Com. v. Riggleman, M.

J-S33011-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK S. RIGGLEMAN :
:
Appellant : No. 754 EDA 2022
Appeal from the Judgment of Sentence Entered October 1, 2021,
in the Court of Common Pleas of Northampton County,
Criminal Division at No(s): CP-48-CR-0000509-2019.
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KUNSELMAN, J.: FILED DECEMBER 28, 2022
Mark S. Riggleman appeals from the judgment of sentence imposed
after he was found guilty of several offenses. Upon review, we affirm.
The trial court summarized the underlying facts of this case as follows:
[O]n December 16, 2018, [] [Riggleman] and his girlfriend, Amy
Maurer ("Victim"), returned to her home in the City of Bethlehem
after a night together at a Christmas party and a local bar. During
a fight about [Riggleman’s]s behavior around other women, Victim
demanded [Riggleman] leave her home where he had been
residing. The argument became physical, and [Riggleman] pinned
Victim to the ground, struck her multiple times in the head, and
choked her. The majority of the assault was recorded on
[Riggleman’s] cellphone. Due to the attack, Victim suffered a
ruptured left ear drum, a fractured left metacarpal on her hand
that required surgery, and multiple contusions to her face, neck,
arms, and legs.
Trial Court Opinion, 2/24/22, at 2. Riggleman was arrested and charged.
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Following trial, a jury convicted Riggleman of aggravated assault
(attempt to cause serious bodily injury) and simple assault.1 Additionally, the
trial court found him guilty of harassment.2
At the sentencing hearing, the Commonwealth read a letter from the
victim into the record explaining the nature of her relationship with Riggleman
and the impact the attack had on her. Several of Riggleman’s friends and his
mother spoke about Riggleman’s character and role in the community.
Riggleman personally addressed the trial court, during which he wanted to
read certain emails and texts sent to him by the victim. The Commonwealth
objected asserting they were hearsay. The court sustained the objection.
Afterwards, the trial court sentenced Riggleman to 84 to 180 months’
incarceration for aggravated assault; simple assault merged with the
aggravated assault for purposes of sentencing. The court imposed no further
penalty for harassment. Riggleman filed a post-sentence motion, which, in
part, challenged the court’s refusal to allow Riggleman to read the
communications into the record at sentencing. After a review of these
communications, the court denied Riggleman’s motion.
Riggleman filed this timely appeal. He raises the following two issues
for our consideration:
____________________________________________
1 18 Pa.C.S.A. §§ 2702(a)(1) and 2718(a)(1). Riggleman was acquitted of
strangulation and aggravated assault (caused serious bodily injury).
2 18 Pa.C.S.A. § 2709(a)(1).
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A. Did the trial court err in ruling that hearsay evidence is not
admissible during a sentencing proceeding thereby excluding
[Riggleman] from presenting relevant evidence in mitigation of
sentence?
B Did the trial court violate Rule 704(C)(1) of the Pennsylvania
Rules of Criminal Procedure in denying [Riggleman] the right to
incorporate hearsay evidence of a mitigating nature during
[Riggleman’s] opportunity to make a statement on his own behalf
at the time of sentencing thereby impairing his ability to fully
articulate matters of mitigation, explanation and context?
Riggleman’s Brief at 4.
In his first issue, Riggleman claims that the trial court erred when it
denied his request to present various communications sent to him by the
victim on the basis of hearsay during his allocution. Specifically, he argues
that hearsay evidence is permitted to be introduced at a sentencing
proceeding. Riggleman maintains that, if the Commonwealth can introduce a
pre-sentence investigation report (“PSI”) and a victim impact statement, both
of which are hearsay, he should have been allowed to read the emails and
texts from the victim. Instead, he claims the court precluded him from
referring to the communications and their significance; using them to define
the nature of his relationship with the victim, contradict the victim’s
description of their relationship, or explain what precipitated the incident.
According to Riggleman, the court’s refusal to allow these communications
into evidence, was error and prevented him from providing evidence in
mitigation of his sentence. Riggleman’s Brief at 10-11.
Initially, we observe that the admission of evidence presented at a
sentencing hearing is vested within the sound discretion of the trial court
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applying the rules of evidence. Commonwealth v. Hairston, 84 A.3d 657,
674 (Pa. 2014). As such, our standard of review of a trial court's evidentiary
rulings is abuse of discretion. Commonwealth v. Walter, 93 A.3d 442, 449
(Pa. 2014). Thus, we will not disturb an evidentiary ruling unless “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 evidence of record.” Commonwealth v. Cooper, 941 A.2d 655, 667 (Pa.
2007) (citation omitted). This includes rulings on the admission of hearsay.
Hearsay is a statement that the declarant does not make while testifying
at the current trial or hearing that is offered into evidence to prove the truth
of the matter asserted in the statement. Pa.R.E. 801(c)(1)-(2). Statements
that meet this definition are not admissible unless a hearsay exception applies
or is permitted by other rules prescribed by the Pennsylvania Supreme Court
or by statute. Pa.R.E. 802. “The rule against admitting hearsay evidence
stems from its presumed unreliability, because the declarant cannot be
challenged regarding the accuracy of the statement.” Commonwealth v.
Chmiel, 889 A.2d 501, 532 (Pa. 2005) (citation omitted); see
also Commonwealth v. Smith, 681 A.2d 1288, 1290 (Pa. 1996) (“a hearsay
statement lacks guarantees of trustworthiness”).
