Com. v. Hoffa, K. ( 2021 )

J-A07026-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KEITH ALAN HOFFA :
:
Appellant : No. 703 MDA 2020
Appeal from the Judgment of Sentence Entered March 4, 2020
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001420-2018
BEFORE: BOWES, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED SEPTEMBER 21, 2021
Appellant Keith Alan Hoffa appeals from the Judgment of Sentence of
63 to 126 years’ incarceration imposed after the court found him guilty of
multiple sex abuse offenses involving five children. Appellant purports to
challenge the sufficiency of the evidence supporting each of the convictions,
and the exercise of the court’s discretion in ordering consecutive rather than
concurrent sentences. After careful review, we affirm.1
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* Former Justice specially assigned to the Superior Court.
1 Appellant also filed two “Applications for Relief,” one seeking new counsel
based on claims of ineffective assistance of counsel, and the other seeking an
injunction and requesting a federal investigation based on an alleged
conspiracy between law enforcement officials, the prosecution, and prison
officials to bar him from obtaining assistance from family, friends, and his own
witnesses. See Applications for Relief, filed July 26, 2021, and August 5,
2021. We deny both applications without prejudice to seek relief in the trial
court through the processes available in the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-46.
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Over the course of many years, Appellant sexually assaulted girls
between the ages of 8 and 16. In late 2016, M.C., who was a friend of
Appellant’s daughter, told her mother that when she stayed over at Appellant’s
house for sleepovers, Appellant would touch her in the bath, shower, and while
getting dressed, in ways that made her feel uncomfortable. Mother reported
the molestation to the authorities, and a grand jury investigation ensued.
On June 1, 2018, the Commonwealth indicted Appellant on twenty-four
counts of offenses involving at least five girls, some now women, including
Rape of a Child, Indecent Assault-Person Less than 13 years of age, Criminal
Solicitation-Indecent Assault Person Less than 13 years of age, Indecent
Exposure, Dissemination of Obscene Materials to a Minor, Corruption of
Minors-Defendant Age 18 or Above, Unlawful Contact with Minor-Sexual
Offenses, Unlawful Contact with Minor-Obscene and other Sexual Materials
and Performance, Involuntary Deviate Sexual Intercourse-Person Less than
16 years of age; of Aggravated Indecent Assault-Person Less than 16 years
of age; and Indecent Assault-Person Less than 16 years of age.2
Appellant filed a pre-trial Motion for a Taint and Competency Hearing.
Soon thereafter, defense counsel filed at Appellant’s behest a Motion to
Withdraw from representation indicating Appellant wished to represent
himself. The court held a hearing on the Motions on November 20, 2019, first
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2 18 Pa.C.S. §§ 3121(c), 3126(a)(7), 902(a), 3127(a), 5903(c)(1),
6301(a)(1)(ii), 6318(a)(1) and (4), 3123(a)(7); 3125(8), and 3126(a)(8).
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addressing the Motion to Withdraw. When the court asked Appellant if he
wanted to represent himself, he responded “no.” N.T. Hearing, 11/20/19, at
4, 6. The court then proceeded with the taint and competency hearing.
On December 9, 2019, a bench trial commenced before the Hon.
Deborah E. Curcillo. Over three days, the court heard detailed testimony from
eight girls and women who had received unwanted and inappropriate touching
and other sexual assaults from Appellant or had observed Appellant as he
inappropriately touched other victims, some beginning when they were eight
years old. Some of them testified regarding taking baths with Appellant when
they were between the ages of 10 and 12 years old and his having touched
their breasts and vaginas, sometimes with his mouth. Some spoke of
Appellant’s taking photographs of them when they were in the bathtub or just
out of the tub, encouraging them to skinny dip in his hot tub with him, and
having them touch his penis with their hands or their mouths. In addition,
they testified regarding Appellant’s giving them gifts, wine coolers, and
attention, and their relationships with Appellant’s daughter and/or his stepson,
some of which developed because Appellant was initially friends with or
romantically involved with the victims’ mothers. One victim testified that
Appellant had raped her more than once when she 8 or 9 years old.3
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3 N.T., 12/10/19, at 248-49.
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The Commonwealth also presented testimony from investigating
detectives, a forensic investigator who had interviewed M.C., relatives of two
victims, and an expert on children’s responses to sexual abuse. In addition,
the court admitted the tape of two forensic interviews and one video statement
from three victims, a handwritten note from Appellant to one of the girls, a
thumb drive containing suggestive photos of girls, and a computer printout
showing names of websites accessed by Appellant with names suggesting child
pornography involving teenaged and younger girls. Appellant and his wife
also testified.
