Com. v. Wilson, R.

J-S14045-17
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
RICKEY CHARLES WILSON, :
:
Appellant : No. 1501 MDA 2016
Appeal from the Judgment of Sentence August 11, 2016
in the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003807-2014
BEFORE: GANTMAN, P.J., SHOGAN, and STRASSBURGER,* JJ.
MEMORANDUM BY: STRASSBURGER, J.: FILED MAY 03, 2017
Rickey Charles Wilson (Appellant) appeals from the judgment of
sentence entered on August 11, 2016, after he was found guilty of
involuntary deviate sexual intercourse (IDSI), aggravated indecent assault,
indecent assault, endangering the welfare of children, corruption of minors,
and indecent exposure.1 We affirm.
Because we write only for the parties, a full recitation of the factual
history is unnecessary. Pertinent to this appeal, Appellant was charged with,
inter alia, the aforementioned crimes after K.C., then five years old, reported
to her grandmother in early July 2014 that she had been touched
1
Appellant was also charged with rape and intimidation of witnesses or
victims. The trial court granted Appellant’s motion for judgment of acquittal
on the charge of rape, and the Commonwealth subsequently withdrew the
intimidation charge.
*Retired Senior Judge assigned to the Superior Court.
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inappropriately by her mother’s boyfriend “Rickey,” later identified as
Appellant.
On May 3, 2016, following a jury trial, Appellant was found guilty of
the abovementioned crimes. On August 11, 2016, Appellant received an
aggregate sentence of ten years and three months to 48 years’
incarceration.2 This timely-filed appeal followed.3
Appellant raises the following issues for our review.
1. Whether the trial court erred in precluding Appellant from
introducing character evidence of Appellant’s peacefulness
where the Commonwealth charged Appellant with an offense
defined as a “sexually violent offense[;]” where the
Commonwealth during opening statement framed this case as
one of “child abuse[;]” and where the Commonwealth
introduced into evidence a video interview where [K.C.]
alleged that someone pushed her onto a bed, climbed on top
of her and made her hurt.
2. Whether the jury’s verdict of guilty of IDSI was against the
weight of the evidence where [K.C.] was unable in the
courtroom to identify the person who touched her[,] where
other men had opportunities to abuse K.C.[,] and where
Appellant presented credible character evidence of
trustworthiness.
3. Whether the trial court’s failure to consider the rehabilitative
needs of [] Appellant, as indicated by the court’s failure to
explicitly cite this factor as one that impacted the sentence,
represents an abuse of the discretionary aspects of
sentencing.
2
Per an order issued by the trial court, Appellant was evaluated by the State
Sexual Offenders Assessment Board and found not to be a sexually violent
predator.
3
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
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Appellant’s Brief at 12-13 (trial court answers and suggested answers
omitted).
We first address Appellant’s issue that the trial court erred in
disallowing him from presenting character evidence of his propensity of
“peacefulness,” which he argues is pertinent to the charges against him.
Appellant’s Brief 25-27. Specifically, concerning the IDSI charge, Appellant
avers evidence of his peaceful character is relevant because IDSI is listed as
a sexually violent offense under the statute. Id. at 27.4 Furthermore,
Appellant argues that the Commonwealth opened the door to this testimony
by stating within its opening that this case was one of “child abuse,” and its
introduction of video testimony, wherein, according to Appellant, K.C.
“claims that the person responsible for these crimes threw her onto the bed,
got on top of her and rubbed her so hard that it made her vagina hurt.” Id.
at 29-30. Appellant argues that because the foregoing implicates violence,
the trial court should have allowed Appellant to introduce this evidence of
“peacefulness.” Id.
4
In his brief, Appellant further claims that his reputation for peacefulness
was relevant to the charges of witness intimidation and rape. However
Appellant failed to include those allegations in his concise statement.
Therefore, they are waived. See Pa.R.A.P. 302(a) (“Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal.”).
See also Commonwealth v. Poncala, 915 A.2d 97, 100 (Pa. Super. 2006)
(“[A]s a general rule, the failure to raise an issue in an ordered Rule 1925(b)
statement results in the waiver of that issue on appeal.”).
