Com. v. Myers, W.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WILLIAM MATTHEW MYERS :
:
Appellant : No. 786 MDA 2022
Appeal from the Judgment of Sentence Entered November 24, 2021
In the Court of Common Pleas of York County Criminal Division at No(s):
CP-67-CR-0007386-2019
BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED: MARCH 1, 2023
Appellant, William Matthew Myers, appeals from the judgment of
sentence1 imposed after a jury convicted him of two counts of Unlawful
Contact with a Minor.2 He challenges an evidentiary ruling, the sufficiency of
the evidence, and the legality of his sentence. Upon review, we affirm.
The factual and procedural history is as follows. On August 15, 2019,
and early into the morning on August 16, 2019, then-14-year-old I.M.
(“Victim”) attended a baseball game in York with her brother. At some point
during the evening, Victim became separated from her brother.
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1 Appellant’s notice of appeal states that appeal is from the “Order Denying
Post Sentence Motion dated and entered on April 21, 2022.” Notice of Appeal,
5/21/22. “In a criminal action, appeal properly lies from the judgment of
sentence made final by the denial of post-sentence motions.”
Commonwealth v. Shamberger, 788 A.2d 408, 410 n.2 (Pa. Super. 2001)
(en banc). We have changed the caption accordingly.
2 18 Pa.C.S. 6318(a).
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After the game, around 1:00 AM, Victim waited in a public square
outside the baseball stadium for her foster parent to pick her up. While Victim
sat on a bench, Appellant approached Victim and asked her how old she was
and why she was there. When Victim responded that she was 14 years old
and waiting for a ride, Appellant walked away. But Appellant returned a few
minutes later and started to talk to Victim about “sexual things” and asked
her what she would do if he “tried something.” N.T. Trial, 8/23-24/21, at 101.
Victim felt uncomfortable and began video recording Appellant on her cell
phone via the SnapChat app. Victim recorded Appellant saying the following:
[APPELLANT]: -- fuckin’ rape fuckin’ never, a gentleman rape.
(Laughing). I mean, not that - - I am saying, but you know you
are attractive, right? Yes, you are. And if I like desired you, I
mean, what would you possibly do to stop me? So then I would
do the gentleman thing and just ask you instead of taking it. I’m
trying to do it the gentleman way instead of just like, you know
what I mean, doing it just like outright just crazy. I think it would
be a whole lot better if we just did consensual. Don’t you think?
Because you are here. And I am here. You don’t know me from
a can of paint. I am not going to hurt you. As a matter of fact, I
wouldn’t even penetrate you. I will just lick it. What do you think?
N.T. Trial, 8/23/21, at 91-92; Commonwealth Exhibit 2.
Victim’s foster parent arrived, and Victim ran to the car to escape
Appellant. Victim sent the SnapChat videos of Appellant to her biological
mother (“Mother”), who contacted the police the following day. Detective
Tiffany Pitts of the York City Police viewed the video and identified Appellant.
The Commonwealth charged Appellant with one count of Unlawful
Contact with a Minor - Involuntary Deviate Sexual Intercourse (“Unlawful
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Contact-IDSI”), one count of Unlawful Contact with a Minor – Indecent Assault
(“Unlawful Contact-IA”), and one count of Harassment. The court held a jury
trial on August 23, 2021, and August 24, 2021. The Commonwealth presented
testimony from Victim, Mother, and Detective Pitts who testified in accordance
with the above events. The Commonwealth also entered the SnapChat video,
as well as a transcript of the video, into evidence without objection. Appellant
did not testify on his own behalf or present any evidence.
After both parties rested, Appellant made a verbal motion for judgment
of acquittal of Unlawful Contact-IDSI, which the court denied.
On August 24, 2021, a jury found Appellant guilty of Unlawful Contact-
IDSI, graded as a felony of the first degree, and Unlawful Contact-IA, graded
as a felony of the second degree. On November 24, 2021, the court sentenced
Appellant on both charges—which merged for sentencing purposes—to a
mandatory minimum sentence of 25 to 50 years’ incarceration pursuant to 42
Pa.C.S. § 9718.2(a)(1) due to his prior convictions of sexual offenses.
