Com. v. Harbst, D. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
DANIEL EUGENE HARBST :
:
Appellant : No. 812 MDA 2020
Appeal from the Judgment of Sentence Entered January 2, 2020
In the Court of Common Pleas of Bradford County
Criminal Division at CP-08-CR-0000400-2019
BEFORE: STABILE, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED: OCTOBER 15, 2021
Daniel Eugene Harbst (Appellant) appeals1 from the judgment of
sentence imposed after a jury found him guilty of six counts of involuntary
deviate sexual intercourse with a child (IDSI) and four counts of indecent
assault of a person less than 13 years of age.2 We affirm.
The trial court summarized the facts and procedural history as follows:
On or about May 29, 2019, [Appellant] was charged with
multiple counts of Rape of a Child, [IDSI], Corruption of Minors,
and Indecent Assault. The Rape of a Child and Corruption of Minor
charges were eventually withdrawn and dismissed, as were some
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1 After the appeal was fully briefed, Appellant informed our Prothonotary that
his private counsel passed away on June 22, 2021. On July 9, 2021, we
directed Appellant to inform us whether he intended to proceed pro se or
retain new counsel, and that failure to respond within 21 days would result in
Appellant being notated as pro se on this Court’s docket. Order, 7/9/21.
Appellant did not respond, and is thus pro se.
2 18 Pa.C.S.A. §§ 3123(b) and 3126(a)(7).
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of the Indecent Assault [c]harges, and the remaining counts were
tried before a jury, beginning October 7, 2019.
At trial, the Commonwealth produced several witnesses,
including the eight-year-old child victim [(Victim)] who is
[Appellant’s] custodial (non-biological, non-adoptive) daughter,
[V]ictim’s mother, the forensic interviewer, family relatives,
[V]ictim’s first grade teacher, two law enforcement officers, and
forensic and DNA scientists. [Appellant] testified on his own
behalf, as did his wife, his mother, his grandmother, his mother’s
boyfriend, and a family friend. In addition to this live testimony,
the forensic interview of [Victim] from January 2019 was
introduced into evidence under the Tender Years Hearsay Act and
presented in the form of an audio/video recording.
At the conclusion of the three-day trial, the jury found
[Appellant] guilty of … six counts of [IDSI] and four counts of
Indecent Assault … based on the jury’s finding there was contact
between the [V]ictim’s and [Appellant’s] intimate or sexual parts
[].
On January 2, 2020, [Appellant] was sentenced to total
confinement of eight to sixteen years for each IDSI conviction, to
be served consecutive to each other, for an aggregate sentence
of forty-eight to ninety-six years.
Trial Court Opinion, 5/11/20, at 1 (statutory citations omitted).
Appellant filed a timely but unsuccessful post-sentence motion, followed
by the underlying notice of appeal. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
Appellant presents five questions for review:
[1.] Was the trial evidence presented sufficient to warrant any
of the guilty verdicts rendered?
[2.] Were the guilty verdicts rendered against the weight of the
evidence?
[3.] Were the aggregated sentences imposed legally excessive?
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[4.] Did the trial court commit error when it refused to grant
[Appellant] taxpayer funds to hire and utilize the services of
a DNA expert because, said the [c]ourt, [Appellant] was
being represented by a “private attorney”?
[5.] Did the trial court commit error in finding [Appellant’s]
motion for a court order for taxpayer funding for the hiring
and utilization of a DNA expert by the Defense inadequately
drafted as a result of which the [c]ourt denied granting such
to the Defense?
Appellant’s Brief at 4 (reordered for disposition).
Appellant’s first two issues purport to challenge the sufficiency and
weight of the evidence. We repeat:
The distinction between these two challenges is critical. A claim
challenging the sufficiency of the evidence, if granted, would
preclude retrial under the double jeopardy provisions of the Fifth
Amendment to the United States Constitution, and Article I,
Section 10 of the Pennsylvania Constitution, Tibbs v. Florida,
457 U.S. 31 (1982); Commonwealth v. Vogel, 461 A.2d 604(Pa. 1983), whereas a claim challenging the weight of the
evidence if granted would permit a second trial. Id.A claim challenging the sufficiency of the evidence is a question
of law. Evidence will be deemed sufficient to support the verdict
when it establishes each material element of the crime charged
and the commission thereof by the accused, beyond a reasonable
doubt. Commonwealth v. Karkaria, 625 A.2d 1167 (Pa. 1993).
Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human
experience and the laws of nature, then the evidence is insufficient
as a matter of law. Commonwealth v. Santana, 333 A.2d 876(Pa. 1975). When reviewing a sufficiency claim the court is
required to view the evidence in the light most favorable to the
verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Commonwealth v.
Chambers, 599 A.2d 630 (Pa. 1991).
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there is
sufficient evidence to sustain the verdict. Commonwealth v.
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Whiteman, 485 A.2d 459 (Pa. Super. 1984). Thus, the trial court
is under no obligation to view the evidence in the light most
favorable to the verdict winner. Tibbs, 457 U.S. at 38 n.11.
Commonwealth v. Widmer, 744 A.2d 745, 751-52 (Pa. 2000) (citations
modified). “A true weight of the evidence challenge concedes that sufficient
evidence exists to sustain the verdict but questions which evidence is to be
believed.” Commonwealth v. Lewis, 911 A.2d 558, 566 (Pa. Super. 2006)
(citation omitted).
Appellant first claims “the evidence of penis/anal intercourse and oral
sex was insufficient.” Appellant’s Brief at 30. However, in arguing the
evidence was insufficient, Appellant solely challenges the Victim’s credibility.
Appellant argues:
It is the contention of [Appellant] that the evidence of penis/anal
intercourse and oral sex was insufficient. This assertion is based
upon the fact that the aforementioned sexual acts cannot be said
to have occurred without accepting the testimony of [Victim]
and her testimony must be discounted. … The problem for the
Commonwealth relates to the very nature of [Victim’s] testimony.
It is inherently contradictory, and it would be no matter who
presented the testing and how credible the witness was.
[Victim’s] testimony cannot be reconciled. There could not be
six acts of anal/penis intercourse while at the same time there
were two such acts. Was it six or two acts or none? One cannot
resolve the dilemma by saying that we will ‘assume’ that there
were six such acts or two acts.
Id. at 30-31 (emphasis added).
Appellant’s challenge goes to the weight, not the sufficiency, of the
evidence. See Commonwealth v. Melvin, 103 A.3d 1, 43 (Pa. Super. 2014)
(“An argument regarding the credibility of a witness’[] testimony goes to the
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weight of the evidence, not the sufficiency of the evidence.”);
Commonwealth v. Trinidad, 96 A.3d 1031, 1038 (Pa. Super. 2014)
(“variances in testimony go to the credibility of the witnesses and not the
sufficiency of the evidence”). Our Supreme Court has concluded that an
“appellant’s challenge to the sufficiency of the evidence must fail” where an
appellant phrases an issue as a challenge to the sufficiency of the evidence,
but the argument that appellant provides goes to the weight of the evidence.
Commonwealth v. Small, 741 A.2d 666, 672 (Pa. 1999). Accordingly,
Appellant’s sufficiency issue lacks merit.
Second, Appellant properly challenges the weight of the evidence
supporting his convictions for IDSI and indecent assault.3 We have explained:
The weight of the evidence is exclusively for the finder of fact, who
is free to believe all, none or some of the evidence and to
determine the credibility of the witnesses. Resolving contradictory
testimony and questions of credibility are matters for the finder of
fact. It is well-settled that we cannot substitute our judgment for
that of the trier of fact.
Moreover, appellate review of a weight claim is a review of the
exercise of discretion, not 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 [or is
not] 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
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3 Appellant preserved this issue as required by Pa.R.Crim.P. 607 by raising it
with the trial court in a post-sentence motion. See Post-Sentence Motion,
1/13/20, at 1-5.
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weight of the evidence and that a new trial should be granted in
the interest of justice.
Furthermore, in order for a defendant to prevail on a challenge to
the weight of the evidence, the evidence must be so tenuous,
vague and uncertain that the verdict shocks the conscience of the
court.
Commonwealth v. Miller, 172 A.3d 632, 642-43 (Pa. Super. 2017)
(citations omitted).
