Com. v. Duncan, B.

• Court: Superior Court of Pennsylvania
• Decided: April 24, 2023
• Docket: 1145 MDA 2022
• Status: Unpublished

Opinion

J-S02007-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : BRIAN MICHAEL DUNCAN : : Appellant : No. 1145 MDA 2022

Appeal from the Judgment of Sentence Entered March 30, 2022 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0001264-2019

BEFORE: PANELLA, P.J., OLSON, J., and DUBOW, J.

MEMORANDUM BY PANELLA, P.J.: FILED APRIL 24, 2023

Brian Michael Duncan appeals from the judgment of sentence imposed

following his convictions for corruption of minors and involuntary deviate

sexual intercourse – complainant less than 16 years of age (“IDSI”).1 Duncan

now argues the trial court abused its discretion by imposing a statutory

maximum sentence for IDSI without adequate justification or regard for his

prior record score of 0. Duncan also challenges the sufficiency and weight of

the evidence supporting his convictions. After careful review, we affirm.

Duncan was charged with IDSI and related offenses based on an

interaction with his wife’s nephew (“Complainant”) in 2016. The trial court

____________________________________________

1 See 18 Pa.C.S.A. §§ 6301(a)(1)(ii), 3123(a)(7). J-S02007-23

summarized Complainant’s allegations and the relevant trial testimony as

follows:

In 2016, [Complainant] was 13 years old and would babysit his younger cousins while his aunt delivered newspapers. [Complainant] knew [] Duncan … because [Duncan] married his aunt and the two lived together. One night, during wrestling season, [Complainant] went to his aunt’s trailer to be with his cousins. [Complainant] sat in the living room with his cousins, and then [Duncan] asked him to enter the bathroom so the two could have a conversation.

[Duncan] shut the bathroom door and gave [Complainant] a Coke in a glass cup. [Duncan] told him to take a sip and [Complainant] testified that he remembered that the drink tasted bitter. Then [Duncan] told [Complainant] to sit on the toilet and [Duncan] sat along the edge of the bathtub. After a period of time, [Duncan] gave [Complainant] a bong with marijuana that was located on a shelf in the bathroom. [Complainant] took a “hit” from the bong and after about 20 to 30 minutes, he felt dizzy and high.

[Complainant] then tried to leave the bathroom, but [Duncan] stopped him and tried to kiss him. [Complainant] told [Duncan] to stop but he did not listen. [Complainant] finally left the bathroom and [Duncan] instructed the other children to go to their rooms. [Duncan] laid [Complainant] down on the couch and unzipped his pants. [Complainant] testified that [Duncan] put his “penis in his mouth” and [Complainant] told him to stop, but [Duncan] did not listen. [Duncan] kept touching [Complainant’s] anus and eventually tried to initiate anal sex by sitting [Complainant] on his lap. [Complainant] believed that his pants were down when this occurred.

[Complainant] does not remember what happened next because he blacked out. He does not know how or when [Duncan] stopped. [Complainant] woke up the next morning, saw that he was still on the couch, and noticed that [Duncan] was lying on the other side of the couch. [Complainant’s] pants were still unzipped when he woke up. [Duncan] told [Complainant] not to tell anyone what happened. [Complainant] did not tell anyone about the incident … until he was in ninth or tenth grade when he informed his counselor….

-2- J-S02007-23

Trial Court Opinion, 10/6/22, at 4-6 (citations to record omitted).

Following a jury trial, Duncan was convicted of corruption of minors and

IDSI. The trial court deferred sentencing and ordered preparation of a pre-

sentence investigation report (“PSI”). On December 22, 2021, the trial court

sentenced Duncan to 10 to 20 years in prison for his IDSI conviction and a

concurrent term of 3 to 36 months in prison for his corruption of minors

conviction.

Duncan filed a timely post-sentence motion, including a motion to

modify his sentence. He argued the trial court imposed a sentence outside the

aggravated range of the Sentencing Guidelines for his IDSI conviction without

stating its reasons for doing so on the record. After a hearing, the trial court

vacated Duncan’s judgment of sentence and scheduled a resentencing

hearing. The court reimposed the same sentence and issued an additional

statement to set forth its reasons for sentencing beyond the guidelines.

Duncan again filed a post-sentence motion, asserting the trial court’s

statement did not adequately explain why this case is significantly different

from others involving similar offenses. He also challenged the weight and

sufficiency of the evidence. The trial court denied Duncan’s post-sentence

motion, and this timely appeal followed.

On appeal, Duncan raises the following issues for our review:

A. Did the trial court commit an abuse of discretion when it sentenced [] Duncan to the statutory maximum for his conviction for [IDSI], where at the time of sentencing [] Duncan’s prior record score was a zero, and there were no facts adduced at trial

-3- J-S02007-23

or sentencing to demonstrate how this case is significantly different than other cases where a defendant was convicted of the same or similar offenses and received a standard range sentence, and where the sentence imposed was 3 and ½ years longer than an aggravated range sentence[?]