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In determining whether the trial court properly excluded testimony of
Appellant’s reputation for peacefulness, we are mindful that
[a]s a general rule, evidence of a person’s character may not be
admitted to show that individual acted in conformity with that
character on a particular occasion. Pa.R.E. 404(a). However,
Pennsylvania Rule of Evidence 404(a)(1) provides an exception
which allows a criminal defendant to offer evidence of his or her
character traits which are pertinent to the crimes charged and
allows the Commonwealth to rebut the same. Pa.R.E. 404(a)(1).
This Court has further explained the limited purpose for which
this evidence can be offered:
It has long been the law in Pennsylvania that an
individual on trial for an offense against the criminal
law is permitted to introduce evidence of his good
reputation in any respect which has “proper relation
to the subject matter” of the charge at issue. Such
evidence has been allowed on a theory that general
reputation reflects the character of the individual and
a defendant in a criminal case is permitted to prove
his good character in order to negate his
participation in the offense charged. The rationale for
the admission of character testimony is that an
accused may not be able to produce any other
evidence to exculpate himself from the charge he
faces except his own oath and evidence of good
character.
Commonwealth v. Johnson, 27 A.3d 244, 247–48 (Pa. Super. 2011)
(citations omitted). As with all evidentiary rulings, a trial court’s decision to
disallow such evidence will not be reversed absent an abuse of discretion.
Commonwealth v. Fisher, 764 A.2d 82, 86 (Pa. Super. 2000).
Appellant was charged and convicted of, inter alia, 18 Pa.C.S.
§ 3123(b), which provides, “[a] person commits [IDSI] with a child, a felony
of the first degree, when the person engages in deviate sexual intercourse
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with a complainant who is less than 13 years of age.” Thus, the
Commonwealth was not required to prove that violence or force was
involved in the commission of this crime in order to meet its burden.
Accordingly, the trial court held that Appellant’s reputation for
peacefulness was irrelevant to the ultimate issue of whether he committed
IDSI of a child and as such, “Appellant was not permitted to introduce
evidence of his peaceful reputation at trial.” Trial Court Opinion,
10/24/2016, at 3.
We begin by reiterating our well-settled law, which states that
“evidence of good character offered by a defendant in a criminal prosecution
must be limited to his general reputation for the particular trait or traits
of character involved in the commission of the crime charged.”
Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa. Super. 2003) (citing
Commonwealth v. Luther, 463 A.2d 1073, 1077 (Pa. Super. 1983))
(emphasis added). Thus, it is of no moment that IDSI is characterized for
sentencing purposes and SORNA evaluation as a sexually violent offense.
See 42 Pa.C.S. § 9799.12; 9799.14. For admissible character evidence, a
court must consider whether the trait offered is relevant to the crime
charged. Here, the Commonwealth needed to prove that penetration
“however slight” occurred and that K.C. was under the age of thirteen at the
time Appellant committed the offense. Proof of violence or force was
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unnecessary. Thus, the trial court was within its discretion to disallow
Appellant’s proposed character evidence.
On appeal, Appellant also claims that his character for peacefulness
was made relevant by the Commonwealth’s opening and introduction of
K.C.’s video interview, which he avers implicated violence. Appellant did not
present these arguments to the trial court and the court had no duty to
create arguments on Appellant’s behalf. This issue is therefore waived.
Moreover, even if we considered this argument, it fails to persuade us that
the trial court abused its discretion in excluding the testimony of Appellant’s
reputation for peacefulness. No relief is due.
Appellant next claims that the verdict was against the weight of the
evidence.
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of whether
the verdict is against the weight of the evidence. Because the
trial judge has had the opportunity to hear and see the evidence
presented, an appellate court will give the gravest consideration
to the findings and reasons advanced by the trial judge when
reviewing a trial court’s determination that the verdict is against
the weight of the evidence. One of the least assailable reasons
for granting or denying a new trial is the lower court’s conviction
that the verdict was or was not against the weight of the
evidence and that a new trial should be granted in the interest of
justice.
However, the exercise of discretion by the trial court in
granting or denying a motion for a new trial based on a
challenge to the weight of the evidence is not unfettered. The
propriety of the exercise of discretion in such an instance may be
assessed by the appellate process when it is apparent that there
was an abuse of that discretion.
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Commonwealth v. Widmer, 560 Pa. 308, 321-22, 744 A.2d 745, 753 (Pa.
2000) (internal citations omitted).