Immediately after closing arguments, Judge Curcillo found Appellant
guilty of the seventeen offenses set forth above and one obstruction of justice
charge.4 The court ordered a pre-sentence investigation and an evaluation
from the Sex Offender Assessment Board (“SOAB”). Appellant’s trial counsel
filed a Motion to Withdraw her representation, which the court granted. The
court then appointed new counsel.
On March 4, 2020, the court held a sentencing hearing. The court noted
that it had reviewed the pre-sentence investigation report and the SOAB
evaluation designating Appellant a sexually violent predator (“SVP”). After
listening to victim impact statements and Appellant, the court stated:
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4 The court found him not guilty of four charges; the Commonwealth had
withdrawn three charges before trial.
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Based on the conviction, as well as the pattern of behavior
demonstrated by [Appellant] over many years, determined to find
vulnerable families and just prey on young girls relentlessly over
two decades using control and ultimately harming these numerous
young girls, these victims having experienced and continue to
experience anxiety and depression and probably for years to
come, his actions have not only affected the victims, but their
families and future relationships, we believe the sentence I’m
about to give is appropriate.
N.T. Sentencing, 3/4/20, at 8-9.
The court sentenced Appellant to consecutive terms of imprisonment
aggregating to a total of 63 to 126 years’ incarceration. Id.5 Appellant did
not file a Post-Sentence Motion.6
Appellant timely appealed.7 He filed a court-ordered Pa.R.A.P. 1925(b)
Statement on July 13, 2020, in which he presented seven issues, five of which
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5 Specifically, the court entered the following terms of incarceration to run
consecutive to one another: Rape of a Child, 25-50 years; Indecent Assault
on Victim less than 13 years of age, 25-50 years; Criminal Solicitation, 3
years; Indecent Exposure, 2 years; IDSI Person less than 16 years of age, 5
years; 2 counts of Aggravated Indecent Assault-Person less than 16 years of
age, 1 to 2 years each; Indecent Assault-Person less than 16 years of age, 1-
2 years.
6 Appellant filed a pro se an application for new counsel on April 15, 2020.
The trial court treated this as a PCRA Petition and appointed new counsel on
May 6, 2020. However, on May 8, 2020, Appellant’s post-trial counsel filed a
Notice of Appeal. The trial court then rescinded its Order appointing new
counsel and its consideration of the PCRA petition and ordered Appellant to
file a Pa.R.A.P. 1925(b) Statement.
7 The Notice of Appeal, filed May 8, 2020, is deemed timely in accordance with
the Order issued in In re: General Statewide Judicial Emergency, 234
A.3d 408 (Pa. filed May 27, 2020) (due to the COVID-19 pandemic,
suspending time calculations and filing deadlines from March 16, 2020,
(Footnote Continued Next Page)
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asserted insufficient evidence as it related to five of the victims, one
challenging his waiver of counsel colloquy, and one challenging the
discretionary aspects of his sentence. The trial court filed a Pa.R.A.P. 1925(a)
Opinion in which it addressed the counsel waiver colloquy issue raised by
Appellant in his Rule 1925(b) Statement but stated it could not address the
remaining issues because the record did not contain the trial transcript.
In his Brief, Appellant raised four issues, one of which contended that
the trial transcript was part of the record so the court erred in finding the
sufficiency issues waived on that basis. After our review, this Court filed a
Memorandum Opinion addressing the issue pertaining to the counsel waiver
colloquy raised in Appellant’s Brief, and, after confirming that the transcript
had, indeed, been part of the record, remanded for the trial court to issue a
supplemental Rule 1925(a) Opinion, addressing Appellant’s sufficiency and
sentencing claims. The court filed its Opinion on June 30, 2021. We now
address the following two issues raised in Appellant’s Brief:8
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through June 1, 2020). Accordingly, the Commonwealth’s assertion that this
court lacks jurisdiction due to an untimely-filed Notice of Appeal is incorrect.
See Appellee’s Brief at 4.
8 Although this Court’s remand order provided a schedule for the parties to
submit supplemental briefs if they wished to respond to the trial court’s new
Rule 1925(a) Opinion, after the trial court issued its new Opinion, Appellant’s
counsel sent a letter to this Court indicating that Appellant did not need to add
to the Brief already on file. Letter from Gregory Mills, Esq., to Superior Court
Deputy Prothonotary, dated July 8, 2021.
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1. Whether the Commonwealth failed to present sufficient
evidence for Appellant’s: indecent assault, criminal solicitation
for indecent assault, indecent exposure, dissemination of
obscene material to a minor, corruption of minors, and unlawful
contact with a minor convictions against M.C.; rape of a child,
indecent assault of a child under thirteen, indecent exposure,
and corruption of minors against M.S. involuntary deviate
sexual intercourse convictions against C.H.; involuntary
deviate sexual intercourse and aggravated assault convictions
against C.R.; and aggravated indecent assault, indecent
assault, and corruption of minors convictions against T.H.?
