Com. v. Bricker, D. ( 2015 )

J-S62040-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID BRICKER
Appellant No. 849 WDA 2015
Appeal from the Judgment of Sentence May 13, 2015
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000835-2014
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY GANTMAN, P.J.: FILED DECEMBER 29, 2015
Appellant, David Bricker, appeals from the judgment of sentence
entered in the Fayette County Court of Common Pleas, following his jury trial
convictions of unlawful contact with a minor—sexual offenses, indecent
assault—complainant less than sixteen (16) years of age, and harassment.1
We affirm.
The trial court summarized the relevant facts and procedural history of
this case as follows:
In October of 2013,…the minor victim, met Appellant David
Bricker through her neighbor, Lora Rulli, who was dating
Appellant at the time. Ms. Rulli knew Appellant as David
Kennedy and introduced him to the victim as such. After
____________________________________________
1
18 Pa.C.S.A. §§ 6318(a)(1), 3126(a)(8), and 2709(a)(1), respectively.
_____________________________
*Retired Senior Judge assigned to the Superior Court.
J-S62040-15
they met, Appellant and the victim started communicating
with each other. Their communications took many forms,
whether it was in person or electronically. The victim
testified she obtained Appellant’s online contact
information from Appellant so they could communicate
with each other over the internet. She testified they would
communicate online “every once in a while” and the
content of the conversations included things only the two
of them knew about. Specifically, [the victim] testified
[Appellant] would tell her he wanted to be with her and he
wanted to marry her.
One afternoon in November of 2013, Ms. Rulli and
Appellant asked the victim and her brother…to help clean
[Ms. Rulli’s] attic. Appellant, the victim, and her brother
were cleaning the attic; Ms. Rulli only came up to the attic
periodically. While they were cleaning the attic, Appellant
on several occasions asked the victim’s brother to take
chairs downstairs, leaving the victim and Appellant alone in
the attic.
While Appellant was alone in the attic with the victim, he
told her that he loved her and not to tell anyone.
Appellant also kissed the victim on the lips and grabbed
and squeezed her buttocks. This was corroborated by the
victim’s brother, who testified that before he went
downstairs, he saw Appellant kiss his sister on the lips and
[grab] her buttocks.
About a month later, Patrick Ruff, a Connellsville City
Police Officer, was notified that the victim’s father found
messages between Appellant and the victim. The case was
initially reported to Officer Ruff regarding a person named
David Kennedy; however, throughout his investigation,
Officer Ruff ascertained David Kennedy’s real name to be
David Allen Bricker. Officer Ruff also determined [the
victim’s] date of birth is…and Appellant’s date of birth is….
Therefore[,] the child victim was fifteen (15) years of age
and [Appellant] was fifty-one (51) years of age at the time
of the offense.
(Trial Court Opinion, filed July 27, 2015, at 2-4) (internal footnote and
citations to record omitted). At the beginning of Appellant’s trial, defense
-2-
J-S62040-15
counsel filed an oral motion in limine to exclude any alleged text messages,
emails, or internet messages between Appellant and the victim, as well as
any related testimony. Defense counsel argued the Commonwealth had not
properly authenticated that Appellant had sent any of the messages. The
court denied the motion.
On February 5, 2015, a jury convicted Appellant of unlawful contact
with a minor—sexual offenses, indecent assault—complainant less than 16
years of age, and harassment. That same day, the court sentenced
Appellant to an aggregate term of three and one-half (3½) to seven (7)
years’ imprisonment. The court also deemed Appellant to be a sexually
violent predator (“SVP”), which subjects Appellant to a lifetime registration
under the Sex Offender Registration and Notification Act (“SORNA”).2
Appellant timely filed a post-sentence motion, which the court denied on
May 18, 2015. On May 27, 2015, Appellant timely filed a notice of appeal.
The court ordered Appellant on May 28, 2015, to file a concise statement of
errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant
timely complied on May 29, 2015.
Appellant raises the following issues for our review:
____________________________________________
2
“[SORNA], commonly referred to as the Adam Walsh Act, became effective
on December 20, 2012. By its terms, any individual who was then being
supervised by the board of probation or parole was subject to its provisions.”
Commonwealth v. Partee, 86 A.3d 245, 246 (Pa.Super. 2014). SORNA
replaced Megan’s Law as the statute governing the registration and
supervision of sex offenders.
-3-
J-S62040-15
DID THE TRIAL COURT ERR IN DENYING APPELLANT’S
MOTION IN LIMINE, WHICH SOUGHT TO EXCLUDE EMAILS
AND TEXT MESSAGES PURPORTEDLY AUTHORED BY
APPELLANT TO COMPLAINANT AND ALL TESTIMONY
CONCERNING SAID EMAILS AND TEXT MESSAGES?
DID THE COMMONWEALTH FAIL TO PROVIDE SUFFICIENT
EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT
THAT APPELLANT INTENTIONALLY CONTACTED THE
COMPLAINANT FOR THE PURPOSE OF ENGAGING IN AN
ACTIVITY PROHIBITED UNDER CHAPTER 31 OF THE
CRIMES CODE?
