Com. v. Bowers, R. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RICHARD GLENN BOWERS
Appellant No. 54 WDA 2013
Appeal from the Judgment of Sentence August 30, 2012
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0000820-2009
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JANUARY 14, 2015
Richard Glenn Bowers brings this appeal from the judgment of
sentence imposed on August 30, 2012, in the Court of Common Pleas of
Fayette County. Bowers was charged with rape of a child, aggravated
indecent assault of a child, and indecent assault – person less than 13 years
of age.1 On April 3, 2012, a jury found Bowers guilty of indecent assault –
person less than 13 years of age.2 The trial court sentenced Bowers to a
mandatory sentence of life imprisonment. See 42 Pa.C.S. § 9718.2.
Bowers presents nine issues, which we have reordered for purposes of
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1
See 18 Pa.C.S. §§ 3121(c), 3125(b), and 3126(a)(7), respectively.
2
The jury found Bowers not guilty of rape of a child. See N.T., 4/2-3/2012,
at 127. The court dismissed the charge of aggravated indecent assault of a
child. See id. at 92.
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discussion. These issues pertain to the trial court’s denial of the following
motions filed by Bowers: (1) his omnibus pretrial motion in the form of a
motion for writ of habeas corpus, (2) his motion to dismiss pursuant to
Pa.R.Crim.P. 600(G), (3) his motion seeking sanctions, an order providing
subpoenas duces tecum, a continuance, and other relief, (4) his motion for
judgment of acquittal, (5) his motion for a new trial and arrest of judgment
asserting the verdict is contrary to the evidence, (6) his motion for a new
trial and arrest of judgment asserting the verdict is contrary to the weight of
the evidence, (7) his motion for a new trial and arrest of judgment asserting
the verdict is contrary to the law, (8) his motion to reconsider the sexually
violent predator (SVP) finding, and (9) his motion to modify or reconsider
sentence. Finding merit in the final argument, we vacate the judgment of
sentence and remand for resentencing.
The trial judge aptly summarized the facts underlying Bowers’
conviction:
The victim, R.M. [born in March, 2002], who was ten years
old at the time she testified, identified [Bowers] as her next door
neighbor who she knew as “Pap.” R.M. testified that [Bowers]
would take her riding on his [four-wheel all terrain] quad into the
woods and, while in the woods alone, [Bowers] would stop the
quad, lay R.M. down on a rug, and pull her pants and underwear
down. Then, [Bowers] would “unzipper” his pants, pull out his
“thing,” and put his “thing” on her [“]thing.[”] Under
questioning as to what a “thing” was, R.M. testified that it is her
“stomach but lower” and it is used for “going to the bathroom.[”]
She further testified that while [Bowers’] “thing” was on her, he
would put both of his arms on either side of her and he was
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“moving up and down” over top of her and it was
“uncomfortable.” When [Bowers] finished “going up and down”
on her thing, “he would basically stand up and pull, well he
would, take out his hand and spit on and rub it on my thing.”
[Bowers] told her not to tell anyone and she did not tell anyone
at the time “because [she] was scared.” R.M. also testified to
similar assaults occurring in [Bowers’] garage when he would call
her into the garage and close the door. R.M. believed the
assaults occurred over a four year period from when she was
three until seven years of age.
[R.M.’s mother] testified that [Bowers] is the great-
grandfather of R.M.,[3] and that her family moved next door to
[Bowers] when R.M. was three years old. [R.M.’s mother]
testified that R.M. would go for quad rides with [Bowers] and
that [Bowers] would ask R.M. to come over when she was
playing outside.
One day [R.M.’s mother] was at her sister-in law’s house
when R.M. came inside and blurted out “Pap does it with me.”
When [R.M.’s aunt] asked R.M. what she meant, R.M. responded
by spelling out “S-E-X” and identifying [Bowers] as “the pap that
lives with Shelly.” R.M. then told her mother and aunt that
[Bowers] would take her into the garage, lay her down, get on
top of her, and move up and down. She also told them that he
would spit on his fingers and touch her down below. While
relaying this, R.M. pointed to her private area. After receiving
counseling, R.M. relayed that [Bowers] would put his mouth on
her privates and kiss it.
[R.M.’s mother] also testified that R.M. would have been
six years old when she told of the assaults. In an interview,
R.M. relayed the same events of the assaults to Trooper James
L. Garlick of the Pennsylvania State Police.
Trial Court Opinion, 11/26/2012, at 1–3 (record citations omitted).
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3
Bowers was 67 years old at the time of his arrest on May 20, 2009.
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Bowers was convicted by a jury and sentenced as stated above. After
post-sentence motions were denied, this appeal followed.4
Bowers first contends the trial court erred in denying his omnibus
pretrial motion in the form of a motion for writ of habeas corpus, wherein he
claimed that the Commonwealth had failed to establish a prima facie case at
the preliminary hearing.
“The decision to grant or deny a petition for writ of habeas corpus will
be reversed on appeal only for a manifest abuse of discretion.”
Commonwealth v. McCullough, 86 A.3d 896, 898 (Pa. Super. 2014),
appeal denied, 91 A.3d 1236 (Pa. 2014).