Instantly, the trial court explained:
Here, the testimony of [Victim] alone, both live and as
recorded during her interview at The Children’s House on January
27, 2019, was credible, persuasive, and compelling evidence of
[Appellant’s] guilt[. Victim] discussed four instances where
[Appellant] put his ‘thingy’ or ‘dick,’ which she located on a picture
both at trial and during the interview as a penis in her ‘butt.’
[Victim] also described the resulting ‘stuff in her underwear’ as
something that she did not ‘know what it is,’ but that it was ‘slimy,
really white,’ and ‘the next day it’s all slimy but then it dries.’ She
also stated and described two separate instances where
[Appellant] put his penis in her mouth. She said that she ended
up with ‘stuff’ in her mouth that she ‘spit’ on her shirt and pillow.
…
[I]t is worth noting that, at trial, although [Victim] identified
only two instances of sexual misconduct, the child also confirmed
at trial that she could remember events better during the January
forensic interview, that her statements to the forensic interviewer
were truthful, and that it was easier for her to discuss the events
in that setting. While it is appropriate to note and acknowledge
the inconsistencies and conflicts between [Victim’s] live testimony
at [] trial and her forensic interview nine months earlier, such
inconsistencies are insufficient to render the verdict a miscarriage
of justice.
Additionally, there was other noteworthy evidence that
supports the verdict, including the DNA evidence that was based,
in part, on the semen that was found in [Victim’s] underwear that
she wore to the forensic interview on January 29, 2019. While the
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mere presence of semen in [Victim’s] underwear is in itself
significant, the DNA evidence further bolsters the verdict.
Trial Court Opinion, 5/11/20, at 3-4 (citations to notes of testimony omitted).
We agree with the trial court’s assessment. During trial, the video of
Joanne Babcock’s forensic interview of Victim was introduced into evidence.
N.T., 10/8/19, at 126, 131; Commonwealth Exhibit 4. During the interview,
Victim told Ms. Babcock that Appellant put his “dick” in her “butt” four times.
Forensic Interview Transcript, 1/27/19, at 7-18. Additionally, Victim stated
that Appellant had put his “dick” in her mouth on two occasions. Id. at 18-
20.
During her live testimony, Victim testified Appellant put his penis in her
“butt” on two occasions. N.T., 10/8/19, at 120-23. However, Victim testified
that she remembered talking with Ms. Babcock, and agreed that it was easier
to talk with her because “there weren’t so many people around.” N.T.,
10/8/19, at 127-28. Victim further testified that it was easier to remember
what occurred at the time of the forensic interview, that she remembered Ms.
Babcock asking about things Appellant did to her, and that she answered Ms.
Babcock’s questions truthfully. Id. at 128-29. Victim testified that at trial,
she was “having a hard time saying some things that” she was able to tell Ms.
Babcock, but “they were the truth when [I] told it to her.” Id. at 129.
It was within the sole province of the jury to determine the weight of
this evidence, resolve conflicts in the testimony, and assess credibility. See
Commonwealth Jacoby, 170 A.3d 1065, 1080 (Pa. 2017). “[T]he evidence
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[was not] so tenuous, vague and uncertain that the verdict shocks the
[collective] conscience of the [C]ourt.” Commonwealth v. Talbert, 129
A.3d 536, 545 (Pa. Super. 2016) (citation omitted). Appellant’s weight issue
does not merit relief.
In his third issue, Appellant challenges the discretionary aspects of his
sentence. “The right to appellate review of the discretionary aspects of a
sentence is not absolute, and must be considered a petition for permission to
appeal.” Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super.
2014). “An appellant must satisfy a four-part test to invoke this Court’s
jurisdiction when challenging the discretionary aspects of a sentence.” Id.We conduct this four-part test to determine whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post-sentence motion; (2) the appellant
filed a timely notice of appeal; (3) the appellant set forth a concise
statement of reasons relied upon for the allowance of appeal
pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises a
substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted). “A defendant presents a substantial question when he sets forth a
plausible argument that the sentence violates a provision of the sentencing
code or is contrary to the fundamental norms of the sentencing process.”
Commonwealth v. Dodge, 77 A.3d 1263, 1268 (Pa. Super. 2013) (citations
omitted).
Appellant has complied with the first three prongs of the test by raising
his claim in a timely post-sentence motion, filing a timely notice of appeal,
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and including in his brief a Rule 2119(f) concise statement. See Appellant’s
Brief at 6-8.
