Com. v. Blevins, M. ( 2020 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK ALLEN BLEVINS :
:
Appellant : No. 1060 EDA 2019
Appeal from the Judgment of Sentence Entered January 31, 2019
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000079-2018
BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY BOWES, J.: Filed: March 20, 2020
Mark Allen Blevins appeals from the January 31, 2019 judgment of
sentence imposed following his convictions for aggravated indecent assault of
a child, criminal attempt—aggravated indecent assault, unlawful restraint of a
minor, corruption of minors, indecent assault—complainant less than thirteen,
and indecent exposure. We affirm.
Appellant’s convictions relate to a series of sexual assaults he committed
upon a minor child (the “victim”) over an indeterminate period of time
between January 2016 and November 2017. Appellant was a close friend and
neighbor of the victim’s family, and the victim spent significant amounts of
time in Appellant’s home during this time period. After the victim’s family
moved away from the immediate area, the victim disclosed that Appellant had
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* Retired Senior Judge assigned to the Superior Court.
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utilized these family visits as an opportunity to sexually assault her on multiple
occasions. Specifically, the victim alleged that Appellant (1) touched and
digitally penetrated her vagina; (2) exposed his penis to her; and (3)
unsuccessfully compelled her to touch his penis.
Appellant was convicted at a jury trial, and was sentenced to an
aggregate period of incarceration of 159 months to 360 months at all counts.
On January 31, 2019, after evaluation by a member of the Sexual Offenders
Assessment Board (“SOAB”) and a hearing, the trial court adjudged Appellant
to be a sexually violent predator (“SVP”). Appellant filed post-trial motions
preserving the claims raised in this appeal, which were denied by the trial
court. Appellant filed a timely notice of appeal. Thereafter, the trial court
directed Appellant to file a concise statement of errors pursuant to Pa.R.A.P.
1925(b), Appellant timely complied, and the trial court filed a Rule 1925(a)
opinion.
Appellant has raised the following claims for our disposition:
1. Whether the Commonwealth sustained its burden of proof
beyond a reasonable doubt relative to the charges for which
[Appellant] was convicted?
2. Whether the sentence imposed by the trial court was excessive
and utterly harsh and oppressive?
3. Whether the Commonwealth sustained its burden of proof by
clear and convincing evidence that [Appellant] is a sexually violent
predator?
Appellant’s brief at 8.
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As styled, Appellant purports to challenge the sufficiency of all of the
elements of his underlying convictions. However, the arguments as presented
in his brief are confined to allegations that the Commonwealth failed to adduce
sufficient evidence of: (1) the date and time of the offenses, generally, see
Appellant’s brief at 19-20; (2) “penetration” as to aggravated indecent assault
of a child, id. at 17, 20; (3) “restraint” with respect to unlawful restraint of a
minor, id. at 18; (4) likelihood of corruption as to corruption of a minor, id.
at 18-19; and (5) likelihood to offend with respect to indecent exposure. Id.
at 19. We will address these claims seriatim.1
Our Supreme Court has discussed our standard and scope of review in
this context as follows: “[W]ith respect to our sufficiency review, our standard
of review is de novo, however, our scope of review is limited to considering
the evidence of record, and all reasonable inferences arising therefrom,
viewed in the light most favorable to the Commonwealth as the verdict
winner.” Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). We
also note at the outset that “the Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt relying wholly
on circumstantial evidence,” and that “[b]oth direct and circumstantial
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1 To the extent that Appellant seeks to advance other sufficiency arguments,
those claims are waived pursuant to Pa.R.A.P. 2119(a). See Commonwealth
v. Kearney, 92 A.3d 51, 66-67 (Pa.Super. 2014) (holding issue waived under
Rule 2119(a) where “Appellant fails to develop an argument in support of his
claim, or to provide pertinent citation to authority”).
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evidence must be considered equally when assessing the sufficiency of the
evidence.” Commonwealth v. Davalos, 779 A.2d 1190, 1193 (Pa.Super.
2001). Finally, “any doubt about the defendant’s guilt is to be resolved by the
fact[-]finder unless the evidence is so weak and inconclusive that, as a matter
of law, no probability of fact can be drawn from the combined circumstances.”
Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016).
