Com. v. Jones, R. ( 2018 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ROD L. JONES, JR. :
:
Appellant : No. 1636 WDA 2016
Appeal from the Judgment of Sentence June 28, 2016
in the Court of Common Pleas of Allegheny County Criminal Division
at No(s): CP-02-CR-0008782-2015
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
DISSENTING MEMORANDUM BY STRASSBURGER, J.: FILED JULY 27, 2018
Although I join the learned Majority’s memorandum in all other resp
ects, I respectfully dissent regarding two issues: (1) the trial court’s error in
admitting Detective Holzwarth’s opinion as to typical responses by child
sexual abuse victims, which was based upon specialized knowledge he
acquired as a police officer, without qualifying Detective Holzwarth as an
expert; and (2) the trial court’s abuse of discretion in sentencing Appellant
outside of the sentencing guidelines to a maximum sentence without stating
sufficient justification for deviating from the guidelines pursuant to 42
Pa.C.S. § 9721(b).
With respect to the first issue, the Majority concludes that Detective
Holzwarth’s testimony was rationally based on his experience, was helpful to
*Retired Senior Judge assigned to the Superior Court.
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the trier of fact, and was not based on scientific, technical, or other
specialized knowledge. I respectfully disagree.
In this case, Detective Holzwarth, without any attempt to qualify him
as an expert in the area of child sexual abuse, testified that based upon his
training and experience, child victims often (1) have difficulty remembering
each incident when sexual abuse is ongoing, (2) have difficulty remembering
specific dates, and (3) mix up details of specific incidents with others. 1 N.T.,
4/5/2016 - 4/7/2016, at 100-01.
In Commonwealth v. Dunkle, 602 A.2d 830, 836-38 (Pa. 1992), our
Supreme Court held that the reasons why sexually-abused children may not
recall or provide certain details of the assault, or may delay reporting the
incident, are within the range of common experience, easily understood by
lay people, and do not require expert analysis. While at first glance Dunkle
is dispositive of this issue, Dunkle predates our legislature’s enactment of
42 Pa.C.S. § 5920. This statute provides as follows:
§ 5920. Expert testimony in certain criminal proceedings
(a) Scope.—This section applies to all of the following:
(1) A criminal proceeding for an offense for which
registration is required under Subchapter H of
1
Detective Holzwarth also testified that based upon his training and
experience, it is not uncommon for child victims to delay reporting sexual
assaults, and opined as to some of the reasons why. N.T., 4/5/2016 -
4/7/2016, at 103-04. I recognize, however, that while the trial court had
already overruled his prior objection regarding Detective Holzwarth’s
testifying as an expert, Appellant did not object to this specific testimony.
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Chapter 97 (relating to registration of sexual
offenders).
(2) A criminal proceeding for an offense under 18
Pa.C.S. Ch. 31 (relating to sexual offenses).
(b) Qualifications and use of experts.—
(1) In a criminal proceeding subject to this section, a
witness may be qualified by the court as an expert if
the witness has specialized knowledge beyond that
possessed by the average layperson based on the
witness’s experience with, or specialized training or
education in, criminal justice, behavioral sciences or
victim services issues, related to sexual violence,
that will assist the trier of fact in understanding the
dynamics of sexual violence, victim responses to
sexual violence and the impact of sexual violence on
victims during and after being assaulted.
(2) If qualified as an expert, the witness may testify
to facts and opinions regarding specific types of
victim responses and victim behaviors.
(3) The witness’s opinion regarding the credibility of
any other witness, including the victim, shall not be
admissible.
(4) A witness qualified by the court as an expert
under this section may be called by the attorney for
the Commonwealth or the defendant to provide the
expert testimony.
42 Pa.C.S. § 5920 (footnote omitted).
Our Supreme Court has described section 5920 as providing the
substantive authorization to present expert testimony regarding specific
types of victim responses and behaviors. Commonwealth v. Olivo, 127
A.3d 769, 780 (Pa. 2015). To date, no court has expressly held that by
enacting section 5920, the General Assembly legislatively overruled
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Dunkle’s holding regarding testimony about child victim responses as being
within the knowledge of an average layperson. See Commonwealth v.
Maconeghy, 171 A.3d 707, 709 n.2 (Pa. 2017) (noting that Dunkle is
“impacted by the enactment of [s]ection 5920 of the Judicial Code, which
now permits certain expert witnesses to testify to facts and opinions
regarding specific types of victim responses and behaviors,” but stating a
discussion of the specific effect of the statute on Dunkle was beyond the
scope of the opinion); Olivo, 127 A.3d at 781 (describing the portion of
Dunkle regarding child victim responses being within the knowledge of a lay
juror as a holding based upon “then-current research,” but not addressing
whether the holding was still valid in light of section 5920);
Commonwealth v. Carter, 111 A.3d 1221, 1223-224 (Pa. Super. 2015)
(observing that Dunkle pre-dates section 5920, holding that trial court
properly permitted expert to testify regarding child victim responses
pursuant to section 5920, and rejecting Carter’s argument that General
Assembly had enacted legislation on an issue previously ruled upon by the
Supreme Court in an area specifically consigned to its authority, thereby
violating separation of powers). In my opinion, Dunkle’s holding regarding
specialized knowledge is no longer valid in light of the legislative enactment
of section 5920 because section 5920 classifies such knowledge, when
acquired through experience, training, or education in criminal justice
related to sexual violence, as specialized. See 42 Pa.C.S. § 5920(b)(1), (2).
