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Commonwealth v. Leap

Superior Court of Pennsylvania

October 25, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
JOSHUA L. LEAP Appellant

          Appeal from the Judgment of Sentence April 10, 2018 In the Court of Common Pleas of Monroe County Criminal Division at No(s): CP-45-CR-0002494-2015

          BEFORE: OLSON, J., DUBOW, J., and STEVENS [*] , P.J.E.

          OPINION

          DUBOW, J.

         Appellant, Joshua L. Leap, appeals from the April 10, 2018 Judgment of Sentence entered in the Monroe County Court of Common Pleas after a jury convicted him of Rape and related charges. After careful review, we affirm.

         BACKGROUND

         The relevant factual and procedural history, as gleaned from the certified record, is as follows. In July 2015, then-14-year-old B.L. ("Victim") attended an overnight family reunion with her then-15-year-old boyfriend, M.B.K. ("Boyfriend"). Appellant is Boyfriend's cousin and was 28 years old at the time of the family reunion. At the reunion, Victim and Boyfriend consumed alcohol, smoked marijuana, and then went to sleep in a tent around midnight.

         Around 4:00 AM, Victim awoke to find Appellant on top of her. Appellant pulled Victim's pants down, pinned her to the ground, put his hand over her mouth, and raped her. After Appellant raped Victim, he spoke to her about the rape.[1] Victim disclosed the rape to another cousin, who, in turn, told Boyfriend. Later that day, Appellant told Victim and Boyfriend that he would give them marijuana, or whatever they wanted, if they did not say anything to get him in trouble.

         Upon returning home, Victim told her mother about the rape. Victim's mother called police and took Victim to the hospital, where Victim received a sexual assault examination. The examination and DNA testing revealed that Appellant's semen was on Victim's clothes and inside Victim's vagina. Victim gave consistent statements to hospital personnel and the police.

         Police arrested Appellant and the Commonwealth charged Appellant with Rape, Statutory Sexual Assault, Sexual Assault, Aggravated Indecent Assault, and Indecent Assault.[2] After a preliminary hearing on November 20, 2016, the court held the case over for trial.

         At trial, Victim testified to the above facts. On cross-examination, Appellant tried to impeach Victim with a post that appeared on Victim's Facebook page. The post was a picture of a typed sentence that was authored by an unknown individual, reposted by someone uninvolved in this matter over a year before Victim accused Appellant of rape, and reposted on Victim's Facebook page on or around the date of the scheduled preliminary hearing. The post stated, "If we have sex & your behavior changes afterwards I'm gonna say you raped me & technically you did bc you ain't the nigga I thought you was." Defendant's Exhibit 11, Marked for Identification Purposes. The trial court sustained the Commonwealth's objection to the use of the Facebook repost. N.T. Trial, 1/9/18, at 82.

         The Commonwealth next presented testimony from Carol Haupt, who was qualified to testify as an expert in the dynamics of sexual violence, victim responses to sexual violence, and the impact of sexual violence on victims during and after being assaulted pursuant to 42 Pa.C.S. § 5920. When the Commonwealth asked Ms. Haupt a hypothetical question about a 14-year-old victim, Ms. Haupt gave her opinion about the hypothetical child's credibility. Id. at 141.[3]

         Appellant objected on the basis that Section 5920 specifically disallows any testimony giving an opinion on credibility, and made a Motion for a Mistrial. The trial court denied Appellant's Motion and, instead, gave a curative instruction telling the jury members that they were the sole judges of the credibility of all witnesses and they should disregard any testimony that they construe to be an opinion in that regard.[4] Id. at 142-43.

         The Commonwealth called several additional witnesses, including a Police Communications Officer, two police Troopers, a nurse practitioner, a serology supervisor, and a forensic DNA scientist.

         Appellant testified on his own behalf and stated, inter alia, that, on the day of the reunion he thought Victim was 18 years old. N.T. Trial, 1/11/18, at 92. Appellant acknowledged that he went to sleep in the same tent as Victim and Boyfriend and stated that he woke up early in the morning to move into a nearby house to sleep because he was cold. Id. at 84-119. Appellant testified several times, on both direct and cross-examination, that he did not remember anything between the time he fell asleep in the tent and the time he woke up. Id.

         Appellant also called various fact and character witnesses, including his ex-fiancé Erin Labar, to testify on his behalf. Appellant once again tried to introduce the above-referenced Facebook post, by asking Ms. Labar if she observed Victim's Facebook posts. Id. at 51. The trial court once again sustained the Commonwealth's objection to the use of the Facebook repost and ruled it inadmissible. Id. at 56.

         On January 11, 2018, a jury convicted Appellant of all charges. On April 10, 2018, the trial court sentenced Appellant to an aggregate term of 90 to 244 months' incarceration and ordered, inter alia, that Appellant was not to have unsupervised contact with anyone under the age of 18. Appellant filed a timely Post-Sentence Motion, which the trial court granted in part to modify the sentencing ...


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