Com. v. Hunter, C. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES J. HUNTER :
:
Appellant : No. 53 WDA 2023
Appeal from the Judgment of Sentence Entered July 25, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0004010-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CHARLES HUNTER :
:
Appellant : No. 98 WDA 2023
Appeal from the Judgment of Sentence Entered July 15, 2022
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0004012-2018
BEFORE: BOWES, J., OLSON, J., and KING, J.
MEMORANDUM BY OLSON, J.: FILED: December 27, 2023
Appellant, Charles J. Hunter, appeals from the judgment of sentence
entered on July 25, 2022, following his jury trial convictions for multiple sexual
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offenses and related crimes committed against a five-year-old male.1 We
affirm.
We briefly set forth the facts and procedural history of this case as
follows. In August 2018, a woman who was dating Appellant at the time,
Amanda Smith, discovered a video of Appellant’s co-defendant, Kinzey,
performing oral sex on a minor child, Kinzey’s biological son. Smith forwarded
the video to Appellant’s mother who then reported it to the police. Police
investigated and subsequently executed a search warrant at Kinzey’s
residence, while Appellant was present. Appellant tried to hide his cellular
telephone; however, the police recovered it along with Kinzey’s cellular
telephone. The police performed a forensic extraction of text messages and
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1 Appellant was charged and convicted in two separate cases which were
consolidated for trial. Corby Jo Kinzey, Appellant’s former girlfriend and
mother of the victim, was tried as co-defendant. At trial court docket number
CP-65-CR-0004010-2018, the conviction and sentence challenged at Superior
Court docket 53 WDA 2023, a jury found Appellant guilty of three counts of
involuntary deviate sexual intercourse (IDSI) with a child pursuant to 18
Pa.C.S.A. § 3123(b). The trial court dismissed a fourth IDSI charge in
response to Appellant’s motion for judgment of acquittal. At trial court docket
number CP-65-CR-0004012-2018, a jury found Appellant guilty of rape of a
child, three counts of IDSI with a child, four counts of sexual abuse of children
– photographing, videotaping, depicting on computer or filming sexual acts,
four counts of sexual abuse of children – child pornography, four counts of
incest of minor – complainant under 13 years, corruption of minors, and
conspiracy to commit rape of a child. 18 Pa.C.S.A. §§ 3121(c), 31213(b),
6312(b)(1), 6312(d), 4302(b)(1), 6301(a)(1)(ii), and 903. An appellate
challenge to the conviction and sentence at CP-65-CR-0004012-2018 has
been docketed in this Court at 98 WDA 2023. Because these appeals involve
related facts and identical parties, we consolidated both matters on our own
motion. See Pa.R.A.P. 513 (“[…W]here the same question is involved in two
or more appeals in different cases, the appellate court may, in its discretion,
order them to be argued together in all particulars as if but a single appeal.”).
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videos from Appellant’s cellular telephone. There were several text messages
between Appellant and Kinzey wherein Appellant requested that Kinzey
perform multiple sex acts in front of the minor victim, including inter alia
masturbating, using sex toys, and performing oral sex upon each other. The
police also extracted four videos that were saved on Appellant’s cellular
telephone depicting the victim licking Kinzey’s genitals, Kinzey inserting her
finger into the victim’s anus, Kinzey performing oral sex on the victim, and
Kinzey engaging in vaginal sex with the victim. In initial interviews with police,
both Appellant and Kinzey claimed that a masked man held Kinzey at gunpoint
and forced her to make the videos. At a jury trial that commenced on April
19, 2022, however, Kinzey testified that Appellant asked her multiple times
to film sex videos with the victim, she eventually relented, and she confirmed
that the acts described in the text messages occurred absent gunpoint
compulsion. She also testified that she and Appellant both performed oral
sex on the victim prior to filming the videos and that on two occasions
Appellant forced the victim to perform oral sex on him. Appellant did not
testify at trial. The jury ultimately convicted Appellant of the aforementioned
offenses. The trial court deferred sentencing for 90 days pending the
preparation of a pre-sentence investigation (PSI) report and sex offender
assessment. On July 15, 2022, the trial court sentenced Appellant to an
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aggregate sentence of 84 to 168 years of incarceration followed by three years
of probation on both criminal cases. These appeals resulted.2
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2 On July 25, 2022, Appellant filed timely, separate post-sentence motions at
both trial court dockets. On December 12, 2022, the trial court entered an
order denying relief at trial court docket number CP-65-CR-0004010-2018.
