Com. v. Husner, R. ( 2021 )

J-A11037-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
ROBERT SCOTT HUSNER :
:
Appellant : No. 660 WDA 2020
Appeal from the Judgment of Sentence Entered May 28, 2020
In the Court of Common Pleas of Greene County Criminal Division at
No(s): CP-30-CR-0000030-2018
BEFORE: McLAUGHLIN, J., KING, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: JUNE 21, 2021
Robert Scott Husner (Appellant) appeals from the judgment of sentence
entered in the Greene County Court of Common Pleas following his plea of
nolo contendere to simple assault.1 Appellant challenges the discretionary
aspects of his sentence, arguing the trial court erred in admitting a victim-
impact statement that was not signed, was not authenticated, was read aloud
by another witness, and referred to charges that were withdrawn. We affirm.
____________________________________________
1 18 Pa.C.S. § 2701(b)(2).
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Appellant was previously in a relationship with J.A., who is the mother
of N.L. (the Victim). The certified record indicates N.L. is autistic2 and has
“ADHD, ODD and mood disorder.”3 In December of 2016, when the Victim
was 17 years old, he gave a forensic interview. He stated that when he was
12 years old, Appellant “raped him,” in Appellant’s bedroom when his mother
was not home. Affidavit of Probable Cause, 1/2/18, Exh. to Criminal
Complaint. In a subsequent interview with Waynesburg Police, N.L. described
the “rape” as “penis to anus contact.” Id.
In January of 2018, a criminal complaint was filed, charging Appellant
with two counts each of sexual assault and involuntary deviate sexual
intercourse (IDSI) of a person less than 16 years of age.4
The case proceeded to a jury trial, where a mistrial was declared on
November 27, 2018. According to Appellant, the mistrial was granted due to
the Victim improperly testifying about an unrelated rape in Ohio.5 Appellant’s
Brief at 20, 32.
____________________________________________
2 Main Narrative by Chief of Police Robert Toth, Exh. to Appellant’s Motion,
11/5/18.
3 N.T. Sentencing, 5/28/20, at 14.
4 18 Pa.C.S. §§ 3124.1, 3123(a)(7).
5 The certified record on appeal does not indicate the reason for this mistrial.
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A second jury trial likewise ended in a mistrial, on April 23, 2019. It
appears that at that proceeding, a Commonwealth witness testified to
evidence that the trial court had ruled was inadmissible — following the alleged
rape in this case, the Victim, then 12 years old, requested diapers. We note
the Victim had testified at both trials.
The case was scheduled for a third jury trial beginning March 4, 2020.
On that date, the Commonwealth requested leave to amend the information
to one count of simple assault, under 18 Pa.C.S. § 2701(a)(3) (“attempts by
physical menace to put another in fear of imminent serious bodily injury”), to
which Appellant pleaded nolo contendere. The count was graded as a
misdemeanor of the first degree (M1). The trial court directed that a pre-
sentence investigation report (PSI) be prepared.
On May 28, 2020, the trial court conducted a sentencing hearing. By
agreement of the parties, the trial court amended the simple assault
subsection from 2701(a)(3) to 2701(b)(2), purportedly “the same” provision
(attempt by physical menace to put another in fear of imminent serious bodily
injury), with different numbering, in effect at the time the offense was
committed.6 N.T. Sentencing, 5/28/20, at 3, 5. The offense remained graded
as an M1. Id. at 5.
____________________________________________
6 We note, however, the 2013 statutory amendments did not affect the
numbering of the subsections. See Act 2013-118 (S.B. 28), P.L. 1198, § 1,
approved Dec. 18, 2013, eff. Jan. 1, 2014. Both before and after the
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At sentencing, the Commonwealth called Greene County Probation and
Parole Officer Lisa Hillsman, who interviewed Appellant and prepared the PSI.
N.T. at 7. She testified that she believed Appellant would be amenable to
supervision. Id. at 12.
