J. A17036/19


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :    IN THE SUPERIOR COURT OF
                                          :          PENNSYLVANIA
                   v.                     :
                                          :
SOPHA DOK,                                :         No. 1700 EDA 2018
                                          :
                        Appellant         :


             Appeal from the Judgment of Sentence May 4, 2018
            in the Court of Common Pleas of Montgomery County
              Criminal Division at No. CP-46-CR-0008835-2016


BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.


MEMORANDUM BY FORD ELLIOTT, P.J.E.:                FILED OCTOBER 21, 2019

      Sopha Dok appeals from the May 4, 2018 judgment of sentence entered

by the Court of Common Pleas of Montgomery County following his conviction

of rape of a child, statutory sexual assault, endangering the welfare of a child,

and corruption of a minor.1 After careful review, we affirm.

      The trial court set forth the following factual and procedural history:

            [The victim] was in elementary school, living with her
            mother, [J.S.], when [appellant] came to live with
            them. [Appellant] and [J.S.] went on to have two
            children together. The five of them lived as a family.

            The abuse began when [the victim] was a middle
            school student. It spanned years and resulted in a
            pregnancy when [the victim] was 13 years of age.
            [The victim] underwent an abortion in September of
            2010, and until November 8, 2016, it remained a

1 18 Pa.C.S.A. §§ 3121(a)(2) and (c), 3122.1(a), 4304(a), and 6301(a)(1),
respectively.
J. A17036/19


          secret that the pregnancy was the product of
          [appellant’s] abuse.     At that time, [the victim]
          revealed this secret to her mother. [J.S.] confronted
          [appellant] and went to [the] police to report the
          sexual abuse. An investigation ensued. [Appellant]
          was arrested and charged.

          [Appellant] proceeded to a three-day jury trial on
          January 22, 2018, at which the following facts were
          developed. [The victim] credibly testified that around
          the time she was in middle school, when she was 11,
          12, and 13, she was sexually abused by [appellant],
          her stepdad. [The victim] testified about the first time
          she was sexually abused by him. It was at night, while
          her two half-siblings were asleep and her mom was at
          work working the overnight shift. She recalled that
          she was downstairs on the living room couch, and
          although her memory of this first incident was dim,
          she remembered that [appellant] said something
          about his penis being referred to as a squid or
          octopus.       She    remembered      being    touched
          inappropriately, but she did not remember whether it
          was under or over her clothes.

          [The victim] testified that the sexual abuse occurred
          over a long period of time. [Appellant] told [the
          victim] that what they were doing was a secret and
          that if the secret came out that her mom would be
          unable to care for her and her siblings by herself. [The
          victim] believed this to be true. When [appellant]
          would touch her over her clothes he would touch her
          breasts, her buttocks and her vagina. She specifically
          recalled a time that [appellant] would not let her go
          out with her friends unless she performed oral sex on
          him.

          [The victim] testified about the time she was in middle
          school and had to have an abortion because of the
          sexual abuse. [The victim] explained that [appellant]
          had raped her, as he did on many occasions. The
          victim remembered this happened more than
          10 times. [Appellant] never did anything to protect
          against pregnancy. [The victim] detailed for the jury
          how when she became pregnant in middle school at


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          about age 13, by him, he was the one who broke the
          news of the pregnancy to her mother. He told [the
          victim’s] mother a fictitious story about some boy
          from Texas that [the victim] met on the playground
          and had sex with. [The victim’s] mother was furious
          with her. [The victim] ultimately had an abortion to
          terminate the pregnancy.

          From that time on, whenever [the victim] and her
          mother would have arguments, her mother would call
          her a “whore,” and other similar names. These
          arguments lasted until November 8, 2016 when [the
          victim] finally told her mother what really happened.

          Around the time she was pregnant, [the victim]
          confided in her best friend, [D.B.], who was also a
          13-year-old middle schooler.

