Com. v. Schmincke, F. ( 2016 )

J-S40017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
FRANCIS SCHMINCKE
Appellant No. 1950 EDA 2015
Appeal from the Judgment of Sentence May 26, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0009698-2013
BEFORE: BOWES, J., MUNDY, J., and MUSMANNO, J.
MEMORANDUM BY MUNDY, J.: FILED JUNE 06, 2016
Appellant, Francis Schmincke, appeals from the May 26, 2015
aggregate judgment of sentence of 7 to 17 years’ incarceration, imposed by
the trial court after a jury convicted Appellant of involuntary sexual
intercourse (IDSI), unlawful contact with a minor, aggravated indecent
assault, and indecent assault.1 After careful review, we affirm.
The trial court recited the facts of record as follows.
In 2000, [S.R.] and her two children, L.R., who
was three years old at the time, and [G], moved in
with her mother … in Philadelphia. During the six
years [S.R.] lived with her mother, [S.R.’s] nephew,
[Appellant] (L.R.’s cousin), would babysit her
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1
18 Pa.C.S.A. §§ 3123(a)(6), 6318(a)(1), 3125(7), and 3126(a)(7),
respectively.
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children. When L.R. was in first grade, while
[Appellant] was babysitting, he took L.R. upstairs to
her grandmother’s room. [Appellant] took his pants
off and made L.R. suck his penis and put her hands
on his penis. [Appellant] then took L.R.’s pants off
and licked her vagina and stuck his finger in her
vagina. [Appellant] then lay next to L.R. and made
himself ejaculate. When L.R.’s mother came home,
L.R. did not say anything about what [Appellant] had
done because she did not understand that it was a
bad thing.
L.R. explained that incidents like these
occurred over fifty times while she lived at her
grandmother’s house []. Specifically, L.R. described
another incident of abuse that occurred when she
was about seven years old. While [Appellant] was
babysitting L.R. at his house, he made L.R. perform
oral sex on him and afterwards made himself
ejaculate. Another incident occurred when L.R. was
about eight years old. While [Appellant] was
babysitting L.R. at her grandmother’s house, they
were on the couch when [Appellant] made L.R.
perform oral sex on him. [Appellant] did not stop
abusing L.R. until she and her family moved away
from Philadelphia when she was nine years old.
When L.R. was about thirteen or fourteen
years old, she told a friend, [A.W.], about how
[Appellant] had abused her. Later that year, she
told her cousin on her father’s side, S.B., about the
abuse. S.B. informed his mother, who eventually
informed [L.R.’s mother]. [L.R.’s mother] then
asked L.R. about it and L.R. told her mother about
the abuse she had suffered. After L.R. disclosed the
abuse to her mother, [her mother] insisted she
report it and they contacted local authorities. On
October 15, 2012, L.R. made a report to the Special
Victims Unit of the Philadelphia Police.
Sometime after [the family] moved out of
Philadelphia to Perry County, [L.R.’s maternal aunt]
told [L.R.’s mother] information which led [her] to
question L.R. L.R. admitted that in the past
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[Appellant] had “done things to her.” [L.R.’s
mother] contacted the Perry County Police and Child
and Youth Services. A few weeks after speaking to
the Perry County Police, [L.R.’s mother] and L.R.
traveled to Philadelphia and spoke to the
Philadelphia Police. After speaking to police, L.R.
became suicidal and was admitted to a hospital.
While L.R. was in the hospital, she was again
interviewed by detectives from the Philadelphia
Police.
In 2012, [A.W.], L.R.’s friend, went out to
dinner with L.R. and her mother. L.R. seemed upset
and when [A.W.] inquired why she was upset, L.R.
told her that when she was younger, [Appellant] had
molested her. L.R. asked [A.W.] not to tell anyone,
especially her mother, about what she had disclosed.
In March of 2013, Detective Erin Hinnov, who
at the time was assigned to the Special Victims Unit
of the Philadelphia Police Department, received a
report from the Department of Human Services and
began investigating. Detective Hinnov interviewed
L.R., who informed her that [Appellant] used to
perform oral sex on her, fondle her vagina, and have
her perform oral sex on him. After the interview
with L.R., Detective Hinnov interviewed [L.R.’s
mother] and [Appellant’s] family members. After
completing these interviews, Detective Hinnov
prepared an arrest warrant for [Appellant].
