Com. v. Piper, M. ( 2015 )

J.S36043/14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
:
MICHAEL PIPER, :
:
Appellant : No. 3218 EDA 2013
Appeal from the Judgment of Sentence August 1, 2013
In the Court of Common Pleas of Northampton County
Criminal Division No(s).: CP-48-CR-0003958-2011
BEFORE: GANTMAN, P.J., JENKINS, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 20, 2015
Appellant, Michael Piper, appeals from the judgment of sentence1
entered in the Northampton County Court of Common Pleas following a jury
trial. Appellant was found guilty of rape by forcible compulsion, 2 statutory
sexual assault,3 sexual assault,4 indecent assault of a person less than 13
*
Former Justice specially assigned to the Superior Court.
1
Appellant purported to appeal from the denial of post-sentence motions.
“[A] direct appeal in a criminal proceeding lies from the judgment of
sentence.” Commonwealth v. W.H.M., Jr., 932 A.2d 155, 158 n.1 (Pa.
Super. 2007). Accordingly, we have amended the caption.
2
18 Pa.C.S. § 3121(a)(1).
3
18 Pa.C.S. § 3122.1.
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years of age,5 endangering the welfare of children,6 corruption of minors,7
and incest8 for the sexual abuse of his minor daughter (“Victim”). Appellant
contends the court erred in (1) admitting certain testimony, (2) seating two
jurors, (3) instructing the jury he admitted to sexually assaulting his
stepdaughter, (4) not merging sentences and (5) imposing consecutive,
aggravated-range sentences. We affirm.
On March 24, 2011, Victim, who was seventeen years old at that time,
was interviewed by police and reported that Appellant sexually abused her
when she was between twelve and fourteen years old. On October 26,
2011, the Commonwealth filed a criminal complaint alleging Appellant
abused Victim on numerous occasions when she stayed in Appellant’s home
and charging him with the above-stated offenses.
The trial court summarized the remaining procedural history of this
case in its October 17, 2013 memorandum and order denying Appellant’s
post-sentence motions:
On June 4, 2012, [Appellant] was found guilty on all
charges. The [c]ourt ordered a presentence investigatory
4
18 Pa.C.S. § 3124.1.
5
18 Pa.C.S. § 3126(a)(7).
6
18 Pa.C.S. § 4304(a).
7
18 Pa.C.S. § 6301(a)(1).
8
18 Pa.C.S. § 4302.
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report, a psychosexual evaluation of [Appellant] and a
sexual offender assessment to be conducted by the
Pennsylvania Sexual Offender Assessment Board.
* * *
[On August 1, 2013, u]pon consideration of the
evidence adduced at [a sexually violent predator (“SVP”)]
hearing, the [c]ourt found [Appellant] to be a [SVP] as
defined by statute. Upon the conclusion of the SVP
hearing, the [c]ourt proceeded to the sentencing hearing.
On sentencing, the Commonwealth presented [Appellant’s]
former wife [Victim’s] mother, [(“Mother”)], who read a
letter prepared by [Appellant’s] step-daughter, [Sister9]
who testified against him at trial. . . . The [c]ourt made
each sentence consecutive . . . for an aggregate term of
351-702 months with credit for time served. Having
sentenced [Appellant] in the aggravated range on all
charges, the [c]ourt noted on the record the factors
leading to that decision, inclusive of the fact that: [Victim]
was placed in his care and trust by virtue of his parental
relationship with her; the vulnerability of [Victim] due to
her youth; the fact that [Appellant] was a repeat criminal
offender; the fact of his multiple convictions in connection
with the alleged abuse of the child; and the apparent lack
of remorse for his crimes.
Trial Ct. Op., 10/17/13, at 1, 3-4 (citations to record omitted).
Appellant filed post-sentence motions which were denied. This timely
appeal followed. Appellant filed a court-ordered Pa.R.A.P. 1925(b)
statement of errors complained of on appeal and the trial court incorporated
its October 17th memorandum and order as its Pa.R.A.P. 1925(a) opinion.
Appellant raises the following issues for our review:
9
Appellant’s counsel initially objected to the reading of Sister’s letter, but
withdrew his objection. N.T., 6/6/12, at 220-21.
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[1.] Whether the trial court erred in admitting or failing
to exclude the testimony of witness [A.M. (“Friend”)] and
witness [Sister] because the testimony was irrelevant and,
alternatively, its probative value did not outweigh its
prejudicial effect?