[T]he Commonwealth must show sufficient probable
cause that the defendant committed the offense, and the
evidence should be such that if presented at trial, and
accepted as true, the judge would be warranted in
allowing the case to go to the jury. When deciding
whether a prima facie case was established, we must
view the evidence in the light most favorable to the
Commonwealth, and we are to consider all reasonable
inferences based on that evidence which could support a
guilty verdict. The standard clearly does not require that
the Commonwealth prove the accused's guilt beyond a
reasonable doubt at this stage.
[T]he prima facie case merely requires evidence of the existence
of each element of the crime charged. The weight and credibility
of the evidence is not a factor at this stage.
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4
Bowers timely complied with the order of the trial court to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
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Id. at 898–899 (citations and quotations omitted) (emphasis in original).
At the omnibus pretrial motion hearing, the Commonwealth presented
the testimony of the child victim, and the prosecuting officer, Pennsylvania
State Trooper James L. Garlick. See N.T., 12/16/2009. Bowers asserts the
testimony of the child victim failed to indicate that he engaged in any
penetration or sexual intercourse, and that her testimony solely indicated
that Bowers engaged “in contact ‘on her thing’ with ‘his thing’, and with his
fingers ‘on her thing.’” Bowers’ Brief at 7. Bowers submits that the
testimony of the child victim, standing alone, was insufficient to establish a
prima facie case for the charges. Bowers further asserts that the testimony
of Pennsylvania State Trooper James L. Garlick regarding the child victim’s
out of court statements was inadmissible hearsay because the
Commonwealth failed to give proper notice pursuant to 42 Pa.C.S. § 5985.1
(“Admissibility of certain statements”). In addition, Bowers argues Section
5985.1 is unconstitutional in light of the United States Supreme Court
decision in Crawford v. Washington, 541 U.S. 36 (2004). In the
alternative, Bowers argues that even if the statements made by the child
victim to Trooper Garlick are admissible, the evidence is insuffcient to
establish a prima facie case for the charges. For the following reasons, we
find these arguments warrant no relief.
We first address the testimony of Trooper Garlick regarding the child
victim’s out of court statements. Contrary to the argument of Bowers, the
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testimony of Trooper Garlick regarding the out of court statements made by
the victim were properly admitted under the tender years exception to the
rule against hearsay, 42 Pa.C.S. § 5985.1. Here, the Commonwealth
provided Bowers with proper notice pursuant to 42 Pa.C.S. § 5985.1(b),5 by
indicating in the notice that the child victim’s statements that the
Commonwealth intended to present could be found in the police report. See
Commonwealth v. Hunzer, 868 A.2d 498 (Pa. Super. 2005) (“[T]he notice
need not contain an exact word-for-word recitation of that out-of-court
statement…. Rather, the Act merely requires that the notice contain ‘the
particulars of the statement.’ 42 Pa.C.S.A. § 5985.1(b).”), appeal denied,
880 A.2d 1237 (Pa. 2005); Commonwealth v. O’Drain, 829 A.2d 316 (Pa.
Super. 2003) (Commonwealth properly gave separate and distinct notice of
its intention to proceed by way of the tender years exception where
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5
Section 5985.1 provides in pertinent part:
Notice required. --A statement otherwise admissible under
subsection (a) shall not be received into evidence unless the
proponent of the statement notifies the adverse party of the
proponent’s intention to offer the statement and the particulars
of the statement sufficiently in advance of the proceeding at
which the proponent intends to offer the statement into evidence
to provide the adverse party with a fair opportunity to prepare to
meet the statement.
42 Pa.C.S. § 5985.1(b). The Commonwealth filed its “Notice of Intention to
Offer Out-of-Court Statement Made by Child Victim” on December 14, 2009.
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Commonwealth specified in its notice that it might introduce at trial
testimony of what the child victim had told her mother about the defendant
kissing her on different parts of her body). Furthermore, Bowers’ argument
that The Tender Years Hearsay Act, 42 Pa.C.S. § 5985.1 is unconstitutional
in light of Crawford, supra, is unavailing.6
In Crawford, the Supreme Court held that the Confrontation Clause
prohibits out-of-court testimonial statements of a witness who did not
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6
Section 5985.1 provides, in relevant part:
(a) General rule. --An out-of-court statement made by a child
victim or witness, who at the time the statement was made was
12 years of age or younger, describing any of the offenses
enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal
homicide), 27 (relating to assault), 29 (relating to kidnapping),
31 (relating to sexual offenses), 35 (relating to burglary and
other criminal intrusion) and 37 (relating to robbery), not
otherwise admissible by statute or rule of evidence, is admissible
in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the evidence is
relevant and that the time, content and circumstances of the
statement provide sufficient indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
42 Pa.C.S. § 5985.1(a).
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appear at trial unless the witness was unavailable and the defendant had a
prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 68.
