Com. v. Vasquez, C.

J-S04017-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CHRISTOPHER LEE VASQUEZ,
Appellant No. 42 WDA 2015
Appeal from the Judgment of Sentence of December 1, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0011826-2013
BEFORE: BOWES, OLSON AND STRASSBURGER,* JJ.
MEMORANDUM BY OLSON, J.: FILED FEBRUARY 22, 2016
Appellant, Christopher Lee Vasquez, appeals from the judgment of
sentenced entered on December 1, 2014.1 We affirm.
The able trial court prepared the following summary of facts:
Appellant is accused of raping [the victim], the daughter of
his live-in girlfriend, [T.D.], while [the victim] was visiting
her mother on a summer weekend in 2011. [The victim]
was [fifteen] years old at the time of the incident. [The
victim], according to her father and stepmother, is an
intellectually delayed girl who is a grade behind in school
according to her Individualized Education Plan (“IEP”).
After the alleged incident occurred, [the victim] returned
to her father’s residence, but did not tell her father or her
stepmother what had happened, because she wanted to
forget about it. Two years later, when [the victim] was in
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1
Appellant’s judgment of sentence was made final when the trial court, on
December 8, 2014, denied his post-sentence motion.
*Retired Senior Judge assigned to the Superior Court.
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the tenth grade, she disclosed the rape to a school
counselor, Ms. Fink. She told Ms. Fink as a way to explain
her poor behavior in school. Shortly thereafter, the
counselor called [the victim’s] stepmother, who then called
[the victim’s] father at his place of work. When [the
victim] went home from school that day to her father and
stepmother, she disclosed to them about the rape.
Trial Court Opinion, 9/1/15, at 3 (citations to record and footnote omitted).
Following a police investigation, the Commonwealth charged Appellant
with one count each of rape, sexual assault, statutory sexual assault,
corruption of minors, and indecent assault.2 On May 28, 2014, Appellant
filed a motion in limine, in which he sought to admit information from the
victim’s certified medical records “for the sole purpose of impeaching the
alleged victim’s credibility.” Motion in Limine, 5/28/14, at 2. This motion
was heard on the first day of trial, September 8, 2014, immediately after the
trial court gave its opening remarks to the jury and dismissed the jurors for
a lunch break. After an in-camera hearing, the trial court denied Appellant’s
motion.
After counsel presented their opening statements, Appellant’s trial
counsel informed that trial court that Appellant “wants to enter a [guilty]
plea if it is still on the table, the offer that was extended initially.” N.T.,
9/8/14, at 55. After a brief recess, the assistant district attorney told the
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2
18 Pa.C.S.A. §§ 3121(a)(1), 3124.1, 3122.1, 6301(a)(1)(i), and
3126(a)(8), respectively.
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trial court that the original plea deal was withdrawn, but that the
Commonwealth was willing to offer a new plea deal that would leave
“sentencing to the Court.” N.T., 9/8/14, at 59. After conferring with trial
counsel, Appellant decided to proceed with trial. Id. at 61. The trial court
then adjourned the proceedings for the day.
The next day the Commonwealth presented the victim’s testimony, as
well as the testimony of her father, stepfather, a detective involved in the
investigation, and T.D. In his defense, Appellant presented the testimony of
his stepbrother, who claimed that the incident as described by the victim
could not have happened because Appellant was with him playing cards.
Following closing arguments, and the trial court’s charge, the jury convicted
Appellant on all counts. On December 1, 2014, the trial court sentenced
Appellant to an aggregate term of 89 to 252 months of imprisonment. This
appeal follows the trial court’s denial of Appellant’s post-sentence motion.
Both Appellant and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following issues:
[I]. DID THE [TRIAL] COURT ERR BY DENYING
[APPELLANT’S] MOTION IN LIMINE SEEKING TO ADMIT
THE [VICTIM’S] CERTIFIED MEDICAL RECORDS
CONTAINING STATEMENTS MADE BY THE [VICTIM] WHICH
WERE RELEVANT TO IMPEACH THE CREDIBILITY OF HER
TESTIMONY AT TRIAL?
