Com. v. Jones, D.

J-S03010-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT
OF
PENNSYLVANIA
Appellee
v.
DEREK JONES,
Appellant No. 818 EDA 2018
Appeal from the Judgment of Sentence Entered December 15, 2017
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004692-2015
BEFORE: BENDER, P.J.E., OLSON, J., and MUSMANNO, J.
MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 09, 2019
Appellant, Derek Jones, appeals from the judgment of sentence 1 of an
aggregate term of 20 to 40 years’ imprisonment, imposed after he was
convicted of one count each of rape of a child,2 involuntary deviate sexual
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1 Appellant purports to appeal from the judgment of sentence imposed on
December 15, 2017 and the denial of his post-trial motions on February 5,
2018. However, “when timely post-sentence motions are filed, an appeal
properly lies from the judgment of sentence made final by the denial of the
post-sentence motions.” Commonwealth v. Bradley, 69 A.3d 253, 254 (Pa.
Super. 2013). We have adjusted the caption accordingly.
2 18 Pa.C.S. § 3121(c).
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intercourse with a child,3 sexual assault,4 endangering the welfare of a child,5
and corruption of minors.6 Appellant challenges the sufficiency of the evidence
to sustain his convictions and alleges the verdict is against the weight of the
evidence. Appellant also asserts that his sentence is excessive and an abuse
of the trial court’s discretion. We affirm.
A detailed account of the facts which led to Appellant’s convictions is set
forth by the trial court in the following portion of its Pa.R.A.P. 1925(a) opinion:
In early 2014, then 12-year-old J.T. lived with her dad,
Damione Jones, her brother, and her then 9-year-old half-sister,
K.J.[,] at 416 North Gilmore Street in Allentown, Lehigh County,
Pennsylvania. During this time, [Appellant] – Damione’s brother
and J.T.’s uncle – was staying at the residence. One morning, J.T.
and her sister wanted to go to [t]he Dollar Tree, and [Appellant]
offered to give them a ride. Before leaving, Damione gave J.T. an
Access Card, which she placed in the pocket of her sweater.
[Appellant] drove the girls in his truck, with J.T. in the front
seat and K.J. in the backseat. When they arrived at [t]he Dollar
Tree, [Appellant] told K.J. to go shopping in the Dollar Tree and
stated that he and J.T. were going to go get pizza at Big Woody’s.
K.J. entered the store, and [Appellant] and J.T. drove off in the
direction of Big Woody’s. [Appellant] drove past Big Woody’s and
went to a large parking lot. [Appellant] asked J.T. if she “wanted
to do grown-up things.” J.T. said “no.” [Appellant] then grabbed
J.T. by the hair, pushed her head down towards his penis, and
forced her to “suck on his private parts.”
[Appellant] then ordered J.T. to take her pants off and pulled
her by her hair over to the driver’s seat. [Appellant] pushed J.T.’s
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3 18 Pa.C.S. § 3123(b).
4 18 Pa.C.S. § 3124.1.
5 18 Pa.C.S. § 4304(a)(1).
6 18 Pa.C.S. § 6301(a)(1)(ii).
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underwear to the side and “put[] his private part inside [her]
private part.” [Appellant] moved J.T.’s hips, which caused the
Access Card to fall out of J.T.’s pocket. [Appellant] got angry, and
asked J.T. why she did not give the card to K.J. [Appellant] then
told J.T. he would beat her to death if she told anyone what
happened. [Appellant] pushed J.T. back to the passenger seat.
J.T. put her clothes back on, and the two drove back to the Dollar
Tree. K.J. was outside the store. J.T. went inside with K.J. to pay
for the items, and then they all drove back home.
The next morning, J.T. was asleep in her room. [Appellant]
came in the room, grabbed J.T. by the hair, and pulled her
downstairs to the couch. [Appellant] said, “We’re going to do this
again.” Once on the couch, [Appellant] again grabbed J.T.’s hair,
pulled her head down, and forced J.T. to perform oral sex on him.
Afterwards, he pulled her on top of him and rape[d] her again.
[Appellant] heard something outside and pushed J.T. off of him.
J.T. ran upstairs.