[2.] Whether the trial court erred by erroneously
instructing the jury that [Appellant] “admitted to sexually
assaulting his stepdaughter” [Sister] and failing to give a
proper corrective instruction?
[3.] Whether the trial court erred in seating jurors 16
and 21 and did not [sic] granting a new trial on these
grounds?
[4.] Whether the trial court erred in not merging the
sentences for rape and sexual assault and by not merging
the sentences for statutory assault and indecent assault?
[5.] Whether the trial court erred by imposing
aggravated range consecutive sentences which, when
aggregated, resulted in a manifestly excessive and unjust
sentence?
Appellant’s Brief at 7.10
Appellant first contends the trial court erred in overruling his
objections to the “prior bad acts” testimony presented by the
Commonwealth. By way of background, the Commonwealth called Sister11
10
For ease of disposition, we have reordered the questions presented.
11
As a prefatory matter, we consider the Commonwealth’s claim that
Appellant has waived any challenge to the testimony of [Sister] because at
trial Appellant did not object to her testimony. Instantly, Appellant filed a
motion in limine to exclude testimony of his prior bad acts including
statements by [Sister] and [Friend]. Therefore, we decline to find the issue
as to the admissibility of [Sister’s] testimony waived. See Commonwealth
v. Stokes, 78 A.3d 644, 652 (Pa. Super. 2013), appeal denied, 89 A.3d 661
(Pa. 2014); Pa.R.E. 103.
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and Friend to testify at trial. He contends the testimony of these two
witnesses “did little more than to suggest a criminal propensity for the
crimes with which he was charged and w[as] not admissible for any of the
recognized exceptions.” Id. at 14. Appellant avers that the testimony of
the two witnesses “should have been excluded because it did not make a
fact of consequence to the trial more or less probable and was highly
prejudicial.” Id. He contends the testimony of Friend, specifically, that she
“felt ‘uncomfortable’, how [Appellant] wanted to hold her hand, and asked
her about her virginity[,]” had no proper evidentiary purpose. Id. Appellant
claims “[t]he use of evidence produced by these two witnesses was designed
to do nothing more than increase the jury’s aversion to [him], to increase
the ‘ick’ or ‘creepiness’ factor as it were or to show that [he] has a
propensity to commit crimes . . . .” Id. at. 15. We hold no relief is due.
This Court has stated:
Rulings on the admissibility of evidence are within the
discretion of the trial judge, and such rulings form no basis
for a grant of appellate relief absent an abuse of
discretion. While it is true that evidence of prior crimes
and bad acts is generally inadmissible if offered for the
sole purpose of demonstrating the defendant’s bad
character or criminal propensity, the same evidence may
be admissible where relevant for another purpose.
Examples of other such relevant purposes include showing
the defendant’s motive in committing the crime on trial,
the absence of mistake or accident, a common scheme or
design, or to establish identity. . . . [T]he evidence may
also be admitted where the acts were part of a chain
or sequence of events that formed the history of the
case and were part of its natural development. Of
course, in addition to the relevance requirement, any
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ruling on the admissibility of evidence is subject to the
probative value/prejudicial effect balancing that attends all
evidentiary rulings.
Commonwealth v. Green, 76 A.3d 575, 583 (Pa. Super. 2013) (citation
omitted and emphases added), appeal denied, 87 A.3d 318 (Pa. 2014).
The Pennsylvania Rules of Evidence12 define relevant evidence as
“having any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less
probable than it would be without the evidence.” Pa.R.E. 401. “All relevant
evidence is admissible[.]” Pa.R.E. 402. Rule 403 provides: “Although
relevant, evidence may be excluded if its probative value is outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the
jury, or by considerations of undue delay, waste of time, or needless
presentation of cumulative evidence.” Pa.R.E. 403. Rule 404 provides:
“Evidence 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 accident.” Pa.R.E. 404(b)(2).
The inquiry into admissibility of “other crimes” evidence
does not end with confirming a permissible 404(b) purpose
such as proving identity, but proceeds to ask whether the
probative value of the “other crimes” evidence outweighs
its presumptive prejudice. In conducting the probative
value/prejudice balancing test, courts must consider
factors such as the strength of the “other crimes”
evidence, the similarities between the crimes, the time
12
We note the rules were amended January 17, 2013, subsequent to the
trial in this case.
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lapse between crimes, the need for the other crimes
evidence, the efficacy of alternative proof of the charged
crime, and “the degree to which the evidence probably will
rouse the jury to overmastering hostility.”
