Com. v. Carbaugh, S. ( 2020 )

J-S60012-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SHAWN DAVID CARBAUGH :
:
Appellant : No. 982 MDA 2019
Appeal from the Judgment of Sentence Entered February 1, 2019
In the Court of Common Pleas of Franklin County Criminal Division at
No(s): CP-28-CR-0001484-2017
BEFORE: SHOGAN, J., STABILE, J., and PELLEGRINI, J.*
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 28, 2020
Shawn Carbaugh (“Appellant”) appeals from the judgment of sentence
imposed after a jury found him guilty of two counts of rape of a child, two
counts of indecent assault, and two counts of corruption of minors.1 The
victim was Appellant’s biological daughter, C.B. On February 1, 2019,
Appellant was sentenced to 240 months to 480 months on the child rape
counts, and twelve months to eighty-four months on each of the two counts
of indecent assault and corruption of minors. The sentencing court ordered
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3121(c), 3126(a)(7), 6301(a)(1)(ii), respectively.
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the sentences to be served consecutively, resulting in an aggregate term of
incarceration of forty-four to 108 years.2 After careful review, we affirm.
The trial court summarized the facts of this case as follows:
The Commonwealth first presented the testimony of Amber
Gossert, the victim’s counselor.
On December 14, 2016, Ms. Gossert had a scheduled family
counseling session with [C.B.] and her mother at their residence.
Ms. Gossert was providing therapy for [C.B.],8 at least in part, for
troubles [C.B.] was having at school and at home. These issues
included, “struggling with paying attention in class, focusing on
her work, she was struggling with what she identified as anxiety
and depression, being around peers.” [C.B.] was also
experiencing physical issues, namely defecating and soiling
herself. When Ms. Gossert arrived to begin the therapy session,
[C.B] was lying on the couch crying.
8 C.B., a minor child[,] testified to her date of birth.
At the time of this counseling session C.B. was,
therefore, twelve years of age.
Ms. Gossert attempted to get C.B. to discuss why C.B. was
upset. C.B. asked to speak with Ms. Gossert alone. C.B. revealed
to Ms. Gossert that she had previously “had sexual relations with
[Appellant].” When asked to clarify the term “sexual relations,”
C.B. told [Ms.] Gossert that [Appellant] put his penis in her vagina.
C.B. further advised that this occurred at a prior residence in her
parents’ bedroom. Ms. Gossert testified:
[C.B.] had told me that she was in the living
room and [Appellant] had told her to go into their
room and take her clothes off and then he proceeded
to have sex with her.
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2 The parties subsequently stipulated that the maximum sentence for an
indecent assault charge could not exceed sixty months. Accordingly, on
May 6, 2019, the sentencing court entered an amended sentencing order
reducing the aggregate sentence to not less than forty-four years and not
more than 104 years. Order, 5/6/19, at unnumbered 1.
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Tr. 1, p. 41.
After the disclosure from C.B., Ms. Gossert encouraged her
to tell her mother. C.B.’s disclosure to her mother was consistent
with what she told Ms. Gossert in private. Ms. Gossert advised
the family that she was mandated to report this information to
authorities; she did so later that same day. This rape occurred
approximately three years prior to the disclosure.
Jennifer Brown testified next for the Commonwealth.
Ms. Brown was, at all relevant times, an in-take caseworker for
the Franklin County Children and Youth Services Agency. Her
duties included investigating and assessing reports of child abuse
and neglect, including sexual abuse. Part of her duties included
making referrals of investigations to law enforcement; this
involved completing a “CY-104” form.
Ms. Brown received the report detailing the disclosure by
C.B. to Ms. Gossert; Ms. Brown completed a CY-104 referring the
matter to law enforcement. She made the referral on December
16, 2016. The referral included C.B.’s assertion that the
perpetrator was [Appellant]. As a result of the report and
Ms. Brown’s referral, [a] forensic interview of C.B. was scheduled
for December 21, 2016. C.B. was interviewed at the Children’s
Advocacy Center (CAC).
The Commonwealth next presented the testimony of
Jennifer McNew. During all relevant times in this case, she was a
pediatric forensic nurse providing medical exam services for the
CAC. She conducted a pediatric forensic exam of C.B. on
January 4, 2017. As part of an examination, Ms. McNew writes
down “in the patient’s words what they say about the details of
the assault.” Ms. McNew testified:
[C.B.] said that [Appellant] did something that
he shouldn’t have. He said, if someone gets
suspicious, to say someone else did it. He put
something in me that he shouldn’t have. His private
part down here and [C.B.] pointed to her genital area
when she said, down here. In his and my mom’s
room. When he was done, it was white, sticky and
disgusting. It happened once or twice. Second time
at his house – I’m sorry, at his mom’s house, when I
was around 7 or 8-years old. He told me to get
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undressed, sit on him and go up and down. He
stopped before the stuff went inside of me. He
threatened me. It hurt really bad at first and I hated
it, then felt good, which sucks. I don’t understand.
