Com. v. Taylor, C.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER ANTHONY TAYLOR
Appellant No. 1168 MDA 2014
Appeal from the Judgment of Sentence June 17, 2013
In the Court of Common Pleas of York County
Criminal Division at No(s): CP-67-CR-0003093-2012
BEFORE: PANELLA, J., OLSON, J., and OTT, J.
MEMORANDUM BY OTT, J.: FILED JULY 07, 2015
Christopher Anthony Taylor appeals from the judgment of sentence
imposed on June 17, 2013, in the Court of Common Pleas of York County,
made final by the denial of post-sentence motions on June 20, 2014. On
March 8, 2013, a jury convicted Taylor of statutory sexual assault,
aggravated indecent assault (complainant is less than 16 years of age),
indecent assault (complainant is less than 16 years of age), unlawful contact
with a minor (sexual offenses), involuntary deviate sexual intercourse
(“IDSI”) (complainant is less than 16 years of age), corruption of minors
(defendant is 18 years of age or older).1 The court sentenced Taylor to an
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1
18 Pa.C.S. §§ 3122.1, 3125(a)(8), 3126(a)(8), 6318(a)(1), 3123(a)(7),
and 6301(a)(1)(ii), respectively.
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aggregate term of ten to 20 years’ imprisonment. On appeal, Taylor raises
several evidentiary issues and claims the verdict was against the weight of
the evidence. Although we conclude the issues raised by Taylor on appeal
are meritless, for the reasons set forth below, we are constrained to vacate
the judgment of sentence, and remand for resentencing.
Taylor was a volunteer firefighter at the Dillsburg Citizens’ Hose
Company #1, who engaged in a sexual relationship with the victim, a
fourteen-year-old junior firefighter for a year-and-a-half. The victim
indicated the relationship began in March of 2010, when she gave him her
phone number, and the two called or texted one another. Then, in June of
that year, they engaged in oral sex at his apartment for the first time.
Taylor and the victim eventually progressed to sexual intercourse, which the
victim testified occurred on a daily basis. The relationship became rocky, to
the point that they were not speaking to one another, in August of 2011
because the victim saw Taylor with another girl at his house, and
subsequently ended in November of 2011, when the victim’s mother
reported Taylor to the police. Taylor was arrested and charged with the
aforementioned crimes. A three-day jury trial began on March 6, 2013.2
The jury convicted Taylor of all counts.
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2
Taylor took the stand at trial and denied all of the allegations. He testified
he had a strictly professional relationship with the victim. N.T., 3/6/2013-
(Footnote Continued Next Page)
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Prior to sentencing, Taylor’s counsel filed a post-verdict motion, and a
motion to withdraw. The court denied counsel’s motion to withdraw and
indicated counsel could make another request at the time of sentencing. On
June 17, 2013, the court sentenced Taylor to concurrent terms of three to
six years for statutory sexual assault, five to ten years for aggravated
indecent assault, one to two years for indecent assault, ten to 20 years for
IDSI,3 and three to six years for corruption of minors.4 The court also
granted counsel’s request to withdraw.
New counsel was subsequently appointed and filed a petition to treat
Taylor’s previously filed post-verdict motion as a timely filed post-sentence
motion on July 17, 2013. The trial court granted this motion and ordered
counsel to file any amendments to the post-sentence motion within ten days
of receiving the trial transcripts. After counsel received the transcripts, the
court scheduled a hearing on the motion for February 28, 2014. Following
the hearing, the court granted the parties one month to file any supporting
memoranda. Taylor’s counsel filed a memorandum on March 7, 2014, and
the Commonwealth filed its memorandum on March 18, 2014. On June 20,
_______________________
(Footnote Continued)
3/8/2013, at 235. He also stated the relationship “got violent and hostile,”
and he “was having issues with [the victim] stalking [him].” Id. at 239.
