J-S83005-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ROCKY WILLIAM ANTILL : : Appellant : No. 194 WDA 2018
Appeal from the Judgment of Sentence December 11, 2017 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0008977-2016
BEFORE: PANELLA, J., SHOGAN, J., and MUSMANNO, J.
MEMORANDUM BY PANELLA, J.: FILED JULY 09, 2019
Rocky William Antill appeals from the judgment of sentence entered in
the Allegheny County Court of Common Pleas after he was charged with
numerous crimes related to the sexual abuse of a child, namely his
stepdaughter. On appeal, Antill raises challenges to the court’s rulings during
voir dire and the court’s evidentiary rulings, as well as a challenge to the
discretionary aspects of his sentence. After a thorough review of the record,
we affirm the judgment of sentence.
Antill was arrested and charged with one count each of rape of a child,
involuntary deviate sexual intercourse with a child, aggravated indecent
assault, unlawful contact with a minor, indecent assault, endangering welfare
of children, corruption of minors, and recklessly endangering another person. J-S83005-18
After his first trial ended in a mistrial, Antill proceeded to a second jury
trial in which he was found guilty on all counts. He was sentenced to an
aggregate sentence of two-hundred to four-hundred and fifty months of
incarceration followed by ten years of probation.
Antill filed a post-sentence motion challenging the weight of the
evidence and the discretionary aspects of his sentence. The trial court denied
the motion. This timely appeal follows.
In Antill’s first issue on appeal, he contends the trial court erred by
permitting the Commonwealth to ask prospective jurors during voir dire
examination the following question: “Under Pennsylvania law, the testimony
of the victim standing alone, if believed by you, is sufficient proof upon which
to find the defendant guilty if the testimony of the victim convinces you
beyond a reasonable doubt that the defendant is guilty. Would you be able to
follow this principle of law?” Commonwealth’s Proposed Voir Dire Questions,
2/7/17, at ¶ 2.1
He asserts the question was not designed for proper purposes but rather
was designed to determine how receptive the prospective juror might be to
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1 Both the Commonwealth and Antill agreed to proceed with voir dire outside the presence of a court reporter. Therefore, there is no transcript of the voir dire proceeding. See Stipulation to Supplement Certified Record on Direct Appeal Pursuant to Pa.R.A.P. 1926(a)(2), filed 1/3/19. However, the Commonwealth does not dispute that the prosecutor asked the proposed question during voir dire. See Appellee’s Brief, at 4. Under these circumstances, we conclude that our review of the issue is not hampered by the absence of a transcript, and decline to find the issue waived.
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different versions of the case that the Commonwealth could present. Antill
contends this was not a proper subject for voir dire. Further, Antill asserts the
question covers subject matter falling within the province of the court and is
in the nature of a jury instruction and therefore was legally inappropriate.
The scope of voir dire examination is a matter within the discretion of
the trial court, and that court’s ruling will not be reversed absent an abuse of
discretion. Commonwealth v. Richardson, 473 A.2d 1361, 1363 (Pa.
1984). A trial court's rulings concerning the scope of voir dire must be
considered in light of the factual circumstances of a particular criminal
episode. Id.
“It is well settled that the sole purpose of examination of jurors under
voir dire is to secure a competent, fair, impartial and unprejudiced jury.”
Commonwealth v. Ellison, 902 A.2d 419, 423 (Pa. 2006). “It is only when
the court permits the [jury] selection process to impugn the fundamental
qualities of competence, fairness, and impartiality that we may conclude that
a palpable abuse of discretion has been committed.” Commonwealth v.
Noel, 104 A.3d 1156, 1171 (Pa. 2014) (internal quotation marks and citations
omitted). However, “[v]oir dire is not to be utilized as a tool for the attorneys
to ascertain the effectiveness of potential trial strategies.” Commonwealth
v. Paolello, 665 A.2d 439, 451 (Pa. 1995).
