

Appellant claims he was prejudiced as he had to prepare a defense for a

larger time frame and then did not have to use it.          Appellant also argues

that since the amended date is beyond the first time that he had sexual

intercourse with the victim, he would not have testified to having had

intercourse with the victim before July 25, 2011 had that date originally

been used. (Appellant’s brief at 30.)




                                        -7-
J. A27007/14


      We agree with the trial court that these assertions are not the type of

prejudice contemplated by the rules. (Trial court memorandum, 1/31/13 at

6.)   Further, as the Commonwealth notes, appellant never sought to have

the two cases severed, so the admissions concerning the sexual nature of

the relationship prior to July 25th would have been inadmissible in the trial

involving the non-sexual charges. The victim testified that she had sex with

appellant from July 7th through the time she returned home.         The jury

obviously found R.B.’s testimony credible and convicted him based on her

rendition of the facts. We cannot find the amendment of the date fatal to

appellant’s case.

      Next, appellant argues the trial court erred by denying appellant’s

request for a competency evaluation of the victim to determine if she

understood her duty to tell the truth, as she was under the age of 18 and

has a propensity for lying.1 (Appellant’s brief at 33.) Following our review,

we find this claim to be meritless.

      Generally, a witness is presumed competent to testify, and the burden

falls on the objecting party to demonstrate that a witness is incompetent.

Commonwealth v. Walter, 93 A.3d 442, 451 (Pa. 2014). When a witness

is at least 14 years old, he or she is entitled to the same presumption of

competence as an adult witness.       Commonwealth v. McLaurin, 45 A.3d


1
  Initially, a motions court judge granted the motion for an evaluation and
competency hearing; however, on February 23, 2012, the Honorable Brianna
Christine vacated the order.


                                      -8-
J. A27007/14


1131 (Pa.Super. 2012), appeal denied, 65 A.3d 413 (Pa. 2013), overruled

on other grounds by Commonwealth v. Pander, 100 A.3d 626

(Pa.Super. 2014). However, in the case of a child witness, once evidence of

corruption is established, the court must make a searching judicial inquiry

into the mental capacity of a witness under the age of 14; that investigation

involves whether the child witness has the following:       “(1) capacity to

observe or perceive the occurrence with a substantial degree of accuracy;

(2) ability to remember the event which was observed or perceived;

(3) ability to understand questions and to communicate intelligent answers

about the occurrence, and (4) consciousness of the duty to speak the truth.”

Commonwealth          v.   Delbridge,    855   A.2d   27,   39   (Pa.   2003)

(“Delbridge I”). See also Commonwealth v. Delbridge, 859 A.2d 1254

(Pa. 2004) (“Delbridge II”) (explaining judicial competency investigations

apply in cases where sexual abuse complainants are young children because

child’s memory is uniquely susceptible to falsely implanted suggestions

which may cause child difficulty in distinguishing fact from fantasy when

called to testify).

      “These concerns clearly become less relevant as a witness’ age

increases, ultimately being rendered totally irrelevant as a matter of law by

age fourteen.” Commonwealth v. Judd, 897 A.2d 1224, 1229 (Pa.Super.

2006), appeal denied, 912 A.2d 1291 (Pa. 2006) (emphasis added).           In

Judd, the juvenile sexual assault victim was 15 years old when she testified



                                        -9-
J. A27007/14


at trial. The court stated “any issue with her inability to correctly remember

the events in question is properly a question of credibility not of taint.” Id.

at 1229.

      Based on the foregoing, we discern no error in the trial court’s decision

to deny appellant’s request for a psychological evaluation.         There is no

dispute that the victim was 15 years and 9½ months old at the time of the

offenses and 16 when she testified.           (Appellant’s brief at 25.)    See

McLaurin, supra; Judd, supra. Hence, she was presumed competent, and

any allegation concerning her lies to appellant and her parents goes to her

credibility, not competency. Commonwealth v. Page, 59 A.3d 1118, 1130

(Pa.Super. 2013).     “A determination of credibility lies solely within the

province of the factfinder. Moreover, any conflict in the testimony goes to

the credibility of the witnesses and is solely to be resolved by the factfinder.”

Commonwealth v. Price, 616 A.2d 681, 685 (Pa.Super. 1992) (internal

citations omitted). Furthermore, in Commonwealth v. Robinson, 5 A.3d

339, 342-344 (Pa.Super. 2010), appeal denied, 19 A.3d 1051 (Pa. 2011),

this court upheld the trial court’s refusal to permit the defense to present

expert testimony on the subject of memory error as it would be another way

to improperly permit an expert to comment on the credibility of a witness.