          During her testimony, [the victim] credibly explained
          how all of these memories were difficult and painful to
          recall, and that a lot of it was blocked from her
          memory. She told the jury how it was difficult to be
          in court and testify.

          She also described the circumstances that gave rise
          to her recantation letter, dated May 1, 2017. At the
          time she was living with her grandmother, who
          connected her with an attorney.        [The victim’s]
          grandmother had made it clear before [the victim]
          began to live with her that she was going to associate
          herself with [appellant] and possibly attempt to keep
          him out of trouble. This fact was very hurtful to [the
          victim] how her grandmother would not be there for
          her when she had been raped.

          The letter began, “I [the victim] would like to recant
          and dismiss all information previously given to any
          authority figure . . . I would not like to proceed any
          further with this case, investigation. . . . . .” [The
          victim’s] grandmother was present when [the victim]
          wrote the letter.       Specifically, as to the word
          “recant[,”] [The victim’s grandmother looked it up in
          the dictionary. [The victim] really did not know what



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           the word meant. She did not mean to use that to
           mean that what happened was not true.

           Also to testify at trial was [J.S.], [the victim’s] mother,
           who verified that cover-story that [appellant] told her
           about [the victim’s] pregnancy, i.e., that [the victim]
           met a boy on the playground and that she brought
           him back to the house to have sex with him. It was a
           story that did not make sense to her. [J.S.] also
           testified about the argument [she] and [the victim]
           had that brought out the secret about the abuse.

           Next to testify was [D.B.], [the victim’s] best friend in
           middle school, [who] verified that [the victim] told her
           that it was [appellant] who got her pregnant when
           they were in eighth grade.

           The defense called on [P.S.], grandmother to
           [appellant’s] children, to testify as a character
           witness.    Through cross-examination the defense
           strategy was to challenge [the victim’s] credibility,
           and attempt to suggest that [the victim] made up
           these allegations.    The defense pointed to the
           recantation letter and suggested that [the victim]
           made up the allegations because it was during an
           argument between her and her mother that they came
           out.

           At the conclusion of the trial, [appellant] was
           convicted of the aforementioned charges.[2] He was
           sentenced on May 4, 2018 to an aggregate term of 10
           to 20 years’ imprisonment. A post-sentence motion
           was filed on May 11, 2018, which was never ruled on.
           On May 22, 2018, a notice of appeal was filed. A
           concise statement of errors complained of on appeal
           was ordered and after an extension was granted,
           [appellant complied.]


2The Commonwealth brought a total of 146 charges for various sexually based
offenses against appellant. Of those charges, the jury convicted appellant of
one count each of rape of a child, statutory sexual assault, endangering the
welfare of a child, and corruption of a minor.          The Commonwealth
nolle prossed the remaining charges.


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Trial court opinion, 11/15/18 at 1-5 (citations to the record and footnote

omitted). The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

      In its opinion, the trial court noted that appellant’s notice of appeal was

filed prematurely, as post-sentence motions were still pending before the trial

court. (See id. at 5 n.1.) Indeed, in cases where a trial court denies an

appellant’s post-sentence motion while an appeal which originated from a

premature notice of appeal is pending, this court will treat the premature

notice of appeal “as having been filed after entry of [an] order denying

post-sentence motions.”     Commonwealth v. Ratushny, 17 A.3d 1269,

1271 n.4 (Pa.Super. 2011); see also trial court opinion, 11/15/18 at 5 n.1.

      Here, as noted by the trial court, appellant’s post sentence motions were

denied by operation on November 7, 2018, while the instant appeal was still

pending before this court.     Accordingly, despite the premature notice of

appeal, this case is now properly before us, and we may review the merits.

      Appellant raises the following two issues for our review:

            1.     Does [a]ppellant’s conviction offend due
                   process    pursuant     to   the    holding  in
                   Commonwealth v. Devlin, 333 A.2d 888 (Pa.
                   1975)[,] requiring the vacation of the judgment
                   of [appellant’s] sentence?

