J. A17036/19

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA :

:

IN THE SUPERIOR COURT OF

PENNSYLVANIA

v. :

:

SOPHA DOK, : No. 1700 EDA 2018

:

 Appellant :

Appeal from the Judgment of Sentence May 4, 2018

in the Court of Common Pleas of Montgomery County

Criminal Division at No. CP-46-CR-0008835-2016

BEFORE: PANELLA, P.J., OLSON, J., AND FORD ELLIOTT, P.J.E.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED OCTOBER 21, 2019

Sopha Dok appeals from the May 4, 2018 judgment of sentence entered 

by the Court of Common Pleas of Montgomery County following his conviction 

of rape of a child, statutory sexual assault, endangering the welfare of a child, 

and corruption of a minor.1 After careful review, we affirm.

The trial court set forth the following factual and procedural history:

[The victim] was in elementary school, living with her 

mother, [J.S.], when [appellant] came to live with 

them. [Appellant] and [J.S.] went on to have two 

children together. The five of them lived as a family.

The abuse began when [the victim] was a middle 

school student. It spanned years and resulted in a 

pregnancy when [the victim] was 13 years of age. 

[The victim] underwent an abortion in September of 

2010, and until November 8, 2016, it remained a 

 

1 18 Pa.C.S.A. §§ 3121(a)(2) and (c), 3122.1(a), 4304(a), and 6301(a)(1), 

respectively.
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secret that the pregnancy was the product of 

[appellant’s] abuse. At that time, [the victim]

revealed this secret to her mother. [J.S.] confronted 

[appellant] and went to [the] police to report the 

sexual abuse. An investigation ensued. [Appellant] 

was arrested and charged.

[Appellant] proceeded to a three-day jury trial on 

January 22, 2018, at which the following facts were 

developed. [The victim] credibly testified that around 

the time she was in middle school, when she was 11, 

12, and 13, she was sexually abused by [appellant], 

her stepdad. [The victim] testified about the first time 

she was sexually abused by him. It was at night, while 

her two half-siblings were asleep and her mom was at 

work working the overnight shift. She recalled that 

she was downstairs on the living room couch, and 

although her memory of this first incident was dim, 

she remembered that [appellant] said something 

about his penis being referred to as a squid or 

octopus. She remembered being touched 

inappropriately, but she did not remember whether it 

was under or over her clothes.

[The victim] testified that the sexual abuse occurred 

over a long period of time. [Appellant] told [the 

victim] that what they were doing was a secret and 

that if the secret came out that her mom would be 

unable to care for her and her siblings by herself. [The 

victim] believed this to be true. When [appellant] 

would touch her over her clothes he would touch her 

breasts, her buttocks and her vagina. She specifically 

recalled a time that [appellant] would not let her go 

out with her friends unless she performed oral sex on 

him.

[The victim] testified about the time she was in middle 

school and had to have an abortion because of the 

sexual abuse. [The victim] explained that [appellant] 

had raped her, as he did on many occasions. The 

victim remembered this happened more than 

10 times. [Appellant] never did anything to protect 

against pregnancy. [The victim] detailed for the jury 

how when she became pregnant in middle school at 
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about age 13, by him, he was the one who broke the 

news of the pregnancy to her mother. He told [the 

victim’s] mother a fictitious story about some boy 

from Texas that [the victim] met on the playground 

and had sex with. [The victim’s] mother was furious 

with her. [The victim] ultimately had an abortion to 

terminate the pregnancy.

From that time on, whenever [the victim] and her 

mother would have arguments, her mother would call 

her a “whore,” and other similar names. These 

arguments lasted until November 8, 2016 when [the 

victim] finally told her mother what really happened.

Around the time she was pregnant, [the victim]

confided in her best friend, [D.B.], who was also a 

13-year-old middle schooler.

During her testimony, [the victim] credibly explained 

how all of these memories were difficult and painful to

recall, and that a lot of it was blocked from her 

memory. She told the jury how it was difficult to be 

in court and testify.