      The victim testified that she had lied about her age to appellant and to

others.    This admission, however, does not demonstrate an inability to

understand the duty to tell the truth. Appellant has failed to overcome the



                                     - 10 -
J. A27007/14


presumption that R.B. was competent to testify beyond his assertion that

she lives in a “fantasy world.”     (Appellant’s brief at 34.)   However, trial

counsel had the opportunity to repeatedly challenge the victim’s credibility

on cross-examination and attempted to depict her as a dishonest girl who

fabricated the assault. Likewise, we find no merit to appellant’s suggestion

that R.B.’s memory was tainted by the police and caseworkers, citing to

Delbridge I, supra.      Delbridge I is distinguishable as it involved the

influence of authority figures over young children, ages six and four, who

made allegations of sexual abuse.              We will not disturb the court’s

determination.

      The third claim presented is whether the trial court erred by not

allowing the victim’s out-of-court written statement to be introduced at trial.

(Appellant’s brief at 38.) No relief is due.

      The day before trial, the Commonwealth filed a motion in limine

pursuant to the Rape Shield Law, 18 Pa.C.S.A. § 3104, to prohibit appellant

from using R.B.’s written statements to CYS and to the police which

contained the victim’s admission that she was having sex with older men

when they did not know her age. In the statements, R.B. averred that she

would lie to her friend K. about her age, and K. would unknowingly confirm

her age to men. Appellant sought to introduce these statements to show the

victim had acted in conformity in the present case as she had in the past.




                                     - 11 -
J. A27007/14


Appellant argued that the word “relationship” could be substituted for “sex”

so the victim’s scheme could be brought before the jury.

     The court ruled the probative value was not outweighed by the

prejudice the victim would receive by her sexual past coming into evidence.

The motion was granted and the statements were not to be admitted. The

trial court ruled, however, that appellant could question R.B. about lying to

others, lying to men, and lying about her age. Appellant could not ask her

about lying to older men to have sex with them, as such questioning would

violate the Rape Shield Law.

     We find no error in the trial court’s order prohibiting the defense from

impeaching R.B.’s credibility using her past sexual history. Appellant sought

to introduce R.B’s prior written statements admitting she had previously

engaged in sex with men who did not know her age in an attempt to show

she acted in conformity with appellant as she had in the past.     Appellant

cites Pa.R.E. 404, which states, “in a criminal case, subject to limitations

imposed by statute, evidence of a pertinent trait of character of the alleged

victim is admissible when offered by the accused, or by the prosecution to

rebut the same.”

     However, as the trial court notes, appellant overlooks the limitation of

the Rape Shield Law.     Under Section 3104, “[e]vidence of the specific

instances of the alleged victim’s past sexual conduct . . . shall not be

admissible in prosecution . . . except evidence of the alleged victim’s past



                                   - 12 -
J. A27007/14


sexual conduct with the defendant where consent of the alleged victim is at

issue and such evidence is otherwise admissible pursuant to the rules of

evidence.”

     Here, none of the evidence appellant sought to introduce involved

evidence of R.B.’s sexual conduct with appellant.    Evidence of past sexual

conduct by the victim with third persons is not admissible for any purpose;

such evidence has been determined to be of little relevance to the issue of

consent between the victim and a defendant who has not personally

engaged in prior sexual conduct with the victim. Commonwealth v. Dear,

492 A.2d 714, 718 (Pa.Super. 1985). R.B.’s sexual past has no bearing on

the veracity of her allegations against appellant.   In Commonwealth v.

Beltz, 829 A.2d 680, 684 (Pa.Super. 2003), we determined that a rape

victim’s prior sexual conduct with another man besides defendant was

inadmissible because it was not “of a nature to negate the intercourse

between the victim and appellant.” The fact that R.B. may have lied to other

men and engaged in sexual activity is not dispositive of the sexual

interaction between appellant and R.B.

     Further, as the Commonwealth points out, “appellant was not without

the benefit of having the jury know that the victim lied regarding her age.

Victim’s credibility was adequately brought before the jury without the

prejudicial effect of having her sexual history explored.” (Commonwealth’s

brief at 30-31.)   By R.B.’s own admission, she repeatedly lied to others



                                   - 13 -
J. A27007/14


about her age. The trial court properly granted the Commonwealth’s motion

in limine.