            2.     Was the evidence insufficient as a matter of law
                   for the jury to convict [appellant] of Count 11
                   Rape of a Child (F1) 18 Pa.C.S.[A.] § 3121(a)(2)
                   and (c)?

Appellant’s brief at 2.




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J. A17036/19

      In his first issue on appeal, appellant contends that the trial court erred

when it denied appellant’s motion for judgment of acquittal on the grounds

that the Commonwealth failed to amend the bills of information to reflect the

dates of the offenses proven at trial, thereby violating his right to due process.

(Appellant’s brief at 21.) The Commonwealth argues that it “proved the dates

of abuse with sufficient specificity to satisfy due process,” and that appellant

is not entitled to relief. (Commonwealth’s brief at 7.)

      As this court has previously noted, “[a] motion for judgment of acquittal

challenges the sufficiency of the evidence to sustain a conviction on a

particular charge, and is granted only in cases in which the Commonwealth

has failed to carry its burden regarding that charge.”      Commonwealth v.

Emanuel, 86 A.3d 892, 894 (Pa.Super. 2014), appeal denied, 95 A.3d 276

(Pa. 2014), quoting Commonwealth v. Foster, 33 A.3d 632, 634-635

(Pa.Super. 2011).

      In his argument, appellant relies upon our supreme court’s decision in

Devlin, supra. In Devlin, the Commonwealth charged the defendant with

sodomy, alleging that the crime took place sometime between February of

1971 and April of 1972.3 Id. at 889. The defendant was convicted of sodomy

and our supreme court reversed the judgment of sentence, holding that the

prospect of defending a “charge of conduct occurring anywhere within a


3The victim was a 22-year-old man with intellectual disabilities who had the
mental capacity of a first or second grade child and the emotional capacity of
an even younger child. Id. at 889.


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fourteen-month period was . . . a fundamentally unfair burden.” Id. at 891

(footnote omitted).    The court recognized that while the Commonwealth

established that the crime was committed within the statutory period of

limitations, “the date of the commission of the offense must be ‘fixed with

reasonable certainty.’” Id. at 890, citing Commonwealth v. Levy, 23 A.2d

97   (Pa.Super.    1941).    Accordingly,   the   court   concluded   that   the

Commonwealth’s 14-month time frame for the commission of the crime failed

to meet the “‘sufficient particularity standard of Levy,” and to “hold otherwise

would violate the notions of fundamental fairness embedded in our legal

process.” Id. at 890-891.

      As noted by the Commonwealth, however, this court has stated the

following regarding Devlin claims involving child victims:

            We conclude that for purposes of a Devlin claim, the
            Commonwealth must be allowed a reasonable
            measure of flexibility when faced with the special
            difficulties involved in ascertaining the date of an
            assault upon a young child. See Commonwealth v.
            Fanelli, [547 A.2d 1201, 1203 (Pa.Super. 1988)
            (en banc)]; Commonwealth v. Niemitz, [] 422
            A.2d 1369 ([Pa.Super.] 1980). On the other hand, in
            order to ensure a fair trial for the defendant, the
            Commonwealth        should   conduct    a   thorough
            examination and come forward with any evidence
            which indicates when the alleged crime is most likely
            to have taken place.

Commonwealth v. Groff, 548 A.2d 1237, 1241 (Pa.Super. 1988). This court

has stated that:

            “the Commonwealth must be afforded broad latitude
            when attempting to fix the date of offenses which


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           involve a continuous course of criminal conduct.”
           Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990
           (Pa.Super. 2007) (quoting Commonwealth v. Groff,
           [] 548 A.2d 1237, 1242 ([Pa.Super.] 1988)). This is
           especially true when the case involves sexual offenses
           against a child victim. Id.

Commonwealth v. Brooks, 7 A.3d 852, 858 (Pa.Super. 2010), appeal

denied, 21 A.3d 1189 (Pa. 2011).

