Com. v. Jusino, R., Jr.

J-S14025-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RAMON LUIS JUSINO, JR.,
Appellant No. 1376 MDA 2016
Appeal from the Judgment of Sentence May 10, 2016
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0000848-2015
BEFORE: GANTMAN, P.J., SHOGAN and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED APRIL 12, 2017
Appellant, Ramon Luis Jusino, Jr., appeals from the judgment of
sentence entered following multiple convictions stemming from illegal sexual
contact he had with his daughter. We affirm.
The trial court summarized the procedural history of this case as
follows:
On January 27, 2016, after a four day jury trial,
[Appellant] was convicted of one count of rape of a child,1 two
counts of involuntary deviate sexual intercourse with a child,2
one count of unlawful contact with a minor,3 one count of
corruption of minors,4 one count of incest of a minor5 and one
count of indecent assault.6
1
18 Pa.C.S. § 3121(c).
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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2
18 Pa.C.S. § 3123(b).
3
18 Pa.C.S. § 6318(a)(1).
4
18 Pa.C.S. § 6301(a)(1)(ii).
5
18 Pa.C.S. § 4302(b)(1).
6
18 Pa.C.S. § 3126(a)(7).
On May 10, 2016, after a presentence investigation,
[Appellant] was sentenced to an aggregate term of 31 to 70
years incarceration.
On May 20, 2016, [Appellant] filed his motion to
reconsider sentence. On July 12, 2016, [Appellant] filed an
amended motion to reconsider sentence. The motion was
granted, and on August 5, 2016, [Appellant’s] sentence was
modified to an aggregate term of 22 to 50 years incarceration.
[Appellant] filed his notice of appeal on August 12, 2016.
After being granted an extension of time, [Appellant] filed his
statement of errors complained of on appeal on September 23,
2016.
Trial Court Opinion, 10/5/16, at 1-2 (internal citations omitted). The trial
court filed an opinion pursuant to Pa.R.A.P. 1925(a).
Appellant presents the following issues for our review:
A. Whether the lower court erred when it overruled
[Appellant’s] objection and found that the victim, A.H. was
competent to testify at trial?
B. Whether the lower court erred in sustaining the
Commonwealth’s objection and terminating counsel’s cross-
examination which was attacking the credibility of the alleged
victim?
C. Whether the lower court committed an abuse of
discretion when it imposed an aggregate sentence of not less
than 22 nor more than 50 years which was manifestly excessive
and unduly harsh?
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Appellant’s Brief at 7 (full capitalization omitted).
Appellant first argues that the trial court erred when it allowed the
victim, A.H., to testify at trial. Appellant’s Brief at 21. Appellant asserts
that the alleged victim failed all three prongs of the test used in determining
competency of a minor witness. Id. at 21-23.
“The determination of a witness’s competency rests within the sound
discretion of the trial court.” Commonwealth v. Judd, 897 A.2d 1224,
1228 (Pa. Super. 2006). “The decision of the trial court will not be disturbed
absent a clear abuse of that discretion; consequently, as the Superior Court
has previously observed, ‘our standard of review of rulings on the
competency of witnesses is very limited indeed.’” Id.In Pennsylvania, the general rule is that every witness is presumed to
be competent to be a witness. Commonwealth v. Delbridge, 855 A.2d
27, 39 (Pa. 2003); Pa.R.E. 601(a). However, young children must be
examined for competency pursuant to the following test:
There must be (1) such capacity to communicate, including as it
does both an ability to understand questions and to frame and
express intelligent answers, (2) mental capacity to observe the
occurrence itself and the capacity of remembering what it is that
she is called to testify about and (3) a consciousness of the duty
to speak the truth.
Delbridge, 855 A.2d at 39 (quoting Rosche v. McCoy, 156 A.2d 307, 310
(Pa. 1959)) (emphasis in original). A competency hearing is centered on the
inquiry into “the minimal capacity of the witness to communicate, to observe
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an event and accurately recall that observation, and to understand the
necessity to speak the truth.” Id. at 40. Credibility is not an issue at a
competency hearing. Id.In addressing the competency of A.H. to testify, the trial court
provided the following analysis:
The [c]ourt conducted a competency hearing outside the
jury’s presence on the first day of trial to assess the minor
victim’s capacity to testify. As part of this hearing, the [c]ourt,
as well as the assistant district attorney and defense counsel,
questioned the child. The child knew her date of birth, her grade
in school at the time of the event, where the event had taken
place, and what had been done to her. She knew the difference
between things that were true and things that were made up,
and the difference between the truth and a lie. She also
understood what happens if one lies and that one should not lie.