[II]. IS [APPELLANT] ENTITLED TO A NEW TRIAL
BECAUSE THE JURY’S VERDICT WAS SO CONTRARY TO
THE WEIGHT OF THE EVIDENCE PRESENTED THAT IT
SHOCKS ONE’S SENSE OF JUSTICE?
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III. WAS THE SENTENCE IMPOSED BY THE [TRIAL]
COURT MANIFESTLY EXCESSIVE, UNREASONABLE, AND
AN ABUSE OF DISCRETION?
Appellant’s Brief at 5. We will address Appellant’s issues in the order
presented.
Appellant first challenges the trial court’s denial of his motion in limine.
The trial court summarized Appellant’s proposed evidence as follows:
In the medical records, a statement is attributed to the [victim].
Appellant sought to admit a note in the medical record
purportedly authored by Dr. Adam Ray, dated April 13, 2012.
The specific information, written under history of present illness,
says “[p]resent is 15-year-old female that tells me earlier today
she had her first intercourse with a 16-year-old male.” Of
particular relevance, other statements are attributed to [the
victim’s] mother. [The record is unclear as to whether “mother”
refers to T.D. or the victim’s stepmother.] The final assessment
form, under chief complaint, says “[h]ad first sexual experience,
intercourse, unknown ejaculation . . . Mom wants her tested for
STD . . . consensual intercourse 16-year-old.” According to the
records, it appears that [the victim] and/or the other individual
told her doctor that [the victim] was at his office for testing
because she had her “first” sexual encounter with a 16-year-old
male. This sexual encounter would have occurred after she was
alleged to have been sexually assaulted by Appellant. Appellant
wanted to use this statement as a prior inconsistent statement
to impeach the credibility of the [victim].
Trial Court Opinion, 9/1/15, at 3-4 (citations to record and footnote
omitted). The trial court stated several reasons for denying Appellant’s
motion, including its conclusion that admission of the statement would
violate Pennsylvania’s Rape Shield Law. 18 Pa.C.S.A. § 3104.
This Court recently summarized our standard of review for the
admission of evidence of a victim’s prior sexual conduct as follows:
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A trial court’s ruling on the admissibility of evidence of the
sexual history of a sexual abuse complainant will be
reversed only where there has been a clear abuse of
discretion. An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion 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 of
record, discretion is abused.
Commonwealth v. K.S.F., 102 A.3d 480, 483 (Pa. Super. 2014) (citations
omitted).
The Rape Shield Law reads as follows:
§ 3104. Evidence of victim’s sexual conduct
(a) General rule.—Evidence of specific instances of
the alleged victim’s past sexual conduct, opinion
evidence of the alleged victim’s past sexual
conduct, and reputation evidence of the alleged
victim’s past conduct shall not be admissible in
prosecutions under this chapter except evidence
of the alleged victim’s past sexual conduct with
the defendant where consent of the alleged victim
is at issue and such evidence is otherwise
admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings.—A defendant who
proposes to offer evidence of the alleged victim’s
past sexual conduct pursuant to subsection (a)
shall file a written motion and offer of proof at the
time of trial. If, at the time of trial, the court
determines that the motion and offer of proof are
sufficient on their faces, the court shall order an
in camera hearing and shall make findings on the
record as to the relevance and admissibility of the
proposed evidence pursuant to the standards set
forth in subsection (a).
18 Pa.C.S.A. § 3104.
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In K.S.F., this Court further discussed the interplay between the
purpose of the Rape Shield Law and the constitutional rights of the accused:
Although the literal language of the Rape Shield Law would
appear to bar a wide range of evidence, courts have
interpreted the statute to yield to certain constitutional
considerations implicating the rights of the accused. See,
e.g., Commonwealth v. Riley, 643 A.2d 1090, 1093 (Pa.
Super. 1994) (right to cross-examine witnesses).
