Com. v. Degarmo, M.

J-S10021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARCUS GEORGE DEGARMO :
:
Appellant : No. 642 MDA 2021
Appeal from the Judgment of Sentence Entered January 25, 2021
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000661-2019
BEFORE: MURRAY, J., McLAUGHLIN, J., and COLINS, J.*
MEMORANDUM BY McLAUGHLIN, J.: FILED: AUGUST 12, 2022
Marcus George Degarmo appeals the judgment of sentence entered
after a jury found him guilty of multiple charges stemming from his sexualized
interactions with a 10-year-old child. Degarmo challenges the sufficiency of
the evidence and the discretionary aspects of his sentence. We affirm.
The brief facts and procedural history of this case are as follows. The
Commonwealth charged Degarmo with a large number of crimes:
• two counts each of solicitation – rape of a child, solicitation – indecent
assault of a person less than 13 years of age, solicitation – child
pornography;
• three counts of unlawful contact with a minor;
• four counts of criminal use of a communication facility;
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* Retired Senior Judge assigned to the Superior Court.
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• and one count each of child pornography, corruption of minors,
endangering the welfare of a child (“EWOC”), and criminal attempt –
child pornography.1
At Degarmo’s jury trial, the Commonwealth presented evidence that
Degarmo initiated numerous sexual conversations with his girlfriend’s 10-
year-old daughter. The child’s mother testified that she discovered what she
believed to be inappropriate conversations between Degarmo and her
daughter on the child’s cell phone. The initial message that the mother saw
was a message from Degarmo to the daughter stating, “I saw you up there
playing with your pussy; you better be thinking of me.” N.T., Trial, 8/28/20,
at 10. After finding this message, the mother checked the “Kids Messenger”
app and discovered more “disturbing” messages between Degarmo and the
child. Id. at 11.2 The mother contacted authorities and police arrested
Degarmo.
Sergeant Christopher Kriner testified that he conducted an interview of
Degarmo. Id. at 38, 41. Degarmo told Sergeant Kriner that he communicated
with the child and sent a text message asking her “for a picture of her pussy
and that he offered to send a picture of his dick to her.” Id. at 42. Degarmo
also admitted that he touched the child’s butt and that he told the child to
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1 18 Pa.C.S.A. §§ 902(a), 6318(a)(1), (a)(5), 7512(a), 6312(d),
6301(a)(1)(ii), 4304(a)(1), and 901(a), respectively.
2 Mother explained that Kids Messenger is “an app on Facebook that allows
kids to communicate with other kids or their parents through the internet.”
N.T., Trial, at 9.
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delete the messages from him. See id. Sergeant Kriner also testified about
sexual messages Degarmo sent to the child: “I can eat you after I remove all
the clothes so I don’t choke on them,” and “Make me stay by allowing me to
massage your pussy with my fingers and dick.” Id. at 53, 59.3 Degarmo sent
text and audio messages either directly to the child’s cell phone or via the Kids
Messenger app. Id. at 45.
Sergeant Kriner also testified that Degarmo gave three different
explanations for why he texted the child sexually explicit messages. The
explanations included that he intended to send them to the child’s mother,
that he intentionally sent them to the child, and then that he wanted to teach
the child that she should tell someone if an adult sent her similar messages.
Id. at 43.
Detective Calvin Irvin testified that he conducted a forensic extraction
of Degarmo’s, child’s, and mother’s cell phones. He testified that multiple
messages had been deleted from Degarmo’s cell phone between him and the
child. Id. at 89. Detective Irvin also testified that there were multiple searches
on Degarmo’s cell phone for pornographic material of 10-year-old girls. Id. at
83.
The jury convicted Degarmo of each count referenced above except child
pornography, for which it acquitted him. At the sentencing hearing, the trial
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3 Sergeant Kriner testified that the reference to eating the child was Degarmo
“trying to convince [the child]. . . or introduce sex to her in an effort so that
he can perform oral sex on her.” N.T. Trial, at 69.
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court considered the PreSentence Investigation Report (“PSI”),
documentation that Degarmo was on special probation for a prior aggravated
assault at the time he committed the instant crimes, Degarmo’s family history,
and his mental health issues and learning disability. N.T., Sentencing,
1/19/21, at 4, 5. The court also considered Degarmo’s IQ of 70 and his
statements during allocution. Id. at 13, 18-20. Degarmo told the court, “[I]n
my opinion I honestly thought I was trying to teach the child how to handle
sexual harassment through communications[.]” Id. at 19. The court also
heard testimony from the victim’s mother. Id. at 20-22. The trial court
sentenced Degarmo to an aggregate term of 31 to 62 years’ incarceration.
