Com. v. Showalter, L.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
LARRY EDWARD SHOWALTER, 2ND
Appellant No. 2089 WDA 2014
Appeal from the Judgment of Sentence September 24, 2014
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000132-2013
BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*
MEMORANDUM BY LAZARUS, J.: FILED APRIL 1, 2016
Larry E. Showalter, 2nd, appeals from the judgment of sentence
entered in the Court of Common Pleas of Bedford County following a jury
trial in which he was convicted of two counts of rape of a child, 1 two counts
of involuntary deviate sexual intercourse (IDSI),2 two counts of aggravated
indecent assault,3 two counts of incest,4 endangering the welfare of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3121(c).
2
18 Pa.C.S. § 3123(b).
3
18 Pa.C.S. § 3125(a)(7).
4
18 Pa.C.S. § 4302.
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children,5 corruption of minors,6 and three counts of indecent exposure.7
After careful review, we affirm the convictions, vacate the judgment of
sentence, and remand for resentencing.
Showalter’s convictions stem from allegations made by his biological
daughter that Showalter raped her on multiple occasions when she was
between the ages of 8 and 11.
The victim first reported the incidents approximately five years after
the last such incident had occurred, during the fall of 2012, when the victim
disclosed the incidents to her school guidance counselor, Stephen Brian
Waltman. The victim came to Waltman’s office, immediately after she was
involved in an altercation with another student, to request that Waltman
adjust her class schedule so that she could avoid future contact with that
student. At trial on June 19, 2014, Waltman testified that when the victim
entered his office, she appeared to be “extremely upset” over the argument
with the other student. N.T. Trial, 6/19/14, at 130. The victim told
Waltman that the other student did not understand what she had been
through and then “began listing all of [the] things that hadn’t gone right in
her life.” Id. at 134. Waltman testified that, at this time, the victim “more
____________________________________________
5
18 Pa.C.S. § 4304(a)(1).
6
18 Pa.C.S. § 6301(a)(1)(i).
7
18 Pa.C.S. § 3127(a).
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or less blurt[ed] out that her father raped her.” Id. at 135. When Waltman
asked what she meant, she told him that she was “repeatedly raped” by her
father when she was “eight, nine, ten-years-old.” Id. Waltman testified
that he then spent the next thirty or forty minutes “just trying to calm [the
victim] down.” Id.
Defense counsel objected to Waltman’s testimony regarding the
victim’s statements on several grounds. Defense counsel argued that
Waltman’s testimony about the victim’s statements was inadmissible
hearsay and that the testimony was cumulative because the victim had
already testified about the substance of her conversation in Waltman’s
office. The trial court overruled defense counsel’s objection and admitted
the testimony, ruling that it fell within the excited utterance exception to the
hearsay rule. Id. at 133.
At the conclusion of the one-day trial, the jury convicted Showalter on
thirteen of twenty-seven counts charged against him. Prior to sentencing,
the Commonwealth filed notice of intent to seek mandatory minimum
sentences for Showalter’s rape of a child, IDSI, and aggravated indecent
assault convictions, pursuant to 42 Pa.C.S. § 9718 (stating persons
convicted of rape of a child or IDSI involving a child shall be sentenced to at
least ten years’ imprisonment and that persons convicted of aggravated
indecent assault of a child shall be sentenced to at least five years’
imprisonment). See Notice of Intention to Seek Mandatory Sentence
Pursuant to 42 Pa.C.S. § 9718, 7/25/14, at 1-2.
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On September 24, 2014, after a hearing, the trial court found that
Showalter fit the classification of a sexually violent predator and sentenced
him to ten to twenty years’ imprisonment for each of two counts of rape of a
child and two counts of IDSI, and five to ten years’ imprisonment for each of
two aggravated indecent assault counts. Showalter received the mandatory
minimum sentence pursuant to 42 Pa.C.S. § 9718 for each of these counts.
For two incest counts, Showalter received a sentence of five to ten years’
imprisonment. This sentence is beyond the aggravated guidelines range for
incest. The trial court ordered that all eight of the above sentences were to
run consecutively, resulting in an aggregate sentence of sixty to one-
hundred-and-twenty years. Showalter filed a timely post-sentence motion,
which the court denied on October 10, 2014. This timely appeal followed.
Showalter raises the following issues for our review:
I. Whether the trial court erred in allowing witness Stephen
Brian Waltman to testify to hearsay statements made by
the alleged victim, ruling that said statements fell within
the excited utterance exception to the hearsay rule?
II. Whether the trial court committed an abuse of discretion in
sentencing [Showalter] consecutively on several counts
and whether the sentence imposed was excessive?
Brief for Appellant, at 3.
First, we address whether the trial court erred in allowing Waltman’s
testimony regarding the victim’s statements in his office. The
Commonwealth argues that the statements in question were properly
admitted at trial under the excited utterance exception to the hearsay rule.
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Pennsylvania Rule of Evidence 803(2) provides an exception to the hearsay
rule for any “statement relating to a startling event or condition, made while
the declarant is under the stress of excitement that it caused.” Pa.R.E.