On February 3, 2022, after the trial court granted multiple extensions,
Appellant filed a post-sentence motion raising, inter alia, a challenge to the
weight of the evidence. On April 29, 2022, after a hearing, the trial court
denied the motions.
Appellant timely appealed. Appellant and the trial court complied with
Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
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A. Whether the trial court erred in denying defense objection to
the Commonwealth replaying Commonwealth’s Exhibit “1” and
making comment thereon, in the Commonwealth’s closing
statement to the jury which contained a nonconsensual audio
and video recording by [] Victim of the testimonial statements
of [] Appellant that were to constitute the crimes charges as
an impermissible testimony exhibit that prejudiced [] Appellant
in violation of fair trial and due process rights in Article I,
Sections 1 and 9 of the Pennsylvania Constitution and the Sixth
and Fourteenth Amendments of the Constitution of the United
States?
B. Whether the trial court erred in denying defense motion for
acquittal at the close of Commonwealth[’s] case regarding the
lack of sufficient evidence for Count 1, Unlawful Contact[-IDSI]
in that [] Appellant’s recorded statement indicated that he
would not penetrate and would only lick [] Victim, which failed
to establish communication of his intent to penetrate [] Victim,
however slight?
C. Whether the trial court erred in denying the post sentence
motion based on the verdict being against the weight of the
evidence for Count 1, Unlawful Contact[-IDSI] in that the
evidence did not establish that [] Appellant ever communicated
an intent to penetrate [] Victim, however slight, by stating that
he would not penetrate and would only lick [] Victim?
D. Whether the trial court’s imposition of the mandatory minimum
sentence of 25 to 50 years in a state correctional facility is cruel
and unusual punishment in violation of the 8th Amendment of
the Constitution of the United States and Article I, Section 13
of the Constitution of the Commonwealth of Pennsylvania given
the nature of the offense?
Appellant’s Br. at 4-5 (some capitalization omitted).
A.
In his first issue, Appellant avers that the trial court erred when it
permitted the Commonwealth to replay the SnapChat video during its closing
arguments. Appellant’s Br. at 17. Appellant argues this was improper
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readmission of testimonial type evidence that would unduly influence the jury.
Appellant’s Br. at 17. Upon review, Appellant’s claim lacks merit.
Appellant provides no authority to support his assertion that it was
improper for the trial court to allow the Commonwealth to replay a video
during its closing statement—a video that had been previously entered into
evidence without objection. In fact, this Court has consistently held that items
introduced as evidence can be used during closing argument. See
Commonwealth v. Stark, 526 A.2d 383, 392 (Pa. Super. 1987) (allowing
recorded confession to be playing during closing argument); Commonwealth
v. Wise, 444 A.2d 1287, 1289-90 (Pa. Super. 1982) (holding that the trial
court did not err in permitting the Commonwealth to publish photos to the
jury during closing argument that were already admitted as evidence);
Commonwealth v. Burton, 330 A.2d 833, 837 (Pa. Super. 1975) (new trial
not warranted where prosecutor handled weapons which had been introduced
as Commonwealth exhibits). Accordingly, Appellant’s unsupported claim is
devoid of merit.
B.
In his second issue, Appellant challenges the sufficiency of the evidence
to support his conviction for Unlawful Contact-IDSI. A challenge to the
sufficiency of the evidence presents a question of law for which our standard
of review is de novo. Commonwealth v. Weimer, 977 A.2d 1103, 1104-05
(Pa. 2009). In reviewing a sufficiency challenge, we must determine whether
the evidence, and all reasonable inferences to be drawn from that evidence,
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when viewed in the light most favorable to the Commonwealth as the verdict
winner, establish each element of the challenged offense beyond a reasonable
doubt. Commonwealth v. Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005).