     Next, appellant claims that the ten-year mandatory sentence pursuant

to 42 Pa.C.S.A. § 9718 (relating to offenses against infant persons), for a

violation of 18 Pa.C.S.A. § 3123(a)(7), is cruel and unusual punishment in

violation of Article 1, Section 13 of the Pennsylvania Constitution.              We,

however, are mindful of the United States Supreme Court’s decision in

Alleyene,         U.S.      , 133 S.Ct. 2151 (2013), in which the Court

expressly held that any fact increasing the mandatory minimum sentence for

a crime is considered an element of the crime to be submitted to the fact-

finder and found beyond a reasonable doubt. Here, the court imposed two

mandatory minimum sentences under Section 9718 (governing sentences

for certain offenses committed against minor victims) for appellant’s

convictions of [IDSI] and aggravated indecent assault. (Docket #47.) We

are mindful that Alleyne was published after sentence was imposed in this

case, but it applies nevertheless. See Commonwealth v. Watley, 81 A.3d

108, 118 (Pa.Super. 2013) (en banc) (holding violations of Alleyne could

not be waived).

     Recently,    this   court   directly   addressed   the   constitutionality    of

Section 9718 in Commonwealth v. Wolfe,                    A.3d        , 2014 WL

7331915 (Pa.Super. 2014). In Wolfe, a jury convicted the defendant of sex

crimes committed against a minor victim, including two counts of IDSI. The



                                       - 14 -
J. A27007/14


court imposed ten-year mandatory minimum sentences for each IDSI

conviction, pursuant to         Section 9718(a)(1).          On appeal, this court

emphasized     that   Section     9718   “contains     the   same   format”   as   the

unconstitutional statues at issue in Commonwealth v. Newman, 999 A.3d

86   (Pa.Super.   2014)    (en     banc)    (relying    on    Alleyne   and   holding

Section 9712 is unconstitutional as it “permits the trial court, as opposed to

the jury, to increase a defendant’s minimum sentence based upon a

preponderance of the evidence that the defendant was dealing drugs and

possessed a firearm, or that a firearm was in close proximity to the drugs”),

and Commonwealth v. Valentine, 101 A.3d 801 (Pa.Super. 2014)

(involving appeal of sentence arising from jury trial; extending logic of

Alleyne and Newman to Sections 42 Pa.C.S.A. §§ 9712, 9713 and holding

those sections are likewise unconstitutional insofar as they permit automatic

increase of defendant’s sentence based on preponderance of evidence

standard). Id. at *5. Consequently, the Wolfe court held Section 9718 is

also facially unconstitutional.

      The Wolfe court noted:

             We recognize that this specific case is unique insofar
             that the additional fact triggering the mandatory
             sentence is also contained as an element within the
             subsection of the IDSI statute under which [the
             defendant] was convicted. Therefore, in order to
             convict Appellant of IDSI, the Commonwealth was
             already required to prove beyond a reasonable doubt
             that the victim was less than 16 years old.




                                         - 15 -
J. A27007/14


            However, we are not concerned with Appellant's
            conviction in this appeal, only the imposition of the
            mandatory minimum sentence.

            ....

            [I]n this case, although the jury was required to find
            that the victim was less than 16 years of age in
            order to convict Appellant, we cannot ignore the
            binding precedent from an en banc decision of this
            Court. Newman stands for the proposition that
            mandatory       minimum      sentence   statutes     in
            Pennsylvania of this format are void in their entirety.
            Newman,        supra;   Valentine,    supra.        As
            Section 9718 is indistinguishable from the statutes
            struck down in Newman and Valentine, we are
            constrained to conclude that Section 9718 is also
            facially void. As a result, we conclude the trial court
            erred in imposing the ten-year mandatory minimum.

Id. at *5-6 (internal citations omitted).

      Herein, at the sentencing hearing, the court applied Section 9718.

Based on the cases cited, we vacate and remand for resentencing.

      The next issue presented purports to challenge the sufficiency of the

evidence and claims the verdict was against the weight of the evidence. We

would affirm the sufficiency of the evidence claim based on the trial court’s

opinion. (Trial court memorandum, 1/31/13 at 6-8.)

      Our standard of review concerning the weight of the evidence is as

follows.

            Appellate review of a weight claim is a review of the
            exercise of discretion, not of the underlying question
            of whether the verdict is against the weight of the
            evidence. Because the trial judge has had the
            opportunity to hear and see the evidence presented,
            an appellate court will give the gravest consideration


                                     - 16 -
J. A27007/14


            to the findings and reasons advanced by the trial
            judge when reviewing a trial court’s determination
            that the verdict is against the weight of the
            evidence. One of the least assailable reasons for
            granting or denying a new trial is the lower court’s
            conviction that the verdict was or was not against
            the weight of the evidence and that a new trial
            should be granted in the interest of justice.