See Order, filed 1/22/21.
Degarmo filed a timely post-sentence motion challenging the sufficiency
of the evidence and his sentence. See Post-Sentence Motion, filed 1/29/21.
Before the trial court decided the motion, Degarmo filed a notice of appeal
with this Court on May 21, 2021. The trial court denied the post-sentence
motion on May 28.4
Degarmo raises two issues before this Court:
1. Was the evidence presented at trial insufficient to prove
that [Degarmo] possessed the requisite intent to commit
solicitation of a child for sexual acts, unlawful contact
with a minor, and criminal use of a communication
facility?
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4We treat this appeal as filed as of the date of the denial of the post-sentence
motion, and therefore it is timely and not premature. See Pa.R.A.P. 905(a)(5).
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2. Did the trial court abuse its discretion when imposing
sentence of 31 to 62 years[’] incarceration for several
minor related sexual offenses when [Degarmo] never
touched the child and the offenses occurred over a two-
month period of time?
Degarmo’s Br. at 7.
Sufficiency Claims
Degarmo’s first issue challenges the sufficiency of evidence for his
convictions for criminal solicitation, unlawful contact with a minor, criminal
use of a communication facility, and attempting to possess child pornography.
He alleges that the Commonwealth failed to show the necessary intent for
each referenced crime.
We review a challenge to the sufficiency of the evidence by determining
whether “when viewed in a light most favorable to the verdict winner, the
evidence at trial and all reasonable inferences therefrom are sufficient for the
trier of fact to find that each element of the crime charged is established
beyond a reasonable doubt.” Commonwealth v. Green, 204 A.3d 469, 484
(Pa.Super. 2019) (citing Commonwealth v. Dale, 836 A.2d 150, 152
(Pa.Super. 2003)). The Commonwealth may satisfy its burden through
circumstantial evidence alone. Id. at 484-485.
Criminal Solicitation
Degarmo argues that the Commonwealth was required to prove that he
had the specific intent to have sexual intercourse with the child to prove
solicitation of the rape of a child. He also contends that it had to prove his
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specific intent to have indecent contact with the child for the crime of soliciting
the indecent assault of a child. See Degarmo’s Br. at 14.
Section 902 of the Crimes Code defines criminal solicitation as follows:
A person is guilty of solicitation to commit a crime if with
the intent of promoting or facilitating its commission he
commands, encourages or requests another person to
engage in specific conduct which would constitute such
crime or an attempt to commit such crime or which would
establish his complicity in its commission or attempted
commission.
18 Pa.C.S.A. § 902(a). Regarding the intent element, there must be an “intent
to accomplish the acts which comprise the crime, not necessarily with intent
specific to all the elements of that crime[.]” Commonwealth v. Hacker, 15
A.3d 333, 336 (Pa. 2011) (emphasis in original). Encouragement and intent
to accomplish the acts is sufficient evidence to sustain a solicitation conviction.
See id.Here, the crimes underlying the solicitation convictions Degarmo
challenges are rape of a child and indecent assault. See 18 Pa.C.S.A. §§
3121(c) and 3126(a)(7). Rape of a child occurs whenever an individual has
“sexual intercourse” with a victim who is less than 13 years of age. 18
Pa.C.S.A. § 3121(c). “Sexual intercourse” includes “vaginal intercourse, anal
intercourse, oral intercourse, and penetration by a foreign object[.]”
Commonwealth v. Kelley, 801 A.2d 551, 556 (Pa. 2002).
Indecent assault of a child occurs when a person has “indecent contact
with the complainant [less than 13 years of age], causes the complainant to
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have indecent contact with the person or intentionally causes the complainant
to come into contact with seminal fluid, urine or feces for the purpose of
arousing sexual desire in the person or the complainant.” 18 Pa.C.S.A. §
3126(a)(7). “Indecent contact” includes “[a]ny touching of the sexual or other
intimate parts of the person for the purpose of arousing or gratifying sexual
desire, in any person.” 18 Pa.C.S.A. § 3101 (“Indecent contact”).
Herein, the Commonwealth presented multiple text messages, Kids
Messenger messages, and audio messages between Degarmo and the child.
In these messages, Degarmo encouraged the child to send pictures of her
vagina, asked if he could “eat” the child after removing her clothes, and asked
the child to allow him to massage her vagina with his fingers and penis. See
N.T., Trial, 8/28/20, at 23, 53, 59.
