Com. v. King, E.

• Court: Superior Court of Pennsylvania
• Decided: September 11, 2023
• Docket: 1530 MDA 2022
• Status: Unpublished

Opinion

J-S24006-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : ERIC MONTAGUE KING : : Appellant : No. 1530 MDA 2022

Appeal from the Judgment of Sentence Entered August 25, 2022 In the Court of Common Pleas of Clinton County Criminal Division at No(s): CP-18-CR-0000002-2021

BEFORE: BENDER, P.J.E., LAZARUS, J., and STEVENS, P.J.E.*

MEMORANDUM BY BENDER, P.J.E.: FILED: SEPTEMBER 11, 2023

Appellant, Eric Montague King, appeals from the judgment of sentence

of an aggregate term of 45 to 90 months’ imprisonment, plus three years’

probation, imposed after a jury convicted him of three counts of indecent

assault and four counts of harassment. Appellant was also deemed to be a

Sexually Violent Predator (SVP), subject to lifetime registration requirements

under the Sexual Offenders Registration and Notification Act (SORNA), 42

Pa.C.S. §§ 9799.51-9799.75. On appeal, Appellant challenges the trial court’s

denial of his pretrial motion to sever his charges into three separate cases

pertaining to each victim in this case, as well as the facial constitutionality of

SORNA. After careful review, we affirm.

Appellant was charged with the above-stated offenses based on

evidence that he assaulted three separate women on three different dates in ____________________________________________

* Former Justice specially assigned to the Superior Court. J-S24006-23

Avis, Pennsylvania. Prior to trial, Appellant filed a motion to sever the charges

pertaining to each of the three victims. On April 29, 2021, the court filed an

opinion and order denying Appellant’s motion to sever. Appellant’s case

proceeded to a jury trial on December 16, 2021. There, the victims each

testified.

First, S.G. testified that she lives alone in Avis, Pennsylvania. N.T. Trial,

12/16/21, at 29. S.G. testified that in the “evening time” on September 5,

2020, she “was in [her] yard doing yard work” when a large man came up

from behind her and “grabbed [her] breasts.” Id. at 31, 32, 35, 40. S.G.

identified the man who grabbed her as Appellant. Id. at 38. S.G. testified

that after grabbing her from behind, Appellant tried “to drag [her] to [her]

back door.” Id. at 33. However, S.G. fought him, “trying to get him off of

[her]” and, after S.G.’s dogs began barking inside her house, Appellant let her

go and “ran off.” Id. at 33-34, 40. S.G. testified that she had seen Appellant

watching her from a dog park next to her house just before the attack. Id. at

35-36. S.G. testified that she did not report the attack to police until

September 8, 2020, because she “was in shock” and she “couldn’t think

straight.” Id. at 31. A few days after she reported the incident to police, she

again saw Appellant at the dog park watching her while she was outside. Id.

at 36-37. She called 911 to report that Appellant “was stalking [her] house.”

Id. at 36.

Second, L.H. testified for the Commonwealth. She explained that in

September of 2020, she lived alone in Avis, Pennsylvania. L.H. testified that

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on September 23, 2020, she contacted police to report that approximately

one week earlier, she had been walking her dog around noon when she met a

tall, black man who was also walking dogs. Id. at 51, 60, 62. L.H. identified

Appellant as the man she met that day. Id. at 53. L.H. explained that

Appellant asked if he could walk with her, and she yes. Id. at 54. As they

walked, Appellant “started telling [L.H.] how sexy [she] was and how [she]

was turning him on. … [L.H.] told him not to talk to [her] like that, that [she]

didn’t like it.” Id. L.H. stated that Appellant continued to talk about sex,

saying he wanted to go to her house and have sex with her. Id. L.H. told

Appellant she was not interested and “stop talking to [her] like that.” Id. at

55.

L.H. testified that she attempted to walk away from Appellant, but he

followed her. Id. Because she was afraid to go home with Appellant following

her, she continued walking, eventually coming to a ballpark where Appellant

asked if she wanted to sit down. Id. at 55-56. L.H. testified that once she

sat down, Appellant sat right “beside [her] and put his arm around [her] and

was rubbing [her] back and touching [her] butt and touching [her] boobs.”

Id. at 56. When Appellant leaned in to kiss her, L.H. turned her head and

Appellant “nipped [her] … on the neck.” Id. L.H. told Appellant to stop and

used her arms to block him from touching her breasts. Id. at 57, 58. Once

L.H. told Appellant she wanted to leave, he said he would stop touching her;

however, Appellant continued to tell L.H. that she was “turning him on” and

he then “reached down in his pants and started masturbating.” Id. at 58. At

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that point, L.H. got up and left, but Appellant followed her for another 15 or

20 minutes before he told her he wanted to go home and then left. Id. at 59.