                    This does not mean that the exercise of
            discretion by the trial court in granting or denying a
            motion for a new trial based on a challenge to the
            weight of the evidence is unfettered. In describing
            the limits of a trial court’s discretion, we have
            explained[,] [t]he term “discretion” imports the
            exercise of judgment, wisdom and skill so as to
            reach a dispassionate conclusion within the
            framework of the law, and is not exercised for the
            purpose of giving effect to the will of the judge.
            Discretion must be exercised on the foundation of
            reason,     as   opposed    to    prejudice,  personal
            motivations, caprice or arbitrary actions. Discretion
            is abused where the course pursued represents not
            merely an error of judgment, but where the
            judgment is manifestly unreasonable or where the
            law is not applied or where the record shows that the
            action is a result of partiality, prejudice, bias or
            ill-will.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis

omitted) (citations omitted).

      Instantly, appellant’s argument focuses on the fact that the victim lied

to appellant about her age.      Appellant cites evidence favorable to his

position. For example, appellant directs our attention to R.B. not being able

to identify what specific tattoos were on appellant’s body, not knowing what

a circumcised penis is, and the fact that appellant was not an identified

sperm contributor in the underwear tested.     As the Commonwealth notes,


                                    - 17 -
J. A27007/14


the jury was aware of each of these factors and aware of appellant’s version

of the events.     While appellant may articulate a plausible alternative

scenario, such a claim is dependent on the credibility of the witnesses,

which, as stated, is within the sole province of the jury. Thus, we discern no

abuse of discretion by the trial court in denying appellant’s challenge to the

weight of the evidence.

      In his final question, appellant suggests that the Commonwealth

purposefully failed to timely disclose exculpatory evidence, the DNA test

results from R.B.’s underwear, which forced appellant to give up his

constitutional right to a speedy trial and waive his Rule 600 speedy trial

rights. Appellant’s argument is illogical as he was brought to trial well within

the 365-day period. Pa.R.Crim.P. 600(A)(2)(a). The criminal complaint was

filed August 12, 2011, and appellant’s trial began 283 days later on May 21,

2012. No relief is due.

      Accordingly, we affirm appellant’s convictions, but we vacate the

judgment of sentence and remand for resentencing without imposition of

mandatory minimum sentences.

      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction relinquished.




                                     - 18 -
J. A27007/14

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/17/2015




                          - 19 -
                                                                                 Circulated 02/27/2015 12:44 PM




      IN THE COURT OF COMMON PLEAS OF GREENE COUNTY, PENNSYLVANIA

COMMONWEALTH OF PENNSYLVANIA

           vs.                                                 Nos. 485, 487, Criminal 20 11

LEELAND R. BARNHART,
               Defendant.

                                              .
                                           MEMORANDUM


           Defendant, LecJand Barnhart. has filed Post-TriaJ Motions asking Hl0t we declare;l

"mistrial" or order another appropriate remedy.

           nle charges against DeJenoonl arose out of events in the summer of 20 J 1. On July 25,

20 II , Ihe victim, R.B. Cd/olb: 1011 &195) lett the family home in Carmichaels and moved in with

Defendanl (dlo/b: 51] 31976). Her parcnts did not know where she was and l:Isked her friend K. if

she knew her whereabouts. K said she thought R.B. might be at "Lee's house", Rn:s father

went to DefeudaJlI's mobile home and iJsked if he knew when~ his daughter was. Defendant srud

she was not there. R.B . IS father told Defendant tna1 R.B . was on ly IS. R.B.·s parents made niers

and posled them around the neighborhood . TI1CY inform ed the policc, the district aHome), and

Greene County Children and Youth Services (CYS). At some point. the parents got a phone call

from a runaway ho(ljne infomling them thaI R.l3. had caIJed and asked the hOliine to tell her

parents she was safe and in good health. After abou t nine day!;, CYS located R.B. at Defendant's

home. More precisdy, a caseworker knocked on Defendant 's door and talked to him . After about

45 minutes of conversation, Defendant admith::d that R.B. was in the place and brought her out.

The caseworker infotmed the police that R.B. had been found and then took her home to ber
parents.