The Commonwealth’s evidence was sufficient to establish Degarmo’s
intent to solicit the acts of indecent contact and sexual intercourse with the
10-year-old victim. The messages showed Degarmo’s encouragement of, and
intent to commit, touching of the victim’s intimate parts and sexual
intercourse with the victim. Degarmo intentionally encouraged conduct that
encompassed the crime of solicitation by purposefully sending messages
discussing the child’s intimate body parts and making requests to engage in
oral and vaginal sex with the child. This encouragement was with the intent
of facilitating or promoting the commission of the crimes of rape of a child and
the indecent assault of a child.
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Unlawful Contact with a Minor
Degarmo claims that the Commonwealth presented insufficient evidence
that he intended to have unlawful contact with the child. He alleges that
though he communicated with the child, to sustain the conviction, “the
communication must be for an enumerated sexual purpose.” Degarmo’s Br.
at 18. Degarmo claims that the Commonwealth failed to prove that his
communication with the child was for the purpose of committing the “target”
crime the Commonwealth had charged, which was indecent assault. See id.
Section 6318 of the Crimes Code defines Unlawful Contact with a Minor
as follows:
(a) Offense defined.--A person commits an offense if he
is intentionally in contact with a minor, or a law enforcement
officer acting in the performance of his duties who has
assumed the identity of a minor, for the purpose of engaging
in an activity prohibited under any of the following, and
either the person initiating the contact or the person being
contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31
(relating to sexual offenses).
(2) Open lewdness as defined in section 5901 (relating
to open lewdness).
(3) Prostitution as defined in section 5902 (relating to
prostitution and related offenses).
(4) Obscene and other sexual materials and
performances as defined in section 5903 (relating to
obscene and other sexual materials and performances).
(5) Sexual abuse of children as defined in section 6312
(relating to sexual abuse of children).
(6) Sexual exploitation of children as defined in section
6320 (relating to sexual exploitation of children).
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18 Pa.C.S.A. § 6318(a).
Here again, the evidence was sufficient. There was enough evidence to
show that Degarmo’s contact with the victim was for the purpose of
committing indecent assault of a child. His messages to the victim included
requests to “eat” her that implicitly asked for oral sex, for her to send pictures
of her vagina, and to allow him to massage her vagina with his penis and
fingers. Though there was testimony that Degarmo gave police varying
reasons for why he sent these messages to the victim, it was in the hands of
the jury to pass judgment on whether his exculpatory stories were credible or
whether the Commonwealth had shown that he had committed a crime. See
Commonwealth v. Jacoby, 170 A.3d 1065, 1080 (Pa. 2017) (noting “[a]
jury is entitled to resolve any inconsistencies in the . . . evidence in the manner
that it sees fit”). The Commonwealth presented sufficient evidence to sustain
this conviction.
Criminal Use of a Communication Facility
Degarmo argues that the Commonwealth failed to prove that he used a
communication facility with intent to commit a felony, as the statute requires.
He claims there is no evidence of his specific intent to commit a felony.5
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5 Degarmo states that the evidence was insufficient to prove the “unlawful use
of a computer” and continues to reference the unlawful use of a computer
throughout his brief. Degarmo’s Br. at 12. Upon review of his argument on
the issue, it appears that Degarmo is referencing the criminal use of a
communication facility statute. Additionally, there is no evidence that the
Commonwealth charged Degarmo or that the jury found him guilty of any
crimes committed through his use of a computer.
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For the crime of criminal use of a communication facility, the
Commonwealth had to prove beyond a reasonable doubt that: “(1) [Degarmo]
knowingly and intentionally used a communication facility; (2) [Degarmo]
knowingly, intentionally or recklessly facilitated an underlying felony; and (3)
the underlying felony occurred.” Commonwealth v. Moss, 852 A.2d 374,
382 (Pa.Super. 2004); 18 Pa.C.S.A. § 7512(a).
The evidence here was sufficient to prove that Degarmo “knowingly,
intentionally or recklessly facilitated an underlying felony.” The evidence
presented at trial showed that Degarmo contacted the child numerous times
via messages sent from his cell phone. These messages referenced Degarmo’s
suggestions of sexual activity with the child. Degarmo used his cell phone to
facilitate felony crimes such as soliciting the rape of a child, the indecent
assault of a child, and unlawful contact with a minor. Degarmo’s purposeful
and repeated attempts to communicate with the child to discuss sexual activity
with the child sufficiently proved mens rea.
