Opinion
J-S62035-15 No. 657 WDA 2015
11-04-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. CHRISTOPHER WALTON BLAKE Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 22, 2015
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001506-2013
BEFORE: GANTMAN, P.J., JENKINS, J., and PLATT, J. MEMORANDUM BY GANTMAN, P.J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Christopher Walton Blake, appeals from the judgment of sentence entered in the Mercer County Court of Common Pleas, following his jury trial convictions for two counts each of rape of a child, involuntary deviate sexual intercourse ("IDSI") with a child, aggravated indecent assault of a child, unlawful contact with a minor (sexual offenses), unlawful contact with a minor (obscene and other sexual materials), corruption of minors, and indecent assault (victim less than 13 years of age). We affirm.
18 Pa.C.S.A. §§ 3121(c); 3123(b); 6318(a)(1); 6318(a)(4); 6301(a)(1); 3126(a)(7), respectively.
The trial court opinion set forth the relevant facts of this case as follows:
On September 17, 2014, a jury found [Appellant] guilty of two (2) counts of each of the following: Rape of a Child, [IDSI] with a child, Aggravated Indecent Assault of a child, Unlawful Contract with a Minor—Sexual offenses, Unlawful Contact with a Minor—Obscene and other explicit sexual materials, Corruption of a Minor, and Indecent Assault. The basis of these charges is that from approximately June 2008 to October 2009, [Appellant] performed numerous sexual acts on two minor children who were under his care at the time. These acts included [Appellant] penetrating the child victims' genitals and anuses (both with his penis and digitally), [Appellant] performing oral sex on the children, [Appellant] forcing the children to perform oral sex on [Appellant], and [Appellant] showing the children sexually explicit materials. The two children were approximately 5 and 6 years old during this period.
Prior to sentencing, this [c]ourt ordered the Sexual Offender's Assessment Board ("SOAB") to conduct an assessment to determine if [Appellant] could be sentenced as a Sexually Violent Predator ("SVP"). At the SVP hearing, this [c]ourt found that the Commonwealth met its burden of proving [Appellant] a SVP by clear and convincing evidence. The [c]ourt sentenced [Appellant] to a total of 67 to 134 years of incarceration the same day. The [c]ourt sentenced [Appellant] within the standard range for each offense and ran consecutively the two sentences each of Rape of a Child, [IDSI], and Aggravated Indecent Assault of a child.1
1 The sentences for the remaining offenses were also within the standard guidelines and ran concurrently to the other sentences imposed.
Before and during trial, this [c]ourt denied several of [Appellant's] motions that formed the basis of his Post-Sentence Motion. ...
* * *
[A]t the initiation of trial, the [c]ourt overruled [Appellant's] objection to permitting the Commonwealth to provide evidence of [Appellant's] 2011 Theft by Unlawful Taking conviction should [Appellant] testify at trial. The [c]ourt overruled the objection because it found that the conviction was per se admissible under Pa.R.E. 609(a) because it was crimen falsi and was less than 10 years old. Further, the [c]ourt took care to instruct the jury in this case to consider the conviction solely for impeachment purposes.
Finally, during the trial, this [c]ourt permitted the Commonwealth to introduce expert testimony from Kimberly Duffy, a Program Development Specialist within the Department of Social Work at the University of Pittsburgh.3 After a brief hearing regarding Ms. Duffy's qualifications, training, education, and experience, the [c]ourt found that she was an expert with respect to behavioral response patterns of child victims in sexual assault cases. In so finding, the [c]ourt ruled that this testimony involved an area that would be beyond the normal understanding of the general public, especially because the General Assembly has specifically permitted this type of expert testimony. The [c]ourt also found that a Frye hearing was not necessary in this case because the General Assembly has said that this type of testimony is proper and because the testimony given is not "novel" science. Finally, in an abundance of caution, the [c]ourt did hold a brief Frye hearing and determined that the methodology used by Ms. Duffy is generally accepted by practitioners in the relevant field.
3 Ms. Duffy also testified that she has over 17 years of experience in the Child Welfare System, including working with the Adams County and York County Children's Advocacy Centers.
Ms. Duffy was not provided any background information on the case, and she was instructed to testify only as to her
general experience with child responses (including reasons why children may delay in reporting) in sexual assault cases. Counsel for [Appellant] took part in the questioning of Ms. Duffy's credentials.(Trial Court Opinion, filed June 10, 2015, at 2-5).