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In the instant case, the trial court and the Majority fail to discuss
Dunkle or section 5920. The trial court explained that it overruled
Appellant’s objection because “the Commonwealth was entitled to question
Detective Holzw[a]rth regarding his experience with child victims” based
upon Appellant’s defense, which involved his counsel “paint[ing Victim] as a
liar, with emphasis on her inability to remember exact dates and some
confusion between which types of intercourse happened in which rooms of
the house.” Trial Court Opinion, 5/5/2017, at 8-10. This explanation relates
to the relevancy of the Commonwealth’s evidence, but fails to address
whether Detective Holzwarth’s testimony was based upon specialized
knowledge within the meaning of Pa.R.E. 702.
Nevertheless, the Majority concludes that Detective Holzwarth’s
testimony was not based upon specialized knowledge, and thus was
“permissible lay opinion testimony regarding his observations with similar
victims of sexual abuse.” Majority Memorandum at 8. However, Detective
Holzwarth rendered his opinion regarding typical victim responses based
upon his training and experience as a police officer investigating sexual
assaults. See Commonwealth v. Huggins, 68 A.3d 962, 969 (Pa. Super.
2013) (“[A]n officer testifies as an expert when he brings the wealth of his
experience as an officer to bear on those observations and makes
connections for the jury based on that specialized knowledge.”) (quoting
United States v. Christian, 673 F.3d 702, 708-09 (7th Cir. 2012));
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Commonwealth v. Powell, 171 A.3d 294 (Pa. Super. 2017) (holding a
police officer may testify as an expert based upon knowledge gained from
practical and occupational training). In fact, the Commonwealth expressly
relied upon Detective Holzwarth’s experience and training when asking him
to formulate his opinion. N.T., 4/5/2016 - 4/7/2016, at 100-03. Thus,
Detective Holzwarth’s testimony appears to fall squarely within subsection
5920(b)(1) as “specialized knowledge beyond that possessed by the average
layperson based on the witness’s experience with, or specialized training or
education in, criminal justice … related to sexual violence, that will assist the
trier of fact in understanding the dynamics of … victim responses to sexual
violence.” 42 Pa.C.S. § 5920(b)(1). A witness “may testify to facts and
opinions regarding specific types of victim responses and victim behaviors” if
such witness is “qualified as an expert.” 42 Pa.C.S. § 5920(b)(2). Although
it likely could have qualified Detective Holzwarth as an expert, the
Commonwealth failed to do so. Thus, I dissent from the Majority’s
memorandum on this issue, and would grant relief to Appellant in the form
of a new trial.
Second, I dissent from the Majority’s holding that the trial court did
not abuse its discretion in sentencing Appellant to a maximum-term,
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outside-the-guidelines sentence that, in the aggregate, resulted in a
sentence of 27 to 60 years of incarceration.2
At the sentencing hearing, the trial court noted that it had read and
considered the pre-sentence investigation report. N.T., 6/28/2016, at 9.
The trial court then stated that “[t]he guidelines have been submitted
indicating that” Appellant’s prior record score was zero and the offense
gravity score of the crimes was 12. The court then referenced the following
factors regarding its sentence: (1) the “number of violent sexual activities”
committed by Appellant; (2) the step-daughter/step-father relationship and
the violation of a position of trust; (3) the occurrence of the acts “from the
time [the victim] was 11 until the time she was 17”; 3 and (4) the impact
2
The trial court sentenced Appellant to 9 to 20 years’ incarceration at each
count, to be served consecutively. With an offense gravity score of 12, and
a prior record score of zero, the guidelines recommend a mitigated range
sentence of 3 to 4.5 years; a standard range sentence of 4 to 5.5 years; and
an aggravated range sentence of 5 to 6.5 years. 204 Pa. Code § 303.16(a).
The statutory maximum for crimes that constitute felonies of the first degree
is 20 years’ imprisonment. 18 Pa.C.S. § 1103.
3 When stating the reasons for its sentence, the trial court stated
erroneously that Appellant perpetrated sexual abuse upon the victim from
the age of 11 to the age of 17. N.T. 6/28/2016, at 10. The record plainly
indicates that the abuse of the victim began at age 13. See N.T., 4/5/2016 -
4/7/2016, at 46, 85. The trial court repeats its error in its Rule 1925(a)
opinion, despite Appellant specifically addressing this issue as part of its
concise statement of matters complained of on appeal, and despite stating
earlier in the opinion that the abuse began at age 13. Trial Court Opinion,
5/5/2017, at 2, 11.