Here, the child victim appeared and testified at the hearing on Bowers’
omnibus pretrial motion and at trial, and Bowers had an opportunity to
cross-examine her about the statements that she made to police. As such,
this case is distinguishable from Crawford, and we need not reach the issue
of whether Section 5985.1 is unconstitutional in light of Crawford. See
Commonwealth v. Ceser, 911 A.2d 978, 983 (Pa. Super. 2006), appeal
denied, 928 A.2d 1289 (Pa. 2007) (admission of the hearsay statements of
child victim under 42 Pa.C.S. § 5985.1 did not violate defendant’s Sixth
Amendment confrontation rights; child victim was not unavailable within the
purview of Pa.R.E. 804(b)(3), and defendant was given the opportunity to
cross-examine her concerning the incident in question at both the pre-trial
hearing and the trial); Commonwealth v. Charlton, 902 A.2d 554, 560
(Pa. Super. 2006), appeal denied, 911 A.2d 933 (Pa. 2006) (“Here, unlike
Crawford, the record reveals the victim testified at length regarding the
underlying events at both the pretrial competency hearing and the jury trial,
and appellant had more than ample opportunity to confront and cross-
examine her in each instance. … Accordingly, we do not find the concerns of
Crawford are implicated in this case.”).
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Lastly, we address Bowers’ contention that although he was only found
guilty on the third charge of indecent assault, he was prejudiced by the
denial of the omnibus pretrial motion with regard to not only the charge of
indecent assault but also the charges of rape and aggravated indecent
assault. With regard to the charges of rape and aggravated indecent
assault, Bowers claims he was prejudiced because “the jury could have been
swayed by the presentation of these charges and [the charges] could have
affected the jury’s guilty verdict on the remaining charge of indecent
assault.” Bowers’ Brief at 11. Bowers also asserts he was prejudiced by the
court’s denial of the omnibus pretrial motion with regard to the charge of
indecent assault because he was ultimately found guilty of that charge. See
id. Bowers argues that rape of a child, 18 Pa.C.S. § 3121(c), requires the
Commonwealth to prove the defendant engaged in “sexual intercourse,” and
that aggravated indecent assault of a child, 18 Pa.C.S. § 3125(a)-(b),
requires the Commonwealth to prove the element of “penetration, however
slight,” and the testimony of the child victim, which was presented at the
omnibus pretrial hearing, failed to indicate that he engaged in any sexual
intercourse or penetration.
Based on our review, we find no error in the trial court’s determination
that the testimony of the child victim “that she had witnessed Bowers climb
on top of her and move up and down as if he was doing ‘push-ups’” and that
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“she felt a ‘vibration’ and at times it ‘pinched’ as if she was ‘getting her ears
pierced’” was sufficient evidence of penetration to establish a prima facie
case for the offenses of rape of a child and aggravated indecent assault of a
child. Trial Court Opinion, 9/3/2010, at 9. See N.T., 12/16/2009, at 20, 23,
30. Furthermore, with regard to the charge of indecent assault, “[a] finding
at a preliminary hearing that sufficient evidence exists to require a
defendant to stand trial is not subject to review if there has been a
subsequent independent judicial judgment that there is sufficient evidence to
require the defendant to stand trial.” Commonwealth v. Lee, 662 A.2d
645, 650 (Pa. 1995). Thus, the jury’s guilty verdict on the charge of indecent
assault – person under 13 years of age renders moot any allegation that the
Commonwealth failed to establish a prima facie case with respect to the
charge.
Therefore, for the foregoing reasons, we reject Bowers’ first claim that
the trial court erred in denying his omnibus pretrial motion in the form of a
motion for writ of habeas corpus.
In his second argument, Bowers contends the trial court erred in
denying his motion for dismissal of the charges because he was not brought
to trial within 365 days, as required under Pennsylvania Rule of Criminal
Procedure 600.
Our standard of review is as follows:
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In evaluating Rule 600 issues, our standard of review of a trial
court’s decision is whether the trial court abused its discretion.
Judicial discretion requires action in conformity with law, upon
facts and circumstances judicially before the court, after hearing
and due consideration. An abuse of discretion is not merely an
error of judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is manifestly
unreasonable, or the result of partiality, prejudice, bias, or ill
will, as shown by the evidence or the record, discretion is
abused.
Commonwealth v. Ramos, 936 A.2d 1097, 1099 (Pa. Super. 2007) (en
banc) (citation omitted), appeal denied, 948 A.2d 803 (Pa. 2008).
In determining the date by which trial must begin under Rule 600,
certain periods are not included in the 365-day time limitation.
When a defendant is deemed unavailable for trial, the time is
excludable from the Rule [600] calculation; however, the mere
filing of a pretrial motion by a defendant does not automatically
render him unavailable. Rather, a defendant is only unavailable
for trial if a delay in the commencement of trial is caused by the
filing of the pretrial motion.
Commonwealth v. Hill, 736 A.2d 578, 587 (Pa. 1999). If a delay is
created, in order to establish that the delay is excludable, the
Commonwealth must demonstrate, by a preponderance of the evidence, that
it exercised due diligence in opposing or responding to the pretrial motion.
Id. A delay caused by the Commonwealth’s lack of due diligence will not
constitute excludable time. Id.Bowers filed his omnibus pretrial motion on August 11, 2009. The
hearing on the motion was held on December 16, 2009, and the court’s
order denying the motion was filed on September 3, 2010. Bowers claims:
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The “mechanical run date” in this case was May 20, 2010,
exactly 365 days after the Complaint was filed. The “mechanical
run date” can be modified or extended by adding any periods of
time in which the [d]efendant causes delays. … Once modified,
it becomes the “adjusted run date[.]”
