Commonwealth v. Moore

• Court: Pennsylvania Superior Court
• Writing for the Court: MEMORANDUM BY KING, J.
• Decision Date: 23 April 2021
• Docket Number: J-A04026-21,No. 755 EDA 2020,755 EDA 2020
• Citation: Commonwealth v. Moore, J-A04026-21, No. 755 EDA 2020 (Pa. Super. Ct. Apr 23, 2021)
• Parties: COMMONWEALTH OF PENNSYLVANIA Appellee v. ANDRE MOORE Appellant

COMMONWEALTH OF PENNSYLVANIA Appellee v. ANDRE MOORE Appellant

J-A04026-21

No. 755 EDA 2020

SUPERIOR COURT OF PENNSYLVANIA

APRIL 23, 2021

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered November 26, 2019

In the Court of Common Pleas of Delaware County

Criminal Division at No(s): CP-23-CR-0005396-2018

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.^*

MEMORANDUM BY KING, J.:

Appellant, Andre Moore, appeals from the judgment of sentence entered in the Delaware County Court of Common Pleas, following his jury trial convictions for aggravated indecent assault of a person less than thirteen, indecent assault of a person less than thirteen, corruption of minors, and aggravated indecent assault of a child.¹ We affirm.

The relevant facts and procedural history of this appeal are as follows:

...[V]ictim...was eleven and in sixth grade, living with her aunt, E.P.,² in Chester, Delaware County. Appellant was E.P.'s boyfriend at the time of the assault.

² This [c]ourt will use the initials of...[V]ictim's aunt in order to protect...[V]ictim's anonymity.

During the time that...[V]ictim was residing with E.P., Appellant would come over and stay at the residence. One day, ...[V]ictim came home from school and was watching television in her room; no one else was home. A couple of hours later, Appellant entered the home and asked...[V]ictim if she would like to watch a movie in E.P.'s room. ...[V]ictim turned off her tv and went with Appellant into E.P.'s room to watch a movie; it was not uncommon for the household to watch movies in E.P.'s bedroom. ...[V]ictim laid down on the bed, resting her head on the pillows. Appellant laid down in the same direction, on the left-hand side of...[V]ictim. While they were watching the movie, Appellant began rubbing...[V]ictim's vagina, underneath her clothing, with his fingers. It lasted for a couple of minutes and it hurt; Appellant asked her if she ever touched herself "down there" or if she wanted him to touch her. Because she was scared to move or answer, ...[V]ictim laid there, facing the tv and remained silent. ...[V]ictim was confused as to why it was happening, but she wanted it to stop, so she asked if she could go to the bathroom down the hall. Appellant stopped the touching at that point, and...[V]ictim walked down the hall to the bathroom.

...[V]ictim went into the bathroom, shut the door, but did not lock it because the lock does not work. As she was finishing going to the bathroom and pulling up her pants, Appellant walked in and pulled down his own pants and told...[V]ictim to "turn around." ...[V]ictim turned around and she could feel Appellant rubbing his penis between her legs. She did not physically see his penis, but she felt it on her bare skin as her pants were still down at this point. As he was rubbing his penis between her legs, Appellant had his hands grabbing onto her waist. Appellant's penis was not inside of...[V]ictim's vagina. When Appellant stopped the rubbing, he told...[V]ictim to clean off and he left the bathroom. ...[V]ictim used a washcloth to wipe off and went back into her own bedroom. Appellant walked by the door of her room and told her not to tell her aunt what had occurred. When he walked away, ...[V]ictim began crying. At this point, it was nighttime, and she fell asleep without seeing her aunt that evening.

The following morning, ...[V]ictim saw her aunt but did not tell her what happened with Appellant the night before because she was too scared that her aunt would be mad at her and would not believe her.

Although she did not tell her aunt, ...[V]ictim told her friend, M.C. (also eleven at the time) as they were walking to school that day. M.C. and...[V]ictim are close friends, and both were in the same class at Toby Farms Elementary. M.C. and...[V]ictim walked to school together, as they usually do. M.C. noticed that...[V]ictim was acting differently, being much more quiet than usual. When they had reached the school, but were still outside, ...[V]ictim handed M.C., her notebook. M.C. opened the notebook, recognized the handwriting inside to be...[V]ictim's and read a sentence that said a guy stuck his finger inside of [Victim] and had sex with her. After she read it, M.C. told...[V]ictim to rip out the page and throw it away because she did not want other people to see it. M.C. felt like it would make the other kids at school talk about her. M.C. saw...[V]ictim rip the page out of the notebook and throw it away.

During the school day, ...[V]ictim also told another friend, J.M. (also a minor), who then accompanied her to the principal's office, where she told the Vice Principal, Dr. Lorrain Baptiste.