[J.S.], [Appellant’s] mother, [S.S.], and S.B.,
[Appellant’s] brothers, testified on [Appellant’s]
behalf. [J.S.] lived on Braddock Street in
Philadelphia for twelve years with her four sons.
According to [J.S.], during that time, neither [L.R.’s
mother] nor L.R. ever visited her house.
Additionally, [Appellant] never babysat for L.R.
However, [J.S.] son, [S.S.], would occasionally
babysit for L.R.
[S.S.] explained that when he was living on
Braddock Street, he would occasionally babysit L.R.
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at his grandmother’s house. [S.S.] claimed that
[Appellant] never accompanied him to babysit L.R.
S.B. testified that when he was eleven years
old, he was talking to L.R. about [Appellant] in a
sexual manner. S.B. got confused and made an
allegation of sexual abuse against [Appellant]. S.B.
claimed he withdrew the complaint because it was
not true.
Cidney Canada testified to [Appellant’s]
reputation for being a peaceful and law-abiding
citizen.
[Appellant] testified that he only babysat for
L.R. on one single occasion. [Appellant] denied that
he ever sexually abused L.R. [Appellant] explained
that he was an outsider in his family and he believed
L.R. was making up these allegations to put him
down.
The Commonwealth presented testimony from
L.R. and State Trooper Krista Miller in rebuttal. L.R.
testified that in 2011, S.B. told her that [Appellant]
had touched him. In April of 2013, State Trooper
Krista Miller went to Joanne Schmincke’s home in
Cumberland County in response to a report of child
sexual assault. During that visit, S.B. recounted to
State Trooper Miller that he had been abused by
[Appellant].
Trial Court Opinion, 8/13/15, at 2-5 (citations to notes of testimony
omitted).
Appellant was charged with the above offenses, and appeared for trial
on February 17-18, 2015, after which the jury rendered its guilty verdicts.
On May 26, 2015, the trial court sentenced Appellant to concurrent terms of
6 to 15 years’ incarceration for IDSI, 6 to 15 years’ incarceration for
unlawful contact with a minor, and 2 to 4 years’ incarceration for aggravated
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indecent assault; the trial court further sentenced Appellant to a consecutive
term of 1 to 2 years’ incarceration for indecent assault, for an aggregate
sentence of 7 to 17 years’ of incarceration.
On May 28, 2015, Appellant filed a motion for a new trial, in which he
raised ineffectiveness of counsel relative to the admission of L.R.’s
testimony. The trial court denied the motion on June 4, 2015. Appellant
filed a notice of appeal on June 22, 2015.2
On appeal, Appellant presents three issues, enumerated as two, for
our review.
1. The weight and sufficiency of the evidence were
such that the trial court erred in finding Appellant
guilty of the crimes charged.
2. The trial court erred in failing to merge
aggravated indecent assault and indecent assault
with [IDSI] and/or failing to merge aggravated
indecent assault with indecent assault. []
Appellant’s Brief at 10.
In his first issue, Appellant argues against the weight and sufficiency
of the evidence to support his convictions. Upon review of the pleadings, we
decline to reach the merits of this argument, because Appellant failed to
include any weight or sufficiency claims in his Rule 1925(b) concise
statement. See Appellant's Rule 1925(b) Statement, 8/10/15. Our finding
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2
Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
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is supported by the fact that the trial court did not address weight and
sufficiency claims in its Rule 1925(a) opinion. See Trial Court Opinion,
8/13/15.
Unequivocally, by its plain text, Rule 1925(b) requires that statements
“identify each ruling or error that the appellant intends to challenge with
sufficient detail to identify all pertinent issues for the judge.” Pa.R.A.P.