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Antill argues that “questions which are in the nature of jury instructions
are wholly inappropriate for voir dire examination.” Appellant’s Brief, at 18. In
support of this proposition, Antill cites to Commonwealth v. Bright, 420
A.2d 714, 717 (Pa. Super. 1980). Upon reviewing Bright, we conclude Antill’s
argument stretches the language of that opinion beyond the breaking point.
In Bright,2 the defendant sought to ask prospective jurors regarding
their ability to dissent from the views of the majority of their fellow jurors.
See id. The trial court refused the defendant’s request. See id. Importantly,
this Court held that “the question was in the nature of a jury instruction and
that, since the court gave proper instructions, no error occurred from the
refusal to allow the question.” Id. After examining the trial court’s instructions
to the jury, the Bright panel concluded “the [trial] court’s opening remarks
and closing instructions … clearly demonstrate the trial court adequately and
correctly instructed the jury.” Id.
As a result, the Bright Court did not affirmatively hold that the proposed
instruction should be excluded due to its similarity to a jury instruction.
Instead, the Court merely found that the trial court did not err in excluding
2 Antill also cites to Commonwealth v. Perea, 381 A.2d 494 (Pa. Super. 1977), Commonwealth v. Hoffman, 398 A.2d 658 (Pa. Super. 1979), and Commonwealth v. Ritter, 615 A.2d 442 (Pa. Super. 1992). Each of these precedents are similar to Bright, as in each case this Court reviewed a trial court ruling denying a requested jury instruction. See Perea, at 496; Hoffman, at 660; Ritter, at 446-447. None of them created the bright line rule sought by Antill here.
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the question since the trial court properly instructed the jury on the relevant
points of law.
Here, Antill is attempting to turn Bright into a bright-line rule that would
effectively eviscerate our standard of review. We decline to accept Antill’s
invitation to create a new standard for voir dire proceedings.
Turning to the circumstances at hand, the Commonwealth’s case was
based almost entirely on the victim’s testimony. See N.T., Jury Trial, 7/6/17,
at 32 (prosecutor admitting, during opening statements, that the
Commonwealth would present no forensic evidence); N.T., Jury Trial, 7/7/17
at 24-26 (medical doctor testifying that victim’s examination results were not
significantly different from those expected from a child who had not been
sexually abused). Pursuant to this state of affairs, we cannot conclude the
court abused its discretion when it permitted a question designed to expose
any fixed opinions of the jurors regarding the lack of physical or corroborating
evidence. As such, the question was used to “secure a competent, fair,
impartial and unprejudiced jury” and was not used to ascertain the
effectiveness of a potential trial strategy. See Ellison, 902 A.2d at 423-424.
Antill also argues that the language used in the question does not
conform to the law. Specifically, he contends the question omits any reference
to the Commonwealth’s burden of beyond a reasonable doubt. We agree that
the question, as written, does not accurately state the law. However, this
conclusion does not automatically render the trial court’s decision to allow the
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question an abuse of discretion. The issue at hand is whether the question
impaired the competence, fairness or impartiality of the jury. See Noel, 104
A.3d at 1171.
In its opening statement, the Commonwealth informed the jury that it
was “solely on the Commonwealth to prove to you beyond a reasonable doubt
that the defendant is guilty” N.T., Jury Trial, 7/6/17, at 19; see also id., at
20 (“the Commonwealth … has the burden of proof beyond a reasonable doubt
of every element of every offense. … We embrace that burden”). More
importantly, the trial court properly instructed the jury that Antill was
presumed innocent until the Commonwealth established, beyond a reasonable
doubt, every element of every crime charged. See N.T., Jury Trial, 7/7/17, at
264. Further, when the jury requested a clarification on the instruction, the
court informed them “you may find the defendant guilty if the testimony of
[the victim] convinces you beyond a reasonable doubt that the defendant is
guilty.” N.T., Jury Trial, 7/10/17, at 5.
As a result, we cannot conclude that the question deprived Antill of a
competent, fair, and impartial jury. Antill’s first issue is without merit.
