Commonwealth v. Lamont

• Court: Pennsylvania Superior Court
• Writing for the Court: OPINION BY SULLIVAN, J.
• Citation: Commonwealth v. Lamont, 308 A.3d 304 (Pa. Super. Ct. 2024)
• Docket Number: 112 MDA 2023,No. 112 MDA 2023
• Decision Date: 09 January 2024
• Parties: COMMONWEALTH of Pennsylvania v. Christopher Ray LAMONT, Appellant

308 A.3d 304

COMMONWEALTH of Pennsylvania

v.Christopher Ray LAMONT, Appellant

No. 112 MDA 2023

Superior Court of Pennsylvania.

Submitted July 31, 2023

Filed January 9, 2024

Appeal from the Judgment of Sentence Entered July 7, 2022, In the Court of Common Pleas of Lycoming County, Criminal Division, at No(s): CP-41-CR-0000356-2020, Kenneth D. Brown, J.

Nicole J. Spring, Chief Public Defender, Williamsport, for appellant.

Martin L. Wade, Assistant District Attorney, Williamsport, for Commonwealth, appellee.

BEFORE: BENDER, P.J.E., BOWES, J., and SULLIVAN, J.

OPINION BY SULLIVAN, J.:

Christopher Ray Lamont ("Lamont") appeals from the judgment of sentence entered following his jury convictions for two counts of indecent assault of a child, and one count each of aggravated indecent assault of a child, corruption of minors, and indecent exposure.¹ After careful review, we affirm in part, vacate in part, and remand for resentencing.

We take the underlying facts and procedural history in this matter from the trial court’s opinion and our independent review of the certified record. In 2019, when she was nine years old, the Victim disclosed to her grandmother ("Grandmother"), that Lamont, who was Grandmother’s boy- friend, sexually molested her. See Trial Court Opinion, 1/12/23, at 2-3. The Victim lived within walking distance of Grandmother’s house. See id. at 3. Lamont and Grandmother would watch the Victim when the Victim’s mother ("Mother") was working. See id. at 3. Grandmother confronted Lamont, who admitted touching the Victim, but said it was an "accident" and promised to apologize to the Victim. Id. at 3 (quoting N.T., 3/22/22, at 47).

After Lamont apologized, the Victim told Grandmother Lamont had molested her several times. See id. Grandmother again confronted Lamont who "just stood there." Id. (quoting N.T., 3/22/22, at 47). Grandmother left for work and, when she returned, Lamont had fled, leaving all his possessions, including important documents in her home. See id. at 3. Grandmother contacted the police. See id.

Following his departure, Lamont contacted Grandmother by phone. See id. at 3-4. Lamont begged her not to press charges, apologized, threatened to commit suicide, and claimed he did not know why he had molested the Victim. See id. Grandmother put the call on speakerphone and both Mother and Grandmother’s best friend overheard the conversation. See id. at 4.

Before trial, the Commonwealth filed a notice pursuant to 42 Pa.C.S.A. § 5985 of its intention to allow the Victim to testify by a contemporaneous alternate method. Notice, 1/12/22, at 1 (unnumbered). Following a hearing, the trial court granted the motion and the Victim testified at trial via video. A jury convicted Lamont of the above-cited charges.

[1] At sentencing, new counsel represented Lamont. The trial court sentenced Lamont to an aggregate term of incarceration of twelve to twenty-five years, followed by three years of probation. The trial court did not find Lamont to be a sexually violent predator. The trial court sentenced Lamont to serve this sentence ("Lycoming sentence") consecutively to a sentence he received in Monroe County for a violation of probation ("revocation sentence"). The trial court, when awarding credit for time served, attempted to parse the time Lamont was in custody for the revocation sentence from the Lycoming sentence. Lamont timely filed a post-sentence motion, which the trial court denied following a hearing.² The instant, timely³ appeal followed.⁴

On appeal, Lamont raises the following issues:

I. Did the [trial] court err by permitting the Victim to testify by contemporaneous electronic means?

II. Did the [trial] court abuse its discretion by permitting the Commonwealth to reopen their case to call Assistant Police Chief Jason Bolt to testify?

III. Did the [trial] court abuse its discretion by denying defense counsel the opportunity to question the Victim about whether she knew of [ ] Lamont’s relationship with a woman other than the Victim’s Grandmother as a way of establishing bias or motive?

