Com. v. Sumner, J., Jr. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
JOHNNY RAY SUMNER, JR.
Appellant No. 962 MDA 2014
Appeal from the Judgment of Sentence October 31, 2011
In the Court of Common Pleas of Franklin County
Criminal Division at No(s): CP-28-CR-0001019-2010
BEFORE: BENDER, P.J.E., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED APRIL 22, 2015
Johnny Ray Sumner, Jr., appeals nunc pro tunc from the judgment of
sentence imposed on October 31, 2011, in the Court of Common Pleas of
Franklin County. A jury found Sumner guilty of involuntary deviate sexual
intercourse with a child, criminal attempt – aggravated indecent assault of a
child, and indecent assault.1 The trial court sentenced Sumner to 14 years
and 3 months to 35 years’ imprisonment, and found him to be a Sexually
Violent Predator (SVP). In this appeal, Sumner challenges (1) the trial
court’s grant of the Commonwealth’s Tender Years2 Motion, thereby
admitting out of court statements made by the victim through other
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1
18 Pa.C.S. §§ 3123(b), 901(a)/3125(b), and 3126(a)(7).
2
See Pennsylvania’s Tender Years Act, 42 Pa.C.S. § 5985.1.
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witnesses, (2) the trial court’s admission of out of court statements made by
the victim through the victim’s mother, after the victim had testified, (3) the
sufficiency of the evidence, and (4) the sufficiency of the evidence to support
the court’s SVP determination. Based upon the following, we affirm.
The trial court has aptly stated the facts and procedural history of this
case, and we need not repeat the background of this case. See Trial Court
Opinion, 8/5/2014, at 1–3. We simply state the charges against Sumner
arose from two incidents that occurred while the six year old victim and her
family were living at a homeless shelter where Sumner was also a resident.
Sumner first contends the trial court erred in granting the
Commonwealth’s Tender Years motion and allowing the victim’s out of court
statements into evidence through the testimony of other adult witnesses,
because the court’s ruling contravened the Confrontation Clause. 3 See
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3
The Tender Years Act, 42 Pa.C.S. § 5985.1, provides in pertinent 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. … 31 (relating to
sexual offenses) …, 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:
(Footnote Continued Next Page)
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Sumner’s Brief at 12, 13 (citing Crawford v. Washington, 541 U.S. 36
(2004)). This issue, however, has been waived, since Sumner failed to
specifically raise this claim in his Pa.R.A.P. 1925(b) statement. 4 See
Pa.R.A.P. 1925(b)(4)(vii) (“Issues not included in the Statement and/or not
raised in accordance with the provisions of this paragraph (b)(4) are
waived.”).
In any event, there was no Confrontation Clause violation in this case
because the child victim testified via closed circuit television at Sumner’s
trial,5 and Sumner’s attorney had full opportunity to cross-examine her. See
Commonwealth v. Charlton, 902 A.2d 554, 560 (Pa. Super. 2006)
(holding admission of the victim’s out-of-court statements was proper under
_______________________
(Footnote Continued)
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
42 Pa.C.S. § 5985.1(a)(1), (2).
4
In Sumner’s Rule 1925(b) statement, his first claim is framed as follows:
Whether the trial court erred in granting the Commonwealth’s
Tender Years Motion. Supporting Authority: 42 Pa.C.S. §[§]
5985, 5985.1[.]
Sumner’s Statement of Matters Complained of on Appeal, 6/30/2014. As
such, the trial court, in addressing this issue, did not discuss Crawford v.
Washington, 541 U.S. 36 (2004). See Trial Court Opinion, 8/5/2014, at 3–
8.
5
See 42 Pa.C.S. § 5985 (“Testimony by contemporaneous alternative
method”).
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the Tender Years exception to the hearsay rule and the concerns of
Crawford were not implicated where the child victim testified via closed
circuit television and the defendant had an opportunity to cross-examine
her), appeal denied, 911 A.2d 933 (Pa. 2006). See also Commonwealth
v. Kemmerer, 33 A.3d 39 (Pa. Super. 2011) (same). Accordingly, we
reject Sumner’s claim that the court’s admission of the Tender Years
evidence violated his constitutional right to confrontation under Crawford.
Secondly, Sumner challenges the admission of the victim’s out of court
statements through the victim’s mother’s testimony after the victim testified.
Specifically, Sumner claims “[the victim’s mother’s] testimony regarding [the
victim’s] statements was at best cumulative of [the victim’s] prior testimony,
did not corroborate [the victim’s] testimony and in fact, was contradictory to
[the victim’s] testimony.” Sumner’s Brief at 16.