Evidence that tends to impeach a witness’ credibility is not
necessarily inadmissible because of the Rape Shield Law.
[Commonwealth v. Black, 487 A.2d 396, 401 (Pa.
Super. 1985)]. When determining the admissibility of
evidence that the Rape Shield Law may bar, trial courts
hold an in camera hearing and conduct a balancing test
consisting of the following factors: “(1) whether the
proposed evidence is relevant to show bias or motive or to
attack credibility; (2) whether the probative value of the
evidence outweighs its prejudicial effect; and whether
there are alternative means of proving bias or motive or to
challenge credibility.” Id.
K.S.F., 102 A.3d at 483-484.
Here, the trial court held the in camera hearing prior to trial and
placed the following reasons on the record for denying Appellant’s motion in
limine:
THE COURT: Okay. So, again, following the Black case,
which you did cite, [the statement at issue] is clearly being
offered to impeach [the victim’s] credibility. In that regard
it would be very weak for all the reasons that I stated. It
is recorded in a medical record by a doctor purportedly as
a quote. The doctor is not available to testify. Multiple
interpretations that we could make of [the statement] and
no way to sanitize it that would not also call into question
[the victim’s] character, specifically with regard to what
the Rape Shield Law is trying to protect against. So the
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probative value here would be outweighed by the
prejudicial effect.
There are alternate means for you to attack [the victim’s]
credibility, specifically going after consistency and detail
and memory and failure to promptly report and all the
usual kinds of things that would be available in this type of
a case.
N.T., 9/8/14, at 37-38.
The trial court expounded upon these reasons in its Pa.R.A.P. 1925(a)
opinion:
Appellant argues that the statement is not hearsay as it is
being offered only to impeach credibility. . . . However,
the statement’s relevance in this case comes from it being
used to establish the truth of the matter asserted,
specifically, that [the victim] had not had prior sexual
contact with Appellant. The statement cannot be admitted
merely to establish an inconsistency; the alleged
inconsistency goes to the heart of the statement and must
therefore be accepted as truthful to impeach [the victim’s]
credibility. As such, the statement remains inadmissible as
hearsay pending consideration of exceptions to the
hearsay rule. . . .
Hearsay may be admissible as a statement made for
diagnosis or treatment. . . . The rationale for this
exception to the prohibition against hearsay is that the
[declarant], who is seeking treatment, has a strong
motivation to speak truthfully; a motivation that is an
adequate substitution for cross-examination and oath.
See Pa.R.E. 803(4)[.] . . .
The medical records exception does not apply to the
statement at issue, as the statement “first” sexual
encounter was not made for purposes of medical
treatment. Whether a recent sexual encounter was the
first or one of many would not be relevant for purposes of
diagnosing or treating a sexually transmitted disease
(STD), just as treating a victim of sexual abuse, the name
of the perpetrator would not be relevant to the patient’s
treatment.
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The statement also fails to qualify for the business record
exception under Pa.R.E. 803(6)[.] . . . As a business
record, Appellant failed to meet the burden of putting on
testimony that the statement attributed to the [victim] was
recorded contemporaneously with the statement.
Appellant’s counsel stated that the doctor was unavailable
and could not testify about whether or not the notes were
made contemporaneously.
Also, the statement lacks inherent indicia of reliability.
The statement is, in fact, hearsay within hearsay, as the
doctor was not available at trial for cross-examination. An
out-of-court declaration containing another out-of-court
declaration is double hearsay. In order for double hearsay
to be admissible, the reliability and trustworthiness of each
declarant must be independently established. This
requirement is satisfied when each statement comes within
an exception to the hearsay rule. “Hearsay within hearsay
is not excluded by the rule against hearsay if each part of
the combined statement conforms with an exception to the
rule.” Pa.R.E. 805.
