J-A22042-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    DONALD CONKLIN IV,                         :
                                               :
                       Appellant               :   No. 3957 EDA 2017

            Appeal from the Judgment of Sentence October 24, 2017
      In the Court of Common Pleas of Monroe County Criminal Division at
                        No(s): CP-45-CR-0001340-2017


BEFORE:      BENDER, P.J.E., NICHOLS, J., and STEVENS*, P.J.E.

MEMORANDUM BY STEVENS, P.J.E.:                      FILED DECEMBER 20, 2018

        Appellant, Donald Conklin IV, appeals from the judgment of sentence

entered in the Court of Common Pleas of Monroe County, after a jury convicted

him on one count of corruption of a minor.1 Herein, Appellant contends the

court erred by allowing evidence and testimony regarding sexual contact

between Appellant and the victim when the criminal complaint and preliminary

hearing referenced only acts involving marijuana use between the two.

Appellant also asserts the court abused its sentencing discretion by ordering

him to undergo a sexual offender assessment where the accusations

supporting the charge of corruption of a minor involved only marijuana use.

We affirm.


____________________________________________


1   18 Pa.C.S.A. § 6301(a)(1)(i).


____________________________________
* Former Justice specially assigned to the Superior Court.
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        On June 2, 2017, Officer John Bohrman of the Pocono Mountain Regional

Police filed a Criminal Complaint charging 22 year-old Appellant with one count

of corruption of minors2 for acts occurring “between 12/1/2016 and

3/27/2017.” Criminal Complaint, filed 6/2/17, at 1. Under the section calling

for a “brief summary of the facts sufficient to advise the defendant of the

nature of the offense(s) charged,” Officer Bohrman indicated that Appellant,

being 18 years of age or older, did corrupt or tend to corrupt the morals of a

16 year-old minor by smoking marijuana with her. Id. at 3.

        On Page 4 of the Complaint, however, Officer Bohrman set forth his

Affidavit of Probable Cause wherein he documented allegations of Appellant’s

marijuana use and sexual contact with the minor victim.        Specifically, the

Affidavit begins by relating an email sent to authorities by Appellant’s former

cellmate at the Monroe County Correctional Facility. According to the email,

Appellant confided in the cellmate that he had been having sex with a 15 year-

old girl who lived in the Pocono Farms East area.

        The email prompted an investigation into Appellant’s relationship with

the victim. Officer Bohrman personally interviewed the cellmate, who stood

by his email and further alleged Appellant claimed to love the girl and intended

on marrying her. Id. at 4.

        Officer Bohrman interviewed the alleged minor victim and her mother,

and the victim confirmed meeting Appellant around December of 2016, when

____________________________________________


2   18 Pa.C.S.A. § 6301(a)(1).

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he would “come over to her house a lot to hang with her brothers.” Id. She

initially denied any sexual contact between herself and Appellant, but

retracted her denial, however, in a later interview conducted at the Children’s

Advocacy Center. Specifically, she alleged that sometime in January of 2017,

Appellant and she were in the garage smoking a cigarette when Appellant

pushed her against a refrigerator and forcibly kissed her while holding her

waist and running his fingers through her hair. Id. at 4-5.

      The victim also discussed how Appellant would often bring marijuana

with him—about 20 times, she estimated—and they would smoke it together.

She claimed she would get “really high and her mind would be fogged up.”

Id. at 5. She also said she heard that Appellant had videotaped her during

one of those highs, but she did not have a memory of that.

      The victim’s step-brother told Officer Bohrman that Appellant used a cell

phone to record a video of himself having sex with the victim while she

appeared to be asleep. He claimed to have caught a glimpse of the video

while Appellant was privately viewing it in his company, but he said Appellant

quickly turned it off upon realizing he could see it. Id. According to the step-

brother, Appellant subsequently discarded the phone. Id.

      Appellant agreed to talk to Officer Bohrman and waived his Miranda

rights. Id. at 4. He admitted knowing the victim but refused to say whether

he had sex with her, answering “I’m no [sic] at liberty to disclose that.” Id.

He refused to answer subsequent questions, but when he was told the victim’s

mother declared he was not allowed to see the victim anymore, he disputed

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the officer’s right to relay that message and said he would need mother’s

statement in writing. Id.

      On June 27, 2017, the Monroe County District Attorney’s Office filed an

Information charging Appellant with one count of Corruption of Minors, a first-

degree misdemeanor. The Information excluded specific references to any

particular act and, instead, offered only the verbatim, elemental language

contained in Section 6301(a)(1)(i):

      Between December 1, 2016 and March 27, 2017 in the County of
      Monroe, Coolbaugh Township, Pennsylvania, the defendant (1)(i)
      [sic] Except as provided in subparagraph (ii), whoever, being of
      the age of 18 years and upwards, by any act corrupts or tends to
      corrupt the morals of any minor less than 18 years of age, or who
      aids, abets, entices or encourages any such minor in the
      commission of any crime, or who knowingly assists or encourages
      such minor in violating his or her parole or any order of court,
      commits a misdemeanor of the first degree.