In his second issue, Antill contends the trial court abused its discretion
by permitting the Commonwealth to present an expert opinion through a
witness who had never been qualified as an expert. While testifying regarding
what impact a delay between a sexual assault and the beginning of the
investigation would have on his investigation practices, Detective Daniel
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Mayer briefly stated his observations of why children who have experienced
sexual abuse have delayed reporting in his experience. Antill contends this
testimony was in fact expert testimony, as it relied on specialized knowledge
beyond that possessed by the average layperson.
When considering the admission of evidence, our standard of review is
very narrow. Our review of a trial court's evidentiary ruling is limited to
determining whether the trial court abused its discretion. See
Commonwealth v. Dengler, 890 A.2d 372, 379 (Pa. 2005). “An abuse of
discretion may not be found merely because an appellate court might have
reached a different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support so as to be clearly erroneous.” Id. (citation omitted). Finally, “[t]o
constitute reversible error, an evidentiary ruling must not only be erroneous,
but also harmful or prejudicial to the complaining party.” Commonwealth v.
Lopez, 57 A.3d 74, 81 (Pa. Super. 2012) (citation omitted).
Pennsylvania Rule of Evidence 701 states that in cases where a witness
is not testifying as an expert, his or her opinion testimony must be limited to
what is: “(a) rationally based on the witness’s perception; (b) helpful to clearly
understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within
the scope of Rule 701.” Pa.R.E. 701.
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The evidentiary ruling at issue here arose while the Commonwealth was
questioning Detective Mayer about his investigative procedures. The
prosecutor asked Detective Mayer what impact an over four month delay
between a sexual assault and the beginning of the investigation would have
on his investigation. He answered, “[i]t has been my experience over the years
with victims of sexual and physical assault that … many times victims,
especially younger victims, for a whole host of reasons –“. N.T., Jury Trial,
7/7/17, at 7. Defense counsel objected, noting that Detective Mayer was not
an expert. See id., at 7-8. The trial court found that Detective Mayer was
testifying to his procedures for opening an investigation, not as an expert, and
overruled the objection. See id., at 8.
After defense counsel acquiesced to the trial court’s reasoning, the
examination continued.
[Prosecutor:] Thank you, Your Honor.
[Detective Mayer:] So over the years of working these types of cases we see delayed reporting especially with younger victims, for a whole host of reasons. Whether they’re confused or embarrassed or because sometimes it’s a family member and they’re concerned about the outcome. That is not unusual, but we run into that quite often.
[Prosecutor:] Does that create any challenges for you as an investigator?
[Detective Mayer:] If something occurs and we can get right on it. There are things we want to try to do to preserve a scene or locate items of evidence. So a delay in reporting for us, it kind of puts us behind in terms of recovering things.
Id.
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In Commonwealth v. Dunkle, 602 A.2d 830 (Pa. 1992), our Supreme
Court held that expert testimony concerning typical behavior patterns
exhibited by sexually abused children is inadmissible because such evidence
was not generally accepted in the field in which it belonged, was not probative
of child sexual abuse, and concerned subjects which were within the range of
common experience. See 602 A.2d at 834-838.
While it may appear Dunkle is dispositive of this issue, Dunkle, and
other matters prohibiting expert testimony regarding victim responses in
sexual assault matters, predates our legislature’s enactment of 42 Pa.C.S.A.
§ 5920, entitled “expert testimony in certain criminal proceedings.” See 42
Pa.C.S.A. § 5920 (passed June 29, 2012, effective August 28, 2012).
Pursuant to that statute, in an appropriate proceeding, a qualified expert may
testify regarding specific types of responses and behaviors that victims of
sexual abuse often exhibit. 42. Pa.C.S.A. § 5920(b)(2).