On the same date, the trial court entered an order at trial court docket number
CP-XX-XXXXXXX-2018 granting Appellant’s post-sentence motion in part and
denying additional relief. More specifically, the trial court granted Appellant’s
motion for judgment of acquittal and vacated one count of IDSI at
CP-65-CR-0004012-2018. However, trial courts are required to decide post-
sentence motions within 120 days of filing, or grant an extension, or “the
motion shall be deemed denied by operation of law.” Pa.R.Crim.P.
720(B)(3)(a). Here, Appellant’s post-sentence motions should have been
deemed denied by operation of law on November 22, 2022, but the clerk of
courts did not enter such an order or forward notice to Appellant. When a trial
court denies a post-sentence motion after the 120-day period and an appellant
then files an appeal within 30 days of the date of that decision, this Court has
found that the notice of appeal is timely if no order deeming the motion to be
denied by operation of law has been entered by the clerk of courts. See
Commonwealth v. Perry, 820 A.2d 734, 735 (Pa. Super. 2003) (a
breakdown of the court system occurs when the clerk of courts fails to enter
an order deeming a post-sentence motion denied by operation of law and
notifying the defendant of the same); see also Commonwealth v.
Braykovich, 664 A.2d 133 (Pa. Super. 1995) (holding that appellant’s notice
of appeal was timely, as it was filed within 30 days of an untimely order
denying post-sentence motions). On January 10, 2023, Appellant filed a
single, but timely, notice of appeal listing both trial court dockets. On January
20, 2023, citing our decision in Commonwealth v. Young, 280 A.3d 1049(Pa. Super. 2022), this Court entered an order directing Appellant to file two
amended notices of appeal within 10 days, each listing only one trial court
docket number. Appellant complied timely and also filed corresponding
concise statements of errors complained of on appeal pursuant to Pa.R.A.P.
1925(b). The first amended notice of appeal was docketed with this Court at
53 WDA 2023 and corresponds with trial court docket number CP-65-CR-
0004010-2018. The second amended notice of appeal was docketed with this
Court at 98 WDA 2023 and corresponds with trial court docket CP-65-CR-
0004012-2018. On January 27, 2023, the trial court issued a single opinion
pursuant to Pa.R.A.P. 1925(a).
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On appeal, Appellant presents the following issues3 for our review:
I. Whether [] Appellant’s convictions were against the weight
of the evidence when [the central Commonwealth] witness
against him was his co-defendant, who provided self-
motivated and discordant testimony in establishing the only
direct evidence of [] Appellant’s involvement in the alleged
crimes?
II. Whether the [s]entencing [c]ourt abused its discretion in
issuing consecutive sentences for each of [] Appellant’s
convictions, thereby violating sentencing norms
[effectively] giving [] Appellant [a] life sentence despite the
fact that he was merely an accomplice to the acts of his
co-defendant?
Appellant’s Brief (98 WDA 2023), at 3; see also Appellant’s Brief (53 WDA
2023), at 2 (“Whether the [t]rial c]ourt erred in determining that [] Appellant’s
conviction[s were] supported by the weight of the evidence when the
Commonwealth’s primary witness, Corby Jo Kinzey, was self-interested and
an admitted liar who gave disparate testimony in support of the case against
[] Appellant?”).
In the first issue examined on appeal, Appellant claims that his
convictions were against the weight of the evidence presented at trial.
Appellant contends that the Commonwealth relied almost entirely on the
testimony of his co-defendant, Kinzey, to sustain his convictions. Appellant’s
Brief (98 WDA 2023), at 25; see also Appellant’s Brief (53 WDA 2023), at 18.
