J-A12023-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : CLARENCE CRESPO, : : Appellant : No. 1140 MDA 2014
Appeal from the Judgment of Sentence February 7, 2014, Court of Common Pleas, York County, Criminal Division at No. CP-67-CR-0003790-2012
BEFORE: BOWES, DONOHUE and ALLEN, JJ.
MEMORANDUM BY DONOHUE, J.: FILED JUNE 10, 2015
Clarence Crespo (“Crespo”) appeals from the February 7, 2014
judgement of sentence entered by the York County Court of Common Pleas
following his convictions by a jury of rape of a child, involuntary deviate
sexual intercourse with a child, aggravated indecent assault of a child,
indecent assault of a child under thirteen, and corruption of minors.1 The
convictions stemmed from Crespo’s repeated sexual assaults of his
stepdaughter, S.G., from October 1, 2005 through November 30, 2009, from
the time S.G. was three years of age until she was seven.2 The trial court
1 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7), 6301(a)(1). 2 The specific details of the crimes underlying this appeal are not relevant to our disposition of the issues raised and are therefore omitted from this Memorandum decision. J-A12023-15
found that Crespo was a sexually violent predator3 and sentenced him to an
aggregate term of thirty-two years and six months to sixty-five years and
eight months of incarceration. On appeal, Crespo challenges the trial court’s
handling of an instance of potential juror misconduct; raises a violation of
his confrontation rights; and contends that the trial court abused its
discretion at sentencing. Upon review, we conclude that none of the issues
raised merit relief. Nonetheless, because Crespo’s sentence is illegal, we are
compelled to vacate his judgment of sentence and remand for resentencing.
We begin with the first issue raised on appeal. The record reflects that
following the Commonwealth’s direct examination of S.G.’s mother, Jay
Whittle, Esquire (“Attorney Whittle”), counsel for Crespo, informed the trial
court that he observed a juror passing a note to another juror. The
following exchange occurred at sidebar:
ATTORNEY WHITTLE: I just wanted to bring this to your attention. I happened to glance over and notice that some of the members of the jury are passing notes to each other.
THE COURT: Oh, I didn't notice that.
ATTORNEY WHITTLE: The blond lady in the back row. I specifically caught her passing a note to the gentleman in front of her in the first row.
THE COURT: Okay.
ATTORNEY WHITTLE: Could be harmless, but it concerns me.
3 42 Pa.C.S.A. § 9979.12.
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THE COURT: Let me ask you a question. I mean I’m not sure there is anything wrong with that. That’s sort of like saying I saw the lady in red whisper something to the lady in white.
ATTORNEY WHITTLE: I’m just saying they are not suppose[d] to be discussing the case, and I don't know if they are.
THE COURT: I agree.
ATTORNEY WHITTLE: But I think it needs to be addressed carefully. I don’t want to be a tattle tail [sic].
THE COURT: What do you suggest? Do you want me to ask them about it? Do you want me to ask her about this?
ATTORNEY WHITTLE: Would the [c]ourt do that in a non-discriminatory manner as to point me out as noticing that because I just --
THE COURT: Well, the only thing I can tell you is I mean I have already instructed them not to discuss the case with other jurors. I certainly haven’t instructed them not to have any communication or contact with other jurors but just not to discuss the case. I don’t know why -- I just don't know what to tell you about this, Mr. Whittle. Again[,] my example is if I saw one juror whisper to another, what does that say to me? That doesn’t really say anything to me. We presume they followed the [c]ourt’s instructions.
ATTORNEY WHITTLE: It was a handwritten note I assume.
THE COURT: But what is the difference. That is just a different form of communication. I mean I am not trying to give you a hard time here, but I don’t know what you want me to do.
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ATTORNEY WHITTLE: Again[,] that’s my obligation.
THE COURT: Sure.
ATTORNEY WHITTLE: To inform you.
THE COURT: Tell me what you want me to do about it.
ATTORNEY WHITTLE: I would I guess suggest before we break for lunch we go over that again, including sharing any written materials.
THE COURT: Well, I don’t think there is any prohibition against jurors writing notes to each other as long as they don’t have anything to do with the case.