L.H. testified that she immediately told her neighbor what had

happened, but she did not call the police until “about a week or so later.” Id.

at 60. She claimed that she “didn’t know what to do” and she did not want to

go through “something like this[,]” meaning a trial. Id. at 72, 74. However,

L.H. “thought about all the other women that walk around Avis[,]” and

because she “was concerned … he might do the same to them or maybe

something even more[,]” L.H. finally decided to report the incident to police.

Id. at 74. Several weeks after this incident, L.H. was again walking her dog

when she ran into Appellant. Id. at 63. Appellant began “hollering to [her]”

and approached her, telling her he was sorry and he did not mean to

disrespect her. Id. at 63-64.

Third, J.H. testified for the Commonwealth. J.H., who was 81 years old

at the time of trial, testified that on Wednesday, November 4, 2020, she went

alone to a store in Avis, Pennsylvania.1 Id. at 77-78, 79. As she was putting

the items she purchased in the trunk of her car, a “black man walked over …

[a]nd … said, [‘C]an I help you?’” Id. at 78. J.H. identified that man in court

as Appellant. Id. at 80. After Appellant put the items in J.H.’s trunk, he asked ____________________________________________

1 We note that the ages of S.G. and L.H. were not testified to at trial, but the

trial court’s opinion in support of its order denying Appellant’s motion to sever the charges indicates that the victims were all older in age. See Trial Court Opinion and Order (TCOO), 4/29/21, at 3 (unnumbered) (referring to the victims as “mature women”); see also Appellant’s Brief at 11 (referring to the victims as “elderly women”).

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if he could “get in [her] car for five minutes[,]” to which J.H. said no. Id. at

78. J.H. testified that Appellant then “attempted to hug me. And he touched

me between my legs in my private area, my vagina.” Id. J.H. got into her

car, locked the door, and started “shaking and crying.” Id. After she sat in

her car for a few minutes, she saw Appellant pull out in his vehicle, but “he

didn’t go anyplace.” Id. at 81. When J.H. finally pulled out, Appellant followed

her through several turns before driving away from her. Id. at 81-82. The

next day, J.H. called the store and reported the incident, and store employees

said they would report it to the police. Id. at 80-81. When J.H. had heard

nothing from the police by Saturday, she called the police on Monday and

talked to an officer about what had happened. Id. at 81.

Based on the testimony of these witnesses, the jury convicted Appellant

of the above-stated offenses. He was sentenced to the term set forth supra

on August 5, 2022. That same day, the court designated Appellant as an SVP.

Appellant filed a timely, post-sentence motion for modification of his sentence,

which the court denied on October 6, 2022. Appellant then filed a timely

notice of appeal, and he complied with the trial court’s subsequent order to

file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal.

On December 12, 2022, the court issued a Rule 1925(a) opinion relying, in

part, on the April 29, 2021 opinion and order denying Appellant’s severance

motion. See Trial Court Opinion, 12/12/22, at 2.

Herein, Appellant states two issues for our review:

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1. Did the trial court err in failing to sever the criminal charges in this matter, despite the fact that witness credibility was the central factual issue to be determined by the jury as no physical evidence existed to substantiate the crimes charged?

2. Is … []SORNA[] unconstitutional on its face and therefore [is] the trial court’s designation of [Appellant] as a[n SVP] unconstitutional?

Appellant’s Brief at 4.

Appellant first contends that the trial court abused its discretion by

denying the motion to sever the charges pertaining to each of the three victims

in this case. “[W]hether or not separate indictments should be consolidated

for trial is within the sole discretion of the trial court and such discretion will

be reversed only for a manifest abuse of discretion or prejudice and clear

injustice to the defendant.” Commonwealth v. Kurtz, 294 A.3d 509, 531

(Pa. Super. 2023) (quoting Commonwealth v. Cousar, 928 A.2d 1025, 1037

(Pa. 2007) (citation omitted)).

Here, Appellant argues that “the Commonwealth’s charges did not

involve a common scheme, [or] common location, and … Appellant was clearly

unduly prejudiced by the Commonwealth’s successful attempt to take the

jury’s attention off of the fact that there were significant holes in the victim[s’]

testimony and place it on the ‘cumulative’ evidence that … Appellant is

simpl[y] a ‘monster’ preying on elderly women.” Appellant’s Brief at 11. He

insists that, “[t]aken individually,” the victims’ testimony was “objectively

weak[,]” but “when taken one after the other, … Appellant was subjected to

testimony that showed a ‘propensity to commit criminal conduct’ by any

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reasonable observer.” Id. at 12. Thus, he claims that the court denied him

a fair trial by failing to sever the charges pertaining to each victim.

