Opinion
1772 EDA 2022 J-S18036-23
08-18-2023
COMMONWEALTH OF PENNSYLVANIA v. EDWARD ROSS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
Appeal from the Judgment of Sentence Entered May 16, 2022 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001450-2020
BEFORE: PANELLA, P.J., DUBOW, J., and STEVENS, P.J.E. [*]
MEMORANDUM
STEVENS, P.J.E.
Edward Ross appeals from the May 16, 2022 aggregate judgment of sentence of 28 to 66 years' imprisonment, followed by 8 years' probation, imposed after a jury found him guilty of rape of a child, endangering the welfare of children, indecent assault of a person less than 13 years old, unlawful contact with a minor, attempted aggravated indecent assault, corruption of minors, and five counts of involuntary deviate sexual intercourse with a child ("IDSI"). Appellant was also ordered to undergo lifetime registration under revised Subchapter H of the Sex Offender Registration and Notification Act ("SORNA"), 42 Pa.C.S.A. § 9799.10-9799.42. After careful review, we affirm in part, vacate in part, and remand with instructions.
18 Pa.C.S.A. §§ 3121(c), 4304(a), 3126(a)(7), 6318(a)(1), 3121(a), 6301(a)(I)(ii), and 3123(b), respectively.
The trial court summarized the relevant facts of this case as follows:
[On March 28, 2020,] Victim, who at the time of trial was twelve years old, while spending time with her cousin, revealed a big secret. She told her cousin Appellant did bad things to her and put his private part in her mouth and made her do things she didn't want to do; she had never told anyone before because she was scared after Appellant warned her she would get in trouble by him if she did tell. She told her cousin not to tell anybody but the next morning at her first opportunity the cousin told her mother.
On April 3, 2020 Victim was interviewed at the Children's Advocacy Center by Crystal Gray. Victim stated, her mom's boyfriend TJ (Appellant), made her do "bad things" with him on more than one occasion. Victim stated in the beginning Appellant would "ask" Victim if she wanted to do it; Victim would say no but Appellant still made her do it. Victim said she would hide in her closet, under her bed, or under the covers, but he would always find her, grab her, and make her do it. Appellant would wait for her mom to leave for work, and then come for her, and they would go into her mother and Appellant's room. Victim described he forced her to "suck his private part" twice a day. Victim said she was five years old when the assaults began and they continued for a few years. Victim said Appellant would take his clothes off and lay in the bed and tell her to get on the bed and do it. Victim said she could see Appellant's private parts, chest, and legs. Appellant would make her suck on his private part. If Victim didn't do what Appellant said, he would scream at her and this would upset her. Victim said she would use her hands or her mouth and Appellant would yell at her if he could feel her teeth. Victim described Appellant's private part like a bottle with two circles at the bottom and it was dark brown. Victim described white stuff would gush out from a hole on Appellant's private part, and sometimes it would gush into her mouth and Appellant told her to hold it in; also sometimes it would get on her hands and it was gooey. Victim said she would have to rub
his private parts and it was Appellant's idea. Victim said Appellant would be lying on the bed looking at his phone and there would be moaning sounds coming from the phone. Victim said Appellant promised rewards, but she didn't want them; Victim just wanted it to stop. Once, Appellant gave her a dollar and some candy and Appellant told her to keep the game a secret. Victim stated Appellant would give her a high score the faster she would go, and she knew she would get a high score when he would scream out yes three times and she would get a reward. Victim also said Appellant "tried to go into her butt but it wouldn't fit" and she was crying because it "was wiggling and it hurt" and Appellant yelled "you stupid girl, it didn't fit." Victim said Appellant had his phone, a silver Samsung, and held it like he was recording. Victim said Appellant did these things when her mother was at work and she tried to tell her mom but Appellant would interfere; Victim said she tried to write a note and put it in the mail. Victim recalled these assaults went on for years.Trial court opinion (redacted), 10/31/22 at 1-3 (paragraph break added).
The pertinent procedural history, as gleaned from the certified record, is as follows: Appellant was subsequently arrested and charged with rape of a child, IDSI, and a litany of related offenses. A search warrant executed at Appellant's residence resulted in the recovery of various electronic devices whose search history revealed visits to over 200 pornography websites related to father-daughter or stepfather-stepdaughter sex. Notes of testimony, 1/26/22 at 189-224. On January 24, 2022, Appellant filed a motion in limine to preclude any evidence extracted from these electronic devices. The trial court denied Appellant's motion that same day.
