Commonwealth v. Natal

Decision Date13 October 2021
Docket NumberJ-S28045-21,1960 EDA 2020
PartiesCOMMONWEALTH OF PENNSYLVANIA v. ANGEL NATAL Appellant
CourtPennsylvania Superior Court

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the PCRA Order Entered October 16, 2020 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0004656-2015

BEFORE: BOWES, J., DUBOW, J., and PELLEGRINI, J. [*]

MEMORANDUM

PELLEGRINI, J.

Angel Natal (Natal) appeals from the October 16, 2020 order of the Court of Common Pleas of Philadelphia County (PCRA court) dismissing his petition filed pursuant to the Post-Conviction Relief Act (PCRA).[1] We affirm.

I.

The PCRA court set forth the facts of this case as follows:

G.F. was 13 years old when [Natal] sexually assaulted her. She was 15 years old when she testified at trial. In February of 2015, G.F. lived in a house in Philadelphia with her mother, stepfather, and siblings. At that time [Natal]-G.F.'s stepbrother-also lived there.
On February 14, 2015, G.F. and her family, including [Natal] went out to dinner at Applebee's. Upon returning home, G.F. remained downstairs in the living room, while the rest of her family went upstairs to sleep. G.F. eventually fell asleep while watching a movie on the couch. At some point, she awoke to a sharp pain. G.F. described the pain as "burning and tearing, something ripping." G.F. also saw [Natal] on top of her with his pants down and his penis inside of her vagina. She was unable to push [Natal] away because he was holding her wrists down. [Natal] eventually shifted his body, allowing G.F. to raise her left leg and push him onto the floor. At this time, G.F. noticed that he was wearing a condom because his penis appeared clear and shiny. She also observed something white inside of the condom. After he pulled up his pants, [Natal] stumbled into the kitchen and then came back and went upstairs.
The following morning, G.F.'s mother, Sandra DeJesus, noticed two half-dollar sized hickeys on G.F.'s collarbone. When Ms. DeJesus began asking questions, G.F. cried and would not look at her. Ms. DeJesus went downstairs and tried to wake up [Natal]. She yelled at G.F., asking her what was going on. Ms. DeJesus then walked to the kitchen to throw away trash. When a napkin fell out of the trashcan, Ms. DeJesus picked it up and observed a used condom wrapped inside. She proceeded to scream at [Natal] and ask him what happened. [Natal] repeatedly said, "I'm sorry."
G.F. ultimately disclosed the assault to Ms. DeJesus. G.F. explained that she was asleep when she awoke to a pain and saw [Natal] on top of her. She further described [Natal] "grabbing on her arms, pulling her down" and being "inside of her." G.F. did not want to go to the police or a doctor because she was afraid.
Several weeks later, G.F.'s father took her to Saint Christopher's Hospital because she was experiencing stomach pains. At the hospital, G.F. again disclosed the assault. However, G.F. did not describe "everything" but rather only the "important part." The police arrived at the hospital and spoke to G.F. The hospital then performed tests and diagnosed G.F. with a urinary tract infection. G.F. also spoke to the Department of Human Services ("DHS") and was interviewed by the Philadelphia Children's Alliance ("PCA").
Nolita Martin, 1 [Natal's] sister, testified on behalf of the defense. Ms. Martin testified that she attended the Applebee's dinner with her infant son. The following day, she received a telephone call from Ms. DeJesus between 11:00 a.m. and 12:00 p.m. Ms. Martin was told that [Natal] "had done something wrong, and he had to leave." When she arrived at the house, Ms. Martin spoke to G.F.'s parents. Ms. DeJesus told her that [Natal] raped G.F. Ms. Martin asked for proof and was told about the condom in the trash can. She dug through the trash but was unable to find the condom.
1Ms. Martin also goes by the names Nolita Cambose and Zio.
Ms. Martin then spoke to G.F. privately in her bedroom. According to Ms. Martin, G.F. appeared "scared because her mom was mad at her" and was being punished because "she didn't want to tell her mom if [Natal] had done it or didn't do it." She also described G.F.'s demeanor as "sad." During this conversation, Ms. Martin repeatedly asked G.F. whether [Natal] had touched her. G.F. responded, "no," and explained that she "would never say that about [Natal] because [she] love[d] him as a brother."
[Natal] also testified in his own defense. [Natal] testified that he was not living with G.F.'s family at the time but slept over at the house after the Applebee's dinner. [Natal] fell asleep on the couch and awoke the following morning to Ms. DeJesus "snapping." Ms. DeJesus questioned him about the hickeys on G.F.'s neck, and [Natal] explained that G.F. told him they were from a girlfriend. [Natal] testified that he and G.F. were "really close" and that he "look[ed] at her like [his] sister."
During cross-examination, [Natal] agreed that he saw the half-dollar sized hickeys on G.F.'s neck that Ms. DeJesus described. He also initially agreed that G.F. did not have the hickeys on her neck at dinner the night before. However, [Natal] then stated that G.F. did not have any hickeys at all.
***
During cross-examination [of G.F.], trial counsel pointed out that the description of the events given by G.F. at Saint Christopher's Hospital differed from her trial testimony. Trial counsel, relying on G.F.'s medical records, recited the following:
[P]atient also reports sexual assault on 2/13/2015. The family went out to dinner at Applebee's that night. She feel [sic] asleep on the couch and awoken [sic] in the middle of the night to find her 22-year-old stepbrother, [Natal], on top of her, touching her thighs and "everywhere."
She noted that he seemed like he was drunk. She told him to get off her, which he did. But then got on top of her again. This time he tried to pull her pants off so she kicked him off, ran up to her room and locked herself in her room.
N.T. 10/12/2016, at 62-63. However, G.F. testified that she did not recall providing that account. Rather, she recalled telling the doctor or nurse that she awoke to find [Natal's] penis inside of her vagina.
During an interview with DHS, G.F. stated that [Natal] held her wrists down, placed his penis inside of her vagina, and left hickeys on her neck. She also described the pain she experienced as feelings of "ripping" and "stinging."
Finally, G.F. attended a PCA interview on March 30, 2015, at which time she again described waking up to find [Natal]'s penis inside of her vagina.
***
The final Commonwealth witness to testify was Christina Donnian, a DHS employee assigned to a specialty unit for sexual abuse. Ms. Donnian had an opportunity to speak with G.F. at her home and later to observe her PCA interview. According to Ms. Donnian, those two interviews were substantially the same. Furthermore, she described G.F. as consistent throughout the investigation.