Here, the Commonwealth summarized the substance of the
communications which Riggleman sought to introduce at his sentencing
hearing as follows:
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In the email dated September 18, 2018, almost three months
before the attack, the victim indicated that she “hates her job”
and was “not well.” The text message dated November 8, 2018,
more than a month before the attack, contained statements from
the victim about how she was not happy living here and had
“issues.” The victim further indicated that she had been thinking
about dying a lot lately and referred to [Riggleman] as a “good
guy.” In the text message dated February 20, 2017, almost two
years before the attack, the victim thanked [Riggleman] for
making her “want to be better” and indicated that she hoped she
could be such an influence on someone’s life one day.
Commonwealth’s Brief at 5-6. The victim’s statements in the emails and texts
are clearly hearsay. The communications were out of court statements offered
to prove the truth of the matter asserted. As such, these communications
were not admissible. Riggleman contends, however, that hearsay is
admissible at sentencing hearings.
For the purposes of sentencing a defendant, a trial court may admit
evidence as to any matter that it deems relevant and admissible on the
question of the sentence to be imposed, and the evidence shall include matters
relating to any of the aggravating or mitigating circumstances.
Commonwealth v. Young, 637 A.2d 1313, 1321-22 (Pa. 1993). Notably,
“a proceeding held to determine [a] sentence is not a trial, and the court is
not bound by the restrictive rules of evidence properly applicable to
trials.” Commonwealth v. Medley, 725 A.2d 1225, 1229 (Pa. Super. 1999).
Consequently, the admission of hearsay in sentencing proceedings, especially
those which do not involve a capital crime, is a common occurrence.
See Commonwealth v. King, 182 A.3d 449, 455 (Pa. Super.
2018); Medley, 725 A.2d at 1229.
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Hearsay testimony is precisely the type of evidence which is the
right of a court in sentencing to consider even though such
information is obtained outside the courtroom from persons whom
the defendant has not been permitted to confront or cross-
examine. Significantly, the admission of hearsay in sentencing
proceedings, especially those which do not involve a capital crime,
is a common occurrence. In fact, sentencing courts as a matter
of course, consider hearsay in nearly every sentencing case since
pre-sentence investigations are routinely ordered and considered
by the court and a pre-sentence report is the very definition of
hearsay, i.e., the report is a report by a probation officer reciting
other person's out-of-court statements offered for their truth.
Medley, 725 A.2d at 1230. Notably, the Victim’s Bill of Rights, the Sentencing
Code, and the Pennsylvania Rules of Criminal Procedure all permit a trial court
to consider a PSI and victim impact statement prior to imposing a sentence,
which include statements of hearsay. See 18 P.S. § 11.201(5); 42 Pa.C.S.A.
§§ 9721(b) and 9731: Pa.R.Crim.P. 702(A).
But, the consideration of hearsay, even at a sentencing hearing, is not
unfettered. See Pa.R.E. 101 cmt. Instead, a sentencing court may rely on
hearsay evidence in the limited circumstance where the hearsay originated
from a dependable source under reliable circumstances. Medley, 725 A.2d
at 1225. For example, in Medley, the Commonwealth established the
defendant’s prior record based on a detective’s testimony that he had
contacted out of state authorities to verify a prior conviction. Also, the
defendant admitted he had a prior conviction. Although the detective’s
testimony constituted hearsay, it had sufficient indicia of reliability under the
circumstances to be relied upon by the sentencing court. Id. at 1230.
Such circumstances do not exist here.
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First, the communications were cherry picked by Riggleman himself to
advance his own interest. Additionally, they are merely portions of
conversations without any broader context or evidence of the circumstances
under which they were made. Further, they represent only several moments
in time during the course of this relationship and were not even made in close
proximity to the time of the incident. Finally, these statements were not
relevant to the sentencing of Riggleman. Thus, we discern no abuse of
the court's discretion in prohibiting Riggleman from reading the victim’s
statements.
In his second issue, Riggleman claims that the trial court’s erroneous
ruling regarding the emails and texts resulted in a denial of his right of
allocution. Consequently, Riggleman contends that his sentence should be
vacated. Riggleman’s Brief at 15-16.
Initially, as discussed above, the trial court did not err in refusing to
allow Riggleman to read the victim’s communications to him. Furthermore,
while our rules of criminal procedure guarantee the right of allocution to all
who stand convicted of crimes, and the failure to grant this important right
undoubtedly constitutes legal error, our review of the record indicates that the
trial court afforded Riggleman this right. See Pa.R.Crim.P. 704(C)(1); 42
Pa.C.S.A. § 9752(a)(2). Although the court did not allow Riggleman to read
the emails and texts verbatim into the record, the court permitted him to tell
the court about them and their contents during his allocution. Riggleman
explained:
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I wanted to be able to read the email and things just because I
feel fairness and justice for two parties to be able to say things
and not just one.... I have lots of communications from [Victim]
leading up to this night via email and text that, you know, she's
saying how wonderful I am, how much she loved me, how
fortunate she is. She's saying she doesn't know what she would
do without me. There's also times where she says she's broken
and that she needs help or that she doesn't want to live.
. . . Not to put her down as a person, but just indicated some of
the things that are being said that aren't true. She was planning
on moving for months. I have emails to verify that. She hated
her job. I have email she says that and verifies that. She – she -
she was unhappy here and she wanted to move, and she got to
move and I'm happy for her.
N.T., 10/1/2021, at 55-56. Contrary to Riggleman’s claim, the court gave him
ample opportunity to address the court and make a statement on his behalf
before the court sentenced him including a description of his relationship with
the victim, her mental state, and plans to relocate prior to the attack. The
trial court committed no error with respect to Riggleman’s allocation.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/28/2022
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