Tr. 1, pp. 103-04.
Ms. McNew related to the jury at length the details of her
examination of C.B. She noted a “deep notch” at the 4:00 o’clock
position on C.B.’s hymen, which is consistent with her testimony
of the incident and level of pain she experienced.
C.B. testified next for the Commonwealth. At the time she
testified, she was fourteen years old, and her date of birth was
established. She identified [Appellant] as her father. When she
was around six, seven, or eight years old, she was at home with
[Appellant]; her mother was at work.
She was getting breakfast when [Appellant] told her to go
back to his room; he said he wanted to show her something.9
When C.B. entered his room, [Appellant] told her to “take [her]
clothes off and stuff.” [Appellant] began to touch C.B. and she
tried to get away.
9 No one else was in the residence at this time.
C.B. testified that [Appellant] touched her with his hands
and other parts of his body; however, she was reluctant10 to
describe the “other” parts of his body. C.B. said [Appellant]
touched her “somewhere he shouldn’t have” with his body part
“that he shouldn’t have.” 11
10 C.B. testified, “I don’t know what you want to call
it. I don’t want to talk about this shit.” Tr.1, p. 140.
See also, Tr. 1, p.142.
11 Under cross-examination, C.B. described this as “he
put something he should not have inside of me that
was his” and “[t]hen he put that inside of me.” Tr. 1,
p. 153, 154.
[C.B.] was unable to stop him because she was scared and
not strong enough. Upon further questioning, C.B. testified that
[Appellant] touched her “below her stomach” in the “front” of her
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body. She described seeing “white stuff” in that area of her body
when [Appellant] was done. She described the pain he caused as
an “8” on a scale of 0 to 10. [C.B] observed blood coming from
her body, “where she goes to the bathroom.” Tr. 1, p. 144
C.B. described a second incident that occurred at
[Appellant’s] mother’s residence. She and [Appellant] were
watching a movie on the couch. [Appellant] “sat her on his lap.”
[Appellant] undressed C.B., then himself. She described
[Appellant] doing to her the “same stuff that happened before”
with [Appellant’s] privates and the place on her body where she
goes to the bathroom. [Appellant] “grabbed her hips and stuff
and her arms” to move her body. C.B. described feeling pain and
seeing “white stuff.” [Appellant] repeatedly told C.B. not to tell
anyone, to blame the babysitter, and/or that he would kill her.
C.B. believed [Appellant’s] threats of violence because she had
witnessed his violent acts towards her mother.
The Commonwealth next called to testify M.B., C.B.’s
mother. She identified [Appellant] as C.B.’s father. M.B.
described the significant physical and emotional issues C.B.
experienced since approximately 7 1/2 years of age.
M.B. confirmed that C.B. witnessed [Appellant] assault her
in 2013. During the assault, [Appellant] threatened to kill M.B.
M.B. also confirmed [Appellant] assaulted her in 2014; C.B.
witnessed this as well. M.B. further testified regarding the initial
disclosure by C.B., implicating her babysitter in 2014, and the
resulting investigation and CAC process.
M.B. further described her daughter’s second interview with
the CAC, after C.B. disclosed to her that [Appellant] “had hurt her
really bad.” This occurred sometime in late 2016 into early 2017.
The next witness was Becky Voss. She is a forensic
interviewer at the CAC. At the time of her testimony, she had
conducted approximately 1,000 forensic interviews. She
described the physical layout of the CAC, how children are
interviewed, and the importance of her maintaining her
objectivity. Ms. Voss testified that she conducted the forensic
interview of the victim in 201412 and 2016. Ms. Voss identified
Commonwealth’s Exhibit 8 as a CD containing the audio/visual
recording of the 2014 interview of C.B. Ms. Voss also identified
Commonwealth’s Exhibit 9 as a CD containing the recording of her
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forensic interview of C.B. in 2016. These videos were played for
the jury’s consideration.
12 The 2014 CAC interview was related to the false
allegations C.B. made against her babysitter as a
result of [Appellant’s] repeated threats.
The Commonwealth next called Trooper Jeffrey Baney of the
Pennsylvania State Police. At the time of C.B.’s disclosure, he was
a criminal investigator in the Chambersburg barracks. Trp. Baney
initially investigated the allegations against the babysitter in 2014.
He ultimately closed that investigation.
After C.B.’s subsequent disclosure of allegations against
[Appellant] in 2016, Trp. Baney re-opened the investigation. Trp.
Baney testified regarding the filing of the instant charges against
[Appellant] and the extreme reaction of [Appellant] at the time he
was taken into custody. Trp. Baney also established [Appellant’s]
date of birth.