PCRA Court Opinion, 3/25/21, at 1-4, 7-9 (citations omitted).

Following a non-jury trial, Natal was found guilty of statutory sexual assault, sexual assault, corruption of minors, indecent assault and two counts of rape.[2] He was sentenced to 6 to 15 years of incarceration to be followed by 15 years of probation.

Natal filed a timely direct appeal raising a single issue: whether his conviction for indecent assault should merge for sentencing purposes with his conviction for rape. See Commonwealth v. Natal, 876 EDA 2017, at *2 (Pa. Super. May 9, 2018) (unpublished memorandum). We concluded that it did and vacated his conviction for indecent assault but declined to remand for resentencing because our disposition did not upset the sentencing scheme. Id. at 8. The judgment was entered and jurisdiction was relinquished on May 9, 2018. The docket sheet from his direct appeal reveals that the record was remitted to the trial court on June 25, 2018. Id. (docket sheet). Natal did not file a petition for allowance of appeal in the Supreme Court.

No further action was taken until February 1, 2019, when direct appeal counsel filed a praecipe to be removed as counsel in the Supreme Court. See Commonwealth v. Natal, 10 EM 2019 (Pa. March 29, 2019) (docket sheet). Neither the docket sheet nor the certified record reveal what precipitated this filing. On March 29, 2019, the Supreme Court remanded the case to the trial court to determine whether counsel should be permitted to withdraw. Id. Additionally, the order stated: "If present counsel is permitted to withdraw, the court is DIRECTED to resolve any issues relative to Angel Natal being appointed counsel or granted leave to proceed pro se." Id. (per curiam).

On April 30, 2019, the trial court granted direct appeal counsel's motion to withdraw and appointed new counsel "for appeal purposes." Order, 4/30/19. On May 17, 2019, newly-appointed appellate counsel filed a petition for leave to file petition for allowance of appeal nunc pro tunc in the Supreme Court. See Commonwealth v. Natal, 49 EM 2019 (Pa. July 15, 2019) (docket sheet). The Supreme Court denied the petition on July 15, 2019. Id.

On October 2, 2019, Natal filed the instant pro se PCRA petition and did not plead any exception to the PCRA's jurisdictional time-bar. The PCRA court appointed counsel who filed an amended petition on February 18, 2020. In his memorandum in support of the amended petition, PCRA counsel set forth the above procedural history and asserted that Natal had until October 15, 2020, to file a first timely PCRA petition.[3] Memorandum of Law in Support of Amended Petition for Relief Pursuant to the Post-Conviction Relief Act, 2/18/2020, at 10-11. In the alternative, the memorandum asserted:

If the Commonwealth contends that the PCRA is
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