3
The court imposed a mandatory minimum sentence, pursuant to 42
Pa.C.S. § 9718, with respect to the IDSI conviction. See N.T., 6/17/2013,
at 15; Trial Court Opinion, 9/23/2014, at 2.
4
The unlawful contact conviction was nolle prossed at sentencing. N.T.,
6/17/2013, at 15.
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2014, the trial court denied Taylor’s post-sentence motion. This appeal
followed.5
Taylor raises the following four questions on appeal:
1. Whether the trial court erred in admitting the prior consistent
statements of (1) [the victim]’s statements made to Noelle
Williams about a sexual relationship with [Taylor] and (2) [the
victim]’s electronic communications to [Taylor] and other
parties when such statements were hearsay, offered
substantively, and no limiting instruction was given regarding
their ultimate use by the jury?
2. Whether admitting [the victim]’s prior consistent statements
of (1) [the victim]’s statements made to Noelle Williams
about a sexual relationship with [Taylor] and (2) [the
victim]’s electronic communications to [Taylor] and other
parties violates Pa.R.E. 613 when those statements went
beyond mere rehabilitation and were instead used as
substantive evidence by the Commonwealth?
3. Whether the trial court erred in applying the holding of
Commonwealth v. Hunzer, 868 A.2d 498, 512 (Pa. Super
2005) when the Tender Years’ Hearsay Exception was not
raised, nor did it apply, to [Taylor]’s case?
4. Whether the guilty verdict is against the weight of the
evidence because it is based off of inconsistent testimony
from witnesses who had a motive to lie and who were not
credible?
Taylor’s Brief at 5.
While Taylor raised his first three issues separately, he discusses them
together in his brief based on the nature of the claims. Id. at 11.
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5
On July 14, 2011, the trial court ordered Taylor to file a concise statement
of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). Taylor
filed a concise statement on August 4, 2014. The trial court issued an
opinion pursuant to Pa.R.A.P. 1925(a) on September 23, 2014.
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Moreover, Taylor focuses his argument on the alleged court error in
admitting prior consistent statements made by the victim that she was in a
sexual relationship with Taylor via the testimony of the victim’s friend,
Williams. Id. Accordingly, we will confine our analysis to this aspect of his
claim.6
Specifically, Taylor contends Williams’ “testimony did not rehabilitate
[the victim], but was cumulative hearsay testimony that corroborated [the
victim]’s corrupt motive for claiming she was in a sexual relationship with
him.” Id. Taylor acknowledges that pursuant to Pennsylvania Rule of
Evidence 613, prior consistent statements are admissible in situations where
a witness has been discredited. However, he indicates, “To be admissible to
rebut a charge of improper motive, the prior consistent statement must have
been made before the motive to lie existed.” Id. (emphasis added). Here,
Taylor argues that in admitting the contested testimony, the trial court did
not address “whether the consistent statement was made before or after the
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6
With respect to his third issue, that the trial court erred in applying the
holding of Hunzer, supra, because the tender years’ hearsay exception
does not apply to the present case, we note that he appears to abandon this
issue in his brief, and therefore, it is waived. See Taylor’s Brief at 13 n. 2
(With respect to Hunzer, “[c]ertain statements were admitted pursuant to
the Tender Years Exception. The victim in this case was over 12 years old.
Thus, Tenders Years is inapplicable.”); see also In re Jacobs, 936 A.2d
1156, 1167 (Pa. Super. 2007) (finding issue waived because appellant did
not address it in argument section of appellate brief). Nevertheless, even if
he did not abandon the claim, the trial court properly addressed the issue in
its Rule 1925(a) opinion. See Trial Court Opinion, 9/23/2014, at 4-5.
