Com. v. Roach, D.

J-S54037-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOMINIC O. ROACH :
:
Appellant : No. 88 MDA 2019
Appeal from the Judgment of Sentence Entered November 20, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0006318-2017
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DOMINIC O. ROACH :
:
Appellant : No. 89 MDA 2019
Appeal from the Judgment of Sentence Entered November 20, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at
No(s): CP-36-CR-0004806-2018
BEFORE: BOWES, J., LAZARUS, J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED FEBRUARY 10, 2020
Appellant, Dominic O. Roach, appeals from the November 20, 2018
Judgment of Sentence entered in the Lancaster County Court of Common
Pleas after a jury convicted him of numerous human trafficking offenses. He
challenges an evidentiary ruling and the discretionary aspects of his sentence.
After careful review, we affirm.
J-S54037-19
We glean the following facts from the trial court’s Opinion and certified
record. In 2017, Appellant and Tonya Henson traveled to a known drug area
in Camden, New Jersey, and solicited two women (“the victims”) to work for
them as prostitutes. Appellant and Henson used the internet website,
Backpage, to advertise the victims’ services.
Henson’s phone number was listed on the Backpage website. Clients
would call Henson; she and Appellant would then book rooms at various hotels
in the Lancaster area; and each day they would drive the victims to and from
Camden and Lancaster. Appellant and Henson set the fees for services
rendered by the victims. They also provided the victims with crack cocaine,
cocaine, and heroin for their personal use, and to sell to customers. The
victims averaged between six to ten appointments each day. Appellant would
collect half of the victims’ earnings, as well as the amount they owed for
personal use drugs, daily.
In addition, Appellant and Henson maintained control of the victims. The
victims were required to report to them any time they left the hotel room, and
client communication was permitted only through Henson. Appellant inspected
the victims’ phones to ensure compliance. In one instance, Appellant
discovered one of the victims had directly contacted a client. As punishment,
he confiscated her phone and ordered Henson to hit the victim; Henson
complied. Additionally, if the victims were unable to pay Appellant back for
drugs he had provided to them, he refused to drive them back to Camden
until they paid him the money they owed.
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In September 2017, Detective Christopher Jones of the East Lampeter
Township Police Department (“ELTPD”) received information about prostitutes
being brought from New Jersey to Lancaster. He set up an undercover
operation, in which he arranged for Chief John Bowman to meet with two
women through a Backpage advertisement on October 3, 2017.
Chief Bowman arrived at a Lancaster hotel room on October 3, 2017. In
the room were the victims, drugs, drug paraphernalia, and an owe sheet. After
Chief Bowman discussed services with the victims, additional officers entered
the room and placed the victims under arrest.
Shortly after their arrest, Detective Jones learned that one of the victims
had been released. He then searched Backpage for an advertisement depicting
the released victim and set up an appointment with the same number he had
contacted on October 3, 2017. Detective Jones arrived at the hotel room on
November 21, 2017, and was greeted by the victim. The hotel room contained
drugs, drug paraphernalia, and an owe sheet. The victim appeared to be “in
very, very rough shape[,]” very thin with sunken eyes, pale skin, and an
infected laceration. N.T. Trial, 9/11/18, at 259. Detective Jones identified
himself as a police officer and took the victim to the police station.
After Appellant and Henson could not get in touch with the victim by
phone on November 21, 2017, Appellant went to the hotel room. Lieutenant
Sidney Eachus of ELTPD, who was at the hotel on an unrelated matter,
recognized Appellant from photographs related to the prostitution
investigation. Lieutenant Eachus approached Appellant, identified himself as
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an officer, and asked him to stop. Appellant instead walked to Henson’s car,
entered the car, and told her to “go, go, go.” Id. at 282. Henson drove away.
However, police apprehended and arrested her and Appellant shortly
thereafter.
The officers obtained warrants to search Henson’s car and the contents
of Appellant’s and Henson’s cell phones. The Commonwealth charged
Appellant at Docket No. 6318-2017 with two counts of Involuntarily Servitude;
two counts of Trafficking in Individuals (Recruit/Entice/Solicit); two counts of
Trafficking in Individuals (Financial Benefit); two counts of Promoting
Prostitution (Controlling Prostitution Business); two counts of Promoting
Prostitution (Procuring Prostitution); two counts of Promoting Prostitution
(Transporting); two counts Living Off Prostitutes; and one count Criminal
Conspiracy.1
While sitting in a holding cell after their arrest, Appellant told Henson
not to talk to police. However, Henson spoke with the police. After Henson
was released from custody, Appellant called Henson from the Lancaster
Country Prison and asked her to change her story. On March 10, 2018,
Appellant told Henson she could take her statement back. On March 11, 2018,
he asked her how she could go against him after everything they had been
through. On March 13, 2018, Appellant gave Henson his attorney’s contact
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1 18 Pa.C.S. § 3012(a), 3011(a)(1), 3011(a)(2), 5902(b)(1), 5902(b)(3),
5902(b)(5), 5902(b)(6), 5902(d), and 903(c) respectively.
