Com. v. Watson, L. ( 2017 )

J-S36012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
LEON WATSON
Appellant No. 3250 EDA 2015
Appeal from the Judgment of Sentence September 11, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0001136-2014
CP-51-CR-0001141-2014
CP-51-CR-0001142-2014
CP-51-CR-0001143-2014
CP-51-CR-0001144-2014
CP-51-CR-0001145-2014
BEFORE: PANELLA, J., OLSON, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY PANELLA, J. FILED AUGUST 03, 2017
Appellant, Leon Watson, appeals from the judgment of sentence
entered after a jury convicted him of multiple crimes arising from the sexual
abuse of five juvenile victims and one adult victim. We affirm.
In 2013, Watson was arrested and charged with Sexual Assault,1
Involuntary Deviate Sexual Intercourse (“IDSI”),2 three counts of IDSI with
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1
18 Pa.C.S.A § 3124.1.
2
18 Pa.C.S.A § 3123 (a)(1).
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a Child,3 five counts of Corruption of Minors,4 five counts of Unlawful Contact
with a Minor,5 and two counts of Indecent Assault,6 relating to the sexual
abuse of five juveniles, I.B., K.B., B.J., R.C., and D.J., and one mentally
disabled adult, J.H.7 The Commonwealth alleged that Watson used his
position as coach of the “Little Vicks” football team to find his victims and
gain their trust.
Prior to trial, the Commonwealth filed motions to consolidate the five
juvenile victim’s cases with the adult victim’s case and admit Watson’s
juvenile history of previous sexual offenses. Watson filed a response
opposing the motion to admit evidence of the previous sexual offenses citing
the remoteness in time. Further, Watson opposed the Commonwealth’s
motion to consolidate the victims’ cases and moved to sever the adult
victim’s case from the juvenile victims’ cases. The trial court granted the
Commonwealth’s motions and denied Watson’s motion to sever.
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3
18 Pa.C.S.A § 3123(b).
4
18 Pa.C.S.A § 6301(a)(1)(ii).
5
18 Pa.C.S.A § 6318(a)(1).
6
18 Pa.C.S.A § 3126(a)(7).
7
The Commonwealth also charged Watson with additional crimes related to
these allegations. However, these additional charges were disposed of prior
to trial.
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The consolidated cases proceeded to a jury trial on January 12, 2015.
As part of its case in chief, the Commonwealth presented the testimony of
all six victims, I.B., K.B., B.J., R.C., D.J., and J.H. Further, the
Commonwealth introduced the testimony of Michael Wood, Watson’s
brother, and an admission made by Watson relating to Watson’s juvenile
court adjudication for sexual offenses in 2005.
The jury convicted Watson of all charges relating to all six victims. The
trial court subsequently sentenced Watson to an aggregate sentence of 114
to 228 years’ imprisonment, followed by 35 years’ of probation. 8 Watson
filed a timely post-sentence motion, which the trial court denied. This timely
appeal follows.
Prior to reaching the merits of Watson’s issues, we must first
determine whether Watson has preserved an issue for our review. In his
appellate brief, Watson contends that the trial court infringed upon his
constitutional right to remain silent at sentencing by compelling him to
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8
Watson was sentenced to 10 to 20 years’ imprisonment for IDSI, 20 to 40
years’ imprisonment for each of the three counts of IDSI with a Child, 10 to
20 years’ imprisonment for each of three of the counts of Unlawful Contact
with a Minor, 3½ to 7 years’ imprisonment for each of the remaining two
counts of Unlawful Contact with a Minor, and 3½ to 7 years’ imprisonment
on each of the two counts of Indecent Assault. The trial court ordered these
sentences to run consecutively. The conviction for Sexual Assault merged
with IDSI. Further, Watson was sentenced to seven years of probation for
each of the five counts of Corruption of a Minor. The trial court ordered these
probationary sentences to run consecutive to Watson’s prison term and
consecutively to each other.
