Com. v. Bledsoe, J.

J-S19044-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

JOSEPH BLEDSOE, :

:

Appellant : No. 1552 EDA 2019

Appeal from the Judgment of Sentence Entered September 14, 2018

in the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0006872-2015

BEFORE: BOWES, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY MUSMANNO, J.: Filed: July 16, 2020

Joseph Bledsoe (“Bledsoe”) appeals, nunc pro tunc, from the judgment

of sentence entered following his conviction of one count each of rape,

involuntary deviate sexual intercourse (“IDSI”), sexual assault, incest,

endangering the welfare of a child, corrupting the morals of a minor, statutory

sexual assault, unlawful contact with a minor, and intimidation in a child abuse

case.1 We affirm.

The trial court described the trial evidence, viewed in a light most

favorable to the Commonwealth, as follows:

Between August of 2013, and February 19, 2015, [Bledsoe]

had a sexual relationship with his biological daughter, K.[(also

referred to as “the victim”)], who[,] at the time[,] was between

the ages of 15 and 16[,] and was living with [Bledsoe]. In August

of 2013, K.[] moved in with [Bledsoe] and her grandmother in

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1 18 Pa.C.S.A. §§ 3121(a), 3123(a)(1), 3124.1, 4302(a), 4304(a)(1),

6301(a)(1)(ii), 3122.1(b), 6318(a)(1), 4958(a)(2)(ii).

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West Philadelphia. Before that, she had lived with her mother,

step-father[,] and other siblings, and [Bledsoe] had been absent

from her life since she was approximately 2 or 3 years old.

[Bledsoe] and K.[]’s first sexual encounter occurred a few

months before she moved in with him. K.[] and her younger

sister, also [Bledsoe’s] daughter, spent the night at [Bledsoe’s]

house. Both girls were watching television on the couch. After

K.[]’s sister fell asleep on the couch, [Bledsoe] brought K.[]

upstairs to his bedroom and performed oral sex on her, made her

perform oral sex on him, and then engaged in vaginal intercourse

with her. After having sex with K.[], [Bledsoe] told her that what

they did was their “secret[,]” and that he would get in trouble if

she told anyone.

Shortly after K.[] moved in with [Bledsoe] in August of

2013, [Bledsoe] and K.[] began regularly engaging in sexual

activity. From that time until the last time they engaged in sexual

activity on February 19, 2015, a time period of nearly a year and

a half, [Bledsoe] and K.[] had sex a few times a week. This

included oral and vaginal sex. During this time, [Bledsoe] would

withhold money, such as money for lunch, or not pay for things

like clothes, shoes, and K.[]’s cell phone[,] unless K.[] continued

having sex with him.

In February of 2015, K.[] told her boyfriend[,] George

Campbell [(“Campbell”),] about her sexual encounters with her

father. Campbell insisted that K.[] should report [Bledsoe’s]

conduct to the police, but she did not want to get the police

involved. On February 22, 2015, Campbell came to [Bledsoe’s]

house to confront [Bledsoe] about what K.[] had told him, but

[Bledsoe] demanded that Campbell leave. However, a few hours

later, Campbell came back to the house to again confront

[Bledsoe], but [Bledsoe] refused to let him inside. K.[] attempted

to go outside to see Campbell, but [Bledsoe] physically restrained

her from doing so. Campbell heard the struggle going on inside

the house and called the police. When the police arrived, they

heard screaming and a commotion coming from inside the house.

Police knocked on the door, identified themselves, and asked the

occupants to open the door. When [Bledsoe] opened the door,

K.[] rushed out of the house crying. [Bledsoe] and Campbell

started yelling at each other, and [Bledsoe] proceeded to run

towards Campbell. Police ordered [Bledsoe] to stop and then

physically restrained him when he failed to do so. After police put

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[Bledsoe] in the back of their vehicle, [Bledsoe] began yelling for

K.[] and saying he wanted to speak to her. Meanwhile, K.[]

informed Officer Geneva Russell that [Bledsoe] had been sexually

abusing her. When this information was relayed to the other

officers on the scene, [Bledsoe] was placed under arrest.