****
[Bowers] acknowledges that the filing of his Omnibus
Pretrial Motion [] on August 7, 2009 precipitated a modification
of the mechanical run date and required the computation of an
adjusted run date. However, [Bowers] submits the Court erred
in computing the dates chargeable to [Bowers] and in computing
the adjusted run date.
****
Bowers submits that the excludable days and or days that
are chargeable to [Bowers as a result of the filing of his Omnibus
Pretrial Motion] total 148 days. When you add the 148 days to
the mechanical run date of May 20, 2010, the adjusted run date
becomes October 14, 2010. As a result, [Bowers] filed his
Motion to Dismiss Pursuant to Rule 600 on October 25, 2010.
The Court erred in excluding the periods from September
22, 2009 (the date [for which] the hearing [on] the Omnibus
Pretrial Motion was originally scheduled) to December 16, 2009
(the date that the hearing was held) because the period of time
was due to two Motions for Continuance filed by the
Commonwealth, initially because of the prosecuting police state
trooper’s work schedule and secondly, because the prosecuting
state trooper was on vacation. [Bowers] submits that the
prosecuting officer was not a necessary participant in the
hearing on the Omnibus Pretrial Motion and that, as a result, the
time between the date that the hearing was originally scheduled
for the Omnibus Pretrial Motion and the date that the hearing
was actually held is not excludable time. [Bowers] also alleges
that the Court erred in excluding the time transpired from
January 7, 2010 (the date that the Commonwealth Hearing
Memorandum was due[)] to May 11, 2010 (the date that the
Commonwealth Hearing Memorandum was filed[)]. Such late
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filing of the Commonwealth Hearing Memorandum is not
excludable time.
****
[T]he time from the original date of the preliminary hearing to
the actual date of the preliminary hearing, i.e., September 22,
2009 – December 16, 2009, comprise 85 days [that] is not
excludable time. … [N]or is the time caused by the delay of the
Commonwealth in filing its Hearing Memorandum, i.e., January
7, 2010 – May 11, 2010, comprising 133 days of excludable
time.
Bowers’ Brief, at 15–17.
The trial court rejected Bowers’ argument regarding the
Commonwealth’s motions for continuance of the hearing on Bowers’ omnibus
pretrial hearing, stating:
Bowers was arrested on May 20, 2009 and a Preliminary
Hearing was held on May 28, 2009. Magisterial Judge Ronald
Haggerty held the charges for court. Bowers filed an Omnibus
Pretrial Motion on August 11, 2009 and a hearing before this
Court was held on December 16, 2009. That hearing was
continued twice at the request of the Commonwealth because
the prosecuting officer was unavailable – first because of the
requirement that all State Police Officers be available to provide
security for the “G-20” Summit Conference in Pittsburgh, and
secondly because Trooper Garlick was scheduled for vacation.
****
The Commonwealth needed the prosecuting officer to be present
for the hearing on that Motion so that the assistant district
attorney would be aware of what evidence was available, even if
the prosecuting officer himself did not have to testify. As a
result, the court granted two continuances of the originally
scheduled hearing. The Commonwealth’s justified continuances
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of the scheduled hearing does not operate to convert a defense
delay into a Commonwealth delay.
Trial Court Opinion, 11/18/2010, at 1; 5. We agree with the court’s
reasoning.
In this case, we find the Commonwealth’s requests for two
continuances were justified, and were caused by the prosecuting trooper’s
work schedule and vacation. The unavailability of Trooper Garlick was
beyond the control of the Commonwealth and, therefore, the trial court did
not abuse its discretion in ruling that the time period from September 22,
2009 to December 16, 2009, was excludable. See Commonwealth v.
Staten, 950 A.2d 1006, 1010 (Pa. Super. 2008) (unavailability of the
arresting police officer, who had been placed on a separate, specific work
assignment for date of trial, was beyond the control of the Commonwealth
and should not, accordingly, work to defeat a record otherwise exhibiting
due diligence in bringing Appellant to a speedy trial”); Commonwealth v.
Brawner, 553 A.2d 458, 461 (Pa. Super. 1989) (police officer’s
unavailability due to vacation was beyond the Commonwealth’s control;
extension of trial date was properly granted), appeal denied, 563 A.2d 886(Pa. 1989).
Likewise, we conclude the trial court did not abuse its discretion in
ruling that the period from January 7, 2010 to May 11, 2010, the time
between when the Commonwealth’s hearing memorandum was due and the
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time it was filed, was excludable from the Rule 600 computation. In this
regard, we adopt the trial court’s analysis, as follows:
The Commonwealth’s opportunity to file a brief was merely an
aid to the court. The court’s decision could have been made any
time after the expiration of the time allowed, with or without the
Commonwealth’s brief. … (The court’s decision was rendered
more than two months after the Commonwealth’s Memorandum
was filed, so it is clear that it was not the last “missing
ingredient” for that decision.)
****
In any event, this court makes a specific factual finding
that any delay in the disposition of the Omnibus Pretrial Motion
was not the result of anything the Commonwealth did or did not
do. To any extent it was not a “defense delay,” it was “judicial
delay” entirely outside the control of the Commonwealth.”
