Com. v. States, J.

• Court: Superior Court of Pennsylvania
• Decided: October 10, 2014
• Docket: 2011 WDA 2013
• Status: Unpublished

Opinion

J-A27031-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : JEFFREY STATES, : : Appellant : No. 2011 WDA 2013

Appeal from the Judgment of Sentence entered on October 24, 2013 in the Court of Common Pleas of Erie County, Criminal Division, No. CP-25-CR-0002377-2012

BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 10, 2014

Jeffrey States (“States”) appeals from the judgment of sentence

imposed after he was convicted of indecent assault of a minor less than

thirteen years of age.1 We affirm the judgment of sentence.2

In 1995-1996, States was approximately sixteen years-old, and

resided with his parents in Erie, Pennsylvania. N.T., 7/24/13, at 31. The

minor victim, S.S. (hereinafter “the victim”), and her family lived in the

same neighborhood. Id. at 29-30. The victim was between the ages of five

and six years-old at the relevant times. Id. at 37, 34-44. The victim and

her family had a very close relationship with States’s family. Id. at 29-30.

1 See 18 Pa.C.S.A. § 3126(a)(7). 2 While we affirm States’s judgment of sentence, we remand the case concerning an unrelated matter for the trial court to correct an error in the record. J-A27031-14

States’s mother would often babysit the victim when her parents were away.

Id. at 30.

On at least twelve separate occasions during a period of several

months in 1995 and 1996, States led the victim to his bedroom, located in

the basement of the house, to play what States called “the golf ball game.”

Id. at 31, 33, 39, 58, 86. After closing the bedroom door, States instructed

the victim to lie face down on his bed and play with two golf balls that he

had placed on the bed. Id. at 33, 35, 41. While the victim was occupied

with the golf balls, States pulled her pants and underwear completely off.

Id. at 34. States then took off his pants and rubbed his penis between the

victim’s butt cheeks. Id. at 35. After each of the assaults, States would

repeat the same warning to the victim that if she told anyone about what

had happened, her parents would be taken away from her. Id. at 43.

The victim first reported the sexual assaults to the police in March

2012, when she was twenty-one years-old. Id. at 49, 56. The victim

testified that she did not report the assaults sooner because she feared that

her parents would be taken away from her, and she did not want to damage

the close relationship between her family and States’s family. Id. at 47, 49.

The victim stated on cross-examination that although she knew that the

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assaults had occurred between 1995 and 1996, she could not identify

specific dates. Id. at 56.3

In May 2012, the Commonwealth charged States with indecent

assault. The matter proceeded to a jury trial, at the close of which the jury

found States guilty.

Prior to sentencing, the trial court ordered the preparation of a

Presentence Investigation Report (“PSI”), and referred the case to the

Pennsylvania Sexual Offenders Assessment Board (“SOAB”) for an

evaluation of States as to whether he met the criteria to be classified as a

sexually violent predator (“SVP”). The SOAB evaluator issued a report

opining that States does not meet the criteria of a SVP.

On October 24, 2013, the trial court imposed an aggravated-range

sentence of one to five years in prison. The following day, the trial court

entered an Order (hereinafter “the SVP Order”) providing that States shall

not be classified as a SVP.4 States filed a Post-Sentence Motion, challenging

the sufficiency of the evidence supporting his conviction and the

discretionary aspects of his sentence. The trial court denied States’s Motion,

after which States timely filed a Notice of Appeal.

On appeal, States presents the following issues for our review:

3 The victim also testified that she had asked her mother to help her in identifying the timeframe in which the assaults had occurred. N.T., 7/24/13, at 56-57. 4 As discussed below, the SVP Order contained an error stating that the SOAB evaluator had determined that States met the criteria of a SVP, when the evaluator actually opined to the contrary.

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A. Whether sufficient evidence existed to find [States] guilty of indecent assault beyond a reasonable doubt when the only evidence offered to prove the charge was the testimony of the [victim,] seventeen [] years after [the assaults] allegedly occurred [] in 1995 or 1996[,] without the benefit of a date or time[?]

B. Whether the lower court erred by imposing an unreasonable sentence outside the sentencing guideline ranges and contrary to the Pennsylvania Sentencing Guidelines when [States had] a prior record score of zero (0), he was a juvenile at the time of the offense (1995 or 1996), the [sentencing] court did not set forth adequate reasons for deviating from the norm or standard range[,] and the court focused on the victim while ignoring the mitigating factors presented on behalf of [States?]

C. Whether the lower court erred by failing to correct its [October 25, 2013] Order that stated the “Sexual Offenders Assessment Board [] determined [States] meets the requirements of a sexually violent predator[,]” when the [SOAB] specifically found to the contrary, that “[] States does not meet the criteria of a sexually violent predator”[?]

Brief for Appellant at 4 (emphasis omitted; issues renumbered for ease of

disposition).