The Victim, who had testified at both prior trials, did not attend the
sentencing hearing. The Commonwealth called J.A., the Victim’s mother, to
read aloud most of the four-page victim impact statement provided by the
Victim. J.A. stated the Victim was 12 or 13 years old when the underlying
incident occurred. N.T. at 14. The Victim “can’t comprehend things like
normal children his age,” is in “special classes” at school, is “[n]ot good” at
reading and writing, and thus “needs assistance.” Id. at 16-17. The Victim
“is on medication for ADHD, ODD and mood disorder,” does not “get along
very well with others,” and “is kind of like a loner.” Id. at 14. The Victim did
not attend the sentencing hearing because “he was afraid to come,” and
____________________________________________
amendment, the elements of “attempt[ing] by physical menace to put another
in fear of imminent serious bodily injury” were set forth at Subsection
2701(a)(3). Meanwhile, Subsection 2701(b)(2), which set forth the grading,
was amended. Prior to the amendment — and at the time of the underlying
offense — Subsection 2701(b)(2) provided a simple assault offense was
graded as a an M1 when committed “against a child under 12 years of age by
an adult 21 years of age or older.” See 18 Pa.C.S. § 2701(b)(2), 2002
(emphasis added). The 2013 amendment provided the M1 grading would
apply when the offense was committed “by a person 18 years of age older.”
See 18 Pa.C.S. § 2701(b)(2), 2013 (present version) (emphasis added). This
revision did not affect the grading in this case, as Appellant was over the age
of 18 at the time of the offense.
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because he had an “Abilify shot” that day, which “makes him sleepy.” Id. at
17. The victim impact statement was typed by the Victim’s therapist. Id.
The trial court stated it had not read the statement. Id. at 9; Trial Ct. Op.,
8/27/20, at 5.
Appellant objected to the victim impact statement repeatedly
throughout the hearing, arguing, inter alia, the statement was not signed, was
not dated, was improperly prepared with the assistance of a counselor, and,
as we discuss infra, referred to the sexual offense charges that were
withdrawn. See id. at 9-10, 19-21, 23, 25, 27. Appellant also objected to
the statement being read aloud by someone other than the Victim. Id. at 18.
The court responded to each objection and permitted both the admission of
the statement and the reading of it by J.A. on the record.
Because Appellant’s sole issue on appeal pertains to the victim impact
statement, we reproduce the entirety of the portions that J.A. read aloud:
My name is [N.L.] Because of my mental and emotional state, I
had to ask my counselor and my mom to help me with writing my
victim[ ] impact statement. I would like my mom or grandmother
to read my victim impact statement at [Appellant’s] sentencing.
I live with my mother, I am 20 years old. I’m on disability,
and I have been since I was 6 years old because I couldn’t sit still
in school, I was very hyper. When I was a kid, I was diagnosed
with ADHD. I was placed on medication to help. When [Appellant]
raped me, my sister and I was living with my grandparents . . .
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* * *[7]
. . . and my dad in Greensboro. My parents were separated. My
sister and I would visit and have overnight visits with our mom
per Court order. My mom lived with [Appellant] in an apartment
beside the Community Bank. I really didn’t like [Appellant] at
first, but then he would play games and I enjoyed played with me
and others [sic]. There was a lot of drinking and parties.
[Appellant] and my mom would argue and fight a lot. Then
it got to where he would joke around hitting me and touching me
and others [. . .]
* * *
. . . in our dick[s]. The drinking, joking, hitting and touching made
me feel very uncomfortable when I was around him. Everyone
knew he liked guys, but he was with my mom. Everyone called
[Appellant] gay. I told him to stop hitting and touching me . . .
* * *
. . . . there, but he never stopped. It was a normal thing that I
witnessed him doing to other kids and adults joking around about
it. In June 2011, I was 12 years old, maybe in 6th grade, when
[Appellant] raped me. My mom had to leave for work or
something, and I was left in the apartment with [Appellant]. I
was playing my video games online, it was getting late. I was
getting tired, I dozed off. I woke up because I felt somebody
pulling on my shoulders, and I looked back and it was [Appellant],
and his private area was in my butt.[8]
I tried pushing him off and away, and he wouldn’t let go. I
kept trying to fight him off and couldn’t. When he was done, he
____________________________________________
7 The asterisks in our extended quotation of the trial transcript indicate where
Appellant objected. For ease of review, we discuss these objections and the
trial court’s rulings separately, infra.