DID THE COMMONWEALTH FAIL TO PROVIDE SUFFICIENT
EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT
THAT APPELLANT HAD INDECENT CONTACT AS DEFINED
PURSUANT TO 18 PA.C.S.A. § 3101 WITH COMPLAINANT?
DID THE SENTENCING COURT IMPOSE A HARSH, SEVERE,
AND MANIFESTLY UNREASONABLE AND EXCESSIVE
SENTENCE IN LIGHT OF THE CIRCUMSTANCES
SURROUNDING THE ALLEGED INCIDENT?
(Appellant’s Brief at 8).3
In his first issue, Appellant argues his motion in limine to exclude all
electronic messages allegedly between Appellant and the victim, and all
related testimony, should have been granted. Appellant alleges the
Commonwealth attempted to circumvent the Rules of Evidence by failing to
present the actual messages and merely providing testimony that Appellant
had sent the electronic messages to the victim, as well as testimony
regarding a summary of the messages. Appellant contends the
____________________________________________
3
We note the summary of the argument section in Appellant’s brief appears
to be for a different case.
-4-
J-S62040-15
Commonwealth did not properly authenticate the electronic messages, which
could have been forged over the internet. Appellant claims the
Commonwealth did not present any evidence to show Appellant authored the
messages. Appellant avers the Commonwealth also failed to present
evidence regarding the specifics of Appellant’s alleged instructions to the
victim on how to contact him, Appellant’s screenname, when the
communications occurred, how the messages were exchanged, or what
specific topics of conversation would have been known only to Appellant and
the victim. Appellant maintains he suffered undue prejudice from the
admission of testimony concerning the electronic messages. Appellant
concludes this Court should remand for a new trial. We disagree.
“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.” Commonwealth v. Drumheller, 570 Pa. 117, 135, 808
A.2d 893, 904 (2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2284, 156
L.Ed.2d 137 (2003) (quoting Commonwealth v. Stallworth, 566 Pa. 349,
363, 781 A.2d 110, 117 (2001)). “An abuse of discretion is not merely an
error of judgment, but is rather the overriding or misapplication of the law,
or the exercise of judgment that is manifestly unreasonable, or the result of
bias, prejudice, ill-will or partiality, as shown by the evidence of record.”
Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super. 2005), appeal
denied, 593 Pa. 726, 928 A.2d 1289 (2007).
-5-
J-S62040-15
Relevance is the threshold for admissibility of evidence.
Commonwealth v. Cook, 597 Pa. 572, 602, 952 A.2d 594, 612 (2008).
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.
Drumheller, supra at 135, 808 A.2d at 904 (quoting Stallworth, supra at
363, 781 A.2d at 117-18). “Evidence that is not relevant is not admissible.”
Pa.R.E. 402. “The court may exclude relevant evidence if its probative value
is outweighed by a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay, wasting time, or
needlessly presenting cumulative evidence.” Pa.R.E. 403.
Instantly, the court discussed:
“To satisfy the requirement of authenticating or identifying
an item of evidence, the proponent must produce evidence
sufficient to support a finding that the item is what the
proponent claims it is.” Pa.R.E. 901(a). Here, the
Commonwealth did not admit into evidence any physical
evidence regarding electronic communications between the
victim and Appellant. Instead, the only mention of said
communications came from witness testimony, specifically
from the victim. The victim testified that Appellant gave
her his online contact information so that they could
communicate with each other. Moreover, the victim
testified that the conversations between her and Appellant
on the chat thread were only about things that she and
Appellant knew about.
It is the role of the jury to determine the credibility and
believability of a witness and to determine the weight their
testimony is to be given. Commonwealth v. Feathers,
660 A.2d 90, 95 (Pa.Super. 1995). Since only testimony
was presented on the issue, it was up to the jury to
-6-
J-S62040-15
determine whether they believed the victim’s testimony.
Therefore, Appellant’s first concise issue is without merit.
(Trial Court Opinion at 4-5). We accept the court’s conclusions. Thus,
Appellant’s first issue merits no relief.
In his second and third issues combined, Appellant argues there was
insufficient evidence to convict him of unlawful contact with a minor—sexual
offenses, and indecent assault—complainant less than 16 years of age.
Specifically, Appellant claims the Commonwealth failed to present sufficient
evidence to prove Appellant intentionally contacted the victim for the
purpose of engaging in a sexual offense. Appellant alleges there was no
testimony that Appellant contacted the victim in an attempt to get her alone
or to engage in indecent contact. Appellant maintains the evidence shows
the alleged contact was the result of a spontaneous moment between
Appellant and the victim when Appellant and his girlfriend, Ms. Rulli, asked
the victim and her brother to help clean Ms. Rulli’s attic. Appellant
concludes he should be granted a judgment of acquittal for unlawful contact
with a minor.
Appellant also argues that the Commonwealth failed to present
sufficient evidence to show Appellant intentionally touched the victim for the
purpose of arousing or gratifying a sexual desire in Appellant or the victim.