B. Did the trial court commit reversable error when it denied [] Duncan’s post-sentence motion for judgment of acquittal on the basis that there was insufficient evidence presented at trial to support the convictions for corruption of minors and [IDSI?]

C. Did the trial court commit reversable error when it denied [] Duncan’s post-sentence motion for a new trial on the basis that the verdicts were against the weight of the evidence?

Appellant’s Brief at 6-7.

We will address these claims out of order, beginning with the sufficiency

of the evidence claim, as success on that issue warrants discharge on the

pertinent crime. See Commonwealth v. Toritto, 67 A.3d 29, 33 (Pa. Super.

2013). Duncan argues there was insufficient evidence to support his

convictions, citing, in part, Complainant’s nearly two-year delay in reporting.

See Appellant’s Brief at 26-27. Duncan also describes Complainant’s

testimony as “problematic,” because Duncan could not remember specific

portions of his conversation with Duncan while in the bathroom, and he could

not explain “how all of what happened to him was accomplished in the wide-

open living room of [] Duncan’s trailer….” Id. at 27.

Duncan’s argument on this issue contains only a single, cursory citation.

See Pa.R.A.P. 2119(a) (providing that the argument shall include “such

discussion and citation of authorities as are deemed pertinent.”). Duncan also

fails to identify the specific element or elements of corruption of minors and

-4- J-S02007-23

IDSI or how the evidence presented at trial failed to establish those elements.

See Commonwealth v. Samuel, 102 A.3d 1001, 1005 (Pa. Super. 2014)

(“In order to develop a claim challenging the sufficiency of the evidence

properly, an appellant must specifically discuss the elements of the crime and

identify those which he alleges the Commonwealth failed to prove.”). Duncan’s

first claim is not properly developed for our review and therefore, it is waived.

See Samuel, 102 A.3d at 1005.

Even if Duncan had properly preserved this issue for review, we would

conclude that it lacks merit. Duncan’s argument highlights the vagueness and

uncertainty of Complainant’s testimony at trial. As such, Duncan’s argument

is essentially an argument that the jury should not have found Complainant’s

testimony credible. This is a challenge to the weight of the evidence, not its

sufficiency. See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160 (Pa.

Super. 2007).

While we acknowledge that at a certain point, vagueness in testimony

may create an issue of sufficiency, we conclude that the vagueness highlighted

by Duncan here does not rise to that level. First, we note that Complainant’s

testimony indicated that Duncan had intentionally drugged him before

assaulting him. As such, a jury could reasonably conclude that any vagueness

was the result of the drugging, and not due to any attempt to mislead the

jury. Second, Complainant was not vague in his testimony about Duncan’s

conduct. The vagueness highlighted by Duncan concerns the surrounding

-5- J-S02007-23

circumstances, not the testimony that directly supports the conviction.

Therefore, Duncan’s sufficiency challenge would merit no relief in any event.

Next, Duncan claims the verdicts were against the weight of the

evidence. Duncan incorporates his sufficiency argument, and also asks this

Court to reconsider the credibility of his trial testimony. See Appellant’s Brief

at 28-29.

Duncan, citing only to this Court’s standard of review and to his

underdeveloped sufficiency argument, fails to develop this claim for appellate

review as well. See Pa.R.A.P. 2119(a); Commonwealth v. Beshore, 916

A.2d 1128, 1140 (Pa. Super. 2007) (stating that this Court will not “scour the

record to find evidence to support an argument”). Therefore, this claim is

waived.

As with his sufficiency claim, we would find Duncan’s weight of the

evidence claim meritless even if properly preserved. A challenge to the weight

of the evidence asks the trial court to determine whether the verdict is so

shocking to the trial court’s sense of justice that a new trial is required. See

Commonwealth v. Boyd, 73 A.3d 1269, 1274 (Pa. Super. 2013) (en banc).

On appeal, our review is limited to the question of whether the trial court

abused its discretion by denying a new trial. See id. at 1275.

Here, the trial court concluded that the verdict did not shock its

conscience. See Trial Court Opinion, 10/6/22, at 14. The court noted that this

case represented a simple conflict in testimony between Complainant and

-6- J-S02007-23

Duncan. See id. The court found no reason to overrule the jury’s credibility

determination. See id. As we cannot conclude this reasoning represents an

abuse of discretion, Duncan’s challenge to the weight of the evidence would

merit no relief even if properly preserved.

In his final issue, Duncan claims the trial court abused its discretion by

imposing the statutory maximum sentence for IDSI, which is beyond the

aggravated range of the Sentencing Guidelines. See Appellant’s Brief at 14.

There is no automatic right to appeal the discretionary aspects of a sentence.

See Commonwealth v. Mrozik, 213 A.3d 273, 275 (Pa. Super. 2019).

Instead, an appellant must invoke this Court’s jurisdiction. See

Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010) (citation

omitted).

We conduct a four-part analysis to determine: (1) whether the appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether the appellant’s brief has a fatal defect, 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, 42 Pa.C.S.A. § 9781(b).

***

The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. 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.