                                                   5
                                                                                   Circulated 02/27/2015 12:44 PM




        After police and CYS personnel interviewed RB., Defendant was charged with

Involuntary Deviate Sexual Intcrcourse, Sexual Assault, Aggravatcd [ndecent Assault and other

sexudl oiTenses. Of great signiflc;Ulce in this case is the fact that at the time of these events R.B.

was 15 years o ld. She would not bc 16 lIntil the following OClober. Al a separate number,

Defendant was charged with Concealing the Whereabouts of a Child, lnterfering with the

Custody of ii Child and related offenses. The two nllmbers were joined for trial.

        Ancr a. four day trial in May of2012, the jury rendered a verdict orguilty on all COllnts A

presentcnce investigation was prepared and on October 12, 2012, Defendant was sentenced to a

total sentence of 10 and   ~   to 21 years, including the mandatory 10 year sentence required by 42

Pa. C.S.A. § 9718(a),

       Defendant filed timely post-maJ motions and a supporting brief. The Commonwealth

responded and wc heard ora} argument We will consider Defendant's issues individually.

                                        Sufficiency of Evidence

       As noted above there were two sets of charges brought against Delcndanl, the sexual

offcnses and the interference with custody offenses. R.B. testified thllt she went to Defendant's

mobile home on or about July 25, 2011, and stayed there, more or less continuously, until she left

with the CYS caseworker on August 2. 2011. The only significant intcrruption in her stay was

when she and Defendant weniio a mOlel in Uniontown for two days. tDefendant says he took

R.B. to the motel and she stayed there alone) .

       According to R.B., she met Defendant through her friend K. and after spending some

time with him over a period of days or weeks snuck out of her house on two occasions during the

night and visited Defendant (they only lived a few block apart) . During these nighttime visits,

tney had sex. including oral sex . According to Defendant, he believed at that time that R.B. was

                                                   6
                                                                                  Circulated 02/27/2015 12:44 PM




18, because that is how old she said she was and he believed her. On the morning of J uJy 25,

2011, R.B .'s father appeared at Defendant's home asking her whereabouts. Only then did

Defendant learn that she was only 15. R.B. 's father left and shol1ly thereafter R. B. appeared at

the house, with luggage. She Ihen admilted to Defendant that she was only 15. Regardless.

Defendant let her move in. Although they were together for the next nine days, sa id Defendant.

except when he went to wo rk, or when she stayed by herself at the motel in Uniontown, they did

not have sex. According to R.B ., Ihey had sex a lot. Whatever physical evidence existed, and it

was not much, was inconclusive.

        In considering a sufficiency of the evidence claim, a Court must delennine whether the

ev idence and all reasonab le inferences therefrom received or viewed in the light most favomble

to the verdict winner were sufficient to enable the fact finder to find every element orthe crime

charged beyond a reasonable doubt. Commonwealth v, Kling, 73 I A.2d 145 (Pa. Super 1999).

Here, it seems to be Defendant's position lhat because R.B. admitted telling K . and others at

various times thai she was either 17 or 18, her testimony that she and Defendant had sex after

July 25, 2011, was literally incredible; that no jury could possibly find her believable. This, of

course, is nol the law. A fact finder is free to believe some, all or none of a witness's testimony.

even when a witness admits to having previously lied. Commonwealth v. Parente, 133 A.2d 561,

(Pa. Super 1957); Commonwealth v. Hayes, 460 A.2d 791 (Pa. Super 1983). The testimony of

the victim, standing alone, is sufficienllo convict in sex offense prosecutions. Commonwealth v.

Purcell, 589 A.2d 217 (Po. Super 1991).

       Defendant also argues that the evidence showed lhat R.B. was rree to leave at any lime

and therefore he cou ld not be guilty of concea ling [he whereabouts of a child and interfering with

the custody of a child. Defendant misunderstands what he is charged with. He was not charged

                                                 7
                                                                                      Circulated 02/27/2015 12:44 PM




with kidnapping or unla...vful restraint or false imprisonment, all of which have an element of

force or compulsion. The offenses he was charged with contained no such e lement.



                                          Weight of the Evidence

         Defendant also contends that the jury's verdict was against the weight of the evidence. A

motion for a new trial on grounds that the verdict is contrary to lhe weight oHhe evidence

concedes that there is sufficient evidence to sustain the verdict. It is an appeal to the trial court to

award   rt   new trial because the jury's verdict is so contrary to the evidence as to shock one's se-nse

of justice and make the award of a new tria l necessary so that right might be given, another

chance to prevail. Commonwealth v. Hodge, 658 k2d 386 (Pa. Supcr 1995).
         Here, both the Defendant and the witness agree that tbey had passionate sex, including

oral sex, on two occasions before July 25, 2011. Defendant testified lhal she told K and

Defendant that she was 17. Defendant testi fied that she told him she was 18. If either tact were

true, Defendant would not be subject to the sentence mandated by 42 Pa. C.S.A. §9718(a).