Information, filed 6/27/18.

      On September 19, 2017, Appellant filed a counseled Motion in Limine

seeking preclusion of evidence and testimony relating to accusations in the

affidavit of probable cause that Appellant “may have had sexual intercourse

at some point with the alleged victim, who was sixteen (16) years of age at

the time.” Motion in Limine, filed 9/19/17. “No evidence has been presented

to support this claim,” Appellant averred, “nor, until very recently, has the

alleged victim had any recollection of any such event.” Id. The motion also

opposed admission of other evidence, such as a video interview of the alleged




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victim, to the extent it addresses any accusations of inappropriate sexual

behavior. Id.

      On September 25, 2017, prior to the start of trial, the trial court

addressed Appellant’s motion in limine. Evidence that Appellant may have

had sexual contact with the minor, the court began, fits within the elements

of the charge. N.T. 9/25/17, at 4. Before the court could continue, however,

defense counsel interjected with what amounted to a concession on the

admissibility of the alleged kiss between Appellant and the minor girl:

      DEFENSE COUNSEL: I want to -- if I can just jump in there. I
      already spoke to [Assistant District Attorney] Mr. Rakaczewski
      about this. There were accusations made as part of the initial
      discovery that my client, at one point, had forced himself or had
      sex with her while she was unconscious, made a videotape. No
      one has actually seen the video. One person says they saw an
      image of it, which may or may not mean anything. The upside is
      Mr. Rackaczewski says he is not going on –

      [ADA] RACKACZEWSKI: I have no intention of going into the
      videotape or the unconsciousness. It’s just that she had sexual
      contact with him. They were doing marijuana at the time, and
      she talks about, [‘]my mind was fuzzy,[’] or [‘]hazy,[’] whatever,
      but I’m not going into it anymore like that. I’m not going to have
      William Kasse testify today in regards to the video and all that
      kind of stuff. So I have no intention of going into that.

      But she [the victim] did also say during the CAC, and I
      expect her to testify to that, you know, [‘]He forcibly
      slammed me up against the refrigerator, forcibly kissed
      me, I was frozen, I didn’t know what to do,[’] and that’s
      always been consistent.

      THE COURT:        All right.

      DEFENSE COUNSEL: That, I don’t have a problem with. But
      the other part I though was just a little tenuous and a different
      issue.

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       THE COURT:       So we’re going to hear testimony regarding
       sexual contact. It’s not going to have anything to do with her
       being unconscious and being videotaped or any naked pictures of
       her?

       [ADA] RACKACZEWSKI:             Right.   I have no intention of
       soliciting any of that information.


N.T. 9/25/17, at 4-6 (emphasis added).

       Consistent with defense counsel’s pretrial position, he offered no

objection to testimony and evidence concerning the victim’s claim that

Appellant forcibly kissed her. Rather, counsel conducted cross-examination

aimed at establishing the victim’s consent to the kiss. N.T. at 50-51; 106-

107.

       At the conclusion of trial, the jury convicted Appellant of corruption of a

minor.       Informed by a presentence investigation report, the trial court

sentenced Appellant to a period of incarceration of six to 24 months, less one

day. Appellant filed a motion for reconsideration of his sentence, which the

court denied by order dated November 6, 2017. This timely appeal followed.

       Appellant presents two questions for our consideration:

       I.      DID THE TRIAL COURT ERR AND ABUSE ITS
               DISCRETION BY ALLOWING TESTIMONY AND
               EVIDENCE REGARDING ALLEGED SEXUAL CONTACT
               BETWEEN CONKLIN AND THE ALLEGED VICTIM
               WHERE THE CHARGES FILED AND DISCOVERY
               PROVIDED ONLY INDICATED THAT HE WAS BEING
               CHARGED BASED ON PROVIDING MARIJUANA TO
               HER?

       II.     DID THE TRIAL COURT ERR AND ABUSE ITS
               DISCRETION BY ORDERING CONKLIN TO UNDERGO A

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J-A22042-18


              SEXUAL OFFENDER ASSESSMENT WHERE THE
              UNDERLYING ACCUSATIONS PERTAINED TO DRUG
              USE AND THE OFFENSE TO WHICH HE WAS
              CONVICTED IS NOT A SEXUAL OFFENSE.

Appellant’s brief, at 6.