In this case each part of the statement does not conform
with an exception to the [hearsay] rule. The statement
offered was not written by the [victim] but was attributed
to [her] when entered into the medical record by another
person. The other person, presumably the doctor, was
unavailable to testify. The statement attributed to the
[victim] was not placed in quotation by the author of the
medical record. The specific details of how [the victim]
ended up going to the hospital and who was present with
[her] talking to the doctor are absent from the record.
The person recording the statement may have assumed
based on [the victim’s] age and mental capacity along with
the fact that her “mother” had brought her in for testing
that she was engaging in her first sexual relationship with
a boy and added that modifier himself. Alternatively, the
statement may refer to the victim’s first consensual sexual
experience or her first sexual encounter with her
boyfriend. In addition, the medical record attributes other
relevant statements to an individual identified as [the
victim’s] mother. Without testimony subject to cross-
examination from the recording source, the precise
meaning of the statements as recorded cannot be
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examined. [The trial c]ourt did not err in excluding the
use of this statement at trial.
In addition, as the evidence relates to alleged prior sexual
conduct of the victim, [the trial c]ourt must consider
whether the Rape Shield Law, 18 Pa.C.S. § 3104,
precludes the use of this evidence. . . . In this case,
Appellant was accused of sexually assaulting the victim . .
. approximately two years before she was taken to be
tested for an STD because of a sexual relationship with a
boyfriend. Therefore, consideration of the Rape Shield Law
is appropriate.
***
[The trial c]ourt held an in camera hearing on the Motion
in Limine. Applying the Black test, [the trial c]ourt found
that, under the particular circumstances as discussed
above, specifically that the doctor who signed the medical
record in question was not available as a witness, the
prejudicial effect outweighed the probative value of the
evidence. Again, the statement may have been made by
the victim and/or her “mother” to a doctor when the
[victim] was brought in to obtain testing for sexually
transmitted diseases. [Without the doctor’s testimony, the
trial court could only assume that the statement was made
directly to the doctor as opposed to another member of the
treatment team, that the statement was a direct quote,
that it was recorded contemporaneously and the that the
word “first” was used by the victim, not the mother, and
was made in reference to an initial consensual sexual
encounter with a boyfriend.] As the [victim] had not yet
disclosed the earlier rape by [Appellant], and ultimately
made her initial disclosure to a school counselor, the
[victim] likely did not feel comfortable disclosing to an
unfamiliar person at a hospital with “mother” present.
Trial Court Opinion, 9/1/15, at 4-9 (citations and footnotes omitted).
We discern no abuse of discretion. As recognized by the trial court,
the instant case is unlike the factual circumstances of K.S.F, wherein it was
undisputed that the minor victim posted online her assertion that she was a
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virgin, and wherein a panel of this Court concluded that such a statement
“could not reasonably be understood to prejudice [the victim] by smearing
her virtue and chastity, nor is it inflammatory.” K.S.F., 102 A.3d at 485
(footnote omitted).
Given the above discussion by the trial court, Appellant’s claims that:
1) the statement was made by the victim; 2) it was not hearsay and/or was
admissible under the exception for statements made for purposes of medical
treatment or diagnosis, and 3) it was admissible despite the Rape Shield
Law, are unavailing. See Appellant’s Brief at 20-25. Moreover, Appellant’s
citation of the trial court’s final sentence to argue its reasons for disallowing
the statement were merely speculative, ignores the trial court’s prior
thoughtful analysis of Appellant’s motion in limine. Finally, we note that at
trial Appellant utilized different methods of impeaching the victim’s
testimony, including cross-examining her with inconsistent and contradictory
statements she made to police and others, the victim’s two-year delay in
reporting the incident, and the direct testimony from the victim’s biological
mother, T.D., who claimed that the victim fabricated the charges because
the victim was jealous and wanted T.D.’s boyfriend (Appellant) for herself.
See, e.g., N.T., 9/9/14, at 243 (testifying that she told police that the victim
“has a thing” for Appellant).
Thus, for all of the reasons discussed above, we conclude that the trial
court did not abuse its discretion by excluding the purported statement of
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the victim in the medical record. Therefore, Appellant’s first issue is without
merit.