At the end of the hearing, the [c]ourt asked “are you going to be
able to tell us what happened when you lived at your father’s
house?” to which the child responded affirmatively.
In responding to defense counsel’s argument that the child
was incompetent to testify because she was unable to provide an
accurate time frame and failed to answer questions by saying “I
don’t remember, I don’t want to remember. . . ,” the [c]ourt said
Well, my concern is that the child appears more to
be unwilling to testify rather than unable to testify. I
don’t see much of a problem with the time frame. At
her age she indicated she may have been between
four and six, but she was able to say she was in first
grade, which was consistent with the time frame we
have now. . . . I did observe her very carefully while
she was on the witness stand. She was constantly
wringing her hands, constantly making furtive
glances over to [Appellant]. And when she would
indicate that she forgot various things that occurred,
quite candidly, I do not believe she forgot, I believe
she simply did not want to testify about what had
occurred. . . . She does understand the difference
between telling the truth and telling a lie. She does
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understand the difference between something that is
make believe and something that occurred. The
issue with respect to her ability to recall events that
happened to her, again, I don’t think the record
shows she is unable to do that, it is more she is
unwilling to do that.
In addressing the child’s ability to answer questions, the
[c]ourt further observed that when she was questioned by the
assistant district attorney and defense counsel, who stood at the
edge of the jury box so the child was not looking at [Appellant],
she focused her attention on you, she was able to
give much more responsive answers than when I
spoke to her and she was constantly looking over at
[Appellant]. And the more she would look over at
him, the more she would wring her hands . . . I don’t
have a great deal of concern with the matter you
raised about her responses to the questions because
when she kept saying I forgot or I don’t know I think
she was just hoping that the whole thing would go
away and she wouldn’t have to respond.
Ultimately, observing that there is a difference between
being unwilling to testify and being incompetent to testify, the
[c]ourt concluded that the question was not one of the child’s
competence to testify but, because of either the subject matter
or [Appellant’s] identity, her willingness to do so. Having
questioned the child and having observed her as she was
questioned by both the assistant district attorney and defense
counsel, the [c]ourt did not abuse its discretion in determining
that the child was competent to testify, or in overruling defense
counsel’s objection to her competency.
Trial Court Opinion, 10/5/16, at 6-8 (internal citations omitted).
The trial court’s analysis is supported by the record. Based on the
certified record, we agree with the trial court’s conclusion that A.H. was
competent to testify and met the three prongs of the competency test for
minors. Delbridge, 855 A.2d at 40. As the trial court aptly recognized,
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A.H.’s hesitation to testify against her father, as reflected throughout the
competency hearing, did not compel the conclusion that she was not
competent to testify. Thus, the trial court did not abuse its discretion by
concluding that A.H. was competent to testify. Appellant’s first claim fails.
In his second issue, Appellant asserts that the trial court erred in
sustaining the Commonwealth’s objection and terminating counsel’s cross-
examination of the prosecuting police officer. Appellant’s Brief at 23.
Appellant asserts that defense counsel was attempting to develop during his
examination of the officer that the victim’s recollection could be called into
question due to her immaturity. Id. at 23. Appellant posits that while the
trial court found A.H. competent to testify, it does not mean that her
testimony had to be believed. Id. at 24. Appellant argues that counsel had
a right to cross-examine the police officer, who observed various interviews
of the victim, in order to develop the record concerning her immaturity. Id.
at 24. Appellant maintains that by sustaining the Commonwealth’s
objection, the trial court unfairly limited Appellant’s right to cross-examine
and impeach and thereby committed a manifest abuse of discretion. Id. at
24.