The record makes clear the court did not impose any mandatory minimum sentences for any of Appellant's convictions.
Frye v. United States , 293 F. 1013 (D.C.Cir. 1923).
Procedurally, on January 22, 2015, the court deemed Appellant a SVP and sentenced him to an aggregate term of sixty-seven (67) to one hundred and thirty-four (134) years' imprisonment. Appellant timely filed a post-sentence motion on January 30, 2015. On March 31, 2015, the court denied relief. Appellant timely filed a notice of appeal on April 23, 2015. On April 27, 2015, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), which Appellant timely filed on May 8, 2015.
Appellant filed a supplemental post-sentence motion on March 10, 2015, without leave of court.
Appellant raises three issues for our review:
SHOULD...THE COURT HAVE ADMITTED A 2011 THEFT CONVICTION AS CRIMEN FALSI IMPEACHMENT EVIDENCE AGAINST [APPELLANT?](Appellant's Brief at 10).
DID THE TRIAL COURT ERR IN PERMITTING THE COMMONWEALTH TO USE KIMBERLY DUFFY AS AN EXPERT WITNESS?
WAS THE SENTENCE OF 67-134 YEARS IMPOSED UPON [APPELLANT] MANIFESTLY UNFAIR AND EXCESSIVE?
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable Robert G. Yeatts, we conclude Appellant's first issue merits no relief. The trial court's opinion comprehensively discusses and properly disposes of this question. ( See Trial Court Opinion at 11-13) (finding: Appellant's prior theft conviction is less than ten years old; crimen falsi convictions which are less than 10 years old are per se admissible; court was not required to perform balancing test in considering admission of conviction; cases on which Appellant relies are not dispositive, as neither case represents current law regarding introduction of crimen falsi convictions which are less than ten years old; additionally, court instructed jury to consider 2011 conviction for impeachment purposes only; Appellant did not object to court's instructions and does not argue instructions were improper; no relief is due). Therefore, with respect to Appellant's first issue on appeal, we affirm on the basis of the trial court's opinion.
Appellant's 2011 theft conviction constitutes a crimen falsi crime. See Commonwealth v. Cascardo , 981 A.2d 245 (Pa.Super. 2009), appeal denied, 608 Pa. 652, 12 A.3d 750 (2010) (stating term crimen falsi involves element of falsehood and includes everything which has tendency to injure administration of justice by introduction of falsehood and fraud; discussing theft by unlawful taking as crime of dishonesty, constituting crimen falsi offense).
Regarding Appellant's second issue on appeal, we initially observe: "[W]here an appellate brief fails to provide any discussion of a claim with citation to relevant authority or fails to develop the issue in any other meaningful fashion capable of review, that claim is waived." Commonwealth v. Johnson , 604 Pa. 176, 191, 985 A.2d 915, 924 (2009), cert. denied, 562 U.S. 906, 131 S.Ct. 250, 178 L.Ed.2d 165 (2010). See also Pa.R.A.P. 2119(a) (stating argument shall be divided into as many parts as there are questions to be argued, followed by such discussion and citation of authorities as are deemed pertinent).
Instantly, Appellant's entire argument as to his second issue on appeal is as follows: "The [c]ourt permitted Ms. Duffy to testify as an expert witness over defense counsel's objection, reasoning that her qualifications were piggybacked by 42 Pa.C.S. § 5920. Appellant wishes to preserve this issue pending the Supreme Court's decision in Commonwealth v. Olivo , 106 [Berks] 429 (August 27, 2013)." (Appellant's Brief at 15). Appellant's severely undeveloped claim purporting merely to preserve his issue for later review constitutes waiver of his claim (or abandonment of it) for purposes of this appeal. See Johnson , supra.
Moreover, the court permitted Ms. Duffy's testimony pursuant to 42 Pa.C.S.A. § 5920, which provides:
§ 5920. Expert testimony in certain criminal proceedings
(a) Scope.—This section applies to all of the following:
(1) A criminal proceeding for an offense for which registration is required under Subchapter H of Chapter 97 (relating to registration of sexual offenders).