Appellant avers the testimony merely alleged Appellant kissed the victim and
touched her buttocks. Appellant maintains, however, that the testimony
failed to prove the alleged contact was an intimate moment between
-7-
J-S62040-15
Appellant and the victim, or that it was even sexual in nature and arose to
the level of indecent contact. Appellant concludes he should be granted a
judgment of acquittal for indecent assault. We disagree with Appellant’s
contentions.
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable Joseph M.
George, Jr., we conclude Appellant’s issues two and three merit no relief.
The court’s opinion comprehensively discusses and properly disposes of the
sufficiency of the evidence questions presented. (See Trial Court Opinion at
6-9) (finding: (2) Appellant had contact with victim on multiple occasions,
including when Appellant communicated with victim through internet
messaging, and when Appellant kissed victim on her lips and grabbed and
squeezed her buttocks while in Ms. Rulli’s attic in November 2013;
Appellant’s electronic and physical contact with victim was intentional; victim
testified she received Appellant’s online information directly from Appellant;
Appellant would not have given victim information if he had no intent to
communicate with her; regardless of who created online account, act of
getting on computer, signing into account, and communicating with victim
goes toward Appellant’s intent to contact victim; testimony indicated victim
was born in July 1998, and was 15 year-old minor at time of incident;
Commonwealth established electronic communication was for purpose of
engaging in indecent assault; victim testified that content of internet
-8-
J-S62040-15
messaging included how Appellant wanted to be with victim and marry her;
Appellant made victim’s brother take chairs from attic down to basement,
which left Appellant alone with victim; jury could reasonably conclude
Appellant’s actions were for purpose of engaging in sexual act with victim;
Commonwealth satisfied its burden; Appellant’s claim merits no relief; (3)
victim testified Appellant kissed her on her lips and grabbed and squeezed
her buttocks; victim’s testimony was corroborated by her brother, who
testified that he saw Appellant kiss victim and grab her buttocks; victim’s
lips and buttocks are sexual or intimate parts of person; jury reasonably
concluded that electronic communication and physical contact were for
purpose of arousing or gratifying Appellant’s sexual desire where victim
testified Appellant told her he loved her and wanted to marry her). The
record supports the court’s decision; therefore, we have no reason to disturb
it. Accordingly, we affirm on the basis of the court’s opinion.
In his fourth issue, Appellant argues his sentence of three and one-half
(3½) to seven (7) years’ imprisonment is manifestly unreasonable and
excessive in light of the circumstances. Specifically, Appellant claims he was
sentenced above the aggravated range for unlawful contact with a minor.
Appellant contends he has a prior record score of four, and the offense
gravity score for unlawful contact with a minor is six; therefore, a standard
range sentence is fifteen to twenty-one months’ imprisonment, with a
mitigated range of nine months’ imprisonment, and an aggravated range of
-9-
J-S62040-15
twenty-seven months’ imprisonment. Appellant states his sentence of forty-
two to eighty-four months’ imprisonment falls outside the sentencing range
guidelines, and the court failed to state its reasons for sentencing Appellant
above the aggravated range. Appellant alleges the court merely stated it
had taken into consideration the serious nature of the offense, the relative
ages of Appellant and the victim, Appellant’s prior conviction, and
Appellant’s lack of remorse without indicating a factual or specific basis for
its decision. Appellant maintains the court failed to provide further
justification for the sentence. Appellant concludes this Court should vacate
his judgment of sentence and remand for resentencing. Appellant
challenges the discretionary aspects of his sentence. See Commonwealth
v. Dunphy, 20 A.3d 1215 (Pa.Super. 2011) (stating claim that sentencing
court failed to offer adequate reasons to support sentence challenges
discretionary aspects of sentencing); Commonwealth v. Lutes, 793 A.2d
949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive
challenges discretionary aspects of sentencing).
Appellant also argues his lifetime registration requirement as a Tier III
offender under SORNA is illegal and unconstitutional. Appellant contends
the imposition of an additional lifetime registration requirement exceeds the
statutory maximum for unlawful contact with a minor. Appellant maintains
his lifetime registration requirement violates the Pennsylvania and United
States Constitutions’ prohibition against cruel and unusual punishment.
- 10 -
J-S62040-15
Appellant concludes this Court should hold his registration requirement is
unconstitutional. We disagree with Appellant’s contentions.
Challenges to the discretionary aspects of sentencing do not entitle an
appellant to an appeal as of right. Sierra, supra. Prior to reaching the
merits of a discretionary sentencing issue:
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal, See
Pa.R.A.P. 902 and 903; (2) whether the issue was properly
preserved at sentencing or in a motion to reconsider and
modify sentence, See Pa.R.Crim.P. 720; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that the
sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006).
