J-A29045-20 No. 704 MDA 2020
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered October 15, 2019
In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0005778-2018 BEFORE: DUBOW, J., KUNSELMAN, J., and COLINS, J. MEMORANDUM BY COLINS, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Curtis Govan, Jr., appeals from the aggregate judgment of sentence of 16 to 40 years of confinement followed by five years of probation, which was imposed after his jury trial convictions for rape by forcible compulsion, involuntary deviate sexual intercourse ("IDSI") by forcible compulsion, aggravated indecent assault ("AIA") by forcible compulsion, terroristic threats with intent to terrorize another, unlawful restraint -- holds another in a condition of involuntary servitude, simple assault, resisting arrest or other law enforcement, and public drunkenness and similar misconduct. We affirm.
18 Pa.C.S. §§ 3121(a)(1), 3123(a)(1), 3125(a)(2), 2706(a)(1), 2902(a)(2), 2701(a)(1), 5104, and 5505, respectively.
In its opinion, the trial court fully and correctly set forth the relevant facts of this case. See Trial Court Opinion, dated July 6, 2020, at 3-8. Therefore, we have no reason to restate them at length here.
For convenience of the reader, we briefly note that, in the early hours of October 6, 2018, Appellant -- who was unknown to the victim -- followed her home from a restaurant-saloon on Second Street in Harrisburg, jumped her as she attempted to enter her residence, beat her and dragged her to the ground, raped her vaginally and anally with his penis, and penetrated her anally with his fingers. Id. at 3, 6-7, 15 (citations to the record omitted). Roger Corigliano was walking home on Second Street when he heard the victim screaming and called 911; when police arrived, Appellant refused to stop assaulting the victim and lied that she was his girlfriend. Id. at 3-5 (citations to the record omitted). After multiple requests by police to step away from the victim, Appellant finally did, and the victim immediately told police that she had been raped. Id. at 5, 8 (citations to the record omitted). Appellant then fought with the officers, requiring one officer to deploy his Taser on Appellant, and three officers were needed to handcuff him. Id. at 5 (citations to the record omitted). The victim was brought to Harrisburg Hospital, where she asked for her boyfriend to come and be with her before giving a recorded statement to police. Id. (citations to the record omitted).
"A jury trial was held before th[e trial c]ourt from July 22 through 24, 2019[.]" Id. at 2. At trial, defense counsel implied in her opening statement that the victim was lying about the fact that she did not know Appellant, who had been at the same restaurant-saloon as her on the night of the assault, because she was afraid of her boyfriend. N.T., 7/22/2019, at 75-76. Defense counsel also cross-examined the victim about whether she knew Appellant, whether she was afraid of her boyfriend, and why she wanted her boyfriend at the hospital before she gave a statement to police. N.T., 7/23/2019, at 144-54. During the testimony of an officer who responded to the 911 call, the Commonwealth played the recorded statement that the victim had given to police at the hospital on the night of the attack, Commonwealth Exhibit 79, over Appellant's objection. N.T., 7/23/2019, at 183, 186.
Immediately before closing arguments, Appellant "respectfully request[ed] a drop count of indecent, the misdemeanor[.]" N.T., 7/24/2019, at 421. At first, Appellant did not state of what charge indecent assault should be considered a lesser-included count. See id. When the trial court answered that Appellant was already charged with AIA, Appellant added, "The only, I guess arguable drop count that I could see would be just strictly the rape, if Your Honor was inclined to do a drop count, I would say attempted rape versus indecent assault." Id. at 421-22. The trial court denied Appellant's request, explaining: "[The court] gave [Appellant] the opportunity to correct the verdict slip, the only thing that was corrected, I think was one matter, so no drop counts were requested, so I'm gonna deny [the] request." Id. at 422.
We note that Appellant was never charged with "attempted" rape, only with the completed crime.
Following his convictions for the aforementioned crimes, "[s]entencing was deferred for an evidence-based pre-sentence investigation, as well as an evaluation by the Sexual Offenders Assessment Board[.]" Trial Court Opinion, dated July 6, 2020, at 2. On October 15, 2019, the trial court sentenced Appellant to consecutive terms of seven to twenty years of confinement for rape, seven to fifteen years of confinement for IDSI, and two to five years of confinement followed by five years of probation for AIA; he received no further penalty on the remaining counts.