The Commonwealth’s final witness was Dr. Veronique
Valliere. Dr. Valliere is a licensed psychologist working in both the
clinical and forensic fields. She had testified in other legal
proceedings regarding counter-intuitive victim behavior. She
possessed extensive education and experience in providing
psychological treatment to both victims and perpetrators of sexual
violence. This court found her to be [an] expert in the area of
counter-intuitive victim behavior, and she was permitted to offer
her opinion in that field to the jury, consistent with 42 Pa.C.S.
§ 5920. She provided extensive education to the jury consistent
with her training, education, and experience.
[Appellant] called one witness in his defense, his mother
Connie Wright. Ms. Wright testified that she never had a couch in
her living room. She also confirmed that she never contacted the
police or the District Attorney regarding this information, despite
her son being under these charges for almost two years.
Trial Court Opinion, 7/31/19, at 4–12 (some record references omitted).
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Appellant filed a post-sentence motion challenging the sufficiency and
weight of the evidence and certain aspects of his sentence. After briefing and
limited oral argument, the trial court denied Appellant’s post-sentence motion.
This appeal followed. Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following issues for review:
I. Whether the Trial Court erred in finding sufficient evidence for
conviction for 18 § 3121[(c)] Rape of Child? (Count 1)
II. Whether the Trial Court erred in finding sufficient evidence for
conviction for 18 § 3121[(c)] Rape of Child? (Count 2)
III. Whether the Trial Court erred in finding sufficient evidence for
conviction for 18 § 6301[(a)(1)(ii)] Corruption Of Minors -
Defendant Age 18 or Above? (Count 5)
IV. Whether the Trial Court erred in finding sufficient evidence for
conviction for 18 § 6301 [(a)(1)(ii)] Corruption Of Minors -
Defendant Age 18 or Above? (Count 6)
V. Whether the Trial court erred in finding sufficient evidence for
conviction for 18 § 3126 [(a)(7)] Indecent Assault Person Less
than 13 Years of Age? (Count 7)
VI. Whether the Trial court erred in finding sufficient evidence for
conviction for 18 § 3126 [(a)(7)] Indecent Assault Person Less
than 13 Years of Age? (Count 8)
VII. Whether the Trial Court erred in finding that the conviction
for 18 § 3121 [(c)] Rape of Child was not against the weight of
the evidence? (Count 1)
VIII. Whether the Trial Court erred in finding that the conviction
for 18 § 3121 [(c)] Rape of Child was not against the weight of
the evidence? (Count 2)
IX. Whether the Trial Court erred in finding that the conviction
for 18 § 6301 [(a)(1)(ii)] Corruption Of Minors - Defendant Age
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18 or Above was not against the weight of the evidence? (Count
5)
X. Whether the Trial Court erred in finding that the conviction
for 18 § 6301 [(a)(1)(ii)] Corruption Of Minors - Defendant Age
18 or Above was not against the weight of the evidence? (Count
6)
XI. Whether the Trial Court erred in finding that the conviction
for 18 § 3126 [(a)(7)] Indecent Assault Person Less than 13 Years
of Age was not against the weight of the evidence? (Count 7)
XII. Whether the Trial Court erred in finding that the conviction
for 18 § 3126 [(a)(7)] Indecent Assault Person Less than 13 Years
of Age was not against the weight of the evidence? (Count 8)
XIII. Whether the Trial Court erred in finding that the crimes of
Indecent Assault Person Less than 13 Years of Age do not merge
into the crimes of Rape of Child for sentencing purposes?
XIV. Whether the Trial Court erred in sentencing Defendant to a
manifestly excessive sentence?
Appellant’s Brief at 4–7 (boldface type and suggested answers omitted).
Appellant’s first six issues challenge the sufficiency of the evidence to
support his convictions of rape of a child, indecent assault, and corruption of
minors. As a general matter,
our standard of review of sufficiency claims requires
that we evaluate the record in the light most favorable
to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from
the evidence. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission
thereof by the accused, beyond a reasonable doubt.
Nevertheless, the Commonwealth need not establish
guilt to a mathematical certainty. Any doubt about
the defendant’s guilt is to be resolved by the fact
finder unless the evidence is so weak and inconclusive
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that, as a matter of law, no probability of fact can be
drawn from the combined circumstances.
The Commonwealth may sustain its burden by
means of wholly circumstantial evidence.
Accordingly, [t]he fact that the evidence establishing
a defendant’s participation in a crime is circumstantial
does not preclude a conviction where the evidence
coupled with the reasonable inferences drawn
therefrom overcomes the presumption of innocence.
Significantly, we may not substitute our judgment for
that of the fact finder; thus, so long as the evidence
adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective
elements of a defendant’s crimes beyond a reasonable
doubt, the appellant's convictions will be upheld.
