Com. v. Ross, B. ( 2018 )

J-S61004-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
BARRY ROSS,
Appellant No. 528 EDA 2018
Appeal from the Judgment of Sentence Entered May 17, 2016
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0004833-2015
BEFORE: BENDER, P.J.E., BOWES, J., and PANELLA, J.
MEMORANDUM BY BENDER, P.J.E.: FILED NOVEMBER 06, 2018
Appellant, Barry Ross, appeals from the judgment of sentence of 21½
to 47 years’ incarceration, imposed after he was convicted, following a non-
jury trial, of various sexual offenses, including rape of a child. On appeal,
Appellant seeks to challenge the sufficiency of the evidence to sustain his
convictions, as well as the discretionary aspects of his sentence. Additionally,
Appellant’s counsel, Stuart Wilder, Esq., seeks to withdraw his representation
of Appellant pursuant to Anders v. California, 386 U.S. 738 (1967), and
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009). After careful review,
we agree with counsel that Appellant’s two issues are frivolous. Nevertheless,
we deny counsel’s petition to withdraw, as we must sua sponte reverse
Appellant’s designation as a Sexually Violent Predator (SVP) under the Sexual
J-S61004-18
Offender Registration and Notification Act (SORNA), 42 Pa.C.S. § 9799.10-
9799.41, and remand for further proceedings.
The trial court set forth a detailed summary of the facts and procedural
history of Appellant’s case. See Trial Court Opinion (TCO), 4/25/18, at 1-11.
Based on the facts discussed by the trial court, Appellant was convicted,
following a non-jury trial, of single counts of rape of a child and aggravated
indecent assault of a child, as well as two counts each of indecent assault of
a person less than 13 years of age, corruption of a minor, and endangering
the welfare of a child. Appellant’s convictions stemmed from his sexually
abusing his two biological daughters over the course of several years. For
these offenses, the court imposed the aggregate sentence stated supra. The
court also determined that Appellant met the criteria to be deemed an SVP.
Appellant filed a timely post-sentence motion, which the court denied.
He then filed a timely notice of appeal. In response to the trial court’s order
for Appellant to file a Pa.R.A.P. 1925(b) statement, Attorney Wilder filed a
Pa.R.A.P. 1925(c)(4) statement of his intent to withdraw on appeal. However,
Attorney Wilder set forth in that statement the following two issues that
Appellant desired to raise on appeal:
1. The evidence was insufficient to support the verdict because
there was no DNA evidence connecting [Appellant] to the
crime; and
2. The sentence was manifestly excessive, both because
[Appellant] was not on parole or probation at the time the
crimes occurred, and because sentences on all counts were not
made to run concurrently to one another.[]
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Rule 1925(c)(4) Statement, 3/19/18, at 1-2. On April 25, 2018, the trial court
issued a Rule 1925(a) opinion addressing the merits of Appellant’s two issues.
On July 30, 2018, Attorney Wilder filed with this Court a petition to
withdraw as counsel. That same day, counsel also filed an Anders brief,
discussing Appellant’s issues and concluding that they are frivolous, and that
Appellant has no other, non-frivolous issues he could pursue herein.
Accordingly,
this Court must first pass upon counsel’s petition to withdraw
before reviewing the merits of the underlying issues presented by
[the appellant]. Commonwealth v. Goodwin, 928 A.2d 287,
290 (Pa. Super. 2007) (en banc).
Prior to withdrawing as counsel on a direct appeal under Anders,
counsel must file a brief that meets the requirements established
by our Supreme Court in Santiago. The 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.
Santiago, 978 A.2d at 361. Counsel also must provide a copy of
the Anders brief to his client. Attending the brief must be a letter
that advises the client of his right to: “(1) retain new counsel to
pursue the appeal; (2) proceed pro se on appeal; or (3) raise any
points that the appellant deems worthy of the court[’]s attention
in addition to the points raised by counsel in the Anders brief.”
Commonwealth v. Nischan, 928 A.2d 349, 353 (Pa. Super.
2007), appeal denied, 594 Pa. 704, 936 A.2d 40 (2007).
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Commonwealth v. Orellana, 86 A.3d 877, 879-80 (Pa. Super. 2014). After
determining that counsel has satisfied these technical requirements of Anders
and Santiago, this Court must then “conduct an independent review of the
record to discern if there are any additional, non-frivolous issues overlooked
by counsel.” Commonwealth v. Flowers, 113 A.3d 1246, 1250 (Pa. Super.
2015) (citations and footnote omitted).
In this case, Attorney Wilder’s Anders brief complies with the above-
stated requirements. Namely, he includes a summary of the relevant factual
and procedural history, he refers to portions of the record that could arguably
support Appellant’s claims, and he sets forth his conclusion that Appellant’s
appeal is frivolous. He also explains his reasons for reaching that
determination, and supports his rationale with citations to the record and
pertinent legal authority. Attorney Wilder also attached to his petition to
withdraw a letter directed to Appellant, in which he informed Appellant of the
rights enumerated in Nischan and stated that he enclosed a copy of his
Anders brief for Appellant’s review. Accordingly, counsel has complied with
the technical requirements for withdrawal. We will now independently review
the record to determine if Appellant’s issues are frivolous, and to ascertain if
there are any other, non-frivolous issues he could pursue on appeal.