With respect to a substantial question, Appellant claims his sentence is
excessive because the trial court “basically ignored all sentencing mitigating
factors.” Appellant’s Brief at 8. Appellant raises a substantial question. See
Commonwealth v. Caldwell, 117 A.3d 763, 770 (Pa. Super. 2015) (en
banc) (“an excessive sentence claim – in conjunction with an assertion that
the court failed to consider mitigating factors – raises a substantial
question.”).
Preliminarily, we recognize:
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. Nevels, 203 A.3d 229, 247 (Pa. Super. 2019) (citation
omitted).
Appellant concedes the trial court “imposed minimum sentence[s] within
the middle of the guidelines standard range.” Appellant’s Brief at 42.
However, Appellant argues the trial court,
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effectively disregarded the Sentencing Code – (1) the character
and life of [Appellant]; (2) [Appellant’s] rehabilitative needs; (3)
the limited risk of future sexual abuse by [Appellant]; and (4) the
gravity of [Appellant’s] behavior compared with other defendants.
As a result the aggregated sentences here at issue were
manifestly [and] clearly unreasonable.
Id. at 43-44. We disagree.
In conducting appellate review, we will “vacate the sentence and
remand the case to the sentencing court with instructions if … the sentencing
court sentenced within the sentencing guidelines but the case involves
circumstances where the application of the guidelines would be clearly
unreasonable[.]” 42 Pa.C.S.A. § 9781(c)(2). In determining whether a
sentence is “clearly unreasonable,”
the appellate court must consider the defendant’s background and
characteristics as well as the particular circumstances of the
offense involved, the trial court’s opportunity to observe the
defendant, the presentence investigation report, if any, the
Sentencing Guidelines as promulgated by the Sentencing
Commission, and the ‘findings’ upon which the trial court based
its sentence.
Commonwealth v. Coulverson, 34 A.3d 135, 147 (Pa. Super. 2011)
(citation omitted). See also 42 Pa.C.S.A. § 9781(d).
With regard to confinement,
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.
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42 Pa.C.S.A. § 9721(b).
Further, where the judge has the benefit of a presentence investigation
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.” Commonwealth v.
Fowler, 893 A.2d 758, 767-68 (Pa. Super. 2006); see also Commonwealth
v. Brown, 249 A.3d 1206, 1212 (Pa. Super. 2021) (“when the trial court has
the benefit of a presentence investigation [] report, it is presumed that the
court was both aware of and appropriately weighed all relevant information
contained therein.”) (citation omitted).
Here, the trial court “had the benefit of a pre-sentence investigation
report.” Trial Court Opinion, 5/11/20, at 9; see also N.T., 1/2/20, at 2-3;
Commonwealth v. Corley, 31 A.3d 293, 298 (Pa. Super. 2011) (“Where the
sentencing court imposed a standard-range sentence with the benefit of a pre-
sentence report, we will not consider the sentence excessive.”). Also,
Appellant concedes his sentence is in the standard range, Appellant’s Brief at
42, and “where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the Sentencing
Code.” Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010).
Finally — and contrary to Appellant’s argument — the trial court
considered mitigating factors. At sentencing, the trial court specifically
addressed Appellant’s age, family, criminal history, education, and lack of
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drug or alcohol abuse. N.T., 1/2/20, at 2-3. The court further considered the
facts of the case, the seriousness of the offenses, the impact on the Victim,
and Appellant’s rehabilitative needs. Id. at 8-9. Thus, we “shall continue to
presume that the sentencing judge was aware of relevant information
regarding the defendant’s character and weighed those considerations along
with mitigating statutory factors.” Commonwealth v. Rosario, 248 A.3d
599, 614 (Pa. Super. 2021) (citation omitted, emphasis added).
Ultimately, and in its discretion, the trial court imposed standard-range,
consecutive sentences. See Commonwealth v. Brown, 249 A.3d 1206,
1212 (Pa. Super. 2021) (“Long standing precedent recognizes that the
Sentencing Code affords the sentencing court discretion to impose its sentence
concurrently or consecutively[.]”) (citations omitted). We discern no error.