Commonwealth v. Sebolka, 205 A.3d 329, 336–337 (Pa. Super. 2019)
(quoting Commonwealth v. Franklin, 69 A.3d 719, 722–723 (Pa. Super.
2013) (internal quotations and citations omitted)). “[T]he jury, which passes
upon the weight and credibility of each witness’s testimony, is free to believe
all, part, or none of the evidence.” Commonwealth v. Ramtahal, 33 A.3d
602, 607 (Pa. 2011).
As a preliminary matter, we address whether Appellant has preserved
these six questions for appellate review. This Court has stated, “In order to
preserve a challenge to the sufficiency of the evidence on appeal, an
appellant’s [Pa.R.A.P.] 1925(b) statement must state with specificity the
element or elements upon which the appellant alleges that the
evidence was insufficient.” Commonwealth v. Stiles, 143 A.3d 968, 982
(Pa. Super. 2016) (quoting Commonwealth v. Garland, 63 A.3d 339, 344
(Pa. Super. 2013)) (internal quotation marks omitted; emphasis added); see
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also Pa.R.A.P. 1925(b)(4)(ii) (“The Statement shall concisely identify each
ruling or error that the appellant intends to challenge with sufficient detail to
identify all pertinent issues for the judge.”). “Such specificity is of particular
importance in cases where, as here, [A]ppellant was convicted of multiple
crimes each of which contains numerous elements that the Commonwealth
must prove beyond a reasonable doubt.” Garland, 63 A.3d at 344. Failure
to identify what specific elements the Commonwealth did not prove at trial in
a Rule 1925(b) statement renders an appellant’s sufficiency-of-the-evidence
claim waived for appellate review. See Commonwealth v. Tyack, 128 A.3d
254, 261 (Pa. Super. 2015) (finding appellant’s issues waived where “1925(b)
statement simply declared, in boilerplate fashion, that the evidence was
insufficient to support his conviction”).
Here, the issues enumerated in Appellant’s Pa.R.A.P. 1925(b) statement
mirror the generic questions outlined in his appellate brief. See Appellant’s
Pa.R.A.P. 1925(b) Statement, 7/1/19, at unnumbered 1–3.3 Appellant does
not identify any element of any conviction that was not proven beyond a
reasonable doubt. Additionally, as noted, Appellant’s “Statement of The
Question Involved” fails to specify the elements of the crimes he is challenging
____________________________________________
3 We note that Appellant’s brief violates Pa.R.A.P. 2111(a)(10) and (11) in
that it does not include a copy of either the trial court opinion or Appellant’s
Pa.R.A.P. 1925(b) statement. These documents however, were included in
Appellant’s reproduced record. Because the defects in Appellant’s brief do not
preclude our review, we do not quash the appeal.
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on appeal. Appellant’s Brief at 4–7. Consequently, Appellant’s non-specific
claims challenging the sufficiency of the evidence, which fail to state any
elements of any crimes allegedly not proven by the Commonwealth, have not
been preserved for appellate review. Tyack, 128 A.3d at 261.4 Further, even
if we were to address Appellant’s sufficiency claims, we would conclude that
the Commonwealth proved each crime beyond a reasonable doubt.
“A person commits the offense of rape of a child . . . when the person
engages in sexual intercourse with a complainant who is less than 13 years of
age.” 18 Pa.C.S. § 3121(c). Sexual intercourse, “in addition to its ordinary
meaning, includes intercourse per os or per anus, with some penetration
however slight; emission is not required.” 18 Pa.C.S. § 3101.
In the argument section of his appellate brief, Appellant claims that the
Commonwealth failed to prove the element of penetration beyond a
reasonable doubt. Appellant’s Brief at 12. Appellant contends that C.B. never
testified to penetration and that the nurse who examined C.B. stated that the
“notch” in C.B.’s hymen was not definitive evidence of sexual assault. Id.
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4 While the trial court questioned whether Appellant had preserved his
sufficiency challenges for review, see Trial Court Opinion, 7/31/19, at 13 n.13,
15 n.14, and 16 n.17, it addressed the merits of Appellant’s arguments. “We
have held that a trial court’s decision to address the topic of sufficiency is of
no moment to our analysis because we apply Pa.R.A.P. 1925(b) in a
predictable, uniform fashion, not in a selective manner dependent on an
appellee’s argument or a trial court’s choice to address an unpreserved claim.”
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (quotation
omitted).
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At trial, C.B. testified that when she and Appellant were in her parents’
bedroom, Appellant touched her with “something he shouldn’t
have . . . somewhere that he shouldn’t have.” N.T., 12/13/18, at 141. She
recalled telling CAC personnel that he used his privates “below [her] stomach”
where she went to the bathroom. Id. at 143. Further, after the contact with
Appellant, C.B. stated that she was bleeding “where I go to the bathroom.”