Commonwealth v. Weakley, 972 A.2d 1182, 1191 (Pa. Super. 2009)
(citations omitted).
In the case sub judice, the trial court opined:
[T]he Commonwealth urges that [Sister’s] testimony was
properly admitted to corroborate certain items of the
victim’s testimony to show a common scheme or plan, and
to show absence of mistake. As to [Friend’s] testimony,
they argue it was properly admitted to explain the chain of
events leading to [Victim’s] reporting of the crimes against
her. . . .
Finally, the Commonwealth suggests that any perceived
prejudice to [Appellant] was mitigated by the [c]ourt’s
issuance of a limiting instruction to the jury, advising them
that the subject evidence was admitted for their
consideration for the sole purpose of explaining how the
victim came to report the crimes against her and how the
investigation proceeded. Further the jury was instructed
that they could not consider such evidence to conclude
that [Appellant] was a bad person with criminal
tendencies. On those facts, the Commonwealth asserts
that [Appellant’s] contention as to the prejudicial effect of
the challenged evidence is of no merit. The [c]ourt
agrees.
While the challenged evidence was not flattering to
[Appellant], it was, as the [c]ourt determined in its pretrial
ruling, most certainly relevant, admissible and probative
for the express purpose of establishing the chain of events
and demonstrating a common scheme. In weighing the
probative value of the evidence against any prejudice
arising therefrom pursuant to the factors enumerated in
Weakeley, the [c]ourt notes that (1) the acts to which
[Sister] and [Friend] testified were in close temporal
proximity to the crimes against the victim, (2) there were
a great number of similarities in the testimony of [Sister]
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and that of [Victim] as to their individual experiences with
[Appellant], and (3) [Sister’s] testimony corroborated
certain statement by [Victim]. Moreover, the [c]ourt finds
it highly unlikely that the testimony of [Sister] and
[Friend] caused the jury any more hostility toward
[Appellant] than did the testimony of [Victim] herself.
Trial Ct. Op. at 8-9 (citations to the record omitted). We agree no relief is
due.
At trial, Sister13 testified, inter alia, as follows:
[The Commonwealth]: How do you know [Appellant]?
A: He was my adopted father.
* * *
Q: Did at some point in time your mom and dad divorce?
A: Yes.
Q: And did you go and visit your─with your father?
A: Yes, every weekend.
* * *
Q: What were the sleeping arrangements?
A: . . . [W]herever me and [Victim] would sleep,
[Appellant] would choose who would sleep with him and
who would sleep in the other room.
* * *
Q: And during the times when he chose to sleep with you,
did he ever do anything that made you feel uncomfortable?
A: Yes.
13
She was nineteen at the time of trial. N.T., 6/5/12, at 209.
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* * *
Q: And what did he do that made you feel uncomfortable?
A: He got on top of me.
* * *
Q: And what happened after he got on top of you?
A: He was moving around, like, his waist and all.
* * *
Q: . . . Where was it moving?
A: On me.
Q: . . . What part of you?
A: My bottom half.
* * *
Q: Do you recall what you did when he got on top of you
and was moving in that way?
A: I tried to push him off, but he wouldn’t get off. Maybe
about 10, 15 minutes later he did.
N.T., 6/5/12, at 210, 211, 212, 213.
Sister further testified that one weekend Friend came to Appellant’s
house with her. Id. at 216. She did not witness anything inappropriate
transpire between Friend and Appellant. However, Appellant’s girlfriend,
Carrie Cook, was at the house and told her that Appellant took Friend
“places with him and [held] her hand and asked her if she was a virgin . . .”
Id.
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At trial, Sister read a note she had written to a friend, identified only
as Kristen, in which she stated: “My dad’s going to jail for trying to rape my
sister [,Victim,] and me. Then he was always with [Friend] holding her hand
and stuff. He probably would have done something to her, too.” Id. at 215,
221.
Friend14 testified she slept once at Appellant’s house when she was
fourteen years old. N.T., 6/6/12, at 251.
[The Commonwealth]: During the time when you slept
over his house, did he do anything that made you feel
uncomfortable?
A: He always wanted to hold my hand.
Q: Did you hold his hand?
A: Yes.
Q: And were you ever alone with him?
A: Yes.
Q: When were you alone with him?
A: He took me to the store with him once, and then when
we came back, we sat in his vehicle and talked.
Q: What did you talk about?
A: He told me that I was a beautiful girl and that any guy
would kill to have a girl like me, told me that I had a nice
body, and he asked me if I was a virgin.
