J-A11023-19 (Pa. Super. Ct. Jun. 25, 2019)

J-A11023-19 No. 1360 MDA 2018




Appeal from the Judgment of Sentence Entered March 7, 2018
In the Court of Common Pleas of Tioga County Criminal Division at No(s): CP-59-CR-0000163-2017 BEFORE: BOWES, J., OLSON, J., and STABILE, J. MEMORANDUM BY OLSON, J.:

Appellant, Ian Francis Mitchell, appeals from the judgment of sentence entered March 7, 2018, as made final by the denial of post-sentence motions by order dated August 8, 2018. We affirm.

The following factual summary is based on the transcripts of testimony from Appellant's trial. On March 8, 2017, the victim (hereinafter "I.D.") was ten years old. I.D. testified that on the night of March 8, 2017, her step-father, Appellant, entered her bedroom and was not wearing any clothes. I.D. testified that Appellant got into bed with her and removed her clothing. Appellant then touched the outside of I.D.'s vagina with his hand, mouth, and penis. She testified that he tried to put his hand, mouth, and erect penis inside of her but she managed to get him away by "kicking and punching, and yelling." N.T., 1/25/2018, at 76. I.D. indicated that Appellant left the room and came back a couple of times and tried the same thing each time. Finally, when Appellant left the room, I.D. left the house. At first, she hid outside, then she returned to the house to get a pair of boots. Then, wearing small pajamas and large boots, I.D. walked a quarter of a mile to a neighbor's house—the home of a girl with whom she went to school. It was 48 degrees and windy that night. One of the neighbors testified that I.D. appeared on her doorstep crying hysterically and that she said, "help, my step-dad is trying to rape me." N.T., 1/24/2018, at 174. The neighbors called the police and an investigation followed.

The neighbor's husband testified that I.D. said, "[c]an you please help me, my step-father tried to rape me, again?" N.T., 1/24/2018, at 185.

During the investigation, I.D. took part in a forensic interview in which she described what happened to her. In the interview, I.D. used childish words such as "pee pee" when referring to her step-father's penis. At trial, the defense introduced I.D.'s diary into evidence. The diary contains entries that include vulgar words and descriptions of sexual scenarios. At trial, I.D. testified that she did not write all of the entries in the diary. She testified, "me and my friends write in it." N.T., 1/25/2018, at 122. I.D. also testified that March 7, 2017 was not the first time that Appellant assaulted her. She indicated that Appellant assaulted her regularly, at least five or more times.

The trial court summarized the procedural history of the case as follows.

[Appellant] was charged with six (6) counts of criminal attempt rape of a child, [a] felony in the [first] degree, six (6) counts [of] indecent assault of a person less than 13 years of age, [a] felony in the [third] degree, six (6) counts of simple assault, [a] misdemeanor of the [second] degree, and one (1) count of

harassment [], a summary offense. The court held a jury trial from January 24, 2018 through January 26, 2018[,] after which the jury convicted [Appellant] of four (4) counts each of criminal attempt rape of a child, indecent assault of a person less than 13 years of age, and simple assault and the court found [Appellant] guilty of one count of harassment[.]

On March 7, 2018 the court sentenced [Appellant] to a minimum period of 84 months['] incarceration and a maximum period of 180 months['] incarceration on each criminal attempt rape conviction, [with the sentences to run consecutively], for an aggregate sentence of a minimum of 336 months [of] incarceration and a maximum of 720 months [of] incarceration. The court also sentenced [Appellant] to a minimum period of 12 months['] incarceration and a maximum period of 84 months['] incarceration on the first three convictions of indecent assault of a person less than 13 years of age and ran each of those sentences concurrently with the fourth count of criminal attempt rape of a child. On the fourth indecent assault conviction, the court sentenced [Appellant] to a probationary term of five (5) years and ran that sentence consecutively with the fourth criminal attempt rape conviction and the first three indecent assault convictions. In addition, the court sentenced the [Appellant] to a minimum period of [nine] months['] incarceration and a maximum period of 24 months['] incarceration on each of the simple assault convictions and ran them each concurrently with the fourth criminal attempt rape conviction and the first three indecent assault convictions. Finally, the court also ordered the [Appellant] be subjected to the registration requirements pursuant to the Sexual Offender Registration Notification Act as a Tier [Three] [O]ffender for each of the criminal attempt rape and indecent assault convictions.[]