Trial Court Opinion, 11/18/2012, at 6–7. We find no error in the trial court’s
determination that the delay from January 7, 2010 until May 11, 2010 was
excludable judicial delay, and in no way attributable to the Commonwealth.
Accordingly, we reject Bowers’ Rule 600 arguments.
Next, Bowers challenges the trial court’s denial of his March 28, 2012
motion, seeking sanctions, an order providing subpoenas duces tecum, a
continuance, and other relief.
Here, the trial court denied Bowers’ motion, ruling that “the motion for
an additional pre-trial hearing … was filed improperly and should have been
presented to the Court before the end of business during the week preceding
trial [and] that it was not properly filed under the state rules.” Order, dated
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4/2/2012, filed 4/11/2012. The Order also contained a handwritten, blue-
penned asterisk next to the word “rules” and a handwritten, blue-penned
notation on the order reads: “* Pa.R.Crim.P. 106(C).”
At the time of Bowers’ 2012 trial, Rule 106 provided:7
(A) The court or issuing authority may, in the interests of justice,
grant a continuance, on its own motion, or on the motion of
either party.
(B) When the matter is before an issuing authority, the issuing
authority shall record on the transcript the identity of the moving
party and the reasons for granting or denying the continuance.
When the matter is in the court of common pleas, the judge shall
on the record identify the moving party and state of record the
reasons for granting or denying the continuance.
(C) A motion for continuance on behalf of the defendant
shall be made not later than 48 hours before the time set
for the trial. A later motion shall be entertained only when
the opportunity therefor did not previously exist, or the
defendant was not aware of the grounds for the motion,
or the interests of justice require it.
Pa.R.Crim.P. 106 (emphasis added).
Bowers argues that his motion seeking “sanctions, an order providing
subpoenas duces tecum, a continuance, and other relief”8 was filed on
Wednesday, March 28, 2012, more than 48 hours before the time set for
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7
We note that on July 1, 2013, an amendment to Rule 106 became
effective.
8
Bowers’ Motion, filed 3/28/2012.
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trial, Monday, April 2, 2012, and therefore he complied with Pa.R.Crim.P.
106(c).
Here, the record reflects that previously, on March 1, 2012, Bowers
filed a motion for continuance, which was granted by the court “to the April
2012 week of Criminal Jury Trials which ends April 5, 2012.” Order, March 1,
2012. A handwritten notation on the order further stated: “Discovery
incomplete since 2009/very young child victim, seeking counselor’s
notes/counselor no longer working, NO FURTHER CONTINUANCES.” Id.(underling and capitalization in original). Nevertheless, Bowers filed the
March 28, 2012 motion now at issue.
The March 28, 2012 motion was filed “pursuant to Rule 573,
Pa.R.Crim.P.,”9 titled “Pretrial Discovery and Inspection,” and sought medical
records and/or counseling notes that the Commonwealth had been ordered
to file — but had not — by the court-imposed deadline of “high noon on
Friday, March 2, 2012.” Bowers’ Motion, 3/28/2012, at ¶10. The motion
sought “the Commonwealth [to] provide the records to Bowers, or in the
alternative, provide for [Bowers] to obtain said records either by
authorization, court order, and/or subpoena duces tecum.” Id. at ¶14. The
motion further averred that the appropriate remedy was to exclude from the
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9
Id. at ¶1.
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trial the evidence and the witnesses related to the requested records.
Motion, 3/28/2012, at ¶21. The motion sought, in the alternative, a
continuance to either review any additional information received or obtain
the requested information by authorization, court order or subpoena duces
tecum. Id. at ¶25.
Rule 573 provides:
If at any time during the course of the proceedings it is brought
to the attention of the court that a party has failed to comply
with this rule, the court may order the party to permit discovery
or inspection, may grant a continuance, or may prohibit such
party from introducing evidence not disclosed, other than the
testimony of the defendant, or it may enter such other order as
it deems just under the circumstances.
Pa.R.Crim.P. 573(E). Our scope of review is whether the court abused its
discretion in its ruling pursuant to Rule 573(E). Commonwealth v.
Causey, 833 A.2d 165, 171 (Pa. Super. 2003), appeal denied, 848 A.2d 927(Pa. 2004).
Although the trial court denied Bowers’ motion, citing Pa.R.Crim.P.
106, the applicable rule was Rule 573, which permits the court discretion in
fashioning a remedy for failure to comply with the Rule. We conclude the
court’s decision to deny the motion presents no basis upon which to grant
relief.
We note that the court’s prior, March 1, 2012 order, mentioned above,
directed that there should be no further continuances. We further note that
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Bowers’ motion, which alleged the Commonwealth’s failure to comply with
the court’s March 2, 2012 deadline, was not filed until 26 days later, on
March 28, 2012, in the week just before trial. Finally, even though the court
denied the motion, Bowers cannot be heard to complain since, in fact, none
of the requested documents or witnesses related to those documents were
presented by the Commonwealth at trial.10 See Bowers’ Motion, 3/28/2012,
“Wherefore Clause” (seeking motions in limine prohibiting the
Commonwealth from introducing any testimony or evidence at trial either
directly or indirectly concerning the documents that the Commonwealth
failed to provide, and prohibiting the Commonwealth from introducing any
testimony of all witnesses related to the records requested); see also
Pa.R.Crim.P. 573, supra (“the court … may prohibit … evidence not
disclosed, other than the testimony of the defendant”). Therefore, on this
record, we find that the argument of Bowers that the court erred in denying
his March 28, 2012 motion warrants no relief.