Q: What did you say?
14
She was twenty years old at the time of trial. N.T., 6/6/12, at 250.
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A: I told him I was, and he told me that we would keep it
that way for a while.
* * *
Q: . . . [D]id you ever hug [Appellant]?
A: Yes.
Q: And did he hug you back?
A: Yes.
Q: And did anything occur when he hugged you that made
you feel uncomfortable?
A: His hand would slide down onto my butt, and he would
rub it.
N.T., 6/6/12, at 251, 252, 253.
At trial, Appellant renewed his objection to Friend’s testimony. Id. at
246. The Commonwealth responded that although her testimony was not
admissible under the common scheme or plan theory, it was “admissible to
explain to the jury the history and natural sequence of events . . . .” Id. at
247. The Commonwealth explained to the court that Victim did not report
the abuse by Appellant until she learned that something happened to
Friend.15 Id. The trial court ruled that the testimony was admissible for the
purposes as stated by the Commonwealth. Id. at 249.
The court gave the following instruction to the jury:
15
We note the typographical error by the court reporter in attributing this
argument to counsel for Appellant. N.T., 6/6/12, at 246.
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You have heard evidence tending to prove [Appellant]
was guilty of improper conduct for which he is not on trial.
I’m speaking of testimony to the effect that [Appellant]
admitted to sexually assaulting his stepdaughter, [Sister],
and that he acted inappropriately with another minor,
[Friend].
This evidence is before you for a limited purpose; that
is, for the purpose of tending to show the circumstances
under which [Victim] first revealed [Appellant’s] alleged
conduct and the circumstances under which the
investigations against [him] commenced.
This evidence must not be considered by you in any
other way other than for the purpose I just stated, and you
must not regard this evidence as showing that [Appellant]
is a person of bad character or criminal tendencies from
which you might infer or might be inclined to infer guilt.
Id. at 370 (emphasis added).
At the conclusion of the court’s instructions to the jury, there was a
discussion at sidebar. Appellant’s counsel brought it to the court’s attention
that it “substituted the word admitted for attempted” in the charge
regarding evidence of other offenses as substantive proof of guilt.16 Id. at
387-88 (emphasis added). Following the sidebar discussion, the court
instructed the jury as follows:
I just want to reread a portion of the charge regarding
evidence of other offenses as substantive proof of guilt.
You heard evidence tending to prove that [Appellant]
was guilty of improper conduct for which he is not on trial.
I’m speaking of the testimony to the effect that [Appellant]
attempted to sexually assault his stepdaughter,
16
We note, however, the trial court’s initial cautionary instruction is the
subject of a separate challenge in this appeal.
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[Sister], and that he acted inappropriately with another
minor, [Friend].
This evidence is before you for a limited purpose.
That is for the purpose of tending to show
circumstances under which [Victim] revealed
[Appellant’s] alleged conduct and the circumstances
under which the investigations against [him]
commenced. This evidence must not be considered by
you in any way other than for the purpose I just stated.
You must not regard this evidence as showing
[Appellant] is a person of bad character or criminal
tendencies from which you might be inclined to infer
guilt.
Id. at 389-90 (emphases added).
Following our review, we agree with the trial court “that to the extent
[Appellant] believes he was prejudiced by the admission of the subject
evidence, any prejudice was outweighed by [the] probative value, and as
such, [Appellant] has failed to establish a basis for” his claim. Trial Ct. Op.
at 9; see Green, 76 A.3d at 583-84; Weakley, 972 A.2d at 1191.
Specifically, the court’s rulings that Appellant’s actions towards Victim,
Sister, and Friend shared sufficient similarities to evince a common plan and
absence of mistake was not unreasonable. Lastly, as discussed below, the
court ultimately instructed the jury on the proper consideration of Sister’s
and Friend’s testimony. Because we discern no abuse of discretion to upset
the court’s evidentiary rulings, no relief is due. See Green, 76 A.3d at 583.
Appellant next claims “the trial court committed reversible error when
it erroneously instructed the jury that [Appellant] ‘admitted to sexually
assaulting his stepdaughter [Sister].’” Appellant’s Brief at 18. He avers that
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“[n]o corrective instruction was given to explain that the court misspoke.”
Id. Appellant contends he is entitled to a new trial. Id. at 19.