8 Although J.A. read aloud “his private area was in my butt,” N.T. at 22, the
victim impact statement stated “his dick was up my ass.” See Victim Impact
Statement (unpaginated).
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said don’t say a word about anything, or he would hurt me and do
it again. I didn’t tell anyone because I was very angry, mad, sad,
hurt, an emotional wreck, and I was afraid he would hurt my mom
and would do it again to me. I stopped . . . going to visit my mom
and made all kinds of excuses why I . . . didn’t want to visit.
My mom was always at [Appellant’s], and I didn’t want to go
there. I would only go with my mom when we went to somewhere
like Kennywood Park or other family functions, because I was
afraid. I started to have nightmares and flashbacks, would ask
my aunt and others to buy me diapers. Any time during the day
or night, I would have flashbacks about what [Appellant] did to
me, I would go to the bathroom, do my business in the diaper.
Before I was raped by [Appellant], I was in regular school. I
had some special education services.
N.T. at 19-23.
At this juncture, Appellant objected again. While the trial court
overruled the objection, the Commonwealth requested J.A. to skip ahead in
the victim impact statement to read the last page. N.T. at 23-24. J.A. read:
I do not agree that the sexual assault charges should be
dropped. I would like justice.
* * *
I only agreed with . . . what the DA told my mom because of
how I was asked by [Appellant’s] attorney how it felt to have a
dick in my ass. I do not want to keep going through that again
because all it does is make me feel more angry, sad, hurt, dirty
and ashamed. I’m tired of the nightmares, flashbacks, and
reliving the rape. Every time that the rape is brought up, it’s like
me being raped again and again. I want a chance —
* * *
. . . to move on with my life. I am told because of the rape that I
am stuck in a safe age, when I was a little boy around two years
old. That’s why I . . . rely on diapers. Hopefully a counselor will
help me heal, and . . . can teach me to cope without using diapers
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and help me process the phase that sexual rape patients must
deal with to heal and have a fairly normal life.
Your Honor, I do not like that he is only getting assault
charges. I ask that you give [Appellant] the maximum sentence
that can be given and order [Appellant] to stay away from me and
not be anywhere that I am.
N.T. at 25, 27-28.
As stated above, Appellant repeatedly objected throughout the reading
of the victim impact statement. The trial court overruled each objection, first
accepting J.A.’s sworn testimony that the statement was Victim’s statement.
See id. at 24. The court also reasoned the law permitted a victim to provide
a statement and describe how the offense has affected their life. Id. at 21.
Appellant argued he would “now to have to litigate crimes that he was not
convicted of,” and that the references to the sexual offenses were prejudicial.
Id. at 24-25. The trial court responded: it understood that the victim does
not determine the offenses of which a defendant should be found guilty; here,
it was the Commonwealth who agreed to accept the plea entered by Appellant;
the court understood Appellant only pleaded to simple assault; and the court
could “sift through [the victim impact statement] and see what is appropriate
to sentencing and what isn’t.” Id. at 24, 26. Finally, the trial court found the
statement was admissible under 42 Pa.C.S. § 9738 (“Victim impact
statements,” discussed infra). See id. at 24.
Appellant then presented the testimony of the following witnesses at the
sentencing hearing. A store owner testified that Appellant worked at her
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store, performed errands for her, and “has been around” her family and
children for at least five years.9 N.T. at 30. She relied on Appellant and
requested “leniency” and probation for him. Id. A 17-year old boy, whose
father was friends with Appellant, testified he has “stayed at [Appellant’s]
house for a while,” has “went fishing and kayaking” with Appellant, and
Appellant “has been good to us [sic].” Id. at 32, 33. Appellant described this
witness was “like [his] adopted son.” Id. at 39.
