from the Judgment of Sentence April 10, 2018 In the Court of
Common Pleas of Monroe County Criminal Division at No(s):
BEFORE: OLSON, J., DUBOW, J., and STEVENS [*] , P.J.E.
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.
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
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. 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.
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.
arrested Appellant and the Commonwealth charged Appellant
with Rape, Statutory Sexual Assault, Sexual Assault,
Aggravated Indecent Assault, and Indecent
Assault. After a preliminary hearing on November
20, 2016, the court held the case over for trial.
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.
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
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. Id. at 142-43.
Commonwealth called several additional witnesses, including a
Police Communications Officer, two police Troopers, a nurse
practitioner, a serology supervisor, and a forensic DNA
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.
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.
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