Appellant asserts that “[a]lthough she maintained she offered her [trial]
testimony without any promise of a plea bargain, [Kinzey] simultaneously
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3 We have reordered Appellant’s issues for ease of discussion.
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related she did expect consideration from the judge, conflicting with her
claims that she had no expectation as to what would happen in terms of a
sentence for her cases.” Appellant’s Brief (98 WDA 2023), at 25-26 (emphasis
in original); see also Appellant’s Brief (53 WDA 2023), at 18. Additionally,
Appellant asserts that “Kinzey admitted that she initially lied to authorities
when she told them [] Appellant was not present when videos were made of
the sex acts between her” and the victim and, again, when she told the police
that a man wearing a ski mask and wielding a firearm forced her to perform
oral sex on the victim. Appellant’s Brief (98 WDA 2023), at 26; see also
Appellant’s Brief (53 WDA 2023), at 18-19. Appellant also claims that Kinzey
testified inconsistently about “when and how many times the alleged sex acts
occurred between [] Appellant and [the victim].” Appellant’s Brief (53 WDA
2023), at 20. Hence, Appellant posits that “[i]t is apparent from the record
that Kinzey lied from the outset of this matter in order to protect herself after
being caught committing vile sex against her child.” Appellant’s Brief (98 WDA
2023), at 27; see also Appellant’s Brief (53 WDA 2023), at 19. Accordingly,
Appellant suggests that “[g]iven [Kinzey’s] lack of credibility, self-motivated
testimony, and the discordant description of [] events, [Appellant urges] this
Court [to] find [] Appellant’s convictions in this matter shocking and vacate
his sentence.” Appellant’s Brief (98 WDA 2023), at 29-30; see also
Appellant’s Brief (53 WDA 2023), at 20.
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An appellate court's standard of review when presented with a weight
of the evidence claim is distinct from the standard of review applied by the
trial court:
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. This does not
mean that the exercise of discretion by the trial court in granting
or denying a motion for a new trial based on a challenge to the
weight of the evidence is unfettered.
In describing the limits of a trial court's discretion, we have
explained:
The term “discretion” imports the exercise of judgment,
wisdom and skill so as to reach a dispassionate conclusion
within the framework of the law, and is not exercised for the
purpose of giving effect to the will of the judge. Discretion
must be exercised on the foundation of reason, as opposed
to prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course pursued
represents not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is not
applied or where the record shows that the action is a result
of partiality, prejudice, bias or ill-will.
Commonwealth v. Soto, 202 A.3d 80, 97 (Pa. Super. 2018) (citation
omitted). “[W]e may not [re-]weigh the evidence and substitute our
judgment for the fact-finder.” Id. at 93 (citation omitted). Variances in
testimony go to the credibility of the witnesses and not the sufficiency of the
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evidence. Commonwealth v. Johnson, 180 A.3d 474, 478 (Pa. Super.
2018). However, we note that “[i]t is well settled that even the
uncorroborated testimony of a single witness may alone be sufficient to
convict a defendant.” Commonwealth v. Gilliam, 249 A.3d 257, 268 (Pa.
Super. 2021) (internal quotation and citation omitted). “For an appellant to
prevail on a challenge to the weight of evidence, he must establish that the
evidence was so tenuous, vague, and uncertain that the verdict shocks the
conscience of the court.” Id. at 269–270 (internal quotation and citation
omitted).