In his next claim, Appellant asserts that he is entitled to a new trial
because the jury’s verdict “was so contrary to the weight of the evidence
that it shocks one’s sense of justice.” Appellant’s Brief at 15. According to
Appellant, the Commonwealth’s case against him “was premised on
testimony so clearly unreliable that justice requires its reversal.” Id. We
disagree.
Our Supreme Court recently summarized:
A motion for new trial based on a claim that the verdict is
against the weight of the evidence is addressed to the
discretion of the trial court. Commonwealth v. Widmer,
744 A.2d 745 751-752 (Pa. 2000); Commonwealth v.
Brown, 648 A.2d 1177, 1189 (Pa. 1994). A new trial
should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would
have arrived at a different conclusion. Widmer, 744 A.2d
at 752. Rather, “the role of the trial judge is to determine
that ‘notwithstanding all the facts, certain facts are so
clearly of greater weight that to ignore them or to give
them equal weight with all the facts is to deny justice.’”
Id. (citation omitted). It has often been stated that “a
new trial should be awarded when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice
and the award of a new trial is imperative so that right
may be given another opportunity to prevail.” Brown,
648 A.2d at 1189.
An appellate court’s standard of review when presented
with a weight of the evidence claim is distinct from the
standard of review is distinct from the standard of review
applied by the trial court:
Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question
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of whether the verdict is against the weight of the
evidence. Brown, 648 A.2d at 1189. 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 the trial
court’s determination that the verdict is against the
weight of the evidence. Commonwealth v.
Farquharson, 354 A.2d 545 [(Pa. 1976)]. 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.
Widmer, 744 A.2d at 753 (emphasis added).
This does not mean that 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
unfettered. In describing the limits of a trial court’s
discretion, we have explained:
The term “discretion” imports the exercise of
judgment, wisdom and skill so as to reach a
dispassionate conclusion within the framework of the
law, and is not exercised for the purpose of giving
effect to the will of the judge. Discretion must be
exercised on the foundation of reason, as opposed to
prejudice, personal motivations, caprice or arbitrary
actions. Discretion is abused where the course
pursued represents not merely an error of judgment,
but where the judgment is manifestly unreasonable
or where the record shows that the action is the
result of partiality, prejudice, bias or ill-will.
Widmer, 744 A.2d at 753 quoting Coker v. S.M.
Flickinger Co., 625 A.2d 1181, 1184-1185 (Pa. 1993).
Commonwealth v. Clay, 64 A.3d 1049, 1054-1055 (Pa. 2013).
In explaining its decision to deny Appellant’s weight challenge, the trial
court summarized the pertinent trial testimony as follows:
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[The victim] testified that Appellant raped her when she
was 15. She testified that she was visiting her mother on
a weekend in the summer. [T.D., the victim’s] mother[,]
left her in the care of Appellant, [T.D.’s] paramour, while
[T.D.] went to the hospital to see a relative who had been
taken to the emergency room. When [the victim] laid
down on [T.D.’s] bed to sleep, and with her younger
brother asleep on the floor next to her, Appellant, naked,
laid on top of her and unbuttoned her pants. [The victim]
testified that Appellant’s penis touched her vagina on the
inside. She said that the incident ended when Appellant
heard a knocking on the door and left her to go to the
bathroom. [The victim] said she got dressed and called
her father to pick her up early. Afterwards, she washed
the sheet because she had bled on it. Appellant, however,
told [T.D.] that the bedding was washed because he had
spilled ketchup on it. [The victim] testified that she didn’t
tell [T.D.] what happened because her mother would never
have believed her. [The victim] testified that, since her
rape, she hasn’t seen [T.D.] or talked to her on the phone
because [T.D.] did not believe that Appellant raped [the
victim].
The Commonwealth produced two witnesses who
corroborated details of [the victim’s] testimony: [R.D.],
[the victim’s] father, and [T.M.], his live-in girlfriend.