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testify and that the trial court used his attempted silence against him in
fashioning his sentence. See Appellant’s Brief, at 4, 29-36. However, we find
these discretionary aspects of sentencing claims waived as Watson failed to
raise this challenge with the trial court.
“[W]e note that issues, even those of constitutional dimension are
waived if not raised in the trial court.” Commonwealth v. Berryman, 649
A.2d 961, 973 (Pa. Super. 1994) (citations omitted). See also Pa.R.A.P.
302(a) (“Issues not raised in the lower court are waived and cannot be
raised for the first time on appeal.”) Here, at his sentencing hearing and in
his motion to reconsider sentence, Watson failed to raise the claims that the
trial court violated his constitutional right to remain silent and that it
improperly considered his silence in fashioning his sentence. See N.T.,
Sentencing, 9/11/15; Post Sentence Motion: Motion to Reconsider Sentence,
9/18/15. Thus, we find this issue waived. We proceed to address the
remaining issues.
In his first preserved issue on appeal, Watson contends the trial court
erred by permitting the Commonwealth to ask questions in front of the jury
that established the minor victims’ competency. See Appellant’s Brief, at 4,
25-29. Watson claims that this questioning violated the dictates of the per se
rule set forth in Commonwealth v. Washington, 772 A.2d 643 (Pa. 1998),
and therefore requires a new trial. See Appellant’s Brief, at 27-29.
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Under Pennsylvania law, the competency of witnesses over the age of
fourteen is generally presumed. See Commonwealth v. Delbridge, 855
A.2d 27, 39 (Pa. 2003). However, trial courts must inquire into the
competency of witnesses under the age of fourteen to ensure that the
witness has the mental capacity “to perceive the nature of the events about
which he or she is called to testify, to understand questions about that
subject matter, to communicate about the subject at issue, to recall
information, to distinguish fact from fantasy, and to tell the truth.” Id., at
45. The competency of juvenile witnesses is a matter solely within the
purview of the trial court. See Commonwealth v. Dowling, 883 A.2d 570,
576 (Pa. 2005).
As the trial court is the sole judge of competency, the defendant in
Washington questioned the appropriateness of inquiring into a juvenile
witness’s competency in the presence of the jury. See 722 A.2d at 645.
There, the trial court allowed counsel to conduct a lengthy voir dire of the
juvenile witnesses in the presence of the jury. See id., at 644-645.
Following voir dire, defense counsel objected to the juvenile witness’s
competency, but the trial court overruled the objection and specifically
informed the jury that the witness was competent to testify. See id., at 645.
The defendant argued that allowing the jury to witness the voir dire and
hear the competency ruling implied that the trial court endorsed the
witness’s credibility. See id. Our Supreme Court agreed and set forth a per
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se rule “requiring the trial court to conduct a competency hearing in the
absence of the jury.” 722 A.2d at 647.
However, our Supreme Court clarified the boundaries of this per se
rule in Commonwealth v. Hutchinson, 25 A.3d 277 (Pa. 2011). In
Hutchinson, the Court clarified that not all questioning which mirrors the
voir dire of juvenile witnesses violates the per se Washington rule. See id.,
at 296. Specifically, the Court found that the prosecutor’s inquiry into the
juvenile witness’s ability to differentiate between the truth and a lie in the
presence of the jury did not violate the per se Washington rule where the
trial court refrained from ruling on the juvenile witness’s competency in the
presence of the jury, and later instructed the jury that it was the sole judge
of credibility. See Hutchinson, 25 A.3d at 295.
Here, the circumstances of the competency hearings closely aligns
with the facts set forth in Hutchinson. For each juvenile victim, the trial
court correctly conducted a competency hearing outside of the presence of
the jury. See N.T., Jury Trial, 1/12/15, at 105-107 (relating to B.J.); N.T.,
Jury Trial, 1/13/15, at 5-7 (relating to K.B.), 8-9 (relating to I.B.), 89-91
(relating to D.J.), 92-93 (relating to R.C.). Watson did not challenge the
competency of any of the juvenile victims at the time of trial (or now on
direct appeal).
