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Commonwealth v. Dougalewicz

Superior Court of Pennsylvania

March 30, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
RONALD LEE DOUGALEWICZ, JR., Appellant

Page 818

[Copyrighted Material Omitted]

Page 819

Appeal from the Judgment of Sentence of the Court of Common Pleas, Lawrence County, Criminal Division, Nos. CP-37-CR-0000514-2009 and CP-37-CR-0001129-2009.

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

OPINION

Page 820

MUSMANNO, J.

Ronald Lee Dougalewicz, Jr. (" Dougalewicz" ), appeals from the judgment of sentence imposed following his convictions of one count each of aggravated indecent assault of a person less than 16 years of age, indecent assault of a person less than 16 years of age, and sexual abuse of children--possession of child pornography, and two counts of corruption of minors.[1] We affirm.

In 2008, Dougalewicz became the head coach for a summer league softball team. At tat time, the 13-year-old victim played softball for the summer league team. Dougalewicz took an interest in the victim, recognizing that she was an excellent player. As the trial court explained in its Opinion, Dougalewicz spent time with the victim off of the softball field, which included

shopping at Dunham's Sporting Goods, going to get ice cream, trips to the mall, golfing, the victim spending time at [Dougalewicz's] residence and an excursion to a USA Softball game in Akron, Ohio. Initially, the trip to the USA Softball game was to include several other members of the team; however, the others decided not to attend the game, so [Dougalewicz] and the victim traveled by themselves. The victim testified that on the way home from the USA Softball game, [Dougalewicz] touched her upper thigh and played with her hair.
[Dougalewicz] and the victim began texting shortly after they met in 2008[,] and the texting continued into 2009. It must be noted that [Dougalewicz] was no longer [the victim's] softball coach, but was acting as the strength and conditioning coach at Union Area High School during that time. The victim's mother became concerned about the amount of time the victim was spending with [Dougalewicz] and how often they were exchanging text messages. As a result, [the victim's mother] instructed the victim to limit the amount of time she spent with [Dougalewicz]. On March 13, 2009, the victim was driven to Dunham's Sporting Goods to purchase softball cleats by her friend, N.H. Afterwards, the victim asked N.H. to drive her to a house in the North Hill area of New Castle and later revealed that it was [Dougalewicz's] residence. N.H. drove the victim to [Dougalewicz's] residence at approximately 6 p.m. or 7 p.m. The victim then ate dinner with [Dougalewicz] and his wife .... After dinner, the victim, [Dougalewicz, Dougalewicz's wife,] and two female friends of Dougalewicz's wife] entered [Dougalewicz's] hot tub for 15 to 20 minutes. Everyone, except the victim, was drinking alcohol while they were in the hot tub. The victim then got out of the hot tub and changed her clothes. At that time, [Dougalewicz] told his wife that he was taking the victim home ....
... [Dougalewicz] did not drive the victim to her home, but stopped on a driveway located on Matthews Road in Union Township, New Castle, Lawrence County, Pennsylvania. [Dougalewicz] told the victim that he was going to kiss her now, which he proceeded to do. He then unbuttoned [the victim's] jeans and penetrated her vagina with his finger using his left hand. The incident lasted

Page 821

less than five minutes. [Dougalewicz] began driving back to his residence with the victim in the vehicle when he was stopped by Nashannock Township [P]olice [O]fficer Alfred DeCarbo [" Officer DeCarbo" ]. [Dougalewicz] told Officer DeCarbo that the victim was his niece.... Eventually, [Dougalewicz] and the victim returned to [Dougalewicz's] residence. At that time, [Dougalewicz's wife] became angry because [Dougalewicz] returned with the victim....

Trial Court Opinion, 3/31/14, at 2-4. The victim spent that night sleeping on a couch at Dougalewicz's residence. Dougalewicz texted the victim asking her if she was alright. The next morning, Dougalewicz asked the victim if they were going to finish what they had started.