We next turn to the claims of trial court error raised by Bowers,
concerning the trial court’s denial of (1) his motion for judgment of acquittal,
(2) his motion for a new trial and arrest of judgment asserting the verdict
was contrary to the evidence, (3) his motion for a new trial and arrest of
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10
At trial, the Commonwealth presented the testimony of the child victim,
Trooper Garlick, and the child victim’s mother and father.
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judgment asserting the verdict was contrary to the weight of the evidence,
and (4) his motion for a new trial and arrest of judgment asserting the
verdict was contrary to the law. Specifically, Bowers argues the victim failed
to indicate any dates when the alleged acts occurred; there was no physical
evidence to corroborate the victim’s testimony; the Commonwealth failed to
establish the necessary element of arousing sexual desire in the defendant
or the complainant; and the Commonwealth’s evidence is not enough to
overcome the evidence offered by Bowers. We will address these arguments
together as challenges to the sufficiency and weight of the evidence.
The legal precepts that guide our review are well settled:
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Where the
evidence offered to support the verdict is in contradiction
to the physical facts, in contravention to human experience
and the laws of nature, then the evidence is insufficient as
a matter of law. When reviewing a sufficiency claim the
court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.
Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d 745, 751-
52 (Pa. 2000) (internal citations, footnotes, and quotation marks
omitted).
Indecent assault of a person less than thirteen years of age is
defined as follows:
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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 . . . the complainant is less than 13 years of age.
18 Pa.C.S.A. § 3126(a)(7). Indecent contact is defined as:
“[a]ny touching of the sexual or other intimate parts of the
person for the purpose of arousing or gratifying sexual desire, in
either person.” 18 Pa.C.S.A. § 3101.
****
[A challenge to the weight of the evidence] concedes that
there is sufficient evidence to sustain the verdict. Thus,
the trial court is under no obligation to view the evidence
in the light most favorable to the verdict winner. An
allegation that the verdict is against the weight of the
evidence is addressed to the discretion of the trial court.
A new trial should not be granted because of a mere
conflict in the testimony or because the judge on the
same facts would have arrived at a different conclusion. A
trial judge must do more than reassess the credibility of
the witnesses and allege that he would not have assented
to the verdict if he were a juror. Trial judges, in reviewing
a claim that the verdict is against the weight of the
evidence do not sit as the thirteenth juror. Rather, the
role of the trial judge is to determine that
notwithstanding all the facts, certain facts are so clearly
of greater weight that to ignore them or to give them
equal weight with all the facts is to deny justice.
Widmer, 744 A.2d at 745, 751-52 (internal citations, footnotes,
and quotation marks omitted).
Commonwealth v. Fisher, 47 A.3d 155, 157–158 (Pa. Super. 2012),
appeal denied, 62 A.3d 378 (Pa. 2013).
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Our review confirms that these issues were correctly rejected by the
trial court. See Trial Court Opinion, 11/26/2012, at 3–11. Specifically, the
trial court, in addressing the above arguments, opined: (1) that the victim’s
testimony that the acts occurred between the time she was ages three to
seven, and the victim’s mother’s testimony that her family moved next door
to Bowers when the victim was three years old and told of the abuse when
she was six years old, established a sufficient time frame for the offenses,
(2) that it is well established that “the uncorroborated testimony of the
complaining witness is sufficient to convict a defendant of sexual offenses,”
citing Commonwealth v. Bishop, 742 A.2d 178, 189 (Pa. Super. 1999),
appeal denied, 758 A.2d 1194 (Pa. 2000),11 and (3) that the testimony of
the child victim that Bowers would “‘unzipper’ his pants, pull out his ‘thing,’
put his ‘thing’ on her thing, and while [Bowers’] ‘thing’ was on the child
victim, put both of his arms on either side of her and move up and down on
her,” and that “when [Bowes] finished ‘going up and down’ on her thing, ‘he
would basically stand up and pull, well he would, take out his hand and spit
on and then rub it on my thing,’”12 was sufficient evidence to establish that
the conduct of [Bowers] was for sexual gratification. See Trial Court
____________________________________________
11
Trial Court Opinion, 11/26/2012, at 8.
12
Id. at 9.
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Opinion, 11/26/2012, at 8–11. Further, the trial court rejected Bowers’
weight claim, refusing to intrude into the jury’s determination, see id. at 7,
and we discern no abuse of discretion in this determination. See
Commonwealth v. Widmer, 744 A.2d 745, 753 (Pa. 2000) (“Appellate
review of a weight claim is a review of the exercise of discretion, not of the
underlying question of whether the verdict is against the weight of the
evidence.” (citation omitted)). Accordingly, no relief is due on these claims.
Next, Bowers claims the Commonwealth failed to prove, by clear and
convincing evidence, that he is a sexually violent predator (SVP).
“Questions of evidentiary sufficiency present questions of law;
thus, ‘our standard of review is de novo and our scope of review
is plenary.’” In reviewing such a claim, we consider the evidence
in the light most favorable to the Commonwealth, which
prevailed upon the issue at trial.