The trier of fact—while passing on the credibility of the witnesses and the
weight of the evidence—is free to believe all, part, or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 40 (Pa. Super. 2014). Moreover, the
trier of fact may base a conviction solely on circumstantial evidence. Id. In
conducting this review, the appellate court may not reweigh the evidence and
substitute its judgment for that of the fact-finder. Id. at 39-40.
A person is guilty of Unlawful Contact with a Minor if he or she is
intentionally in contact with a minor for the purpose of engaging in a
prohibited Chapter 31 sexual offense. 18 Pa.C.S. § 6318(a)(1). As this Court
has explained that “[t]he statute is best understood as unlawful
communication with a minor, for by its plain terms, it prohibits
communication with a minor for the purpose of carrying out certain sex acts.”
Commonwealth v. Davis, 225 A.3d 582, 587 (Pa. Super. 2019) (emphasis
in original). Notably, “Section 6318 does not require that a defendant even
be charged with, let alone convicted of, any underlying substantive offense for
which he contacted the minor.” Commonwealth v. Aikens, 168 A.3d 137,
141 (Pa. 2017). Moreover, “a defendant need not be successful in completing
the purpose of his communication with a minor in order to be convicted of
unlawful contact with a minor.” Id.-6-
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Relevant to this appeal, a person is guilty of IDSI if he “engages in
deviate sexual intercourse” with a Victim who is less than 16 years of age. 18
Pa.C.S. § 3123(a)(7). “Deviate sexual intercourse” is defined as “[s]exual
intercourse per os or per anus between human beings” and “includes
penetration, however slight, of the genitals[.]” Id. at § 3101. “Deviate sexual
intercourse is considered to have occurred if one’s mouth or tongue penetrates
the vaginal area of another.” In Interest of J.R., 648 A.2d 28, 33 (Pa. Super.
1994). “Additionally, we note that ‘actual’ penetration of the vagina is not
necessary; some form of oral contact with the genitalia of the female victim
is all that is required.” Id.Instantly, Appellant avers that his recorded statement: “I wouldn’t even
penetrate you. I will just lick it” did not rise to the level of Unlawful Contact-
IDSI. Appellant argues that the evidence was not sufficient to prove his intent
to penetrate the victim because he did not specify where or how he would lick
Victim and, in fact, stated to Victim that he did not intend to penetrate.
Appellant’s Br. at 23. We disagree.
The evidence clearly demonstrates that Appellant communicated with a
minor for the purpose of carrying out a sex act. In his statements to Victim,
he talks about “rape” and then asks Victim to “consent” so that he can be a
“gentleman.” Appellant then goes on to discuss penetration and licking “it.”
Given the totality of the evidence, it was reasonable for the jury to infer that
Appellant was referring to a form of oral contact with Victim’s genitalia.
Viewing the evidence in the light most favorable to the Commonwealth as the
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verdict winner, the Commonwealth presented sufficient evidence to convict
Appellant of Unlawful Contact-IDSI.
C.
In his third issue, Appellant purports to challenge the weight of the
evidence. However, upon review, we discern that Appellant is essentially re-
raising a challenge to the sufficiency of the evidence. Appellant addresses his
weight claim in the same section as his sufficiency claim, and simply repeats
the arguments that he used to support his sufficiency claim, i.e., that
Appellant’s statement did not communicate an intent to penetrate Victim but
rather a desire to lick Victim in some unspecified manner. Id. at 24.
Accordingly, Appellant avers, there was insufficient evidence to demonstrate
Unlawful Contact-IDSI and the jury’s verdict “shocks one’s sense of justice.”
Id. at 25. As explained above, Appellant’s sufficiency claim does not entitle
him to relief, and this attempted weight challenge fails.
D.