At the time of sentencing, the offense gravity score ("OGS") for the charges of Rape and IDSI was 12. Based on the OGS of 12 and prior record score of zero, the standard range for Counts 1 (Rape) and 2 (IDSI) were forty-eight (48) to sixty-six (66) months, and seventy-eight (78) months aggravated. . . . [T]he sentences at Counts 1 and 2 are six (6) months above the aggravated sentencing guideline.Trial Court Opinion, dated July 6, 2020, at 18.
Appellant, who was represented by counsel, filed a pro se notice of appeal on November 14, 2019. The trial court did not send the notice to this Court; instead, it forwarded it to counsel pursuant to Pa.R.Crim.P. 576.
As hybrid representation is not permitted in the Commonwealth, our courts "will not accept a pro se motion while an appellant is represented by counsel; indeed, pro se motions have no legal effect and, therefore, are legal nullities." Commonwealth v. Williams , 151 A.3d 621, 623 (Pa.Super. 2016) (citation omitted).
However, when a counseled defendant files a pro se notice of appeal, the appeal is not a legal nullity and has legal effect. Commonwealth v. Cooper , 611 Pa. 437, 27 A.3d 994, 1007
(2011). While a defendant does not have a right to hybrid representation, "there is a right of appeal pursuant to Article 5, § 9 of the Pennsylvania Constitution." Williams , 151 A.3d at 624 (citing Commonwealth v. Ellis , 534 Pa. 176, 626 A.2d 1137 (1993)). "Because a notice of appeal protects a constitutional right, it is distinguishable from other filings that require counsel to provide legal knowledge and strategy in creating a motion, petition, or brief." Williams , 51 A.3d at 624.Commonwealth v. Hopkins , 228 A.3d 577, 580-81 (Pa. Super. 2020). Accordingly, Appellant's pro se notice of appeal should have been deemed timely and given legal effect, but it was never entered with this Court.
On December 10, 2019, Appellant, pro se, filed a petition filed under the Post Conviction Relief Act ("PCRA"), contending that his trial counsel was ineffective for failing to "file any post-trial motions, or a notice of appeal as [Appellant] requested." PCRA Petition, 12/10/2019, at 4. After the PCRA court appointed counsel, a joint stipulation was filed on March 10, 2020, stating: "The Commonwealth and counsel for [Appellant] agree that [Appellant]'s post-sentencing and direct appeal rights should be reinstated and that [PCRA counsel] should remain as [Appellant]'s counsel to perfect [Appellant]'s direct appeal." Joint Stipulation as to Reinstatement of Appellate Rights, 3/10/2020, at ¶ 6. On March 12, 2020, the trial court entered an order that Appellant's "direct appellate rights are REINSTATED." Order, 3/12/2020 (emphasis in original). On March 16, 2020, Appellant's counsel filed a post-sentence motion for modification of sentence, which the trial court denied on April 27, 2020. Counsel filed a timely notice of appeal on May 8, 2020.
The notice of appeal states that the appeal "stem[s] from the denial of the Nunc Pro Tunc Motion to Modify Sentence on the 27th day of April 2020[,]" but the appeal properly lies from the judgment of sentence imposed on October 15, 2019. Appellant filed his statement of errors complained of on appeal on May 18, 2020. The trial court entered its opinion on July 6, 2020.
Appellant presents the following issues for our review:
A. Whether the trial [c]ourt erred in denying the Appellant's Nunc Pro Tunc Post-Sentence Motion for Modification where the record is devoid of legitimate reasons to support the sentence he received which were outside and above the aggravated range of the sentencing guidelines for both the Rape and IDSI offenses; and trial court further improperly imposed the sentence outside the aggravated range of the sentencing guidelines without noting the sentencing guidelines and without providing an adequate explanation on the record.Appellant's Brief at 3 (suggested answers omitted).
B. Whether the trial [c]ourt erred in failing to merge the [AIA] sentence with either the rape or the [IDSI] counts in violation [of] 42 Pa.C.S. § 9765.
C. Whether the trial [c]ourt erred by admitting into evidence, over trial counsel's objection, as a prior consistent statement[,] a recorded audio statement, Commonwealth Exhibit 79, of [the victim] when there had been no assertion of recent fabrication or of any new corrupt motive by Appellant's trial counsel.
D. Whether the trial [c]ourt erred by not allowing for the jury to consider, and by not charging the jury with, the lesser charge of indecent assault as requested by trial counsel.
Appellant first challenges the discretionary aspects of his sentence.