In assessing Appellant’s sufficiency claim and challenge to the
discretionary aspects of his sentence, we have reviewed the certified record,
the briefs of the parties, and the applicable law. Additionally, we have
considered the thorough and well-crafted opinion of the Honorable Rea B.
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Boylan of the Court of Common Pleas of Bucks County. We conclude that
Judge Boylan’s extensive, well-reasoned opinion accurately disposes of the
issues presented by Appellant.1 Accordingly, we adopt Judge Boylan’s opinion
as our own and conclude that Appellant’s two issues are frivolous for the
reasons set forth therein.
However, we must sua sponte reverse Appellant’s designation as an SVP
under SORNA. In Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), our
Supreme Court held that the registration requirements under SORNA are
punitive, thus overturning prior decisions deeming those registration
requirements civil in nature. Id. at 1218. Subsequently, this Court ruled that,
since our Supreme Court has held [in Muniz] that SORNA
registration requirements are punitive or a criminal penalty to
which individuals are exposed, then under Apprendi [v. New
Jersey, 530 U.S. 466 (2000),] and Alleyne [v. United States,
133 S. Ct. 2151, 2163 (2013) ], a factual finding, such as whether
a defendant has a “mental abnormality or personality disorder that
makes [him or her] likely to engage in predatory sexually violent
offenses[,]” 42 Pa.C.S.[ ] § 9799.12, that increases the length of
registration must be found beyond a reasonable doubt by the
chosen fact-finder. Section 9799.24(e)(3) identifies the trial court
as the finder of fact in all instances and specifies clear and
convincing evidence as the burden of proof required to designate
a convicted defendant as an SVP. Such a statutory scheme in the
criminal context cannot withstand constitutional scrutiny.
____________________________________________
1 However, we disagree with Judge Boylan that Appellant waived his
sufficiency of the evidence claim by failing to raise it with specificity in his
concise statement, where Attorney Wilder filed a Rule 1925(c)(4) statement.
See TCO at 11-12. In any event, the court provides a detailed alternative
analysis, id. at 12-15, which we adopt in concluding that Appellant’s
sufficiency challenge is frivolous.
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Commonwealth v. Butler, 173 A.3d 1212, 1217–18 (Pa. Super. 2017),
appeal granted, 190 A.3d 581 (Pa. 2018).2 Accordingly, the Butler panel held
that 42 Pa.C.S. § 9799.24(e)(3) is unconstitutional. Id. at 1218.3
In light of Butler, we are compelled to conclude that Appellant’s
sentence is illegal to the extent he was deemed an SVP under SORNA. See
id. Accordingly, we reverse that portion of Appellant’s judgment of sentence,
and remand his case for the trial court to determine what, if any, registration
requirements apply to Appellant. In all other respects, we affirm Appellant's
judgment of sentence. Given this disposition, we deny Attorney Wilder’s
petition to withdraw and direct that he represent Appellant on remand.
Judgment of sentence affirmed in part, reversed in part. Case remanded
for further proceedings. Petition to withdraw denied. Jurisdiction
relinquished.
____________________________________________
2While the Pennsylvania Supreme Court has granted allowance of appeal in
Butler, our decision therein remains binding authority until the Supreme
Court reaches a decision.
3 Following Muniz and Butler, the Pennsylvania General Assembly enacted
legislation to amend SORNA. See Act of Feb. 21 2018, P.L. 27, No. 10 (“Act
10”). Act 10 amended several provisions of SORNA, and also added several
new sections found at 42 Pa.C.S. §§ 9799.42, 9799.51-9799.75. In addition,
the Governor of Pennsylvania recently signed new legislation striking the Act
10 amendments and reenacting several SORNA provisions, effective June 12,
2018. See Act of June 12, 2018, P.L. 1952, No. 29. These modifications do
not apply to Appellant’s SVP designation, however, which the trial court
imposed in 2016 under the original SORNA.
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J-S61004-18
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/18
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Circulated 10/16/2018 03:00 PM
fN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRJM.INAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
No. CP-09-CR-0004833-2015
v.
BARRY ROSS
OPINION
Defendant Barry Ross ("Appellant") appeals to the Superior Court of Pennsylvania from
the judgment of sentence entered on May 17, 2016. On that date, following a non-jury trial, this
Court found Appellant guilty of Rape of a Child 1, Aggravated Indecent Assault of a Child', two
counts oflndecent Assault of a Person less than 13 Years of Age3, two counts of Corruption of
Minors", and two counts of Endangering the Welfare of Children.' We sentenced Appellant to
an aggregate 21 and one-half to 47 years' incarceration. We file this Opinion pursuant to
Pa.R.A.P. l 925(a).