        Appellant first contends that the corruption of minors charge failed to

place him on sufficient notice of the Commonwealth’s intent to introduce

evidence that he engaged in sexual contact with the minor victim in question.

The charge as set forth in the Complaint, evidence adduced at the preliminary

hearing, and the description of the crime in the Information all failed to allege

sexual contact as part of the factual basis for the charge, Appellant argues.

He was, therefore, “left to guess what the specifics of the charge might be[,]”

in violation of Pa.R.Crim.P. 560(B)(5).3 Appellant’s brief, at 13.

        The Commonwealth counters that the Affidavit of Probable Cause

segment of the Complaint provided a lengthy and detailed account of

Appellant’s alleged sexual contact with the minor in question.                Such

____________________________________________


3   Rule 560(B)(5) sets forth the contents of an information, in relevant part:

        (B) The information shall be signed by the attorney for the
        Commonwealth and shall be valid and sufficient in the law if it
        contains:

        ...

        (5) a plain and concise statement of the essential elements of the
        offense substantially the same as or cognate to the offense alleged
        in the complaint

Pa.R.Crim.P. 560(B)(5).



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allegations, therefore, were clearly part of the factual narrative supporting the

Complaint’s corruption of minors charge. Furthermore, the Commonwealth

adds, the allegations fit within the elements of the crime as set forth in the

subsequent criminal information. For its part, the trial court agrees with the

Commonwealth’s position.

      Our review of the record discloses that Appellant has effectively waived

his Rule 560-based challenge to the adequacy of notice supplied in the criminal

information.   A criminal defendant must challenge defects in the charging

process by filing an omnibus pre-trial motion.       See Commonwealth v.

Martin, 694 A.2d 343, 344 (Pa. Super. 1997).         Failure to do so results in

waiver on the issue on appeal.       See id.; see also Commonwealth v.

Richter, 676 A.2d 1232, 1236 n.2 (Pa. Super. 1996), affirmed, 711 A.2d

464 (Pa. 1998).

      Here, Appellant filed a motion in limine challenging the sufficiency of his

charges, but he abandoned the challenge at the outset of the pretrial

conference on the motion when defense counsel agreed that allegations of

Appellant’s forcible kiss upon the minor victim were admissible to prove the

charge of corruption of minors filed against him in charging documents. See

N.T. 9/25/17, supra. Accordingly, Appellant’s first claim affords him no relief.

      In Appellant’s second claim, he contends the trial court abused its

sentencing discretion in ordering Appellant to undergo a sexual offender

assessment where his alleged actions were not sexual in nature and the




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corruption of minors offense with which he was convicted is not a sexual

offense.

      In order to reach the merits of a discretionary aspects claim, we must

engage in a four-part analysis to determine:

      (1) whether the appeal is timely; (2) whether [the appellant]
      preserved his [or her] issue; (3) whether [the appellant's] brief
      includes a concise statement of the reasons relied upon for
      allowance of appeal with respect to the discretionary aspects of
      sentence; and (4) whether the concise statement raises a
      substantial question that the sentence is appropriate under the
      [S]entencing [C]ode. … [I]f the appeal satisfies each of these four
      requirements, we will then proceed to decide the substantive
      merits of the case.

Commonwealth v. Colon, 102 A.3d 1033, 1042-43 (Pa.Super. 2014)

(citation omitted).

      Initially, we note Appellant has preserved this issue to the extent he

raised it first in his motion for reconsideration of sentence, wherein he alleged

“[Appellant] was also given a condition of sentence that he undergo a sexual

offender’s evaluation and comply with the results thereof. In that the basis

for the original charge against the [Appellant] was for providing a minor with

controlled substance, namely marijuana, to a minor, such assessment is

inappropriate.” Appellant’s Motion for Reconsideration of Sentence, 11/3/17.

      Assuming arguendo Appellant has otherwise satisfied the four-part test

stated above, we nevertheless find his issue as stated mischaracterizes the

nature of the evidence offered to support the charge against him. Contrary

to Appellant’s suggestion, the Commonwealth did not confine its evidence to



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Appellant’s use of marijuana with the minor. Indeed, the court’s order for an

assessment was based on ample evidence that 22 year-old Appellant initiated

sexual contact with the 16 year-old victim and continued to entertain ideas of

a future between them despite the wishes of both the victim and her mother.

N.T. at 87-90, 102-103. Accordingly, we reject this claim out of hand since

its factual predicate is lacking.4

     Judgment of sentence affirmed.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/20/18




____________________________________________


4 In addition, we note Appellant fails to support this claim with citation to
pertinent authority, such that we may deny him relief on this basis as well.
See Pa.R.A.P. 2101, 2119(a)-(b).




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