Id. at 144. C.B. described the second assault at Appellant’s mother’s
residence as “the same stuff that happened at my mom’s house,” and
confirmed that Appellant put his private parts where she went to the
bathroom. Id. at 147. Additionally, on cross-examination, C.B. relayed that
after Appellant took his clothes off, “he put that inside of me.” Id. at 154.
C.B. testified that she experienced pain “where she goes to the bathroom”
after each assault. Id. at 147–148. See Commonwealth v. Johnson, 180
A3d 474, 479 (Pa. Super. 2018) (victim’s testimony, if believed by the fact
finder may be sufficient to establish elements of a sexual offense).
Ms. Gossert, C.B.’s counselor, and Ms. McNew, the pediatric forensic
nurse, both testified to C.B.’s description of Appellant’s behavior. C.B.
explicitly told Ms. Gossert that Appellant put his penis in her vagina. N.T.,
12/13/18, at 41. Ms. McNew recounted that C.B. stated in her interview that
Appellant put something in her that he shouldn’t have. “His private part down
here and [C.B.] pointed to her genital area when she said, down here.” Id.
at 103.
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In sum, Appellant’s argument that there was no evidence of penetration
is belied by the facts adduced at trial. Accordingly, if we were to reach this
issue, we would conclude the Commonwealth proved beyond a reasonable
doubt that Appellant had sexual intercourse with C.B., a person under thirteen
years of age, during two separate incidents.
Appellant next argues that the evidence was insufficient to convict him
of indecent assault. Relevant to this matter, a person is guilty of indecent
assault
if the person has indecent contact with the complainant, causes
the complainant to have indecent contact with the person or
intentionally causes 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. § 3126(a)(7). Indecent contact is defined as “[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. § 3101.
In reaching its guilty verdict on the indecent assault charges, the jury
specifically found that Appellant “touch[ed] the complainant’s sexual/intimate
parts with [Appellant’s] sexual/intimate parts” and “touch[ed his]
sexual/intimate parts with the complainant’s sexual/intimate parts.” Verdict
Slip, 12/14/18, at unnumbered 1–2 (full capitalization omitted). Appellant’s
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sole contest to the jury’s verdict is that it was based upon C.B.’s testimony
was “vague at best.” Appellant’s Brief at 13.5
Again, were we to consider this imprecise claim of error, we would note
that C.B. testified that Appellant touched her with his hands and other parts
of his body when they were in her parents’ bedroom. N.T., 12/13/18, at 140.
In the second incident, C.B. revealed that Appellant moved her onto his lap,
undressed her, and moved her body, grabbing her “hips and stuff and [her]
arms.” Id. at 147. In her CAC interview, C.B. told Ms. McNew that when the
assault in her parent’s bedroom was over, “it was white, sticky and
disgusting.” Id. at 104. C.B. then detailed that during the second incident,
“[Appellant] told [her] to get undressed, sit on him and go up and down. He
stopped before the stuff went inside [her].” Id. Clearly, this evidence was
sufficient for the jury to conclude that Appellant touched C.B.’s intimate parts
with his intimate parts and Appellant touched his sexual/intimate parts with
C.B.’s sexual/intimate parts for the purpose of his sexual gratification.
Appellant also levelled a contest to the evidence supporting his
corruption of a minor convictions. In order to sustain these convictions, the
Commonwealth must prove that a person “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
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5 Appellant avers that there was a lack of proof of the elements of both
indecent contact and causing a complainant to come into contact with seminal
fluid, urine, or feces. As noted above, the jury found Appellant guilty of
indecent assault solely on the basis of his indecent contact with C.B.
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years of age. . . .” 18 Pa.C.S. § 6301 (a)(1)(ii). Appellant assails the
Commonwealth’s proof that he committed these crimes on two grounds: the
Commonwealth did not prove that Appellant was guilty of either child rape or
indecent assault and also failed to demonstrate a “course of conduct.”
Appellant’s Brief at 14. Appellant also reasons that because the alleged course
of conduct involved two acts, “one count of Corruption of Minors covered both
acts in order to satisfy the course of conduct element of the charge.
[Appellant] has been convicted and sentenced for the same crime twice in the
same trial.” Appellant’s Brief at 15.
We would not have found merit to any of these arguments. First, as
discussed above, the Commonwealth proved both the child rape and indecent
assault offenses beyond a reasonable doubt. Second, Appellant’s assertion
that the Commonwealth failed to prove a course of conduct by citation to
Commonwealth v. Kelly, 102 A.3d 1025 (Pa. Super. 2014), is unavailing.
In Kelly, this Court held that the phrase “‘course of conduct’” in the first
provision of subsection (a)(1)(ii) imposes a requirement of multiple acts over
time” and rejected the Commonwealth’s contention that “‘course of conduct’
could encompass a single act that gives rise to a Chapter 31 offense.” Id. at
1031–1032. Here, C.B. testified that Appellant sexually assaulted her on two
separate occasions at two different locations. The evidence of Appellant’s
course of conduct was sufficient to sustain the corruption of a minor
convictions.