This Court has stated:
In examining the propriety of the instructions a trial court
presents to a jury, our scope of review is to determine
whether the trial court committed a clear abuse of
discretion or an error of law which controlled the outcome
of the case. A jury charge will be deemed erroneous only
if the charge as a whole is inadequate, not clear or has a
tendency to mislead or confuse, rather than clarify, a
material issue. A charge is considered adequate unless the
jury was palpably misled by what the trial judge said or
there is an omission which is tantamount to fundamental
error. Consequently, the trial court has wide discretion in
fashioning jury instructions.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)
(citation omitted).
As a prefatory matter, we consider whether Appellant has waived this
claim. “Even where a defendant objects to specific conduct, the failure to
request a remedy such as a mistrial or curative instruction is sufficient to
constitute waiver.” Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa.
Super. 2008).
As discussed supra, following the charge to the jury, defense counsel
brought the error to the court’s attention, and the court reread the jury
instruction. N.T., 6/6/12, at 389-90. The court stated: “Anything else,
counsel?” Id. at 390. Counsel for Appellant responded: “Nothing else, Your
Honor.” Id. The jury was then discharged. Id. at 391.
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After objecting and receiving a corrected instruction, Appellant failed
to request a mistrial. The trial court found Appellant waived the issue based
upon defense counsel’s failure to ask for any further relief. Trial Ct. Op. at
12. We agree. See Strunk, 953 A.2d at 579.
Third, Appellant contends the trial court erred in seating juror number
16 because she “admitted that she worked with students who [were]
emotionally disturbed and victims of sex crimes.” Appellant’s Brief at 17.
He avers the court erred in seating juror number 21 because the juror knew
the prosecutor. Id. He claims he was denied his constitutional right to an
impartial jury. Id. Initially, we consider whether Appellant has waived this
issue.
In Commonwealth v. Wholaver, 989 A.2d 883 (Pa. 2010), the
defendant
contend[ed] the trial court violated his right to a fair trial
and impartial jury by excusing for cause a venireman who
expressed conscientious or religious objections to the
death penalty, without any record proof or finding this
potential juror would be substantially impaired in
performing his duties. Following the venireman’s
statement that he could not impose the death penalty
under any circumstances because of his religious beliefs,
the prosecutor moved to excuse him for cause, and
defense counsel did not object—understandably,
because the potential juror had just stated he would not be
able to follow the law. As no objection was posed, this
issue was not preserved and is waived. See Pa.R.A.P.
302(a) (issues not raised in lower court are waived and
cannot be raised for first time on appeal)[.]
Id. at 892 (emphases added).
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During the voir dire Juror number 16 stated:
A Juror: No. 16. I just want the Court to know that I work
with students who are emotionally disturbed who have
been abused by parents sexually, physically abused, and
emotionally abused. I’ve been working in the school for 30
years, private school that deals with kids with emotional
problems, learning disabilities. So I just want the Court to
know that.
[The Commonwealth]: Do you think you can be fair?
A Juror: I think I can be fair.
[The Commonwealth]: Thank you, sir, for coming forward.
[Defense Counsel]: Thank you, sir.
The Court: Okay?
[Defense counsel]: I don’t have any questions.
The Court: Thank you, sir.
N.T., 6/4/12, at 40-41 (emphasis added).
Juror number 21 indicated that she knew the prosecutor. Id. at 11-
12. The court asked defense counsel if he had any questions and he replied:
“I don’t have any questions except of you. And that would be if we do have
occasion to strike for cause, do we do that immediately, or do you want to
do that later.” Id. at 14. The court responded: “Normally we just take
notes and then we’ll convene after.” Id.
At the conclusion of the voir dire, the court reviewed the list of jurors
as follows:
The Court: The challenges for cause: No. 1, 10, 11, 15,
20, 25, 34.
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[Defense Counsel] How about 29?
The Court: I’m sorry, 29 is hardship. . . . 30 is cause, 34,
38, 41, 49.
[Defense Counsel]: Seven?
The Court: I’m sorry, 47, 49, 51, 53, that’s it.
[Defense Counsel]: Okay.
The Court: So there’s 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12,
13, 14. 14 for cause and then one hardship being No. 29.
Okay? We have strikes No. 1, 10, 11, 15, 20, 25. Now 29
is a hardship. 30 is cause, 34, 38, 41, 47, 49, 51, and 53.
So by my calculation, the first 12 jurors will be selected
through No. 35. Correct? And then the two alternates
through─would be 36, 37, 39, and 40. Do we all agree?
[Defense counsel]: Yes.
Id. at 67 (emphases added).