Challenges to the discretionary aspects of sentencing do not entitle an appellant to an appeal as of right. 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. Manivannan , 186 A.3d 472, 489 (Pa. Super. 2018) (quotation marks and some citations omitted), reargument denied (July 7, 2018). In the current case, Appellant filed a timely notice of appeal, preserved his issue in a post-sentence motion, and included a statement in his brief pursuant to Pa.R.A.P. 2119(f) ("Rule 2119(f) Statement"). Appellant's Brief at 15-19. The final requirement, whether the question raised by Appellant is a substantial question meriting our discretionary review, "must be evaluated on a case-by-case basis. 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." Manivannan , 186 A.3d at 489 (quotation marks and some citations omitted).
In his Rule 2119(f) Statement, Appellant alleges that several substantial questions exist, thereby compelling appellate review. First, he asserts that, when the trial court imposed his sentence, it failed to discuss the sentencing guidelines or to explain why "the Rape and IDSI counts justified a sentence above the aggravated range." Appellant's Brief at 18. A claim that a trial court failed to state its reasons for deviating from the guidelines and for imposing a sentence at or above the aggravated range presents a substantial question for review. Commonwealth v. Garcia-Rivera , 983 A.2d 777, 780 (Pa. Super. 2009); Commonwealth v. Fullin , 892 A.2d 589, 592-93 (Pa. Super. 2005).
Additionally, Appellant contends that the trial court failed to consider his rehabilitative needs and the need for protection of the public. Appellant's Brief at 18. Section 9721(b) requires the sentencing court to "follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant." Appellant's arguments about his rehabilitative needs and protection of the public therefore raise substantial questions. See Commonwealth v. Buterbaugh , 91 A.3d 1247, 1266 (Pa. Super. 2014) (en banc) ("[a]rguments that the sentencing court failed to consider the factors proffered in 42 Pa.C.S. § 9721 does present a substantial question" (citation omitted)).
Finally, Appellant maintains that the trial court's imposition of an excessive sentence while failing to consider the presence of mitigating circumstances also raises a substantial question. Appellant's Brief at 18. "[A] substantial question exists when the defendant asserts both a claim of excessiveness and the trial court's failure to take mitigating circumstances into account." Commonwealth v. Gonzalez , 109 A.3d 711, 731 n.38 (Pa. Super. 2015); see also Commonwealth v. Mulkin , 228 A.3d 913, 916 (Pa. Super. 2020) (allegation that sentencing court ignored mitigating evidence when imposing an aggravated range sentence raises substantial question). Accordingly, Appellant's assertion that the trial court imposed an allegedly excessive sentence above the aggravated range without considering mitigating factors likewise raises a substantial question.
Having found Appellant's sentencing challenges merit our discretionary review, we turn to our standard of review:
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 partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.Commonwealth v. Lekka , 210 A.3d 343, 350 (Pa. Super. 2019) (citation omitted).
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinion of the Honorable William T. Tully, we conclude Appellant's issue merits no relief. The trial court opinion comprehensively discusses and properly disposes of that question. See Trial Court Opinion, dated July 6, 2020, at 16-20 (finding: the trial court did not err by sentencing Appellant above the aggravated range for rape and IDSI; the facts of this case were "disturbing" and a "random crime" that "everybody" "fears"; at the time of sentencing, the trial court noted on the record that it was "sympathetic to [Appellant]'s past, and . . . glad that [he is] amenable to treatment that is necessary" and would "take into consideration rehabilitative needs" (quoting N.T., 10/15/2019, at 19-23); the trial court added six months above the aggravated range for the sentences for rape and IDSI in lieu of sentencing Appellant to additional consecutive penalties for terrorist threats, unlawful restraint, simple assault, resisting arrest, and public drunkenness).
Next, Appellant argues that "[t]he trial court erred in not merging the [AIA] sentence with the Rape/IDSI Counts . . . in violation 42 Pa.C.S.A. § 9765." Appellant's Brief at 27-28.
A claim that crimes should have merged for sentencing purposes raises a challenge to the legality of the sentence." Commonwealth v. Leaner , 202 A.3d 749, 784 (Pa. Super.), appeal denied, 216 A.3d 226 (Pa. 2019). "When reviewing the legality of a sentence, our standard of review is de novo and our scope of review is plenary." Lekka , 210 A.3d at 355 (citation omitted).
No crimes shall merge for sentencing purposes unless the crimes arise from a single criminal act and all of the statutory elements of one offense are included in the statutory elements of the other offense. Where crimes merge for sentencing purposes, the court may sentence the defendant only on the higher graded offense.42 Pa.C.S. § 9765.