It is well settled that “[q]uestions concerning the admissibility of
evidence are within the sound discretion of the trial court, and we will not
reverse the court’s decision absent a clear abuse of discretion.”
Commonwealth v. L.N., 787 A.2d 1064, 1068 (Pa. Super. 2001), appeal
denied, 800 A.2d 931 (Pa. 2002).
“[C]umulative evidence is additional evidence of the same character as
existing evidence and that supports a fact established by the existing
evidence.” Commonwealth v. G.D.M., 926 A.2d 984, 989 (Pa. Super.
2007) (quotations omitted), appeal denied, 944 A.2d 756 (Pa. 2008).
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“Evidence that bolsters, or strengthens, existing evidence is not cumulative
evidence, but rather is corroborative evidence.” Id.
Based on our review, we conclude the testimony of the victim’s mother
was corroborative, and not cumulative evidence, as she testified regarding
victim’s gestures to her own body in describing Sumner’s actions, and
provided other details the victim had originally related to her about the
touching incident. See N.T., 6/13/2011, at 63–68. Furthermore, if such
testimony were cumulative, it was harmless error. See Commonwealth v.
Reese, 31 A.3d 708, 719 (Pa. Super. 2011) (“Harmless error exists, inter
alia, where ‘the erroneously admitted evidence was merely cumulative of
other untainted evidence which was substantially similar to the erroneously
admitted evidence.’”). Therefore, Sumner’s contention that the trial court
erred in admitting the statements of the victim’s mother after the victim had
testified warrants no relief.
Next, Sumner challenges the sufficiency of the evidence to sustain his
convictions. In reviewing this claim, our standard of review is well settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at
trial in the light most favorable to the verdict winner,
there is sufficient evidence to enable the fact-finder to
find every element of the crime beyond a reasonable
doubt. In applying the above test, we may not weigh the
evidence and substitute our judgment for the fact-finder.
In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude
every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder
unless the evidence is so weak and inconclusive that as a
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matter of law no probability of fact may be drawn from
the combined circumstances. The Commonwealth may
sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above
test, the entire record must be evaluated and all evidence
actually received must be considered. Finally, the [finder]
of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all,
part or none of the evidence.
In addition to proving the statutory elements of the crimes
charged beyond a reasonable doubt, the Commonwealth must
also establish the identity of the defendant as the perpetrator of
the crimes.
Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa. Super. 2010)
(citation omitted), appeal denied, 21 A.3d 1189 (Pa. 2011).
In challenging the sufficiency of the evidence to sustain his
convictions, Sumner argues:
[T]he victim never referred to the accuser by … his name, did
not refer [to] the accuser by the name he was known as at the
shelter, and never pointed [Sumner] out in court; the testifying
doctor found no signs of trauma or injuries to the victim; and no
physical evidence was introduced.
Sumner’s Brief at 18-19.
We find this claim is meritless. With regard to the identification issue,
the victim testified she was sexually assaulted by a person named “Trevor
Travis,”6 who was living at the shelter when she was living there with her
family. N.T., 6/13/2011, at 22. The victim’s mother identified Sumner as
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6
The victim testified her assailant was Trevor and “Trevor’s actual name is
Travis.” N.T., 6/13/2011, at 28.
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“Trevor Hughes or Johnny Ray Sumner” by pointing to him, and indicated he
lived at the shelter during the relevant time period. Id. at 58. She testified
Sumner introduced himself to everyone as Trevor Hughes, although she later
learned that his name was Johnny Ray Sumner. See id. at 59. In addition,
another witness, Sharon Houdeshell, who worked at the shelter, testified
that Trevor Hughes was also Johnny Sumner. See id. at 89, 92.
Furthermore, to the extent Sumner argues the victim did not point him out
in court, we note the victim testified via closed circuit television pursuant to
42 Pa.C.S. § 5985.1, the victim referred to her assailant as Trevor who was
living at the shelter, and the victim’s mother pointed out Sumner in court as
Trevor Hughes and Johnny Sumner, a resident of the shelter. See N.T.,
6/13/2011, at 58–59. Accordingly, we reject this identification argument as
groundless.
With regard to Sumner’s complaint that the testifying doctor found no
signs of trauma or injuries to the victim and there was no physical evidence
of abuse, the Crimes Code provides that testimony of a sex offense victim
need not be corroborated. 18 Pa.C.S. § 3106. See Commonwealth v.