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corrupt motive arose.” Id. at 12. He states that while the victim’s version
of events is that they engaged in a sexual relationship, he claims “she made
it all up from the beginning based on a fantasy.” Id. at 13 (footnote
omitted). Moreover, Taylor points to evidence that in September of 2010,
the victim discovered he was dating an “age-appropriate woman”, and
became hostile and violent, which demonstrated her “corrupt motive.” Id.
at 14. Therefore, when the victim told her friend in December of 2010, after
the corrupt motive arose, about the relationship, her statements were
inadmissible hearsay. Id. at 15. Lastly, Taylor asserts the admission of
Williams’ testimony is not harmless error because “[p]ermitting Ms. Williams
to corroborate [the victim]’s corrupt motive provided an unfair advantage to
[the victim] when weighing her testimony to that of Mr. Taylor’s.” Id. at 16.
Our standard of review regarding the admissibility of evidence is well
settled:
Admission of evidence is a matter within the sound discretion of
the trial court, and will not be reversed absent a showing that
the trial court clearly abused its discretion. Not merely an error
in judgment, an abuse of discretion occurs when the law is
overridden or misapplied, or the judgment exercised is
manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill-will, as shown by the evidence on record.
Commonwealth v. Handfield, 34 A.3d 187, 207-208 (Pa. Super. 2011)
(quotation omitted).
With respect to the admission of prior consistent statements and the
allegation of a witness’s corrupt motive, we are guided by the following:
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Pa.R.E. 613 provides, in relevant part … :
Rule 613. Prior statements of witnesses
***
(c) Evidence of prior consistent statement of
witness.
Evidence of a prior consistent statement by a witness is
admissible for rehabilitation purposes if the opposing party
is given an opportunity to cross-examine the witness about
the statement, and the statement is offered to rebut an
express or implied charge of:
(1) fabrication, bias, improper influence or motive, or
faulty memory and the statement was made before that
which has been charged existed or arose; or
(2) having made a prior inconsistent statement, which the
witness has denied or explained, and the consistent
statement supports the witness’ denial or explanation.
Pa.R.E. 613(c) (bold in original).
The comment to this rule relevantly provides that “under
Pa.R.E. 613(c), a prior consistent statement is always
received for rehabilitation purposes only and not as
substantive evidence.” See Commonwealth v.
Counterman, 553 Pa. 370, 719 A.2d 284, 301 (1998)
(stating: “As a general rule, a prior consistent statement
is hearsay, and its admissibility is dependent upon an
allegation of corrupt motive or recent fabrication.
Additionally, such statements have been admitted in
response to an allegation of faulty memory.”)
Commonwealth v. Baumhammers, 599 Pa. 1, 51, 960 A.2d
59, 89-90 (2008).
“A prior consistent statement is admissible only if it is made
before the declarant has a motive to fabricate.”
Commonwealth v. Smith, 609 Pa. 605, 17 A.3d 873, 891 (Pa.
2011) (citations omitted).
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When considering the admissibility of prior statements, the
importance of timing has often been emphasized. See,
e.g., Commonwealth v. Hutchinson, 521 Pa. 482, 556
A.2d 370 (1989) (requiring that, to be admissible, a prior
statement must have been made before any corrupt
motive has arisen). See also Pa.R.E. 613(c) comment
(“When the witness admits and explains the inconsistent
statement, the use of the consistent statement will depend
upon the nature of the explanation and all of the
circumstances that prompted the making of the consistent
statement; the timing of that statement, although not
conclusive, is one of the factors to be considered.”).
Commonwealth v. Montalvo, 604 Pa. 386, 407, 986 A.2d 84,
96 (2009).
Handfield, 34 A.3d at 208. Furthermore, “[w]here … it is apparent that the
defense centers around impeaching the credibility of a witness, a prior
consistent statement may, at the discretion of the trial court, be admitted
before impeachment.” Commonwealth v. Beale, 665 A.2d 473, 475-76
(Pa. Super. 1995), citing Commonwealth v. Smith, 540 A.2d 246, 258
(Pa. 1988).
Here, the trial court found the following:
The Court finds that Commonwealth v. Hunzer is
instructive regarding the instant matter. 868 A.2d 498 (Pa.