In his final issue, Appellant avers that the trial court’s imposition of a
mandatory minimum sentence of 25 to 50 years’ incarceration, imposed
pursuant to Section 9718.2,3 is cruel and unusual punishment in violation of
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3 Section 9718.2 (a)(1) provides, in relevant part: “Any person who is
convicted in any court of this Commonwealth of an offense set forth in section
9799.14 (relating to sexual offenses and tier system) shall, if at the time of
the commission of the current offense the person had previously been
convicted of an offense set forth in section 9799.14 or an equivalent crime
under the laws of this Commonwealth in effect at the time of the commission
(Footnote Continued Next Page)
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the Eighth Amendment of the U.S. Constitution and Article 1, Section 13 of
Commonwealth of Pennsylvania Constitution. Appellant’s Br. at 25. Appellant
argues that the mandatory minimum sentence imposed in this case is
disproportionate to the nature of the offense, which he characterizes as a mere
“verbal communication.” Id. at 28. We are unpersuaded.
Appellant’s challenge to the constitutionality of his sentence is a pure
question of law. Brown v. Levy, 73 A.3d 514, 517 (Pa. 2013). Therefore,
our scope of review is plenary and our standard of review is de novo. Id.In addressing constitutional challenges, we are mindful that there is a
strong presumption that legislative enactments are constitutional.
Commonwealth v. Barud, 681 A.2d 162, 165 (Pa. 1996). For an act to be
declared unconstitutional, an appellant must prove that the act “clearly,
palpably and plainly” violates the constitution. Id. (citation omitted). “All
doubts are to be resolved in favor of sustaining a statute; thus an appellant
has the heavy burden of persuasion when challenging the constitutionality of
a statute.” Commonwealth v. Nguyen, 834 A.2d 1205, 1208 (Pa. Super.
2003).
Moreover, “Pennsylvania courts have repeatedly and unanimously held
that the Pennsylvania prohibition against cruel and unusual punishment is
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of that offense or an equivalent crime in another jurisdiction, be sentenced to
a minimum sentence of at least 25 years of total confinement, notwithstanding
any other provision of this title or other statute to the contrary.” 42 Pa.C.S.
§ 9718.2(a)(1).
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coextensive with the Eighth and Fourteenth Amendments to the United States
Constitution, and that the Pennsylvania Constitution affords no broader
protection against excessive sentences than that provided by the Eighth
Amendment to the United States Constitution.” Commonwealth v. Elia, 83
A.3d 254, 267 (Pa. Super. 2013) (citation and internal quotation marks
omitted). Appellant has not argued to the contrary. Accordingly, we only
need to review Appellant’s claim under the Eighth Amendment.
Commonwealth v. Barnett, 50 A.3d 176, 197 (Pa. Super. 2012).
The Eighth Amendment to the United States Constitution provides that
“[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel
and unusual punishments inflicted.” U.S. Const., Amend. VIII. “The Cruel
and Unusual Punishment clause prohibits not only barbaric punishments, but
also sentences that are disproportionate to the crime committed.” Elia, 83
A.3d at 268 (Pa. Super. 2013) (citation and internal quotation marks omitted).
However, “[t]he Eighth Amendment does not require strict proportionality
between crime and sentence. Rather, it forbids only extreme sentences which
are grossly disproportionate to the crime.” Commonwealth v. Baker, 78
A.3d 1044, 1047 (Pa. 2013) (citation omitted).
In order to determine if a sentence violates the Eighth Amendment, this
Court applies a three-pronged test, including:
(i) the gravity of the offense and the harshness of the penalty; (ii)
the sentences imposed on other criminals in the same jurisdiction;
and (iii) the sentences imposed for commission of the same crime
in other jurisdictions.
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Id. (citation omitted). Importantly, we are not obligated to reach the second
and third prongs of the test “unless a threshold comparison of the crime
committed and the sentence imposed leads to an inference of gross
disproportionality.” Commonwealth v. Succi, 173 A.3d 269, 285 (Pa.
Super. 2017) (citation omitted).
Appellant’s claim of disproportionality challenges the constitutionality of
the recidivist sentencing statute germane to repeat convictions of sexual
offenses. Challenges to recidivist sentencing schemes are rarely successful.