Attempt to Possess Child Pornography
Degarmo presents no argument as to the sufficiency of evidence for this
count and therefore has waived appellate review of the issue. See Pa.R.A.P.
2119(a), (b); Commonwealth v. Freeman, 128 A.3d 1231, 1249 (Pa.Super.
2015).
Sentencing claim
Degarmo’s second issue challenges the discretionary aspects of his
sentence. Before we address the merits of this claim, we must first determine
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whether Degarmo: (1) filed a timely notice of appeal; (2) properly preserved
the issue at sentencing or in a post-sentence motion; (3) filed a brief that
includes a Pa.R.A.P. 2119(f) statement; and (4) has demonstrated a
substantial question that the sentence is not appropriate under the Sentencing
Code. See 42 Pa.C.S.A. § 9781(b); Commonwealth v. Austin, 66 A.3d 798,
808 (Pa.Super. 2013).
Degarmo has met all the requirements. He filed a timely notice of
appeal, filed a post-sentence motion preserving the challenge to his sentence,
and included a Rule 2119(f) statement in his appellate brief. He has also raised
a substantial question: whether the court imposed a consecutive sentence that
is “clearly unreasonable, unduly harsh, and manifestly excessive sentence
based on the nature of the crime.” Degarmo’s Br. at 10; see Commonwealth
v. Moury, 992 A.2d 162, 171–172 (Pa.Super. 2010) (“The imposition of
consecutive, . . . sentences may raise a substantial question . . . where the
aggregate sentence is unduly harsh, considering the nature of the crimes and
the length of imprisonment”).
Degarmo maintains that his sentence is “substantially more harsh than
those in other cases with similar offenses[.]” Degarmo’s Br. at 25. He alleges
that his sentence is more severe that the appellants in Commonwealth v.
Coulverson, 34 A.3d 135 (Pa.Super. 2011), and Commonwealth v.
Horning, 193 A.3d 411 (Pa.Super. 2018), “both of whom actually committed
physical sexual assaults on their victims.” Id. Degarmo also notes that he has
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an IQ of 70, receives Social Security Disability benefits, and was not found to
be a Sexually Violent Predator.
The trial court has discretion in sentencing and absent an abuse of
sentencing we will not disturb the sentence. See Commonwealth v. Fullin,
892 A.2d 843, 847 (Pa.Super. 2006). An abuse of discretion exists where “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.” Id. (citation omitted).
Here, the court notes that it sentenced Degarmo on the high end of the
standard range but still within the lower end of the aggravated range. It
considered that Degarmo had a prior record score of 4 from a prior conviction
for aggravated assault and that he committed the instant crimes while he was
on probation for the aggravated assault. It also points out that “[t]he facts of
this case show that [Degarmo] sent sexual messages to a minor child with
whom he acted as a paternal figure” but at sentencing Degarmo continued to
insist that the messages were sent “to teach the child how to handle sexual
harassment through communications.” Pa.R.A.P. 1925(a) Opinion (“1925(a)
Op.”), filed 9/17/21, at 6. (quoting N.T., Sentencing, 1/19/21, at 19). The
court maintains that it fashioned a sentence “that held [Degarmo] accountable
for the convicted conduct that would neither diminish the severity of the
charges nor convey to the community that such behavior is acceptable.” Id.The trial court did not abuse its discretion in sentencing Degarmo to an
aggregate term of 31 to 62 years’ incarceration.
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A jury found Degarmo guilty of numerous counts of various crimes
related to his intentional and sexual conversations with a 10-year-old victim.
In sentencing Degarmo, the trial court considered the PSI, Degarmo’s
allocution, and the facts of the case. The sentence imposed by the court
considered “the protection of the public, the gravity of the offense as it relates
to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant.” 42 Pa.C.S.A. § 9721(b). Furthermore,
Degarmo’s attempt to lessen his culpability for the crimes he committed
against a minor by suggesting that all he did was send explicit messages to
the child, without committing a physical assault, is unavailing. At trial,
Sergeant Kriner testified that Degarmo admitted to touching the victim’s butt.
Moreover, Degarmo told the child to delete the messages between him and
the child, demonstrating an awareness of the illegality of the behavior that he
had engaged in with the victim.
Degarmo’s acts were criminal, and the court did not abuse its discretion
in fashioning a sentence for his convictions. Degarmo’s references to
Coulverson and Horning are irrelevant to our review of the court’s exercise
of its sentencing discretion in the instant case. The facts giving rise to the
crimes and criminal histories in those cases are inapposite to the instant case.
Degarmo’s sentencing challenge is meritless.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/12/2022
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