… K.[] was transported to Philadelphia Children Alliance,

where she told staff about her sexual relationship with [Bledsoe].

On February 23, 2018, a sexual assault nurse performed a forensic

examination on K.[] and collected DNA from inside [of] her vagina.

Later, detectives collected DNA swabs from [Bledsoe] and

Campbell. The DNA found inside [of] K.[]’s vagina matched that

of [Bledsoe].

On March 8, 2015, [Bledsoe] called K.[] from prison and

instructed her to tell detectives that she and Campbell had planted

[Bledsoe’s] sperm in her vagina. Again, K.[] did as [Bledsoe]

instructed and testified at [Bledsoe’s] preliminary hearing on June

18, 2015, that she and Campbell had planted [Bledsoe’s] semen

in her vagina.

Trial Court Opinion, 2/15/19, at 3-5 (citations and footnote omitted).

A jury subsequently convicted Bledsoe of the above-described charges.

On September 14, 2018, the trial court sentenced Bledsoe to an aggregate

term of 35-70 years in prison. Bledsoe filed post-sentence Motions on

September 21, 2018. On September 25, 2018, the trial court granted trial

counsel’s request to withdraw from representation, and appointed James

Berardinelli (“Attorney Berardinelli”) to represent Bledsoe for litigation of his

post-sentence Motions and any appeal. However, while the post-sentence

Motions were pending, Bledsoe filed a pro se Notice of Appeal, which was

docketed at 2964 EDA 2018. On December 28, 2018, the trial court denied

Bledsoe’s post-sentence Motions, thereby perfecting Bledsoe’s appeal to the

Superior Court. See Commonwealth v. Cooper, 27 A.3d 994, 1008 (Pa.

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2011) (stating that when a premature appeal is filed during the pendency of

post-sentence motions, the trial court retains jurisdiction to decide the

motions; the appeal is perfected upon the filing of an order denying post-

sentence motions).2 Thereafter, Bledsoe filed a court-ordered Pa.R.A.P.

1925(b) Concise Statement of matters complained of on appeal. The trial

court filed an Opinion on February 15, 2019.

On May 16, 2019, this Court dismissed Bledsoe’s appeal filed at docket

number 2964 EDA 2018, because his counsel had failed to file an appellate

brief. That same day, Bledsoe filed a counseled Petition for relief pursuant to

the Post Conviction Relief Act (“PCRA”),3 seeking reinstatement of his direct

appeal rights, nunc pro tunc. The PCRA court granted Bledsoe’s Petition on

May 24, 2019. Thereafter, Bledsoe filed the instant nunc pro tunc appeal,

followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters

complained of on appeal.

Bledsoe presents the following claims for our review:

I. Is [Bledsoe] entitled to an arrest of judgment and/or a new

trial in the above[-]captioned matter on the ground that the

evidence was insufficient to establish the offenses of [r]ape by

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2 Bledsoe filed two additional Notices of Appeal from the same judgment of

sentence. On December 12, 2018, Bledsoe re-filed the Notice of Appeal that

he had filed at 2964 EDA 2018, which this Court docketed at 100 EDA 2019.

On January 22, 2019, Attorney Berardinelli filed a counseled Notice of Appeal,

which this Court docketed at 255 EDA 2019. This Court ultimately dismissed

the appeals filed at 2964 EDA 2018 and 100 EDA 2019 as duplicative of the

appeal filed at 255 EDA 2019.

3 See 42 Pa.C.S.A. §§ 9541-9546.

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[f]orcible [c]ompulsion and [IDSI,] since the Commonwealth’s

evidence failed to establish that the sexual intercourse and deviate

sexual intercourse in question was accomplished through forcible

compulsion?

II. Did the lower court err in precluding evidence of sexual activity

between [K.] and her boyfriend as a potential source of the sperm

discovered by the [K.]’s rape kit?

III. Did the [trial] court err[] in permitting Dr. Ralph Riviello [(“Dr.

Riviello”)] to testify to the contents of the [K.]’s medical records

when he had not been qualified as a records custodian and the

Commonwealth failed to lay the proper foundation for a business

record?

Brief for Appellant at 2-3.