(2) A criminal proceeding for an offense under 18 Pa.C.S. Ch. 31 (relating to sexual offenses).42 Pa.C.S.A. § 5920 (internal footnote omitted). See also Commonwealth v. Carter , 111 A.3d 1221 (Pa.Super. 2015) (holding expert's testimony was "clearly admissible" under Section 5920, where expert testified it is common for child sexual abuse victims to delay reporting and explained some reasons why child sexual abuse victims might delay in reporting; expert did not testify regarding specific victim in case, render opinion on whether alleged sexual incidents actually occurred, or offer opinion regarding specific victim's credibility). Additionally, "Section 5920 is really a rule regarding the admissibility of evidence, not a procedural rule. Furthermore, it is not in direct conflict with any existing rule of the Pennsylvania Supreme Court." Id. at 1224. Thus, Section 5920 does not violate the separation of powers doctrine. Id.
(b) Qualifications and use of experts.—
(1) In a criminal proceeding subject to this section, a witness may be qualified by the court as an expert if the witness has specialized knowledge beyond that possessed by the average layperson based on the witness's experience with, or specialized training or education in, criminal justice, behavioral sciences or victim services issues, related to sexual violence, that will assist the trier of fact in understanding the dynamic of sexual violence, victim responses to sexual violence and the impact of sexual violence on victims during and after being assaulted.
(2) If qualified as an expert, the witness may testify to facts and opinions regarding specific types of victim responses and victim behaviors.
(3) The witness's opinion regarding the credibility of any other witness, including the victim shall not be admissible.
(4) A witness qualified by the court as an expert under this section may be called by the attorney for the Commonwealth or the defendant to provide the expert testimony.
Instantly, after a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned trial court opinion, we conclude that even if Appellant had developed his second issue on appeal, it would still be waived for failure to preserve it before the trial court, and in any event, would merit no relief. The trial court's opinion comprehensively discusses and properly disposes of this question. ( See Trial Court Opinion at 13-17) (finding: Section 5920 specifically governs scope of expert testimony permitted in sex abuse cases; Ms. Duffy testified only generally about her experience with children's responses in sexual assault cases; Ms. Duffy was not privy to facts of this particular case, and she did not testify regarding either specific victim in this case; Ms. Duffy's testimony regarding general child victim responses and behavior following sexual assault was admissible under Section 5920; Appellant's claim implicating Olivo (Berks County Court of Common Pleas case holding Section 5920 is unconstitutional because it violates separation of powers doctrine and rulemaking authority of Pennsylvania Supreme Court) is waived because Appellant raised this claim for first time in post-sentence motion and failed to cite to Olivo during or before trial; moreover, Olivo relied on pre-Section 5920 case law; Olivo is currently pending before Pennsylvania Supreme Court; in Carter , this Court expressly held expert testimony is permissible under Section 5920, and Section 5920 does not violate separation of powers doctrine). Therefore, Appellant's second issue is waived (or abandoned) as undeveloped on appeal; moreover, even if Appellant had developed this claim, we would affirm based on the trial court's opinion.
In his third issue, Appellant argues the court ignored his rehabilitative needs in fashioning its sentence. Appellant asserts the court also failed to consider that Appellant was twenty-six years old at the time of sentencing, suffers from mental illness, was sexually and physically abused as a child, and sought mental health treatment as a juvenile. Appellant claims there was no evidence at trial of physical damage or injury to either child victim. Appellant contends the child victims are leading normal lives in school, riding the bus, and performing adequately in school. Appellant insists the court's sentence of sixty-seven (67) to one hundred and thirty-four (134) years' imprisonment amounts to a virtual life sentence. Appellant acknowledges that the court imposed standard range sentences, but he claims the cumulative effect of the sentences renders application of the guidelines clearly unreasonable. Appellant emphasizes the court imposed a sentence even harsher than the Commonwealth's recommendation. Appellant submits his aggregate sentence is essentially equivalent to a sentence for first-degree murder. Appellant suggests courts should reserve imposing life sentences for only the most heinous and brutal crimes for depraved offenders who have repeatedly committed crimes. Appellant posits the registration requirements he faces as a SVP are essentially meaningless given his virtual life sentence. Appellant concludes the trial court imposed a manifestly excessive and clearly unreasonable sentence, and this Court must vacate and remand for resentencing. As presented, Appellant's claims challenge the discretionary aspects of sentencing. Commonwealth v. Lutes , 793 A.2d 949 (Pa.Super. 2002) (stating claim that sentence is manifestly excessive challenges discretionary aspects of sentencing); Commonwealth v. Berry , 785 A.2d 994 (Pa.Super. 2001) (explaining complaint that court ignored defendant's rehabilitative needs upon sentencing implicates court's sentencing discretion).