I. FACTUAL BACKGROUND
This case involves multiple instances of Appellant sexually abusing his two biological
daughters, N.R. and S.R, over several years. At the time of trial, N.R. and S.R. were thirteen-
and eight-years-old, respectively.
Appellant began to abuse N.R. when she was approximately six-years-old. N.T. 5/16/16,
pp. 73, 159, 169, 179. On a weekly basis, Appellant would enter the room that N.R. typically
shared with her two younger sisters. Id. at 50, 53-54, 75-76. Appellant, dressed in only his
underwear, would jump on top ofN.R. whlle she was sleeping in one of the two beds. ML. at 53-
I
Count I: 18 Pa.C.S. § 312 J(c).
2
Count 2: 18 Pa.C.S. § 3125(b).
l Counts 4 and 7: 18 Pa.C.S. § 3 l26(a)(7).
4
s
Counts 5 and 8: 18 Pa.C.S. 6301(aXl)(ii).
j Counts 6 and 9: 18 Pa.C.S. § 4304(a)(l).
55. N.R. typically slept in pajama pants and at-shirt. Id. Appellant would then move his body
on top of N.R. in an "up-and-down formation." Id. at 71. The movement would cause his penis
to push through N.R. 's clothing and penetrate her vagina or anus. Id. N.R. could feel her clothes
enter either her vagina or anus during these assaults and felt pain in those areas into the
following day. fd. at 57. During these encounters, N.R. heard the Appellant breathe heavily and
sometimes felt her pants become wet after he was finished. Id. at 71-72. On some occasions.
when N.R. attempted lo move or push the Appellant off of her, he would say "just a few more
minutes" or otherwise attempt to change the subject. Id. at 57-58. When N.R. resisted or
managed to push him off completely, Appellant would become angry and refuse to speak with
her. Id. at 59-60. N.R. was afraid of Appellant, and testified that he would yell at her, strike her,
call her a "bitch" or a «slut," and "exclude [her] from the family" by locking her in the bedroom
if she resisted his advances. Id. at 59-60, 69-70.
•
N.R. attempted to disclose the abuse to her mother after the first incident. Id at 61. N.R
came downstairs one night and told her mother that she did not want to go upstairs because
"whenever I'm sleeping my-he-my dad moves around a lot on top of me." Id. at 73.
Appellant claimed that N.R. fabricated the abuse after she watched a movie with him. Id. at 160,
176. Although police responded to the home, N.R. subsequently recanted because her paternal
aunt, paternal grandmother and the Appellant "kept telling me that it was a dream and nothing
happened. and ljust wanted everybody to be happy again." Id. at 62, 159-160. When N.R.
expressed a desire lo seek counseling at school, Appellant forbade it. Id. at 70.
Appellant had abused S.R. in a similar manner since she was five-years-old. Id. at 93.
On multiple occasions and in multiple rooms of the home, Appellant would touch S.R. 's vagina
with his fingers. Id. at 93-94. 111e most recent abuse occurred in the Appellant's bedroom:
2
Appellant called S.R. into his room and lifted her onto his bed. Id. at 95. As she lay on her
stomach, S.R. felt the bed shake and heard the Appellant breath heavily as he lay on top of her
body. Id. at 96-97. While both the Appellant and S.R. were fully clothed. J1e touched her vagina
through her clothing. Id. at 98. After he finished touching her, Appellant's clothes would
become wet and S.R. 's genitals would itch. Id. at 98-99. When S.R. would ask Appellant to
stop, he wou]d say ..no" and told her not to tell anyone. When S.R. disclosed the abuse to her
mother, the Appellant would become angry and yell at S.R. Id. at 99-100.
This Court also heard testimony from Appellant's ten-year-old son, T.R. He testified that
the Appellant would occasionally enter his bedroom at night, get on top of him and abuse him in
a manner similar to the assaults described by N.R. and S.K Id. at 112-113. On some nights,
T.R.. would sleep in his sisters' bedroom and witnessed the Appellant perform the same acts on
his sisters. Id. at 113-114.
In the days prior to May 30, 2015, N.R. again attempted to disclose the abuse. The
victims' mother was in the kitchen with N.R. and discussed how Appellant occasionally "checks
in on the girls." Id. at 136. When N.R. replied that it was "nothing to worry about," her mother
asked her to clarify. Id. The following clay, N.R. told her mother Appellant «would come in her
bedroom and he would take his penis and grind on her." ld. at 137. N.R.'s mother was familiar
with her daughter's description of Appellant's actions and statements during these encounters, as
demonstrated by the fol lowing exchange:
[MS. KOHLER]: When you-when [N.R.] told you what hewould say to her while he
was doing this, did that sound familiar to you?
[VICTJMS' MOTHER]: Excuse me? -
Q: When [N.R.] told you what he would say to her when he was touching her-
3
A: Yes, it was very familiar to me because when I was on my menstrual, we wouldn't
have sex, he would grind on me as well. And when I would tell him it was irritating me
or hurting me, he would whisper in my ear as well just a little bit longer.
