Com. v. Olivo, R.

J-S44024-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAFAEL OLIVO :
:
Appellant : No. 2854 EDA 2017
Appeal from the Judgment of Sentence May 23, 2017
In the Court of Common Pleas of Monroe County Criminal Division at
No(s): CP-45-CR-0001511-2016
BEFORE: LAZARUS, J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY MURRAY, J.: FILED AUGUST 17, 2018
Rafael Olivo (Appellant) appeals from the judgment of sentence imposed
after a jury convicted him of three counts each of endangering the welfare of
a child (EWOC), conspiracy to commit EWOC, and simple assault, as well as
two counts each of summary harassment.1 We affirm.
The child victims in this case are Appellant’s three stepsons.2 The trial
court summarized the evidence presented at trial as follows:
____________________________________________
1
18 Pa.C.S.A. §§ 4304, 903, 2701, 2709.
2
Appellant’s wife, Christine Nazario, was also charged and convicted of EWOC,
conspiracy to commit EWOC and summary harassment in relation to the abuse
of the boys, who are Ms. Nazario’s biological sons. Appellant and Ms. Nazario
were tried jointly, and her separate appeal is before this Court at
Commonwealth v. Nazario, 3495 EDA 2017.
J-S44024-18
At the time of the abuse, the children were ages twelve, nine, and
seven. [Appellant] lived with the children and their mother, who
also abused them. . . . [A]ll three of the children testified in open
court and were cross-examined. Each child provided background
information and testified about verbal and physical abuse and
assaults he suffered at the hands of Appellant. Each child also
testified about abuse and assaults perpetrated by [Appellant] on
the child’s siblings. The children, who knew the difference
between being spanked for punishment and being abused,
explained that at times they were hit as frequently as five to six
times a week.
In summary, the testimony of the children established that,
over an extended period of time, [Appellant] verbally,
emotionally, and physically abused the children, hitting and
beating them with belts, slippers, aerosol cans and fists – anything
that came to hand. This included, but was by no means limited
to, [Appellant] giving the children “cocotasos” – hitting them on
the head with his knuckles. At times, the children sustained
bruises, cuts or scrapes. They often experienced pain. On one
occasion, [Appellant] shot the oldest child with a pellet or BB gun.
On another occasion, the oldest child was hit so hard he could not
open his jaw for several days. On yet another occasion, the
middle child had the wind knocked out of him when [Appellant]
punched him in the chest. In addition, [Appellant] called the
children names and swore at them. Further, [Appellant] stood by
while his wife, the children’s mother, abused and assaulted them.
Sometimes, [Appellant] and the children’s mother were abusive
toward the children together. On top of the physical, emotional,
and verbal abuse, [Appellant] abused the family dog in the
children’s presence and, along with their mother, smoked
marijuana in front of the children. For the most part, the abuse
and assault perpetrated by [Appellant] (and their mother)
happened in the home. The children were threatened and told
there would be dire consequences if they told anyone about the
abuse.
In addition to the testimony of the three children, Trooper
Brian Borowicz, the affiant, and Lynn Courtright, the forensic
interviewer who interviewed the children . . . testified briefly and
generally as to statements the children made to Ms. Courtright
when she interviewed them. The children’s statements at trial
were consistent with the statements they made to Ms. Courtright.
-2-
J-S44024-18
Trial Court Opinion, 11/13/17, at 8-10.
At the conclusion of trial on February 10, 2017, the jury convicted
Appellant of the aforementioned crimes. On May 23, 2017, the trial court
sentenced Appellant to an aggregate 79 to 158 months of incarceration, plus
90 days for the summary harassment convictions, followed by three years of
probation. Appellant filed a post-sentence motion for reconsideration of
sentence on June 1, 2017. The trial court convened a hearing on the motion
on August 1, 2017, at the conclusion of which it denied the motion. Appellant
filed this timely appeal. Both Appellant and the trial court have complied with
Appellate Rule of Procedure 1925.3
Appellant presents two issues for our review:
I. Whether the Lower Court abused its discretion at the time of
Sentencing in this matter.
II. Whether the lower Court erred by admitting evidence under
Pennsylvania’s Tender Years statute despite the
Commonwealth’s clear violation of the notice requirement
under the statute.
Appellant’s Brief at 11.4
We address Appellant’s issues in reverse order. With regard to his
evidentiary claim, Appellant argues that the trial court erred by permitting the
Commonwealth to present hearsay testimony under the Tender Years Act
____________________________________________
3
With the trial court’s permission, Appellant filed his Rule 1925(b) concise
statement nunc pro tunc. See Trial Court Opinion, 11/13/17, at 1.