In the case sub judice, the trial court opined:
In the instant case, juror number 16 admitted during
voir dire that he worked with emotionally disturbed
students and victims of sex crimes. Juror number 21
indicated that she knew the prosecutor. Both jurors were
further colloquied. . . . Defense counsel did not
question either juror further, nor did he move to
strike them for cause.
* * *
[Appellant] raised no objection to the seating of
either juror.
Trial Ct. Op. at 10 (citations to record omitted and emphases added).
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The trial court found Appellant, having failed to raise an objection
during the voir dire to juror number 16 and juror number 21, “waive[d] the
right to raise a later objection.” Trial Ct. Op. at 10. We agree. Having
failed to object, Appellant cannot raise the issue on appeal. See Pa.R.A.P.
302(a); Wholaver, 989 A.2d at 892.
Next, Appellant avers the trial court erred in not merging the
sentences for rape and sexual assault.17 Appellant claims “[w]here, as here,
the sexual intercourse with another person was committed through the
indecent contact of the defendants and victims intimate parts, these two
crimes should have merged.” Appellant’s Brief at 21. He contends the trial
court also erred by not merging the sentences for statutory assault and
indecent assault. Appellant states “[a]gain, the ‘indecent contact’ was the
sexual intercourse and therefore these crimes should have merged for
sentencing purposes.” Id.
17
We note that despite raising five issues in his brief, Appellant divides his
argument section into only four parts, thus violating Pa.R.A.P. 2119(a),
which mandates that “argument shall be divided into as many parts as there
are questions to be argued.” See Pa.R.A.P. 2119(a); Commonwealth v.
Briggs, 12 A.3d 291, 343 (PA. 2011) (“The briefing requirements
scrupulously delineated in our appellate rules are not mere trifling matters of
stylistic preference; rather, they represent a studied determination by our
Court and its rules committee of the most efficacious manner by which
appellate review may be conducted so that a litigant's right to judicial review
as guaranteed by Article V, Section 9 of our Commonwealth’s Constitution
may be properly exercised.”) In two and one-half pages, Appellant
comingled his discretionary aspect of sentencing claim with his illegal
sentence claim. Appellant’s Brief at 19-21. We address the legality of the
sentence and the discretionary aspects of Appellant’s sentence separately.
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Whether . . . convictions merge for the purposes of
sentencing is a question implicating the legality of his
sentence. As such, our standard of review is de novo and
the scope of our review is plenary.
Section 9765 of the Pennsylvania Sentencing Code
provides as follows regarding the merger of crimes for
sentencing purposes:
No crimes shall merge for sentencing purposes unless
the crimes arise from a single criminal act and all of
the statutory elements of one offense are included in
the statutory elements of the other offense. Where
crimes merge for sentencing purposes, the court may
sentence the defendant only on the higher[-]graded
offense.
42 Pa.C.S. § 9765. Accordingly, merger is appropriate
only when two distinct criteria are satisfied: (1) the crimes
arise from a single criminal act; and (2) all of the statutory
elements of one of the offenses are included within the
statutory elements of the other. Id.
Commonwealth v. Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014) (some
citations and footnote omitted) (emphasis added).
The trial court opined that rape and sexual assault did not merge, nor
did the crimes of statutory sexual assault and indecent assault. Trial Ct. Op.
at 15-16. The court reasoned: “In the instant case, the evidence in support
of [Appellant’s] conviction revealed that he had engaged in sexual
intercourse with the victim on numerous occasions. As such, the crimes of
which he was convicted did not arise from a single criminal act.”
Id. at 15. We agree.
Instantly, Appellant was charged for crimes occurring “on numerous
occasions” when Victim stayed at his home. Aff. of Probable Cause,
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10/26/11. At trial, Victim stated her father raped her. N.T., 6/5/12, at 150.
She testified, inter alia, as follows:
[The Commonwealth]: Q: Now, we’re going to have to talk
about the bad stuff. . . . Where did that bad stuff happen?
[Victim]: At my dad’s house.
* * *
Q: And who was he living with?
A: By himself.
Q: And why were you at his house?
A: Because I would go there every weekend.
Q: Did you go with anyone?
A: My brother [M. P.] and [Sister].
* * *
Q: And when you went over there to visit with your
brother and [Sister], what were the sleeping
arrangements?
A: Sometimes I’d sleep in my room, and sometimes I’d
sleep in my dad’s room.
* * *
Q: And could you describe the bedrooms for us?
A: Well, me and [Sister] and brother shared a room, and
there was a bunk bed. And in my dad’s room, there was a
bed.