Sometime in July [of] 2014, after [Appellant] had moved to
North Carolina, J.T. told Damione what happened. The next day,
Damione and J.T. went to the Allentown Police and reported what
happened. J.T. gave a written statement to police, and was
subsequently examined by Debra Esernio-Jenssen, M.D., Medical
Director of the Child Advocacy Center and Child Protection Team.
J.T. reported to Dr. Esernio-Jenssen that following each incident
she had pain and pain on urination. There were no physical
findings indicating abuse, but Dr. Esernio-Jenssen concluded that
a normal exam is the most common finding in child sexual abuse
cases. Indeed, the most common symptoms reported are pain
and pain on urination.
Trial Court Opinion (“TCO”), 5/21/18, at 2-3 (citations to record and footnote
omitted).
Based on the foregoing evidence presented at a jury trial, on December
15, 2017, Appellant was found guilty of the crimes stated supra, and was
sentenced to 20 to 40 years’ imprisonment and ordered to register as a Tier
III Sexual Offender pursuant to 42 Pa.C.S. § 9799.10, et seq. On December
26, 2017, Appellant filed post-trial motions, which were denied by the trial
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court on February 5, 2018. On March 6, 2018, Appellant filed a timely notice
of appeal, followed by a timely court-ordered Rule 1925(b) statement of errors
complained of on appeal.
Herein, Appellant presents the following issues for our review:
1. Whether the trial court erred by concluding that the evidence
was sufficient to support the verdict where that evidence was
the uncorroborated testimony of the juvenile victim that was
impermissibly bolstered through the testimony of Deborah
Esernio-Jenssen, M.D.[?]
2. Whether the trial court erred in admitting, over objection, the
irrelevant and prejudicial testimony of Deborah Esernio-
Jenssen, M.D., permitting the Commonwealth to bolster the
credibility of the juvenile witness improperly[?]
3. Whether the trial court erred by concluding that the verdict was
not against the weight of the evidence where [Appellant] was
convicted by the uncorroborated testimony of the juvenile
victim, where there was a lack of any corroborating physical
evidence or uninterested testimonial evidence combined with
the juvenile’s inconsistent and contradictory versions of events
in important particulars which should shock one’s
conscience[?]
4. Whether the trial court erred in not modifying the sentence
where the minimum sentences were set at the upper limit of
the standard guideline range and resulted in a sentence where
the minimum and maximum sentence is excessive and an
abuse of the court’s discretion considering all the factors and
mitigating circumstances given for this particular [Appellant?]
Appellant’s Brief at 6.
Initially, we are compelled to note that Appellant failed to properly
preserve his sufficiency claim, due to a lack of specificity in his Rule 1925(b)
statement. In order to preserve a challenge to the sufficiency of the evidence
on appeal, Appellant’s Rule 1925(b) statement must state with specificity “the
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element or elements upon which the evidence was insufficient.”
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009). “Such
specificity is of particular importance in cases where, as here, the appellant
was convicted of multiple crimes each of which contains numerous elements
that the Commonwealth must prove beyond a reasonable doubt.” Id.Here, Appellant’s Rule 1925(b) statement merely states that the trial
court erred in concluding “that the evidence was sufficient to support the
verdict where that evidence was the uncorroborated testimony of the juvenile
victim that was impermissibly bolstered through the testimony of Deborah
Esernio-Jenssen, M.D.” Pa.R.A.P. 1925(b) Statement, 3/28/18, at 1.
Appellant fails to state with any specificity whatsoever which element(s)
relating to which crime(s) he believes the Commonwealth failed to establish.
Thus, we are compelled to conclude that Appellant’s sufficiency claim is
waived.
Nevertheless, even if Appellant had properly preserved his claim, we
would deem it to be meritless.
In reviewing a sufficiency of the evidence claim, we must
determine whether the evidence admitted at trial, as well as all
reasonable inferences drawn therefrom, when viewed in the light
most favorable to the verdict winner, are sufficient to support all
elements of the offense. Additionally, we may not reweigh the
evidence or substitute our own judgment for that of the fact
finder. The evidence may be entirely circumstantial as long as it
links the accused to the crime beyond a reasonable doubt.