Much of the evidence presented by the Commonwealth in this case
revolved around the averments of the victim, including an in-camera interview
with Tina Green of the Northeastern Pennsylvania Children’s Advocacy Center
(“CAC”) and her direct testimony at trial. Direct testimony was also adduced
from the victim’s mother, Appellant, and Appellant’s wife. The Commonwealth
also presented expert testimony from Ann Cook, a clinical social worker who
was not personally involved in the case, and Dr. Marla Farrell, the pediatrician
who examined the victim as part of her assessment at the CAC.
Appellant’s first sufficiency claim alleges that the Commonwealth did not
offer enough evidence of the chronological specifics of the at-issue sexual
assaults. See Appellant’s brief at 19 (“[T]here is little, if any, definition of
time, date, place, month or year relative to any of the charges and the proof
necessary for conviction.”). On this point, Appellant cites precedent wherein
our Supreme Court has held that a failure of the Commonwealth to situate the
date of an alleged crime with “reasonable certainty” can create due process
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concerns by hamstringing a defendant’s ability to prepare a defense. See
Commonwealth v. Devlin, 333 A.2d 508, 513-16 (Pa. 1975).
In applying Devlin, this Court has explicitly stated that “for purposes of
a Devlin claim, the Commonwealth must be allowed a reasonable measure of
flexibility when faced with the special difficulties involved in ascertaining the
date of an assault upon a young child.” Commonwealth v. Groff, 548 A.2d
1237, 1242 (Pa.Super. 1988). Furthermore, this Court provides the
Commonwealth even greater license in this respect when it is dealing with
ongoing offenses that occur over a long period of time. Id. (“[T]he
Commonwealth must be afforded broad latitude when attempting to fix the
date of offenses which involve a continuous course of criminal conduct.”). As
Appellant’s own brief acknowledges, a child victimized in this fashion cannot
be expected to remember each and every date upon which she was victimized,
particularly where the events are numerous and occur over an extended
period of time. See Commonwealth v. Niemetz, 422 A.3d 1369, 1373
(Pa.Super. 1980) (“[W]e do not believe that it would serve the ends of justice
to permit a person to . . . sexually abuse [a] child with impunity simply
because the child has failed to record in a daily diary the unfortunate details
of her childhood.”); see also Appellant’s brief at 17.
Viewing the temporal evidence and allegations presented by the
Commonwealth through this deferential lens, Appellant’s claim is meritless.
The Commonwealth consistently provided Appellant with a discrete time frame
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in which the sexual assaults were alleged to have occurred, namely, between
January 2016 and November 2017. See Criminal Complaint, 1/3/18, at
unnumbered 2-3; see also Information, 4/3/18, at unnumbered 1-3. This
range corresponds with the victim’s testimony, which indicates that she was
subjected to repeated assaults by Appellant during this same time period. See
N.T. Trial, 11/6/18, at 60-69; see also N.T. Interview, 12/4/17, at 15-16, 40-
41. The Commonwealth also offered expert testimony from Ms. Cook,
explaining that children as young as the victim have a diminished
understanding of time, meaning that disclosures such as these are often not
precise. See N.T. Trial, 11/6/18, at 102-03. Furthermore, the witnesses
presented by both the Commonwealth and Appellant focused their testimony
on the same time period described by the victim. Id. at 162-63; see also
N.T. Trial, 11/7/18, at 20-35, 41-44, 58-68, 83.
Critically, Appellant has failed to demonstrate how the alleged lack of
specificity in the Commonwealth’s allegations prejudiced his ability to defend
himself. In light of the particular circumstances of this case, the evidence
discussed above was sufficient to provide a reasonably certain time frame to
permit Appellant to prepare a defense. Accord Groff, supra at 1242;
Niemetz, supra at 1373. No relief is due on this claim.
Appellant’s second sufficiency argument concerns his conviction for
aggravated indecent assault of a child. See 18 Pa.C.S. § 3125(b). A person
violates this statute when he engages in “penetration, however slight, of the
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genitals or anus of a complainant with a part of the person’s body for any
purpose other than good faith medical, hygienic or law enforcement
procedures” where the complainant is younger than 13 years of age. See 18
Pa.C.S. § 3125(b). Specifically, Appellant avers that the Commonwealth failed
to demonstrate that the victim was “penetrated” as defined by the statute.