ATTORNEY WHITTLE: We can leave it at that as long as they have nothing to do with the case.
THE COURT: I will be glad to remind then again if you like me to. If there is anything else you want me to do about this, you let me know. I just don’t know what else to say to you. You know, if you want me to, I could ask the jurors involved what was going on. If you want me to do that, I will do that. You tell me.
ATTORNEY WHITTLE: I’m curious about if --
THE COURT: So am I, but it is sort of I am in the sense that if I see two of the jurors walking down to market to grab a bite to eat, they are communicating with each other, I would not jump to the conclusion that they are -- their communication is inappropriate because I have instructed them not to talk about the case, and I am presuming they are going to follow that instruction. Now, if one of them comes up to me and says, [“]hey, Juror 15 started to talk to me about this case and I asked them to stop and he sort of, you know, wouldn't stop so I had to walk
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away,[”] there’s a different story. Okay. Now, I have somebody telling me they are trying to talk about the case but simply evidence or the observation that two jurors are communicating with each other I don’t think raises any red flag, but I'm willing to do what you want to do, and if you want me to query these two jurors about that, I will do that if you would like me to.
ATTORNEY WHITTLE: I think what I would ask is prior to the next break to inform the jury that if any member of the jury has discussed this matter as it relates to the evidence that they are hearing today, that they can inform the tipstaff.
THE COURT: Okay. I will do that.
ATTORNEY WHITTLE: Then if one of those jurors says, [“]you know what, I did.[”]
THE COURT: Okay. I will do that. I don’t have a problem doing that. Yeah, I don’t have a problem if you want me to do that. I will do that.
ATTORNEY WHITTLE: I think that that’s appropriate.
THE COURT: Okay. That’s what we will do. Anything else to say about this?
[THE COMMONWEALTH]: No, Your Honor.
THE COURT: If I would happen -- if you think I forgotten to do that, remind me, but I don’t think I will forget to do that. Okay.
ATTORNEY WHITTLE: Okay.
N.T., 10/1/13, at 236-40. At the next break at the conclusion of S.G.’s
mother’s testimony, the trial court again instructed the members of the jury
that they were not permitted to talk about the case prior to deliberations,
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and that if a juror believed that someone was trying to discuss the case, “or
pass[] information” about the case, to report that behavior to the tipstaff.
Id. at 280.
On appeal, Crespo asserts that “it was prejudicial error” for the trial
court not to investigate the jurors involved in the alleged note passing.
Crespo’s Brief at 22. Crespo suggests that in the absence of a request by
any party to do so, the trial court had a duty, on its own initiative, to
question the jurors involved to determine whether the note passed contained
any information about the case. Id. at 18, 25, 26-27. Crespo states that
the trial court “bullie[d]” Attorney Whittle into telling the court what it should
do about the situation, which was error. Id. at 25. Crespo further states
that although he had no obligation to do so, Attorney Whittle did request
that the trial court investigate the matter, but that the trial court ignored
him, once again claiming that the trial court “bull[ied]” Attorney Whittle “to
avoid [conducting] an investigation.” Id. at 21-22; Crespo’s Reply Brief at
1-2, 4.
At the outset, we disagree with Crespo that the trial court was
required to investigate this alleged misconduct sua sponte. Our review of
the cases he cites reveals that prior to the trial court undertaking an
investigation of alleged juror misconduct, the defendants in those cases
made a request for the trial court to investigate the allegations. See, e.g.,
Commonwealth v. Messersmith, 860 A.2d 1078, 1085 (Pa. Super. 2004)
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(indicating that the trial court reviewed the notes the juror took into the
deliberation room based upon the defendant and his co-defendant
requesting, in a post-trial motion, an evidentiary hearing on the matter);
Commonwealth v. Posavek, 420 A.2d 532, 534 (Pa. Super. 1980) (stating
that the defendant filed a motion for a new trial based on after discovered
evidence, alleging that a juror violated the duty to refrain from discussing
the case with others).