Q: Okay. And when he would do that to you, would you have your clothes on?
A: Yes.
Q: And did his penis ever go inside of you?
A: Yes.
Q: Okay. And that would be through your clothes?
A:Yes.
Id. at 138�139. Following this discussion, S.R. entered the room and asked whether N.R. and her
mother were "talking about that thing that daddy does." Id. at 140. When N.R. said "shut up,
[S.R.J, you don't know what we're talking about," S.R. replied, "I do, because he does the same
thing to me." Id.
In an attempt to corroborate her daughters' allegations, N.R.'s mother asked her neighbor
and friend, Erayna Lin, to purchase a nanny camera disguised as an alarm dock. Id. at 23-25,
144. After Ms. Lin purchased the camera, the victims, mother placed it on the dresser in N.R.'s
bedroom and pointed it at N.R. 's bed. ld. at 64-66, 145. 111e mother instructed N.R. to bring her
the camera and put her clothes in a plastic bag if anything happened with the Appellant. Id. at
64-66. The victims' mother set the camera to record the next three to four days of activity in
N.R.'s bedroom. Id. at 146.
On the evening of May 30, 2015� the mother was sleeping when she awoke to find that
the Appellant had left their shared bedroom. Id. at 150-151. That night, N .R. was sleeping on
her stomach, wearing pants and at-shirt, when the Appellant came into her room and jumped on
4
top of her. Id. at 53-55. The Appellant began to move up and down while pressed against N.R.'s
body and his penis penetrated her vagina or anus through her clothing. Id. at 53-55, 71.
During that time, the mother went to her bedroom door to investigate and heard someone
jumping out of her daughter's bed. Id. at 151. N.R. 's bed makes a distinct creaking noise in
response to pressure. Id. at 27, 152, 191. The mother contemporaneously overheard a
conversation between Appellant and N.R. in which the Appellant asked whether the clock on the
dresser was a camera, Id. After the mother unsuccessfully attempted to view the recorded video
on the nanny camera, she woke her oldest son T.R.6 and instructed him to take the camera to Ms.
Lin's home. Id. at 154.
Ms. Lin viewed the video that night and subsequently called the po Hee. Id. at 27. The
video, with a time-stamp of May 30, 2015, initially showed someone entering the bedroom and
turning the nanny camera towards the wall at approximately 12:36 a.m., followed by frequent
creaking noises. See Ex. C-7. After several minutes, the recording showed a conversation
between Appellant and the victims' mother, in which they discussed the origins of the camera.
Id. After the Appellant left the room, N.R. removed her pajamas and placed them into a plastic
bag. N.T. 5/16/15. p. 67.
In response to Ms. Lin's call, Middletown Township police responded to the Appellant's
residence al 18 Cameo Road, Middletown Township, Bucks County at 2:57 a.m. ld. at 39. The
police officers found Appellant in his bedroom, wearing red and blue striped boxers. Id. at 41.
Appellant initially asked for time to clothe himself and smoke a cigarette; he subsequently began
to pace nervously around the bedroom and cry uncontrollably. Jcl at 41. While being
6
Appellant has two biological children with the initials T.R.
5
transported to the police station, Appellant cried, struck the back seats of the patrol vehicle and
repeatedly stated, "I didn't mean to do it." Id. at 42.
After being interviewed by the police, N.R. and S.R. travelled to the Children's Hospital
of Philadelphia {"CHOP") for medical examinations. At trial, this Court received Nurse
Practitioner Jennifer Molnar as an expert in forensic nursing and Sexual Assault Nurse
Examination. N.T. 5/17115; pp. 8. Ms. Molnar testified regarding her interview and physical
examination ofN.R. at CHOP. Id. at 10·12. In the course of her examination, Ms. Molnar
observed thin, white vaginal discharge and three abrasions located on the labia minora ofN.R. "s
vaginal area. Id. at 16. Two of these abrasions contained lacerations and active bleeding. Id.
When N.R. returned to CHOP for a follow-up examination on July 9, 2015� no injuries were
observed in her vaginal area. Id. at 23. Ms. Molnar opined that the injuries found on May 30
were consistent with the sexual assault narrative provided by N.R. during the interview. Id. at
21, 27. Ms. Molnar further opined that the presence of three distinct injuries on three isolated
areas of N.R. 's vagina was likely related to injury from penetration. Id. at 26. Ms. Molnar could
not, however, confirm whether these injuries were caused by skin-to-skin contact or by clothing.
Id. at 40.
Following the Appellant's arrest, Middletown Township Detective David E. Strother
submitted the Appellant's boxer shorts and the plastic bag containing N.R.'s pajama pants and
yellow t-shirt to the Pennsylvania State Police Crime Lab for analysis. N.T. 5/16/15, pp. 184�
185. The serology laboratory identified blood on the waistband of N.R. 's pants, hair-like debris
on her yellow t-shirt and semen in the front-crotch area of Appellant's boxer shorts. Id. at 186-
188. Detective Strother obtained buccal swabs from both individuals and submitted them to the
Crime Lab for DNA comparison testing. Id.
