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Commonwealth v. Leatherby

Superior Court of Pennsylvania

April 21, 2015

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
LAFONCE LEATHERBY, Appellant

Submitted October 27, 2014

Page 74

[Copyrighted Material Omitted]

Page 75

Appeal from the Judgment of Sentence dated March 8, 2013, of the Court of Common Pleas of Philadelphia County, Criminal Division at No(s): CP-51-CR-0002263-2011, CP-51-CR-0003522-2011, CP-51-CR-0003524-2011. Before WRIGHT PADILLA, J.

Jonathan J. Sobel, Philadelphia, for APPELLANT.

Hugh J. Burns, Jr., Assistant District Attorney, Philadelphia, for Commonwealth, APPELLEE.

BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.[*]

Judge Strassburger joins the Opinion. Judge Mundy files a Dissenting Opinion.

OPINION

Page 76

LAZARUS, J.

Lafonce Leatherby appeals from the judgment of sentence imposed by the Court of Common Pleas of Philadelphia County, after a jury found him guilty of three counts each of unlawful contact with a minor[1] endangering the welfare of a child[2] and corruption of the morals of a minor[3] as well as two counts of indecent assault.[4] These charges stemmed from Leatherby's sexual abuse, over the course of several years, of his wife's three young daughters, aged 9 to 14. Upon careful review, we affirm in part and vacate in part.

The lower court recounted the procedural history of the case as follows:

Leatherby was arrested on December 8, 2010, and charged with unlawful contact with a minor, endangering the welfare of children, indecent assault on a person less than thirteen (13) years of age, corruption of minors, simple assault, recklessly endangering another person (" REAP" ), and aggravated assault. The aggravated assault charge was disposed of in the Municipal Court.
On October 4, 2012, Leatherby's oral motion to preclude the Commonwealth

Page 77

from introducing complainant's handwritten letter was heard, and subsequently denied. This case then proceeded to trial by jury on the charges of unlawful contact with a minor, endangering the welfare of children, indecent assault of a person less than thirteen (13) years of age, and corruption of minors. The charges of simple assault and REAP were nolle prossed.
On October 11, 2012, the jury convicted Leatherby of every charge except that of Indecent Assault with regard to M.S., on which he was found not guilty. Sentencing was deferred to March 5, 2013, pending a Pre-Sentence Investigation Report (" PSI" ) and both mental health and Megan's Law evaluations.
This [c]ourt bifurcated the sentencing hearing on March 5 and March 8, 2013, whereupon this [c]ourt made a finding that Leatherby was a Sexually Violent Predator (" SVP" ), requiring Megan's Law mandated life-long registration. This [c]ourt sentenced Leatherby to an aggregate of seven and one half (7 1/2) to fifteen (15) years of incarceration.
On March 15, 2013, Leatherby filed a pro-se Post-Sentence Motion for Reconsideration of Sentence.
On May 9, 2013, Attorney Jonathan Sobel entered his appearance on Leatherby's behalf.
On June 4, 2013, this Court ordered that the deadline for Leatherby to file Post-Sentence Motions was July 31, 2013.
On July 31, 2013, Leatherby filed a Motion for Extension of Time, which was granted on August 2, 2013.
On September 30, 2013, Leatherby filed a Post-Sentence Motion for Reconsideration of Sentence, alleging that the verdicts were against the sufficiency and weight of the evidence, that the sentence was excessive, and that the sentences for indecent assault and corruption of minors should have merged.
On January 17, 2014, Leatherby's motion was denied.
Leatherby filed a notice of appeal with this Court on February 12, 2014, followed by a court-ordered Pa.R.A.P. 1925(b) statement. The trial court filed its Rule 1925(a) opinion on March 13, 2014.

Trial Court Opinion, 3/13/14, at 2-3.

On appeal, Leatherby raises the following issues for our review:

1. Defendant challenges the jury verdict of guilty on the charges of unlawful contact with a minor with respect to all three complainants, M.S., F.G., and F.G. based upon the lack of sufficiency of the evidence.
2. Defendant challenges the jury verdict of guilty on the charge of endangering the welfare of a child (EWOC) with respect to all three complainants, M.S., F.G., and F.G. based upon the lack of sufficiency of the evidence.
3. Defendant challenges the jury verdict of guilty on the charge of indecent assault with respect to two complainants, S.G. and F.G. based upon the lack of sufficiency of the evidence.
4. Defendant challenges the jury verdict of guilty on the charge of corruption of the morals of a minor (CMOM) with respect to all three complainants, M.S., F.G., and F.G. based upon the lack of sufficiency of the evidence.
5. Defendant challenges the jury verdict on all charges tried in this case, including unlawful contact with a minor, endangering the welfare of a child, indecent assault, and corruption of the morals of a minor based upon the weight of the evidence as to all three complainants, M.S., F.G., and F.G.

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6. The trial court abused its discretion by imposing such an excessive sentence upon [d]efendant, Lafonce Leatherby. The defendant is challenging the discretionary aspect of his sentencing.
7. The trial court erred by failing to merge the conviction(s) for indecent assault with respect to complainants, S.G. and F.G. with the convictions for corruption of minors, because the convictions were based on the same acts.
8. The trial court erred in classifying defendant, Lafonce Leatherby as a sexually violent predator pursuant to 42 Pa. C.S.A. § 9792.

Brief of Appellant, at 9-10.

Prior to addressing Leatherby's appellate claims, we must consider the Commonwealth's assertion that Leatherby's appeal should be dismissed because it was not timely filed. See Brief of Appellee, at 11-13. In order to perfect a timely appeal, a defendant must file a notice of appeal within 30 days of the imposition of his sentence, unless he files a timely post-sentence motion within 10 days of sentencing, thereby tolling that 30-day window. See Pa.R.A.P. § 903; Pa.R.Crim.P. § 720(A).

Here, Leatherby was sentenced on March 8, 2014. At the time of sentencing, Leatherby's counsel stated that Leatherby could no longer afford his services, and requested that the trial court appoint new counsel. N.T. Sentencing, 3/8/14, at 69-70. The transcript of that hearing reflects that Leatherby's then-counsel, Pierre LaTour, III, Esquire, agreed to file a postsentence motion on Leatherby's behalf within ten days of sentencing. The record states,

MR. LATOUR: At this time, Mr. Leatherby, do you want myself or your court appointed attorney to file the ten-day motion to ask this judge to reconsider your sentence?
THE DEFENDANT: Yes.
Q: And in addition to that, you are also requesting that the court-appointed attorney and I will perfect this appeal, file the notice ...

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