States first argues the evidence presented is insufficient to sustain his

conviction of indecent assault because the Commonwealth failed to establish

the dates on which the alleged sexual assaults occurred with reasonable

certainty. Id. at 19. States points out this Court’s decision in

Commonwealth v. Brooks, 7 A.3d 852 (Pa. Super. 2010), wherein the

Court held that although “[i]t is the duty of the prosecution to fix the date

when an alleged offense occurred with reasonable certainty[,]” “the

Commonwealth must be afforded broad latitude when attempting to fix the

date of offenses which involve a continuous course of criminal conduct. This

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is especially true when the case involves sexual offenses against a child

victim.” Id. at 857, 858 (citations and quotation marks omitted); see also

Commonwealth v. Devlin, 333 A.2d 888, 892 (Pa. 1975) (seminal case

holding that due process requires that the date of the commission of the

offense be fixed with reasonable certainty). States heavily relies upon the

dissenting opinion in Brooks to support his claim. See Brief for Appellant at

19-20 (citing Brooks, 7 A.3d at 865 (Lazarus, J., dissenting) (opining that

“the Commonwealth [] failed to establish when the [sexual assaults]

occurred with sufficient particularity … because the [minor] victims could

neither fix the times the ongoing abuse commenced nor when it ceased.”)).

States emphasizes that the victim in this case admitted to being helped by

her mother in determining the years in which the assaults occurred, and,

according to States, “[t]his renders [the victim’s] recollection suspect.” Id.

at 21. Finally, States points out that the victim did not report the alleged

sexual assaults until she was twenty-one years-old. Id.

We apply the following standard of review when considering a

challenge to the sufficiency of the evidence:

The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant’s guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no

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probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the finder of fact[,] while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Commonwealth v. Melvin, 2014 PA Super 181, at *83 (Pa. Super. 2014)

(citation omitted).

Indecent assault is defined as follows:

A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and[] … the complainant is less than 13 years of age[.]

18 Pa.C.S.A. § 3126(a)(7).

Here, the victim unequivocally testified that the sexual assaults

occurred in 1995 and 1996, when she was only five or six years-old, and

described the incidents in great detail. See Commonwealth v. Bishop,

742 A.2d 178, 189 (Pa. Super. 1999) (collecting cases and observing that “it

is well-established that even the uncorroborated testimony of the

complaining witness is sufficient to convict a defendant of sexual offenses.”).

The fact that the victim elicited the help of her mother in determining this

timeline is immaterial. Moreover, the victim was able to personally

determine the exact year in which the one of the assaults occurred, as she

testified that she distinctly remembers that she was wearing underwear

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depicting characters from Disney’s “Hunchback of Notre Dame” movie, which

was released in 1996. N.T., 7/24/13, at 34, 76-78. Additionally, the victim

testified that States assaulted her on at least twelve separate occasions, and

as many as twenty-four occasions. Id. at 31, 33, 39, 86. The law is clear

that due process does not require a minor victim of sexual abuse to provide

temporal testimony of specific incidents that occurred during a prolonged

period of abuse. Brooks, 7 A.3d at 859; see also Commonwealth v.

G.D.M., 926 A.2d 984, 990 (Pa. Super. 2007) (holding that “the due process

concerns of Devlin[, supra] are satisfied where the victim, as here, can at

least fix the times when an ongoing course of molestation commenced and

when it ceased. A six-year-old child cannot be expected to remember each

and every date upon which he was victimized, especially where those events

are numerous and occur[red] over an extended period of time.”);

Commonwealth v. Niemetz, 422 A.2d 1369, 1373 (Pa. Super. 1980)

(affirming convictions for sexual offenses the defendant committed against

his minor stepdaughter over a five-year period, stating that “we do not

believe that it would serve the ends of justice to permit a person to rape and

otherwise sexually abuse his child with impunity simply because the child

has failed to record in a daily diary the unfortunate details of her

childhood.”).

Moreover, it is irrelevant that the victim herein did not report the

assaults until many years thereafter. There is no requirement that the very

young victim report the crimes immediately. See, e.g., Brooks, supra.

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Indeed, the victim testified that she had kept quiet for so long because of

States’s threats to her that she would lose her parents if she reported the

assaults. N.T., 7/24/13, at 47, 49. Accordingly, we conclude that States’s

sufficiency/due process challenge lacks merit.

Next, States argues that the sentencing court abused its discretion and

imposed an unreasonable aggravated-range sentence, without considering

any mitigating circumstances. See Brief for Appellant at 10-12, 13-17.

States’s claim challenges the discretionary aspects of his sentence, to which

there is no absolute right to appeal. Commonwealth v. Hill, 66 A.3d 359,

363 (Pa. Super. 2013). Rather, where, as here, the appellant has preserved

the discretionary sentencing claim for appellate review by raising it in a

timely post-sentence motion,

[t]wo requirements must be met before we will review [a challenge to the discretionary aspects of sentence] on its merits. First, [pursuant to Pa.R.A.P. 2119(f),] an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. Second, the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. That is, that 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. We examine an appellant’s Pa.R.A.P. 2119(f) statement to determine whether a substantial question exists.

Id. at 363-64 (citation to case law and brackets omitted).

States has included a Rule 2119(f) Statement in his brief. Accordingly,

we must determine whether the Rule 2119(f) Statement presents a

substantial question for our review.