Commonwealth v. Koch, 39 A.3d 996, 1001 (Pa. Super. 2011) (citations
omitted).
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In support of its finding that the Commonwealth presented sufficient
evidence to sustain the verdict, the trial court succinctly stated:
J.T. testified that when she was 12 years old, [Appellant] forced
her to perform oral sex on him and forcibly penetrated her on two
separate occasions. Additionally, J.T. reported pain and pain on
urination following both incidents, a common finding in child
sexual abuse cases. Accepting as true this evidence, as well as
any reasonable inferences arising from it, it was sufficient in law
to prove beyond a reasonable doubt that [Appellant] is guilty of
the crimes for which he was convicted.
TCO at 4. After careful review, we would agree.
To the extent that Appellant argues that the evidence is insufficient
because J.T.’s testimony was uncorroborated, we note that:
[T]he uncorroborated testimony of a sexual assault victim, if
believed by the trier of fact, is sufficient to convict a defendant,
despite contrary evidence from defense witnesses. If the
factfinder reasonably could have determined from the evidence
adduced that all of the necessary elements of the crime were
established, then that evidence will be deemed sufficient to
support the verdict.
Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006) (internal
citations and quotation marks omitted). The jury found J.T. to be a credible
witness and believed her version of the events. See TCO at 5. “It is axiomatic
that [we] must defer to the credibility determinations of the … fact finder, as
the [fact-finder] observes the witnesses’ demeanor first-hand.”
Commonwealth v. O’Bryon, 820 A.2d 1287, 1290 (Pa. Super. 2003).
Next, Appellant asserts that the trial court erred in admitting “the
irrelevant and prejudicial testimony of Deborah Esernio-Jenssen, M.D.,
permitting the Commonwealth to bolster the credibility of the juvenile witness
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improperly.” Appellant’s Brief at 6. We deem Appellant’s claim to be wholly
without merit.
The standard of review for a trial court’s evidentiary rulings, such as the
admission of expert testimony, is narrow.
The admissibility of evidence is solely within the discretion of the
trial court and will be reversed only if the trial court has abused
its discretion. An abuse of discretion is not merely an error of
judgment, but is rather the overriding or misapplication of the law,
or the exercise of judgment that is manifestly unreasonable, or
the result of bias, prejudice, ill-will or partiality, as shown by the
evidence of record.
Commonwealth v. Mendez, 74 A.3d 256, 260 (Pa. Super. 2013) (citation
omitted).
Dr. Esernio-Jenssen was recognized by the trial court as an expert
witness in the fields of general pediatrics and child abuse pediatrics. N.T. Trial
(Volume III), 10/26/17, at 12. We acknowledge that, in general, “expert
testimony cannot be used to bolster the credibility of a witness.” Mendez, 74
A.3d at 262. However, “testimony regarding conduct or behavior of victims
of sexual assaults … is appropriate for expert testimony because the physical
condition of a sexual assault victim is not a matter that is typically within the
knowledge of average jurors….” Id. (quoting Commonwealth v. Minerd,
753 A.2d 225, 228 (Pa. 2000)).
Instantly, Dr. Esernio-Jenssen testified regarding her findings of the
examination she performed on J.T., and rendered an opinion, based on her
training and experience, that her findings were consistent with that of a typical
child sexual abuse case. See N.T. Trial (Volume III) at 21-34. She stated
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that during the course of obtaining a history from J.T., J.T. disclosed the
incidents to her and reported pain at the time of the incidents, as well as pain
upon urination afterwards. Id. at 24-25. J.T. also informed Dr. Esernio-
Jenssen of other symptoms that emerged after the incidents, i.e., a decline in
grades, sadness and depression, cutting herself, difficulty sleeping, and fear
of going to locations where Appellant had gone. Id. 25-26. Dr. Esernio-
Jenssen explained that such symptoms are common in victims of child sexual
assault. Id. at 26. Additionally, Dr. Esernio-Jenssen testified to “normal
findings” from her physical examination of J.T., and she explained that normal
findings during a physical exam are common in child sexual abuse cases. Id.
at 30-33. The trial court found this testimony to be “highly relevant.” TCO at
6.