Appellant’s argument is unconvincing. First, this Court has explained:

Pursuant to Rule of Criminal Procedure 582, “[o]ffenses charged in separate indictments or informations may be tried together if … the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion.” Pa.R.Crim.P. 582(A)(1)(a). Furthermore, under Rule 583, the trial court “may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.” Pa.R.Crim.P. 583.

Reading these rules together, our Supreme Court established the following test for severance matters:

Where the defendant moves to sever offenses not based on the same act or transaction that have been consolidated in a single indictment or information, or opposes joinder of separate indictments or informations, the court must therefore determine: [1] whether the evidence of each of the offenses would be admissible in a separate trial for the other; [2] whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, [3] whether the defendant will be unduly prejudiced by the consolidation of offenses.

Commonwealth v. Ferguson, 107 A.3d 206, 210-11 (Pa. Super. 2015) (quoting Commonwealth v. Collins, … 703 A.2d 418, 422 ([Pa.] 1997)).

Therefore, we must first assess whether the evidence of each of the offenses would be admissible in a separate trial for the others. Id. at 211. Generally, pursuant to Rule of Evidence 404, “[e]vidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Pa.R.E. 404(b)(1). However, “[t]his evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or

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lack of accident” and where “the probative value of the evidence outweighs its potential for unfair prejudice.” Pa.R.E. 404(b)(2).

Under the common plan or scheme exception, evidence of other crimes or bad acts may be admitted where “the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator.” Commonwealth v. Tyson, 119 A.3d 353, 358-59 (Pa. Super. 2015) (en banc) (citation omitted). “Relevant to such a finding will be the habits or patterns of action or conduct undertaken by the perpetrator to commit crime, as well as the time, place, and types of victims typically chosen by the perpetrator.” Id. at 359 (citation omitted). “Sufficient commonality of factors” between the incidents “dispels the notion that they are merely coincidental and permits the contrary conclusion that they are so logically connected they share a perpetrator.” Commonwealth v. Weakley, 972 A.2d 1182, 1189 (Pa. Super. 2009). “If the evidence reveals that the details of each criminal incident are nearly identical, the fact that the incidents are separated by a lapse of time will not likely prevent the offer of the evidence unless the time lapse is excessive.” Tyson, 119 A.3d at 359 (citation omitted).

Kurtz, 294 A.3d at 532.

In this case, the trial court concluded, in its opinion and order denying

Appellant’s motion to sever, that the “[t]he offenses are sufficiently linked in

time and content so as to be admissible in separate trials to prove a common

scheme, plan or design, or identity.” TCOO at 3 (unnumbered). It reasoned:

All of the assaults took place in the general vicinity of Avis, Pennsylvania, while the victims were in the community. [Appellant] approached each mature female in the outdoors. The assaults all took place between September 5, 2020[,] and November 4, 2020. As noted, the victims were all female and mature women. The crimes were all committed in a similar manner.

TCOO at 3 (unnumbered).

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Notably, on appeal, Appellant provides no developed response to the

court’s conclusion that the evidence of each assault would have been

admissible in a trial for the others to show a common scheme, plan, or design.

Instead, he only baldly asserts that the crimes “did not involve a common

scheme, [or] common location….” Appellant’s Brief at 11. Appellant’s cursory

argument fails to establish that the trial court abused its discretion in finding

that the three assaults in this case show a sufficiently similar plan and design

such that “evidence of each of the offenses would be admissible in a separate

trial for the other[s].” Ferguson, 107 A.3d at 210. As the court pointed out,

the victims were all older, adult women who were strangers to Appellant. Each

victim was alone outside when Appellant approached them. The actual

assaultive acts on the victims were similar, in that Appellant grabbed the

victims’ private parts over their clothing. After assaulting L.H. and J.H.,

Appellant followed the women as they fled; after he assaulted S.H., he

returned to a park near her home and watched her. Moreover, each assault

occurred in Avis, Pennsylvania, during daylight hours, and the assaults were

committed extremely close in time, over just a two-month period between

September 5th and November 4th of 2020. These similarities are sufficient to

demonstrate that the court did not abuse its discretion in finding that the

evidence of each assault would be admissible in the trial of the others under

the common plan or scheme exception to the rule precluding prior-bad-acts

evidence. Weakley, 972 A.2d at 1189.

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Next, the trial court determined that the evidence related to the three

incidents was capable of separation by the jury. See TCOO at 4 (unnumbered)

(concluding that it had “no concern that the evidence would not be capable of

separation by the jury or cause any danger of confusion”). “Our Supreme

Court has explained that ‘[w]here a trial concerns distinct criminal offenses

that are distinguishable in time, space[,] and the characters involved, a jury

is capable of separating the evidence.’” Kurtz, 294 A.3d at 533 (quoting

Collins, 703 A.2d at 423). Here, the trial court noted that “[t]he facts set

forth in the Affidavit of Probable Cause are relatively simple and

straightforward and [are] certainly capable of being separated by the jury to

the extent that [Appellant] is charged with different crimes involving different

victims on different dates and locations.” Id. We discern no abuse of

discretion in the court’s conclusion.