[T.M.] testified that [the victim] first told a school
counselor about the rape. Then [the victim] came home
from school and told [T.M.] that Appellant had raped her.
[T.M.] called [R.D.] and said that [the victim] had
something to tell him. [R.D.] then corroborated [T.M.’s]
testimony, stating that [T.M.] called him one day and told
him that [the victim] had something to tell him. He said
that [the victim] told him Appellant had forced himself on
her. [R.D.] called his local police department and was told
that the Allegheny County Police Department investigates
allegations of this nature. [Each of these witnesses also
testified that the victim has cognitive delays or intellectual
disabilities.] Detective Corrine Orchowski, who is assigned
to the sexual assault unit of the Allegheny County Police
Department, testified that, in her experience, it is fairly
common for children to delay disclosure of sexual abuse.
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Trial Court Opinion, 9/1/15, at 9-11 (citations to record and footnotes
omitted).
Based upon the above summary, the trial court concluded that,
“[u]nder the totality of the circumstances, the jury was within its discretion
to conclude that Appellant sexually assaulted the [victim].” Id. at 11. We
agree.
In support of his weight challenge, Appellant asserts that his
convictions “cannot be sustained based on [the victim’s] testimony which
was contradictory with respect to almost every material fact and included a
highly implausible description of events in which [Appellant] allegedly lay
completely still on top of the [victim] throughout the entire assault.”
Appellant’s Brief at 15. Appellant then cites various portions of the victim’s
testimony in which at different times during the police investigation she
contradicted herself as to: 1) when the assault occurred as well as the day
of the week and the time of day; 2) when T.D. left for the hospital and
whether the victim’s brother accompanied her; 3) whether the victim’s
youngest brother was present sleeping in the room when the assault
occurred; 4) the manner in which the assault began and ended; 3) the
actions of Appellant after the assault and whether the victim went home that
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same day; and 5) who washed the soiled bedsheets after the assault. See
Appellant’s Brief at 27-33.3
Unfortunately for Appellant, these contentions focus exclusively upon
conflicts within the testimony, which fall within the purview of the factfinder
to resolve. Appellant cites no pertinent authority to suggest that such claims
establish his assertion that the verdict is against the weight of the evidence.
Thus, Appellant’s second issue is devoid of merit.
Appellant’s final claim pertains to the discretionary aspects of his
sentence. Accordingly, we consider such an argument to be a petition for
permission to appeal. Commonwealth v. Buterbaugh, 91 A.3d 1247,
1265 (Pa. 2014) (en banc) (citation omitted), appeal denied, 104 A.3d 1
(Pa. 2014). “[A]n appeal is permitted only after this Court determines that
there is a substantial question that the sentence was not appropriate under
the sentencing code.” Commonwealth v. Cartrette, 83 A.3d 1030, 1042
(Pa. 2013) (en banc) (citation omitted).
Prior to reaching the merits of a discretionary aspect of sentencing
issue, this Court is required to conduct a four-part analysis.
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3
Within his supporting argument, Appellant conflates the concepts of
sufficiency and weight of the evidence and, in fact, asserts that “the trial
court erred when it denied [his] post-sentence motion for judgment of
acquittal.” Appellant’s Brief at 26. A claim that the verdict is against the
weight of the evidence concedes its sufficiency. See Widmer, supra. The
trial court treated Appellant claim as a weight challenge. We shall do the
same.
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Commonwealth v. Trinidad, 96 A.3d 1031, 1039 (Pa. Super. 2014)
(citation omitted), appeal denied, 99 A.3d 925 (Pa. 2014). In this analysis,
we must determine: 1) whether the present appeal is timely; 2) whether
the issue raised on appeal was properly preserved at sentencing or in a
post-sentence motion; 3) whether Appellant has filed a statement pursuant
to Pa.R.A.P. 2119(f); and 4) whether Appellant has raised a substantial
question that his sentence is not appropriate under the Sentencing Code.
Id.