Nor do we find support in the record for Crespo’s contention that the
trial court ignored his request that the court investigate the matter further or
bullied him to avoid conducting an investigation. Rather, the record reflects
that upon observing a juror pass a note to another juror, Attorney Whittle
informed the trial court, following which a discussion ensued between the
trial court and Attorney Whittle regarding how to best address the situation.
Although both Attorney Whittle and the trial court were “curious” about what
was in the note, Attorney Whittle was concerned about being perceived by
the jurors as a “tattletale,” and presumably prejudicing his client in the eyes
of the jury. The trial court offered several times throughout the
conversation to take whatever action Attorney Whittle deemed appropriate.
Although Attorney Whittle initially asked the trial court if it could question
the juror “in a non-discriminatory manner” so as not to identify Attorney
Whittle as the person who informed the court, he subsequently abandoned
that request, instead indicating that he thought the “appropriate” course of
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action was for the trial court to remind the jurors that they are not permitted
to discuss the case with each other, including a prohibition against sharing
written materials about the case. The trial court instructed the jurors, as
requested by Attorney Whittle, at the next break.
Our Supreme Court has held that agreement to an issue that the party
previously objected to is “in legal effect a deliberate withdrawal of his earlier
objection,” and cannot subsequently be argued on appeal before this Court.
Commonwealth v. LaCourt, 292 A.2d 377, 379 (Pa. 1972). Furthermore,
“[i]t is well established that trial judges must be given an opportunity to
correct errors at the time they are made. A party may not remain silent and
afterwards complain of matters which, if erroneous, the court would have
corrected.” Commonwealth v. Strunk, 953 A.2d 577, 579 (Pa. Super.
2008) (internal citations and quotation marks omitted). In circumstances
where a defendant raised an objection before the trial court, but failed to
request a particular remedy (e.g., a mistrial), the remedy not requested is
waived on appeal. Id.
The trial court provided Crespo the opportunity to request that it
further investigate the contents of the note passed between jurors. Crespo
failed to do so. He therefore cannot complain on appeal that the trial court
erred in this respect. See LaCourt, 292 A.2d at 379; Strunk, 953 A.2d at
579.
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Crespo’s second issue on appeal is based upon S.G. allegedly shielding
her face during her testimony at trial. The record reflects that prior to her
testimony, the trial court and counsel examined S.G. to determine if she was
competent to testify. See N.T., 9/30/13, at 116-25. At the conclusion of
the competency examination, the trial court found her competent to testify.
Id. at 125. Before calling the jury back in, Attorney Whittle asked to
approach, at which time he raised a concern about S.G.’s “body language.”
Id. The trial court stated, for the record, that S.G. was “holding her left
hand up to the side of her face clearly to block her vision of either her
looking at [Crespo] or, frankly, her seeing him look at her[.]” Id. at 126.
Attorney Whittle stated that it was an “obvious attempt” by S.G. not to look
at Crespo, “which could be prejudicial.” Id. at 127. Attorney Whittle further
stated that he was concerned he would have difficulty cross-examining S.G.,
but agreed with the trial court’s suggestion that he could stand “an
appropriate distance” from S.G. while questioning her, stating he would only
do so if he found it was “necessary.” Id. at 128. The trial court stated that
it did not believe there was anything it could do about it, and Attorney
Whittle made no further argument on this issue. Id. at 126.
On appeal, Crespo asserts that the trial court erred by permitting S.G.