Appellant’s ex-wife testified they co-parent three children together —
aged 17 through 22 — and Appellant helps her around the house and has been
a confidant for personal issues she has had. N.T. at 35. Appellant’s father’s
paramour testified. She stated Appellant, who was “like [her] stepson,” has
helped her and Appellant’s father, as well as the community, family, and
friends. Id. at 36-37. She also requested leniency and probation for
Appellant. Id.
Finally, Appellant testified. He requested a sentence of probation or
house arrest, stating he received “SSD, [works] at 5 Kidz, and [is] an officer
at the Waynesburg Eagles,” for whom he does charity work. N.T. at 39-40.
____________________________________________
9 This witness appeared at the hearing via telephone. N.T. at 29.
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Appellant also stated that while he was on probation, he “never got violated,”10
and he has not “been in trouble since this [incident] occurred.” Id. at 48-49.
The standard range sentence for Appellant’s conviction was restorative-
sanctions to three months’ imprisonment, with a maximum sentence of 60
months. N.T. at 47. The Commonwealth requested a sentence of
incarceration. Id.
The trial court imposed a sentence of 90 days to 23½ months’
imprisonment. The court stated it considered the testimony of both the
Commonwealth’s and Appellant’s witnesses. N.T. at 49.
Appellant filed a timely post-sentence motion, arguing the trial court
improperly admitted and considered the victim impact statement, and
requesting his sentence be modified to, inter alia, probation or house arrest.
The trial court denied the motion on June 8, 2020, and Appellant took this
timely appeal and complied with the court’s order to file a Pa.R.A.P. 1925(b)
statement of errors complained of on appeal.
Appellant presents the following issue for our review:
At the sentencing on a simple assault, where [Appellant]
presented substantial mitigation evidence, did the sentencing
court abuse its discretion in considering an unsigned, undated
statement written by an unknown author and read by the ex-
girlfriend of [A]ppellant and the mother of the victim which
contains scandalous and impertinent allegations that were denied
____________________________________________
10 According to Appellant, he has a 2008 conviction for simple assault, was
sentenced to one to 23½ months’ imprisonment, and “was paroled and
supervised without any incident.” Appellant’s Brief at 14.
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by [A]ppellant, nolle prossed by the Commonwealth, otherwise
uncharged, and the basis for two prior mistrials in the case
resulting in a sentence of incarceration at the top of the standard
range of sentence?
Appellant’s Brief at 11.
Appellant avers the trial “court abused its discretion in imposing a
sentence at the top of the standard range for a simple assault after considering
a purported victim impact statement that detailed charges that were nolle
prossed.” Appellant’s Brief at 26. He presents numerous discrete arguments.
We first consider his two main challenges.
First, Appellant challenges the admission of the victim impact
statement. In support, he asserts: the author of the victim impact statement
“was not established on the record;” the statement was not signed, not
verified, and “may have been authored by an unnamed counselor who did not
acknowledge the statement;” the statement was “highly prejudicial,”
“contain[ed] hearsay within hearsay within hearsay,” and “propound[ed]
expert medical diagnosis mental and physical conditions [sic] that” related to
offenses withdrawn by the Commonwealth. Id. at 27, 30. Appellant also
challenges the court’s allowing J.A. to read aloud the statement, arguing
“[t]he unknown therapist author could not be examined on the stand[,]”
“[t]here was no verification from any therapist . . . that the [Victim] was
incompetent or unable to present his own statement[,]” and there was no
explanation why the Victim, who twice previously testified at trial, could not
appear at sentencing. Id. at 31.
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Second, Appellant emphasizes the victim impact statement improperly
referred to sexual offenses that were withdrawn. He contends the statement
did not relate to the simple assault conviction, but instead was “a slanderous
recitation of alleged crimes that were not proven by the Commonwealth[ and]
to which [Appellant] did not plead.” Appellant’s Brief at 31. Appellant also
alleges the victim impact statement improperly referred to an unrelated rape
in Ohio, as well as the Victim’s request for diapers following the underlying
rape. Id. at 32-33. He reasons that prior references to these two events
were the bases of the two mistrials granted. We conclude no relief is due.
