Com. v. Deaugustine, D.

C

J-A12035-20 NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DANIEL M. DEAUGUSTINE : : Appellant : No. 1486 WDA 2019 Appeal from the Judgment of Sentence Entered May 7, 2019, in the Court of Common Pleas of Westmoreland County, Criminal Division at No(s): CP-65-CR-0003637-2015. BEFORE: KUNSELMAN, J., KING, J., and COLINS, J.* MEMORANDUM BY KUNSELMAN, J.: FILED JULY 31, 2020 Daniel M. DeAugustine appeals from the judgment of sentence imposed following his conviction of involuntary deviate sexual intercourse (victim less than sixteen years of age), aggravated indecent assault without consent, indecent assault without consent (victim less than sixteen years of age), and unlawful contact with a minor.1 We affirm. The instant appeal arises out of an investigation regarding allegations of sexual assault by DeAugustine on his minor female neighbor (hereinafter “the victim”). In 2015, as a result of the investigation, DeAugustine was charged with the above-described offenses. In 2016, DeAugustine filed a ____________________________________________ * Retired Senior Judge assigned to the Superior Court. 1 See 18 Pa.C.S.A. §§ 3123(a)(7); 3126(a)(1), (a)(8); 6318(a)(1). J-A12035-20 motion to dismiss the charges pursuant to Pa.R.Crim.P. 600. The trial court denied the motion. In 2018, the matter proceeded to trial, but ended in a mistrial. However, a second trial took place in 2019. At the second trial, the victim testified that in April of 2015, she lived in Greensburg, Pennsylvania, with her mother, stepfather and three brothers. Their residence was located diagonally to DeAugustine’s residence, where he resided with his wife and children. The victim became friends with DeAugustine’s daughter, “A.” The girls would play out in a field by their houses. The first time that the victim went over to DeAugustine’s residence was approximately April 11, 2015, when the victim was 15 years old. On that date, while the victim was waiting outside of DeAugustine’s residence for A. to come back outside, DeAugustine asked the victim to sit next to him on a bench on the back porch. DeAugustine then handed the victim a drink that contained alcohol, moved closer to her, lifted her onto his lap and asked her “do you want me to show you the ropes course.” N.T. Trial, 2/4/19, at 82. The victim said something joking around to try to change the subject and jumped off of the DeAugustine’s lap “real quick” because she did not want to be there. Id. at 83. The victim explained that she then went into DeAugustine’s residence to help A. with the laundry and to be near her. DeAugustine followed the girls into the house and went into the kitchen which was adjacent to the living room -2- J-A12035-20 where the girls were folding laundry. At some point, A. went downstairs to the basement. The victim tried to go with her, but DeAugustine held her back, pulled her over to him and forcefully kissed her. The victim tried to push him away, but DeAugustine only released her when A. …

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