In a footnote, the Majority downplays the error regarding the starting age
of abuse as a misstatement. Majority Memorandum, at 14 n.5. But the trial
(Footnote Continued Next Page)
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upon the victim and her mother. In its Pa.R.A.P. 1925(a) opinion, the court
references its considerable discretion in sentencing and ability to run
sentences consecutively; notes its consideration of the PSI and the
presumption that it weighed information regarding the defendant’s character
and mitigating factors; and contends it considered Appellant’s potential for
rehabilitation, the severity of the present offense, and unspecified factors
when fashioning Appellant’s sentence. Trial Court Opinion, 5/5/2017, at 11-
12.
Despite its reference to the guidelines on the record, the trial court has
never acknowledged, even implicitly, that it sentenced Appellant outside of
the sentencing guidelines, much less provided a statement setting forth the
reasons for the deviation. The trial court referenced the reasons why it
imposed Appellant’s sentence in general, but does not specify which, if any,
of the listed reasons compelled the court to impose a sentence so far outside
of the guidelines. Additionally, on the Pennsylvania Commission on
Sentencing Guideline Sentence Forms included in the record, the trial court
(Footnote Continued) _______________________
court gives us no indication that this was a mere slip of the tongue. While
any sexual abuse of a child at any age is unacceptable, in terms of
sentencing, improper consideration of two additional years of abuse at an
even younger age is significant. Sentencing courts may not rely upon
factually erroneous information when imposing a sentence.
Commonwealth v. Melvin, 172 A.3d 14, 25 (Pa. Super. 2017).
Nevertheless, Appellant did not preserve this issue by objecting to the
misstatement at the sentencing hearing or including it as an issue in his
post-sentence motion. Thus, the issue is waived.
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indicated that the 9-to-20-years sentence at counts one through three was a
standard range sentence, when such a sentence clearly is not. See 204 Pa.
Code § 303.16(a).
Although the sentencing guidelines are advisory, the sentencing court
must at least “consider” the guidelines and provide a contemporaneous
statement setting forth its reasons for deviating from the guidelines. 4 42
Pa.C.S. § 9721(b); Commonwealth v. Wells, 926 A.2d 957, 962-63 (Pa.
2007); Commonwealth v. Rodda, 723 A.2d 212, 216 (Pa. Super. 1999)
(“[W]e hold that when imposing sentence, a trial court has rendered a
proper ‘contemporaneous statement’ under [sub]section 9721(b) of the
Sentencing Code, so long as the record demonstrates with clarity that the
court considered the sentencing guidelines in a rational and systematic way
and made a dispassionate decision to depart from them.”). Even considering
the trial court’s listed reasons, nothing in the record indicates with clarity
4 Subsection 9721(b) provides, in relevant part, that
[i]n every case in which the court imposes a sentence for a
felony or misdemeanor …, the court shall make as a part of the
record, and disclose in open court at the time of sentencing, a
statement of the reason or reasons for the sentence imposed.
In every case where the court imposes a sentence … outside the
guidelines adopted by the Pennsylvania Commission on
Sentencing … the court shall provide a contemporaneous written
statement of the reason or reasons for the deviation from the
guidelines to the commission…. Failure to comply shall be
grounds for vacating the sentence … and resentencing the
defendant.
42 Pa.C.S. § 9721(b).
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that the trial court considered the guidelines and dispassionately departed
from them for justified reasons. C.f. Commonwealth v. Antidormi, 84
A.3d 736, 761 (Pa. Super. 2014) (holding that the sentencing court
demonstrated due consideration for the statutory considerations, and stated
adequate reasons on the record to support the imposition of a sentence
outside of the standard guidelines by referencing Antidormi’s criminal
history, his resistance to treatment, his risk for recidivism, and the
seriousness of his crime).
Further, although a Pa.R.A.P. 1925(a) opinion is not a substitute for
the contemporaneous statement required by subsection 9721(b), there is
nothing in the trial court’s Rule 1925(a) opinion that gives me confidence
that the trial court did actually consider the guidelines during sentencing and
dispassionately departed from them. Once again, the trial court does not
acknowledge that it sentenced Appellant outside the guidelines or provide a
reason for doing so. The trial court simply hides behind boilerplate law
regarding its general discretion in sentencing. Notwithstanding a trial court’s
considerable discretion in sentencing, the trial court still must comply with
subsection 9721(b), especially because “[f]ailure to comply [is] grounds for
vacating the sentence … and resentencing the defendant.” 42 Pa.C.S. §
9721(b). Thus, I would vacate the sentence and remand for resentencing.
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