Here, the trial court determined:
In the present case, [] all of the evidence that the jurors had
available to them was overwhelmingly in support of the verdict
rendered. Through the duration of the trial, the jurors considered
the testimony of Ms. Kinzey, who without any promise or offer
from the Commonwealth in exchange for her testimony, testified
as to her and [Appellant’s] vulgar conduct surrounding the victim
in these cases, including references to specific sexual events; the
text message exhibits depicting messages between [Appellant]
and Ms. Kinzey regarding sexual references to the victim and
messages as to what they were going to do to the victim sexually;
the text message exhibit between Ms. Smith and [Appellant]
regarding the video that Ms. Smith found on her cell[ular
tele]phone and Ms. Smith’s testimony regarding the nature of
[Appellant’s] behavior surrounding the video; the testimony of [a
police sergeant], who testified that he observed [Appellant] reach
into his pocket and hide his cell[ular tele]phone behind the corner
while police [conducted a search pursuant to a warrant]; the
testimony of [a police lieutenant], who testified that he performed
an extraction of [Appellant’s] cell[ular tele]phone and located four
videos of Ms. Kinzey engaging in sex acts with her son [and]
further testimony regarding [Appellant’s] responses during the
police interview; the stipulation concerning the videos that were
recovered from [Appellant’s] cell[ular tele]phone; and the
testimony from [Kimberly] Gailbraith, who testified that after Ms.
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Kinzey was arrested, [Appellant] asked her to delete/deactivate
her Facebook [account].
Based upon [a] review of the entire record, [the trial court did]
not find that jury’s verdict was inconsistent or so contrary to the
evidence as to shock [the court’s] sense of justice. The jury was
certainly capable of determining whether to believe all, part, or
none of the evidence with respect to whether the Commonwealth
met its burden at each count and to determine the credibility of
each witness. For the majority of the charges[, Appellant] was
charged as an accomplice or co-conspirator to Ms. Kinzey.
Clearly, the jurors found Ms. Kinzey’s testimony and account of
events to be credible and rendered a verdict accordingly. It is the
opinion of [the trial c]ourt that the verdict was consistent with all
of the evidence presented.
Trial Court Opinion, 1/27/2023, at 12-13.
Upon our review of the record and applicable law, we agree with the
conclusion that the verdict did not shock the conscience of the court so as to
warrant relief on Appellant’s weight of the evidence claim. Kinzey explained
that she initially lied to the police in order to protect herself and Appellant.
N.T., 4/19-22,2022 at 215. Kinzey further testified that Appellant “told [her]
to tell the police officers that there was a man trying to kill [her] and forced
[her]” to commit sex acts against the victim. Id. at 216. The jury was free
to believe all, part, or none of the evidence to determine Kinzey’s credibility
and variances in her testimony. We simply may not reweigh the evidence and
substitute our judgment for the jury. Moreover, text messages between
Appellant and Kinzey and videos recovered from Appellant’s cellular
telephone, as presented at trial, corroborated Kinzey’s version of events.
Based upon the facts of record, we discern no abuse of discretion or error of
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law by the trial court in denying Appellant’s weight claim. For all of the
foregoing reasons, Appellant is not entitled to relief on his first issue.
Next, Appellant challenges the discretionary aspects of sentencing,
arguing that “[t]he sentencing [c]ourt’s decision to give [] Appellant
consecutive sentences at each count is fundamentally excessive and
disproportionate to the crimes committed, seemingly ignoring [] Appellant was
merely an accomplice to the offenses committed.” Appellant’s Brief (98 WDA
2023), at 17. More specifically, Appellant argues:
There is no dispute that the allegations made against [] Appellant
are heinous. Despite their shocking nature, even when viewed in
the light most favorable to the Commonwealth, the allegations
herein denote [] Appellant acting in the capacity of an accomplice
to egregious sex crimes committed by [] Kinzey. At most, []
Appellant solicited [] Kinzey to commit said crimes and videotaped
them in part. Though detestable in nature, with respect to this
case, [] Appellant did not himself commit the overt sex acts
inflicted upon [the victim] by his mother.
Id. at 21. Appellant argues that his sentence essentially amounts to life
imprisonment and “is manifestly unjust as it is disproportionate to the conduct
of [] Appellant.” Id. at 22. As such, Appellant maintains that his sentence
should be vacated. Id.
Appellant's claim challenges the discretionary aspects of his sentence.
See Commonwealth v. Lee, 876 A.2d 408 (Pa. Super. 2005) (claim that the
trial court erred in imposing an excessive sentence is a challenge to the
discretionary aspects of a sentence); see also Commonwealth v.