Again, after a thorough review of the record, we conclude that the trial court did not err by not merging the convictions for purposes of sentencing, because the evidence established that each of the crimes charged was a separate and distinct act. Appellant committed rape when he penetrated the victim vaginally with his penis. Trial Court Opinion, dated July 6, 2020, at 7. He committed IDSI when he penetrated the victim anally with his penis. Id. He committed AIA when he penetrated the victim anally with his fingers. Id. at 15. Thus, the charges of rape, IDSI, and AIA were not a "single criminal act" as required by Section 9765 for merger of sentences, and Appellant's second issue merits no relief.
Appellant next contends that "[t]he trial court erred in admitting into evidence as a prior consistent statement a recorded statement given by [the victim] . . . to the police at Harrisburg Hospital on the same day as the alleged incident." Appellant's Brief at 33.
"The admissibility of evidence is a matter within the sound discretion of the trial court and will be reversed only where there is a clear abuse of discretion." Commonwealth v. Clemons , 200 A.3d 441, 474 (Pa. 2019) (citation omitted).
Evidence of a witness's prior consistent statement is admissible to rehabilitate the witness's credibility if the opposing party is given an opportunity to cross-examine the witness about the statement and the statement is offered to rebut an express or implied charge of fabrication, bias, improper influence or motive, or faulty memory and the statement was made before that which has been charged existed or arose[.]Pa.R.E. 613(c)(1).
During opening statements and cross-examination, defense counsel challenged the victim's credibility, alleging that she was lying about knowing Appellant, because she was afraid of her boyfriend. N.T., 7/22/2019, at 75-76; N.T., 7/23/2019, at 144-54. The victim's prior consistent statement, made on the night of the incident and therefore before any charge of fabrication arose, thus was properly admitted to rebut said implied charge of fabrication and to rehabilitate her credibility pursuant to Pa.R.E. 613(c)(1). Accordingly, Appellant's third challenge merits no relief.
Finally, Appellant alleges that "[t]he trial court erred not charging the jury of the lesser and included offense of indecent assault[,]" because the victim "was less than clear concerning the Rape/IDSI[.]" Appellant's Brief at 36-37.
"[O]ur standard of review when considering the denial of jury instructions is one of deference — an appellate court will reverse a court's decision only when it abused its discretion or committed an error of law." Commonwealth v. Baker , 24 A.3d 1006, 1022 (Pa. Super. 2011) (citation omitted).
Appellant broached the subject of a lesser-included charge immediately before closing argument. N.T., 7/24/2019, at 421. However, Appellant had been given the verdict slip - which did not include indecent assault -- earlier in the trial, but failed to request the addition of this lesser-included charge at that time. Id. at 422. Failure to object to a particular verdict sheet constitutes waiver of its use. Commonwealth v. duPont , 730 A.2d 970, 984-85 (Pa. Super. 1999); see also Commonwealth v. Houck , 102 A.3d 443, 451 (Pa. Super. 2014) ("the failure to make a timely and specific objection before the trial court at the appropriate stage of the proceedings will result in waiver of the issue"). By failing to raise the issue of a lesser-included offense at the time that he was given the verdict sheet, Appellant has waived any claim that the jury should have been instructed on such a charge.
We further note that, at trial, Appellant never requested a jury charge on indecent assault as a lesser-included offense of IDSI, only as lesser-included offense of rape. N.T., 7/24/2019, at 422. Accordingly, his argument in his brief that an instruction on indecent assault should have been given as a lesser-included offense of IDSI is being raised for the first time on appeal. "Issues not raised in the trial court are waived and cannot be raised for the first time on appeal." Pa.R.A.P. 302(a). Consequently, Appellant's claim that a charge should have been given for indecent assault as a lesser-included offense of IDSI is waived for this reason as well.
Consequently, we need not reach the question of whether indecent assault would properly be considered a lesser-included offense of rape given the facts of this case. See , e.g., Commonwealth v. Lomax , 8 A.3d 1264, 1268 (Pa. Super. 2010) (where appellant's commission of section 3121(c) rape of a child and section 3121(a)(7) indecent assault were both based on the same act of penetration, these convictions merged); Commonwealth v. Baraniak , 504 A.2d 931, 934 (Pa. Super. 1986) ("indecent assault which merges with, and is a lesser included offense of, attempted rape"). --------
For the reasons set forth above, we affirm, partially on the basis of the trial court's opinion. The parties are instructed to attach the opinion of the trial court in any filings referencing this Court's decision.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 02/22/2021
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