When appealing the discretionary aspects of a sentence, an appellant
must invoke the appellate court’s jurisdiction by including in his brief a
separate concise statement demonstrating that there is a substantial
question as to the appropriateness of the sentence under the Sentencing
Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002);
Pa.R.A.P. 2119(f). The concise statement must indicate “where the
sentence falls in relation to the sentencing guidelines and what particular
provision of the code it violates.” Commonwealth v. Kiesel, 854 A.2d
530, 532 (Pa.Super. 2004) (quoting Commonwealth v. Goggins, 748 A.2d
721, 727 (Pa.Super. 2000), appeal denied, 563 Pa. 672, 759 A.2d 920- 11 -
J-S62040-15
(2000)).
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Anderson, supra. A substantial
question exists “only when the appellant advances a colorable argument that
the sentencing judge’s actions were either: (1) inconsistent with a specific
provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Sierra, supra at 912-13. A claim
that a sentence is manifestly excessive might raise a substantial question if
the appellant’s Rule 2119(f) statement sufficiently articulates the manner in
which the sentence imposed violates a specific provision of the Sentencing
Code or the norms underlying the sentencing process. Mouzon, supra at
435, 812 A.2d at 627. “An allegation that a judge ‘failed to offer specific
reasons for [a] sentence does raise a substantial question.’” Dunphy,
supra at 1222 (quoting Commonwealth v. Reynolds, 835 A.2d 720, 734
(Pa.Super. 2003)).
As a prefatory matter, Appellant failed to include a Rule 2119(f)
statement in his appellate brief. See Evan, supra. Nevertheless, the
Commonwealth did not object. Thus, we will address the merits of
Appellant’s discretionary aspects of sentencing claim. See Commonwealth
v. Brougher, 978 A.2d 373, 375 (Pa.Super. 2004) (determining
Commonwealth’s failure to object to absence of appellant’s Rule 2119(f)
statement does not require waiver of appellant’s discretionary aspects of
- 12 -
J-S62040-15
sentencing claim).
Furthermore, the court concluded:
Appellant was convicted of Unlawful Contact with a Minor,
Indecent Assault, Person Less Than 16 Years of Age, and
Harassment. Appellant was thereafter sentenced on the
Unlawful Contact with a Minor conviction to a term of
imprisonment of not less than 3½ years nor more than 7
years. Appellant’s sentence did not exceed the statutory
maximum. Unlawful Contact with a Minor is a felony of the
third degree, which carries with it a maximum of seven
years. 18 Pa. C.S. § 1103(3). Appellant was sentenced
up to seven years, falling within the maximum sentence.
Under the provisions of the Pennsylvania Sentencing
Guidelines, Unlawful Contact with a Minor carries with it an
offense gravity score of six. Taking into consideration
Appellant’s prior record score of four, the guidelines called
for a standard range minimum of 15 to 21 months, an
aggravated range minimum of 21 to 27 months, and a
mitigated range minimum of 9 to 15 months. The
sentence imposed by the [c]ourt of not less than 3½ years
nor more than 7 years fell above the aggravated range.
Although Appellant’s sentence fell outside the guidelines,
his sentence was appropriate. The sentencing guidelines,
though important, are only one factor, and they do not
create a presumption. Commonwealth v. Walls, 592 Pa.
557, 575, 926 A.2d 957, 967 (2007). Thus, the guidelines
are merely advisory and not binding on the [c]ourt.
Commonwealth v. Feucht, 955 A.2d 377, 383
(Pa.Super. 2008). It is only required that the [c]ourt
provide a contemporaneous written statement if it deviates
from the guidelines. Id.When a sentencing court deviates from the sentencing
guidelines, it is important that the [c]ourt reflect a
consideration of the sentencing guidelines, the background
and character of the defendant, the circumstances of the
crime, and impose a sentence that is consistent with the
protection of the public and the rehabilitative needs of the
defendant. Commonwealth v. Hoch, 936 A.2d 515(Pa.Super. 2007). Following the imposition of sentence,
- 13 -
J-S62040-15
the [c]ourt placed on the record the reason why it
departed from the sentencing guidelines.
As a departure, the [c]ourt, having imposed this
sentence above the aggravated sentencing guideline
range, has done so due to the serious nature of this
offense, the prior Allegheny County rape conviction,
[Appellant’s] complete lack of remorse, the age of
the victim at fifteen at the time of the offense and
the age of the defendant at fifty-one.
[Appellant], we’ve taken into consideration the
nature of this offense, the seriousness of unlawful
contact with a minor, a felony of the third degree,
punishable by a term of imprisonment of up to seven
years and a fine of up to $15,000.00. We’ve
considered the number of offenses to which you've
been found guilty and we’ve reviewed a presentence
report, considered your prior record, taken into
consideration your rehabilitative needs and the
gravity of this offense and we feel a lesser sentence
would depreciate from the seriousness of this crime
and we feel you are in need of correctional treatment
that can be provided most effectively by your
commitment to an institution.
Sentencing Transcript (pp. 18-19).
The [c]ourt considered the nature and gravity of the
offense, the statutory limit of incarceration, the
Pennsylvania Sentencing Guidelines, and the presentence
report.[4] The reasoning of the [c]ourt as set forth in the
sentence colloquy adequately supports the sentence
imposed against Appellant. Therefore, Appellant’s final
issue is without merit.