According to Defendant, he first teamed R.B.'s true age when her [ather appeared at his door

asking her whereabouts. Shortly thereafter RB. showed up and moved in tor approximately nine

days. Defendant says they lived together as brother and sister; R.B. say s they had sex a lot.

including 0l'a1 sex. The isslle for the jury was entirely one of credibility,

         Defendant's argument is that R.B. 's initial lie about her age renders her incredible as a

matter of law about everything e lse. We disagree . It is the core function of a jury to determine

credibilily, espec ially in a he said/she said sce nario; The jury having made its unanimou s

decision, it would be an abuse of discretion fo r the trial court to ovelTule it.



                                                     8
                                                                                    Circulated 02/27/2015 12:44 PM




                                     Amendment or Information

        The inJollllation as originally filed accused DefendaJll of various .>cxual offenses with

R.B.. a girl under the age of 16, between JuJy 7 and Augusl2, 2011. One of the clements of these
offenses is the victim's age. A defendant may ri!;e as a defense that he reasonably thought Ihal a

ehild was at leas t 16. 18 Pa, C,S,A. §3102. During the-course of the trial it became appa rent that

the Commonwealth could not establish Defenda.nt 's knowledge of R.B. ' s true age before July 25 ,

20 11, when her fathe r spoke to Defendant. It then moved to amend the infonnation to charge

Defendant on ly with events tilal occurred on or aner July 25, 2011.

        Pa, R. Crim, p, 564 provides thnl the :'courl may allow an infonnation to be omended

when there is a defect in .. , Ihe datt! changed, pl'Ovided the infonnation as amended an additional

or different offense", Here. the amcndment obviously brought no new charges and changed            110

elements of anything Defendant was charged with, Sec Commonweal th v. J,F .. 800 A.2d 942

(ra. Super 2002). It reduced Ihe time period Ihal he had to defend . Had the (ri.1 proceeded wilh

the original dates in the into rm ation, testimony may have been insufficient to show violations of

18 Pa. C.S.A. §3123(a)(7) before July 25. but it would have been suJlieienl and relevanl to

establish violations of 18 PR_C.S.A. §6318(o.)(l), Unlawful Contact with a Minor. and

§630 I (a)( 1)(i), COITupti on of a Minor.

        Defendant argues that he wasprejudieed because he had to prepare a defense for the

period of July 7 to July 25, 20 I I, and then did not have to usc it. This is not the ki nd of prejudice

that wou ld entitle a defendant to relief.

                                             Change of Judges

       Next, Defendant argues that he was prejudiced because the motion judge and the trial

judge were not th e same person. We are aware of no rule, stafUte or authority which requires that

                                                    9
                                                                                 Circulated 02/27/2015 12:44 PM




a judge who hears a pretrial motion must then preside over the trial.

       If Defendant's purpose on this issue is to usk for reconsideration of Judge TOOlhman 's

order v",cating his earlier order directing R.Il to undergo a psychological examimilion, citing

Commonwealth v. Robinson , 5 A.2d 339 (Pa Super 2010), thal molion is too late and would be

denied even if it were not tn his brief Defendant incorrectly states "Robinson and it 's [sic}

progcny all address thc matter of expert witnesses testifying for the Commonwealth and

bolstering the victim s lsic) testimony and credibility". 1n fact Robinson attempted to call an

"expert in Ole field of human memory, perception and recall" to attack the reliability of the

victim's identi fic;ltion of Robinson. Defendant's argument here is thaI there should be separate

rules for the Commonwealth and Lhe defendant. We decline to accept that argument.

       Defendant argues lhal he should have had the benefit of a competency hearing to

ascertain whetb~r R.B. 's memory was tainted by the police, hcr parents and case workers. citing

Conunonwealth v. Delbridge, 855 A.2d 23 (Pa 2003). The Delbridge court considered the

question of whether taint is a subject properly explored in a competenr.;y hearing. It defined

"taint" as the implantation of false memories or distortion of nclltal memories by suggestive

interview techniques. The children in Delbridgc were ages 6 and 4 at the time of the alleged

abuse. The court observed: "The capacity of young children to testify has always been a concern

as their imm3turity can impact their ability to meet the Illlnima1 legal requirement of competency.