6
The resulting Jab report confirmed that the sperm sample from Appellant's underwear
was consistent with the Appellant's reference DNA profile. Id. at 189. The report further
confirmed that light blue polyester fiber collected from a scraping of Appellant' s boxer shorts
was "visually microscopically and instrumentally consistent with the known light blue polyester
fibers from ... [N.R.]'s pajama pants." Id. at 190. Detective Strother testified that this result
indicated that the two samples shared a common origin. Id. Finally, Detective Strother recorded
video and audio of himself attempting to recreate the noise that N.R. 's bed would create in
response to pressure. Id. at 190-191. Detective Strother testified that the noises he heard during
his investigation were consistent with the creaking noises depicted in the May 30, 2015 nanny
camera video. td. at 19 I.
II. PROCEDURAL HJSTORY
On July I, 2015, Appellant was charged with Rape of a Child, Involuntary Deviate
Sexual Intercourse with a Child, Aggravated Indecent assault of a Child, two counts of Indecent
Assault of a Person less than 13 Years of Age, two counts of Corruption of Minors, and two
counts of Endangering the Welfare of Children.
On November 9, 2015, Appellant pied guilty before the Honorable Jeffrey L. Finley to
charges of Rape of a Child, Involuntary Deviate Sexual Intercourse with a Child, and Indecent
Assault of a Person less than J3 Years of Age. In the course of his plea, Appellant
acknowledged that the Court could impose the sentence for each offense consecutively to each
other. N.T. 11/9/15, p. 7. On December 29� 2015, Defendant moved to withdraw his guilty plea,
and defense counsel subsequently filed a Motion to Withdraw as Counsel on January 5, 2016.
The Honorable Jeffrey L. Finley granted counsel's Motion to Withdraw and appointed conflict
counsel on January 20, 2016. On February 22, 2016, the Court granted Appellant's Motion to
Withdraw Plea of Guilty. On May 16, 2016, Appellant proceeded to trial before this Court on all
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original charges. In the course of Appellant's waiver of his right to a jury trial, he again affirmed
that he understood the possibility that this Court could impose consecutive sentences upon a
guilty verdict. N.T. 5/16/16, pp. 18-19.
On May 17, 20 I 6, following a two-day non-jury trial, this Court found Appellant guilty
of Rape of a Child, Aggravated Indecent Assault of a Child, two counts of Indecent Assault of a
Person less than I 3 Years of Age, two counts of Corruption of Minors, and two counts of
Endangering the Welfare of Children, N.T. 3/17/15. p. 62. We found Appellant not guilty of
Count 3, Involuntary Deviate Sexual Intercourse with a Child. Id.
During sentencing. this Court heard victim impact testimony from the victims' mother.
Id. al 67. We additionally heard testimony from the Appellant, who discussed his struggles with
drug and sex addiction and apologized to the victims. Id. at 74�77. We adopted and considered
the findings of a previously submitted assessment by the Sexual Offenders Assessment Board
f'SOAB,,), which found that Appellant met the criteria for classification as a sexually violent
predator C'SVP"). Id. at 63�64, 81. Appellant waived his right to an SVP hearing. and this Court
found that he met the criteria to be classified as an SVP pursuant to the Sexual Offender
Registration and Notification Act ("SORNA") 42 Pa.C.S. § 9799 et�- N.T. 5/17/15, p. 64.
We additionally considered a domestic violence investigation report and history of the
Appellant Id. at 64, 8 J. �ee Ex. CS-1. The report described Appellant's prior criminal
convictions as follows: In 1990, Appellant was convicted of Robbery. Receiving Stolen Property
and Simple Assault, and was sentenced to eleven to 23 months' incarceration. In 1996,
Appellant was convicted of Burglary, Criminal Trespass and a Controlled Substance offense, and
was sentenced to one to twelve months' incarceration. In 1997, Appellant was convicted of
Defiant Trespass, Disorderly Conduct and Harassment, and was sentenced to a consecutive one-
8
year period of probation. Finally, in 2013, Appellant was convicted of four counts of
Harassment, and was sentenced to four consecutive sentences of 90 days' probation on each
count. See Ex. CS-1.
This Court considered the sentencing guidelines and addressed them on the record. The
guidelines for Corruption of Minors and Endangering the Welfare of Children each called for 27
to 40 months in the standard range. Id. at 79-80. Further, during his guilty plea on November 9,
20)5, the Honorable Jeffrey L. Finley apprised Appellant of the sentencing guidelines for the
other charged offenses. The guidelines for Rape of a Child called for seventeen to twenty years
in the standard range. N.T. 11/9/15, p. 25. The guidelines for Indecent Assault of a Person less
than 13 Years of Age called for 27 to 40 months in the standard range. Id.