to testify with her hand shielding her face as it violated Crespo’s right to
confrontation. Crespo’s Brief at 28. Initially, we observe that there is
nothing in the record to indicate that S.G. continued to shield her face from
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Crespo during her testimony before the jury after the completion of the
competency examination. Nonetheless, assuming for the sake of this
argument that S.G. continued to shield her face, Crespo is not entitled to
relief. As Crespo recognizes, he did not object to S.G.’s “body language” on
confrontation grounds. Id. at 29-30. The law is clear: “Issues not raised in
the lower court are waived and cannot be raised for the first time on
appeal.” Pa.R.A.P. 302(a). This applies with equal force to legal theories
not raised below in support of an objection. Commonwealth v. Murray,
83 A.3d 137, 159 (Pa. 2013); Commonwealth v. Tejada, 107 A.3d 788,
797 (Pa. Super. 2015).4 This issue is also waived because Crespo failed to
raise it in his concise statement of errors complained of on appeal, referring,
as he did at trial, only to S.G.’s “prejudicial body language,” and not a
violation of his right to confrontation. See Pa.R.A.P. 1925(b)(4)(vii)
4 In an effort to avoid a finding of waiver, Crespo cites to Commonwealth v. Widmer, 689 A.2d 211 (Pa. 1997). Crespo’s Brief at 29-30. In Widmer, the Pennsylvania Supreme Court held that the defendant’s failure to file a post-sentence motion challenging the weight of the evidence to support his conviction did not result in waiver of his weight of the evidence claim on appeal because the trial court addressed the issue in its 1925(a) opinion. Widmer, 689 A.2d at 212. At the time Widmer was decided, all post- sentence motions were optional, as the case predated Rule of Criminal Procedure 607, requiring the preservation of a weight of the evidence claim in a post-sentence motion. See id. Here, there is no ambiguity regarding the requirement that the specific arguments made on appeal must have first been raised before the trial court. As such, we find the reasoning of the Widmer case inapplicable. Moreover, as stated above, the issue is also waived based upon his failure to include it in his 1925(b) statement.
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(“Issues not included in the Statement and/or not raised in accordance with
the provisions of this paragraph (b)(4) are waived”).
Crespo further suggests that “the trial court’s decision to permit
S[.]G[.] to testify with her hand as a barrier was an abuse of discretion …
because it did not allow Crespo to observe the demeanor and body language
of the victim, thus depriving him of the opportunity to aid counsel in
effectively cross-examining her.” Crespo’s Brief at 35. Once again, this
argument was not raised before the trial court or in his 1925(b) statement
and is therefore waived. Pa.R.A.P. 302(a), 1925(b)(4)(vii); Murray, 83
A.3d at 159; Tejada, 107 A.3d at 797.
As his final issue on appeal, Crespo he asserts that the trial court
abused its discretion at sentencing by failing to state on the record the
reasons for the imposition of the sentence in violation of the statutory
requirement that it do so. Crespo’s Brief at 37. This is a challenge to the
discretionary aspects of his sentence. Commonwealth v. Cappellini, 690
A.2d 1220, 1227-28 (Pa. Super. 1997). Although not appealable as a
matter of right, we observe that Crespo has satisfied the four-part test,
permitting our review of the argument raised. See Commonwealth v.
Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (stating that the four-part test
for review of a discretionary sentencing issue is (1) preservation of the issue
before the trial court; (2) timely notice of appeal; (3) compliance with
Pa.R.A.P. 2119(f); and (4) raising a substantial question for this Court’s
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review), appeal denied, 86 A.3d 231 (Pa. 2014); see also Cappellini, 690
A.2d at 1228 (stating that an allegation that the trial court failed to state
sufficient reasons on the record for the imposition of the sentence raises a
substantial question for our review).
Crespo is correct that section 9721(b) of the Sentencing Act requires,
in relevant part: “In every case in which the court imposes a sentence for a
felony or misdemeanor … the court shall make as a part of the record, and
disclose in open court at the time of sentencing, a statement of the reason
or reasons for the sentence imposed.” 42 Pa.C.S.A. § 9721(b); Crespo’s
Brief at 37. “Failure to comply shall be grounds for vacating the sentence or
resentence and resentencing the defendant.” 42 Pa.C.S.A. § 9721(b).
However, “[t]he sentencing judge can satisfy the requirement that reasons
for imposing sentence be placed on the record by indicating that he or she
has been informed by the pre-sentencing report; thus properly considering
and weighing all relevant factors.” Commonwealth v. Fowler, 893 A.2d
758, 767 (Pa. Super. 2006) (citation omitted).
When imposing the sentence in the case at bar, the trial court stated,
inter alia, “[t]he [c]ourt has received and read and reviewed the presentence
investigation report prepared by York County Probation Department.” N.T.,
2/7/14, at 9. As the trial court fulfilled the relevant requirement of section
9721(b), no relief is due on this issue. See Fowler, 893 A.2d at 767.