A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right. Commonwealth v. Hunter , 768 A.2d 1136 (Pa.Super. 2001), appeal denied, 568 Pa. 695, 796 A.2d 979 (2001). Prior to reaching the merits of a discretionary sentencing issue:
[W]e conduct 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, 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).Commonwealth v. Evans , 901 A.2d 528, 533 (Pa.Super. 2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).
What constitutes a substantial question must be evaluated on a case-by-case basis. Commonwealth v. Paul , 925 A.2d 825, 828 (Pa.Super. 2007). 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." Commonwealth v. Sierra , 752 A.2d 910, 913 (Pa.Super. 2000) (internal citation omitted).
Generally, "[a]n allegation that a sentencing court failed to consider or 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), appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996) (internal citation and quotation marks omitted). See also Berry , supra (explaining allegation that sentencing court failed to consider specific mitigating factor generally does not raise substantial question; claim that sentencing court ignored appellant's rehabilitative needs failed to raise substantial question).
A claim of excessiveness can raise a substantial question as to the appropriateness of a sentence under the Sentencing Code, even if the sentence is within the statutory limits. Commonwealth v. Mouzon , 571 Pa. 419, 430, 812 A.2d 617, 624 (2002). Bald allegations of excessiveness, however, do not raise a substantial question to warrant appellate review. Id. at 435, 812 A.2d at 627. Rather, a substantial question will be found "only where the appellant's Rule 2119(f) statement 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...." Id.
"Generally, Pennsylvania law affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed. Any challenge to the exercise of this discretion ordinarily does not raise a substantial question." Commonwealth v. Prisk , 13 A.3d 526, 533 (Pa.Super. 2011). See Commonwealth v. Hoag , [665 A.2d 1212, 1214 (Pa.Super. 1995)] (stating an appellant is not entitled to a "volume discount" for his crimes by having all sentences run concurrently). In fact, this Court has recognized "the imposition of consecutive, rather than concurrent, sentences may raise a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment." Commonwealth v. Lamonda , 52 A.3d 365, 372 (Pa.Super. 2012) (en banc)[, appeal denied, 621 Pa. 677, 75 A.3d 1281 (2013)]. That is "in our view, the key to resolving the preliminary substantial question inquiry is whether the decision to sentence consecutively raises the aggregate sentence to, what appears upon its face to be, an excessive level in light of the criminal conduct at issue in this case." Prisk [, supra at 533].Commonwealth v. Austin , 66 A.3d 798, 809 (Pa.Super. 2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (2013) (some internal citations and quotation marks omitted) (holding appellant's challenge to aggregate sentence of 35-70 years' imprisonment for appellant's 96 offenses of sexual abuse of children did not raise substantial question; appellant's convictions stemmed from appellant's possession of 96 images of child pornography, which depicted numerous different children, majority of whom were engaged in sex acts with adult men and women; appellant was also depicted in some images having sex with child; trial court did not impose consecutive sentences for every count; court imposed concurrent sentences for 49 of 96 counts; trial court's exercise of discretion in this case did not result in sentence that is grossly disparate to appellant's conduct or patently unreasonable). But see Commonwealth v. Dodge , 957 A.2d 1198 (Pa.Super. 2008), appeal denied, 602 Pa. 662, 980 A.2d 605 (2009) (holding consecutive, standard range sentences on thirty-seven counts of theft-related offenses for aggregate sentence of 58½ to 124 years' imprisonment constituted virtual life sentence and was so manifestly excessive as to raise substantial question).
An earlier panel of this Court in Austin vacated and remanded for resentencing following the appellant's original sentence of 72-192 years' imprisonment, where the trial court had initially imposed consecutive periods of incarceration at the top end of the standard range for each of the appellant's 96 counts of possession of child pornography. Given the appellant's age of twenty-five (25) at sentencing, the prior panel of this Court concluded the sentence amounted to a virtual life sentence under the facts and circumstances of the case. See id. at 801.
On appeal, this Court will not disturb the judgment of the sentencing court absent an abuse of discretion. Commonwealth v. Fullin , 892 A.2d 843 (Pa.Super. 2006).