Appellant’s claim that the trial court improperly considered the victim
impact statement goes to the discretionary aspects of sentencing. We first
note:
Such a challenge is not appealable as of right. Rather, Appellant
must petition for allowance of appeal pursuant to 42 Pa.C.S.[ ]
§ 9781. When an Appellant challenges a discretionary aspect of
sentencing, we must conduct a four-part analysis before we reach
the merits of the Appellant’s claim. In this analysis, we must
determine: (1) whether the present appeal is timely; (2) whether
the issue raised on appeal was properly preserved; (3) whether
Appellant has filed a statement pursuant to Pa.R.A.P. 2119(f); and
(4) whether Appellant has raised a substantial question that his
sentence is not appropriate under the Sentencing Code.
* * *
A substantial question will be found where the defendant
advances a colorable argument that the sentence imposed is
either inconsistent with a specific provision of the Sentencing Code
or is contrary to the fundamental norms underlying the sentencing
process.
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Commonwealth v. King, 182 A.3d 449, 453-54 (Pa. Super. 2018) (citations
omitted). A claim that a sentencing court relied on improper factors raises a
substantial question. Id. at 454.
Here, Appellant properly preserved his sentencing claim, by timely
objecting at the sentencing hearing and including the issue in his post-
sentence motion. Appellant has also filed a timely notice of appeal. His brief
properly includes a Pa.R.A.P. 2119(f) statement. See Appellant’s Brief at 26.
Finally, his argument, that the trial court improperly relied on portions of the
victim impact statement, raises a substantial question. See King, 182 A.3d
at 454. Thus, we may address the merits of Appellant’s claims.
We note:
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. Merely erring in judgment is insufficient to constitute abuse
of discretion. A court has only abused its discretion when “the
record disclosed that the judgment exercised was manifestly
unreasonable, or the result of partiality, prejudice, bias or ill-will.”
King, 182 A.3d at 454 (citations omitted). Questions of credibility at
sentencing “are for the trial court to resolve, not our appellate courts.”
Commonwealth v. Myers, 722 A.2d 649, 651-52 (Pa. 1998).
We also consider the standard of review for the admissibility of
evidence:
“The admissibility of evidence, including victim impact evidence,
rests with the sound discretion of the trial court.” The conduct of
a sentencing hearing differs from the trial of the case. To
determine an appropriate penalty, the sentencing court may
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consider any evidence it deems relevant. While due process
applies, the sentencing court is neither bound by the same rules
of evidence nor criminal procedure as it is in a criminal trial.
King, 182 A.3d at 455 (citations omitted).
The purpose of a victim impact statement is to allow victims
of crime to inform the court of how the crime impacted their lives.
In 1998, our General Assembly promulgated a Bill of Rights for
crime victims which provides them the right:
“to have opportunity to offer prior comment on the
sentencing of a defendant . . . to include the submission
of a written and oral victim impact statement detailing
the physical, psychological and economic effects of
the crime on the victim and the victim’s family. The
written statement shall be included in any predisposition
or presentence report submitted to the court. Victim-
impact statements shall be considered by a court when
determining the . . . sentence of an adult.”
18 P.S. § 11.201(5) (emphasis added).
The Supreme Court of the United States stated that the
purpose of victim impact evidence is to show the victim’s
uniqueness as a human being and to illustrate that a particular
individual’s loss has a distinct effect on society. Payne v.
Tennessee, 501 U.S. 808, 824 . . . (1991). Similarly, in
Pennsylvania, this Court has emphasized that crime victims in the
Commonwealth have the “right to breathe life with all its emotion
into their victim impact statements.”
King, 182 A.3d at 455 (some citations omitted).
In King, the trial court admitted, over the defendant’s objection at
sentencing, a letter from the deceased victim’s wife. King, 182 A.3d at 453.
