Commonwealth v. Calhoun, 212 MDA 2022

CourtSuperior Court of Pennsylvania
Writing for the CourtPANELLA, P.J.
PartiesCOMMONWEALTH OF PENNSYLVANIA v. DONSHAY LAMAR CALHOUN Appellant COMMONWEALTH OF PENNSYLVANIA v. DONSHAY LAMAR CALHOUN Appellant
Docket Number212 MDA 2022,213 MDA 2022
Decision Date22 November 2022

COMMONWEALTH OF PENNSYLVANIA
v.

DONSHAY LAMAR CALHOUN Appellant

COMMONWEALTH OF PENNSYLVANIA
v.

DONSHAY LAMAR CALHOUN Appellant

Nos. 212 MDA 2022, 213 MDA 2022

Superior Court of Pennsylvania

November 22, 2022


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered November 10, 2021 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0005052-2019, CP-67-CR-0003607-2019

BEFORE: PANELLA, P.J., BENDER, P.J.E., and LAZARUS, J.

MEMORANDUM

PANELLA, P.J.

In these consolidated appeals, Donshay Lamar Calhoun appeals from the judgments of sentence entered against him following his convictions, at two separate dockets, of statutory sexual assault and related offenses based on charges that he sexually assaulted two of his paramour's daughters.

1

Calhoun now challenges the weight of the evidence supporting his convictions and the admission of certain expert testimony. After careful review, we affirm.

Calhoun became romantically involved with the complainants' mother ("Mother") in 2012, and he moved into the family's home on West King Street in York, Pennsylvania shortly thereafter.[1] At the time, A.K. was approximately 13 years old and N.K. was approximately 11 years old.[2] Calhoun often supervised the children while Mother was at work or school. Eventually, A.K. and N.K. began to view Calhoun as a father figure.

The family moved to a house on Prospect Street in Lower Windsor Township, York, Pennsylvania. The first assault against A.K. occurred in spring 2013, while Mother was at work. A.K. described laying on Mother's bed, and Calhoun "put his penis into [her] vagina," then ejaculated into her mouth. See N.T. (Jury Trial), 3/2/21, at 156-59. A.K. testified that these assaults occurred weekly, and sometimes more frequently, while they lived at the Prospect Street house. See id. at 159-50. Calhoun never used a condom. See id. at 160. On one occasion, Calhoun gave A.K. a "small yellow pill" and instructed her to take it. See id. at 162; see also id. at 172 (wherein A.K. testified, "For about two to three months, anytime that he would ever ejaculate and there would be anything left inside of me, he would give me a plan B pill.").

2

The family later moved to a house on Locust Street in York. The assaults on A.K., who was 14 years old at that time, continued while they lived at this address. See id. at 165. Around this time, Calhoun also performed oral sex on A.K., and A.K. performed oral sex on Calhoun. See id. at 165-66.

A.K.'s relationship started to change when she was 15 and the family moved to a house on Jackson Street in York. A.K. stated that the sexual incidents were still occurring but became more sporadic. See id. at 169-70. She described being in high school, "growing up wanting to experience new different things, and [Calhoun] was very against that." Id. at 170. Around this time, A.K. began to deny Calhoun's requests for sex; Calhoun would sometimes try to convince her but eventually backed down. See id. at 172.

The family also moved to North Carolina, where A.K. stated the assaults continued, albeit less frequent. See id. at 177-78. A.K. explained that she "didn't want to continue doing it because at that point [she] kind of understood that this was wrong and it shouldn't have been happening." Id. According to A.K., she was 18 years old at the time of her last sexual contact with Calhoun. See id. at 179.

The first assault against N.K. occurred in the Locust Street home, when N.K. was 13 years old. See N.T. (Jury Trial), 3/3/21, at 237. Calhoun expressed to N.K. that he had a dream about her and asked if they could "do something together." Id. Calhoun asked to rub his penis on N.K.'s tongue, and when N.K. stated that she was scared, Calhoun told her to close her eyes.

3

See id. at 238-39. At some time after that incident, Calhoun told N.K. to lie on Mother's bed and "he touched all over [her] body." See id. at 240-41; see also id. at 242 (clarifying that Calhoun touched N.K.'s breasts, vagina, stomach, and legs, both over and under her clothing).

Later, Calhoun asked N.K. to perform oral sex on him, and eventually, he initiated vaginal sex. See id. at 243-50. N.K. recalled the assaults occurring "at least every month." Id. at 251. This pattern of behavior continued after the family moved to the Jackson Street house. See id. at 258.

N.K. testified the abuse continued in North Carolina and continued after the family later moved to South Carolina. See id. at 260-64. While living in South Carolina in 2017, when N.K. was 16 years old, N.K. became pregnant. See id. at 264. At trial, the parties stipulated to the DNA results indicating a 99.99995% probability that Calhoun was the father of N.K.'s child.[3] See Commonwealth's Exhibit 10 (NMS Labs Forensic Biology Final Report). N.K. testified that Calhoun initially instructed her to hide the pregnancy with clothing, and when Calhoun determined they needed to leave, N.K. packed her things and the two spent several weeks in Florida. See N.T. (Jury Trial), 3/3/21, at 269-72.[4]

4

A.K. first reported Calhoun via a written statement provided to police in South Carolina in 2017, after she learned about N.K.'s pregnancy. See N.T. (Jury Trial), 3/2/31, at 215-18. She was told she had to speak with Pennsylvania police, which she did a few days later. See id. at 216. N.K. spoke with police in October 2018. See N.T. (Jury Trial), 3/3/21, at 295-96. Based on the girls' reports and the DNA testing results, police arrested and charged Calhoun.

Prior to trial, the Commonwealth filed notice of its intention to present Amber Crawford Wagman[5] as an expert in factors surrounding sexual violence, victims' responses to sexual violence, and the impact of sexual violence of victims during and after being assaulted pursuant to 42 Pa.C.S.A. § 5920.[6]

5

Calhoun filed an objection arguing, inter alia, that Wagman's testimony would be based on conjecture and speculation because the testimony would be based on categorical opinions. Following a hearing, the trial court denied Calhoun's motion and permitted the Commonwealth to introduce Wagman as an expert witness.

The cases were consolidated for a jury trial. At trial court docket No. 3607-2019, relating to A.K., Calhoun was convicted of two counts each of statutory sexual assault - 11 or more years older than complainant, indecent assault - complainant less than 16 years of age, and corruption of minors, and one count of involuntary deviate sexual intercourse ("IDSI") - complainant less than 16 years of age. At trial court docket No. 5052-2019, relating to N.K., Calhoun was convicted of two counts each of statutory sexual assault - 11 or more years older than complainant, IDSI - complainant less than 16 years of age, indecent assault - complainant less than 16 years of

6

age, and corruption of minors, and one count of aggravated indecent assault - complainant less than 16 years of age.[7] [8]

The trial court deferred sentencing pending completion of a pre-sentence investigation report, as well as an assessment by the Sexual Offender Assessment Board ("SOAB") to determine whether Calhoun is a sexually violent predator ("SVP"). Following the combined SVP and sentencing hearing, the court designated Calhoun an SVP and notified him of his sexual offender registration requirements.[9] The trial court sentenced Calhoun, at No. 3607-2019, to an aggregate term of 28 years, 9 months to 57½ years in prison, and at No. 5052-2019, to an aggregate term of 37½ to 75 years in prison.

7

Calhoun filed a timely post-sentence motion arguing, inter alia, that the sentences imposed for his statutory sexual assault convictions were beyond...

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