(Trial Court Opinion at 10-12). We accept the court’s reasoning. Therefore,
____________________________________________
4
Where a sentencing court had the benefit of a post-sentence investigative
report, the law presumes the court was aware of and weighed the relevant
information regarding the defendant’s character and mitigating factors. See
Commonwealth v. Tirado, 870 A.2d 362 (Pa.Super. 2005).
- 14 -
J-S62040-15
Appellant’s discretionary aspects of sentencing issue merits no relief.
Moreover, we recognize that an appellant may not successfully
advance a new theory of relief for the first time on appeal. Commonwealth
v. Haughwout, 837 A.2d 480, 486 (Pa.Super. 2003) (citation omitted).
“An appellate court should not address constitutional issues unnecessarily or
when they are not properly presented and preserved in the trial court for our
appellate review.” Commonwealth v. Berryman, 649 A.2d 961, 973
(Pa.Super. 1994) (citation omitted). Here, Appellant challenges the
constitutionality of his lifetime registration requirement for the first time in
his brief. Appellant failed to raise this claim at sentencing, in a post-
sentence motion, or in his Rule 1925(b) statement. Therefore, Appellant’s
claim is waived. See id.; Haughwout, supra. Moreover, even if properly
preserved, Appellant’s challenge to the constitutionality of his lifetime
registration requirement would merit no relief as Pennsylvania law states
that the registration requirements under SORNA do not constitute criminal
punishment. See Commonwealth v. McDonough, 96 A.3d 1067(Pa.Super. 2014) (rejecting argument that SORNA unconstitutionally
required defendant to register for period that exceeded statutory maximum
sentence for associated crime; stating SORNA registration requirements are
product of remedial legislation with non-punitive goal of public safety).
Accordingly, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
- 15 -
J-S62040-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2015
- 16 -
Circulated 12/04/2015 03:34 PM
IN THE COURT OF COMMON PLEAS OF FAYETTE COUNTY,
PENNSYLVANIA
COMMONWEALTH OF PENNSYLVANIA, : CRIMINAL ACTION
v.
DAVID ALLEN BRICKER, : NO. 835 OF 2014
Defendant/ Appellant.
------------- : JUDGE JOSEPH M. GEORGE, JR.
ATTORNEYS AND LAW FIRMS
Mark Mehalov, Esquire, Assistant District Attorney, For the Commonwealth
Shane M. Gannon, Esquire, Assistant Public Defender, For the Appellant
OPINION
GEORGE, J. July 27, 2015
Following a trial by jury, Appellant, David Allen Bricker, was found guilty of
one count of Unlawful Contact with a Minor,1 one count of Indecent Assault, Person
Less Than 16 Years of Age,2 and one count of Harassment, Subject Other to Physical
Contact.3 On May 13, 2015 this Court sentenced Appellant to a term of imprisonment
for a period of not less than three and one-half (3Yii) years nor more than seven (7)
years. Additionally, Appellant was deemed a Sexually Violent Predator (SVP) and
informed of his duty to register for life under Pennsylvania's Sexual Offender
1 18 Pa. C.S. § 6318(a)(l).
2 18 Pa. C.S. § 3126(a)(8).
a 18 Pa. C.S. § 2709(a)(l).
1
Circulated 12/04/2015 03:34 PM
Registration and Notification Act (SO RNA). 4 Appellant filed a timely post-sentence
motion and this Court denied same. He filed a direct appealto the Superior Court of
Pennsylvania. This Opinion is in support of the jury verdict and the sentencing order.
CONCISE ISSUES
Appellant filed the following Statement of Errors Complained of on Appeal:
1. Did the Trial Court err in denying Appellant's Motion in Limine, which sought
to exclude emails and text messages purportedly authored by Appellant to
Complainant and all testimony concerning said emails and text messages?
2. Did the Commonwealth fail to provide sufficient evidence to prove beyond a
reasonable doubt that Appellant intentionally contacted the child victim for
the purpose. of engaging in an activity prohibited under Chapter 31 of the
Crimes Code?
3. Did the Commonwealth fail to provide sufficient evidence to prove beyond a
reasonable doubt that Appellant had indecent contact as defined pursuant to
18 P.A. C.S.A. § 3101 with child victim?
4. Did the Sentencing Court impose a harsh, severe, and manifestly unreasonable
and excessive sentence in light of the circumstances surrounding the alleged.
incident?
FACTS
In October of 2013, the minor victim, met Appellant David
Bricker through her neighbor, Lora Rulli, who was dating Appellant at the time. (T.T.
pp. 13, 33). Ms. Rulli knew Appellant as David Kennedy and introduced him to the
victim as such .. (T.T. pp. 13, 33). After they met, Appellant and the victim started
communicating with each other. Their communications took many forms, whether it
was in person or electronically. (T.T. p. 14). The victim testified she obtained
Appellant's online contact information from Appellant so they could communicate
4 42 Pa. C.S. § 9799.10 et seq.