Super. 2005). In the instant case, [Taylor] proffered a theory
that the victim fabricated [Taylor]’s sexual conduct and that the
victim had a motive to lie. Under the rules of evidence, evidence
of a prior consistent statement is admissible for rehabilitation
purposes if opposing counsel had an opportunity to cross-
examine the witness, and the evidence is offered to rebut an
express or implied charge of fabrication or improper motive.
Pa.R.E. 613(c). Case law further elaborates that “prior
consistent statements may also be considered specially relevant
when the witness’ status alone is such that his or her testimony
may be called into question even in the absence of express
impeachment.” Hunzer, 868 A.2d at 512 (quoting
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Commonwealth v. Willis, 552 A.2d 682, 691-92 (Pa. Super.
1988)). The Hunzer court further reasoned that this situation
would include the testimony of child victims of sexual assaults.
Id.
After considering this rule of evidence and applicable case
law, the Court concludes that it did not err by allowing evidence
of the victim’s prior consistent statements to be admitted during
trial. As mentioned in his memorandum to the Court, [Taylor]
still proceeds on a theory of fabrication and improper motive.
Express charges of fabrication and improper motive are
specifically enumerated exceptions to the general inadmissibility
of prior consistent statements. See Pa.R.E. 613(c). Since
[Taylor] had an opportunity to cross-examine the witness used
at trial to produce this evidence, the Court properly admitted the
evidence of the victim’s prior consistent statements.
Additionally, this case presents one of the special situations
presented in Hunzer, namely, that the case involves a child
victim of sexual assault.
Order, 6/20/2014, at 1-2.
We agree with the trial court’s well-reasoned analysis. A careful
review of the record indicates that the testimony was elicited in response to
the defense’s theory that the victim fabricated the entire relationship.
Defense counsel began this attack during opening statements with explicit
assertions that the victim’s allegations were false:
So, basically our defense will be, here’s a young 14-year-old for
14 months, meets her trainer at the fire department, her
neighbor and becomes fixated on him. And you’ll hear the
circumstances of how she would visit that apartment every time.
He’s 24 years old. He’s a good looking fellow. He was
dating actually three girls during the course of this. Every time
he would have a guest over to his apartment, she would show
up. She would be threatening. She would raise a scene.
He complained to multiple people. In fact, you’ll hear evidence
that he went to his instructor, his EMT instructor, and said, what
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am I going to do about this? This will [be] the first time that he
has to tell his story.
I want you to listen carefully to her testimony and what
our defense will be is here’s a young 14-year-old, now she’s 16,
17. She still doesn’t realize the consequences of the first
report, and she does not want to change her story. So this
is going on like a snowball gathering size down the hill. Listen
carefully to the way she testifies.
You’ll hear testimony that even after he was detained in
York County Prison, people were coming over to his house when
she purportedly had a boyfriend, she was still coming over
and bothering them. That’s the extent of her fixation.
N.T., 3/6/2013-3/8/2013, at 65-66 (emphasis added).
The victim was the first witness, and she stated she told Williams that
she was sexually involved with Taylor. Id. at 79-80.7 The victim was
subjected to extensive cross-examination and based on her response, a
reasonable juror could infer whether or not she was fabricating her version
of events. Id. at 102-129. Williams then testified, relaying that the victim
told her about the relationship with Taylor in December of 2010. Id. at 131-
135.
The victim’s account was also impeached by Taylor’s own testimony
that the sexual relationship did not occur, and that the victim was “violent”
and “stalking” him. Id. at 221-279. Additionally, Taylor attempted to
impeach the victim with testimony from his former girlfriend, Heidi Leahy,
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7
The victim indicated that she told her friend in September of 2010. Id. at
80.
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regarding confrontations between herself and the victim and from Carol
Hess, his EMT instructor, who he confided in and asked for advice regarding
the victim. Id. at 206-215; 218-219.8 As such, Williams’ testimony
regarding the victim’s sexual relationship with Taylor was offered not to
prove the truth of the matter asserted, but rather to rehabilitate the victim’s
credibility.