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information. He told her to tell the attorney that she did not understand her
rights when she gave the police a statement and that the statement was
fabricated. As a consequence, the Commonwealth charged Appellant at
Docket No. 4806-2018 with one count of Witness Intimidation.2
On August 21, 2018, the Commonwealth served upon Appellant the
curriculum vitae of, and report by, Corporal Heid, an expert in the area of
human trafficking. In response, Appellant filed a Motion in Limine to Preclude
the testimony of Corporal Heid.
On September 10, 2018, the court addressed the Motion during a pre-
trial conference. Appellant argued that Corporal Heid’s testimony was
inadmissible because 42 Pa.C.S. § 5920 does not apply, he had never been
called as a human trafficking expert in Pennsylvania, and the testimony would
be prejudicial. In response, the Commonwealth informed the court that the
victims would not be testifying. Thus, the Commonwealth stated that it wished
to have Corporal Heid testify about the dynamics between victims and their
traffickers. Specifically, that they fear their trafficker more than law
enforcement and, therefore, generally do not show up to court to testify
against their trafficker.
The court granted Appellant’s Motion, and instructed the Commonwealth
not to reference Corporal Heid at trial. However, the court also informed the
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2 18 Pa.C.S. § 4952(a)(3).
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parties that Heid’s testimony would be admissible if Appellant’s counsel
opened the door to the issue of missing victim witnesses.
A three-day jury trial commenced on September 10, 2018. The jury
found Appellant guilty of the above crimes. The court ordered a pre-sentence
investigation (“PSI”) report. On November 20, 2018, the court imposed an
aggregate sentence of eighteen to thirty-six years of incarceration. Appellant
filed a Post-Sentence Motion, which the trial court denied.
Appellant timely appealed. Both Appellant and the trial court complied
with Pa. R.A.P. 1925.
Appellant raises the following issues for our review:
I. Did the trial court err by ruling that if [Appellant] so much as
alluded to the fact that the alleged victim witnesses were
absent from trial that this would “open the door” to permit the
Commonwealth to admit alleged expert testimony regarding
general behavior of witnesses in similar cases when the alleged
expert had never met or interviewed the missing witnesses?
II. Did the trial court abuse its discretion when it sentenced
Appellant to not less than eighteen (18) years nor more than
(36) years [of] incarceration?
Appellant’s Br. at 5.
In his first issue, Appellant contends that the trial court violated his
constitutional right to confront witnesses by ruling that if Appellant presented
evidence that the victims failed to appear at trial, then the trial court would
permit the Commonwealth to call as an expert witness, Corporal Heid, an
expert on the behavior of human trafficking victims. In particular, Appellant
avers that “the threatened admission of the alleged expert testimony was used
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as a tool to sideline [him] from having the opportunity to cross[-]examine his
accusers or question why his accusers [were] not present at trial as
guaranteed by the United States and Pennsylvania Constitution Confrontation
Clauses.” Appellant’s Br. at 13.
Appellant’s constitutional challenge raises a question of law. Thus, our
standard of review over the trial court’s admission of the contested testimony
is de novo, and our scope of review is plenary. Commonwealth v. Yohe, 39
A.3d 381, 384 (Pa. Super. 2012).
The Sixth Amendment to the United States Constitution, made
applicable to the States via the Fourteenth Amendment, mandates that “[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. amend. VI.3 The right is a
procedural one intended to ensure the reliability of evidence through cross-
examination. Commonwealth v. Yohe, 79 A.3d 520, 530-31 (Pa. 2013);
Commonwealth v. Bozyk, 987 A.2d 753, 756 (Pa. Super. 2009).
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3 The Pennsylvania Constitution includes a right of confrontation. See Pa.