2
Circulated 12/04/2015 03:34 PM
with each other over the internet.s (T.T. pp. 14-15). She testified they would
communicate online "every once in a while" and the content of the conversations
included things only the two of them knew about. (T.T. pp. 14-15). Specifically, he
testified he would tell her he wanted to be with her and he wanted to marry her. (T.T.
p .. 15).
One afternoon in November of 2013, Ms. Rulli and Appellant asked the victim
and her brother, to help clean her attic. (T.T. pp. 15, 29, 34).
Appellant, the victim, and her brother were cleaning the attic; Ms. Rulli only came
up to the attic periodically. (T.T. pp. 16, 34). While they were cleaning the attic,
Appellant on several occasions asked the victim's brother to take chairs downstairs,
leaving the victim and Appellant alone in the attic. (T.T. pp. 16, 29-30).
While Appellant was alone in the attic with the victim, he told her that he loved
her and not to tell anyone. (T.T. p. 22). Appellant also kissed the victim on the lips
and grabbed and squeezed her buttocks. (T.T. pp. 16·17). This was corroborated by
the victim's brother, who testified that before he went downstairs, he saw Appellant
kiss his sister on the lips and grabbed her buttocks. (T.T. p. 30).
About a month later, Patrick Ruff, a Connellsville City Police Officer, was
notified that the victim's father found messages between Appellant and the victim.
(T.T. pp. 17-18). · The case was initially reported to Officer Ruff regarding a person
named David ·Kennedy; however, throughout his investigation, Officer Ruff
ascertained David Kennedy's real name to be David Allen Bricker. (T.T. p. 38).
5
Ms. Rulli testified it was her belief the minor victim created an online profile for Appellant
on her computer. (T.T. p. 35).
3
Circulated 12/04/2015 03:34 PM
Officer Ruff also determined that +he. vi'ct!m's; date of birth is July 1998 and
Appellant's date of birth is June 1962. Therefore the child victim was fifteen
(15) years of age and the Appellant was fifty-one (51) years of age at the time of the
offense. (T.T. pp. 12-13, 39).
DISCUSSION
I. The Court did not err in allowing the victim to testify about
electronic communications between Appellant and the victim
Appellant contends in his first concise issue that the Court erred in not
excludingemails and text messages purportedly authored by Appellant to the victim,
as well as any testimony on said communications. During trial, Appellant argued
that the Commonwealth could not authenticate that any electronic messages to the
victim came from Appellant. We believe the issue was one of credibility and was up
to the jury to determine its weight rather than an issue of admissibility.
"To satisfy the requirement of authenticating or identifying an item of
evidence, the proponent must produce evidence sufficient to support a finding that
the item is what the proponent claims it is." Pa. R.E. 901(a). Here, the
Commonwealth did not admit into evidence any physical evidence regarding
electronic communications between the victim and Appellant. Instead, the only
mention of said communications came from witness testimony, specifically from the
victim. The victim testified that Appellant gave her his online contact information so
that they could communicate with each other .. Moreover, the victim testified that the
conversations between her and Appellant on the chat thread were only about things
that she and Appellant knew about.
4
Circulated 12/04/2015 03:34 PM
It is the role of the jury to determine the credibility and believability of a
witness and to determine the weight their testimony is to be given. Commonwealth
v. Feathers, 660 A.2d 90, 95 (Pa. Super. 1995). Since only testimony was presented
on the issue, it was up to the jury to determine whether they believed the victim's
testimony. Therefore, Appellant's first concise issue is without merit.
II. The Commonwealth provided sufficient evidence that Appellant
intentionally contacted the victim
Appellant's next concise issue is whether the Commonwealth proved beyond a
reasonable doubt that Appellant intentionally contacted the victim for purposes of
engaging in behavior prohibited under Chapter 31 of the Crimes Code.
The standard of review for a challenge to the sufficiency of
the evidence is to determine whether, when viewed in a
light most favorable to the verdict winner, the evidence at
trial and all reasonable inferences therefrom is sufficient
for the trier of fact to find that each .element of the crimes
charged is established beyond a reasonable doubt. The
Commonwealth may sustain its burden of proving every
element beyond a reasonable doubt by means of wholly
circumstantial evidence.
The facts and . circumstances established by the
Commonwealth need not preclude every possibility of
innocence. Any doubt raised as to the accused's guilt is to
be resolved by the fact-finder. [In this context, Courts] do
not assess credibility nor . . . assign weight to any of the
testimony of record. Therefore, we will not disturb the
verdict unless the evidence is so weak and inconclusive
'that as a matter oflaw no probability of fact may be drawn
from the combined circumstances.
Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa.Super. 2014).
