Opinion
J-S80037-17 No. 2526 EDA 2016
02-27-2018
COMMONWEALTH OF PENNSYLVANIA v. OTHONIER ALTRUZ, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 12, 2016 in the Court of Common Pleas of Delaware County, Criminal Division at No(s): CP-23-CR-0004485-2015 BEFORE: BOWES, J., SHOGAN, J., and MUSMANNO, J. MEMORANDUM BY MUSMANNO, J.:
Othonier Altruz ("Altruz") appeals from the judgment of sentence entered following his conviction of rape, statutory sexual assault, sexual assault, aggravated indecent assault of a child, indecent assault of a person less than 16 years of age, indecent exposure, corruption of minors, and unlawful contact with a minor—open lewdness. We affirm.
On June 1, 2015, at around 8:00 a.m., the victim was dropped off by her mother at her school. The victim, who was 13 years and 11 months old at the time, decided to skip school. The victim walked past Altruz, who was sitting in his vehicle. As she did so, Altruz invited the victim to get inside his vehicle. The victim complied, recognizing Altruz as the pastor of her church. Altruz subsequently drove the victim to the Red Roof Inn in Essington, Pennsylvania. In its Opinion, the trial described what next transpired as follows:
[The victim] followed [Altruz] into a hotel room ... and he locked the door. [Altruz] then instructed [the victim] to remove her clothes, and she said no. ... [Altruz] then removed [the victim's] clothes himself, despite her struggles to remain clothed. When all of her clothing was removed, [Altruz] removed his own clothing. [Altruz] then pushed [the victim's] shoulders and she fell onto the bed. He held her by the shoulders and held her down on the bed. ... [Altruz] then forcefully put his penis into her vagina until he ejaculated. Afterwards, [Altruz] told her to hurry up and get dressed because he had to take her back to school. [The victim] then went to the bathroom and cleaned herself up with toilet paper.Trial Court Opinion, 1/30/17, at 4-5. On June 3, 2015, June Elcock-Messam, M.D. ("Dr. Elcock-Messam"), examined the victim. Dr. Elcock-Messam testified at trial that the victim had been exposed to genital trauma.
[The victim] and [Altruz] left the hotel and [Altruz] dropped her off at school. When they arrived, they saw her mother outside. [The victim] couldn't recall specifically why her mother was at the school at this time, but she thought that it was perhaps because her brother had an appointment. [The victim] said hello to her mother, and then [the victim] left with her mom. When her mother asked her what she was doing outside of the building, [the victim] didn't answer.
The following day, June 2, 2015, was [the victim's] school graduation. According to [the victim], her parents were suspicious of her behavior on June 1st, and her father asked her what she had been doing outside of the school. She testified that she "told him a fake story" that she had skipped school and that a stranger had snatched her on the street. Upon telling him this, her father called the police[,] and they both went to the police station. [The victim] repeated the account to the police at the police station, but when they got home later that night, she eventually told her parents that her story wasn't the truth[,] and asked them to take her back to the police station. According to [the victim], it was then that she told the police what had really occurred between herself and [Altruz].
Police officers subsequently went to Altruz's home and asked whether he would accompany them to the police station. Although Altruz responded in the affirmative, he subsequently fled out of the back door. Police later apprehended Altruz.
A jury subsequently convicted Altruz of the above-described charges. Altruz filed a Motion for judgment of acquittal and a Motion for a mistrial. After oral argument, the trial court denied both Motions. The trial court sentenced Altruz to an aggregate prison term of 93-192 months, followed by 96 months of probation. Altruz filed a post-sentence Motion, which the trial court denied. Thereafter, Altruz filed the instant timely appeal, followed by a court-ordered Pa.R.A.P. 1925(b) Concise Statement of matters complained of on appeal.
Altruz presents the following claims for our review:
[I.] Whether the trial court abused its discretion when it denied the defense [M]otion for mistrial based on unfair surprise and discovery violations on the Commonwealth's revelation at trial that the [victim] had made a suicide attempt shortly before trial?Brief for Appellant at 10 (some capitalization omitted).
[II.] Whether the sentence imposed was harsh and excessive under the circumstances[?]
Altruz first claims that the trial court improperly denied his Motion for a mistrial. Id. at 17. Altruz challenges the denial of a mistrial based upon the Commonwealth's revelation, at trial, that the victim had attempted suicide. Id. According to Altruz, the Commonwealth failed to produce this information during discovery, in response to Altruz's request for "any evidence which will impeach the credibility of any defense witness." Id. In support, Altruz points out the victim's testimony "that her mom caught her with scissors shortly before trial, and she had been trying to kill herself by cutting her wrists." Id. Altruz also directs our attention to testimony from the victim's mother that "the other day, I found her in the dark with a pair of scissors[,] and she told me she wanted to die." Id. (citation omitted). Altruz asserts that this evidence could have been exculpatory, as it could have gone to the victim's state of mind, and impacted her ability to recall events. Id. at 21.