She also described the circumstances that gave rise 

to her recantation letter, dated May 1, 2017. At the 

time she was living with her grandmother, who 

connected her with an attorney. [The victim’s]

grandmother had made it clear before [the victim]

began to live with her that she was going to associate 

herself with [appellant] and possibly attempt to keep 

him out of trouble. This fact was very hurtful to [the 

victim] how her grandmother would not be there for 

her when she had been raped.

The letter began, “I [the victim] would like to recant 

and dismiss all information previously given to any 

authority figure . . . I would not like to proceed any 

further with this case, investigation. . . . . .” [The

victim’s] grandmother was present when [the victim]

wrote the letter. Specifically, as to the word 

“recant[,”] [The victim’s grandmother looked it up in 

the dictionary. [The victim] really did not know what 
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the word meant. She did not mean to use that to 

mean that what happened was not true.

Also to testify at trial was [J.S.], [the victim’s] mother, 

who verified that cover-story that [appellant] told her 

about [the victim’s] pregnancy, i.e., that [the victim]

met a boy on the playground and that she brought 

him back to the house to have sex with him. It was a 

story that did not make sense to her. [J.S.] also 

testified about the argument [she] and [the victim]

had that brought out the secret about the abuse.

Next to testify was [D.B.], [the victim’s] best friend in 

middle school, [who] verified that [the victim] told her

that it was [appellant] who got her pregnant when 

they were in eighth grade.

The defense called on [P.S.], grandmother to 

[appellant’s] children, to testify as a character 

witness. Through cross-examination the defense 

strategy was to challenge [the victim’s] credibility, 

and attempt to suggest that [the victim] made up 

these allegations. The defense pointed to the 

recantation letter and suggested that [the victim]

made up the allegations because it was during an 

argument between her and her mother that they came 

out.

At the conclusion of the trial, [appellant] was 

convicted of the aforementioned charges.[2] He was 

sentenced on May 4, 2018 to an aggregate term of 10 

to 20 years’ imprisonment. A post-sentence motion 

was filed on May 11, 2018, which was never ruled on. 

On May 22, 2018, a notice of appeal was filed. A 

concise statement of errors complained of on appeal 

was ordered and after an extension was granted, 

[appellant complied.]

 

2 The Commonwealth brought a total of 146 charges for various sexually based 

offenses against appellant. Of those charges, the jury convicted appellant of 

one count each of rape of a child, statutory sexual assault, endangering the 

welfare of a child, and corruption of a minor. The Commonwealth

nolle prossed the remaining charges.
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Trial court opinion, 11/15/18 at 1-5 (citations to the record and footnote 

omitted). The trial court filed an opinion pursuant to Pa.R.A.P. 1925(a).

In its opinion, the trial court noted that appellant’s notice of appeal was 

filed prematurely, as post-sentence motions were still pending before the trial 

court. (See id. at 5 n.1.) Indeed, in cases where a trial court denies an 

appellant’s post-sentence motion while an appeal which originated from a 

premature notice of appeal is pending, this court will treat the premature 

notice of appeal “as having been filed after entry of [an] order denying 

post-sentence motions.” Commonwealth v. Ratushny, 17 A.3d 1269, 

1271 n.4 (Pa.Super. 2011); see also trial court opinion, 11/15/18 at 5 n.1.

Here, as noted by the trial court, appellant’s post sentence motions were 

denied by operation on November 7, 2018, while the instant appeal was still

pending before this court. Accordingly, despite the premature notice of 

appeal, this case is now properly before us, and we may review the merits.

Appellant raises the following two issues for our review:

1. Does [a]ppellant’s conviction offend due 

process pursuant to the holding in 

Commonwealth v. Devlin, 333 A.2d 888 (Pa. 

1975)[,] requiring the vacation of the judgment 

of [appellant’s] sentence?

2. Was the evidence insufficient as a matter of law 

for the jury to convict [appellant] of Count 11 

Rape of a Child (F1) 18 Pa.C.S.[A.] § 3121(a)(2) 

and (c)?

