Com. v. Dorneman, T. ( 2019 )

J-S28030-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TROY JAMES DORNEMAN :
:
Appellant : No. 1757 MDA 2018
Appeal from the Judgment of Sentence Entered October 19, 2018
In the Court of Common Pleas of Schuylkill County Criminal Division at
No(s): CP-54-CR-0002299-2017
BEFORE: BOWES, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 19, 2019
Troy James Dorneman appeals the judgment of sentence for his
convictions of Rape of a Child under 13, Involuntary Deviate Sexual
Intercourse with a Child under 13 (“IDSI”), Indecent Assault of a Child Under
13, Indecent Exposure, and Corruption of Minors.1 Dorneman’s counsel filed
an Anders2 brief and a petition to withdraw as counsel. We affirm the
judgment of sentence and grant counsel’s petition to withdraw.
We derive the following statement of facts and procedural background
of this case from the trial court’s opinion:
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3126(a)(7), 3127, and 6301,
respectively.
2 Anders v. California, 386 U.S. 738 (1967).
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At trial, the victim, [K.D.] (“victim”)… born November 10,
2004, who was therefore twelve years of age on October 7,
2017, the date of the incident, testified that [Dorneman]
had raped her when he accompanied her upstairs to retrieve
an X-Box. He closed the door to her Brother’s bedroom,
fondled her vagina, pulled down his pants and forced her to
“suck his penis.” She described the incident in detail. He
then pulled down her pants and underwear, leaned her over
the bed, and “put his penis in my butt.” Afterwards, they
got dressed and went downstairs. Her mother was
downstairs watching television. She was afraid to tell her
mother what happened, but on Sunday, she informed her
pastor of what had occurred. Her pastor called her parents
and the police were informed. The victim’s Mother, [P.H.],
confirmed that [Dorneman] and victim had gone upstairs to
the victim’s brother’s bedroom looking for the X-box.
Officer Thomas Rentschler of the Mahanoy City Police
Department interviewed the victim and [Dorneman] on
October 15, 2017. At first [Dorneman] denied the incident
but eventually admitted the incident, but testified that the
victim was “willing.” At trial, [Dorneman] denied the
incident but admitted that he had informed the police that
he did it. He testified he gave a “false confession” because
he was anxious and believed he could then deny it later. He
admitted the police did not yell at him, nor threaten him and
that he never returned to the Police to recant his confession.
Trial Ct. Op., filed 10/19/18 at 2-3 (internal citations omitted).
A jury found Dorneman guilty of the above referenced offenses and the
trial court sentenced him to concurrent terms of eight to 20 years’
incarceration for both rape of a child and IDSI,3 a concurrent term of 12
months’ probation for indecent exposure, and a consecutive term of two years’
probation for corruption of minors. This appeal followed.
____________________________________________
3 The Indecent Assault conviction merged with the IDSI conviction.
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Prior to reviewing the merits of Dorneman’s appeal, we must examine
whether counsel has complied with the requirements to withdraw. See
Commonwealth v. Goodwin, 928 A.2d 287, 290 (Pa.Super. 2007) (en
banc). Counsel must provide a copy of the Anders brief to appellant, along
with a letter explaining the appellant’s rights to: (1) retain private counsel to
pursue the appeal, (2) proceed pro se with the appeal, and (3) raise additional
arguments that the appellant deems worthy of the Court’s attention. See
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa.Super. 2007).
Instantly, counsel has complied with the procedural dictates of Anders
by sending Dorneman a letter advising him of his rights and a copy of the
Anders brief. We now consider whether counsel has complied with the
substantive requirements set forth by the Pennsylvania Supreme Court in
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009).
An Anders brief must:
(1) Provide a summary of the procedural history and facts,
with citations to the record;
(2) Refer to anything in the record that counsel believes
arguably supports the appeal;
(3) Set forth counsel’s conclusion that the appeal is
frivolous; and
(4) State counsel’s reasons for concluding that the appeal is
frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 361. Counsel has complied with the requirements of Santiago because
he adequately summarized the history and facts of the case with citations to
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the record. Further, counsel has cited the relevant statutes, as well as the
coinciding testimony of the victim, which the jury determined as fact. See Id.Citing each statute, as well as the relevant facts, is sufficient to articulate the
reasons why the appeal is frivolous. Thus, counsel’s Anders brief is sufficient.
We now conduct an independent review to determine whether Dorneman’s
appeal is wholly frivolous.
Counsel identified one issue for our review:
Did the Commonwealth fail to present sufficient evidence to
support the convictions of the crime[s] charged?
Anders Br. at 4.
Regarding sufficiency of the evidence claims, our standard of review is
de novo. Commonwealth v. Rushing, 99 A.3d 416, 420 (Pa. 2014). We
consider the evidence of record, and all reasonable inferences arising
therefrom, in the light most favorable to the Commonwealth as the verdict
winner. Id. at 420-21. “We may not weigh the evidence and substitute our
judgment for that of the factfinder.” Commonwealth v. Gibbs, 981 A.2d
274, 280 (Pa.Super. 2009) (quoting Commonwealth v. Bostick, 958 A.2d
543, 560 (Pa.Super. 2008)). The facts offered by the Commonwealth “need
not preclude every possibility of innocence,” and the Commonwealth may
sustain its burden of proof by wholly circumstantial evidence. Id. at 281
(quoting Bostick, 958 A.2d at 560). The factfinder is free to believe all, part,
or none of the evidence. See id. Further, “uncorroborated testimony of a
sexual assault victim, if believed by a trier of fact, is sufficient to convict a
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defendant.” Commonwealth v. McDonough, 96 A.3d 1067, 1069
(Pa.Super. 2014).