Upon direct examination, the Commonwealth asked each juvenile
victim to recite his age, birthday, and to confirm their understanding of the
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difference between the truth and a lie.9 See N.T., Jury Trial, 1/12/15, at
125-126 (relating to B.J.); N.T., Jury Trial, 1/13/15, at 10-11 (relating to
K.B.), 57-58 (relating to I.B.), 94 (relating to D.J.), 108-109 (relating to
R.C.). The Commonwealth then proceeded to ask questions directly related
to the charged crimes. These competency-like questions flowed smoothly
into the rest of each juvenile victim’s testimony. The trial court did not
discuss the issue of competency in front of the jury in relation to any of the
juvenile victims. Further, the trial court expressly instructed the jury on its
duty as the sole fact finder and judge of credibility. See N.T., Jury Trial,
1/15/15, at 125. There is no evidence that the jury did not follow this
instruction, and, as such, we must presume that they did so in this matter.
See Hutchinson, 25 A.3d at 299. As such, Watson is not entitled to relief
on this claim.
Next, Watson contends that two improper decisions of the trial court
combined to paint Watson as an “uncontrollable sexual predator.”
Appellant’s Brief, at 37. First, Watson claims the trial court erred in denying
his motion to sever and by consolidating the charges relating to the five
juvenile victims with the charges relating to the adult victim for trial. See
id., at 36-39. Watson avers that this error, coupled with Watson’s next
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9
The record reveals that the Commonwealth also asked B.J. and I.B. their
grade in school in the presence of the jury. See N.T., 1/12/15, at 125; N.T.,
1/13/15, at 58. This additional question does not alter our analysis of the
issue.
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alleged trial court error of admitting evidence of Watson’s juvenile sexual
offenses, deprived Watson of a fair trial and necessitates a new trial. See
id., at 39-41.
[A] motion for severance is addressed to the sound discretion of
the trial court, and … its decision will not be disturbed absent a
manifest abuse of discretion. The critical consideration is
whether [the] appellant was prejudiced by the trial court’s
decision not to sever. [The a]ppellant bears the burden of
establishing such prejudice.
Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa. Super. 2010) (citation
omitted; brackets in original).
In order to address Watson’s contention, we must determine
[1] whether the evidence of each of these offenses would be
admissible in a separate trial for the other; [2] whether such
evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these inquiries are in
the affirmative; [3] whether the defendant will be unduly
prejudiced by the consolidation of offenses.
Commonwealth v. Boyle, 733 A.2d 633, 635 (Pa. Super. 1999) (citation
omitted; alterations in the original). See also Pa.R.Crim.P. 582 and 583.
Our first step is to determine whether the evidence regarding each
incident would be admissible in a separate trial for the other. “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, 808 A.2d 893, 904 (Pa. 2002) (citation
omitted). However, it is impermissible to present evidence at trial of a
defendant’s prior bad acts or crimes in an attempt to establish the
defendant’s criminal character or proclivities. See Commonwealth v.
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Hudson, 955 A.2d 1031, 1034 (Pa. Super. 2008); Pa.R.E. 404(b)(1). Such
evidence, however, may be admissible “where it is relevant for some other
legitimate purpose and not utilized solely to blacken the defendant’s
character.” Commonwealth v. Russell, 938 A.2d 1082, 1092 (Pa. Super.
2007) (citation omitted). “[E]vidence of other crimes, wrongs or acts may be
admitted for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity or absence of mistake or lack of
accident.” Pa.R.E. 404(b)(2).
Watson concedes that the evidence of the abuse of the juvenile victims
would be admissible in separate trials for the others, and does not contest
the trial court’s decision to consolidate the juvenile cases for trial. See
Appellant’s Brief, at 36. However, he challenges the trial court’s conclusion
that the evidence admitted in the trial relating to the juvenile victims would
be admissible at the trial as evidence of a common plan or scheme for J.H.,
the sole adult victim, and vice versa. See id., at 36-39.