4
The Commonwealth has not filed a reply brief.
-3-
J-S44024-18
without providing Appellant with sufficient notice. Appellant asserts that the
Commonwealth’s written notice on February 7 – one day prior to the
commencement of the jury trial – “was woefully deficient in both time and
content.” Appellant’s Brief at 25. We begin our analysis with our standard of
review:
The standard of review governing evidentiary issues is settled. The
decision to admit or exclude evidence is committed to the trial
court's sound discretion, and evidentiary rulings will only be
reversed upon a showing that a court abused that discretion. A
finding of abuse of discretion may not be made “merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be clearly
erroneous.” Commonwealth v. Laird, 605 Pa. 137, 988 A.2d
618, 636 (2010) (citation and quotation marks omitted); see also
Commonwealth v. Sanchez, 614 Pa. 1, 36 A.3d 24, 48 (2011).
Matters within the trial court’s discretion are reviewed on appeal
under a deferential standard, and any such rulings or
determinations will not be disturbed short of a finding that the trial
court “committed a clear abuse of discretion or an error of law
controlling the outcome of the case.” Commonwealth v.
Chambers, 602 Pa. 224, 980 A.2d 35, 50 (2009) (jury
instructions)[ .]
Commonwealth v. Koch, 106 A.3d 705, 710–11 (Pa. 2014). This Court has
specifically held that we will not reverse the trial court’s decision to admit
evidence pursuant to the Tender Years Act absent an abuse of discretion.
Commonwealth v. Curley, 910 A.2d 692, 697 (Pa. Super. 2006), appeal
denied, 927 A.2d 622 (Pa. 2007). Relevant to our analysis, as well as
Appellant’s three assault convictions, the Tender Years Act states:
(a) General rule.--An out-of-court statement made by a child
victim or witness, who at the time the statement was made
was 12 years of age or younger, describing any of the
-4-
J-S44024-18
offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to
criminal homicide), 27 (relating to assault), 29 (relating to
kidnapping), 31 (relating to sexual offenses), 35 (relating to
burglary and other criminal intrusion) and 37 (relating to
robbery), not otherwise admissible by statute or rule of
evidence, is admissible in evidence in any criminal or civil
proceeding if:
(1) the court finds, in an in camera hearing, that the
evidence is relevant and that the time, content and
circumstances of the statement provide sufficient
indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
...
(b) Notice required.--A statement otherwise admissible under
subsection (a) shall not be received into evidence unless the
proponent of the statement notifies the adverse party of
the proponent’s intention to offer the statement and the
particulars of the statement sufficiently in advance of the
proceeding at which the proponent intends to offer the statement
into evidence to provide the adverse party with a fair opportunity
to prepare to meet the statement.
42 Pa.C.S.A. § 5985.1 (emphasis added).
There is no statutory or case law that defines “sufficient notice” under
the Tender Years Act, and upon review of the record, we disagree with
Appellant’s contention that the trial court abused its discretion in admitting
the hearsay statements of Trooper Borowicz and Ms. Courtright because the
Commonwealth’s notice was “woefully deficient both in time and content.”
Appellant’s Brief at 25. The record does not support that assertion.
-5-
J-S44024-18
The trial court explained that oral notice preceded the Commonwealth’s
written notice:
While it is true that formal written notice [by the Commonwealth
of its intention to admit the Tender Years hearsay] was not given
[to Appellant] until [the day of jury selection], the assistant
district attorney gave oral notice two weeks before trial. Given
the facts of this case and what [Appellant] and his attorney knew
prior to trial, we believe that the oral notice was given “sufficiently
in advance of the proceeding at which the [Commonwealth]
intended to offer the statement into evidence to provide
[Appellant] with a fair opportunity to prepare to meet the
statement” within the meaning of the [Tender Years Act]. See 42
Pa.C.S.A. §5985.1(b).
Trial Court Opinion, 11/13/17, at 19.
We further note the context in which hearsay testimony was admitted
(or not admitted, as was the case with videos of interviews of the children
conducted by Ms. Courtright and observed by Trooper Borowicz). The trial
court stated:
Here, all three abuse victims are children. All three were
cross-examined by counsel for [Appellant] who tried to impeach
them, point out inconsistencies, capitalize on their youth, and
otherwise implied that they were not credible. Under these facts
and the law summarized and applied in [Commonwealth v.]
Hunzer, [868 A.2d 498 (Pa. Super. 2005), appeal denied, 880
A.2d 1237 (Pa. 2005)], the very brief testimony of Trooper
Borowicz and Ms. Courtright which recounted prior consistent
statements of the children, made at a date closer in time to the
abuse, was clearly admissible.