Appellant also argues his “aggregated sentences violat[e] the cruel and
unusual clause of the Eight[h] Amendment of the United States
[C]onstitution.” Appellant’s Brief at 44. “This issue [] presents a question of
law; thus, our scope of review is plenary, and our standard of review is de
novo.” Commonwealth v. Hill, 238 A.3d 399, 409-10 (Pa. Super. 2020)
(citation omitted).
It is well-settled that the Eighth Amendment forbids the imposition of
“cruel and unusual punishments.” U.S. Const., amend. VIII. However, our
Supreme Court has explained that the Eighth Amendment does not require
strict proportionality between crime and sentence; rather, it forbids only
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extreme sentences which are grossly disproportionate to the crime.
Commonwealth v. Baker, 78 A.3d 1044, 1047 (Pa. 2013).
As discussed above, the trial court determined Appellant’s crimes
warranted the imposition of consecutive, standard-range sentences, which in
the aggregate, do not amount to cruel and unusual punishment. See also
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super. 2014) (“We have
stated that the imposition of consecutive rather than concurrent sentences lies
within the sound discretion of the sentencing court.”) (citations omitted);
Commonwealth v. Swope, 123 A.3d 333, 341 (Pa. Super. 2015) (a
defendant “is not entitled to a volume discount for his crimes.”) (citation
omitted). Appellant’s sentence is not cruel and unusual.
In his fourth and fifth issues, Appellant alleges the trial court
“erroneously failed to grant taxpayer’s funds to [Appellant] so that he would
have necessary funds to hire and utilize an DNA expert.” Appellant’s Brief at
53. “The provision of public funds to hire experts to assist in the defense
against criminal charges is a decision vested in the sound discretion of the
court and a denial thereof will not be reversed absent an abuse of discretion.”
Commonwealth v. Konias, 136 A.3d 1014, 1019 (Pa. Super. 2016) (citation
omitted).
Specifically, Appellant argues:
[The trial court] committed error in not granting taxpayer
funds to utilize the services of a DNA expert. The DNA findings
were critical to the case outcome. [Appellant] was entitled to the
benefit of his own expert. He was financially indigent. Without
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taxpayer funds [Appellant] had no ability to hire such an expert.
The basis for funding was financial indigency. His private attorney
was acting pro-bono.
His funding motion, in spite of what the court said, was
adequately drafted. It effectively set out the facts needed to show
financial indigency. He was entitled to a hearing on his motion
but was denied the same.
Appellant’s Brief at 14-15.
It is well-established,
that indigent defendants have a right to access the same
resources as non-indigent defendants in criminal proceedings.
The state has an affirmative duty to furnish indigent defendants
the same protections accorded those financially able to obtain
them. Procedural due process guarantees that a defendant has
the right to present competent evidence in his defense, and the
state must ensure that an indigent defendant has fair opportunity
to present his defense.
Commonwealth v. Melvin, 172 A.3d 14, 22-23 (Pa. Super. 2017) (citation
omitted).
However, “the Commonwealth is not obligated to pay for the services of
an expert simply because a defendant requests one.” Konias, 136 A.3d at
1020-21 (citation omitted). A defendant’s “failure to supply the trial court
with, at a minimum, any financial information substantiating his inability to
pay, is fatal to his argument.” Id. at 1021. Thus, a “defendant must make
some specific showing of a financial hardship for the court to afford relief.”
Id. “[O]nly after the defendant has provided some reliable information as to
his inability to pay, is the trial court bound to satisfy itself of the truth of the
averments of an inability to pay by conducting a hearing.” Id. at 1020
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(citation omitted). A “mere averment of indigency and inability to pay is not
sufficient to trigger the necessity for a hearing[.]” Id. at 1021.
Upon review, we find the Honorable Evan S. Williams III, sitting as the
trial court, has capably and accurately addressed Appellant’s arguments
regarding the denial of his request for funding to retain a DNA expert. See
Trial Court Opinion, 5/11/20, at 4-6; see also id. at 6 (explaining Appellant’s
motion for taxpayer funds for a DNA expert rested “solely upon bare assertions
of indigency; it provide[d] no other support of his overall financial status.”)
(footnote omitted). We adopt Judge Williams’ analysis as our own in disposing
of Appellant’s final two issues.
In sum, there is no merit to the issues Appellant raises on appeal. The
parties shall attach a copy of the trial court’s May 11, 2020 opinion in the
event of further proceedings relevant to this matter.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/15/2021
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