Trial Court Opinion, 8/8/2018, 1-2 (unnecessary capitalization removed and footnote omitted). After some confusion regarding Appellant's representation and the timeliness of Appellant's motion to modify sentence and other post-sentence motions, the trial court permitted Appellant to file the post-sentence motions nunc pro tunc, and accepted them as timely. The trial court denied the motions by opinion and order dated August 8, 2018. This appeal followed.

Appellant's post-sentence motions requested relief based on supposed after-discovered evidence, in the form of handwriting analysis of I.D.'s diary. The analysis showed that I.D., in fact, wrote the page of the diary that included a description of sexual acts she wanted to perform with "hot boys." Defense Exhibit 2.

Appellant filed a notice of appeal on August 17, 2018. On August 20, 2018, the trial court issued an order instructing Appellant to file a concise statement of matters complained of on appeal pursuant to Pa.R.A.P. 1925(b). On August 31, 2018, Appellant complied. On October 12, 2018, the trial court issued its 1925(a) opinion, which adopted the reasoning of its August 8, 2018 opinion.

Appellant presents the following issues for our review.

1. Were the verdicts for four counts of attempted rape[], four counts of indecent assault [], four counts of simple assault[], and one count of summary harassment[], not supported by sufficient evidence? Did the [c]ourt err[] since the jury never rendered a verdict on count fifteen (simple assault)? Was the testimony and evidence [] based purely on [speculation, conjecture, and false testimony]? Was the evidence so contradictory and speculative that fundamental due process was violated pursuant to the Fourteenth Amendment of the United States Constitution?

2. Were the aforementioned verdicts against the weight of the evidence? As to count fifteen of simple assault, did the jury not reach a verdict? Were the verdicts of guilt such that the verdicts should shock the conscience of this Court since the verdicts were based on speculative evidence and conjecture and false testimony? Did the verdict violate the Fourteenth Amendment of the United States Constitution?

3. Did Judge Wheeler err in not granting a new trial on after discovered evidence [from] the handwriting expert and [I.D.]'s

mother [showing] that the victim wrote the diary entries, which contained explicit and shocking entries about wanting boys to put their penis in her body and things of that nature, when [I.D.] denied at trial writing these entries and said her friend, J[.], wrote the entries[?] Did Judge Wheeler err in holding that this was used only for impeachment [of] credibility when, in fact, this false testimony undermined the entire truth finding process?

4. Did the Assistant District Attorney engage in prosecutorial misconduct during the trial when she asserted [I.D.] did not write the diary entries, but her friend, J[.], did? Did the Assistant District Attorney act improperly and mislead the jury when the Assistant District Attorney on her redirect examination of [I.D.], had her say that many entries were written by her friend, "J", and then argued [I.D.] did not write the diary page? Did the Assistant District Attorney blatantly mislead the jury and present false testimony on an extremely important issue and thereby taint the jury by her misconduct when after the trial, the Assistant District Attorney asserted [I.D.] did write the diary entries?

5. Was trial counsel ineffective and was the ineffectiveness apparent on the trial record when trial counsel allowed and/or introduced unrelated, prior conduct of [Appellant] that clearly tainted the jury and did not ask for a curative instruction?

6. Were the consecutive sentences imposed by Judge Wheeler resulting in 28 years to 60 years of incarceration an abuse of discretion? Did Judge Wheeler fail to state adequate reasons? Did Judge Wheeler fail to properly evaluate the requirement under 42 Pa.C.S.A. 9721(b), including the rehabilitative needs of [Appellant] and his family? Although the individual sentences are within the [s]entencing [g]uidelines, was the sentence collectively an abuse of discretion and a totally excessive sentence?

7. Did Judge Wheeler err in not allowing the defense to have a psychiatric examination of the alleged victim, [I.D.], when there were clearly psychological issues as to the competency and truthfulness of [I.D.]'s testimony? Did this error violate fundamental due process under the Fourteenth Amendment of the United States Constitution?