Dr. Baptiste had been the Vice Principal at Toby Farms Elementary School for a total of two years; she was familiar with...[V]ictim as a 6^th grader in her school at the time. On May 30, 2018, in the morning hours, ...[V]ictim had come into the office with her friend; she was very quiet, and her friend kept saying to her "tell her." ...[V]ictim told Dr. Baptiste, that she "was raped" at which point, Dr. Baptiste excused the friend from the office. Knowing that children that young can sometimes misinterpret the meaning of such a heavy word, she asked...[V]ictim to explain more of what happened. ...[V]ictim told Dr. Baptiste that she was sitting at home at her aunt's house, where she and her aunt's boyfriend were watching television; the boyfriend began touching her inappropriately, so she got up from the sofa and went to the bathroom and he followed her inside the bathroom and touched her again. Dr. Baptiste asked if the touching was of her private parts, and...[V]ictim answered "yes." Dr. Baptiste asked what happened in the bathroom and...[V]ictim told her that she had gone to the bathroom, and that she was sitting on the toilet when he came in and started touching her again. ...[V]ictim stated that her aunt was at work at the time because she works nights. Dr. Baptiste did not want to get too far into the conversation before alerting the social worker, so she asked...[V]ictim if she was hurt or bruised and...[V]ictim stated that she was not. At that point, Dr. Baptiste told the Principal, who placed a call to the District's social worker. Dr. Baptiste used the word "rape" in the report but also used the word "fondling" because the actions that...[V]ictim described to her seemed to fit that description over the word rape. ...[V]ictim seemed shy and ashamed at first but did not appear apprehensive or scared once she started talking. Dr. Baptiste did not take notes of their meeting because she knows that is the job of the social worker.

As a result of...[V]ictim's disclosure, Ms. Tammy Cox-Cottman, school social worker for Chester Upland School District, which includes Toby Farms Intermediate School, was called to come speak with...[V]ictim. It is District policy that a social worker become involved in any child abuse situations in order to make the report to Child Line. Ms. Cox-Cottman arrived at the school shortly after she was requested; she knows that it was May 30, 2018. When she spoke with...[V]ictim, ...[V]ictim told her that her aunt's boyfriend, [Appellant], touched her breasts and vagina area during a movie, that he asked her to watch, while they were both inside her aunt's home; her aunt was at work. ...[V]ictim told Ms. Cox-Cottman that she asked to go to the bathroom, but he had come into the bathroom while she was in there and asked her to bend over and [h]e began rubbing his penis against her backside. Ms. Cox-Cottman made notes of the interaction. ...[V]ictim told Ms. Cox-Cottman that Appellant told her not to tell anyone. Ms. Cox-Cottman believed that...[V]ictim told her the touching occurred while her clothing was on. Based upon the information provided, Ms. Cox-Cottman made a formal report of child abuse to the Child Line Hotline.

As it was the end of the school day, ...[V]ictim's aunt, was already on her way to pick her up. Ms. Cox-Cottman had...E.P. come into the room with her and...[V]ictim. Although...[V]ictim was not crying when talking to Ms. Cox- Cottman, as soon as she saw her aunt, she broke down and started crying.

E.P., was told by...[V]ictim that something had happened to her the night before. ...[V]ictim told E.P., that she didn't want to tell her because [Victim] thought that she would be blamed since Appellant was [E.P's] boyfriend. E.P. recalled that the night before, she had come home from work, she saw the lights and tv on in...[V]ictim's room, but she thought...[V]ictim was asleep, so she just turned them off. Appellant had called E.P. earlier in the day and said that he would be going over and that he could be there when she got home from work. According to E.P., it was normal for people to watch tv in her room.

As a result of the call to Child Line, on June 11, 2018, ...[V]ictim met with Ms. [Susanne Hawkins Whiting], who works at the Delaware County Children's Advocacy Center, an organization whose focus is to bring together different child serving agencies for the coordination of investigation of child abuse. In her position as a Child Forensic Interviewer, she would conduct [interviews] with children who were victims or witnesses to a crime or abused, either physically or sexually, in order [to] elicit information about their experiences. ...[V]ictim told Ms. Whiting that Appellant touched her vaginal area with his fingers and also that he rubbed his penis on her behind area.

Officer Jennifer Jones, of the Chester City Police Department also became involved in the case as a result of her title as a Juvenile Investigator. Officer Jones specifically handles investigations on cases that involve children under the age of eighteen as a victim. Officer Jones received a report from Child and Youth Services that...[V]ictim had made a report of sexual abuse with Appellant as the abuser. As a result of the report, Officer Jones made contact with...[V]ictim's aunt, E.P., who

...