803(2). Our Supreme Court has further defined an excited utterance as:
[A] spontaneous declaration by a person whose mind has been
suddenly made subject to an overpowering emotion caused by
some unexpected and shocking occurrence, which that person
had just participated in or closely witnessed, and made in
reference to some phase of that occurrence which he perceived,
and this declaration must be made so near the occurrence both
in time and place as to exclude the likelihood of its having
emanated in whole or in part from his reflective faculties.
Commonwealth v. Wholaver, 989 A.2d 883, 906 (Pa. 2010) (citations
omitted). While the courts of this Commonwealth have not set a time limit
within which the statement must be made after the precipitating event, the
Supreme Court has explained that “[t]he crucial question . . . is whether, at
the time the statement is made, the nervous excitement continues to
dominate while the reflective processes remain in abeyance.” Id. at 907
(citations omitted). Accordingly, “the determination is factually driven,
made on a case-by-case basis.” Id.
Showalter argues that the excited utterance exception does not apply
because the victim’s statements to Waltman were too far removed in time
and space from the occurrence that caused the victim’s excited state. Brief
for Appellant, at 11. Showalter acknowledges that the victim may have
been upset when she made the statements to Waltman, but contends that
she was upset from being harassed by another student, not from being
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sexually abused by her father. Furthermore, Showalter argues that the
excited utterance exception does not apply because the sexual abuse and
the victim’s statements about the abuse occurred at different locations; all of
the alleged incidents of abuse occurred at the Showalter residence, while the
victim made the contested statements to Waltman in the school guidance
counselor’s office.
Here, the startling event for the victim was a verbal altercation with
another student, in which the other student called the victim “cellulite
infested” and “nothing but trailer trash.” N.T. Trial, 6/19/14, at 72. The
victim made the statement about her father raping her without any
prompting by Waltman and while still extremely upset over the fight.
The trial court found that the statement was admissible under the
excited utterance exception and offered the following analysis:
[A]lthough [the victim] was not under the stress of having been
just recently sexually abused, her statement nonetheless was
“made in reference to some phase of that occurrence.” That is,
her primary reason for being so upset from the bullying was that
the other student had no appreciation for the past sexual abuse
she suffered from [Showalter]. Additionally, while the lapse in
time between the actual sexual assault and the statement was
great, the statement was elicited shortly after the victim
experienced the emotional response to the bullying. In sum, we
found the statement admissible since there was a sufficient
nexus between the statement and the emotional reaction, and
the statement was made while still under the stress of the
related emotional event.
Trial Court Opinion, 5/29/15, at 5 (quoting Commonwealth v.
Chamberlain, 731 A.2d 593, 596 (Pa. 1999)).
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We disagree with the trial court’s analysis and find that the victim’s
statements to Waltman are inadmissible hearsay and do not fall under the
excited utterance exception. First, the statements are simply too far
removed from the sexually abusive acts to which they refer. The evidence
shows that Showalter’s abuse of the victim ceased completely more than five
years before the victim’s statements in Waltman’s office. Although the
victim may have been upset over her fight with another student, the special
conditions to which the excited utterance exception is meant to apply simply
were not present. At the time that she made the statements to Waltman
about her father’s past sexual abuse, the victim had had over five years to
reflect on the events to which the statements pertained. In light of this
large gap in time, the fact that the victim was upset does very little “to
exclude the likelihood of [the statements] having emanated in whole or in
part from [her] reflective faculties.” Wholaver, supra. Indeed, the fact
that the victim was able to recognize her childhood abuse as “rape”
evidences that she had had at least some opportunity to reflect upon the
events. Furthermore, the victim has not alleged that her classmate said
anything that could be construed as “shocking,” so as to make her “subject
to an overpowering emotion.” Wholaver, supra. The record does not
establish that the victim was so upset by the bullying of her classmate that
her faculty for reflection was overpowered. Accordingly, we hold that the
trial court abused its discretion in admitting Waltman’s testimony regarding
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the content of the victim’s statements in his office under the excited
utterance exception to the hearsay rule.
Having concluded that the trial court erred in admitting Waltman’s
testimony, we must determine whether the admission of that evidence
amounted to harmless error. “Not all errors at trial . . . entitle an appellant
to a new trial, and [t]he harmless error doctrine, as adopted in
Pennsylvania, reflects the reality that the accused is entitled to a fair trial,
not a perfect trial.” Commonwealth v. West, 834 A.2d 625, 634 (Pa.
Super. 2003). The Commonwealth bears the burden of establishing the
harmlessness of the error. Commonwealth v. Passmore, 857 A.2d 697,
711 (Pa. Super. 2004). In order to establish that an error was harmless, the
Commonwealth must show that:
(1) the error did not prejudice the defendant or the prejudice
was de minimis; or (2) the erroneously admitted evidence was
merely cumulative of other untainted evidence which was
substantially similar to the erroneously admitted evidence; or (3)
the properly admitted and uncontradicted evidence of guilt was
so overwhelming and the prejudicial effect of the error so
insignificant by comparison that the error could not have
contributed to the verdict.
