Com. v. Roach, D.

• Court: Superior Court of Pennsylvania
• Decided: February 10, 2020
• Docket: 88 MDA 2019
• Status: Unpublished

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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

____________________________________________

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

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).

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

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

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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