On Count 1, Appellant was charged with Unlawful Contact with a Minor. To
be guilty of this crime, the Commonwealth must prove beyond a reasonable doubt
5
Circulated 12/04/2015 03:34 PM
that a person intentionally contacted or communicated with the minor for the purpose
of engaging in an unlawful act under Chapter 31 of the Crimes Code, relating to
sexual offenses. Pa. C.S. § 6318(a)(l); Commonwealth ii. Morgan, 913 A.2d 906, 910
(Pa. Super. 2006). Although the victim's testimony made up a large amount of the
evidence presented in this case, a victim's testimony alone may be enough to establish
guilt in sexual offense cases. 18 Pa. C.S. § 3106; see also Commonwealth v. Purcell,
589 A.2d 217, 221 (Pa. Super. 1991); Commonwealth v. Cody, 584 A.2d 992, 993 (Pa.
Super. 1991). After reviewing the evidence offered at trial, we believe the
Commonwealth satisfied its burden.
First, Appellant had contact with the victim. Contact can include any direct
,. . .
or indirect contact or communication including . in person, through an electronic
communication system or computer communications. 18 Pa. C.S. § 6318(c). The
contact occurred on multiple occasions when Appellant communicated with the victim
through internet messaging over the computer. See Morgan, 913 A.2d at 911 (contact
proscribed by 18 Pa. C.S. § 6318 occurred when Appellant engaged in two online
instant message exchanges with a. minor). Contact also occurred when Appellant and
the victim were in the attic together at Lora Rulli's house in November. It was on
that day in the attic when Appellant kissed the victim on her lips and grabbed and
squeezed her buttocks.
Appellant's contact with the victim was also intentional. The victim testified
she got Appellant's online contact information from Appellant himself. This fact
·provides a reasonable inference of Appellant's: intent to contact the victim. If
6
Circulated 12/04/2015 03:34 PM
Appellant had no intent on contacting the victim, he would not have furnished such
information to her. Even if the victim created an online account for Appellant, as Ms.
Rulli testified to, the act of getting on the computer, signing into the account, and
communicating with the victim goes towards his intent of contacting her.
Furthermore, testimony revealed that the victim was born on July 1998,
making her fifteen years old at the time of the incident. Since she was fifteen years
old at the time of the incident, she was considereda minor under the law. 18 Pa. C.S.
§ 6318(c).
Sufficient evidence was also provided by the Commonwealth to establish that
the contact was for the purpose of engaging in an unlawful act under Chapter 31 of
the Crimes Code, specifically indecent assault. The victim testified that the content
of the internet messaging communications included how Appellant wanted to be with
her and wanted to marry her. Moreover, when the victim and her brother were with
Appellant in the attic, Appellant made the victim's brother take chairs down to the
basement, leaving Appellant alone with the victim. Thus, a jury could reasonably
have found Appellant took these actions for the purpose of engaging in a sexual act
with the victim. See Morgan, 913 A.2d at 911 (it was reasonable for the jury to find
that the letters, instant messages.. and visit to the victim's home was made for the
purpose of rekindling their sexual relationship). Therefore, Appellant's second
concise issue is without merit.
III. The Commonwealth provided sufficient evidence that Appellant
had indecent contact with the victim
7
Circulated 12/04/2015 03:34 PM
Appellant's next concise issue is whether the Commonwealth proved beyond a
reasonable doubt that Appellant had indecent contact with the victim as defined
pursuant to 18 Pa. C.S. § 3101. Appellant was charged and found guilty of Indecent
Assault, Person Less Than 16 Years of Age.
(a) Offense defined.--A person is guilty of indecent
assault if the person has indecent contact with the
complainant, causes the complainant to have indecent
contact with the person or intentionally causes the
complainant to come into contact with seminal fluid.. urine
or feces for the purpose of arousing sexual desire in the
person or the complainant and:
(8) the complainant is less than 16 years of age and
the person is four or more years older than the
complainant and the complainant and the person
are not married to each other.
18 Pa. C.S. § 3126(a)(8).
Thus, in order for Appellant to be convicted of this offense, the Commonwealth had
to provide sufficient evidence that Appellant had indecent contact with the victim.
Indecent contact is defined as "any touching of the sexual or other intimate parts of
the person for the purpose of arousing or gratifying sexual desire, in any person." 18
Pa. C.S. § 3101.
Keeping in mind the standard articulated above on a challenge to the
sufficiency of the evidence, a reasonable jury could have found that Appellant had
indecent contact with the victim. The victim testified Appellant kissed her on her
lips and grabbed and squeezed her buttocks. Her testimony was corroborated by her
brother who also testified that he witnessed Appellant kiss her and grab her buttocks.
8
Circulated 12/04/2015 03:34 PM
Furthermore, the parts of the victim's body that Appellant came into contact with,
her lips and buttocks, does count as "sexual or other intimate parts of the person."
See Commonwealth v. Capo, 727 A.2d 1126 (Pa. Super. 1999) (evidence was sufficient
to support defendant's conviction for indecent assault when defendant attempted to
kiss the victim on the mouth, reaching only her face and neck and rubbed the victim's
shoulders, back, and stomach).