The definition of indecent aggravated assault of a child requires that
“penetration, however slight” occur. 18 Pa.C.S. § 3125(b). This Court has
held that the “uncorroborated testimony of a prosecution witness” is sufficient
to establish that penetration occurred. Commonwealth v. Ziegler, 550 A.2d
567, 569 (Pa.Super. 1988), abrogated on separate grounds Commonwealth
v. Goggins, 748 A.2d 721, (Pa.Super. 2000 “[L]ike any element of an offense,
penetration can be proven with circumstantial evidence.” Id.The Commonwealth initially addressed this element of aggravated
indecent assault at trial by presenting expert testimony from Dr. Farrell, who
testified that children as young as the victim have an imperfect understanding
of the mechanics of sexual contact. See N.T. Trial, 11/6/18, at 148-49 (“It is
a very difficult concept for a little girl . . . to understand, because children of
[the victim’s] age are sexually naïve. They have no sexual experience. So,
the concept of penetration is something they . . . have no basis of
understanding for.”). Dr. Farrell testified that children of the victim’s age will
often alternatively describe penetration as pain, or feeling like they need to
“use the bathroom.” Id. at 149-50. Farrell also testified regarding his
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physical examination of the victim. Id. at 145-50, 155. During the exam, Dr.
Farrell stated that the victim’s responses to his questions indicated Appellant
had penetrated her labia during at least one of the assaults. Id. at 146.
Thereafter, the victim testified both in-camera and at trial that Appellant
used his fingers to “hurt” her vagina, and that he was trying to “get in.” See
N.T. Interview, 12/4/17, at 35-36; see also N.T. Trial, 11/6/18, at 59. She
also testified that the assaults made her feel like she “had to go to the
bathroom.”2 See N.T. Interview, 12/4/17, at 29-30. Although the victim
never directly testified that Appellant had engaged in “penetration,” her
testimony was consistent with Dr. Farrell’s expert opinions regarding the
inability of children as young as the victim to grasp that concept.
Furthermore, Dr. Farrell testified that the victim’s responses during the
physical examination were indicative of a slight penetration of the labia having
occurred. “It is clearly established that there is no requirement that
penetration reach the vagina, or farther reaches of the female genitalia.”
Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa.Super. 1992). Rather, our
case law indicates that “entrance in the labia is sufficient” to establish
“penetration, however slight.” Commonwealth v. Ortiz, 457 A.2d 559, 560-
61 (Pa.Super. 1983).
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2 The victim’s mother similarly testified that the victim told her that Appellant
would “press really hard” on her genitals during the assaults, which made the
victim feel like she “had to pee.” See N.T. Trial, 11/6/18, at 169, 204.
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Giving the Commonwealth every benefit of doubt, we conclude that this
evidence was sufficient to permit a “reasonable inference” that Appellant
engaged in “slight” penetration of the victim’s genitals within the meaning of
§ 3125(b). Thus, Appellant’s second sufficiency claim fails.
Appellant’s third argument sounding in sufficiency asserts that the
Commonwealth failed to produce sufficient evidence that Appellant
“restrained” the victim under the meaning of 18 Pa.C.S. § 2902 (providing
that a person violates this statute by restraining a minor who is not their child
“in circumstances exposing him to risk of serious bodily injury”). While
Appellant claims that the Commonwealth did not provide any evidence of
restraint, this argument is belied by the victim’s testimony during her in-
camera interview that Appellant would hold her down with one hand, while
assaulting her with his other hand. See N.T. Interview, 12/4/17, at 20, 23
(the victim testifying that Appellant held her down and would not let her
leave). As such, this claim is without merit.
Appellant has also challenged his conviction for corruption of a minor,
arguing that the Commonwealth did not sufficiently demonstrate that his
actions corrupted the victim’s morals. See 18 Pa.C.S. § 6301(a)(1)(ii)
(providing that anyone 18 years or older violates this statute when he engages
in “any course of conduct” that “corrupts or tends to corrupt the morals of any
minor less than 18 years of age”). In this context, “[a]ctions that tend to
corrupt the morals of a minor are those that ‘would offend the common sense
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of the community and the sense of decency, propriety and morality which
most people entertain.’” Commonwealth v. Snyder, 870 A.2d 336, 351
(Pa.Super. 2005) (quoting Commonwealth v. DeWalt, 752 A.2d 915, 918
(Pa.Super. 2000)).