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Finally, we note that Appellant cites no legal authority for his theory that
he was convicted of two counts of corruption of minors for one act. As we
understand Appellant’s argument, he asserts that because proof of a course
of conduct is a required element for a conviction of this offense, the two acts
underlying his convictions and establishing the course of conduct amount to
only a singular corruption of minors offense. Because Appellant did not raise
this issue in his 1925(b) statement, we decline to further discuss this
allegation and note only that the two counts of corruption were based upon
two distinct acts.
Appellant’s next six allegations of error assert that all of his convictions
were against the weight of the evidence. We employ the following standard
of review when presented with a weight of the evidence claim:
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
Commonwealth v. McClelland, 204 A.3d 436, 447 (Pa. Super. 2019)
(quoting Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013)).
Appellant’s weight of the evidence arguments suffer from the same
deficiencies as his sufficiency of the evidence claims. Therefore, Appellant has
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waived review of these issues. See Commonwealth v. Siebert, 799 A.2d
54, 62 (Pa. Super. 2002) (Appellant’s 1925(b) statement alleging merely that
the verdict of the jury was against the weight of the credible was too vague
to permit review).
In Appellant’s post-sentence motion, he baldly asserted that the guilty
verdicts were against the weight of the evidence. Appellant’s Post-Sentence
Motion, 1/11/19, at unnumbered 4–5. In the brief in support of his motion,
Appellant conflates his sufficiency and weight challenges. Indeed, Appellant
duplicated exactly the sufficiency language to support his weight argument.
Appellant’s Brief in Support of Post-Sentence Motion, 3/29/19, at unnumbered
2–6. Appellant’s failure to articulate a reviewable weight of the evidence issue
is further demonstrated in his Pa.R.A.P. 1925(b) statement, wherein he
averred simply that “the trial court erred in finding that his [convictions] were
not against the weight of the evidence.” Appellant’s 1925(b) Statement, at
unnumbered 1–3. Appellant does not identify any evidence he believes was
entitled to greater or lesser weight. Further, Appellant’s “Statement of The
Question Involved” echoes the unformulated contest to the weight of the
evidence. See Appellant’s Brief at 5–6.
The trial court, while again remarking on the likelihood of waiver,
surmised from Appellant’s Brief in Support of Post-Sentence Motion that
Appellant’s weight argument concerned the evidence of penetration. As with
his sufficiency argument, Appellant essentially assailed the credibility of C.B.’s
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testimony in this regard and highlighted Ms. McNew’s declaration that she
could not state definitely that the notch in C.B.’s hymen was caused by a
sexual assault. The trial court addressed the issue weight as follows:
All of this evidence [concerning penetration] was presented to and
considered by the jury; none of it rises to the level of shocking
this court’s conscience and certainly does not lead us to conclude
a manifest injustice will occur if [Appellant] is not granted a new
trial. To do so would require this court [to] ignore the significant
contrary direct and circumstantial evidence establishing
[Appellant] raped his daughter on two different occasions.
Trial Court Opinion, 7/31/19, at 19.
If we were to review Appellant’s weight of the evidence claims, we would
agree with the trial court’s analysis. In accordance with our standard of review
for such an evidentiary challenge, we consider whether the trial court palpably
abused its discretion in dismissing Appellant’s weight of the evidence claims.
We conclude it did not and, therefore, shall not disturb its ruling.6
____________________________________________
6 In his appellate brief, Appellant, for the first time, suggests that his mother’s
testimony that she never had a couch in her living room was credible and,
when contrasted to C.B.’s “vague testimony,” indicated that the evidence
supporting the guilty verdicts of child rape and indecent assault was “weak
and inconclusive.” Appellant’s Brief at 17–18. Because Appellant raises new
legal arguments for the first time on appeal, this weight claim is waived. See
Commonwealth v. Jones, 191 A.3d 830, 835 (Pa. Super. 2018) (stating that
“since Appellant failed to raise his particular new weight theories before the
trial court and the trial court did not, therefore, review the new theories and
weigh the evidence according to it, there is no discretion for this Court to
review.”).
Additionally, Appellant’s theory that the weight of the evidence suggests that
he was wrongly convicted of two counts of corruption of minors for one act is
a rehash of his challenge to the sufficiency of the evidence to convict him of
those charges. Again, we decline to address this allegation of error.
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Appellant’s final two issues concern his sentence. First, Appellant
asserts that the sentencing court erred by failing to merge the convictions of
rape of a child and indecent assault for sentencing purposes.