Moreover, with respect to Taylor’s argument that the victim made
these statements to Williams after she had a motive to fabricate, e.g. three
months after discovering he was dating another woman, we find the timing
is not so critical as Taylor failed to demonstrate the victim had an incentive
to fabricate at the time she made the disclosures in question. In
Commonwealth v. Montalvo, 986 A.2d 84 (Pa. 2009), the Pennsylvania
Supreme Court indicated that “[w]hen considering the admissibility of prior
statements, the importance of timing has often been emphasized.” Id. at
96. The Supreme Court pointed to Pa.R.E. 613(c) comment, which states,
“the use of the consistent statement will depend upon the nature of the
explanation and all of the circumstances that prompted the making of the
consistent statement; the timing of that statement, although not
conclusive, is one of the factors to be considered.” Id. (emphasis
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8
Further review of the trial testimony indicates that Taylor sought Hess’s
advice regarding an incident, in which the victim broke into Taylor’s
apartment. Id. at 218.
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added), citing Pa.R.E. 613(c), comment. Moreover, any notion of a motive
to fabricate was thoroughly discussed during the testimony of the victim.
Accordingly, we discern no abuse of discretion by the trial court in permitting
the admission of the victim’s prior consistent statements in order to
corroborate her impeached testimony. Therefore, Taylor’s first argument
fails.
Next, Taylor claims that the verdict was against the weight of the
evidence because “it is based off of inconsistent testimony from witnesses
who had a motive to lie and who were not credible.” 9 Taylor’s Brief at 17.
He contends that “had the jury carefully considered [the victim]’s testimony,
the jury would have found several aspects of it incredible and found [him]
not guilty.” Id.10 Additionally, he states, “[T]he jury failed to adequately
consider that [the victim] had confronted several women that Mr. Taylor had
been dating on multiple occasions, including once after Mr. Taylor was
incarcerated for the charges she brought against him.” Id. at 18.
Appellate review of a weight of the evidence claim is well-established:
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9
Taylor properly preserved his challenge to the weight of the evidence by
raising it at sentencing. His counsel renewed the claim at the February 28,
2014, motion hearing. See Pa.R.Crim.P. 607(A); N.T., 6/17/2013, at 9;
N.T., 2/28/2014, at 14.
10
For example, he points to her testimony, in which she stated he was
uncircumcised when he is actually circumcised. See Taylor’s Brief 17.
Moreover, he indicates that the victim’s mother did not report him to the
police for another four months after she found out about the relationship.
Id.
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A weight of the evidence claim concedes that the evidence is
sufficient to sustain the verdict, but seeks a new trial on the
ground that the evidence was so one-sided or so weighted in
favor of acquittal that a guilty verdict shocks one’s sense of
justice. Commonwealth v. Widmer, 560 Pa. 308, 318–20, 744
A.2d 745, 751–52 (2000); Commonwealth v. Champney, 574
Pa. 435, 443–44, 832 A.2d 403, 408–09 (2003). On review, an
appellate court does not substitute its judgment for the finder of
fact and consider the underlying question of whether the verdict
is against the weight of the evidence, but, rather, determines
only whether the trial court abused its discretion in making its
determination. Widmer, 560 Pa. at 321–22, 744 A.2d at 753;
Champney, 574 Pa. at 444, 832 A.2d at 408.
Commonwealth v. Lyons, 79 A.3d 1053, 1067 (Pa. 2013), cert. denied,
134 S. Ct. 1792 (U.S. 2014).
Here, the trial court found the following:
[Taylor] avers that no credible evidence exists because the
jury based its verdict off of inconsistent testimony. Basically,
[Taylor] reiterates the overarching argument that the witnesses
for the Commonwealth had a motive to lie and, for this reason,
were not credible. However, these arguments fail to note the
standard for challenging the weight of the evidence and
credibility determinations.