In determining whether the common plan or scheme exception
applies, a trial court must assess the distinctiveness of similarity of the
circumstances of the two incidents to determine whether they constitute a
“signature.” Commonwealth v. Tyson, 119 A.3d 353, 358-359 (Pa. Super.
2015) (citations omitted). A signature does not necessitate proof of nearly
identical facts, but requires that there be a “logical connection between [the
crimes.]” Commonwealth v. Ivy, 146 A.3d 241, 254 (Pa. Super. 2016).
Next, the court must assess the lapse of time between the incidents, as a
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prior bad act that is remote in time may not be probative of a common plan.
See Tyson, 119 A.3d at 358-359. Finally, the court must determine that the
probative value of the prior bad act evidence is not outweighed by the
prejudicial impact on the trier of fact. See id.
Here, the circumstances surrounding the separate allegations of sexual
abuse were set forth through the testimony of the victims, as accurately
summarized by the trial court as follows:
B.J. is an eleven-year-old child who played football for the
Little Vicks and the Rhawnhurst Raiders. B.J. stated that
[Watson] was the assistant coach of the Rhawnhurst Raiders and
in charge of the Little Vicks. B.J. testified that he would
sometimes spend the entire weekend at [Watson’s] house and
sleep in [Watson’s] bed. B.J. stated that he, K.B., I.B., and
sometimes D.J. and R.C. would sleep in the same bed with
[Watson]. B.J. testified that [Watson] would touch their private
parts and that [Watson] would put his private part in [B.J.’s]
butt. [Watson’s] private part would go in B.J.’s mouth and “some
white stuff” would come out of [Watson’s] private part when he
was “doing it” to [B.J.] B.J. stated that this happened more than
one time. B.J. was too scared to tell [Watson] that it hurt
because he thought that [Watson] would hit him.
The Commonwealth next called K.B. to testify. K.B. is an
eleven-year-old child who also played football with the
Rhawnhurst Raiders and the Little Vicks. K.B. testified that in
2013 he lived at … Street with his brother I.B., [Watson],
[Watson’s] mother, father, and mother’s boyfriend. He testified
that while he lived with [Watson], [Watson] would touch him
inappropriately. [Watson] would take his penis and rub it against
K.B.’s butt or penis almost every night. K.B. stated that
[Watson] would sometimes suck his penis and that after a while
[Watson’s] sperm would come out of his penis and land on K.B.’s
butt or penis. K.B. thought about telling his mother but he was
scared that his family would get hurt. K.B. testified that he
witnessed this happen to R.C., I.B., and B.J.
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The Commonwealth next called I.B. to testify. I.B. is a
nine-year-old child who played on the Little Vicks. I.B. testified
that [Watson] would put his mouth on his private part and
sometimes in his butt. He stated that white and clear stuff would
come out of [Watson’s] penis and go on [I.B.’s] back and
stomach and that this happened more than one time. I.B. said
that he did not tell anyone about what was happening because
[Watson] had a knife and taser and he thought [Watson] would
use them on him.
The Commonwealth next called D.J. to testify. D.J. is an
eleven-year-old child who played on the Little Vicks. He states
that he went over to [Watson’s] house when he got suspended
from school because no one could look after him at his own
home. D.J. testified that [Watson] touched him on the chest,
butt, and private part when he was over [Watson’s] house that
day. D.J. stated that he slept over [Watson’s] house but in a
different bed than [Watson]. He testified that he would see
[Watson] “wrestle” K.B. and I.B. in [Watson’s] bed.
The Commonwealth next called R.C. to testify. R.C. is a
ten-year-old child who played on the Little Vicks. He testified
that he slept over [Watson’s] house about nine times. R.C.
would sleep in [Watson’s] bed when he slept over. R.C. stated
that [Watson] touched him on his butt when he was in the
kitchen getting breakfast. [Watson] also touched R.C. on his
“nuts” over his clothes in the bedroom and [R.C. stated] that
this occurred about two or three times. R.C. did not tell anybody
because he was scared he would get in trouble with his mom.