     We have further stated that,

           “due process is not reducible to a mathematical
           formula,” and the Commonwealth does not always
           need to prove a specific date of an alleged crime.
           [Devlin, 333 A.2d at 892.] . . . Permissible leeway
           regarding the date provided varies with, inter alia,
           the nature of the crime and the rights of the accused.
           See Pa.R.Crim.P. 560(B)(3), stating that it shall be
           sufficient for the Commonwealth to provide in the
           information, if the precise date of an offense is not
           known, an allegation that the offense was committed
           on or about any date within the period fixed by the
           statute of limitations.

Commonwealth v. Riggle, 119 A.3d 1058, 1069-1070 (Pa.Super. 2015),

quoting Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa.Super. 2006),

appeal denied, 961 A.2d 858 (Pa. 2008).

     Here, the Commonwealth alleged that appellant committed the offenses

for which he was charged “on or about Monday, January 1, 2007,” which falls




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within the statute of limitations.4   As noted by the trial court, “[t]he facts

developed at trial put the abuse spanning from 2008 to 2010[.]” (Trial court

opinion, 11/15/18 at 22.)     Accordingly, because this case involved a child

victim where the precise dates of the offenses were not known, we find that

pursuant to our case law, the Commonwealth met its burden in establishing

the dates of the offenses. We further find that appellant’s due process rights

were not violated, and his first issue is, therefore, without merit.

      In his second issue, appellant argues that the Commonwealth failed to

present sufficient evidence to warrant a conviction of rape of a child.

Specifically, appellant avers that the Commonwealth failed to prove beyond a

reasonable doubt that appellant engaged in either oral sex or vaginal

intercourse with C.S. when she was 12 years of age or younger. (Appellant’s

brief at 37.) The Commonwealth contends that appellant waived this issue on

appeal because he failed to include it in his Rule 1925(b) statement of errors

complained of on appeal. (Commonwealth’s brief at 14-15.) In his argument,

appellant relies upon our supreme court’s decision in Commonwealth v.

Silver, 452 A.2d 1328, 1333 (Pa. 1982), in which our supreme court described

Rule 1925(b)’s waiver provision as “clearly discretionary,” stating that waiver




4The statute of limitations requires that prosecution for major sexual offenses
commence within 12 years of the time the act is alleged to have been
committed. 42 Pa.C.S.A. § 5552(b.1). Moreover, the statute of limitations in
cases in which sexually based offenses are alleged to have been committed
against a minor is the date the minor reaches 50 years of age. 42 Pa.C.S.A.
§ 5552(c)(3).


                                      -9-
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is only properly invoked, “where . . . omission from a statement of issues

raised on appeal defeats effective appellate review.” (See appellant’s reply

brief at 9.)

      Appellant’s reliance on Silver is misplaced. The Pennsylvania Rules of

Appellate Procedure state that issues not raised in a Rule 1925(b) statement

are waived. Pa.R.A.P. 1925(b)(4)(vii). Indeed, our supreme court has also

stated that, “[a]ny issues not raised in a 1925(b) statement will be deemed

waived.” Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see also

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005).                Moreover,

Pennsylvania courts have consistently held that for sufficiency of the evidence

challenges, an appellant’s Rule 1925(b) statement “needs to specify the

element    or   elements   upon    which      the   evidence   was   insufficient.”

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.Super. 2015), quoting

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008)

(citation omitted). Failure to do so results in waiver of the issue on appeal.

Id.

      Here, appellant admits that he did not include a sufficiency of the

evidence issue in his Rule 1925(b) statement. (Appellant’s reply brief at 9.)

Accordingly, appellant’s sufficiency of the evidence issue is waived on appeal.

      Judgment of sentence affirmed.

      Panella, P.J. joins this Memorandum.

      Olson, J. concurs in the result.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary




Date: 10/21/19




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