Bledsoe first challenges the sufficiency of the evidence underlying his

convictions of rape by forcible compulsion and IDSI. See id. at 9. Specifically,

Bledsoe claims that the Commonwealth failed to prove the element of forcible

compulsion, which is necessary to establish each offense. See id. According

to Bledsoe, “K.[] did not describe being exposed to any physical coercion

during the course of her sexual relationship with [Bledsoe].” Id. at 10.

Bledsoe disputes the trial court’s statement that he had refused to pay for

clothing or K.’s cell phone unless she had sex with him. Id. Bledsoe asserts

that this is a mischaracterization of K.’s testimony. Id.

Bledsoe argues that, in her testimony, K. indicated that, upon revealing

to Bledsoe that she had a boyfriend, she did not receive “lunch money or stuff

like that or [a] new pair of shoes, or something like that.” Id. Bledsoe states,

“Thus, it is clear that [his] decision to withhold food or clothing from K. was

not contingent upon her engaging in sex, but rather, her involvement with her

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boyfriend, of whom [Bledsoe] did not approve.” Id. at 10-11. According to

Bledsoe, “the only remaining factors cited by the [trial] court to establish

forcible compulsion[] were the age and relationship of the parties.” Id. at 11.

In its Opinion, the trial court set forth the appropriate law, addressed

Bledsoe’s claim, and concluded that it lacks merit. See Trial Court Opinion,

2/15/19, at 6-11. We agree with and affirm on the basis of the trial court’s

Opinion with regard to Bledsoe’s first claim. See id.

In his second claim, Bledsoe argues that the trial court improperly

disallowed evidence related to K. and her boyfriend, “when the intended

purpose was to establish the boyfriend as a potential source of the sperm

discovered by the [K.]’s rape kit.” Brief for Appellant at 11. Bledsoe

acknowledges that evidence related to a victim’s sexual past is inadmissible.

Id. Bledsoe argues, however, that such evidence is admissible to

demonstrate an alternative source of the semen found in the victim. Id.

According to Bledsoe, the trial court disallowed such evidence because (1) a

subsequent analysis determined that the DNA profile of the semen found in

the victim matched his profile, and (2) he had failed to file a written motion

seeking to introduce evidence of K.’s prior sexual activity to establish an

alternative source. Id. at 12. In so holding, Bledsoe argues, the trial court

ignored his counsel’s cross-examination of the DNA expert regarding the

“process by which she arrived at her conclusions[.]” Id. Further, Bledsoe

contends that the trial court ignored the fact that in Commonwealth v.

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Majorana, 470 A.2d 80 (Pa. 1983), the Pennsylvania Supreme Court held

that the exclusion of evidence of the victim’s prior sexual activity, offered to

explain an alternative source of the sperm found on the victim’s body,

constituted error, despite the absence of a written motion. Brief for Appellant

at 12.

The following standard governs our review of the admissibility of

evidence:

Admission of evidence is within the sound discretion of the trial

court and will be reversed only upon a showing that the trial court

clearly abused its discretion. Admissibility depends on relevance

and probative value. Evidence is relevant if it logically tends to

establish a material fact in the case, tends to make a fact at issue

more or less probable or supports a reasonable inference or

presumption regarding a material fact.

Judicial discretion requires action in conformity with law,

upon facts and circumstances judicially before the court, after

hearing and due consideration. An abuse of discretion is not

merely an error of judgment, but if in reaching a conclusion the

law is overridden or misapplied or the judgment exercised is

manifestly unreasonable, or the result of partiality, prejudice,

bias, or ill will, as shown by the evidence or the record, discretion

is abused.

Commonwealth v. Borovichka, 18 A.3d 1242, 1253 (Pa. Super. 2011)

(quoting Commonwealth v. Levanduski, 907 A.2d 3, 13-14 (Pa. Super.

2006) (en banc) (internal citations omitted)).

In its Opinion, the trial court addressed this claim and concluded that it

lacks merit. See Trial Court Opinion, 2/15/19, at 11-12. We agree with the

sound reasoning of the trial court, as stated in its Opinion, and affirm on this

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basis with regard to Bledsoe’s second claim. See id. We additionally observe

the following.

