Acme man to be resentenced for indecent assault, superior court says
An Acme man will be resentenced for his 2015 conviction for inappropriately touching a 7-year-old girl following an appeal to the state Superior Court.
In January, Chad Franklin McCabe, 25, was sentenced to two years of intense supervision with six months of home electronic monitoring in the Westmoreland County Court of Common Pleas on the charges of indecent assault, and he was also sentenced to serve one year of probation on the charge of attempted indecent assault.
In August 2013, McCabe pulled down a 7-year-old girl’s pants while she was sleeping and touched her buttocks. The girl told police she slapped McCabe’s hand away, and she pulled covers over her head and went back to sleep.
The girl told her mother about the incident, and police were notified.
In McCabe’s appeal, he raised the issue if the trial court erred in allowing McCabe’s statements prior to a polygraph test to be used at trial but not allowing the reference of McCabe’s consent to the polygraph to be used at trail.
In the decision written by Pennsylvania Superior Court Judge William Platt, the Superior Court states it was not an abuse of the court’s discretion to not include references to the polygraph as Pennsylvania law states a polygraph is unreliable and results are inadmissible at trial.
McCabe took issue of the trial court allowing the jury to deliberate on the charge of indecent assault when the victim’s statements were not consistent.
Platt writes in the decision that McCabe never challenged the victim’s statements during his trial or in a post-sentence motion and cannot raise it for the first time on appeal.
Platt continued to state even if the challenge would be considered, the jury was right to find McCabe guilty of indecent assault as McCabe said prior to his polygraph that he pulled down the girl’s pants while she was sleeping.
On McCabe’s third issue challenging if there was sufficient evidence for an attempted indecent assault conviction, Platt said McCabe’s argument was “underdeveloped and does not contain any citation to the record.”
Platt concluded that even though McCabe did not raise the issue of an illegal sentence, the Superior Court found that the county court erred by sentencing McCabe for indecent assault and attempted indecent assault as the court should have merged the two crimes at sentencing and only sentenced McCabe on the higher-grade offense, indecent assault.
“Although we find no merit to the issues Appellant (McCabe) raised, we are constrained to vacate the sentence for criminal attempt and remand for resentencing,” Platt writes.