Gonzalez–Dejusus, 994 A.2d 595 (Pa. Super. 2010) (claim that the trial
court erred in imposing consecutive sentences is a challenge to the
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discretionary aspects of a sentence). Appellant, however, does not have an
automatic right to appeal the discretionary aspects of his sentence. See 42
Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for
permission to appeal the discretionary aspects of his sentence. Id.
As this Court has explained:
[t]o reach 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).
In this case, Appellant preserved his sentencing issue by raising it in his
post-sentence motion, filed a timely notice of appeal and raised the issue in
his appellate brief in a separate statement pursuant to Pa.R.A.P. 2119(f).
Furthermore, this Court previously determined that “an excessive sentence
claim – in conjunction with an assertion that the court failed to consider
mitigating factors – raises a substantial question.” Commonwealth v.
Swope, 123 A.3d 333, 339 (Pa. Super. 2015), citing Commonwealth v.
Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014); see also Commonwealth v.
Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (same). As such,
we will review Appellant’s sentencing claim.
We adhere to the following standards:
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Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. A sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised
its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision. We must accord
the sentencing court's decision great weight because it was in the
best position to review the defendant's character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11–12 (Pa. Super. 2007) (internal
citations and quotations omitted).
Pursuant to statute,
the court shall follow the general principle that the sentence
imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to
the impact on the life of the victim and on the community, and
the rehabilitative needs of the defendant.... In every case in which
the court imposes a sentence for a felony or misdemeanor ... the
court shall make as a part of the record, and disclose in open court
at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.
42 Pa.C.S.A. § 9721(b).
Moreover, we have held:
[i]n imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant's prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigation [(PSI)] report, it will be
presumed that he or she was aware of the relevant information
regarding the defendant's character and weighed those
considerations along with mitigating statutory factors.
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Commonwealth v. Fowler, 893 A.2d 758, 767-768 (Pa. Super. 2006)
(internal citation omitted).
Finally, we note that “long standing precedent ... recognizes that [the
Sentencing Code] affords the sentencing court discretion to impose its
sentence concurrently or consecutively to other sentences being imposed at
the same time or to sentences already imposed.” Commonwealth v. Brown,
249 A.3d 1206, 1212 (Pa. Super. 2021) (internal citation omitted); see also
42 Pa.C.S.A. § 9721(a). We will not disturb consecutive sentences unless the
aggregate sentence is “grossly disparate” to the defendant's conduct, or
“viscerally appear[s] as patently unreasonable.” Id. (citation omitted).
Here, the trial court reviewed a PSI report before rendering its
sentencing decision. Trial Court Opinion, 1/27/2023, at 11. Appellant did not
object to the contents of the PSI report or otherwise advance amendments or
corrections. N.T., 7/15/2022, at 3. As such, we presume that the trial court
was aware of, and considered, accurate and relevant information regarding
Appellant’s character and weighed those considerations along with mitigating
statutory factors when sentencing him. Moreover, upon our review of the
sentencing transcript, we discern no trial court abuse of discretion. Before
sentencing Appellant to standard-range, consecutive sentences, the trial court
noted that Appellant “totally robbed [the victim] of his innocence and having
a normal childhood” instead, “giving him a lifetime filled with mental health
treatment” due to the “violent acts of sexual trauma [Appellant] perpetrated
on him.” Id. at 13. The trial court, however, rejected the Commonwealth’s
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argument to impose aggravated-range sentences on all counts. Id. at 11-13.
In its subsequent Rule 1925(a) opinion, the trial court acknowledged that the
consecutive, aggregate sentence was “lengthy” but opined that “[w]hen
weighing and fashioning a sentence, the [c]ourt took into consideration the
circumstances and seriousness of the offenses.” Trial Court Opinion,
1/27/2023, at 11-12. We will not disturb the consecutive nature of the
sentence because the aggregate is not grossly disparate to Appellant’s conduct
and does not viscerally appear as patently unreasonable. For all of the
foregoing reasons, Appellant is not entitled to relief on his sentencing claim.
Judgment of sentence affirmed.
12/27/2023
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