Const., Article I, § 9 (“in all criminal prosecutions the accused hath a right to
be heard by himself and his counsel [and] to be confronted with the witnesses
against him”). But, because Appellant does not argue that Article I, section 9
provides him with greater protection than the Sixth Amendment, we will treat
the state and federal provisions as coextensive for purposes of our
review. See Commonwealth v. Kratsas, 764 A.2d 20, 27 n.5 (Pa. 2001).
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The Confrontation Clause applies only to the right to cross-examine
witnesses who actually testify. In this case, Appellant had the right and in fact,
actually did cross-examine the witnesses against him.4 Thus, the trial court’s
ruling that it would permit the Commonwealth to call a witness under certain
circumstances, and the witness was never called, does not impact Appellant’s
rights under the Confrontation Clause. Accordingly, Appellant is not entitled
to relief on this claim.
In his second issue, Appellant challenges the discretionary aspects of
his sentence. Appellant’s Br. at 15. He asserts his sentence is inappropriate
based on his rehabilitative needs. He also contends that the impact of the
crime on the victims does not warrant such a harsh sentence and that the
court punished him exercising his right to trial. Id. at 10-11, 15-16.
Challenges to the discretionary aspects of sentencing are not
automatically reviewable as a matter of right. Commonwealth v. Hunter,
768 A.2d 1136, 1144 (Pa. Super. 2001). Prior to reaching the merits of a
discretionary sentencing issue, we must determine: (1) whether appellant has
filed a timely notice of appeal; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify sentence; (3) whether
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4 Additionally, the Commonwealth did not seek to admit testimonial
statements from witnesses that did not appear at trial. See Crawford v.
Washington, 541 U.S. 36, 68 (2004) (holding that the Confrontation Clause
prohibits the admission of “testimonial” statements of a witness who did not
appear at trial unless the witness was unavailable and the defendant had a
prior opportunity to cross-examine the witness).
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appellant’s brief sufficiently addresses the challenge in a statement included
pursuant to 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. Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006).
Appellant has met the first three elements by filing a timely Notice of
Appeal, preserving the issue in a Post-Sentence Motion, and including a
Statement of Reasons Relied Upon for Allowance of Appeal pursuant to
Pa.R.A.P. 2119(f). Before reaching the merits of Appellant’s argument, we
must determine if he has presented a substantial question for our review.
Whether a substantial question has been raised regarding a
discretionary sentence is determined on a case-by-case
basis. Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010). “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. (citation and
quotation omitted).
This Court has held that
the Rule 2119(f) statement must specify where the sentence falls
in relation to the sentencing guidelines and what particular
provision of the Code is violated (e.g., the sentence is outside the
guidelines and the court did not offer any reasons either on the
record or in writing, or double-counted factors already
considered). Similarly, the Rule 2119(f) statement must specify
what fundamental norm the sentence violates and the manner in
which it violates that norm (e.g., the sentence is unreasonable or
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the result of prejudice because it is 500 percent greater than the
extreme end of the aggravated range).
Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa. Super. 2000).
In the instant case, Appellant’s Rule 2119(f) Statement suggests that
the court violated Section 9721 of the Sentencing Code. Appellant’s Br. at 10.
He asserts that the court did not appropriately consider his history of
substance abuse, his troubled family life and youth, and the minimal impact
on the life of the victims, noting that the victims were free to leave at any
time and did not participate in his trial. Id. Appellant does not reference the
sentencing guidelines at all.
This Court has consistently held that an allegation that a sentencing
court “did not adequately consider certain factors does not raise a substantial
question that the sentence was inappropriate.” Commonwealth v. Cruz-
Centeno, 668 A.2d 536, 545 (Pa. Super. 1995); see also Commonwealth
v. Rhoades, 8 A.3d 912, 918-19 (Pa. Super. 2010) (stating “an allegation
that the sentencing court failed to consider mitigating factors generally does
not raise a substantial question for our review”). Appellant has failed to raise
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a substantial question. Accordingly, we decline to review Appellant’s
sentencing challenge. 5, 6
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/10/2020
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5 Moreover, 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.” Commonwealth v. Devers, 546 A.2d 12, 18
(Pa. 1988).
6 Appellant’s claim that the court punished him for exercising his constitutional
right to a trial is underdeveloped. Appellant’s Br. at 10-11. Appellant fails to
cite to the record or make any legal argument. Consequently, this issue is
waived. Commonwealth v. Gould, 912 A.2d 869, 873 (Pa. Super. 2006)
(holding that appellant waived issue on appeal where he failed to support
claim with relevant citations to case law and record).
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