“The scope of cross-examination is a matter left to the sound
discretion of the trial court, and the trial court’s rulings will not be disturbed
absent an abuse of discretion.” Commonwealth v. Boczkowski, 846 A.2d
75, 96 (Pa. 2004). Additionally, “[i]t is within the ordinary capacity of a jury
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to assess whether a particular witness is lying, and resolving questions of a
witness’s credibility is a function reserved exclusively for the jury.”
Commonwealth v. Boyd, 672 A.2d 810, 812 (Pa. Super. 1996).
The veracity of a particular witness is a question which
must be answered in reliance on the ordinary experiences of life,
common knowledge of the natural tendencies of human nature,
and observations of the character and demeanor of the witness.
As the phenomenon of lying is within the ordinary capacity of
jurors to assess, the question of a witness’s credibility is
reserved exclusively for the jury.
Commonwealth v. Alicia, 92 A.3d 753, 761 (Pa. 2014) (quoting
Commonwealth v. Davis, 541 A.2d 315, 317 (Pa. 1988). Moreover, our
Supreme Court explained that: “[w]e have consistently maintained that a
lay jury is capable of determining whether a witness is lying, and thus expert
testimony is not permissible as to the question of witness credibility.”
Alicia, 92 A.3d at 760. “Under Pennsylvania law, only evidence of a general
reputation for truthfulness in the community is admissible as character
testimony. Thus, an individual’s opinion as to a witness’s ‘character for
truthfulness,’ no matter how well the individual knows the witness, is never
admissible in this Commonwealth.” Commonwealth v. Smith, 567 A.2d
1080, 1082 (Pa. Super. 1989) (internal citations omitted).
In Smith, the Commonwealth presented at trial the testimony of a
family therapist regarding the truth-telling ability of the seven-year-old
victim of indecent exposure and corruption of minors. Smith, 567 A.2d at
1081. This Court found that the appellant’s counsel erred in failing to object
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to the introduction of this testimony. Id. at 1082. This Court concluded
that “[b]y testifying as to the child’s character for telling the truth, the
Commonwealth witness usurped the credibility-determining function of the
jury. This infringement upon the jury’s sacred domain prejudiced Smith
because the credibility of the alleged victim was the linchpin of the
Commonwealth’s case.” Id. at 1083. In support of this conclusion, we
explained:
We find it unwise to create an exception to the credibility-
determining function of the jury in a case in which an alleged
child/victim testifies. We do not dispute that an alleged
child/victim of sexual abuse should have the opportunity to take
the witness stand and tell his or her story. The competency
considerations for child witnesses, repeatedly articulated in
Pennsylvania, are designed to allow a child witness to testify
merely if the child has the capacity to have observed the event
giving rise to the litigation with a substantial degree of accuracy,
can remember the event giving rise to the litigation, has the
ability to understand questions and communicate answers, and
has a consciousness of the duty to speak the truth.
Furthermore, child witnesses, like all witnesses, are presumed
competent to testify. From this testimony, the jury, doubtlessly
taking into consideration the youth of the witness, can make a
determination as to the veracity of the testimony and the
credibility of the witness. We find improper, on the other hand, a
situation in which an expert witness, or any witness for that
matter, takes the witness stand and under the guise of
“rehabilitation” proceeds to testify as to the credibility of the
child/witness. To allow such testimony is to permit the unlawful
usurpation of the credibility-finding function of the jury. This
strikes at the heart of our system of justice.
Id. The panel further noted that “[w]e would have reached our conclusion
at bar if any Commonwealth witness presumed to give his or her personal
opinion as to the veracity of another witness[.]” Id.
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In this case, defense counsel questioned the investigating officer,
Lancaster City Detective Gareth Lowe, as to his opinion on the recollection of
the minor victim. The following exchange occurred between defense counsel
and Detective Lowe during cross-examination:
[Defense Counsel]: The child also did state that she was
about four or five years old as well [at
the time of the abuse]?
[Detective Lowe]: She is nine years old when she took the
stand here, Counselor.
[Defense Counsel]: Right.
[Detective Lowe]: She is nine years old and I’m sure that
her recollection of how old she was when
her dad was doing these things to her,
probably, she doesn’t remember how old
she was.