[A]n abuse of discretion is more than a mere error of judgment; thus, a sentencing court will not have abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will. In more expansive terms, our Court recently offered: An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.Commonwealth v. Walls , 592 Pa. 557, 564, 926 A.2d 957, 961 (2007) (internal quotation marks and citations omitted). "Where the sentencing court imposes a sentence within the guideline range, we must review to determine whether the trial court's sentence is 'clearly unreasonable.'" Dodge , supra at 1200 (citing 42 Pa.C.S.A. § 9781(c)(2)).
Instantly, Appellant did not raise in his Rule 1925(b) statement his complaints that the court ignored his rehabilitative needs or failed to consider specific mitigating factors, so those claims are waived. See Commonwealth v. Castillo , 585 Pa. 395, 888 A.2d 775 (2005) (holding issues not raised in Rule 1925(b) statement are waived on appeal).
Appellant's excessiveness claim that the court imposed a virtual life sentence appears on the surface to raise a substantial question. Nevertheless, we also recognize that the jury found Appellant guilty of fourteen (14) counts of sexual abuse against two young children, spanning a period of fifteen (15) months while Appellant was engaged in a relationship with the victims' mother and acted in a parental role. Significantly, the court imposed standard range sentences for each conviction and did not impose consecutive sentences for every count. At the same time, Appellant was not entitled to a "volume discount" for his multiple offenses. See Austin , supra; Hoag , supra.
Additionally, the court set forth on the record, at great length, its reasons for the sentence imposed. ( See N.T. Sentencing Hearing, 1/22/15, at 101-114; 121-22; R.R. at 381a-394a; 401a-402a) The court stated it considered Appellant's pre-sentence investigation ("PSI") report, which detailed Appellant's background, prior abuse as a child, mental health issues, and treatment history. See Commonwealth v. Fowler , 893 A.2d 758 (Pa.Super. 2006) (stating where sentencing court had benefit of PSI report, we can presume it was aware of relevant information regarding defendant's character and weighed those considerations along with mitigating statutory factors). The court also reviewed an inmate adjustment summary rating Appellant's treatment while incarcerated. Further, the court considered the impact of Appellant's crimes on the victims, victim impact statements, letters from Appellant's family and friends, and Appellant's rehabilitative needs. As well, the court specifically weighed the factors delineated in 42 Pa.C.S.A. § 9721(b) (setting forth general sentencing standards). The court further considered Appellant's testimony at trial, denying his guilt, and his general lack of remorse for his crimes. The court noted it found the victims' testimony at trial credible and commented on the fifteen-month span in which Appellant had abused the child victims. After imposing sentence, the court stated:
Now, [Appellant], when one hears these numbers of years, and that's all one hears, [he] may say that's a long, long sentence. But, [Appellant], I want you, your family, your friends, and I want the victims and our community to understand that while the sentence is chronologically long, when you consider each act which you perpetrated on these very young children, when you look at the different interests and protections of the victims, when you look at each social wrong that needs to be addressed by each criminal act you committed, when you look at the horror, harm, and trauma you caused that each of these crimes address, and when you look at them separately, and when you factor in the ages of the victim[s], the fact that you were in a position of a parental figure who's responsible to look after and protect these young children, when you assaulted them—sexually assaulted them instead, that when you threatened them, that there was great victim impact; that after six years of placement and treatment, you never once sought help or counseling to address your sexual issues, but rather continued to pray upon and sexually assault these young children. When you put all this together, it's clear that this is an appropriate sentence to address what occurred and to protect society.(N.T., 1/22/15, at 121-22; R.R. at 401a-402a). We accept the court's analysis and decline to deem the aggregate sentence imposed "clearly unreasonable" in light of the violent nature of the criminal conduct at issue. See Prisk , supra (holding appellant's challenge to discretionary aspects of sentence warranted no relief where court sentenced appellant to aggregate term of 633-1,500 years' imprisonment for 314 acts of sexual abuse of his stepdaughter on almost daily basis over course of six years; court did not impose consecutive sentences for every count, and appellant was not entitled to volume discount for his offenses; appellant's aggregate sentence was not excessive in light of violent criminal conduct at issue). Therefore, Appellant's challenge to the discretionary aspects of his sentence merits no relief. Accordingly, we affirm.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/4/2015
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