In the instant case, Appellant filed a timely notice of appeal, and
properly preserved his claim in a post-sentence motion. Additionally,
Appellant complied with Pa.R.A.P. 2119(f). See Appellant’s Brief at 37. We
must therefore determine whether Appellant raised a substantial question for
our review.
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Edwards, 71 A.3d
323, 330 (Pa. Super. 2013) (citations omitted), appeal denied, 81 A.3d 75
(Pa. 2013). “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 sentencing process.” Id.
(citations omitted). “Additionally, we cannot look beyond the statement of
questions presented and the prefatory 2119(f) statement to determine
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whether a substantial question exists.” Commonwealth v. Provenzano,
50 A.3d 148, 154 (Pa. Super. 2012).
Within his Rule 2119(f) statement, Appellant asserts that a substantial
question exists “because the trial court failed to place adequate reasons on
the record to support the harsh [aggregate] sentence which it imposed on
him, and failed to consider [his] rehabilitative needs . . . or his particular
nature and characteristics as required by law.” Appellant’s Brief at 38.4
To the extent Appellant argues that the trial court failed to consider a
multitude of mitigating factors, this does not rise to the level of a substantial
question. Buterbaugh, 91 A.3d at 1266. Moreover, it is well settled that,
“[w]here pre-sentence reports exist, we shall . . . presume that the
sentencing judge was aware of relevant information regarding the
defendant’s character and weighed those considerations along with
mitigating statutory factors. A pre-sentence report constitutes the record
and speaks for itself.” Commonwealth v. Antidormi, 84 A.3d 736, 760-61
(Pa. Super. 2014), appeal denied, 95 A.3d 275 (Pa. 2014) quoting
Commonwealth v. Devers, 519 Pa. 88, 546 A.2d 12, 18 (1988).
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4
Appellant asserts the trial court’s complete failure to place reasons on the
record for its sentencing choice renders his sentence “illegal.” See
Appellant’s Brief at 38-39. Appellant cites no pertinent authority to support
this claim and we will not consider it further.
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However, Appellant’s claim regarding the trial court’s failure to place
adequate reasons on the record does raise a substantial question. See,
e.g., Commonwealth v. Dodge, 77 A.3d 1263 (Pa. Super. 2013). Thus,
we will address the merits of this claim.
This Court has stated:
The standard employed when reviewing the discretionary
aspects of sentencing is very narrow. We may reverse
only if the sentencing court abused its discretion or
committed an error of law. We must accord the
sentencing court’s decision great weight because it was in
the best position to review the defendant’s character,
defiance, or indifference, and the overall effect and nature
of the crime.
Commonwealth v. Marts, 889 A.2d 608, 613 (Pa. Super. 2005) (citations
omitted).
Our review of the record refutes Appellant’s claim. At sentencing, trial
counsel first made several corrections to Appellant’s pre-sentence report.
See N.T., 12/1/14, at 3-4. The following exchange then occurred between
the trial court and trial counsel:
[BY TRIAL COUNSEL:]
With respect to sentencing, Your Honor, I would point out
that although [Appellant] does have a prior conviction, he
is prior record score of zero.
He is a high school graduate. While these charges were
pending, [Appellant] did have his first child, a daughter
named [C].
As laid out in the pre-sentence report, Your Honor,
although briefly, [Appellant] has dealt with his share of
obstacles. Growing up, he bounced around with different
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foster homes; was the victim of abuse himself. Obviously
his history is not an excuse, but it does shed some light on
how he got here today.
Just to contextualize these prior convictions for indecent
assault, at the time that occurred, 2010, [Appellant] was
19. The victim was 15, but looking at the criminal
complaint in that case and also discussed in the pre-
sentence report, the victim in that case told [Appellant]
that she was 18.
THE COURT: Well, that’s [Appellant’s] version.
[TRIAL COUNSEL]: Correct. That is his version. But I
believe - - I don’t believe at any point that - - she was not
of the age of consent, but she did not allege that it [was]
not consensual. Traditional is the word [sic]. [Appellant]
certainly is in need of treatment, rehabilitation. All I can
say is that [Appellant] has told me that he looks forward to
completing a period of state incarceration, complying with
any treatment he has to comply with and eventually
returning to society and returning to his daughter, a
changed man.