Id.
We find that the trial court’s admission of Waltman’s testimony was
harmless error. The victim’s statements to Waltman had already been
properly admitted through the victim’s own testimony on the stand. The
victim’s testimony about her statements to Waltman was substantially
similar to Waltman’s barred hearsay testimony. Furthermore, defense
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counsel did not object to the victim’s testimony at trial. Therefore,
Waltman’s erroneously-admitted testimony was merely cumulative of the
victim’s own testimony, which had already been admitted. Given the
cumulative nature of the erroneously-admitted testimony, we find that any
prejudice to Showalter was de minimis. Passmore, supra.
Having determined that Showalter’s convictions are valid, we address
whether the sentencing court abused its discretion in sentencing him to sixty
to one-hundred-and-twenty years’ incarceration. Showalter contends that
the trial court abused its discretion by imposing consecutive sentences and
by imposing a sentence above the aggravated guidelines range on each of
two incest counts. While Showalter does not raise the issue, we note that he
was sentenced pursuant to the mandatory minimum scheme as set forth in
42 Pa.C.S. § 9718, which has been held to be unconstitutional. See
Commonwealth v. Wolfe, 106 A.3d 800, 805 (Pa. Super. 2014).
Consequently, we elect sua sponte to review the legality of Showalter’s
sentences for rape of a child, IDSI, and aggravated indecent assault. See
Commonwealth v. Edrington, 780 A.2d 721 (Pa. Super. 2001) (assuming
proper jurisdiction, application of mandatory minimum sentence involves
legality of sentence, which this Court can raise sua sponte).
Prior to our decision in Wolfe, section 9718(a)(3) set forth mandatory
minimum sentences of ten years’ imprisonment where a defendant is
convicted of rape of a child or IDSI involving a child and five years’
imprisonment where a defendant is convicted of aggravated indecent assault
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of a child. 42 Pa.C.S. § 9718(a)(3). In Wolfe, a jury convicted the
defendant of sex crimes committed against a minor victim, including two
counts of IDSI.8 The court imposed ten-year mandatory minimum sentences
for each IDSI conviction, pursuant to section 9718(a)(1). On appeal, this
Court emphasized that section 9718 “contains the same format” as other
statutes recently held to be facially unconstitutional by this Court in light the
United States Supreme Court’s decision in Alleyne v. United States, 133
S. Ct. 2151 (2013).9 Id. at 805. Consequently, this Court held section 9718
is also facially unconstitutional. Moreover, this Court noted:
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8
The relevant portion of the IDSI statute provides:
A person commits a felony of the first degree when the person
engages in deviate sexual intercourse with a complainant . . .
who is less than 16 years of age and the person is four or more
years older than the complainant and the complainant and
person are not married to each other.
18 Pa.C.S. § 3123(a)(7).
9
In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),
this Court held that section 9712.1 can no longer pass constitutional muster
as it “permits the trial court, as opposed to the jury, to increase a
defendant’s minimum sentence based upon a preponderance of the
evidence.” Newman, supra at 98. Thus, this Court vacated Newman’s
PWID sentence and remanded for resentencing without imposition of the
mandatory minimum under section 9712.1. See also Commonwealth v.
Valentine, 101 A.3d 801 (Pa. Super. 2014) (involving appeal of sentence
arising from jury trial; extending logic of Alleyne and Newman to 42
Pa.C.S. §§ 9712, 9713 and holding those sections are likewise
unconstitutional insofar as they permit automatic increase of defendant’s
sentence based on preponderance of evidence standard).
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We recognize that this specific case is unique insofar that the
additional fact triggering the mandatory sentence is also
contained as an element within the subsection of the IDSI
statute under which [the defendant] was convicted. Therefore,
in order to convict [the defendant] of IDSI, the Commonwealth
was already required to prove beyond a reasonable doubt that
the victim was less than 16 years old.
However, we are not concerned with [the defendant’s] conviction
in this appeal, only the imposition of the mandatory minimum
sentence.
***
[I]n this case, although the jury was required to find that the
victim was less than 16 years of age in order to convict [the
defendant], we cannot ignore the binding precedent from an en
banc decision of this Court. Newman stands for the proposition
that mandatory minimum sentence statutes in Pennsylvania of
this format are void in their entirety. As 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. As a result, we conclude the trial court erred
in imposing the ten-year mandatory minimum.
Id. at 5-6 (internal citations omitted).
Instantly, the court conducted a jury trial and convicted Showalter of
multiple sex offenses. At the sentencing hearing, the court applied Section
9718 to Showalter’s rape of a child, IDSI, and aggravated indecent assault
convictions. Given this Court’s decisions in Newman, Valentine, and
Wolfe, however, we must vacate and remand for resentencing.
Accordingly, we affirm Showalter’s convictions, but we vacate the judgment
of sentence and remand for resentencing in accordance with this
memorandum.
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Judgment of sentence vacated; case remanded for resentencing.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/01/16
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