A jury could also find that this contact was for the purpose of arousing or
gratifying sexual desire in any person. The jury heard testimony that Appellant told
the victim he loved her and he wanted to marry her. These statements in conjunction
with the physical contact of the victim go towards his purpose for such actions, to
arouse or gratify sexual desire. Since sufficient evidence was provided that Appellant
had indecent contact with the victim, then Appellant's third concise issue is without ·
merit.
IV. The sentence imposed against Appellant is reasonable as it fell
within the statutory maximum and adequate reasoning was given
for the Court's deviation from the sentencing guidelines
Appellant's final concise issue is whether the sentencing court imposed an
excessive and manifestly unreasonable sentence in light of the circumstances
surrounding the incident. Appellant's claim of error with regard to the sentence
imposed by the Court is a· challenge to the discretionary aspects of the sentence.
Imposition of a sentence is vested in the discretion of the sentencing court and
will not be disturbed absent a manifest abuse of discretion. Commonwealth v.
Vasquez, 560 Pa. 381, 384-85, 744 A.2d 1280, 1282 (2000). An abuse of discretion is
9
Circulated 12/04/2015 03:34 PM
not shown merely by an error in judgment; rather, the Appellant must establish, by
. reference to the record, that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias or ill will, or arrived
at a manifestly unreasonable decision. Commonwealth v. Mastromarino, 2 A.3d 581,
589 (Pa. Super. 2010). A sentence imposed is not excessive if it does not exceed
statutory limits and the sentencing colloquyclearly demonstrates that the sentencing
court carefully considered all evidence relevant to the determination of a proper
sentence. Commonwealth v. Burtner, 453 A.2d 10, 12 (Pa. Super. 1982).
Appellant was convicted of Unlawful Contact with a Minor, Indecent Assault,
Person Less Than 16 Years of Age, and Harassment. Appellant was thereafter
sentenced on the Unlawful Contact with a Minor conviction to a term of imprisonment
of not less than 3 Y:i years nor more than 7 years." Appellant's sentence did not exceed
the statutory maximum. Unlawful Contact with a Minor is a felony of the third
degree, which carries with it a maximum of seven years. 18 Pa. C.S. § 1103(3).
Appellant was sentenced up to seven years, falling within the maximum sentence.
Under the provisions of the Pennsylvania Sentencing Guidelines, Unlawful
Contact with a Minor carries with it an offense gravity score of six. Taking into
consideration Appellant's prior record score of four, the guidelines called for a
standard range minimum of 15 to 21 months, an aggravated range minimum of 21 to
27 months, and a mitigated range minimum of 9 to 15 months. The sentence imposed
6On the remaining convictions, this Court accepted the guilty verdict without imposing a
further penalty.
10
Circulated 12/04/2015 03:34 PM
by the Court of not less than 3 Yi years nor more than 7 years fell above the
aggravated range.
Although Appellant's sentence fell outside the guidelines, his sentence was
appropriate. The sentencing guidelines, though important, are only one factor, and
they do not create a presumption. Commonwealth v. Walls, 592 Pa. 557, 575, 926
A.2d 957, 967 (2007). Thus, the guidelines are merely advisory and not binding on
the Court. Commonwealth v. Feucht, 955 A.2d 377, 383 (Pa. Super. 2008). It is only
required that the Court provide a contemporaneous written statement if it deviates
from the guidelines. Id.When a sentencing court deviates from the sentencing guidelines, it is
important that the Court reflect a consideration of the sentencing guidelines, the
background and character of the defendant, the circumstances of the crime, and
impose a sentence that is consistent with the. protection of the public and the
rehabilitative needs of the defendant. Commonwealth v. Hoch, 936 A.2d 515 (Pa.
Super. 2007). Following the imposition ofsentence, the Court placed on the record
the reason why it departed from the sentencing guidelines.
As a departure, the Court, having imposed this sentence
above the aggravated sentencing guideline range, has done
so due to the serious nature of this offense, the prior
Allegheny County rape conviction, the defendant's
complete lack of remorse, the age of the victim at fifteen at
the time of the offense and the age ofthe defendant at fifty-
one.
Mr. Bricker, we've taken into consideration the nature of
this offense, the seriousness of unlawful contact with a
minor, a felony of the third degree, punishable by a term of
imprisonment of up to seven years and a fine of up to
11
Circulated 12/04/2015 03:34 PM
$15,000.00. We've considered the number of offenses to
which you've been found guilty and we've reviewed a
presentence report, considered· your prior record, taken
into consideration your rehabilitative needs and the
gravity of this offense and we feel a lesser sentence would
depreciate from the seriousness of this crime and we feel
you are in need of correctional treatment that can be
provided most effectively by your commitment to an
institution.
Sentencing Transcript (pp. 18~19).
The Court considered the nature and gravity of the offense, the statutory limit
of incarceration, the Pennsylvania Sentencing. Guidelines, and the presentence
report. The reasoning of the Court as set forth in the sentence colloquy adequately
supports the sentence imposed against Appellant: Therefore, Appellant's final issue
is without merit.
Wherefore, it is respectfully submitted that this appeal is without merit and
should be denied.
JR., JUDGE
0
LU
-
-'
u,
12