Whether Appellant’s crimes should have merged for sentencing
implicates the legality of sentencing, not its discretionary aspects. Unlike the
discretionary aspects of sentencing, a challenge to the legality of sentence is
not subject to waiver and may be raised at any time. Commonwealth v.
Kitchen, 814 A.2d 209, 214 (Pa. Super. 2002). Our standard of review is de
novo, and our scope of review is plenary. Commonwealth v. Sarvey, 199
A.3d 436, 447–448 (Pa. Super. 2018).
The statute governing merger of sentences 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.
42 Pa.C.S. § 9765. 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. Brown, 159 A.3d 531, 532–533
(Pa. Super. 2017) (quoting Commonwealth v. Baldwin, 985 A.2d 830, 833
(Pa. 2009)).
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The trial court dismissed Appellant’s merger claim based upon the
following rationale:
Rape of a Child requires the Commonwealth to prove
[Appellant] engaged in sexual intercourse with the victim who, at
the time, was less than 13 years of age. See 18 Pa.C.S. §3121
(c). Indecent Assault of a Child requires the Commonwealth to
prove [Appellant] had “indecent contact” with the victim, or
caused her to have indecent contact with him, at a time when she
was less than 13 years of age. See 18 Pa.C.S. §3126(a)(7).
“Indecent contact” is defined as, “any touching of the sexual or
other intimate parts of the person for the purpose of arousing or
gratifying sexual desire, in any person.” See 18 Pa.C.S. § 3101
(relating to Definitions). It is clear that each of these offenses
contain an element the other does not.
Rape of a Child requires proof of “sexual intercourse.”
Indecent Assault of a Child does not require proof of “sexual
intercourse.” Indecent Assault of a Child requires “indecent
contact,” which necessitates proof that the contact was for the
purpose of arousing or gratifying sexual desire in any person.
Rape of a Child does not require proof that the purpose is to
arouse or gratify sexual desire in any person. Since each crime
requires proof of an element the other does not, 42 Pa.C.S. § 9765
prohibits merger for one sentence.
Trial Court Opinion, 7/31/19, at 20–21.
Appellant contends that the rape of a child and indecent assault
convictions merge for sentencing because “[f]or each count only a single act
of sexual intercourse was alleged. The elements of indecent contact with a
complainant less than 13 years of age are included within the elements of rape
of a child.” Appellant’s Brief at 21. Appellant, however, offers no comparison
of the elements of the respective crimes.
In Commonwealth v. Allen, 856 A.2d 1251 (Pa. Super. 2004), this
Court examined whether the offenses of indecent assault and aggravated
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indecent assault were greater and lesser-included offenses, and, if so, whether
they merged for sentencing. We concluded that the offenses were not greater
and lesser-included offenses, reasoning:
Aggravated indecent assault is defined as penetration,
however slight, of the genitals or anus of the victim with a part of
the offender’s body for any purpose other than good faith medical,
hygienic, or law enforcement procedures if the victim is less than
13 years of age. 18 Pa.C.S.A. § 3125. Indecent assault is defined
as indecent contact with the victim if the victim is less than 13
years of age. 18 Pa.C.S.A. § 3126. 18 Pa.C.S.A. § 3101 defines
“indecent contact” as any touching of the sexual or other intimate
parts of the victim for the purpose of arousing or gratifying sexual
desire in either person.
Aggravated indecent assault includes an element that is not
required to commit indecent assault. That element is penetration
of the genitals or anus of the victim. Indecent assault includes an
element that is not required to commit aggravated indecent
assault. That element is proof of arousing or gratifying sexual
desire.
Since each crime has an additional element not included in
the other crime, neither is a lesser-included offense of the other.
Allen, 856 A.2d at 1253–1254.
Relying on Allen, we agree with the trial court’s disposition of the
merger issue.7 While the convictions for rape of a child and indecent assault
____________________________________________
7 We are cognizant of contrary authority. In Commonwealth v. Lomax, 8
A.3d 1264 (Pa. Super. 2010), this Court concluded that when convictions for
rape of a child and indecent assault were founded on a single set of facts, the
convictions should merge for sentencing. Id. at 1268. In reaching this
conclusion, the Lomax Court observed, “the sexual intercourse element of
rape of a child was based on the touching of Appellant’s and [the victim’s]
genitals. Meanwhile, indecent assault was founded on Appellant’s indecent
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were grounded in the same facts, all of the statutory elements of rape of a
child are not included in the statutory elements indecent assault. Rape of a
child requires proof of sexual intercourse, i.e., some penetration, indecent
assault does not. Indecent assault compels proof that the purpose of the
contact was for sexual gratification, rape of a child has no such component.
Merger of these convictions for sentencing purposes, therefore, is
unwarranted under 42 Pa.C.S. § 9765. Appellant is not entitled to relief on -
this claim.
