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[U] Commonwealth v. Neal

Superior Court of Pennsylvania

May 23, 2013

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
KENNETH N. NEAL, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order entered June 5, 2012 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-1207671-2004

BEFORE: LAZARUS, OLSON AND FITZGERALD, [*] JJ.

MEMORANDUM

OLSON, J.

Appellant, Kenneth N. Neal, appeals from an order entered on June 5, 2012 in the Criminal Division of the Court of Common Pleas of Philadelphia County that denied his petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

On direct appeal, this Court summarized the factual background of this case as follows:

Complainant, A.B., [1] lived with her step-father (Appellant), mother, brother, and sister in various apartments throughout Philadelphia from the time she was an infant until she was twelve years of age. During this period, both Appellant and [C.B.], complainant's mother, had severe drug and alcohol addictions. When complainant was approximately six or seven years old, Appellant summoned her to his room and proceeded to rub his hand over her vagina and place his finger and tongue inside her vagina. No further sexual contact occurred until complainant was approximately nine or ten years old, at which time Appellant performed oral sex on A.B. and attempted to have vaginal intercourse with her.
The Department of Human Services removed complainant from her mother's home in 2004, and she began living with her biological father when she was approximately fourteen years old. A.B. informed her father and stepmother of the abuse in 2004, and they promptly informed the police.
Appellant's jury trial began on June 24, 2007, and two days later the jury convicted Appellant of the aforementioned crimes. On January 11, 2008, following a hearing on the matter, [the trial court] determined that Appellant was a sexually violent predator pursuant to Megan's Law, 42 Pa.C.S.A. § 9791 et seq. The trial court sentenced Appellant to concurrent terms of 8 to 20 years imprisonment for rape, 8 to 20 years imprisonment for involuntary deviate sexual intercourse, 3 to 7 years imprisonment for endangering the welfare of a child, and 2 to 5 years imprisonment for corrupting the morals of a minor.[2]

Commonwealth v. Neal, 986 A.2d 1261 (Pa. Super. 2009) (unpublished memorandum) (footnotes in original) at 2-3.

The PCRA court summarized the ensuing procedural history as follows:

A timely post[-]sentence motion was denied without a hearing on February 1, 2008, [the Superior Court] affirmed [Appellant's] judgment [of sentence] in the direct appeal on September 18, 2009, [] and [the] Supreme Court denied [Appellant's petition for further review] on December 29, 2009. The subject PCRA petition was filed pro se on July 16, 2010, and present counsel was appointed who filed an amended petition on August 2, 2011. The Commonwealth filed a motion to dismiss the petition on January 11, 2012, and, after a number of continuances at the request of [Appellant], on April 19, 2012, the [PCRA] court served a Notice of Intent to Dismiss Pursuant to Pa.R.Crim.P. 907 stating that the petition would be dismissed on June 5th for lack of merit, which it did without a hearing on that date.

PCRA Court Opinion, 8/30/12, at 1-2 (italics in original removed).

In his brief, Appellant raises the following questions for ...


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