The next day, Dougalewicz texted the victim and arranged to meet her at Harbor Bar. Dougalewicz, driving his silver Hummer, picked up the victim. After driving around, and purchasing food, Dougalewicz parked in a car lot in West Pittsburg in Lawrence County. Dougalewicz and the victim moved to the back seat, where Dougalewicz again penetrated the victim's vagina with his finger. After about 15 to 20 minutes, Dougalewicz drove the victim to a mobile home park near her house, and dropped her off.

After that incident, Dougalewicz and the victim kept in constant contact, and exchanged text messages. The victim sent Dougalewicz approximately 15 pictures, which included pictures of her vagina. Dougalewicz sent a shirtless picture of himself to the victim. The victim told several friends about the incidents with Dougalewicz. Eventually, rumors about the victim and Dougalewicz began circulating at Union Area High School. When questioned, the victim repeatedly denied having a sexual relationship with Dougalewicz. At one point, the victim fabricated a story about having a sexual relationship with an unnamed black male. Eventually, the victim admitted having a sexual relationship with Dougalewicz to the Children's Advocacy Center, and then to Pennsylvania State Trooper Harry Gustafson.

During the police investigation, on March 24, 2009, Union Township Police Officer Michael T. Mrozek (" Officer Mrozek" ) filed, with the local Pennsylvania magisterial district judge (" MDJ" ), an Application for Search Warrant and Authorization (" Application" ) to search and seize

[a]ny and all text messages, picture mail and phone calls to and from Verizon phone number 724-[redacted] [" the Verizon phone" ], and the same for Sprint PCS Cell phone number 724-[redacted] [" the Sprint phone" ] in regards to alleged sexual misconduct with a 14[-]year[-]old female by Dougalewicz.

Application, 3/24/09, at 1. The Application described the items to be searched as " [a]ll phone records" belonging to the Verizon phone and the Sprint phone. Id. Officer Mrozek's Affidavit of Probable Cause (" Affidavit" ) averred, in relevant part, as follows:

I[,] Officer Mrozek[,] am in the process of investigating alleged sexual misconduct committed against a 14[-]year old female by Dougalewicz. This officer has statements from two eyewitnesses to the alleged misconduct that are detailed and graphic. The statements suggest sexual activity between Dougalewicz and the 14[-]year old female since June of 2008. The witnesses related to this officer that many text messages exchanged between Dougalewicz and the 14[-]year[-]old female were of a sexual nature. The witnesses also related to this officer that the 14 year old had sent nude pictures of herself to Dougalewicz at his request. Based on the information contained in the written statements by the witnesses

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and the verbal conversations with this officer, I am requesting a Search Warrant to obtain all text messages and picture mail in regards to the above mentioned phone numbers.

Affidavit, 3/26/09, at 1. That same date, the MDJ approved the Application and issued the Search Warrant.

The Search Warrant was served upon each carrier in Kansas.[2] Sprint complied with the Search Warrant. Verizon requested that a new warrant, naming the carrier as " Cellco Partnership d/b/a/ Verizon Wireless," be issued. Officer Mrozek filed a second Application for Search Warrant with the change requested by Verizon, which the MDJ granted. Verizon then complied with the new search warrant.[3]

Dougalewicz subsequently was charged with, inter alia, the above-described charges at two docket numbers. Dougalewicz filed an omnibus pre-trial suppression Motion (" Suppression Motion" ) on July 10, 2009. The parties agreed to rely upon the preliminary hearing testimony to resolve the Suppression Motion. On June 23, 2010, the suppression court denied Dougalewicz's Omnibus Pretrial Motion.

On June 7, 2012, Dougalewicz filed a supplemental suppression Motion (" Supplemental Suppression Motion" ). The suppression court scheduled a hearing on the Supplemental Suppression Motion. It later cancelled the hearing and directed the parties to file legal briefs. On February 13, 2013, ...


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