It is well-established that “[a] physician is permitted to testify that his
or her findings following examination are consistent with a victim’s allegations
of abuse.” Commonwealth v. Fink, 791 A.2d 1235, 1247 (Pa. Super. 2002)
(citing Commonwealth v. Hernandez, 615 A.2d 1337, 1343 (Pa. Super.
1992)). Moreover, in a sexual assault prosecution, “the Commonwealth may
… offer the testimony of an expert that the absence of physical trauma is
nevertheless consistent with alleged sexual abuse[.]” Id. (citing Minerd, 753
A.2d at 227). See also 42 Pa.C.S. § 5920(b)(2) (providing that in a criminal
proceeding for sexual offenses under 18 Pa.C.S. Ch. 31, an expert “may testify
to facts and opinions regarding specific types of victim responses and victim
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behaviors”). Based on the foregoing, we discern no abuse of discretion in the
trial court’s decision to allow the expert testimony of Dr. Esernio-Jenssen.
Next, we address Appellant’s challenge to the weight of the evidence to
support his convictions.
A claim alleging the verdict was against the weight of the evidence
is addressed to the discretion of the trial court. Accordingly, an
appellate court reviews the exercise of the trial court’s discretion;
it does not answer for itself whether the verdict was against the
weight of the evidence. It is well settled that the jury is free to
believe all, part, or none of the evidence and to determine the
credibility of the witnesses, and a new trial based on a weight of
the evidence claim is only warranted where the jury’s verdict is so
contrary to the evidence that it shocks one’s sense of justice. In
determining whether this standard has been met, appellate review
is limited to whether the trial judge’s discretion was properly
exercised, and relief will only be granted where the facts and
inferences of record disclose a palpable abuse of discretion.
Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa. 2011) (citations
and internal quotation marks omitted).
Appellant preserved his weight of the evidence claim in his post-
sentence motion and in his Rule 1925(b) statement. Nevertheless, we deem
this claim to be waived on appeal due to Appellant’s failure to fully develop it
in his brief. See Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.
Super. 2007) (noting failure to adequately develop an argument in an
appellate brief may result in waiver of the claim under Pa.R.A.P. 2119). Other
than a single citation of a general rule of law regarding weight of the evidence
claims, Appellant’s argument consists solely of the following broad statement:
“Here, the uncorroborated and self-contradictory testimony of the juvenile
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would be insufficient by itself and the improper use of the expert, Dr. Esernio-
Jenssen, to make up for the deficiencies of the Commonwealth’s case is such
that one’s sense of justice should be shocked. The judgment should be
reversed.” Appellant’s Brief at 13. Appellant provides no legal argument or
support whatsoever to develop his claim.
Even if Appellant had developed a proper challenge to the weight of the
evidence, the claim provides no basis for relief. When the challenge to the
weight of the evidence is predicated on the credibility of trial testimony, our
review of the trial court’s decision is extremely limited. Commonwealth v.
Gibbs, 981 A.2d 274, 282 (Pa. Super. 2009). Generally, unless the evidence
is so unreliable or contradictory as to make any verdict based thereon pure
conjecture, these types of claims will be rejected on appellate review.
Commonwealth v. Trippett, 932 A.2d 188, 198 (Pa. Super. 2007).
Moreover, the trial court opined:
[Appellant] first argues that there was no medical evidence to
support J.T.’s claim. However, Dr. Esernio-Jenssen credibly
testified that normal findings are common in child sexual abuse
cases. She further testified that the most common symptoms
reported are pain and pain on urination, which J.T. did report.
[Appellant] also argues that J.T. gave inconsistent and
contradictory testimony. First, [the court] find[s] the testimony
of N.T. [sic] to be credible. Second, her testimony was very
consistent in regards to what happened to her, how many times it
happened, where it happened, and who the perpetrator was. If
there were minor inconsistencies in some of the details, it was up
to the jury to consider all the evidence and make credibility
determinations. The jury evidently found J.T. to be credible and
believed her version of the events. In doing so, they rendered a
verdict consistent with the weight of the evidence.
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TCO at 5. “On issues of credibility and weight of the evidence, an appellate
court defers to the findings of the trial [court], who has had the opportunity
to observe the proceedings and demeanor of the witnesses.”