Hopefully, he can be a positive influence in her life at
some point down the road.
N.T., 12/1/14, at 4-5.
At this point, the trial court mentioned another correction to
Appellant’s pre-sentence report, indicating that the victim was not 16, but
15 when the assault occurred. Id. at 6. Trial counsel then requested that
Appellant be sentenced to “five to ten years of state incarceration, which
would be in the middle of the standard range of the lead charge of rape.”
Id. The trial court asked Appellant if there was anything he would like to
say, Appellant responded, “I don’t believe, Your Honor.” Id. at 7.
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The Commonwealth informed the trial court that the victim, T.M., and
R.D., were present in the courtroom, and that the victim wrote a short
victim impact letter that she would like the trial court to read. The trial
court then inquired of the Commonwealth as to merger of any of the
offenses, and stated:
In light of [Appellant’s] prior conduct of a sexual nature, in
light of the position of trust the he was in with the victim in
the case - - and when I say his prior conduct of a sexual
nature, I also note, and at [Appellant’s] young age, two
similar sex offenses with a 15-year-old, I do believe that
we have reason to be concerned that we are seeing at a
young age a pattern of behavior here.
Also I believe that [Appellant], in this case preyed on
somebody [from] a positon of trust, somebody he felt that
he could manipulate and who he could also discredit.
I do think a lengthy period of incarceration would be
appropriate, particularly a lengthy tail, in light of the fact
that we can’t really assess risk in this situation. It is
difficult for me to determine when [Appellant] might be
appropriate for release, so in light of all of that, at Count 1
[(rape)], I’ll impose a sentence of 66 months to 180
months, and Count 2 [(sexual assault)], merges for
purposes of sentencing.
At Count 3, the statutory sexual assault, a consecutive
period of incarceration of 14 to 36 months.
And at Count 4, the corruption offense - - that one goes
more specifically to the relationship between [Appellant]
and the victim.
Count 1 goes specifically to the nature of the act.
Count 3 to the age of the victim.
And Count 4, specifically in my mind, to the relationship
with the victim, so at that count, a consecutive period of
incarceration of 9 to 36 months with no further penalty at
Count 5, the indecent assault.
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I believe the act itself would be represented by the more
serious offenses above.
N.T., 12/1/14, at 8-9.
Given the above comments, we conclude that the sentencing court did
not commit a manifest abuse of discretion when sentencing Appellant and
provided adequate reasons for its sentencing choice. “A trial court need not
undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court’s consideration of the facts of the crime and the
character of the offender.” Commonwealth v. Crump, 995 A.2d 1280,
1283 (Pa. Super. 2010). It is clear from the record that the trial court was
informed of Appellant’s character, yet chose to focus on the circumstances of
each count to impose consecutive sentences, in addition to the sentence
imposed for Appellant’s rape conviction. As the trial court further stated in
its Pa.R.A.P. 1925(a) opinion:
In this case, this [c]ourt considered that Appellant preyed
on a child with intellectual challenges. He chose a victim
whom he believed could be manipulated or discredited.
Furthermore, the child had been left in his care.
[Appellant’s] history indicated two similar sex offenses
with a fifteen year old girl. Given his ongoing predatory
behavior, this Court considered the community’s need to
be protected from him as paramount. Thus, this [c]ourt
did not err in imposing a sentence of confinement of 89
months (7 years, 5 months) to 252 months (21 years).
Trial Court Opinion, 9/1/15, at 12-13.
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When sentencing a defendant, “the trial court is permitted to consider
the seriousness of the offense and its impact on the community.” Marts,
889 A.2d at 615 (citation omitted). In essence, Appellant asks this Court to
reweigh the above considerations and substitute our judgment for that of
the sentencing court. This we will not do. See id.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/22/2016
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