-7- J-S02007-23

Moury, 992 A.2d at 170 (quotation marks, brackets, and some citations

Here, Duncan preserved his claim in a post-sentence motion and filed a

timely notice of appeal. Duncan also included a separate Rule 2119(f)

statement in his appellate brief, asserting the trial court imposed an excessive

sentence, beyond the aggravated range of the Sentencing Guidelines, with

primary consideration given to the impact on Complainant. See Appellant’s

Brief at 17-18. Duncan argues the court gave “short shrift” to his rehabilitative

needs and failed to consider that he poses a low risk to the community. See

id. at 18. We conclude Duncan has raised a substantial question for our

review, and we proceed to the merits of his sentencing challenge. See

Commonwealth v. Holiday, 954 A.2d 6, 10 (Pa. Super. 2008) (“A claim that

the sentencing court imposed a sentence outside of the guideline ranges

without specifying sufficient reasons presents a substantial question for our

review.”); Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super. 2001) (“A

claim that the sentencing court imposed an unreasonable sentence by

sentencing outside the guidelines presents a ‘substantial question’ for our

review.”).

We review discretionary sentencing challenges with great deference to

the sentencing court:

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,

-8- J-S02007-23

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. Bullock, 170 A.3d 1109, 1123 (Pa. Super. 2017)

(citations and quotation marks omitted).

“In every case in which the court imposes a sentence for a felony … 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); see also Commonwealth v. Mouzon,

812 A.2d 617, 620-21 (Pa. 2002) (plurality). “In considering these factors,

the court should refer to the defendant’s prior criminal record, age, personal

characteristics and potential for rehabilitation.” Commonwealth v.

Antidormi, 84 A.3d 736, 761 (Pa. Super. 2014) (citation omitted). The trial

court must also consider the Sentencing Guidelines. See 42 Pa.C.S.A. §

9721(b); see also Commonwealth v. Sheller, 961 A.2d 187, 190 (Pa.

Super. 2008) (stating that “[w]hen imposing a sentence, the [trial] court is

required to consider the sentence ranges set forth in the Sentencing

Guidelines….”).

A court may impose a sentence beyond the Sentencing Guidelines so

long as it adequately states its reasons for doing so. See Eby, 784 A.2d at

206-07; Holiday, 954 A.2d at 11. The Sentencing Guidelines are intended to

be advisory only and therefore do not bind a sentencing court. See Holiday,

954 A.2d at 11. The Sentencing Guidelines “do not predominate over

-9- J-S02007-23

individualized sentencing factors and [] they include standardized

recommendations, rather than mandates, for a particular sentence.” Id.

(citation omitted).

It is undisputed that Duncan had a prior record score of zero. Duncan’s

conviction of IDSI carries an offense gravity score of 12; therefore, the

Sentencing Guidelines recommend a minimum sentence of 48 to 66 months

in prison, plus or minus 12 months for aggravating or mitigating

circumstances. See 204 Pa. Code § 303.16(a). Because IDSI is a first-degree

felony, the statutory maximum sentence is 20 years. See 18 Pa.C.S.A. §

1103(1). The trial court therefore imposed the statutory maximum sentence,

which was beyond the aggravated range of the Sentencing Guidelines based

on the offense gravity score and Duncan’s prior record score.

During the sentencing hearing, the trial court heard from Complainant,

who testified about the lasting effects the incident has had on his life. See

N.T., Sentencing, 12/22/21, at 4-5; see also id. at 32 (wherein the trial court

described Complainant’s testimony as “impactful”). In its statement issued

upon resentencing, the trial court highlighted the lasting and profound impact

of the sexual assault on Complainant. See N.T., Resentencing, 3/30/22, at 1

(unnumbered). The court acknowledged that Duncan had completed various

programs provided by the prison, but it remained “circumspect as to whether

or not the community would be safe absent him being removed from [the

community] through total confinement.” Id. at 2-3 (unnumbered). The trial

- 10 - J-S02007-23

court also stated a standard range sentence “would undermine recognition of

what had happened in this case and the consequences of it[,] which were

significant.” Id. at 3 (unnumbered).

The record in this case confirms the trial court was aware of and

considered all relevant sentencing factors in fashioning Duncan’s sentence

beyond the aggravated range of the Sentencing Guidelines. Moreover, where,

as here, the trial court has 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.”

Moury, 992 A.2d at 171 (internal quotation marks and citations omitted).

While Duncan’s sentence is outside the guidelines, we reiterate that the

Sentencing Guidelines are advisory, and a trial court must ultimately impose

an individualized sentence based upon relevant factors. See Holiday, 954

A.2d at 11. Nothing in our own examination of the record leads us to conclude

the trial court imposed an unreasonable sentence without proper consideration

of the general standards set forth in the Sentencing Code. Based upon the

foregoing, and because we otherwise discern no abuse of the trial court’s

sentencing discretion, Duncan is not entitled to relief on this claim.

Judgment of sentence affirmed.

- 11 - J-S02007-23

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 04/24/2023

- 12 -