In this case, the jury was free to believe all, part, or none
of the testimony presented at trial. The jury chose to believe
the victim’s account of the incident, which was corroborated by
numerous Commonwealth witnesses, including the victim’s
mother and friend. Although [Taylor] took the stand in his
defense, the jury did not find his testimony and explanation of
the facts to be credible. The jury’s decision to believe all, part or
none of the testimony of these Commonwealth witnesses and
[Taylor] does not shock this Court’s sense of justice. As such,
the Court concludes that the jury’s verdict does not go against
the weight of the evidence presented at trial.
Trial Court Opinion, 9/23/2014, at 5-6 (italics in original; citations omitted).
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We agree with the court’s well-reasoned analysis. Taylor fails to
explain in what way the trial court abused its discretion in denying his
weight claim. Rather, his argument consists only of attacks on the credibility
of the witnesses and an assertion that the jury did not properly consider the
evidence. Accordingly, he asks this Court to reweigh the evidence; however,
we decline to do so. As our Supreme Court has made clear, we may not
reweigh the evidence and substitute our judgment for the trial court’s
decision. See Lyons, supra. Moreover, it is well-established that the jury
is free to believe all, part, or none of the testimony presented at trial. Here,
the jury chose not to believe Taylor’s version of events. Therefore, his
weight claim also fails.
Nevertheless, our review of the record reveals the trial court imposed
a mandatory minimum sentence pursuant to 42 Pa.C.S. § 9718, a statute
that has been found to be constitutionally infirm in light of the United States
Supreme Court’s decision in Alleyne v. United States, 133 S. Ct. 2151
(U.S. 2013). See Commonwealth v. Hopkins, __ A.3d __, [98 MAP 2013]
(Pa. June 15, 2015); Commonwealth v. Newman, 99 A.3d 86 (Pa. Super.
2014) (en banc); Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.
2014) (applying Newman to Section 9718). See also Commonwealth v.
Valentine, 101 A.3d 801, 811-812 (Pa. Super. 2014) (vacating mandatory
minimum sentence imposed pursuant to 42 Pa.C.S. §§ 9712 and 9718, even
after a jury had determined triggering factors, because the unconstitutional
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subsections of the statutes were not severable from the remainder of the
statute). Although Taylor did not contest the imposition of the mandatory
minimum sentence on appeal, “a challenge to a sentence premised upon
Alleyne … implicates the legality of the sentence and cannot be waived on
appeal.” Newman, supra, 99 A.3d at 90. Moreover, this Court may
address the legality of a defendant’s sentence sua sponte. Commonwealth
v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc), appeal denied,
95 A.3d 277 (Pa. 2014).
In Wolfe, supra, a panel of this Court applied the reasoning of the en
banc Court in Newman, supra, and its progeny, to conclude that the
mandatory minimum provisions in Section 9718 are facially unconstitutional.
Wolfe, supra, 106 A.3d at 805. Although the Wolfe Court recognized the
fact triggering the mandatory minimum sentence, i.e., that the victim was
less than 16 years of age, was actually “an element within the subsection of
the IDSI statute under which [the defendant] was convicted[,]” the Court
found it was, nonetheless, bound by the en banc decision in Newman,
which held “that mandatory minimum sentence statutes in Pennsylvania of
this format are void in their entirety.” Id. at 805, 806 (emphasis in
original). The Court concluded, “[a]s Section 9718 is indistinguishable from
the statutes struck down in Newman and Valentine, we are constrained to
conclude that Section 9718 is also facially void.” Id. at 806.
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Therefore, although we conclude the issues raised by Taylor on appeal
are meritless, we are constrained to vacate the judgment of sentence, and
remand for resentencing in light of the erroneous imposition of the
mandatory minimum sentences imposed pursuant to Section 9718.
Judgment of sentence vacated. Case remanded for resentencing
consistent with this memorandum. Jurisdiction relinquished.
Panella, J., joins the majority decision.
Olson, J., concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/7/2015
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