In imposing sentence, we recognized that the Appellant has "in some part accepted
responsibility for what he has done." N.T. 5/17/15, p. SL However, we found that Appellant
committed a "horrific crime'; that "profoundly affected'; the child victims as evidenced by their
testimony. Id. We further noted that this was "not one act of this victimization but rather that
the children were victimized repeatedly over a period of years." We concluded that anything less
than a lengthy sentence would "diminish the magnitude of this crime."
We sentenced Appellant to an aggregate 21 and-one-halfto 47 years' incarceration.
4
Specifically, on Count 1, Rape of a Child; we sentenced Appellant to 18 to 40 years'
incarceration; on Count 2, Aggravated Indecent Assault of a Child, we sentenced Appellant to
five to ten years' incarceration running concurrently with Count I; on Count S. Corruption of
Minors, we sentenced Appellant to three-and-one-half to seven years' incarceration running
consecutively to Count 2 and concurrently with Count 1; On Count 6, Endangering the Welfare
of Children, we sentenced Appellant to three-and-one-half to seven years' incarceration running
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consecutively to Count 5 and concurrently with Count l; On Counts 7, 8 and 9, we sentenced
Appellant to three-and-one-half to seven years' incarceration running concurrently with each
other and consecutively to Count 1. N.T. 3/17/16, pp. 81-82. We imposed no further penalty on
Count 4. Id.
On May 26, 2016, Appellant filed a Motion for Reconsideration of Sentence. On July 5,
2016, a hearing was held, and this Court heard additional victim impact testimony from victims
N.R. and S.R. N.T. 7/5/16, pp. at 2-6. We also heard additional testimony from the Appellant,
who reiterated his struggles with drug addiction. Jd_ at 8�9. We subsequently denied Appellant's
Motion.
Appellant did not file a direct appeal, On June 9, 2017, Appellant filed a "Petition for
Redress of Grievance Pro-Se." We appointed counsel, and Appellant subsequently filed an
Amended Petition pursuant to the Post Conviction Relief Act ("P.CRA"), 42 Pa.C.S. § 9541 et
seg on December 26, 2017. On January 9; 2018, upon agreement of the parties, this Court
granted Appellant relief in the form of reinstating his right to file a direct appeal nunc pro tune.
Appellant filed a timely Notice of Appeal on February 71 2018.
III. MATIERS COMPLAINED OF ON APPEAL
On February 14, 2018, this Court issued an Order pursuant to Pa.R.A.P. 1925(b) directing
Appellant to file a Concise Statement of Matters Complained of on Appeal. On March 2, 2017,
this Court issued an Order pursuant to Pa.R.A.P. l 925(b)(2) that extended Appellant's time to
file such a statement until March 21, 2018. On March l 9, 2018, Appellant's counsel filed a
Statement Pursuant to Pa.R.A.P. 1925(c)(4) and notified this Court that he will be filing an
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Anders/McClcndon7 Brief with the Pennsylvania Superior Court. This Statement further notified
the Court that Appellant wished to raise the following issues, verbatim:
l. The evidence was insufficient to support the verdict because there was no DNA
evidence connecting him to the crime; and
2. The sentence was manifestly excessive, both because he was not on parole or
probation at the time the crimes occurred, and because sentences on all counts
were not made to run concurrently to one another.
IV. ANALYSIS
Appellant challenges the sufficiency of the evidence and this Court's sentence imposed.
Both argumerits are addressed below:
A. Sufficiency of the Evidence
Appellant argues that the Commonwealth provided insufficient evidence to convict him
of these offenses because the there was no DNA evidence that connected him to the crimes.
Appellant waived this claim because he failed to specify the element or elements upon which the
evidence was insufficient.
When challenging the sufficiency of the evidence, an appellant's Statement pursuant to
Rule 1925(b) must specify the "element or elements upon which the evidence was insufficient"
to preserve the issue for appeal. Commonwealth v._Williams. 959 A.2d 1252, 1257 (Pa. Super.
Ct. 2008). This standard is particularly important in cases where an appellant is convicted of
multiple crimes, and where each crime contains numerous elements. Conunonwea.lth v. Gibbs,
981 A.2d 274, 281 (2009} (citing Williams, 959 A.2d at 1258 n.8).
Appellant's Rule l 925(b} statement lacks the requisite specificity to preserve his
sufficiency claim. This Court convicted Appellant of Rape of a Child, Aggravated Indecent
Assault, and two counts each of Indecent Assault, Corruption of Minors, and Endangering the
7 �nders v. California, 386 U.S. 738 (1967); Commonwealth v. tvkClendoo. 434 A.2d 1185 (Pa. 1981).
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Welfare of Children, respectively. Appellant's statement fails to identity any element or
elements, let alone any specific crime, upon which the evidence was insufficient to convict.
Because Appellant's Rule 1925(b) statement lacks the requisite specificity to apprise the
Commonwealth or this Court of the basis for his claims, his sufficiency challenge is deemed
waived.