Poindexter, 646 A.2d 1211, 1214 (Pa. Super. 1994) (stating
uncorroborated testimony of a sex offense victim, if believed by the jury, is
sufficient to support the conviction and “no medical testimony is needed to
corroborate the victim’s testimony”), appeal denied, 655 A.2d 512 (Pa.
1995). Therefore, Sumner’s sufficiency challenge warrants no relief.
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Finally, Sumner contends that the court erred in determining he was
an SVP. “In reviewing the sufficiency of the evidence regarding the
determination of SVP status, we will reverse the trial court only if the
Commonwealth has not presented clear and convincing evidence sufficient to
enable the trial court to determine that each element required by the statute
has been satisfied.” Commonwealth v. Martz, 926 A.2d 514, 522 (Pa.
Super. 2007) (citation omitted), appeal denied, 940 A.2d 363 (Pa. 2008).
Here, Sumner argues he did not meet certain SVP factors,7 including,
but not limited to whether there were multiple victims, and where he was
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7
The determination of whether an individual should be classified as an SVP
is governed by examination of the factors set forth at 42 Pa.C.S. §
9795.4(b). We note Section 9795.4 expired on December 20, 2012. See 42
Pa.C.S. § 9799.41.
[W]ith regard to the various assessment factors listed in Section
9795.4, there is no statutory requirement that all of them or any
particular number of them be present or absent in order to
support an SVP designation. The factors are not a check list with
each one weighing in some necessary fashion for or against SVP
designation. Rather, the presence or absence of one or more
factors might simply suggest the presence or absence of one or
more particular types of mental abnormalities.
Thus, while the Board is to examine all the factors listed under
Section 9795.4, the Commonwealth does not have to show that
any certain factor is present or absent in a particular case.
Rather, the question for the SVP court is whether the
Commonwealth’s evidence, including the Board’s assessment,
shows that the person convicted of a sexually violent offense has
a mental abnormality or disorder making that person likely to
engage in predatory sexually violent offenses. 42 Pa.C.S.A. §
9792. Having conducted a hearing and considered the evidence
(Footnote Continued Next Page)
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found not to have a mental abnormality of pedophilia. Sumner claims that
the evidence introduced to suggest his behavior was predatory was
insufficient.
In reviewing this claim, we keep in mind the following legal principles.
In order to affirm an SVP designation, we, as a reviewing court,
must be able to conclude that the fact-finder found clear and
convincing evidence that the individual is a[n SVP]. As with any
sufficiency of the evidence claim, we view all evidence and
reasonable inferences therefrom in the light most favorable to
the Commonwealth. We will reverse a trial court's determination
of SVP status only if the Commonwealth has not presented clear
and convincing evidence that each element of the statute has
been satisfied.
Commonwealth v. Hollingshead, ___ A.3d ___, ___ [2015 Pa. Super. 38]
(Pa. Super. 2015) (citation omitted).
“Sexually violent predator” and the term “predatory” are defined as
follows:
“Sexually violent predator.” A person who has been convicted of
a sexually violent offense as set forth in section 9795.1 (relating
to registration) and who is determined to be a sexually violent
predator under section 9795.4 (relating to assessments) due to
a mental abnormality or personality disorder that makes the
person likely to engage in predatory sexually violent offenses. …
_______________________
(Footnote Continued)
presented to it, the court then decides whether a defendant is to
be designated an SVP and thus made subject to the registration
requirements of 42 Pa.C.S.A. § 9795.1(b)(3).
Brooks, supra, 7 A.3d at 863, citing Commonwealth v. Freucht, 95 A.2d
377, 381 (Pa. Super. 2008).
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“Predatory.” An act directed at a stranger or at a person with
whom a relationship has been initiated, established, maintained
or promoted, in whole or in part, in order to facilitate or support
victimization.
42 Pa.C.S. § 9792.8
At the October 31, 2011, SVP hearing, Mr. Herbert Hays, a member of
the Pennsylvania Sexual Offender Treatment Board, who both counsel
stipulated to be an expert in the area of sexual offender assessment,
treatment and management, testified regarding the factors relevant to his
assessment. Hays recognized Sumner did not have multiple victims, but
found other pertinent factors to be present. Hays determined Sumner
demonstrated behavior that constitutes an antisocial personality disorder, a
lifetime condition. See 42 Pa.C.S. § 9792, supra (defining “sexually violent
predator”). Hays further concluded that Sumner’s behavior was predatory in
that Sumner took advantage of the six year old victim, initiated contact by
fondling her, had sexual contact with her a day or two later, and gave a cell
phone to the victim’s brother to get him out of the way.