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Although none of the issues raised on appeal warrant the grant of
relief, because Crespo is serving an illegal sentence, we must vacate the
judgment of sentence and remand for resentencing. See Commonwealth
v. Watley, 81 A.3d 108, 118 (Pa. Super. 2013) (en banc) (“Legality of
sentence questions are not waivable and may be raised sua sponte by this
Court.”), appeal denied, 95 A.3d 277 (Pa. 2014); Commonwealth v.
Thompson, 106 A.3d 742, 759 (Pa. Super. 2014) (“An illegal sentence must
be vacated.”). As stated above, the record reflects that the trial court
sentenced Crespo to a total term of thirty-two years and six months to sixty-
five years and eight months of incarceration. N.T., 2/7/14, at 11. Crespo’s
sentence included three mandatory minimum sentences of ten to twenty
years of imprisonment pursuant to section 9718 of the sentencing code for
his convictions of rape of a child, involuntary deviate sexual intercourse with
a child and aggravated indecent assault of a child.5 Id. at 10.
5 Section 9718 states, in relevant part: 3121(c), 3123(b), 3125(b)
(a) Mandatory sentence.-- (1) A person convicted of the following offenses when the victim is less than 16 years of age shall be sentenced to a mandatory term of imprisonment as follows: *** 18 Pa.C.S. § 3123 (relating to involuntary deviate sexual intercourse)--not less than ten years.
***
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On December 24, 2014, this Court in Commonwealth v. Wolf, 106
A.3d 800, 805 (Pa. Super. 2014), found section 9718 unconstitutional based
upon the United States Supreme Court’s decision in Alleyne v. U.S., __ U.S.
__, 133 S.Ct. 2151 (2013), which held: “[F]acts that increase mandatory
minimum sentences must be submitted to the jury.” Id. at 2163. Although
the only “fact” necessary for the application of the mandatory minimum
sentence in section 9718 was proof of the victim’s age, and, as in the case at
bar, the Commonwealth proved the victim’s age at trial as an element of the
offense, we nonetheless concluded in Wolfe that the mandatory sentences
(3) A person convicted of the following offenses shall be sentenced to a mandatory term of imprisonment as follows: 18 Pa.C.S. § 3121(c) and (d)--not less than ten years. *** 18 Pa.C.S. § 3125(b)--not less than ten years.
*** (c) Proof at sentencing.--The provisions of this section shall not be an element of the crime, and notice of the provisions of this section to the defendant shall not be required prior to conviction, but reasonable notice of the Commonwealth's intention to proceed under this section shall be provided after conviction and before sentencing. The applicability of this section shall be determined at sentencing. The court shall consider any evidence presented at trial and shall afford the Commonwealth and the defendant an opportunity to present any necessary additional evidence and shall determine, by a preponderance of the evidence, if this section is applicable.
42 Pa.C.S.A. § 9718(a)(1), (3), (c)
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contained in section 9718 were unconstitutional. We based this conclusion
upon the en banc panel’s holding in Commonwealth v. Newman, 99 A.3d
86 (Pa. Super. 2014) (en banc), stating that mandatory minimum
sentencing statutes in Pennsylvania containing the language appearing in
section 9718(c) “are void in their entirety.” Wolfe, 106 A.3d at 806; see
Newman, 99 A.3d at 102-03 (concluding that the offending language in the
mandatory minimum sentencing statute at issue was not severable from the
rest of the statute, as “it is manifestly the province of the General Assembly
to determine what new procedures must be created in order to impose
mandatory minimum sentences in Pennsylvania following Alleyne”); see
supra, n.5.
Crespo was sentenced, in part, to the mandatory minimum sentence
pursuant to section 9718. We are therefore compelled vacate the judgment
of sentence and remand for resentencing without consideration of the
mandatory minimum sentencing provisions of section 9718.
Judgment of sentence vacated. Case remanded for resentencing in
accordance with this Memorandum. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 6/10/2015
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