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Commonwealth v. Davis

Superior Court of Pennsylvania

December 23, 2019

COMMONWEALTH OF PENNSYLVANIA
v.
ERIC J. DAVIS Appellant

          Appeal from the Judgment of Sentence January 29, 2018 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0006801-2014

          BEFORE: PANELLA, P.J., STABILE, J., and STEVENS, P.J.E.[*]

          OPINION

          STEVENS, P.J.E.

         Appellant Eric J. Davis appeals from the Judgment of Sentence Entered in the Court of Common Pleas of Philadelphia County on January 29, 2018, following his convictions of Rape of a Child and related offenses. We affirm.

         The trial court set forth the relevant facts revealed during the jury trial herein as follows:

[Appellant] was found guilty of Rape of a Child, Involuntary Deviate Sexual Intercourse with a Child, Aggravated Indecent Assault of a Child, and Unlawful Contact with a Minor, following a jury trial on July 25, 2017.[1] These charges stemmed from a May 21, 2014 phone call to the police which reported the sexual assault of the complainant, [N.W.], 1 age 12, by her cousin, [A]ppellant. When officers arrived, the complainant stated to the police that [Appellant] had digitally penetrated her vagina earlier that same day. At trial, the complainant testified that [A]ppellant had been touching her inappropriately since August 2013. Notes of Testimony ("N.T."), 07/19/2017, at 16, 29-31, 36, 38. Appellant was tried by a jury and convicted for the above offenses and was sentenced on January 29, 2018 to an aggregate term of 15 to 40 years of state confinement and 10 years reporting probation with Megan's Law Lifetime Registration. Sentencing Order, 01/29/18. This timely appeal followed.
***
Evidence
At trial, the [C]ommonwealth's case-in-chief consisted of the testimony of nine (9) witnesses: Complainant, [N.W], [J.D. IV], ([N.W's] step father), [A.W.] ([N.W.'s] great aunt), [M.W.] ([N.W.'s] brother), Police Officer Ramon Rosado, Detective Erin Hinnov (Special Victim's Unit-Child Abuse Unit), Detective Michael Swan, Dr. Maria McColgan and Michele Kline (Forensics Interview Specialist, Children's Alliance). The errors claimed by [A]ppellant deal specifically with the testimony of the complainant and of Dr. Maria McColgan, who was called by the Commonwealth as an expert witness in the field of physical and sexual abuse of children, whose testimony included hearsay statements of the complainant contained within her medical records.
Complainant's Trial Testimony
The complainant testified as follows. Complainant was born on November 29, 2001 and was sixteen (16) years [old] at the time of trial. She testified that she spent time at her aunt's house at 2527 North 19th St. while her mother was at work. N.T., 07/20/17, at 17-18. The Appellant, who was the complainant's older cousin, also resided at this location with the complainant's aunt. Id. The complaint [sic] testified that the Appellant began inappropriately touching her in August of 2013. Id. at 16. She testified that on one occasion, the Appellant placed her on top of him "and started like rocking [her] back and forth. . . ." Id. at 23. Several times, the Appellant digitally raped her. Id. at 27-28. When the victim was 11 years old, [Appellant] licked and rubbed his penis on the complainant's vagina. Id. at 28-29. The complainant testified that, during one such encounter, the Appellant, referring to his penis, told her, "I'm just going to rub it on top." Id. at 30.
After these reoccurring incidents, the complainant asked the Appellant why he was doing this to her. Id. at 32. In response to the complainant's question, the Appellant said he and the complainant were going to get married and have kids. Id. at 32. Another time, [Appellant] "took out his penis" and attempted to force the victim to touch it. Id. at 30.
On May 21, 2014, the complainant called the police after the Appellant again inserted his fingers into her vagina. Id. at 35-37.
118 Pa.C.S.A. § 3121 §§ C, § 3123 §§ B, § 3125 §§ B, and § 6318 §§Al, respectively.

Trial Court Opinion, filed 1/10/19, at 1-2, 3-4.

         On January 29, 2018, Appellant was sentenced to an aggregate prison term of fifteen (15) years to forty (40) years to be followed by ten (10) years of reporting probation. Appellant filed a post-sentence motion on February 11, 2018, and the trial court denied the same on February 13, 2018.

Appellant filed a timely appeal on March 1, 2018. On March 5, 2018, the trial court directed him to file a concise statement of the matters complained of on appeal pursuant to Pa.R.A.P. 1925(b), and, after receiving his requested extension of time in which to do so, Appellant filed his concise statement on May 30, 2018. Therein, Appellant set forth five points of error, and he presents two of those claims in the Statement of the Questions Involved portion of his appellate brief:
A. Was not the evidence insufficient for conviction of unlawful contact with a minor, insofar as [Appellant] was not in contact with the ...

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