However, even if Appellant properly preserved his sufficiency claim, the
Commonwealth's unrefutcd evidence was sufficient to support a conviction for the above-
referenced offenses. While the Commonwealth did, in fact, present "DNA evidence" to
corroborate the victims' testimony. the prosecution's remaining evidence, standing alone,
constituted sufficient evidence to convict Appellant of each crime.
Generally, the test for a challenge to the sufficiency of the evidence is whether ...the
Commonwealth established beyond a reasonable doubt each of the elements, considering all the
evidence admitted at trial, and drawing all reasonable inferences therefrom in favor of the
Commonwealth ... .'' Common-.vealth v. Brown, 48 A.3d 426� 430 (Pa. Super. Ct. 2012)
(citation omitted), The entire record must be evaluated in "aggregate and not as fragments
isolated from the totality of evidence." Commonwealth v. Rosado, 684 A.2d 605, 607-08 (Pa.
Super. Ct. 1996) ( citation omitted). The trier of fact bears the sole responsibility of assessing the
credibility of witnesses and weighing the evidence at trial, and is free to believe all, part, or none
of the evidence or testimony presented. Id. A mere conflict in testimony does not render a
verdict insufficient. Commonwealth v. Atwood, 60 I A.2d 277, 288 (Pa. Super. Ct. 1991 ).
Wholly circumstantial evidence may be used to sustain the Commonwealth's burden.
Comnmnwealth v. Markman, 916 A.2d 586, 598 (Pa. Super. Ct 2007) (citation omitted).
Finally, the standard of review is whether the verdict is so contrary as to "shock one's sense of
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justice." Commonwealth v. Shaffer, 40 A.3d 1250, 1253 (Pa. Super. Ct. 2012) (citation
omitted).
As an initial matter, we note that Appellant specifically conceded the charges of Indecent
Assault, Corruption of Minors, and Endangering the Welfare of Children during closing
argument at trial, N.T. 5/17/15, p. 46. Therefore, regarding this Court's guilty verdict on those
specific charges, Appellant's sufficiency claim is deemed waived. Schmidt v. Martz, 55 A.2d
588, 589 (Pa. Super. Ct. 1947) (holding party may not expressly admit or deliberately waive
facts at trial and subsequently question those facts on appeal).
As to the remaining offenses, a person commits Rape of a Child when he or she "engages
in sexual intercourse with a complainant who is less than 13 years of age." 18 PaC.S. § 3121 {c).
Sexual intercourse, in addition to its ordinary meaning, is defined as, "intercourse per os or per
anus, with some penetration however slight; emission is not required." 18 Pa.C.S. § 310]. A
person commits Aggravated Indecent Assault of a Child when he or she "engages in penetration,
however slight, of the genitals or anus of a complainant [that is less than l3 years of age] with a
part of the person's body for any purpose other than good faith medical. hygienic or law
enforcement procedures." 18 Pa.C.S. § 3125(b).
Appellant argues that this Court could not have found him guilty of any of the charges
because the Commonwealth did not introduce DNA evidence that connected him to the crimes.
Appellant conveniently ignores the scientific evidence gleaned from the Pennsylvania State
Police Crime Lab report The report identified Appellant's semen on his red and blue striped
boxer shorts through DNA comparison testing. The report additionally identified blue polyester
debris on N.R. 's yellow t-shirt that was visually consistent with the blue polyester fibers on
Appellant's boxer shorts. These findings corroborated N.R. and S.R.'s accounts of Appellant's
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sexual assaults against them. Both victims described multiple incidents in which the Appellant
would grind his penis against their genitals while 'Nearing only his boxer shorts. Both victims
further testified that Appellant's boxer shorts would occasionally become wet after an assault,
indicating the presence of ejaculate.
Further, even without the above-referenced scientific evidence, the Commonwealth
provided sufficient evidence to convict Appellant of these crimes. Initially, N.R. and S.R. 's
uncorroborated testimony, if believed by the fact-finder, is sufficient to support a conviction for
all of the charged sexual assault crimes. See generally Con1mQnweallh v. Poindextert 646 A.2d
1211, 1215 (Pa. Super Ct 1994); 18 Pa.C.S. § 3106 ("The testimony of a complainant need not
be corroborated in prosecutions under this chapter").
Even so, the victims' accounts were corroborated by testimony from their mother and
T.R. video and audio recordings from the nanny camera in the children's bedroom, N.R.'s
medical examination report, and Appellant's own actions and statements in police custody. The
video and audio recorded by the nanny camera, Detective Strother's supplemental investigation,
and the mother's description ofN.R.'s bed corroborated the victim's testimony regarding the
bed's distinctive creaking noise heard during the assaults. Further, ten-year-old T.R.'s testimony
of the assaults he witnessed Appellant commit against his sisters provided additional
corroboration. Finally, to the extent that Appellant argues that the Commonwealth failed to
produce evidence of penetration to support his convictions for Rape and Aggravated Indecent
Assault, Ms. Molnar's expert testimony rejects this defense. Ms. Molnar concluded that the
injuries found in N.R. ts vaginal area were consistent with the victim's description of Appellant
. . -
grinding his penis against her genitals on May 30, 2015. Ms. Molnar further concluded that the
nature of the injuries likely related to penetration.