* * *
Q: And when you went there to sleep, which of the rooms
did you sleep in all the time?
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A: Sometimes I’d sleep in my room.
* * *
Q: . . . Did you sometimes sleep other places?
A: Yeah.
Q: Why?
A: Because my dad made me.
Q: And where did you sleep . . . .
A: In my dad’s room.
Q: You were in your dad’s room. Where in that room did
you sleep?
A: On the bed.
* * *
Q: Who was in the bed with you?
A: My dad.
* * *
Q: Did anything happen to your clothes?
A: They came off.
Q: Why did they─how did they come off?
A: I had to take them off.
Q: You had to take them off? Well, what clothes did you
have to take off?
A: All my clothes.
Q: And why did you have to take your clothes off?
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A: My dad made me.
Q: So when your clothes─when your dad made you take
your clothes off, what happened then?
A: He would get on top of me.
Q: Then what happened?
A: He would rape me.
* * *
Q: How often did this happen?
A: Almost every weekend.
Id. at 150-51, 152-54, 155 (emphasis added).
We agree with the trial court that the crimes of rape and sexual
assault did not merge and the crimes of statutory sexual assault and
indecent assault did not merge because Appellant’s convictions did not arise
from a single criminal act. See Jenkins, 96 A.3d at 1056.
Lastly, Appellant contends the trial court abused its discretion in
imposing aggravated range consecutive sentences which, when aggregated,
resulted in a manifestly excessive sentence.
This Court has stated:
Challenges to the discretionary aspects of sentencing
do not entitle an appellant to appellate review as of
right. Prior to reaching the merits of a discretionary
sentencing issue:
[W]e conduct a four part analysis to
determine: (1) whether appellant has filed a
timely notice of appeal, see Pa.R.A.P. 902 and
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903; (2) whether the issue was properly
preserved at sentencing or in a motion to
reconsider and modify sentence, see
Pa.R.Crim.P. [720]; (3) whether appellant’s
brief has a fatal defect, Pa.R.A.P. 2119(f); and
(4) whether there is a substantial question that
the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.A. §
9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (some
citations and punctuation omitted).
Instantly, Appellant timely appealed, preserved his issue in his post
sentence motion, and included a Pa.R.A.P. 2119(f) statement in his brief.
See id. Accordingly, we ascertain whether Appellant has presented a
substantial question. Id. He avers that the sentencing court’s reasons for
the consecutive aggravated range sentence did not justify the sentence it
imposed.
This Court has stated:
[T]here is no absolute right to appeal when challenging the
discretionary aspect of a sentence. Rather, an [a]ppeal is
permitted only after this Court determines that there is a
substantial question that the sentence was not appropriate
under the sentencing code.
A defendant presents a substantial question when he sets
forth a plausible argument that the sentence violates a
provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process. . . .
Further, on appeal, a defendant must provide a separate
statement specifying where the sentence falls in the
sentencing guidelines, what provision of the sentencing
code has been violated, what fundamental norm the
sentence violates, and the manner in which it violates the
norm.
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* * *
In determining whether a substantial question exists,
this Court does not examine the merits of whether the
sentence is actually excessive. Rather, we look to whether
the appellant has forwarded a plausible argument that the
sentence, when it is within the guideline ranges, is clearly
unreasonable. Concomitantly, the substantial question
determination does not require the court to decide the
merits of whether the sentence is clearly unreasonable.
Commonwealth v. Dodge, 77 A.3d 1263, 1268-69, 1270 (Pa. Super.
2013) (quotation marks, citations and footnote omitted), appeal denied, 91
A.3d 161 (Pa. 2014).
In Dodge, the defendant contended the imposition of consecutive
sentences was disproportionate to his crimes. Id. at 1271. This Court has
“determined that such an assertion, in combination with allegations that a
sentencing court did not consider the nature of the offenses or provide
adequate reasons for its sentence, presents a plausible argument that the
length of the sentence violates fundamental sentencing norms.” Id. at
1271-72. Moreover, the “fail[ure] to state on the record sufficient reasons
for imposing an aggravated range sentence” raises a substantial question.
Commonwealth v. Fullin, 892 A.2d 843, 850 (Pa. Super. 2006).
We find that Appellant’s Rule 2119(f) statement presents a substantial
question. See id. Therefore, we will review the merits of Appellant’s
challenge to the discretionary aspects of his sentence.