Prior to trial, the trial court specifically asked whether the defense would

inquire into the sexual history of the victim. N.T., 7/9/18, at 14. Defense

counsel responded, “No.” Id. Nevertheless, defense counsel presented a

Motion in limine to present evidence, which was revealed in discovery, that

the victim was involved in a non-consensual sexual relationship with another

man at the time of the alleged incident. Id. at 15-16. The trial court inquired

into the relevance of such evidence in the instant case. Id. at 16. Although

Bledsoe alleged the third-party abuse, he did not claim that such evidence

would exculpate him from the instant charges. See id. at 21. Defense counsel

proffered that

It’s not just my client who she supposedly had whatever type of

sexual conduct. There are at least two other males that we would

allege were having some type of sexual relationship…. [I]f there’s

trauma and/or issues that go beyond the rape, if there’s assaults

or other issues, I think that can be brought in, I believe, under

the law. Not the actual incident[,] but physical intimidation [is]

permitted.

Id. at 22. The trial court deferred ruling on the issue until defense counsel

produced law supporting Bledsoe’s position. Id. at 22-23.

At trial, a discussion occurred as to whether defense counsel could

challenge the DNA evidence by proving that the semen found in the victim’s

vagina came from someone other than Bledsoe. Id. at 92. The trial court

ultimately ruled as follows:

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[B]ased on what I’m hearing, you really don’t have any articulable

grounds for challenging the DNA evidence, you don’t have an

expert report that says the analysis is wrong, [or] any kind of a

chain of custody issue that you have evidence that you can

proffer. Something like that I would agree with the

Commonwealth.

On the other hand, I agree with you that[,] to the extent

that they introduced her sexual history with the boy[]friend … to

show how the relationship changed, I think, and why there was

more of a motive for her to disclose these things to her

boy[]friend[,] and how this whole thing surfaced, that you can ask

questions to attack the credibility of those statements[,] because

you can always do that ….

You’re certainly not revealing for the first time that she had

sexual relations with this man during the time period that she was

having sexual relations with your client, according to what they

contend.

I don’t think you can[,] and I won’t allow you to get into

new areas that are unrelated completely to what the

Commonwealth was getting into, like, for instance, an alternative

source of the semen.

Id. at 95-96. Thus, the trial court permitted Bledsoe only to inquire within

the scope of the evidence brought out by the Commonwealth. Id. at 96-97.

We discern no error or abuse of discretion, as there is no indication that the

proposed evidence would not have exculpated Bledsoe.

In his third claim, Bledsoe argues that the trial court improperly

permitted Dr. Riviello to testify regarding the contents of the victim’s medical

records. Brief for Appellant at 12. Bledsoe argues that Dr. Riviello was not

qualified as a “records custodian.” Id. Further, Bledsoe argues that the

Commonwealth failed to lay the proper foundation to allow the medical records

to be admitted as a business record. Id. Bledsoe, citing Pa.R.E. 803(6),

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asserts that “[m]erely characterizing a document as a business record is

insufficient to justify its admission, because a business record, which contains

multiple levels of hearsay, is admissible only if each level falls within a

recognized exception to the hearsay rule.” Id. at 13. According to Bledsoe,

Dr. Riviello testified regarding the collection of the rape kit swabs from the

victim, which were used in the DNA analysis. Id. Bledsoe further directs our

attention to Dr. Riviello’s testimony that the victim had identified Bledsoe as

the perpetrator. Id. at 12-13. However, Dr. Riviello had no direct knowledge

of these events. Id. at 13. Because the Commonwealth failed to properly

establish any of the requirements for admission of Dr. Riviello’s testimony

under Pa.R.E. 803(6), Bledsoe asserts that the trial court improperly admitted

this evidence at trial. Id.

In its Opinion, the trial court determined that Bledsoe waived this claim,

by failing to object to the admission of the contested testimony at trial, or in

a motion in limine. Trial Court Opinion, 2/15/19, at 13. Our review of the

record confirms the trial court’s analysis, and its conclusion is sound. See id.

We therefore affirm on the basis of the trial court’s Opinion with regard to this

claim. See id.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 7/16/20

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