Com. v. Crooks, D. (memorandum)
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J-S20023-16 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. DONALD CROOKS Appellant No. 1128 WDA 2015 Appeal from the Judgment of Sentence June 26, 2015 In the Court of Common Pleas of Erie County Criminal Division at No(s): CP-25-CR-0002139-2014 BEFORE: PANELLA, OLSON and PLATT,* JJ. MEMORANDUM BY OLSON, J.: FILED APRIL 11, 2016 Appellant, Donald Crooks, appeals from the judgment of sentence entered on June 26, 2015, as made final by the denial of post-sentence motions on July 8, 2015. We affirm. The trial court summarized the facts and procedural history in this matter as follows: The charges against Appellant arose from a series of incidents in which he sexually assaulted his daughter, K.L.C., [], from the age of 7 until she was about 11 or 12. The first incident occurred when K.L.C. was about 7 years old. K.L.C. was visiting Appellant, her biological father, when he was staying at a home where K.L.C.’s grandmother used to live. After taking a shower, K.L.C. exited the bathroom and Appellant told her to go to change in his room. Appellant came into the room as K.L.C. was dressing, pulled out his penis through his zipper and told her to suck on it. When K.L.C. told him no, Appellant repeated the demand. K.L.C. said no again and Appellant pushed her head toward his penis but K.L.C. pulled away. *Retired Senior Judge assigned to the Superior Court. J-S20023-16 Appellant told K.L.C. to stay in the room and went to the kitchen to get ice cream sandwiches. Appellant got an ice cream sandwich for K.L.C.’s brother, who was watching Peter Pan in the living room, and one for K.L.C., and returned to the room. After K.L.C. finished eating the ice cream sandwich, Appellant took the wrapper and rubbed the remaining ice cream on his penis. Appellant told K.L.C. to lick the ice cream off. K.L.C. refused and Appellant put his hands on the back of K.L.C.’s head and tried to force it down towards his penis. K.L.C. pulled away and was then left to dress in the bathroom. Another incident occurred at K.L.C.’s aunt’s house, near the Whippy Dip ice cream shop. K.L.C. and Appellant arrived at the house after shopping together. Appellant retrieved the key from above the door, let them into the house, and locked the door behind him. K.L.C. went into the small “toy room” and Appellant followed her in. K.L.C. sat down on the mattress on the floor and Appellant sat beside her. K.L.C. was playing with a toy and laid down and Appellant pulled a blanket over the two of them and touched her clitoris over her underwear. At the same time, K.L.C. saw Appellant moving his hands under the blanket and believed Appellant was rubbing his own penis. K.L.C. told him to stop, but he did not. After some time, Appellant stopped, unlocked the front door, and replaced the key above the door. One weekend during the summer, Appellant took K.L.C. to a construction site in a van he borrowed from his friend John Cooper. Appellant took K.L.C. into the woods in an area blocked from view by a dirt pile and asked her to show him her breasts. K.L.C. said no. When Appellant asked again and K.L.C. refused, Appellant tried to forcibly make K.L.C. show him her breasts but K.L.C. blocked him by crossing her arms over her chest. Appellant then put K.L.C. in a “choker hold,” where he put his arm around K.L.C.’s neck and squeezed to make her pass out. K.L.C. passed out and when she woke up she was on the ground and Appellant’s hand was in her pants, under her clothes, rubbing her clitoris. K.L.C. pulled his hand out of her pants, yelled at him and stood up. As K.L.C. tried to leave, Appellant grabbed her arm and tried to put her in a “choker hold” again but K.L.C. was able to break free, climb over the dirt pile, and get to the van. Appellant drove K.L.C. to the home of her uncle, Shawn Crooks. -2- J-S20023-16 On another occasion, when K.L.C. was 11 or 12, Appellant tried to touch K.L.C.’s breasts at John Cooper’s house after Appellant took K.L.C. to Hot Topic at the mall to buy a bathing suit. K.L.C. went to the bathroom to try it on and Appellant asked her to come out so he could see. K.L.C. showed Appellant her bathing suit and Appellant told her to go to the basement to the other bathroom. Once K.L.C. and Appellant were in the basement, Appellant asked K.L.C. to see her breasts. When K.L.C. said no, Appellant untied the bathing suit behind K.L.C. neck. K.L.C. held the suit up, but Appellant pulled at the suit and continued to ask to see her breasts. Appellant then stopped and K.L.C. tied her suit, went upstairs, and changed into street clothes. On another occasion, when K.L.C. was 11 or 12, Appellant brought K.L.C. to John Cooper’s storage building. Appellant told K.L.C. to sit on a little wooden bed and to show him her breasts. K.L.C. said no and crossed her arms in front of her chest. Appellant stood in front of her, took his penis out of his pants, and began to stroke it. Appellant asked K.L.C. to show him her breasts a few more times and then said if she did not, that he would put his penis in her vagina. The first person K.L.C. told about the abuse was her stepsister, [M.B.]