Appellant's Brief at 13-17.

Appellant's issues are essentially the same as the issues he presented in his post-sentence motions. We have reviewed the parties' briefs, the record, and the trial court's comprehensive opinion dated August 8, 2018. We conclude that the trial court's opinion adequately and accurately disposes of the issues on appeal with the exception of issues number four and six. Accordingly, we adopt the trial court's opinion as our own with regard to the other five issues, and we will address only the allegation of prosecutorial misconduct and the challenge to the discretionary aspects of Appellant's sentence.

As such, we instruct the parties to attach the August 8, 2018 trial court opinion to all future filings pertaining to our disposition of this appeal.

In the fourth issue, Appellant alleges that Assistant District Attorney Tiffany Cummings committed prosecutorial misconduct by "allow[ing] and assist[ing] in the presentation of false evidence to the jury." Appellant's Brief at 73. Specifically, Appellant argues that Attorney Cummings encouraged I.D. to provide false testimony and "brought out that J[.] wrote some of [the] entries [in the victim's diary]." Appellant's Brief at 69. This assertion is contradicted by the trial record. On cross-examination, defense counsel, William Korey, Esquire, asked I.D. about the contents of her diary. Attorney Korey referred I.D. to a specific entry, and it appears from the transcript that I.D. had trouble finding the entry at first.

[Attorney Korey]: Have you found it?

[I.D.]: Yes.

[Attorney Korey]: Okay, could you read it, so that I'm not putting words in your mouth, so the [j]ury could hear it?

[I.D.]: Most of this actually isn't mine.

[Attorney Korey]: Um-hum (in the affirmative).

[I.D.]: Could I say, like—could I say something?

[Attorney Korey]: Why don't you read it and then you can clarify it for us, okay?

[I.D.]: "This is what I want to do to some really hot boys; I want the boy to stick his dick in my vagina and ass, and have sex with them all day."

[Attorney Korey]: Okay; and then Attorney Cummings will be able to ask you about that and you'll be able to kind of explain some of that.

N.T., 1/25/2018, at 119 (emphasis added).

The following exchange took place between Attorney Cummings and I.D. on redirect examination.

[Attorney Cummings]: You wanted to explain something about the writing in your diary. Do you want to go ahead and tell us what you wanted to say when you were claiming that you didn't write that one page?

[I.D.]: Me and my friend, ["J."], wrote some of—wrote some of those things.

[Question clarifying the name of I.D.'s friend]

[Attorney Cummings]: So, are you saying that both you and your friend wrote in this diary?

[I.D.]: Yes.

[Attorney Cummings]: Were you saying those specific words [sexually explicit words] were not yours?

[I.D.]: Some of them were and some of them weren't.


[Attorney Cummings]: Okay. Even if you, whether you were or were not the person who actually wrote the words dick, vagina and ass on that page, did you know those words as of March, 2017?

[I.D.]: Yes.

N.T., 1/25/2018, at 127-128.

"Prosecutorial misconduct includes actions intentionally designed to provoke the defendant into moving for a mistrial or conduct by the prosecution intentionally undertaken to prejudice the defendant to the point where he has been denied a fair trial." Commonwealth v. Chmiel , 777 A.2d 459, 464 (Pa. Super. 2001). Preliminarily, Attorney Cummings did not "bring out" the testimony as Appellant alleges. Attorney Cummings simply asked I.D. to clarify her testimony. Attorney Korey specifically told I.D. that Attorney Cummings would do so after refusing to allow I.D. to explain herself on cross-examination. I.D. began to explain that she did not write all of the diary during cross-examination by Attorney Korey.

While Appellant's handwriting expert concluded that the page in question was written by I.D., there is absolutely no support in the record for Appellant's bald assertion that Attorney Cummings somehow knew I.D. was not being truthful in her response. Therefore, Attorney Cummings did not intentionally elicit false testimony. Moreover, Attorney Cummings clarified that whether or not I.D. was the one who wrote the entry, she was familiar with those explicit words. Appellant places a great deal of emphasis on the diary and the fact that I.D. allegedly lied about writing that page. Appellant introduced the diary to show that I.D. knew the types of graphic words that she pretended not to know in her forensic interview. I.D. admitted as much. Therefore, Appellant was not prejudiced in any way by this allegedly false testimony.