***
The Commonwealth next called J.H. to testify. J.H. is
twenty-four years old and mentally challenged. J.H. testified that
he lives with Ryan O’Neal and that something bad happened
there with [Watson]. [] O’Neal works for JEVS Human Services,
which is a program that supports people with intellectual
disabilities or mental retardation through housing and
employment opportunities. [] O’Neal lives in a house on
Wellington Street where [Watson] resided for a few months from
late 2012 to early 2013. J.H. was part of this JEVS program. J.H.
stated that [Watson] raped him and that it happened six times.
J.H. explained that he was too scared to tell anyone what was
going on because he was scared of [Watson]. [Watson] held
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J.H.’s arms down and put his penis in J.H.’s butt until a “white
thing” would come out of [Watson’s] penis. [Watson] also forced
his penis into J.H.’s mouth until a “white thing” would come out.
While this was going on, [Watson] would look out the window to
make sure [] O’Neal was not coming home.
Trial Court Opinion, 5/27/16, at 5-9 (internal citations to the record
omitted).
Watson contends this testimony proves that, other than race, the
occurrence of sexual contact, and that all acts occurred in bedrooms, there
is no clear commonality between the cases involving the juvenile victims,
and the case involving the adult victim. See Appellant’s Brief, at 37. Watson
highlights the significant age difference between the juvenile victims and the
adult victim; the fact that the assaults on the juvenile victims occurred in his
mother’s home while Harris’s assault occurred in a group home; the fact that
J.H.’s assault occurred nine months prior to the juveniles’ assaults; and the
fact he used restraint in J.H.’s sexual abuse. See id., at 38. We disagree.
The record reveals that in all of the assaults, Watson targeted African-
American males who he either lived with, or who stayed overnight at his
residence. While J.H. was 21 at the time of the assault, all of the testimony
indicates that he mentally functioned at a level similar to the five juvenile
victims. All six victims were involved in either the Little Vicks or the
Rhawnhurst Raiders, which logically suggests that Watson used his position
of power as a coach to gain control over his victims. Additionally, all of the
assaults occurred within a two-year period, contrary to Watson’s assertion
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that the assaults were remote in time. Further, while there is no evidence
that Watson physically restrained any victim but J.H., this fact alone does
not preclude consolidation. Thus, we find that the cases are similar enough
to be admitted as evidence in each case if tried separately.
The next step is to determine whether joinder of the offenses for trial
posed a danger of confusing the jury. “Where a trial concerns distinct
criminal offense that are distinguishable in time, space and the characters
involved, a jury is capable of separating the offenses.” Commonwealth v.
Collins, 703 A.2d 418, 423 (Pa. 1997) (citation omitted).
Watson entirely ignores the danger of confusion in his brief. However,
the crimes occurred on different days and at different times. Further, the
subject matter was rather simplistic and could be easily understood by the
jury. Thus, we find that there was no danger of confusing the jury with
evidence of each crime.
Finally, we must determine whether joinder of the offenses for trial
unfairly prejudiced Watson.
The “prejudice” of which Rule [583] speaks is not simply
prejudice in the sense that appellant will be linked to the crimes
for which he is being prosecuted, for that sort of prejudice is
ostensibly the purpose of all Commonwealth evidence. The
prejudice of which Rule [583] speaks is, rather, that which would
occur if the evidence tended to convict appellant only by showing
his propensity to commit crimes, or because the jury was
incapable of separating the evidence or could not avoid
cumulating the evidence.
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Commonwealth v. Newman, 598 A.2d 275, 279 (Pa. 1991) (citation
omitted).
As we stated above, the burden for establishing prejudice falls
squarely on Watson. Watson does not even attempt to establish prejudice in
his appellate brief. Further, we have already explained that the evidence
regarding each sexual assault would be admissible in a separate trial for the
other. And we concluded that the jury was capable of separating the
evidence of each crime. Thus, we can discern no abuse of discretion in the
trial court’s denial of Watson’s motion to sever, and grant of the
Commonwealth’s motion to consolidate, all six cases for trial.