Appellant’s argument that the verdict is against the weight of the
evidence is based upon the following: (1) “the Commonwealth presented no
DNA, fingerprints, or other evidence identifying Appellant as the man who
abused K.C.[;]” (2) K.C. waited “weeks or even months” before reporting
the abuse; (3) she was unable to positively identify Appellant at trial; (4)
K.C. “and other witnesses admitted there were other men and boys in the
[K.C.’s] life who were in a position to abuse her[;]” and (5) Appellant
introduced evidence showing his reputation for trustworthiness. Appellant’s
Brief at 32-33.
We begin by noting that the Commonwealth is not obligated to present
physical evidence linking Appellant to the crimes committed against K.C.
See Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006)
(“This Court has long-recognized that the uncorroborated testimony of a
sexual assault victim, if believed by the trier of fact, is sufficient to convict a
defendant, despite contrary evidence from defense witnesses. If the
factfinder reasonably could have determined from the evidence adduced that
all of the necessary elements of the crime were established, then that
evidence will be deemed sufficient to support the verdict.”) (quotation marks
and citations omitted).
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Furthermore, Appellant’s weight claim dismisses the abundance of
evidence presented to support K.C.’s testimony that she was abused by
Appellant. As aptly summarized by the trial court:
It is clear from the record that the [K.C.] was unable to identify
[] Appellant in court during trial. However, she testified that she
only knows one “Rickey” and that he was the one who lived with
[K.C.] and her mother. [K.C.] testified that when her mother
would go to work, “Rickey” would touch her inappropriate parts.
She also testified that the “Rickey” she knows is a boy and has
black skin and hair. [K.C.] identified the parts of her body on
Commonwealth’s Exhibit 3, including her vaginal area, as those
areas that “Rickey” would touch and indicated that he would
touch those areas with his fingers and tongue. [K.C.’s] mother
testified and identified the Appellant as the “Rickey” who resided
with her and [K.C.] during the time periods when the sexual
offenses occurred. [] Appellant was identified by [K.C.’s] mother
as the individual who would sometimes remain at home with
[K.C.] while she went to work. [Additionally, K.C.’s mother
testified at trial that Appellant’s appearance had changed since
he lived with K.C. and her mother. Specifically, K.C.’s mother
stated that Appellant looked older, thinner, and appeared to
have thicker hair. K.C.’s] grandmother also testified and
identified [] Appellant as the individual who resided with [K.C.]
and her mother. Furthermore, [] Appellant admitted to Susan
Bamford, an intake worker with the sexual abuse unit of Berks
County Children and Youth Services, that he would watch [K.C.]
when her mother was at work and that there were times when
he was alone with her or in bed with her. Ms. Bamford positively
identified [] Appellant as the individual who made these
statements to her. Trooper Alyssa Becker of the Pennsylvania
State Police also identified Appellant as the individual with whom
she discussed the allegations of sexual abuse against [K.C.].
Appellant initially denied the allegations but then stated that
[K.C.’s] mother needs to stand by her daughter and that she
was not lying. Therefore, although [K.C.] could not identify []
Appellant in court as the person who touched her, the
identification of [] Appellant made by the other Commonwealth
witnesses provided ample circumstantial evidence to support the
jury’s finding that it was the Appellant who touched [K.C.].
Trial Court Opinion, 10/24/2016, at 6-7.
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Here, the jury had the opportunity to hear all evidence presented and
assess the credibility of those who testified. This included evidence of other
men who were present in K.C.’s life during the time of the assaults, as well
as character evidence presented on Appellant’s behalf. It is evident by the
jury’s verdict that they found that K.C.’s testimony, in conjunction with the
additional testimony and evidence presented, supported the finding that
Appellant was the man who inappropriately touched K.C. For the foregoing
reasons, Appellant has failed to convince us that the trial court abused its
discretion in holding that the verdict was not against the weight of the
evidence.
Appellant’s final issue challenges the discretionary aspects of his
sentence.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
***
When imposing sentence, a court is required to consider
the particular circumstances of the offense and the character of
the defendant. In considering these factors, the court should
refer to the defendant’s prior criminal record, age, personal
characteristics and potential for rehabilitation.
Commonwealth v. Antidormi, 84 A.3d 736, 760-61 (Pa. Super. 2014)
(internal citations and quotation marks omitted).