Notably, I.D. also explained quite cogently why she pretended not to know the words in her interview,

[Attorney Korey]: [C]an you help us understand why you testify—excuse me, why you make statements at one time in the forensic interview where you have a hard time describing body parts and you call your step-father's penis a pee pee and yet you're very descriptive in your diary of vagina, penis, and ass—

[I.D.]: --because—because when you're writing things down, it's not talking to an adult. I'm sure when you're a kid, you don't say those kinds of things to adults, but you can say that to your friends or you can write it in your diary.

Appellant also argues that the Assistant District Attorney misled the jury when she stated during her closing argument that I.D. did not write the particular page in the diary that contained the explicit words. According to Appellant, this misrepresentation was further exacerbated when the Assistant District Attorney indicated in the supplemental reply to Appellant's post-sentence motions that I.D. did write the page in question. Appellant argues that these representations by the Assistant District Attorney raise "very serious concerns about the integrity of the prosecution" and places the "integrity of the trial . . . at issue." Appellant's Brief at 73. These arguments are meritless. Nothing in the record leads this Court to believe that the Assistant District Attorney lacked integrity or that her actions placed the integrity of the entire trial in question. To the contrary, the Assistant District Attorney acted professionally, responsibly and appropriately at all relevant times. The representations made by the Assistant District Attorney were based upon the information that she had at the time. As I.D.'s statements regarding the authorship of the diary were clarified during and after trial, the Assistant District Attorney properly represented her understanding of I.D.'s statements. The record does not contain any proof of prosecutorial misconduct. Appellant's fourth claim fails.

Turning to the sixth issue, Appellant challenges the discretionary aspects of his sentence. The trial court addressed this issue in its opinion of August 8, 2018. We agree with the trial court's assessment, but to dispose of the issue in the clearest way possible, we explain why Appellant failed to present a substantial question regarding the propriety of his sentence.

Pursuant to statute, Appellant does not have an automatic right to appeal the discretionary aspects of his sentence. See 42 Pa.C.S.A. § 9781(b). Instead, Appellant must petition this Court for permission to appeal the discretionary aspects of his sentence. Id. In order to reach the merits of a discretionary sentencing challenge,

we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his or her

issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the Sentencing Code.

Commonwealth v
. Foust
, 180 A.3d 416, 439 (Pa. Super. 2018) (cleaned up). Appellant's appeal is timely, he preserved the issue and his brief contains a concise statement of reasons relied upon in accordance with Pa.R.A.P. 2119(f). However, Appellant's concise statement fails to raise a substantial question that the sentence is inappropriate.

In his 2119(f) statement, Appellant argues that his consecutive sentences are "mean[-]spirited and harsh[.]" Appellant's Brief at 46. Appellant's sentence for each charge is within the standard guideline range. See 204 Pa.C.S.A. § 303, et seq.

[A] defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.

Commonwealth v
. Dodge
, 77 A.3d 1263, 1270 (Pa. Super. 2013). Appellant's statement contains slightly more than a bald claim of excessiveness, in that he mentions that the sentencing court failed to consider Appellant's rehabilitative needs. However, failure to adequately consider mitigating factors generally does not raise a substantial question. Commonwealth v. Moury , 992 A.2d 162, 171 (Pa. Super. 2010). "Moreover, where, as here, the sentencing court had the benefit of a pre-sentence investigation report, 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. Rhoades , 8 A.3d 912, 919 (Pa. Super. 2010) (internal quotations and citations omitted). As such, Appellant's case - a prosecution involving serial acts of attempted sexual violence against a child member of his own family - does not involve circumstances under which the application of the guidelines is clearly unreasonable. Thus, Appellant failed to present a substantial question, and, he is not entitled to appeal the discretionary aspects of his sentence. Appellant is not entitled to relief.

Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 06/25/2019

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N.T., 1/25/2018, at 121.