1925(b)(4)(ii). The Rule also requires that “[e]ach error identified in the
Statement will be deemed to include every subsidiary issue contained
therein which was raised in the trial court....” Id. at 1925(b)(4)(v). Most
significantly, any issues not raised in accordance with Rule 1925(b)(4) will
be deemed waived. Id. at 1925(b)(4)(vii). Our Supreme Court has held
that Rule 1925(b) is a bright-line rule, and “any issues not raised in a Rule
1925(b) statement will be deemed waived.” Commonwealth v. Hill, 16
A.3d 484, 494 (Pa. 2011); accord Pa.R.A.P. 1925(b)(4)(vii). Accordingly,
Appellant’s weight and sufficiency claims are waived.
In his second issue, Appellant argues that the trial court erred at
sentencing by “failing to merge Aggravated Indecent Assault and Indecent
Assault with IDSI and or failing to merge Aggravated Indecent Assault with
Indecent Assault.” Appellant’s Brief at 24. The Commonwealth has
responded, inter alia and apropos, that Appellant’s convictions “did not stem
from one criminal act, but more than fifty acts committed over a period of
approximately six years.” Commonwealth’s Brief at 6.
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In rejecting Appellant’s merger claim, the trial court capably explained,
and it bears repeating here, as follows.
42 Pa.C.S.A. § 9765 provides:
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.
Section 9765 prohibits merger unless two distinct
facts are present: 1) the crimes arise from a single
criminal act; and 2) all of the statutory elements of
one of the offenses are included in the statutory
elements of the other. Commonwealth v.
Baldwin, 985 A.2d 830, 833 (Pa. 2009).
…
In Commonwealth v. Allen, 856 A.2d 1251,
1253-54 (Pa. Super. 2004)[, appeal denied, 870
A.2d 319 (Pa. 2005)], the Superior Court held that
Aggravated Indecent Assault and Indecent Assault
are not greater and lesser-included offenses and do
not merge. Accordingly, [Appellant’s] argument that
Aggravated Indecent Assault and Indecent Assault
should have merged is meritless.
In Commonwealth v. Yeomans, the Superior
Court explained that “the preliminary consideration
under Section 9765 is whether the two crimes at
issue arose from a single act. This is because our
courts have long held that where a defendant
commits multiple distinct criminal acts, concepts of
merger do not apply.” 24 A.3d 1044, 1050 (Pa.
Super. 2011) (citation omitted). The [Superior
C]ourt explained that a defendant commits more
than one criminal act if he commits multiple criminal
acts beyond that which is necessary to establish the
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bare elements of the additional crime. Id. (citation
omitted). The rationale is to prevent defendants
from receiving a “volume discount” on crime. Id.;
Commonwealth v. Ross, 543 A.2d 1235, 1237 (Pa.
Super. 1988) (finding appellant’s conviction for
Indecent Assault and IDSI did not merge where the
defendant committed multiple acts during each
encounter); Commonwealth v. Whetstine, 496
A.2d 777, 780-81 (Pa. Super. 1985) appellant’s
convictions for IDSI and Indecent Assault did not
merge where appellant committed separate and
distinct injurious acts).
Here, [Appellant] committed multiple distinct
criminal acts. In the first instance of abuse,
[Appellant] forced L.R. to touch and suck on his
penis, committing IDSI. N.T., 2/17/2015, at 95-96.
[Appellant] then continued the abuse by licking
L.R.’s vagina and inserting his finger into her vagina,
committing Aggravated Indecent Assault. Id. at 96-
99. Finally, [Appellant] ejaculated next to L.R.,
committing Indecent Assault. Id. In this single
incident of abuse, [Appellant] committed multiple
distinct criminal acts that supported his convictions
for IDSI, Aggravated Indecent Assault, and Indecent
Assault. Additionally, [Appellant] sexually abused
L.R. over fifty times over the course of the years that
she lived with her grandmother, further supporting
that [Appellant] committed distinct criminal acts.
Id. at 100-103. Accordingly, the charges did not
merge.
Trial Court Opinion, 8/13/15, at 9-11.
Given the record before us, we are in agreement with the
Commonwealth and trial court regarding Appellant’s merger claim. As
Appellant’s first issue is waived, and his second issue is without merit, we
decline to grant Appellant relief, and affirm the May 26, 2015 judgment of
sentence.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/6/2016
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