Id. at 17-18.
Further, the trial court accurately described the content of the admitted
hearsay testimony as follows:
-6-
J-S44024-18
[O]ver the objection of defense counsel, Trooper Borowicz
testified, very briefly, as to what the children told Ms. Courtright
during their CAC interviews. Similarly, during her testimony, Ms.
Courtright testified, even more briefly and generally, about what
the children told her. Ms. Courtright’s trial testimony related
almost exclusively to statements she recalled the children making
about abuse the children suffered at the hands of their mother.
Id. at 15 (citations to notes of testimony omitted).
Given this record, we discern no abuse of discretion by the trial court.
Appellant’s evidentiary claim is without merit.
Appellant also argues that his sentence was excessive. He notes that
the trial court sentenced him in the aggravated range on one count, and “ran
the remainder of the charges consecutive” so that “the cumulative effect
shocks the conscience given the relatively minor nature of Appellant’s prior
record, which had never resulted in any previous incarceration, and the lack
of any evidence of lasting physical impairment of the victims.” Appellant’s
Brief at 14.
Appellant challenges the discretionary aspects of his sentence. Our
standard of review when considering discretionary aspects of sentencing
claims is as follows:
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
-7-
J-S44024-18
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
quotations and citations omitted).
“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),
appeal denied, 104 A.3d 1 (Pa. 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
his 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), appeal denied, 86 A.3d 231 (Pa. 2014). “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) (quotations and citations omitted),
appeal denied, 91 A.3d 161 (Pa. 2014).
-8-
J-S44024-18
Appellant has substantially complied with the first three prongs of the
discretionary aspect test to invoke our jurisdiction. We thus proceed to
determine whether he has raised a substantial question. Whether a particular
issue constitutes a substantial question about the appropriateness of a
sentence is a question to be evaluated on a case-by-case basis.
Commonwealth v. Johnson, 961 A.2d 877, 879 (Pa. Super. 2008), appeal
denied, 968 A.3d 1280 (Pa. 2009).
Appellant argues that the court abused its discretion by sentencing him
“in the aggravated range as to one count without sufficient reasons appearing
of record.” Appellant’s Brief at 16. He states that “aggregating all the
sentences[,] resulting in more than 6½ years of minimum incarceration,
despite a lack of evidence of any lasting physical harm to the children, was
contrary to the fundamental principles of the sentencing code, and constituted
a manifest abuse of discretion.” Id. We disagree.
Appellant concedes that the trial court “did outline at sentencing its
reasons for sentencing Appellant in the aggravated range, including the fact
that Appellant had multiple bench warrants issued in this case prior to trial,
[but] none of those reasons include the actual physical harm occasioned upon
the children.” Id. at 19. However, Appellant contends that his sentence
“shocks the conscience” because “[w]hile the child victims clearly described
being subjected to intimidation and physically offensive living conditions, there
was a dearth of evidence showing any physical harm as a result of Appellant’s
actions.” Id. Appellant’s allegation of error fails to raise a substantial
-9-
J-S44024-18
question that his sentence is not appropriate under the Sentencing Code.
First, the record is unequivocal that Appellant inflicted physical abuse upon
the children. To the extent Appellant characterizes the lack of “lasting physical
harm” from his abuse of the children as a mitigating factor, “this Court has
held on numerous occasions that a claim of inadequate consideration of
mitigating factors does not raise a substantial question for our review.”
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (citation
omitted).
Moreover, Appellant’s concession that the trial court “did outline at
sentencing its reasons for sentencing Appellant in the aggravated range” is an
understatement. The trial court’s extended commentary at sentencing spans
14 pages in which it details the evidence presented at trial, the pre-sentence
investigation report, and the statutory factors and sentencing guidelines. See
N.T., 5/23/17, at 12-26. The trial court referenced Appellant’s prior record
score and Appellant’s “contempt for the process and the authority of the Court
and the laws of Pennsylvania.” Id. at 15. The court stated, “this case went
way beyond anything that could even conceivably – even in the cosmic sense
– be considered punishment or corporal punishment.” Id. at 18.
Like this Court, the trial court opined that Appellant failed to raise a
substantial question in support of his sentencing claim. Trial Court Opinion,
11/13/17, at 28. That conclusion notwithstanding, the trial court authored an
exemplary analysis in which it applied prevailing law to the facts of this case.
- 10 -
J-S44024-18
Id. at 21-30. Accordingly, upon review, we find Appellant’s allegation of trial
court error to be meritless.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/17/2018
- 11 -