In his second prong of this argument, Watson contends the trial court
improperly granted the Commonwealth’s motion to introduce a juvenile
court adjudication, which revealed that he had previously molested children.
See Appellant’s Brief, at 39-41. Specifically, Watson challenges the
introduction of evidence relating to sexual abuse he perpetrated in 2005. At
that time, he “anally penetrated his then-eight year old brother and
vaginally penetrated his then-three year old sister,” as well as testimony
that “[a]t around the same time period, [Watson] rubbed himself up against
[two of his cousins] during a water fight.” Id., at 39. Watson claims that this
evidence is too far removed from the allegations introduced at trial and lacks
a signature-like quality necessary to qualify for the common plan or scheme
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exception to Pa.R.E. 404(b)(2), and therefore its introduction was
impermissible proof of propensity to commit a crime. See id., at 41.
As discussed in detail above, we determined that Watson displayed a
common plan or scheme that involved sexually assaulting immature African-
American children and a mentally disabled adult that trusted him because of
their relationship and all of whom were easily accessible as victims for him
to sexually abuse. Watson’s abuse of his siblings and cousins falls neatly
within this general plan or scheme. Watson clearly had access to his younger
cousins and his sister and had power over them because of his elder status.
Further, Watson’s brother, Michael Wood, eighteen at the time of the trial,
testified that
when he was eight years old and [Watson] was sixteen,
[Watson] would play the “quiet game” and the “kissing game”
with him. During the “quiet game,” [Watson] would make Wood
lay down and [Watson] would insert his penis inside Wood’s
anus. During the “kissing game” [Watson] would kiss Wood and
make Wood give him oral sex. The “quiet game” would happen
almost every day after school and the “kissing game” did not
happen too often. Wood testified that roughly three times he
saw [Watson] “go on top of” their three year old sister. He
stated that he saw [Watson] “stroking up and down on top of
her.”
Trial Court Opinion, 5/27/16, at 9-10 (internal citations to the record
omitted).
Wood’s description of the sexual abuse he suffered is strikingly similar
to the abuse described by B.S. We find these factual similarities sufficient to
establish a logical connection between the cases.
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We recognize that Watson is correct in noting that evidence of a
common plan or scheme that is too remote in time generally loses its
probative value, but we find that, under the particular circumstances here,
the evidence of Watson’s juvenile sexual offenses are not too remote in
time. “If the evidence reveals that the details of each criminal incident are
nearly identical, the fact that the incidents are separated by a lapse of time
will not likely prevent the offer of evidence unless the time is excessive.”
Commonwealth v. Smith, 635 A.2d 1086, 1089 (Pa. Super. 1983)
(citation and emphasis omitted). Further, in evaluating the remoteness of a
particular crime intended to be introduced as evidence of a common plan or
scheme, “time spent in prison must be excluded in the calculation of how
much time has elapsed since the prior crime.” Tyson, 119 A.3d at 361
(citations omitted).
Watson was in custody for his juvenile sexual offenses from February
2006 until September 2010. He was released from custody into the
residential support home where he eventually sexually assaulted J.H.
Effectively, there was an approximate three year gap between the instances
in which he sexually assaulted his cousins and siblings and the instances in
which he assaulted J.H. After his assaults of J.H., he began sexually
assaulting the five juvenile victims within the year time.
We do not find that these lapses in time removed the probative value
of evidence of a common plan or scheme. See id., at 361 (finding five-year
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“look-back period” not too remote and citing cases where ten-year and six
year-lapses were not too remote). Additionally, we do not find that the trial
court abused its discretion in determining that the probative value of
Watson’s prior sexual offenses outweighed its potential for undue prejudice.