IV. Did the [trial] court err by failing to award [ ] Lamont credit for time served prior to sentencing?

Lamont’s Brief at 7 (unnecessary capitalization omitted).

[2] In his first issue, Lamont argues the trial court erred in allowing the minor Victim to testify by a contemporaneous alternative method rather than in the courtroom. See Lamont’s Brief at 13-17.

[3–7] Our standard of review is settled: The admissibility of evidence is at the discretion of the trial court and only a showing of an abuse of that discretion, and resulting prejudice, constitutes reversible error.

The term "discretion" imports the exercise of judgment, wisdom and skill so as to reach a dispassionate conclusion, within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused when the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill will.

Commonwealth v. Hudson-Greenly, 247 A.3d 21, 24 (Pa. Super. 2021) (some quotation marks and citations omitted).

The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him …" Article 1, Section 9 of the Pennsylvania Constitution provides: "In all criminal prosecutions the accused hath a right … to be confronted with the witnesses against him …. "² With regard to the Confrontation Clause, the Pennsylvania Constitution provides a criminal defendant with the same protection as the Sixth Amendment[.]²

The Pennsylvania Constitution previously required "face to face" confrontation, and under such provision, the use of videoconferencing [ ] to present testimony was found to be unconstitutional. See Commonwealth v. Ludwig, 527 Pa. 472, 594 A.2d 281 (1991). The Pennsylvania Constitution was amended in 2003, removing the "face to face" language.

Commonwealth v. Atkinson, 987 A.2d 743, 745 and n.2 (Pa. Super. 2009) (citation and footnote omitted, some citation formats modified).

Section 5985 of the Judicial Code governs testimony by a contemporaneous alternative method:

(a) Contemporaneous alternative method.—Subject to subsection (a.1), in any prosecution or adjudication involving a child victim [ ], the court may order that the testimony of the child victim [] be taken under oath or affirmation in a room other than the courtroom and transmitted by a contemporaneous alternative method. Only the attorneys for the defendant and for the Commonwealth, the court reporter, the judge, persons necessary to operate the equipment and any person whose presence would contribute to the welfare and well-being of the child victim [ ], including persons designated under section 5983 (relating to rights and services), may be present in the room with the child during his testimony. The court shall permit the defendant to observe and hear the testimony of the child victim [] but shall ensure that the child cannot hear or see the defendant. The court shall make certain that the defendant and defense counsel have adequate opportunity to communicate for the purposes of providing an effective defense. Examination and cross-examination of the child victim [ ] shall proceed in the same manner as normally permitted.

(a.1) Determination.—Before the court orders the child victim [ ] to testify by a contemporaneous alternative method, the court must determine, based on evidence presented to it, that testifying either in an open forum in the presence and full view of the finder of fact or in the defendant’s presence will result in the child victim [ ] suffering serious emotional distress that would substantially impair the child victim’s [ ] ability to reasonably communicate. In making this determination, the court may do all of the following:

(1) Observe and question the child victim [ ], either inside or outside the courtroom.

(2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child victim [] in a medical or therapeutic setting.

42 Pa.C.S.A. § 5985(a), (a.1) (emphasis added).⁵

In Commonwealth v. Strafford, 194 A.3d 168 (Pa. Super. 2018), this Court rejected the notion a child victim must exhibit a particular degree of emotional distress before allowing testimony by a contemporaneous alternate method. This Court stated:

Insofar as Appellant suggests that a child victim must essentially break down in [the trial court’s] presence before permitting testimony by contemporaneous alternative method, we need not belabor the absurdity of this proposition given our legislature’s clear policy expression in this regard. See 42 Pa.C.S. § 5981 (declaring the General Assembly's intent to provide special procedures as necessary [ ] to protect [the child victim] and to promote the best interests of victims and material witnesses of this Commonwealth who are under 18 years of age during their involvement with the criminal justice system).

Strafford, 194 A.3d at 175 n.5.

Lamont argues the Victim’s greatest expressed fear was not testifying in front of him but "no one would believe her testimony [.]" Lamont’s Brief at 14. Lamont notes the Victim initially testified she felt " ‘braver’ for coming forward." Id. (citing N.T., 1/21/22, at 24). Lamont posits the Victim’s statements it would be frightening for her to testify in front of him and this would cause her to replay the events in her mind was insufficient to show "she was afraid to speak about her experiences." Id. at 15. Lamont maintains the visible changes in the Victim’s manner and demeanor during the hearing were not reflective of her fear of testifying in open...