This Court has repeatedly held that the Commonwealth presents
sufficient evidence of corruption of minors where there is evidence that the
defendant sexually assaults the minor. See Commonwealth v. Leatherby,
116 A.3d 73, 82 (Pa.Super. 2015) (finding sufficient evidence of corruption of
minor where the Commonwealth presented evidence “demonstrating
extensive physical, sexual, and emotional abuse”); see also Commonwealth
v. Miller, 657 A.2d 946, 949 (Pa.Super. 1995) (finding sufficient evidence of
corruption of minor where “the Commonwealth presented evidence that
appellant improperly fondled victim on a regular basis for approximately one
year”). Instantly, the Commonwealth adduced evidence that Appellant
sexually assaulted the victim numerous times over a nearly two-year period.
This evidence was sufficient to establish a likelihood of corruption under
§ 6301, and Appellant’s sufficiency challenge is meritless.
Appellant’s final sufficiency challenge asserts that the Commonwealth
did not adequately establish that exposing his penis to the victim was “likely
to offend, affront, or alarm” pursuant to 18 Pa.C.S. § 3127(a) (“Indecent
exposure.”). Instantly, the victim testified that Appellant showed her his
exposed penis and implored her to touch it on at least one occasion. See N.T.
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Interview, 12/4/17, at 30-31; see also N.T. Trial, 11/6/18, at 62-63. This
Court has held that such evidence is sufficient to support a conviction for
indecent exposure. See Commonwealth v. Bishop, 742 A.2d 178, 190
(Pa.Super. 1999) (holding evidence that the defendant exposed his penis and
encouraged minor child to touch it supported conviction for indecent
exposure). As such, Appellant’s claim must fail. Id.In his next issue, Appellant asserts that the sentence imposed by the
trial court was “utterly harsh and oppressive.” Appellant’s brief at 22. In
particular, Appellant claims that the trial court’s use of consecutive sentence
terms for multiple convictions has resulted in an excessive sentence. Id. This
issue implicates the discretionary aspects of Appellant’s sentence. See
Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010).
It is well-settled that, with regard to the discretionary aspects of
sentencing, there is no automatic right to appeal. Id. Rather, a petitioner
must invoke the jurisdiction of this Court by: (1) filing a timely notice of
appeal; (2) preserving the issue at sentencing or in a post-sentence motion;
(3) including a statement of reasons in their brief pursuant to Pa.R.A.P.
2119(f); and (4) presenting a “substantial question” that the sentence
appealed from is inappropriate under the Pennsylvania Sentencing Code. Id.Instantly, Appellant submitted a timely notice of appeal and properly
preserved his sentencing challenge before the trial court. Appellant has not
attached a Rule 2119(f) statement to his brief, but the Commonwealth has
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not objected to this oversight. Therefore, we may continue with our
assessment of the merits of Appellant’s claim. See Commonwealth v.
Wilson, 829 A.2d 1194, 1198 n.4 (Pa.Super. 2003) (citing Commonwealth
v. Medley, 725 A.2d 1225, 1228 n.8 (Pa.Super. 2003)).
Even overlooking Appellant’s failure to include a Rule 2119(f) statement
in his brief, we conclude that Appellant has not raised a substantial question.
As a general matter, “[t]he imposition of consecutive as opposed to concurrent
sentences is solely within the discretion of the trial court, and does not in and
of itself even rise to the level of a substantial question.” Commonwealth v.
Johnson, 873 A.2d 704, 709 (Pa.Super. 2005). Instantly, Appellant’s
arguments allege that the imposition of consecutive sentences has rendered
Appellant’s sentence excessive, without any other supporting factual or legal
argument. See Appellant’s brief at 22-24. Thus, this claim fails. See
Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013) (“[A] bald
claim of excessiveness due to the consecutive nature of a sentence will not
raise a substantial question.”).
Appellant’s final claim challenges the trial court’s determination that
Appellant is an SVP. Appellant’s discussion of this issue is truncated, spanning
a mere half-page and with only a single citation to legal authorities. See
Appellant’s brief at 25. In relevant part, Appellant argues that: (1) Appellant
should not have been determined to be an SVP pursuant to the factors listed
at 42 Pa.C.S. § 9799.58(b)(1); and (2) the trial court’s determination violated
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Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2018), which found
that the SVP determination process utilized under Pennsylvania’s Sexual
Offender Registration and Notification Act (“SORNA I”) was unconstitutional.
See 42 Pa.C.S. § 9799.24.
Appellant’s first allegation concerns the fourteen factors listed at
§ 9799.58(b)(1), which are considered as part of the SVP determination
process that our General Assembly has adopted to replace that promulgated
under SORNA I. The SOAB member that assessed him concluded that seven
of the fourteen factors augured in favor of determining that Appellant was an
SVP. See N.T. Sentencing, 1/31/19, at 17-21. Appellant’s argument
mistakenly asserts that there were more “negative” findings than “positive”
findings. This is simply not accurate based on our review of the transcript.3
This factual discrepancy, alone, is fatal to this claim.