Our standard of review is as follows:
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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. An abuse of discretion is more than just
an error in judgment and, on appeal, the trial court
will not be found to have abused its discretion unless
the record discloses that the judgment exercised was
manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill-will.
More specifically, 42 Pa.C.S.A. § 9721(b) offers the
following guidance to the trial court’s sentencing
determination:
[T]he sentence imposed should call for confinement that
is consistent with the protection of the public, the
gravity of the offense as it relates to the impact on the
life of the victim and on the community, and the
rehabilitative needs of the defendant.
42 Pa.C.S.A. § 9721(b).
Furthermore,
section 9781(c) specifically defines three instances in
which the appellate courts should vacate a sentence
and remand: (1) the sentencing court applied the
guidelines erroneously; (2) the sentence falls within
the guidelines, but is “clearly unreasonable” based
on the circumstances of the case; and (3) the
sentence falls outside of the guidelines and is
“unreasonable.” 42 Pa.C.S. § 9781(c). Under 42
Pa.C.S. § 9781(d), the appellate courts must review
the record and consider the nature and
circumstances of the offense, the sentencing court’s
observations of the defendant, the findings that
formed the basis of the sentence, and the sentencing
guidelines. The weighing of factors under 42 Pa.C.S.
§ 9721(b) is exclusively for the sentencing court,
and an appellate court could not substitute its own
weighing of those factors. The primary
consideration, therefore, is whether the court
imposed an individualized sentence, and whether the
sentence was nonetheless unreasonable for
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sentences falling outside the guidelines, or clearly
unreasonable for sentences falling within the
guidelines, pursuant to 42 Pa.C.S. § 9781(c).
Commonwealth v. Bricker, 41 A.3d 872, 875-76 (Pa. Super. 2012)
(alterations and some citations omitted).
Our Supreme Court has stated:
Where pre-sentence reports exist, we shall continue to
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 awareness of the sentencing
considerations, and there we will presume also that the
weighing process took place in a meaningful fashion. . . .
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988) (emphasis added).
“Long standing precedent of this Court recognizes that 42 Pa.C.S.A.
section 9721 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.” Commonwealth v. Gonzalez-
Dejusus, 994 A.2d 595, 598 (Pa. Super. 2010).
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In the case sub judice, prior to sentencing, the court ordered a
presentence investigation, a Sexual Offender’s Assessment Board evaluation
and a psychosexual evaluation. N.T., 6/7/12, at 418.
The trial court opined:
In the instant case, the [c]ourt reviewed a great deal of
information. The [c]ourt reviewed the results of a
presentence investigation, which in part, detailed
[Appellant’s] prior criminal history. It also reviewed a
psychosexual evaluation of [Appellant], indicating a high
propensity to reoffend. Additionally, the [c]ourt
considered facts [sic] of the case, a statement from a
family member as to the impact of the crime on the victim
and the family unit, the arguments of counsel and a
statement by [Appellant]. Upon consideration of all the
information adduced therefrom, the [c]ourt sentenced
[Appellant] as set forth supra, finding it necessary and
appropriate to sentence him in the aggravated range on
each crime, and to run his sentences consecutively, in
order to satisfactorily protect the public, address the
rehabilitative needs of [Appellant], and to sufficiently
account for the gravity of the offense and its impact on the
victim and the community.
Trial Ct. Op. at 13-14.
At sentencing, the court opined:
To the extent that the sentences I impose exceed the
standard range as determined in the sentencing guidelines,
the reason that those sentences will exceed the standard
range are for several reasons and I will read those into the
record. First, as it’s well known, the victim in this case
was in your care and trust.
Secondly, the victim was particularly vulnerable due to
her youth. As your record indicates, you’re a repeat
criminal. And in this instance there are multiple current
convictions. And finally, while you’ve expressed sorrow to
the family today for putting them through this, you’ve
shown no remorse for the victim of this crime, and I
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believe only someone with a depraved heart and deranged
mind would take that position given what’s happened to
this young lady, the scars she will carry with her for the
rest of her life.
In terms of sentence, and as I indicated, the
aggravated reasons which I’ve just placed on the record
apply to any sentence I’ve imposed that is beyond the
standard range.
N.T., 8/1/13, at 53-54.
Accordingly, after examining the record as a whole, we find that the
trial court’s sentence was not manifestly excessive. See Devers, 546 A.2d
at 18; Gonzalez-Dejusus, 994 A.2d at 598. We discern no abuse of
discretion. See Bricker, 41 A.3d at 875-76.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/20/2015
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