Given the substantial similarities between the sexual assaults, it was
reasonable to find the previous assaults highly probative. Accordingly,
Watson’s challenge to the admission of evidence relating to his juvenile
adjudication for sexual assaults is without merit.
In his final argument, Watson contends that the trial court abused its
discretion in imposing sentence. See Appellant’s Brief, at 20-24, 41-51.
Watson relies upon two arguments to support this contention. 10 First,
Watson contends that the trial court abused its discretion by sentencing him
to aggravated range and “outside the aggravated range” sentences on every
count and running the sentences consecutively, essentially creating a life
sentence. See id., at 22-23. Second, Watson contends that the trial court
abused its discretion by failing to adequately justify the reasons for its
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10
We have rearranged Watson’s arguments for ease of disposition.
Additionally, through his challenge to the discretionary aspects of his
sentence, Watson attempted to raise a third argument: that the trial court
abused its discretion by construing his constitutional right to remain silent as
a lack of remorse, and using that alleged lack of remorse against him in
sentencing. See Appellant’s Brief, at 20. However, as we have discussed
above, Watson waived this challenge by failing to object to this alleged error
at sentencing or in his motion to reconsider his sentence. Thus, we will not
address this waived issue in the context of his challenge to the discretionary
aspects of his sentence.
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sentence on the record at sentencing and by failing to consider mitigating
factors. See id., at 20-21. Watson concedes that both of these challenges
implicate the discretionary aspects of the trial court’s sentence.
Preliminarily, we note that Watson’s contention that the trial court
sentenced him to both aggravated range and “outside the aggravated range”
sentences mischaracterizes the trial court’s sentencing scheme. Specifically,
in his Rule 2119(f) statement, Watson incorrectly alleges that the trial court
imposed aggravated range sentences for the three counts of IDSI of a Child,
and for the three corresponding counts of Unlawful Contact with a Minor.11
See Appellant’s Brief, at 22 n.16. At the sentencing hearing, both parties
agreed, correctly, see 204 Pa. Code. § 303.15, that Watson’s prior record
score was four and an offense gravity score of 14 for each these six counts.
See N.T., Sentencing, 9/11/15, at 7-8. Based upon these numbers, a
standard range sentence for any of these charges would include a minimum
sentence ranging from 14 years’ to the statutory limit of 20 years’
imprisonment. See 204 Pa. Code. § 303.16(a). Thus, Watson’s minimum
sentence of 10 years’ imprisonment for each of three counts of Unlawful
Contact with a Minor is below the standard range. See id. Further, while
Watson’s minimum sentence of 20 years’ imprisonment for IDSI of a Child is
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11
Peculiarly, Watson later concedes that the three sentences of 20-40 years’
imprisonment that he received for the ISDI with a Child were standard range
sentences. See Appellant’s Brief, at 48.
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the statutory maximum, it is also a standard range sentence for Watson.
See id. Despite this mischaracterization, we will address this claim as the
trial court did sentence Watson to five sentences outside the guidelines.12
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). “Two requirements must be met before we
will review this challenge on its merits.” Id. (citation omitted).
“First, an appellant must set forth in his brief a concise statement of
the reasons relied upon for allowance of appeal with respect to the
discretionary aspects of a sentence.” Id. (citation omitted). See also
Pa.R.A.P. 2119(f). “Second, the appellant must show that there is a
substantial question that the sentence imposed is not appropriate under the
Sentencing Code.” Id. (citation omitted). That is, “the sentence violated
either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.” Commonwealth v. Tirado, 870 A.2d 362, 365 (Pa. Super. 2005)
(citation omitted).
____________________________________________
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The trial court’s sentence of 3½ to 7 years’ imprisonment for the
remaining two counts of Unlawful Contact with a Minor, as well as the two
counts of Indecent Assault, were outside the standard range of the
guidelines, but within the statutory limits. See 204 Pa. Code. § 303.16(a).
This is also true for Watson’s sentence of 10 to 20 years’ imprisonment for
IDSI. See id.