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An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right. Rather, an
appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction. We determine whether the
appellant has invoked our jurisdiction by considering the
following four factors:
(1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the
issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence, see
Pa.R.Crim.P. 720; (3) whether appellant’s brief has a
fatal defect, Pa.R.A.P. 2119(f); and (4) whether
there is a substantial question that the sentence
appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006-07 (Pa. Super. 2014)
(some citations omitted).
The record reflects that Appellant timely filed a notice of appeal and
that Appellant preserved the issue by timely filing a motion for
reconsideration of his sentence. Moreover, Appellant has included in his
brief a statement pursuant to Pa.R.A.P 2119(f). We now turn to consider
whether Appellant has presented substantial questions for our review.
The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis. Commonwealth v. Paul, 925 A.2d
825, 828 (Pa. Super. 2007). “A substantial question exists only 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
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sentencing process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.
Super. 2013) (citation and quotation marks omitted).
In his 2119(f) statement, Appellant argues the sentencing court
entirely disregarded the rehabilitative needs of [Appellant] and
imposed a sentence which only reflected the gravity of the
offense and the protection of the public. [The] transcript from
the sentencing indicates that the [sentencing] court fashioned a
sentence without first indicating on the record that it had
performed its statutory obligation of considering all required
factors.
Appellant’s Brief at 23. Appellant essentially takes issue with how the trial
court weighed the statutory factors, which this Court has previously held
does not raise a substantial question. See Commonwealth v. Zirkle, 107
A.3d 127, 133 (Pa. Super. 2014) (“[W]e have held that a claim that a court
did not weigh the factors as an appellant wishes does not raise a substantial
question.”).
Regardless, even if we were to address the merits of his claim,
Appellant would not be entitled to relief. Prior to imposing Appellant’s
sentence, the trial court stated the following:
The [c]ourt has reviewed the presentence investigation
report [(PSI)]. Obviously [the sentencing judge was the trial
judge] in this case. Certainly [the trial court] cannot imagine
nor put [itself] in the shoes of the anxiety that this little girl has
been put through, the anxiety she must have suffered when her
mother would leave and she then knew that [Appellant] was
responsible for babysitting her.
[The trial court has] taken into consideration the nature of
the offense. [The court has] taken into consideration the age of
this victim. [The trial court has] taken into consideration that
this was multiple acts over a period of time, and [does not]
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believe that anyone could characterize this as being short versus
long, that this will forever be long in this victim’s mind. [The
trial court has taken] into consideration that the victim that has
been violated is the most vulnerable human being in our society
and that as we [sic] as adults are to be here to protect children
and to raise children and [the court finds] it very concerning that
[Appellant] was able to infiltrate this family and was so quickly
able to begin this abuse.
While [the trial court understands Appellant’s] counsel’s
witness that this is not the Rickey they know[,] we all know
sitting here that people who do these types of acts on children
have the characteristics of being able to manipulate people so
that they can get to the victims that they are attempting to get
to.
[The trial court finds] that [K.C.] was repeatedly told not
to tell anybody, that she was probably scared, and for all those
reasons [the trial court imposes the following] sentence. [The
trial court takes] into account [Appellant’s] counsel’s argument
that the guidelines have taken into account or have already
considered what [K.C.’s] age was. Count 2 does say that she
was less than 13 years of age. [The trial court has] taken into
consideration he was under supervision. [The court has] taken
into consideration that that was a misdemeanor and that his
other offenses were from 2001 and 2002 that those were older
offenses.
For all the following reasons[, the trial court does believe]
that a standard range sentence is appropriate; however, [the
trial court believes] that a consecutive sentence is appropriate in
that there were multiple acts that were committed on this victim
over a several month period of time. [The trial court does]
believe that [Appellant] needs to be under supervision for an
extended period of time.
N.T., 8/11/2016, at 19-20.
Thus, before sentencing, the court heard the applicable guidelines and
recommendations for sentencing. Id. at 6-19. The sentencing court then
proceeded to provide a summary of what the court considered when
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fashioning Appellant’s sentence, which included Appellant’s requests, as well
as the PSI. “Where the sentencing court had the benefit of a [PSI], we can
assume the sentencing court ‘was aware of relevant information regarding
the defendant’s character and weighed those considerations along with
mitigating statutory factors.’” Griffin, 65 A.3d at 937 (quoting
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)). Despite this
information, for the plethora of reasons given, the trial court found that
consecutive standard range sentences were appropriate. We discern no
abuse of discretion in the court’s determination.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/3/2017
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