Appellant’s brief at 2.
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In his first issue on appeal, appellant contends that the trial court erred 

when it denied appellant’s motion for judgment of acquittal on the grounds 

that the Commonwealth failed to amend the bills of information to reflect the 

dates of the offenses proven at trial, thereby violating his right to due process. 

(Appellant’s brief at 21.) The Commonwealth argues that it “proved the dates 

of abuse with sufficient specificity to satisfy due process,” and that appellant 

is not entitled to relief. (Commonwealth’s brief at 7.)

As this court has previously noted, “[a] motion for judgment of acquittal 

challenges the sufficiency of the evidence to sustain a conviction on a 

particular charge, and is granted only in cases in which the Commonwealth 

has failed to carry its burden regarding that charge.” Commonwealth v. 

Emanuel, 86 A.3d 892, 894 (Pa.Super. 2014), appeal denied, 95 A.3d 276 

(Pa. 2014), quoting Commonwealth v. Foster, 33 A.3d 632, 634-635 

(Pa.Super. 2011). 

In his argument, appellant relies upon our supreme court’s decision in 

Devlin, supra. In Devlin, the Commonwealth charged the defendant with 

sodomy, alleging that the crime took place sometime between February of 

1971 and April of 1972.3 Id. at 889. The defendant was convicted of sodomy 

and our supreme court reversed the judgment of sentence, holding that the 

prospect of defending a “charge of conduct occurring anywhere within a 

 

3 The victim was a 22-year-old man with intellectual disabilities who had the 

mental capacity of a first or second grade child and the emotional capacity of

an even younger child. Id. at 889.
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fourteen-month period was . . . a fundamentally unfair burden.” Id. at 891 

(footnote omitted). The court recognized that while the Commonwealth 

established that the crime was committed within the statutory period of 

limitations, “the date of the commission of the offense must be ‘fixed with 

reasonable certainty.’” Id. at 890, citing Commonwealth v. Levy, 23 A.2d 

97 (Pa.Super. 1941). Accordingly, the court concluded that the 

Commonwealth’s 14-month time frame for the commission of the crime failed 

to meet the “‘sufficient particularity standard of Levy,” and to “hold otherwise 

would violate the notions of fundamental fairness embedded in our legal 

process.” Id. at 890-891.

As noted by the Commonwealth, however, this court has stated the 

following regarding Devlin claims involving child victims:

We conclude that for purposes of a Devlin claim, the 

Commonwealth must be allowed a reasonable 

measure of flexibility when faced with the special 

difficulties involved in ascertaining the date of an 

assault upon a young child. See Commonwealth v. 

Fanelli, [547 A.2d 1201, 1203 (Pa.Super. 1988) 

(en banc)]; Commonwealth v. Niemitz, [] 422 

A.2d 1369 ([Pa.Super.] 1980). On the other hand, in 

order to ensure a fair trial for the defendant, the 

Commonwealth should conduct a thorough 

examination and come forward with any evidence 

which indicates when the alleged crime is most likely 

to have taken place.

Commonwealth v. Groff, 548 A.2d 1237, 1241 (Pa.Super. 1988). This court 

has stated that:

“the Commonwealth must be afforded broad latitude 

when attempting to fix the date of offenses which 
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involve a continuous course of criminal conduct.” 

Commonwealth v. G.D.M., Sr., 926 A.2d 984, 990 

(Pa.Super. 2007) (quoting Commonwealth v. Groff, 

[] 548 A.2d 1237, 1242 ([Pa.Super.] 1988)). This is 

especially true when the case involves sexual offenses 

against a child victim. Id.

Commonwealth v. Brooks, 7 A.3d 852, 858 (Pa.Super. 2010), appeal 

denied, 21 A.3d 1189 (Pa. 2011).

We have further stated that,

“due process is not reducible to a mathematical 

formula,” and the Commonwealth does not always 

need to prove a specific date of an alleged crime. 