The defendant had argued the letter “contained a personal attack on him,
which [allegedly] exceeded the scope of what a victim impact statement may
include.” Id. On appeal to this Court, the defendant argued the trial court
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erred in admitting the letter, and furthermore in considering the letter when
rendering sentence. Id. at 454. This Court disagreed, pointing out
the distinction between the admissibility of evidence and the
weight of the evidence. In ruling on the objection at the
sentencing hearing, the [trial] court noted “the writer of the letter
is permitted to send a letter. Whether we take the substance of
[the letter] into account at all would be [a] subject of discussion.”
Id. at 455 (record citation omitted).
First, we disagree with Appellant’s claim that the trial court erred in
admitting the victim impact statement. J.A. testified the Victim was “[n]ot
good” at reading and writing and needed assistance, and he did not attend
sentencing that day because “he was afraid” and because his medication made
him sleepy. N.T. at 16-17. The trial court accepted J.A.’s testimony that the
victim impact statement was, in fact, the Victim’s statement. Id. at 24. We
do not disturb the court’s credibility findings. See Myers, 722 A.2d at 651-
52.
We also reject Appellant’s bald claim that the trial court improperly
considered references to the withdrawn sexual offense charges. His
arguments on appeal improperly ignore the trial court’s responses to his
repeated arguments at sentencing. The court specified that it was aware
Appellant pleaded nolo contendere only to simple assault, and it could “sift
through” the statement for what was appropriate to sentencing. N.T. at 24,
26. The court further stated in its opinion:
When [J.A.] was reading portions of her son’s victim impact
statement, the Court was keenly aware that [Appellant] was
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not before the Court on charges of sexual assault,[ ] and the
Court properly considered the victim impact statement, and did
not place any undue weight on the statement.
Trial Ct. Op. at 8-9 (emphasis added). Appellant merely reiterates the
arguments already presented to, and rejected by, the trial court, without
appropriate discussion of the trial court’s reasoning. Upon review of the
record, we conclude the court also considered that “the law . . . broadly
permits” a victim to discuss how the crime has “affected their life.” See King,
182 A.3d at 455; N.T. at 21. We decline to find the trial court relied on
improper factors with respect to the victim impact statement. See Myers,
722 A.2d at 651-52; King, 182 A.3d at 455.
Finally, we briefly dispose of the additional claims presented by
Appellant on appeal. He argues the trial court erred in relying on 42 Pa.C.S.
§ 9738. Appellant’s Brief at 27, 29, citing Commonwealth v. Ali, 149 A.3d
29 (Pa. 2016). Upon our review of the relevant discussion in Ali, we agree
with Appellant’s summation of Section 9738. Ali stated: “By its plain terms,
Section 9738 does not purport to address the admissibility of victim impact
evidence, but merely operates to protect certain crime victims from being
sequestered at trial based on the possibility they may later offer victim impact
evidence.” Ali, 149 A.3d at 37. Nevertheless, we decline to find any
reversible error, pursuant to our above discussion that the trial court properly
admitted the victim impact statement and considered what was relevant to
sentencing in the instant issue.
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Appellant further alleges the victim impact statement improperly stated
the sentence that the Victim desired for him — “to rot in jail,” to “[p]ay all the
doctor bills that the county has [paid] out,” “to be listed on the sexual
offender’s registry,” and “to be 6 foot in the ground, dead . . . or receive the
death penalty serving the rest of his life in jail.” See Appellant’s Brief at 33;
Victim Impact Statement at 4 (unpaginated). The certified record, however,
does not indicate that the trial court heard this portion of the victim impact
statement. As stated above, the trial court did not read the statement before
sentencing, and J.A. did not read aloud the above passage. See N.T. at 19-
23, 25, 27-28. Instead, the trial court only heard this statement: “I ask that
you give [Appellant] the maximum sentence that can be given and order
[Appellant] to stay away from me[.]” Id. at 28. We decline to find any abuse
of discretion on the part of the trial court in this regard. See King, 182 A.3d
at 454.
As none of Appellant’s arguments merit relief, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 06/21/2021
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