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We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id. (citation omitted). Here, Watson has preserved his arguments
through a post-sentence motion and his appellate brief contains the requisite
Rule 2119(f) concise statement.
We will first address Watson’s erroneous contention that the trial court
abused its discretion by sentencing him to aggravated range and “outside
the aggravated range” sentences on every count and running the sentences
consecutively, essentially creating a life sentence. Essentially, through this
argument, Watson is objecting to the consecutive nature of his sentence. We
find that this argument fails to raise a substantial question for our review.
“Although Pennsylvania’s system stands for individualized sentencing,
the court is not required to impose the ‘minimum possible’ confinement.”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation
omitted). “Generally, Pennsylvania law affords the sentencing court
discretion to impose its sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already imposed.
Any challenge to the exercise of this discretion ordinarily does not raise a
substantial question.” Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.
Super. 2013). See also 42 Pa.C.S.A. § 9721(a); Commonwealth v. Hoag,
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665 A.2d 1212, 1214 (Pa. Super. 1995) (stating that an appellant is not
entitled to a “volume discount” for his crimes by having all sentences run
concurrently). “The imposition of consecutive, rather than concurrent,
sentences may raise a substantial question in only the most extreme
circumstances, such as where the aggregate sentence is unduly harsh,
considering the nature of the crimes and the length of imprisonment.”
Moury, 992 A.2d at 171-72 (citation omitted).
We do not find that an “extreme circumstance” is present here. The
trial court acted well within its discretion in imposing consecutive sentences.
Although we do not deny that Watson’s aggregate sentence is lengthy,
Watson concedes that it is a legal sentence. Given the egregious nature of
the sexual abuse of six individuals in this matter, five of whom were
children, we agree with the trial court’s conclusion that a sentence of 114 to
128 years’ imprisonment, followed by a 34-year probationary tail is
reasonable under the circumstances and not excessive. Thus, Watson’s first
challenge to the discretionary aspects of his sentence is without merit; it
does not even raise a substantial question for our review.
Finally, Watson argues in his Rule 2119(f) statement that the trial
court abused its discretion by failing to state adequately the reasons for its
sentence on the record and by ignoring mitigating circumstances, such as
his diagnosis of mild mental retardation, his history of abuse in childhood,
and his rehabilitative needs. See Appellant’s Brief, at 20-21. We have
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previously held that this claim raises a substantial question for our review.
See Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015)
(en banc), appeal denied, 126 A.3d 1282 (Pa. 2015). See also
Commonwealth v. Parlante, 823 A.2d 927, 929-930 (Pa. Super. 2003)
(holding that failing to adequately state reasons on the record coupled with
failure to consider rehabilitative needs raises a substantial question).
The standard of review with respect to sentencing is as follows.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is 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. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(citation omitted).
We first note that at Watson’s sentencing, the trial court was provided
with a pre-sentence investigation report (“PSI”). Where the sentencing court
had the benefit of reviewing a PSI, we must
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
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awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation
omitted).
In addition to the PSI, which highlighted Watson’s claims of mental
disability and childhood abuse, defense counsel argued at sentencing that
Watson’s troubled childhood and “mild mental retardation” evidenced a need
for rehabilitative efforts. N.T., Sentencing, 9/11/15, at 10-14. While it is
clear from the record that Watson had an extremely difficult childhood and
mental deficiencies, there is no indication that the trial court completely
disregarded this information in fashioning a sentence. In fact, the trial court
acknowledged Watson’s claims during sentencing, but indicated that he did
not believe rehabilitation would be successful, as Watson had already been
given the opportunity for “treatment and rehabilitation … by the juvenile
justice system” and “went AWOL [from] sexual offender treatment several
times.” Id., at 38, 41. We therefore conclude that the trial court considered
the appropriate factors when sentencing Watson, and therefore did not
abuse its discretion. Thus, Watson’s final issue on appeal merits no relief.
Judgment of sentence affirmed.
President Judge Emeritus Ford Elliott joins in the memorandum.
Judge Olson concurs in the result.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/3/2017
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