Finally, the trial court found that there was no “undue prejudice against

[Appellant] by permitting the offenses to remain consolidated.” TCOO at 4

(unnumbered). This Court has explained that,

[f]or the purpose of this analysis, prejudice “is not simply prejudice in the sense that [the] appellant will be linked to the crimes for which he is being prosecuted, for that sort of prejudice is ostensibly the purpose of all Commonwealth evidence.” Collins, 703 A.2d at 423 (citation omitted; emphasis in original). Instead, prejudice is established where the evidence only showed the appellant’s “propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence.” Id. (citation omitted).

Kurtz, 294 A.3d at 534.

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In this case, the evidence of Appellant’s three separate assaults did not

simply show his propensity to commit crimes. Instead, the evidence

established that “Appellant embarked on a two-month spree of sexually

assaulting women in broad daylight on the streets of Avis, Pennsylvania.”

Commonwealth’s Brief at 7. The evidence of each assault was not

unnecessarily cumulative of the others because the assault on each victim was

its own criminal episode, and the jury would naturally understand that the

assault against each victim had no bearing on the other(s), but for the

common link of Appellant as the perpetrator.

Moreover, we reject Appellant’s argument that the victims’ delays in

reporting the assaults demonstrates that their testimony was so wholly

incredible that the jury must have convicted him simply based on a finding

that he has the propensity to commit crimes. Each victim explained why they

failed to immediately report the assaults, essentially stating that they were

shocked, scared, and confused after being assaulted in broad daylight by a

complete stranger. The jury was free to accept the victims’ explanations for

their reporting delays and credit their testimony that Appellant attacked them.

In sum, Appellant “created the sequence of events and cannot fairly now

demand that the … matters be severed and tried in separate trials.”

Ferguson, 107 A.3d at 212 (citation omitted). Thus, we conclude that the

trial court did not abuse its discretion in denying Appellant’s motion to sever.

In Appellant’s second issue, he contends that SORNA is “unconstitutional

on its face and therefore the trial court’s designation of Appellant as a[n SVP

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is] unconstitutional[.]” Appellant’s Brief at 13. In support of this claim,

Appellant presents the following argument, in its entirety:

It is well-settled that this Court’s review of the constitutionality of a statute is de novo and the scope of review is plenary. Commonwealth v. Beish, 207 A.3d 964 (Pa. Super. 2018). In the instant matter, Appellant argues that … []SORNA[] is unconstitutional on its face, as it imposes cruel and unusual punishment against … Appellant by imposing a sentence in excess of the statutory maximum sentence. Further, it applies irrebutable [sic] presumptions that are not universally applicable and violates United States Supreme Court precedent in Alleyne v. United States, 570 U.S. 99 (2013)[,] and Apprendi v. New Jersey, 530 U.S. 466 (2020). As the [Commonwealth v.] Torislieri[, 232 A.3d 567 (Pa. 2020),2] matter is currently pending before the Pennsylvania Supreme Court, Appellant raises this issue to preserve his rights under the Torsilieri decision from the Supreme Court, upon a decision being made.

Appellant’s Brief at 13-14 (unnecessary emphasis omitted).

Appellant’s undeveloped argument does not permit us to meaningfully

review his claim that SORNA is unconstitutional on its face. Thus, we deem

his second issue waived. See Commonwealth v. Hardy, 918 A.2d 766, 771

(Pa. Super. 2007) (“When briefing the various issues that have been

____________________________________________

2 In Torsilieri, the trial court declared Subchapter H of SORNA unconstitutional under a number of theories, including that it impaired Torsilieri’s “right to reputation” under the Pennsylvania Constitution by utilizing an “irrebuttable presumption” that all registrants pose a high risk of recidivism. Torsilieri, 232 A.3d at 574-75. The trial court also concluded that Subchapter H is “punitive” pursuant to the seven factors set forth in Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963). On appeal, our Supreme Court determined that, while the trial court had correctly considered Torsilieri’s scientific evidence, remand was necessary for further development of the record, including “the opposing science, if any….” Torsilieri, 232 A.3d at 596. No subsequent decision in Torsilieri has yet been issued following the remand.

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preserved, it is an appellant’s duty to present arguments that are sufficiently

developed for our review. The brief must support the claims with pertinent

discussion, with references to the record and with citations to legal authorities.

… [W]hen defects in a brief impede our ability to conduct meaningful appellate

review, we may dismiss the appeal entirely or find certain issues to be

waived.”).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 9/11/2023

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