[Defense Counsel]: But her recollection can be in question
because of her age?
N.T., 1/26/17, at 205. The prosecutor objected, stating: “Objection, Your
Honor. Her testimony speaks for itself. She told the jury what grade she
was in, her age, that’s for the jury to consider.” Id. at 205. The trial court
sustained the objection and issued the following curative instruction:
Ladies and gentlemen, as I told you before and I will tell you
again in my final instructions, you are free to believe all, part, or
none of the testimony of any witness. Your opinion is the only
one that counts in this case. You will have to evaluate all of the
testimony of the witnesses, using your common sense and
human experience. You have to evaluate the child’s testimony,
bearing in mind that she is nine years old at the time she got on
the stand, she is talking about events that happened in the past.
If you find her recitation is not reliable for any reason then you
are free to disregard her testimony in its entirety, if you wish.
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On the other hand, if you find that her testimony is reliable, then
you are free to consider it. That is entirely up to you. The
lawyers are not here to tell you what to think or what to believe,
that is your responsibility and yours alone. I am not here to tell
you what to think or what to do, again, it is your responsibility
and yours alone.
N.T., 1/26/17, at 205-206.
The sought-after testimony from Detective Lowe constituted an
impermissible attempt to usurp the jury’s role as the exclusive arbiter of
credibility. Thus, the trial court properly sustained the Commonwealth’s
objection and prohibited this line of questioning of Detective Lowe on cross-
examination. Accordingly, the trial court did not abuse its discretion in
sustaining this objection, thereby limiting the cross-examination of Detective
Lowe. Appellant’s second issue lacks merit.
In his final issue, Appellant argues that the trial court committed an
abuse of discretion when it imposed an aggregate sentence of not less than
twenty-two nor more than fifty years, which was manifestly excessive and
unduly harsh. Appellant’s Brief at 24. Appellant asserts that he has a
documented history of mental health issues, was the product of an abusive
childhood, and had long term problems with drugs and alcohol. Id. at 26.
Appellant further argues that “[d]espite the fact that [Appellant] only had
one prior felony conviction, the [c]ourt saw fit to impose a sentence of not
less than 22 years incarceration.” Id. Appellant maintains that the
sentence violated the Sentencing Code’s language set forth in 42 Pa.C.S. §
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9721(b) because it did not take into account Appellant’s rehabilitative needs.
Id. at 27. Appellant contends that his sentence should be reversed. Id.
Appellant’s issue challenges the discretionary aspects of his sentence.
We note that “[t]he right to appellate review of the discretionary aspects of
a sentence is not absolute.” Commonwealth v. Zirkle, 107 A.3d 127, 132
(Pa. Super. 2014). Rather, where an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for
allowance of appeal. Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa.
Super. 2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
[W]e 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. [708]; (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.A.
§ 9781(b).
Id. at 170 (citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)). The determination of whether there is a substantial question
is made on a case-by-case basis, and this Court will grant the appeal only
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when the appellant advances a colorable argument that the sentencing
judge’s actions were either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms which underlie
the sentencing process. Commonwealth v. Sierra, 752 A.2d 910, 912–
913 (Pa. Super. 2000).
Herein, the first three requirements of the four-part test are met:
Appellant brought a timely appeal, raised the challenges in a post-sentence
motion, and included in his appellate brief the necessary separate concise
statement of the reasons relied upon for allowance of appeal pursuant to
Pa.R.A.P. 2119(f). Therefore, we next determine whether Appellant raises a
substantial question requiring us to review the discretionary aspects of the
sentence imposed by the trial court.
“We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists.” Commonwealth v. Ahmad, 961
A.2d 884, 886-887 (Pa. Super. 2008). In his Pa.R.A.P. 2119(f) statement,
Appellant argues that the trial court’s sentence is manifestly excessive and
unduly harsh given Appellant’s background and the circumstances of the
offense. Appellant’s Brief at 19-20. Appellant contends that the trial court
focused exclusively on the serious nature of the offense and failed to
consider the mitigating factors, specifically Appellant’s rehabilitative needs.