Baker, 78 A.3d at 1048.4
In Baker, our Supreme Court upheld the imposition of a mandatory
minimum sentence of 25 to 50 years’ incarceration for a defendant who had
been convicted of possessing child pornography more than one time. 78 A.3d
1052. Baker argued that his sentence was a simple, non-serious, possessory
offense. Our Supreme Court disagreed and emphasized “the fact that [the
appellant] is a repeat offender certainly goes to the gravity of his instant
offense.” Id. at 1051. The Court also explained that the appellant’s sexually
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4 In Baker, our Supreme Court observed that the United States Supreme
Court has only once struck down as unconstitutional the application of a
recidivist sentencing statute after a South Dakota court imposed a sentence
of life imprisonment without the possibility of parole based on the appellant’s
conviction of passing a bad check in the amount of $100. 78 A.3d at 1048.
See, e.g., Rummel v. Estelle, 445 U.S. 263 (1980) (finding no violation of
the Eighth Amendment where a Texas court imposed a sentence of life with
the possibility of parole after 12 years’ incarceration for receiving $120 under
false pretenses); Ewing v. California, 538 U.S. 11, 17-20, 30-31 (2003)
(upholding the constitutionality of a sentence of 25 years’ to life imposed
pursuant to California’s three-strikes law upon a conviction of theft involving
three golf clubs).
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based crimes could not be viewed “in a manner that detaches them from the
devastating victimization” and “sexual abuse and exploitation of innocent
children for personal gratification.” Id. at 1052.
As Baker instructs, the fact that Appellant is a repeat offender is
relevant to the gravity of his offense. Over the last 33 years, Appellant has
been convicted of statutory rape, indecent assault (both to an adult and child),
corruption of minors, and unlawful restraint of an adult. N.T. Sentencing,
11/24/21, at 9-10. Moreover, Appellant’s characterization of his crime as a
mere “verbal communication” is disingenuous and detaches the crime from
Appellant’s overall pattern of sexual victimization. As the trial court opined in
finding Appellant’s sentence to be constitutional:
[A]ppellant is a repeat offender. The nature of the offense is of
grave concern to the [c]ourt and the community. [] Appellant
poses a risk to the community. The facts surrounding the crime
concern the [c]ourt of Appellant’s ability to be rehabilitated, and
this is not Appellant’s first conviction relating to a minor. [V]ictim,
in this case, was a 14-year-old child at the date of the offense that
he prayed upon. The crime took place in the early hours of the
morning. The victim explicitly told [] Appellant that she was 14
and yet continued to propose performing sexual acts upon
[V]ictim. The [c]ourt only wonders what else would have
happened if the victim’s foster father had not shown up when he
did.
Trial Ct. Op., 8/25/22, at 11.
Appellant’s bald assertion that his sentence is grossly disproportionate
to the gravity of the offense fails to persuade us that his sentence is
unconstitutional. Appellant mischaracterizes his crime as “verbal
communication” with Victim when, in reality, he was propositioning a child for
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sex. Given the fact that Appellant is a repeat offender, has preyed on children
more than once, was aware that Victim was 14 years old, and repeatedly
propositioned Victim for sex, this Court’s threshold comparison of the crime
committed and the sentence imposed fails to lead to an interference of gross
disproportionality. Accordingly, Appellant’s claim that his sentence violates
the Eighth Amendment fails.5
E.
In sum, the Commonwealth presented sufficient evidence to convict
Appellant of Unlawful Contact-IDSI and his mandatory minimum sentence of
25 to 50 years’ incarceration is constitutional. Moreover, the trial court did
not abuse its discretion by allowing the Commonwealth to present previously
admitted evidence during its closing argument. Accordingly, none of
Appellant’s claims garner relief.
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5 Appellant also raises several challenges to the discretionary aspects of
sentencing, including that the trial court failed to consider (1) the mandatory
minimum sentence exceeds the standard range sentencing guidelines, (2)
Appellant would not be eligible for parole until he is 85 years old, and (3)
Appellant suffers from numerous mental health diagnoses. Appellant’s Br. at
27-28. Insofar as the imposed sentence was not discretionary, but rather
mandatory, we decline to address these arguments.
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/1/2023
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