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In finding Appellant guilty of Rape of a Child, Aggravated Indecent Assault of a Child,
Indecent Assault of a Child, Corruption of Minors, and Endangering the Welfare of Children,
this Court found that the Commonwealth established each element of these crimes beyond a
reasonable doubt. This Court weighed all of the evidence, evaluated the credibility of all
witnesses, and considered all reasonable inferences that could be drawn from the trial record.
Notwithstanding Appellant's contention the Commonwealth presented no ONA evidence during
trial, the prosecution satisfied its burden and provided sufficient evidence to convict Appellant of
these offenses, Thus, Appellant's sufficiency argument fails.
B. Sentencing
Appellant argues that this court abused its discretion and improperly imposed a
manifestly excessive sentence. Specifically, Appellant argues that we failed to consider the fact
that he was not on probation or parole at the time of the instant offense, and that we erred in
imposing consecutive sentences. We find that this Court issued a sentence well within its
discretion.
"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." Commonwealth
v. Ful)in. 892 A.2d 843, 847 (Pa. Super. Ct. 2006) (citation omitted). To establish an abuse of
discretion, an appellant must show, by reference to the record, "that the sentencing court ignored
or misapplied the Jaw; exercised its judgment for reasons of partiality, prejudice, bias, or ill will,
or arrived at a manifestly unreasonable decision." Id.
When imposing a sentence, the sentencing court must consider the following factors: (1)
protection of the public, {2) gravity of offense in relation to impact on victim and community, (3)
rehabilitative needs of the defendant. and (4) sentencing guidelines. 42 Pa.C.S. § 972I(b). The
sentencing court "has wide discretion in sentencing and [may], on the appropriate record and for
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the appropriate reasons, consider any legal factor in imposing a sentence in the aggravated
range." Commonwealth v. Stewart, 867 A.2d 5891 593 (Pa. Super. Ct 2005) (citation omitted).
"[Tjhe sentencing court may deviate from the guidelines ... to fashion a sentence which takes
into account the protection of the public, the rehabilitative needs of the defendant, and the
gravity of the particular offense as it relates to the impact on the life of the victim and the
community .... " Commonwealth v. Warren, 84 A.3d 1092, 1097 (Pa. Super. Ct. 2014) (citation
omitted). When sentencing a defendant outside of the sentencing guidelines, the sentencing
court "must state its reasons for departing from the guidelines on the record." Id. The
sentencing court's reasoning must include "the factual basis and specific reasons which
compelled [deviation] from the guideline range." Commonwealth v. Bowen, 55 A.3d 1254t
1264 (Pa. Super. Ct. 2012) (citation omitted).
The sentencing court has discretion to run sentences concurrently or consecutively to
other sentencing being imposed. Commonwealth v. Mou:t.on, 828 A.2d 1126, 1130-1131 (Pa.
Super. Ct. 2003). The imposition of consecutive rather than concurrent sentences will raise a
substantial question of excessiveness in only "the most extreme circumstances, such as where the
aggregate sentence is unduly harsh, considering the nature of the crimes and the length of
imprisonment." Comn1om,.·ealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. Ct. 2015) (citations
omitted).
This Court thoroughly explained its reasoning to Appellant and provided a specific,
factual basis for the aggregate sentence on the record. We found that imposing consecutive
sentences for each victim was appropriate due to the gravity of the offense and the need for
community protection. Accordingly, we imposed the sentences related to Appellant's assaults
against N.R.-Counts 11 2, 5, and 6--concurrendy with each other and consecutively with the
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sentences related to the assaults against S.R.-Counts 7, 8 and 9. In two separate proceedings,
Appellant acknowledged that he understood the sentencing court's ability to impose consecutive
sentences following a plea or guilty verdict. The imposition of consecutive sentences to reflect
multiple sexual assaults against two separate child victims does not raise a substantial question of
excessiveness.
We additionally imposed individual sentences in the aggravated range of the guidelines.
While we acknowledged and considered Appellant's acceptance of responsibility and past
struggles with addiction, these mitigating factors did not outweigh this Court's concerns
regarding the gravity of the offense, and the need for community protection. Similarly, U1e fact
that Appellant was not on supervision at the time of the instant offense does not outweigh the
aggravating sentencing factors in this case. We determined that only a lengthy sentence would
address Appellant's repeated and lengthy victimization of his two biological daughters and the
profound effect those assaults had on the victims.
Consequently, we imposed consecutive sentences in the aggravated range of the
sentencing guidelines. Our reasoning is set forth on the record and was clearly communicated to
Appellant. Tims, we believe that this Court did not abuse its discretion in imposing sentence.
V. CONCLUSION
For the foregoing reasons, we respectfully submit that Appellant's argument is without
merit and his appeal should be denied.
DATE: BY THE COURT:
c;4p0 cPfdrJ;j/
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