Commonwealth v. Stephens, 74 A.3d 1034, 1038 (Pa. Super. 2013)
(citations omitted).
Here, the Commonwealth called Herbert Hayes, a member of the
Sexual Offenders Assessment Board (SOAB), who was certified as an expert
in the field of Sexual Offender Treatment and Management. Bowers
contends, however, that the Commonwealth’s expert witness was not a
proper witness to establish that he is an SVP because he has no professional
license and because he does not have the qualifications necessary to express
such opinion. This argument is meritless. See Commonwealth v.
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Conklin, 897 A.2d 1168, 1176 (Pa. 2006) (“[T]here is nothing in the statute
to support appellant’s argument that only a licensed psychiatrist or
psychologist may testify to an expert opinion concerning those aspects of
SVP status involving the offender’s mental abnormality or personality
disorder.”).
Alternatively, Bowers claims that the Commonwealth’s expert witness
failed to establish by clear and convincing evidence that Bowers is an SVP
and did not properly consider the factors enumerated in Section
9795.4(b)(1)-(4) (relating to assessment to determine if the individual
should be classified as an SVP). The trial court rejected Bowers’ argument,
opining that “the evidence presented by the Commonwealth through Mr.
Hayes was proper, his testimony [was] credible in establishing [Bowers] as a
sexually violent predator, by clear and convincing evidence, and [Hayes]
analyzed all [fifteen] factors found at 42 Pa.C.S.A. § 9795.4.” Trial Court
Opinion, 11/26/2012, at 16. Based on our review of the record, see N.T.,
8/30/2012, at 6–12, and viewing the evidence in the light most favorable to
the Commonwealth, we conclude the evidence was sufficient to support the
trial court’s classification of Bowers as an SVP. Therefore, this claim
warrants no relief.
Finally, Bowers claims the trial court erred in denying his motion to
modify or reconsider the sentence. In this regard, Bowers makes two
arguments. First, he argues that the mandatory sentence of life
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imprisonment imposed pursuant to 42 Pa.C.S. § 9718.2(a)(2) is illegal
because at the time of the current offense he had not been previously
convicted of two or more offenses arising from separate criminal
transactions set forth in 42 Pa.C.S. § 9795.1(a) or (b) (relating to
registration).13 Second, he challenges the imposition of any mandatory
____________________________________________
13
At the relevant time, Section 9718.2, “Sentences for sexual offenders,”
provided, in pertinent part:
(a) Mandatory sentence.
(1) Any person who is convicted in any court of this
Commonwealth of an offense set forth in section 9795.1(a) or
(b) (relating to registration) shall, if at the time of the
commission of the current offense the person had previously
been convicted of an offense set forth in section 9795.1(a) or (b)
or an equivalent crime under the laws of this Commonwealth in
effect at the time of the commission of that offense or an
equivalent crime in another jurisdiction, be sentenced to a
minimum sentence of at least 25 years of total confinement,
notwithstanding any other provision of this title or other statute
to the contrary. Upon such conviction, the court shall give the
person oral and written notice of the penalties under paragraph
(2) for a third conviction. Failure to provide such notice shall not
render the offender ineligible to be sentenced under paragraph
(2).
(2) Where the person had at the time of the commission of
the current offense previously been convicted of two or
more offenses arising from separate criminal transactions
set forth in section 9795.1(a) or (b) or equivalent crimes
under the laws of this Commonwealth in effect at the time of the
commission of the offense or equivalent crimes in another
jurisdiction, the person shall be sentenced to a term of life
imprisonment, notwithstanding any other provision of this title
(Footnote Continued Next Page)
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sentence, claiming he received no pretrial notice regarding a mandatory
sentence, as required by 9718.2(d). We address these arguments
sequentially.
Bowers first contends his mandatory life sentence is illegal because his
record is properly interpreted as one prior offense for purposes of 42 Pa.C.S.
§ 9718.2, and therefore the court erred by sentencing him as a third strike
offender under Section 9718.2(a)(2). Bowers argues that he was previously
charged with sexual offenses involving three victims on multiple occasions,
to which he pleaded guilty at a single hearing and was sentenced on May 5,
1985 at a single hearing to concurrent 4-to-10 year sentences, and he was
not sentenced as a second strike offender at that time. In this regard,
Bowers relies on Commonwealth v. Helsel, 53 A.3d 906 (Pa. Super.
2012), appeal denied, 63 A.3d 1244 (Pa. 2013), wherein this Court held that
where a defendant was sentenced at the same time for two triggering sex
offenses, those crimes count as one conviction for purposes of § 9718.2.14 In
_______________________
(Footnote Continued)
or other statute to the contrary. Proof that the offender received
notice of or otherwise knew or should have known of the
penalties under this paragraph shall not be required.
42 Pa.C.S. 9718.2(a). We note Section 9718.2 was amended by 2011, Dec.
20, P.L. 446, No. 111, § 5, effective in one year [Dec. 20, 2012].
14
In Helsel, the defendant previously raped two children on two separate
dates, and pled guilty to both. He was sentenced for both rapes at a single
(Footnote Continued Next Page)
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reaching this conclusion, the Helsel panel determined that Section
9718.2(a)(2) is subject to the same interpretation as Section 9714(a)(2),
regarding crimes of violence, which was addressed in Commonwealth v.