2. Whether the trial court imposed an excessive and unreasonable
sentence?
Appellant’s Brief at 15 (renumbered).
Appellant’s first issue challenges the sufficiency of the evidence
supporting all eighteen of his convictions. Id. at 37. Although he cites
boilerplate case law setting forth this Court’s standard of review, he does not
specify which of his eighteen convictions is not supported by the evidence.
Rather, he asserts that “the victims fabricated all allegations against him” and
extensively reiterates the testimony presented by the victims and others
before concluding that he “respectfully submits that the Commonwealth
presented sufficient [sic] evidence to substantiate the victims’ allegations.”
Id. at 38. For the following reasons, this issue is waived.
When an appellant files a court-ordered Pa.R.A.P. 1925(b) Statement,
the Rule 1925(b) statement must specify which convictions and the element
or elements of those crimes for which the evidence was allegedly insufficient.
Commonwealth v. Carr, 227 A.3d 11, 18 (Pa. Super. 2020). Where the
appellant fails to specify in his Rule 1925(b) Statement the elements of the
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crimes allegedly not proven by the Commonwealth, the sufficiency claim is
waived. Commonwealth v. Williams, 959 A.2d 1252, 1257-58 (Pa. Super.
2008).
Here, Appellant’s Rule 1925(b) Statement, like his Brief, generally avers
that the evidence supporting the convictions was insufficient. See Appellant’s
Concise Statement of Errors Complained of on Appeal Pursuant to Pa.R.A.P.
1925(b), filed 7/13/2020, at ¶¶ 1-5. Although Appellant included the names
of the crimes that individual victims suffered, he does not specify which
element of which of the eighteen crimes was not supported by sufficient
evidence. Accordingly, he has waived his sufficiency challenge.9
Discretionary Aspects of Sentence
Appellant next asserts that the court abused its discretion in ordering
two of his sentences to run consecutively rather than concurrently.
Appellant’s Br. at 34. He contends that because the mandatory minimum
sentences imposed for Indecent Assault of a Child and Rape of a Child were
twenty-five years each, the aggregate consecutive sentence “was clearly
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9 Further, Appellant’s sole argument to support his sufficiency claim is that the
victims worked together to fabricate the allegations. See Brief at 37-45. This
averment challenges the credibility of the victims and the weight the trial court
sitting as fact-finder gave their testimony and the testimony of the other
witnesses. See Commonwealth v. Lopez, 57 A.3d 74, 80 (Pa. Super. 2012)
(stating that a challenge to the credibility of a witness is a challenge to the
weight of the evidence). A weight claim must be raised before the trial court
in a post-sentence motion. Pa.R.Crim.P. 607. The failure to do so results in
waiver. Lopez, 57 A.3d at 80. Here, Appellant did not file a Post-Sentence
Motion, so his challenge to the weight of the evidence is waived.
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unreasonable considering the nature of the crimes and the length of
imprisonment.” Id.Appellant’s argument presents a challenge to the discretionary aspects
of sentence for which there is no automatic right of appeal. Commonwealth
v. Mastromarino, 2 A.3d 581, 585 (Pa. Super. 2010). Accordingly, an
appellant must invoke this Court’s jurisdiction to consider this challenge. Id.To do so, an appellant must (1) file a timely notice of appeal, Pa.R.A.P. 902,
903; (2) properly preserve the issue at sentencing or in a post-sentence
motion, Pa.R.Crim.P. 720; (3) provide a statement within his Brief pursuant
to Pa.R.A.P. 2119(f); and (4) present “a substantial question that the
sentence appealed from is not appropriate under the Sentencing Code.” Id.(citation omitted). See also Commonwealth v. Cartrette, 83 A.3d 1030,
1042 (Pa. Super. 2013) (“[I]ssues challenging the discretionary aspects of a
sentence must be raised in a post-sentence motion or by presenting the claim
to the trial court during the sentencing proceedings. Absent such efforts, an
objection to a discretionary aspect of a sentence is waived.” (citation
omitted)).
Here, Appellant filed a timely Notice of Appeal. However, he failed to
preserve his challenge at sentencing or in a post-sentence motion.
Accordingly, he has failed to invoke this Court’s jurisdiction and we are unable
to review his challenge to the discretionary aspects of his sentence.
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Having found Appellant’s sufficiency challenge waived and his
discretionary aspects challenge not properly preserved, we affirm Appellant’s
Judgment of Sentence.
Judgment of Sentence affirmed. Applications for Relief, filed July 26,
2021, and August 5, 2021, denied.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/21/2021
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