[Devlin, 333 A.2d at 892.] . . . Permissible leeway 

regarding the date provided varies with, inter alia, 

the nature of the crime and the rights of the accused. 

See Pa.R.Crim.P. 560(B)(3), stating that it shall be 

sufficient for the Commonwealth to provide in the 

information, if the precise date of an offense is not 

known, an allegation that the offense was committed 

on or about any date within the period fixed by the 

statute of limitations.

Commonwealth v. Riggle, 119 A.3d 1058, 1069-1070 (Pa.Super. 2015), 

quoting Commonwealth v. Koehler, 914 A.2d 427, 436 (Pa.Super. 2006), 

appeal denied, 961 A.2d 858 (Pa. 2008).

Here, the Commonwealth alleged that appellant committed the offenses 

for which he was charged “on or about Monday, January 1, 2007,” which falls 
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within the statute of limitations.4 As noted by the trial court, “[t]he facts 

developed at trial put the abuse spanning from 2008 to 2010[.]” (Trial court 

opinion, 11/15/18 at 22.) Accordingly, because this case involved a child 

victim where the precise dates of the offenses were not known, we find that 

pursuant to our case law, the Commonwealth met its burden in establishing 

the dates of the offenses. We further find that appellant’s due process rights 

were not violated, and his first issue is, therefore, without merit.

In his second issue, appellant argues that the Commonwealth failed to 

present sufficient evidence to warrant a conviction of rape of a child. 

Specifically, appellant avers that the Commonwealth failed to prove beyond a 

reasonable doubt that appellant engaged in either oral sex or vaginal 

intercourse with C.S. when she was 12 years of age or younger. (Appellant’s 

brief at 37.) The Commonwealth contends that appellant waived this issue on 

appeal because he failed to include it in his Rule 1925(b) statement of errors 

complained of on appeal. (Commonwealth’s brief at 14-15.) In his argument, 

appellant relies upon our supreme court’s decision in Commonwealth v. 

Silver, 452 A.2d 1328, 1333 (Pa. 1982), in which our supreme court described 

Rule 1925(b)’s waiver provision as “clearly discretionary,” stating that waiver 

 

4 The statute of limitations requires that prosecution for major sexual offenses 

commence within 12 years of the time the act is alleged to have been 

committed. 42 Pa.C.S.A. § 5552(b.1). Moreover, the statute of limitations in 

cases in which sexually based offenses are alleged to have been committed 

against a minor is the date the minor reaches 50 years of age. 42 Pa.C.S.A. 

§ 5552(c)(3).
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is only properly invoked, “where . . . omission from a statement of issues 

raised on appeal defeats effective appellate review.” (See appellant’s reply 

brief at 9.)

Appellant’s reliance on Silver is misplaced. The Pennsylvania Rules of 

Appellate Procedure state that issues not raised in a Rule 1925(b) statement 

are waived. Pa.R.A.P. 1925(b)(4)(vii). Indeed, our supreme court has also 

stated that, “[a]ny issues not raised in a 1925(b) statement will be deemed 

waived.” Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998); see also 

Commonwealth v. Castillo, 888 A.2d 775, 780 (Pa. 2005). Moreover, 

Pennsylvania courts have consistently held that for sufficiency of the evidence 

challenges, an appellant’s Rule 1925(b) statement “needs to specify the 

element or elements upon which the evidence was insufficient.” 

Commonwealth v. Tyack, 128 A.3d 254, 260 (Pa.Super. 2015), quoting 

Commonwealth v. Williams, 959 A.2d 1252, 1257 (Pa.Super. 2008) 

(citation omitted). Failure to do so results in waiver of the issue on appeal. 

Id.

Here, appellant admits that he did not include a sufficiency of the 

evidence issue in his Rule 1925(b) statement. (Appellant’s reply brief at 9.) 

Accordingly, appellant’s sufficiency of the evidence issue is waived on appeal.

Judgment of sentence affirmed.

Panella, P.J. joins this Memorandum.

Olson, J. concurs in the result.
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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/21/19