At the SVP hearing, the trial court summarized the evidence as
follows:
Mr. Sumner is an individual who has been convicted of a sexually
violent offense as set forth under the Sexual Offender
[Registration] Act, and we note that to be the case. He was
convicted in count one of involuntary deviate sexual intercourse
and who is also determined to be a sexually violent predator as a
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8
We note that Section 9792 expired on December 20, 2012. See 42
Pa.C.S. § 9799.41.
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result of a personality disorder that would be so pervasive that it
would cause him to be likely to engage in predatory sexually
violent offenses in the future and we note Mr. Hays’ assessment.
We believe that he had substantial foundation – factual
foundation information to conduct a review of the criteria for
evaluating the likelihood of reoffending and the presence of a
personality disorder. Specifically, he took into account – I will
only mention – I will not mention the factors that he said were
not present such as multiple victims which are not pertinent to
this case but the factors that he found to be pertinent was the
nature of the sexual contact or assault on the child, rather
serious assault by intercourse with a six year old on one of the
occasions and indecent touching on another occasion, two
separate dates. The victim was found through a relationship
with an adult male friend. That was a factor in the nature of the
sexual contact and the type of relationship that he had with the
child. The age of the victim, of course, is important. As [Mr.
Hays] noted, this child is not capable of consent due to her age
and her will was overborne with very little effort even if she
understood exactly what was happening to her and mental
capacity of the victim, of course, again, non-consenting. Despite
the fact that [Sumner] does not meet the diagnosis under the
DSM for pedophilia Mr. Hays took into account that this victim
was prepubescent, however that this did not involve conduct
continuing over a period of six months and so it did not result in
a finding of mental abnormality of pedophilia. We took into
account Mr. Sumner’s individual characteristics, age 20, and for
the most part I think the most weighty evidence that we have
concerning the foundation for his finding of personality –
antisocial personality disorder which fits the definition of
personality disorder in Section 9792 of the Sexual Offender
Registration Act is the long self reported history of Mr. Sumner’s
criminal behavior, his blatant disregard of other person’s
personal rights, [and] his assaultive and violent character as
demonstrated by his own reporting. There does not appear to be
any mental health diagnosis which would shed light on his
behavior one way or another, some indication of having been
prescribed medication – psychological, psychiatric medications,
his inability and/or unwillingness to be responsible in the sense
that he depended on others for most everything, his support, his
physical, financial and other means of support. His behavior, his
formal criminal behavior documented in convictions for
misdemeanor assaults in Georgia, continuing property crimes in
Franklin County, his reports of assaults with authority figures,
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police, teachers, his disregard for rules and regulations of the
prison with at least three misconduct reports. At least one of
those was conduct that was an assaultive nature.
Established by clear and convincing evidence we find that
Mr. Hays – that [Sumner] did have a personality disorder and we
know from Mr. Hays’ expert testimony that this is not something
that can be treated or removed as in the sense of a cure which
contributes to the likelihood of additional predatory or antisocial
behavior.
In this case he demonstrated the objective of that behavior
to be a sexual assault. We note Mr. Hays’ testimony that
persons with this disorder do not necessarily always commit
sexual crimes but commit crimes that suit their inclinations and
so forth at the moment which again contributes to the likelihood
that it could be any offense but it could also be an additional
sexually violent offense.
We note evidence of the predatory nature which would
make this predatory behavior satisfy that aspect of the finding of
sexually violent predator.
Mr. Sumner was aware that his male friend [the victim’s
father] trusted him with protection, guardianship of this child,
that he was aware that there were times when the parents
would not be present, took advantage of those opportunities on
two separate occasions.
It is noted that the other child who was present was given
a distraction and, again, the age and character of the victim, a
non-consenting six year old[,] contribute to the predatory nature
of the assault, and so for these reasons we find that the
Commonwealth has appropriately identified the factors required
under Section 9795(4) related to assessment of personality
disorder, clear and convincing evidence that supports the
antisocial personality finding and that it was predatory – the act
was predatory in nature and had a strong likelihood of
committing additional offenses in the future and for that reason
the Court concludes that the Commonwealth has met its burden
of proving the designation of sexually violent predator and Mr.
Sumner will therefore be required to register for a period of
lifetime under the requirements of the Sexual Offender
Registration Act.
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N.T., 10/31/2011, at 25–29. Based upon our review of the record, we
conclude that the evidence is clearly and convincingly sufficient to support
the trial court’s determination that Sumner is an SVP. Accordingly, we reject
Sumner’s claim to the contrary.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/22/2015
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