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States argues that the sentencing court abused its discretion by (1)

imposing a sentence in the aggravated range without considering any

mitigating factors (such as States’s young age at the time in question and

his prior record score of zero); (2) failing to set forth adequate reasons for

imposing an aggravated-range sentence; and (3) failing to consider States’s

individualized circumstances. See Brief for Appellant at 10-12. States’s

claims present a substantial question. See Commonwealth v. Moury, 992

A.2d 162, 171 (Pa. Super. 2010) (noting that although an allegation that the

sentencing court failed to consider certain mitigating factors generally does

not raise a substantial question, a substantial question exists where an

appellant alleges that the sentencing court imposed sentence in the

aggravated range without adequately considering mitigating circumstances);

Commonwealth v. Macias, 968 A.2d 773, 776 (Pa. Super. 2009) (stating

that “[t]he failure to set forth adequate reasons for the sentence imposed

has been held to raise a substantial question.” (citations omitted));

Commonwealth v. Ahmad, 961 A.2d 884, 887 (Pa. Super. 2008) (stating

that a claim that the trial court failed to consider the defendant’s

individualized circumstances raises a substantial question).

Our standard of review is well-settled:

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

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partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)

In every case where a sentencing court imposes a sentence outside of

the sentencing guidelines, the court must provide in open court a

contemporaneous statement of reasons in support of its sentence. 42

Pa.C.S.A. § 9721(b). When doing so,

a trial judge ... [must] demonstrate on the record, as a proper starting point, its awareness of the sentencing guidelines. Having done so, the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as it also states of record the factual basis and specific reasons which compelled it to deviate from the guideline range.

Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation

and brackets omitted). Finally, when evaluating a challenge to the

discretionary aspects of sentence, it is important to remember that the

sentencing guidelines are purely advisory in nature. Commonwealth v.

Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007); see also Commonwealth v.

Walls, 926 A.2d 957, 963 (Pa. 2007) (stating that “rather than cabin the

exercise of a sentencing court’s discretion, the [sentencing] guidelines

merely inform the sentencing decision.”).

The sentencing court in this case had the benefit of a PSI and, as such,

it is presumed that the court “was aware of the relevant information

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regarding [States’s] character and weighed those considerations along with

mitigating statutory factors.” Commonwealth v. Boyer, 856 A.2d 149,

154 (Pa. Super. 2004). The sentencing court expressly stated on the record

that “[t]he Court has considered [] States’s age ….” N.T., 10/24/13, at 15;

see also Boyer, 856 A.2d at 154 (stating that, in imposing sentence, the

trial court should consider, inter alia, the defendant’s age). Moreover, the

sentencing court noted that it had considered the mitigating circumstances

posited by defense counsel, stating as follows:

It has not been contested that [States] is a good family man, he is a caretaker for his mother, he has performed service in the community that has been recognized by City Council, and he has no prior criminal record. And certainly all of those things are to [States’s] advantage.

N.T., 10/24/13, at 15. However, the sentencing court stated that these

mitigating factors were outweighed by (a) the nature of the crimes and

vulnerability of the minor victim; (b) States’s refusal to take responsibility

for his actions and lack of remorse; (c) States’s securing the victim’s silence

regarding the crimes for approximately 16 years by threatening her; (d) the

victim’s impact statement, which stated that the assaults have permanently

impacted her life and caused her to have problems with relationships and

extreme anxiety; (e) States’s having taken advantage of the position of trust

that he and his family had in the eyes of the victim; and (f) the fact that

States engaged in a course of conduct of repeatedly assaulting the victim.

Id. at 15-17. For all of these reasons, which are supported by the record,

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the sentencing court determined that a sentence in the aggravated range

was warranted. Id. at 18.

Based upon the foregoing, the record clearly belies States’s claim that

the sentencing court failed to consider mitigating factors and did not state

adequate reasons for imposing sentence. We discern no abuse of discretion

by the sentencing court, nor do we find States’s aggravated-range sentence

to be excessive or unreasonable.

Finally, States argues that “[t]he lower court must correct its [SVP]

Order entered [on] October 25, 2013[,] that contains erroneous language

stating that [States] meets the criteria of a [SVP].” Brief for Appellant at

17. We agree. It is undisputed that the SVP Order, wherein the trial court

directed that States shall not be classified as a SVP, contains erroneous

language in another part of the Order stating that the SOAB determined that

States met the criteria of a SVP. Because of the internal inconsistency in the

SVP Order, we must remand for the sole purpose of the trial court entering a

new order unequivocally stating that the SOAB determined that States does

not meet the criteria of a SVP, and that he shall not be classified as a SVP.

Because we conclude that there was sufficient evidence presented to

sustain States’s indecent assault conviction, and discern no abuse of

discretion by the trial court in imposing sentence, we affirm the judgment of

sentence. Moreover, we remand to the trial court, regarding a matter

unrelated to the judgment of sentence, for the court to correct an erroneous

statement in the October 25, 2013 SVP Order by issuing a new order.

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Judgment of sentence affirmed; case remanded regarding an unrelated

matter for the trial court to correct an error in the record; Superior Court

jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 10/10/2014

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