Shiffler, 879 A.2d 185 (Pa. 2005).
In Shiffler, the Pennsylvania Supreme Court held that the mandatory
minimum sentence of Pennsylvania’s “three strikes law,” 42 Pa.C.S. §
9714(a)(2), is proper only where the defendant’s prior convictions are
sequential and each is separated by an intervening opportunity to reform.
Id., 879 A.2d at 195-196. The Shiffler Court found that because Shiffler
served a single prison term for his first two convictions, he only had one
opportunity to reform, not two, and that therefore he should have been
sentenced as a second-strike offender.
Bowers argues: “Like the defendants in Shiffler and Helsel, [Bowers]
pled guilty to [sexual offenses involving three victims] at a single hearing,
was sentenced for all crimes at a single hearing, and the sentences were
ordered to run concurrently.” Bowers’ Brief at 22. Neither the trial court nor
the Commonwealth disputes Bowers’ assertion that he previously served a
single term of imprisonment on concurrent sentences for three separate
_______________________
(Footnote Continued)
hearing, and the sentences were ordered to run concurrently. Helsel, 53
A.3d at 909–910.
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rapes against different victims. 15, 16 Nor is there anything in the record that
contradicts Bowers’ assertion. See N.T., 8/30/2012, at 8 (“[T]he Fayette
County PSI [shows] that in 1985 [Bowers] was convicted of raping his three
young daughters ... [and] sentenced to four to ten years in the PA DOC.”).
Therefore, pursuant to Helsel and Shiffler, we agree with Bowers’
argument that the trial court erred in sentencing Bowers as a third-strike
____________________________________________
15
The trial court rejected Bowers’ position, stating:
The Records of the Clerk of Courts of Fayette County,
Pennsylvania, and the Pre-Sentence Investigation, shows that
[Bowers] was convicted and sentenced at Case 767 of 1984 of
the rape of an 8 year old victim, at Case 768 of 1984 of the rape
of a 12 year old victim, and at case 769 of 1984 of the rape of a
thirteen year old victim. Thus, the record establishes that
[Bowers] was convicted in three separate cases of “raping” three
separate children. Since the Court considers each case is a
separate criminal transaction, prior to [Bowers] being convicted
in the instant matter, he had three prior convictions pursuant to
Section 97[9]5.1.
Trial Court Opinion, 11/26/2012, at 12–13.
16
The Commonwealth, in its brief, simply states that the trial court
“correctly found that [Bowers] had three prior convictions pursuant to 42
Pa.C.S.A 97[9]5.1.” Commonwealth’s Brief at 4. The Commonwealth does
not refute Bowers’ claim that his previous sexual offenses resulted in
concurrent sentences imposed at a single hearing and a single term of
imprisonment, and does not address the applicability of the decisions in
Helsel and Shiffler to this case. We also note that, at sentencing, the
Commonwealth’s position was that Bowers was subject to a mandatory
minimum sentence of 25 years. See Commonwealth’s Sentencing
Memorandum, 8/17/2012. See also, N.T., 8/30/2012, at 17–18.
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offender to a mandatory term of life imprisonment. The applicable
mandatory minimum term of imprisonment based on Bowers’ prior record is
25 years pursuant to 42 Pa.C.S. § 9718.2(a)(1).
This conclusion, however, does not end our inquiry since Bowers also
contends that because he was not provided with pretrial notice of the
applicability of the mandatory sentencing statute, as required by Section
9718.2(d),17 the mandatory minimum sentencing statute does not apply in
this case. We may summarily dismiss this claim, however, since the record
reflects that, on June 30, 2009, the court provided Bowers notice in its bail
bond order that “[i]f convicted, there would be a mandatory sentence of
twenty-five to fifty years pursuant to 42 Pa.C.S.A. 9718.2 since [Bowers]
____________________________________________
17
At the relevant time, Section 9718.2(d) provided:
Notice of the application of this section shall be provided
to the defendant before trial. If the notice is given, there
shall be no authority in any court to impose on an offender to
which this section is applicable any lesser sentence than
provided for in subsections (a) and (b) or to place the offender
on probation or suspend sentence. Nothing in this section shall
prevent the sentencing court from imposing a sentence greater
than that provided in this section. Sentencing guidelines
promulgated by the Pennsylvania Commission on Sentencing
shall not supersede the mandatory sentences provided in this
section.
42 Pa.C.S. § 9718(d) (emphasis added). The pretrial notice requirement
was eliminated in Section 9718.2, as amended 2011, Dec. 20, P.L. 446, No.
111, Section 5, effective in one year [December 20, 2012].
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was previously convicted of rape of a child and incest in 1984”. Bail Bond
Order, 6/30/2009.
Accordingly, having reviewed the arguments presented by Bowers, and
finding merit solely in the contention that the court erred in sentencing him
to a mandatory term of life imprisonment, we vacate the judgment of
sentence on that basis, and remand this case to the trial court for
resentencing pursuant to Section 9718.2(a)(1) (mandatory minimum
sentence of at least 25 years of total confinement) for the indecent assault-
person less than 13 years of age charge.
Judgment of sentence vacated. Case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/14/2015
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