. When K.L.C. ran away from home one night, [M.B.] told K.L.C.’s mother, [C.B.], who then brought the information to the police. Appellant was charged with criminal attempt: involuntary deviate sexual intercourse (“IDSI”) with a child, aggravated indecent assault of a child, endangering the welfare of a child, corruption of minors, indecent assault, indecent exposure and IDSI with a child. On March 19, 2015, Appellant was found guilty after a trial by jury of all charges except for the IDSI with a child offense. Appellant was represented by Attorney Maria Goellner at trial and sentencing. On March 30, 2015, Appellant filed a [m]otion for [j]udgment of [a]cquittal and [m]otion for a [n]ew [t]rial, which was denied by [o]rder dated April 6, 2015. Appellant was sentenced on June 26, 2015. [At his sentencing hearing, the court ordered Appellant to serve an aggregate term of 13 to 26 years in prison followed by five years’ probation. In addition, the court designated Appellant as a sexually violent -3- J-S20023-16 predator (SVP).] Appellant filed a [p]ost-[s]entence [m]otion for [r]elief and [r]econsideration on July 6, 2015, which was denied by [o]rder dated July 8, 2015. Appellant filed a [timely n]otice of [a]ppeal on July 22, 2015. On July 23, 2015, Appellant filed a [c]oncise [s]tatement of [m]atters [c]omplained of on [a]ppeal. [The trial court issued its Rule 1925(a) opinion on September 22, 2015.] Trial Court Opinion, 9/22/15, at 1-4. On appeal, Appellant raises the following questions for our review: Did the court err by preventing Mr. Crooks from exercising his right to a meaningful trial by jury with imparticl [sic] jurors where counsel was precluded from conducting open voir dire and asking questions to jurors? Did the court err in failing to grant a judgment of acquittal as to counts I – [V]I when the charging document alleged criminal acts of a lengthy and vague span of dates and a request for a bill of particulars was denied? Did the court err in failing to grant a judgment of acquittal at count II, aggravated indecent assault, when the Commonwealth did not prove penetration beyond a reasonable doubt[?] Did the court err in allowing the testimony of a witness whose identity was not disclosed to the defense until days before trial? Did the court err in finding that the defendant was a sexually violent predator when there was a lack of evidence that the defendant’s diagnosis of anti-social disorder affected his volitional capacity and there was no evidence of prior sexually deviant behavior? Appellant’s Brief at 2-3 (block capitalization omitted). We have carefully reviewed the submissions of the parties, the certified record, the thorough opinion of the trial court, and the case law -4- J-S20023-16 applicable to the issues raised by Appellant. Based upon our review, we are satisfied that the trial court adequately and accurately addressed each of the issues raised on appeal. Specifically, we agree with the following assessments reached by the trial court: 1) Appellant was given appropriate latitude in questioning the venire and any limitations placed upon trial counsel were consistent with our rules prohibiting overly specific questions by a party; 2) the charging documents filed in this case adequately set forth the occurrence dates for course of conduct offenses where the victim was able to narrow the relevant timeframes for each offense by stating her age, her grade and school affiliation, and the time of year; 3) the victim’s testimony that Appellant rubbed her clitoris provided sufficient evidence from which the jury could infer penetration for purposes of establishing aggravated indecent assault; 4) the admission of testimony from a non-eyewitness who was disclosed to the defense two weeks prior to trial did not constitute an abuse of discretion where such disclosure did not prejudice Appellant’s ability to prepare for trial; and, 5) the Commonwealth introduced clear and convincing evidence that Appellant met the statutory criteria for SVP status, including the requirement that his anti-social personality disorder made him likely to reoffend. See Trial Court Opinion, 9/22/15, at 7-8, 11-13, 13-15, 15-17, and 23-29. As we concur wholly in the foregoing determinations, we adopt them as our own. In addition, we direct the parties to include a copy of the trial court’s opinion, with the names of the -5- J-S20023-16 victim’s stepsister and mother redacted, with all future filings pertaining to our disposition of this appeal. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 4/11/2016 -6-
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