However, to date, no court has expressly held that by enacting section
5920, the General Assembly legislatively overruled Dunkle's holding
regarding testimony about child victim responses as being within the
knowledge of an average layperson. See Commonwealth v. Maconeghy,
171 A.3d 707, 709 n.2 (Pa. 2017) (noting that Dunkle is “impacted by the
enactment of [s]ection 5920 of the Judicial Code, which now permits certain
expert witnesses to testify to facts and opinions regarding specific types of
victim responses and behaviors,” but stating a discussion of the specific effect
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of the statute on Dunkle was beyond the scope of the opinion); See also
Commonwealth v. Olivo, 127 A.3d 769, 781 (Pa. 2015) (describing the
portion of Dunkle regarding child victim responses being within the
knowledge of a lay juror as a holding based upon “then-current research,” but
not addressing whether the holding was still valid in light of section 5920);
Commonwealth v. Carter, 111 A.3d 1221, 1223-224 (Pa. Super. 2015)
(observing that Dunkle pre-dates section 5920, holding that trial court
properly permitted expert to testify regarding child victim responses pursuant
to section 5920, and rejecting Carter's argument that General Assembly had
enacted legislation on an issue previously ruled upon by the Supreme Court
in an area specifically consigned to its authority, thereby violating separation
of powers).
We find it unnecessary to reach the specific issue of the effect of section
5920 on cases of this kind, as we find Antill has not demonstrated that he
suffered prejudice from Detective Mayer’s testimony. We note the
Commonwealth offered another witness, Jamie Mesar, “as an expert in the
field of child sex assault victim behavior.” N.T., Jury Trial, 7/7/17, at 82. The
trial court found that Mesar qualified as an expert “with regard to the
behaviors of children who have been victims of sexual assault.” Id., at 84.
Antill does not challenge this qualification on appeal.
Mesar testified at length to the same concerns that Detective Mayer
identified in the passage previously quoted. See id., at 85-91. Therefore, the
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jury received the same evidence from a witness who was explicitly qualified
as an expert in the relevant field. As a result, we cannot conclude Antill
suffered any prejudice from Detective Mayer’s brief mention of some reasons
why child sex assault victims have delayed reporting in his experience.
Antill contends that the previously quoted testimony from Detective
Mayer differs substantially from Mesar’s expert opinion testimony. We
disagree. Detective Mayer noted that there were “a whole host of reasons” for
delayed reporting, and proceeded to name three: confusion; embarrassment;
and concern over the outcome of the investigation of a family member. See
N.T., Jury Trial, 7/7/17, at 7-8.
Mesar testified that “disclosure of child abuse comes out in many
different ways… disclosures can happen in many different ways and also
happens for many different reasons.” Id., at 85. This is substantially similar
to Detective Mayer’s testimony that there are “a whole host of reasons” for
delayed disclosure. Id., at 7.
Mesar also opined that delayed disclosure is often caused by the victim’s
failure to understand the severity of the abuse. Id., at 85. This testimony is
substantially similar to Detective Mayer’s opinion that “confusion” is a cause
of delayed disclosure.
Mesar also identified other reasons for delayed disclosure.
There could be threats made by a perpetrator that if a child were to tell something bad would happen to them or a family member or someone else the child is connected to.
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The delay could be due to the fact the child has a lot of blame for what’s happened. They don’t understand so they’re holding their own shame and guilt. They don’t want to let other ones know what has happened to them because they may believe that once their story is out, everybody is going to identify them as a child that something has happened to them.
Id., at 86. This testimony is substantially similar to Detective Mayer’s
testimony that delayed disclosure may be caused by embarrassment or
concern about the impact an investigation would have on a family member.
As a result, Antill did not suffer any undue prejudice from Detective Mayer’s
testimony regarding the causes of delayed disclosure.
In his final issue on appeal, Antill argues the trial court abused its
discretion by imposing a manifestly unreasonable sentence and by failing to
address each of the factors required by 42 Pa.C.S.A. § 9721(b). He further
contends the trial court failed to consider mitigating factors. Antill concedes
his argument raises a challenge to the discretionary aspects of his sentence.
“A challenge to the discretionary aspects of a sentence must be considered a
petition for permission to appeal, as the right to pursue such a claim is not
absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004)
(citation omitted).