Appellant also avers in his appellate brief that he cannot be convicted
and sentenced on both corruption of minors offenses. This was not an issue
raised in either Appellant’s post-sentence motion, Rule 1925(b) statement, or
included in the Statement of Questions Presented portion of his brief.
However, as the issue appears to implicate the legality of his sentence, we will
briefly entertain this argument.
As discussed above, Appellant failed to cite any legal authority to
support his theory that a finding of a course of conduct necessitates a
conclusion that he could not be convicted of multiple corruption offenses. We
____________________________________________
contact with, or “touching of the sexual . . . parts” of [victim]. There are no
additional elements required to satisfy either crime.” Id.
The Lomax Court did not discuss either the penetration element required
for a rape of a child conviction, but not an element of proof of an indecent
assault, or the sexual gratification element required for the indecent assault
conviction, but not an element of proof for rape of a child. Therefore, we do
not find Lomax persuasive in the matter sub judice.
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dismiss this argument as specious, again noting that the two corruption of
minors charges were premised on two distinct incidents.
Appellant’s final claim of error is that the sentencing court imposed a
manifestly excessive sentence. As such, Appellant is challenging the
discretionary aspects of his sentence. See Commonwealth v. Lutes, 793
A.2d 949, 964 (Pa. Super. 2002) (stating claim that sentence is manifestly
excessive challenges discretionary aspects of sentencing). Additionally, the
claim that a sentence is excessive because sentences were imposed
consecutively challenges the discretionary aspects of sentence. See
Commonwealth v. Gonzalez-Dejusus, 994 A.2d 595, 598 (Pa. Super.
2010) (finding claim that aggregate sentence involving imposition of
consecutive sentences was excessive challenged discretionary aspects of
sentencing).
When reaching the merits of a discretionary sentencing issue, we
conduct a four-part analysis to determine:
(1) whether appellant has filed a timely notice of appeal, Pa.R.A.P.
902, 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
Pa.R.Crim.P. 720 [and 708(E)], (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. Cook, 941 A.2d 7, 11 (Pa. Super. 2007) (citation
omitted).
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Appellant has satisfied the first two requirements. Appellant, however,
has failed to include a Rule 2119(f) statement in his brief. This failure
statement does not automatically waive an appellant’s argument; we are
precluded from reaching the merits of the claim when the Commonwealth
lodges an objection to the omission of the statement. Commonwealth v.
Love, 896 A.2d 1276, 1287 (Pa. Super. 2006). Instantly, we decline to find
waiver based on Appellant’s omission of a Rule 2119(f) statement because the
Commonwealth did not object to the omission.
Thus, we must determine whether Appellant has presented a substantial
question that his sentence is inappropriate under the Sentencing Code. We
have outlined the following guidelines to determine whether an appellant has
identified a substantial question:
The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. A substantial
question exists only when the appellant advances a colorable
argument that the sentencing judge’s actions were either: (1)
inconsistent with a specific provision of the Sentencing Code; or
(2) contrary to the fundamental norms which underlie the
sentencing process.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
omitted).
Appellant acknowledges that minimum term of forty-four years of
confinement for the two rape convictions was within the standard guideline
range. He also concedes that the sentencing court considered all of the 42
Pa.C.S. § 9721(b) factors set forth in imposing his sentence. Appellant’s
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excessiveness claim is thus reasoned by the following: he is thirty-nine years
old, the minimum sentence is “essentially a life sentence” and “manifestly
excessive in the specific circumstances of this case.” Appellant’s Brief at 22.
In Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013) we
explained:
[A] defendant may raise a substantial question where he
receives consecutive sentences within the guideline ranges if the
case involves circumstances where the application of the
guidelines would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of excessiveness due
to the consecutive nature of a sentence will not raise a substantial
question. See Commonwealth v. Moury, 992 A.2d [at 171–
172] (“The imposition of consecutive, rather than concurrent,
sentences may raise a substantial question 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.”).
Dodge, 77 A.3d at 1270 (emphasis in original) (citations omitted). We
cautioned, however, that a defendant does not raise a substantial question
“where the facts of the case [being reviewed] do not warrant the conclusion
that there is a plausible argument that the sentence is prima facie excessive
based on the criminal conduct involved.” Id. at 1271.
Appellant herein has failed to advance a credible argument that this case
involves circumstances where the imposition of consecutive sentences was
disproportionate to the criminal conduct at issue. Without specification, he
alleges that his sentence was excessive given the specific facts of the case.
Appellant completely ignores the disturbing and heinous record facts,
including C.B.’s young age, her biological relationship to Appellant, C.B.’s
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resultant serious psychological issues, and Appellant’s threats to kill C.B. if
she reported the assaults. Consequently, having failed to raise a substantial
question, a review of the merits of Appellant’s challenge to the discretionary
aspects of his sentence is unwarranted, and the trial court’s judgment of
sentence is affirmed.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date:01/28/2020
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