Id. at 20. Appellant also argues that the imposition of consecutive
sentences resulting in the aggregate sentence of twenty-two to fifty years is
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unduly harsh and manifestly excessive. Id. This Court has held that a
challenge to the imposition of consecutive sentences as unduly excessive,
together with a claim that the trial court failed to consider the defendant’s
rehabilitative needs upon fashioning its sentence, presents a substantial
question. Commonwealth v. Bonner, 135 A.3d 592, 604 (Pa. Super.
2016). Because Appellant has presented a substantial question, we proceed
with our analysis.
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. Commonwealth v. Fullin, 892 A.2d 843, 847 (Pa.
Super. 2006). In this context, an abuse of discretion is not shown merely by
an error in judgment. Id. 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. Id.When imposing a sentence, the sentencing court must
consider the factors set out in 42 Pa.C.S. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact
on victim and community, and rehabilitative needs of defendant,
and it must impose an individualized sentence. The sentence
should be based on the minimum confinement consistent with
the gravity of the offense, the need for public protection, and the
defendant’s needs for rehabilitation.
Id. Guided by these standards, we must determine whether the court
abused its discretion by imposing a “manifestly excessive” sentence that
constitutes “too severe a punishment.” Id. Moreover, this Court has
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explained that when the “sentencing court had the benefit of a presentence
investigation report (‘PSI’), we can assume the sentencing court ‘was aware
of relevant information regarding defendant’s character and weighed those
considerations along with mitigating statutory factors.’” Moury, 992 A.2d at
171.
In addressing this claim, the trial court explained its reasoning in
imposing Appellant’s sentence as follows:
Although the sentences imposed were not in the
aggravated range, the [c]ourt stated the reasons for its sentence
on the record and in [Appellant’s] presence. The [c]ourt also
identified the factors and materials considered in determining
that sentence. In particular, the [c]ourt considered the
presentence report noting [Appellant’s] background, including
his age, family background and upbringing, level of education,
prior criminal record, history of substance abuse and substance
abuse treatment, history of mental health issues and mental
health treatment, and his employment history. The [c]ourt also
considered the Sentencing Code and the sentencing guidelines,
the circumstances of the offenses, the need to protect the public
from such criminal conduct and [Appellant’s] rehabilitative
needs. While [Appellant] offered no comment, counsel spoke on
his behalf and the [c]ourt took that into account as well as the
position of the Commonwealth.
The [c]ourt noted that [Appellant] was not amenable to
supervision and had failed to comply with the requirements
imposed as demonstrated by his five probation and parole
violations, and that [Appellant] had not seriously pursued
treatment for his substance abuse or mental health issues. The
[c]ourt also considered an aggravating factor that [Appellant]
had “violated the duty of care, protection and support” owed to
the child victim.
These were extremely serious offenses perpetrated on a
defenseless child over a period of time. It is evident from the
record that the [c]ourt adequately considered all relevant
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information in fashioning [Appellant’s] sentence. Therefore, his
claims that the court abused its discretion are without merit.
Trial Court Opinion, 10/5/16, at 4-5 (internal citations omitted).
As is reflected by the record, the trial court considered the protection
of the public, the gravity of the offense in relation to its impact on the victim
and community, and the rehabilitative needs of Appellant in sentencing
Appellant. Fullin, 892 A.2d at 847. Accordingly, we conclude that the trial
court did not abuse its discretion by imposing a manifestly excessive or
unduly harsh sentence.
Moreover, the trial court had the benefit of a PSI. Thus, we can
assume the sentencing court was aware of relevant information regarding
Appellant’s character and weighed those considerations along with mitigating
statutory factors. Moury, 992 A.2d at 171; see also Commonwealth v.
Fowler, 893 A.2d 758, 766 (Pa. Super. 2005) (“Since the sentencing court
had and considered a [PSI], this fact alone was adequate to support the
sentence, and due to the court’s explicit reliance on that report, we are
required to presume that the court properly weighed the mitigating factors
present in the case.”). Accordingly, Appellant’s argument that the trial court
failed to consider mitigating evidence, specifically his need for rehabilitation,
fails. See Moury, 992 A.2d at 171; Fowler, 893 A.2d at 766.
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Judgment of sentence affirmed.
Judge Strassburger joins the Memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/12/2017
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