A. Rape of a Child and IDSI
A person commits the offense of Rape of a Child, a felony of the first
degree, when a person engages in sexual intercourse with a person less than
13 years of age. 18 Pa.C.S.A. § 3121(c). Similarly, a person commits IDSI
with a child when the person “engages in deviate sexual intercourse with a
complainant that is less than 13 years of age.” 18 Pa.C.S.A. § 3123(b).
“Sexual intercourse” is “intercourse per os or per anus, with some penetration
however slight; emission is not required. 18 Pa.C.S.A. § 3101. Sexual
intercourse is “deviate” if it is for any purpose other than good faith medical,
hygienic or law enforcement procedures.” Id.
First, it is undisputed that the victim was less than 13 years of age at
the time of the incident. The victim testified that Dorneman pulled her
underwear down, inserted his penis in her anus, and made a back and forth
motion. N.T. Trial, 08/20/18 at 42-43. The victim also testified that Dorneman
put his penis in her mouth and “pushed my head into it.” Id. at 40-41. Further,
Officer Thomas Rentschler testified that Dorneman admitted to police that he
had oral sex with the victim. Id. at 73. In contrast, at trial Dorneman testified
that his statement to Officer Rentschler was false. Id. at 84. The jury as fact-
finder was free to believe the testimony of the victim over the testimony of
Dorneman as a part of their credibility determination and clearly here it
believed the testimony of the victim. See Gibbs, 981 A.2d at 281; see also
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McDonough, 96 A.3d at 1069. There was sufficient evidence to sustain a
conviction for Rape of a Child and IDSI, thus the sufficiency claims are wholly
frivolous. No relief is due.
B. Indecent Assault of a Child Under 13
To establish a conviction for indecent assault, the Commonwealth must
prove that the defendant had “indecent contact with the complainant,
cause[d] the complainant to have indecent contact with the person or
intentionally cause[d] 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 “[a]ny touching of the sexual or other
intimate parts of the person for the purpose of arousing or gratifying sexual
desire, in any person.” 18 Pa.C.S.A. § 3101.
The 12-year-old victim testified that Dorneman inserted his penis in her
mouth and her anus. Additionally, Officer Rentschler testified that in his
statement to police, Dorneman confirmed that he had placed his penis on her
anus and did a thrusting motion until he ultimately ejaculated on the floor,
but denied penetration. N.T. Trial, 08/20/18 at 73. Regardless, this would still
be sufficient to establish indecent assault. Thus, the sufficiency claim is wholly
frivolous.
C. Indecent Exposure
“A person commits indecent exposure if that person exposes his or her
genitals in any public place or in any place where there are present other
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persons under circumstances in which he or she knows or should know that
this conduct is likely to offend, affront or alarm.” 18 Pa.C.S.A. § 3127(a).
Here, the victim testified that Dorneman pulled his underwear down,
causing her to see his penis. N.T. Trial, 08/20/18 at 40. She further testified
that she was “like, really shocked and confused. Like, I was just afraid.” Id.
This evidence was sufficient to sustain the conviction because it established
that Dorneman exposed himself to the victim in a place that caused her alarm.
Moreover, Dorneman at the very least should have known that showing his
penis to a 12-year old would cause her alarm. See Commonwealth v.
Tiffany, 926 A.2d 503, 510-511 (Pa.Super. 2007) (holding that the
Commonwealth is not required to prove that “affront or alarm” was actually
caused, rather just that the defendant knew or should have known it was likely
to be caused). The evidence was sufficient. The sufficiency claim is thus
frivolous, and no relief is due.
D. Corruption of Minors
A person commits Corruption of Minors when, “being of the age of 18
years and upwards, by any course of conduct in violation of Chapter 31
(relating to sexual offenses) corrupts or tends to corrupt the morals of any
minor less than 18 years of age, or who aids, abets, entices or encourages
any such minor of an offense under Chapter 31 commits a felony of the third
degree.” 18 Pa.C.S.A. § 6301(a)(ii).
Again, the evidence was sufficient to sustain a conviction for Corruption
of Minors. As discussed above, the evidence was sufficient to support
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convictions for Rape of a Child, IDSI, Indecent Assault, and Indecent
Exposure, which are all offenses under Chapter 31. It is wholly reasonable to
conclude that this would corrupt the victim’s morals, and it is undisputed that
she was under 18 years of age. Even though Dorneman denied committing
these crimes at trial, the uncorroborated testimony of a victim is sufficient, if
believed by a trier of fact, to sustain a conviction. McDonough, 96 A.3d at
1069. The evidence was sufficient to sustain a conviction for all of the charges,
and thus it was sufficient to sustain a conviction for Corruption of Minors. The
challenge to the sufficiency is frivolous.
We agree with counsel that the sufficiency challenges identified by
counsel are wholly frivolous. Further, upon an independent review of the
record, we conclude that there are no non-frivolous issues. Accordingly, we
grant counsel’s petition to withdraw and affirm the judgment of sentence.
Judgment affirmed. Petition to withdraw granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2019
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