Common experience infonns us that children are. by their very essence, fanciful creatures who

have difficulty distinguishing fantasy from reality: who when asked a question want to give the

'right ' answer, the answer that pleases the interrogator; who arc subjeello repeat ideas placed in

their heads by others; and who have limited capacity for accurate memory". So it seems to be

Defendant's argument that R.B .. whom hc says he reasonably thought to be a young woman of

                                                 10
                                                                                  Circulated 02/27/2015 12:44 PM




18. a \voman for whom he bought cigarenes, is making up the part about sex with Defendant

from July 25 to August 2 , 2011. because she wanted to please the interrogators (her parents?

CYS?). This is not a case to cons ider the issue of taint.

       Every witness is presumed to be competent. Pa, R. E. 601, Commonwealth v. Do\,vling,

883 A.2d 570 (Pa 2005). 111e burden is on the objecting party to demons!"'te incompetency.

Evidence that a teenage girl lied about her agc is no evidence of incompetency. Defendant was

not entitJed to a competency hearing.



                                           ON A Evidence

       Certai n underwear belonging to R.B. was sent to the PSP Crime L3b in Greensburg far

DNA testing. The lab report was dated February 27, 2012. The DA sem to a copy to Defemlam

on March 9, 2012 (whjch was the same dale it was received). By that lime Defendant had

received a commitmen t to funds from the County (see Order of Februn.ry 8, 20 12) for his     OW11


DNA from I)efendant as we ll as two ot her males. Tbe Commonwealth ' s experl opined that

Defcndant's DNA in R,B's underwear was likely " non-spenn" DNA.

       Defendant comp lains thOl he was forced to waive his Rule 600 rights to a speedy trial in

order to obtain the benetit of the DNA ana lysis. Had he chosen, he could have gone ta tr ial with

no DNA evidence , which as it turned out is essentia lly what happened. What Defcndant seems to

be arguing is that ir the Commonwealth cannot produce a DNA report      10   sufficient time for a

defcnse expert to review it within six months oftilillg the complai nt, then a Defcndant wanted

the benefit of DNA ana lysis, he cannoi now complain thai it takes a long time to get it.

                                      R.R.'s Prior Statements
       Next, Defendant agai n argues thai R.B. 's admissions that she had on other oce-asion lied

                                                 11
                                                                                       Circulated 02/27/2015 12:44 PM




about her age and [hen had sex with olher men should have been presented to the jwy. He cites

and quotes Pa. R.E. 404 (a)(2)(i); " In a criminal case, subject to limi tations imposed by statute,

evidence of pertinent Irait of characte r of the a lleged victim is admissible' when offered by the

accused ... .. •·. Dt:fendanl overlooks the phrase, "subject lo limitations imJX>sed by stalute". In
cases like this there js a statute that specifically speaks   10   the situatjou. 18 Pa. e.S.A. §31 O4(a),

the Rape Shield Law. Courts mny simply not pcmlit an exploration ofa sex crime victim 's sexual

history .

                                         Mandatory Sentence

        finally. Defc::ndant argues that the len year mandatory sentence for a v iolation of 18 Pa.

C.S.A. §3123(a)(7) is enlel and unusual punishment. 111is issue has been previously presented 10

and rcjected by our Courts_ Commonwealth v_ Chm iel. 610 A.2d 1058 (pa Super 1992), appeal

denied 629 A.2d 1376, cen denied 11'1 S Ct 605, 126 L.Ed.2 569_

        There is no basis 10 grant Defendant a new trial.




                                                   12
                                                                                     Circulated 02/27/2015 12:44 PM




     IN THE COURT OF COMMON PLEAS OF GREENE COUNTY, PENNSYLVANIA
COMMONWEALTH OF PENNS YLV ANIA
       vs.                                                       Nos. 485, 487, Criminal 2011

LEELAND R. BARNHART,
                       Defendant.

                                                ORDER
       AND NOW, this 12th day OfOciober2012, the Defendant, Leeland Barnhart, having been

convicted by a jury or his peers on May 25, 2012, the Court sentences the Defendant as follows:

       At No. 487, Criminal Sessions, 2011, for the charge of Involuntary Deviate Sexual

Intercourse, in violation of Section 3123(a)(7) of the Pennsylvania Crimes Code, the Court

sentences the Defendant to a term of not less than lcn (10) years nor more than twenty (20) years

in the State Correctional System, as required by 42 Pa. C.S.A. §9718(a). For the charge of