Even assuming, arguendo, that Appellant’s assessment had concluded
that more findings were “negative” than “positive,” this claim would still be
without merit. Appellant’s argument mistakenly characterizes these fourteen
factors as the only relevant point of inquiry in SVP determinations. However,
the statute explicitly provides that an SVP assessment “shall include, but not
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3 We note that the SOAB member incorrectly conceded during his testimony
that Appellant’s assessment contained more “negative” than “positive”
findings of SVP status. See N.T. Sentencing, 1/31/19, at 21-22. However,
reviewing the SOAB member’s testimony in totality, she stated that the factors
at 42 Pa.C.S. §§ 9799.58(b)(1)(iii)-(v), (vii), (3)(i), (iii)-(iv), supported
finding that Appellant constitutes an SVP. Id. at 18-22.
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be limited to” the aforementioned factors. 42 Pa.C.S. § 9799.58(b)
(emphasis added). Furthermore, 42 Pa.C.S. § 9799.58(b)(4) also permits an
assessor to include other, unspecified “[f]actors that are supported in a sexual
offender assessment field as criteria reasonably related to the risk of
reoffense." Appellant’s argument is predicated upon a fundamental
misunderstanding of SVP determinations. See N.T. Sentencing, 1/31/19, at
21 (SOAB member testifying that: “We don’t add up the factors for this.
[W]hat we look at with each of the factors is how it does relate to that mental
abnormality or personality disorder. So, it’s not a totality of the factors.”).
No relief is due on this claim.
In his final claim, Appellant has challenged his SVP determination
pursuant to this Court’s holding in Butler. Appellant’s entire argument on
this point spans just two sentences and immediately follows Appellant’s
discussion concerning the § 9799.58(b) factors: “Added to that contention is
this Court’s determination in [Butler]. The SVP determination should not be
allowed to stand.” Appellant’s brief at 25. This argument is woefully deficient,
and does not discuss any of the relevant legal issues attendant to such a
complex, constitutional claim for relief.
This Court’s holding in Butler was made with respect to the SVP
determination process included as part of SORNA I, and relied explicitly upon
the Supreme Court’s holding in Commonwealth v. Muniz, 164 A.3d 1189,
1193 (Pa. 2017), wherein SORNA I was found to be “punitive” pursuant to the
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seven-factor test set forth by the U.S. Supreme Court in Kennedy v.
Mendoza-Martinez, 372 U.S. 144 (1963). Applying Muniz in conjunction
with Alleyne v. U.S., 570 U.S. 99, 104 (2013) (“Any fact that, by law,
increases the penalty for a crime that is an ‘element’ that must be submitted
to the jury and found beyond a reasonable doubt.”), we concluded that
SORNA’s SVP determination process was unconstitutional because “it
increases the criminal penalty to which a defendant is exposed without the
chosen fact-finder making the necessary factual findings beyond a reasonable
doubt.” Butler, supra at 1218.
We discern that Appellant is attempting to directly extrapolate the
holding in Butler to the present circumstances, without any relevant
explanation or argument. Ultimately, Appellant’s brevity is his undoing. As
noted above, the General Assembly has adopted a new statutory scheme to
replace SORNA I and respond to the concerns identified in both Muniz and
Butler. See 42 Pa.C.S. §§ 9799.10, et al. (“SORNA II”). Appellant does not
acknowledge this material statutory change, nor has he applied the Mendoza-
Martinez factors to ascertain whether SORNA II is punitive.
This Court has held that a defendant waives their arguments concerning
the SVP determination process under SORNA II where “he fails to provide any
discussion, whatsoever, concerning the alterations made by the General
Assembly in crafting SORNA II in response to Muniz and Butler.”
Commonwealth v. Cosby, ___ A.3d ___, 2019 PA Super 354, at 45
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(Pa.Super. 2019). “This omission is fatal under [Pa.R.A.P.] 2119, as the
discussion of such changes is critical to any pertinent analysis of whether
SORNA II’s SVP provisions are punitive and, thus, subject to state and federal
prohibitions of ex post facto laws.” Id. Appellant has waived this claim for
want of development and discussion. See Pa.R.A.P. 2119(a).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/20/2020
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