Our review of a trial court's denial of a motion for a mistrial "is limited to determining whether the trial court abused its discretion." Commonwealth v. Fortenbaugh , 620 Pa. 483, 69 A.3d 191, 193 (Pa. 2013) (internal quotation marks omitted). A trial court may grant a mistrial "only where the incident upon which the motion is based is of such a nature that its unavoidable effect is to deprive the defendant of a fair trial by preventing the jury from weighing and rendering a true verdict." Commonwealth v. Simpson , 754 A.2d 1264, 1272 (Pa. 2000).Commonwealth v. Cash , 137 A.3d 1262, 1273 (Pa. 2016).
In its Opinion, the trial court addressed Altruz's claim and concluded that it lacks merit. See Trial Court Opinion, 1/30/17, at 12-15. We agree with the sound reasoning of the trial court, and its conclusion that the claim lacks merit. See id. We therefore affirm on the basis of the trial court's Opinion with regard to Altruz's first claim. See id.
In his second claim of error, Altruz challenges the discretionary aspects of his sentence. Brief for Appellant at 24. Altruz argues that "there is a substantial question that the incarceration is not appropriate per the [S]entencing [C]ode[,] because total confinement requires deep consideration on the record." Id.
"Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right." Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary sentencing issue,
[this Court conducts] a four[-]part analysis to determine: (1) whether 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 appellant's brief has a fatal defect, [ see ] 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, [ see ] 42 Pa.C.S.A. § 9781(b).Moury , 992 A.2d at 170.
In this case, Altruz filed a timely post-sentence Motion, a timely Notice of Appeal, and includes in his brief a separate statement pursuant to Pa.R.A.P. 2119(f). However, Altruz's Rule 2119(f) Statement baldly alleges that the sentence imposed was unduly harsh and excessive under the circumstances. Brief for Appellant at 15.
"The determination of what constitutes a substantial question must be evaluated on a case-by-case basis." Commonwealth v. Prisk , 13 A.3d 526, 533 (Pa. Super. 2011). Further,
[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. (internal citations omitted). Bald allegations of excessiveness, without more, will not raise a substantial question. See , e.g., Commonwealth v. Caldwell , 117 A.3d 763, 768 (Pa. Super. 2015) (en banc) (stating that "[a]n appellant making an excessiveness claim raises a substantial question when he sufficiently articulates the manner in which 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.").
Here, Altruz baldly asserts that his sentence is "unduly harsh and excessive under the circumstances herein." Brief for Appellant at 15. Altruz presents no other support for his claim. We therefore conclude that Altruz has not presented a substantial question that his sentence is inappropriate under the Sentencing Code.
We note that in the Argument section of his brief, Altruz couples his excessiveness claim with a claim that the trial court failed to comply with 42 Pa.C.S.A. § 9721, which sets forth the factors to be considered by the sentencing court. This Court has held that "an excessive sentence claim—in conjunction with an assertion that the court failed to consider mitigating factors—raises a substantial question." Commonwealth v. Raven , 97 A.3d 1244, 1253 (Pa. Super. 2014).
Even if Altruz had included this portion of his sentencing challenge in his Rule 2119(f) Statement, thereby establishing a substantial question, we would conclude that he is not entitled to relief.
"Sentencing is a matter vested within the discretion of the trial court and will not be disturbed absent a manifest abuse of discretion." Commonwealth v. Crump , 995 A.2d 1280, 1282 (citation omitted). "An abuse of discretion requires the trial court to have acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous." Id. (citation omitted).
Altruz asserts that the trial court failed to consider the factors specified by 42 Pa.C.S.A. § 9721. Brief for Appellant at 25. In support, Altruz argues that the trial court failed to state, on the record, the reasons for the sentence it imposed, and that the court's "list of the materials it read is not reasons." Id. at 26. Altruz states that "[n]o attention was given to whether or not [Altruz] had been convicted of another crime," whether he would commit another crime if not incarcerated, whether partial confinement is indicated, or the other considerations mandated by 42 Pa.C.S.A. § 9725. Brief for Appellant at 27.
In its Opinion, the trial court addressed Altruz's claim and concluded that it is without merit. See Trial Court Opinion, 1/30/17, at 17-19. If Altruz had presented a substantial question in his Rule 2119(f) Statement, we would agree with the sound reasoning of the trial court, and affirm on this basis with regard to Altruz's sentencing challenge. See id.; see also Commonwealth v. Hunzer , 868 A.2d 498, 514 (Pa. Super. 2005) (stating that, when sentencing in the standard range of the sentencing guidelines, "a sentencing judge may satisfy [the] requirement of disclosure on the record of his reasons for imposition of a particular sentence without providing a detailed, highly technical statement.").
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 2/27/18
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See 18 Pa.C.S.A. §§ 3121, 3122, 3124.1, 3125, 3126, 3127, 6301, 6318.