Aggravated fndecenl Assault. in violation of Section 3125(a) of the Pennsylvania Cr imes Code,

the Court sentences the Defendant   (0   a tel111 of not less than fi ve (5) years nor more than (10)

years, as required by 42 Pa. C.S.A. §9718(a), with this sentence to run concurrent with the

sentence for the viola ti on orJI23(a)(7). For the charge ofStaiutory Sex ual Assault. in violation

of Section 3122.1 of the Pennsylvania Crimes Code. the Court sentences the Defendant to a tenn

of not less than one (1) year nor more than two (2) years, to be served concurrent with his

sentence for violation of Section 3123(a)(7), For the charge o f Unlawful Contact with a Minor, in

violation of Section 6318 of the Pennsylvania Crimes Code, the Court se ntences the Defendant to

a teml afnot less than four (4) years nor more than eight (8) years. with Ihis sentence to run

concurrent with the sentence far the violation of3123(a)(7). For the charge afCorruption of

Minors ofa Sexual Nature, in violation of Section 6301(a)(I)(i) of the Pennsylvania Crimes

                                                   i3
                                                                                            Circulated 02/27/2015 12:44 PM




Code. lhc Court sentences the Defcndant to a term of not less than             (inC   (I) year nor more than

two (2) years. to be served concurrent with his sentence for violation of Section 3123(0)(7). For

the charge of Indecent Assault of a Person under Age 18, in violation of Section J 126(a)(8) of the

Pennsylvania Crimes Code, the Court sentences the Defendant to term of not less than three (3)
                                                                                                               .
months nor more than twelve (12) mO!lths,           10   be served concurrent \...·ith his sentence for violation

or Section J J 23(0)(7).

          At No. 485, Crimin<Ji    Sessiolls~   20 II ; for the charge of Conccaling the whcreabouts of a

Child, in violation ofSeetion 2909(a) ofthc Pennsylvania Crimt!s Code, lhe Court sentences the

Defendant to a tenn of not less than three (3) months nor more than twelve ( 12) months. with thi s

sentence to be served consecutive to his sentence lor the violation of 3123(a)(7) at No. 487,

Criminal Sessions, 20 I I. For the charge of Interference with the Custod y of 0 Child, in violat ion

of Section 2904(a) of the Pennsylvania Crimes Code, 'l'he Court sentences the Defendant to a

term of no I less than three (3) months nor more than twelve ( J2) months, with this sentence               10   be
served concurrent with his sentence ror violation of Section 2909(a). tbr the charge of Corruption

of Minors, in violation of Section 630 I (a)( 1)(ii) of the Pennsylvania Crimes Code, the Court

sentences the Ddtmdant to a term of not less lhan six (6) months nor more than twelve (12)

months, with Ihis sentence to be served concurrent with his sentence for violation of Section

2909(a). For the charge ofLllring a Child in a Motor Vehicle, COlTuptioo o/" Minors, in violation

ofScct ion 2910 of the Pennsylvania Crimes Code, the Court sentences the Defendant to a term of

1l0[   less Ihan six (6) months nor more than twelve (12) month s, wilh this sentence to he served

consecutive to his sentence for violation of3123(a)(7) al No. 487, Criminal Sessions, 2011, and

concurrent    10   his sentences at No . 485. Crimillal Sessions, 201 J. For the Charge of Obstructing

the Adminislralion of Law and law Enforcement, in violation of Section 510 I of the

                                                          14
                                                                                            Circulated 02/27/2015 12:44 PM




Pennsylvania Crimes Code, the Court sentences the Defendant to a telm of not less than one (1)

months nor more than twelve (12) months, with this sentence to be served concurrent with his

sentence for violation of Section 2909(a) and consecutive      [0   his sentence for violation of

31 23(a)(7) at No. 487 , Criminal Sessions, 2011. Tlus is a total sentence at Nos. 485 and 487,

Criminal Sessions. 20 I I of not less than ten and one-half (I 0-1,12.) years   n.Ol""   more than twenty-one

(21 ) years in the custody of the Department of Corrections. The Defendant sha ll pay all the cos ts

associated with this proceeding and further, shall receive credit for lime served.

            Further. the court reporter is DIRECTED to prepare a transcrip t of this proceeding and

the clerk is DIRECTED to send a copy orlhe I>resenttncc rnvestigation to the Department of

Corrections,

            The Defendant is now remanded to lhe cuswdy oC the sheri ff pending disposition of his
case   a(   No. 486 , Criminal Sessions, 2011 .

AHSST:                                                   BY THE COURT:

Sherry L. Wise                                           William R. NaHtz


CLERK OF COURTS                                          PRESlDENT JUDGE




                                                   15