An appellant challenging the discretionary aspects of his sentence must invoke this Court’s jurisdiction by satisfying a four-part test:
[W]e conduct a four-part analysis to 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 appellant’s brief has a fatal defect; and (4) whether there is a substantial question that the
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sentence appealed from is not appropriate under the Sentencing Code.
Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citations
omitted; brackets in original).
Here, Antill preserved his issue through a timely motion for
reconsideration of the sentence imposed, and filed a timely appeal. Counsel
has included the required Rule 2119(f) statement. We therefore review the
Rule 2119(f) statement to determine if Antill has raised a substantial question.
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See Commonwealth v. Tirado, 870
A.2d 362, 365 (Pa. Super. 2005). “Our inquiry must focus on the reasons for
which the appeal is sought, in contrast to the facts underlying the appeal,
which are necessary only to decide the appeal on the merits.” Id. (citation
and emphasis omitted); see also Pa.R.A.P. 2119(f).
Antill “must show that there is a substantial question that the sentence
imposed is not appropriate under the Sentencing Code.” McAfee, 849 A.2d at
274 (citation omitted). That is, “the sentence violates either a specific
provision of the sentencing scheme set forth in the Sentencing Code or a
particular fundamental norm underlying the sentencing process.” Tirado, 870
A.2d at 365.
In Antill’s Rule 2119(f) statement, he claims that the trial court abused
its discretion in sentencing by imposing a manifestly excessive sentence
“constituting too severe a punishment and, in so doing, failed to offer reasons
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for its sentence that comport with the considerations required by [42 Pa.C.S.A.
§ 9721(b)]”. Appellant’s Brief, at 47. As this claim raises a substantial
question, we proceed to examine the merits of Rivera’s sentencing challenge.
See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1266 (Pa. Super. 2014)
(en banc) (“[A]rguments that the sentencing court failed to consider the
factors proffered in 42 Pa.C.S. § 9721 does present a substantial question
whereas a statement that the court failed to consider facts of record, though
necessarily encompassing the factors of § 9721, has been rejected.”)
Our standard of review for a challenge to the discretionary aspects of
sentencing is as follows:
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.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
Here, the trial court reviewed a pre-sentence report. Where the trial
court had the benefit of reviewing a pre-sentence report, we must
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. In order to dispel any lingering doubt as to our intention of engaging in an effort of legal purification, we state clearly that sentencers are under no compulsion to employ checklists or any
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extended or systematic definitions of their punishment procedure. Having been fully informed by the pre-sentence report, the sentencing court’s discretion should not be disturbed. This is particularly true, we repeat, in those circumstances where it can be demonstrated that the judge had any degree of awareness of the sentencing considerations, and there we will presume also that the weighing process took place in a meaningful fashion. It would be foolish, indeed, to take the position that if a court is in possession of the facts, it will fail to apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992). Further,
the court explained the reasons for the sentence:
Mr. Antill, please step up to the microphone. I did preside over the jury trial in this case and I am very aware of the testimony.
I have also reviewed the pre-sentence investigative report and considered his history, which does include some evidence of aggressive, assaultive behavior based on the criminal record and the PFA violation. That would be consistent with the trial testimony as well.
I also have considered the memorandum in aid of sentencing as well as the evaluative report of the [Sexual Offender Assessment Board] as we have discussed.
And the [Sexual Offender Assessment Board] report does note that his behavior is predatory. He violated a position of trust and continued to do so by threats to keep [victim] quiet.
In light of all of the factors, including the fact that he does not have a history of mental health or drug and alcohol by his report, his rehabilitative needs appear to be centered around his sexually assaultive behavior.
N.T., Sentencing Hearing 12/11/18, at 47-48.
As the trial court in this case had the benefit of a pre-sentence report
as well as a memorandum in aid of sentencing and an evaluative report of the
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Sexual Offender Assessment Board, we conclude that it considered all relevant
sentencing factors. Antill’s final issue is without merit.
As we find none of Antill’s issues merit relief, we affirm the judgment of
sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 7/9/2019
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