Commonwealth v. Cunningham, 805 A.2d 566, 572 (Pa. Super. 202). After
careful review, we ascertain no abuse of discretion by the trial court.
Finally, we address Appellant’s claim that his sentence is excessive.
Appellant avers that the trial court abused its discretion in imposing the
statutory limit and that it failed to consider any mitigating factors prior to
sentencing. We note that Appellant’s allegations relate to the discretionary
aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not
entitle an appellant to review as of right. An appellant challenging
the discretionary aspects of his sentence must invoke this Court’s
jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 720; (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.[] § 9781(b).
Objections to the discretionary aspects of a sentence are generally
waived if they are not raised at the sentencing hearing or in a
motion to modify the sentence imposed.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
and internal quotations omitted).
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Here, the record clearly reflects that Appellant filed a timely notice of
appeal, properly preserved his claim in his post-sentence motion, and included
a separate, concise Rule 2119(f) statement in his appellate brief in compliance
with the Pennsylvania Rules of Appellate Procedure. Thus, we proceed to
determine whether Appellant has raised a substantial question to meet the
fourth requirement of the four-part test outlined above.
Appellant notes that the imposition of concurrent sentences resulted in
an aggregate sentence of 20 to 40 years’ imprisonment.7 He baldly asserts
that “the minimum and maximum sentence is excessive and an abuse of the
court’s discretion considering all the factors and mitigating circumstances
given for this particular defendant because the court imposed the statutory
limit.” Appellant’s Brief at 14. Appellant fails to cite any specific reasons why
he believes his sentence is excessive, nor does he state which mitigating
factors he believes the court failed to consider.
There is ample precedent to support a determination that Appellant’s
claim fails to raise a substantial question. “Under 42 Pa.C.S.[] § 9721, the
court has discretion to impose sentences consecutively or concurrently and,
ordinarily, a challenge to this exercise of discretion does not raise a substantial
question.” Moury, 992 A.2d at 171. Moreover, “[a] bald assertion that
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7 Appellant was sentenced to the following: 20 to 40 years’ imprisonment for
rape of a child; 20 to 40 years for involuntary deviate sexual intercourse of a
child; sexual assault (merged for sentencing purposes); 12 to 84 months for
endangering the welfare of a child; and 12 to 84 months for corruption of
minors.
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Appellant’s sentence was excessive, devoid of supporting legal authority …
does not present a substantial question,” and therefore, is not reviewable by
this Court. Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super. 2012).
This Court has also 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) (internal citation omitted). See also Commonwealth v. Mobley, 581
A.2d 949, 952 (Pa. Super. 1990) (holding that a claim that the sentencing
court failed to take into consideration the defendant’s rehabilitative needs and
was manifestly excessive did not raise a substantial question where the
sentence was within the statutory limit and the sentencing guidelines).
Even if we were to find that Appellant’s claim did raise a substantial
question, the underlying allegation is meritless.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and 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.
***
When imposing a sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In particular, the court should refer to the defendant’s
prior criminal record, his age, personal characteristics and his
potential for rehabilitation. Where the sentencing court had the
benefit of a presentence investigation report (“PSI”), we can
assume the sentencing court was aware of relevant information
regarding the defendant’s character and weighed those
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considerations along with mitigating statutory factors. Further,
where a sentence is within the standard range of the guidelines,
Pennsylvania law views the sentence as appropriate under the
Sentencing Code.
Commonwealth v. Griffin, 65 A.3d 932, 935-36 (Pa. Super. 2013) (internal
citations and quotation marks omitted).
The record belies Appellant’s assertion that the trial court failed to
consider mitigating factors. The court expressly stated that it “took into
account all the information available to [the court] at the time of sentencing,
including the [pre-sentence investigation] report, testimony and letters
received from [Appellant’s] family, testimony from [Appellant], and the
arguments of counsel.” TCO at 6. Additionally, the trial court noted that
“[Appellant’s] minimum sentences were within the standard range, and the
maximum sentences were within the statutory limits.” Id.After careful review of the record, we are satisfied that the trial court
gave appropriate consideration to the relevant factors before issuing
Appellant’s sentence and ascertain no abuse of discretion.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/9/19
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