On January 24, 2022 jury selection commenced. During jury selection, prospective juror number 42 indicated that her former brother-in-law had been convicted of "a similar crime" against her niece. The trial court denied Appellant's motion to strike prospective juror number 42 for cause, and Appellant utilized a peremptory strike. Notes of testimony, 1/24/22 at 129-133.
On January 25, 2022, Appellant proceeded to a jury trial before the Honorable Richard M. Cappelli. Following a three-day trial, Appellant was found guilty of rape of a child, endangering the welfare of children, indecent assault of a person less than 13 years old, unlawful contact with a minor, attempted aggravated indecent assault, corruption of minors, and five counts of IDSI. Following the completion of Sexual Offender Assessment Board evaluation, the trial court sentenced Appellant to an aggregate term of 28 to 66 years' imprisonment, followed by 8 years' probation, on May 16, 2022. Appellant subsequently filed a timely post-sentence motion that was denied by the trial court on June 1, 2022.
Thereafter, on June 30, 2022, Appellant filed a timely notice of appeal. On July 22, 2022, the trial court ordered Appellant to file a concise statement of errors complained of on appeal, in accordance with Pa.R.A.P. 1925(b). Appellant was granted an extension and ultimately filed his timely concise statement on September 1, 2022. The trial court filed a comprehensive, 54-page Rule 1925(a) opinion on October 31, 2022.
Appellant raises the following issues for our review:
I. Whether the trial court erred in denying Appellant's motion to strike for cause Prospective Juror #42, since the panelist is closely related to the victim of a crime similar to those alleged herein and could not commit to being fair and impartial?
II. Whether the trial court erred in denying Appellant's motion in limine and permitting the prosecution to admit evidence allegedly extracted from his electronic devices, including internet search terms and web history, since the evidence is irrelevant, constitutes inadmissible character or other act evidence, and any probative value is outweighed by the danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, and needlessly presenting cumulative evidence?
III. Whether the sentencing court's imposition of sexual offender registration is illegal and Appellant is entitled to less restrictive Subchapter I requirements, since the jury never made any offense date findings, and in any event, Subchapter H's more restrictive provisions are unconstitutional?
Appellant's brief at 7.
I. Motion to Strike Juror
Appellant first argues that the trial court abused its discretion in denying his motion to strike prospective juror number 42 for cause. Id. at 21.
The decision whether to disqualify a prospective juror is to be made by the trial judge based on the juror's answers and demeanor and will not be reversed absent a palpable abuse of discretion. Appellate courts defer to the trial court's assessment of a prospective juror's answers during voir dire because
the trial court is in the best position to assess the [prospective juror's] credibility and fitness to serve[.]
Most importantly, we should give great weight to the trial court judge's decision about striking jurors because the trial court judge not only hears the words that the potential juror speaks, but also the manner in which the juror says those words and is in a better position than an appellate court to evaluate the significance of any hesitancy of a potential juror[.]Commonwealth v. Delmonico, 251 A.3d 829, 839 (Pa.Super. 2021) (citation omitted; some brackets in original), appeal denied, 265 A.3d 1278 (Pa. 2021).
II. Motion in Limine & Admissibility of Evidence
Appellant next argues that the trial court abused its discretion in denying his motion in limine and permitting the Commonwealth to admit evidence "extracted from his electronic devices, including search terms, web history, legal inquiries, and detailed pornographic title list." Appellant's brief at 27.
A motion in limine is used before trial to obtain a ruling on the admissibility of evidence. It gives the trial judge the opportunity to weigh potentially prejudicial and harmful evidence before the trial occurs, thus preventing the evidence from ever reaching the jury. A motion in limine differs from a suppression motion in that a suppression motion is designed to preclude evidence that was obtained in violation of a defendant's constitutional rights, while a motion in limine precludes evidence that was constitutionally obtained but which is prejudicial to the moving party.Commonwealth v. Reese, 31 A.3d 708, 715 (Pa.Super. 2011) (citation omitted).
"Questions concerning the admissibility of evidence lie within the sound discretion of the trial court, and a reviewing court will not reverse the court's decision on such a question absent a clear abuse of discretion." Commonwealth v. Crosley, 180 A.3d 761, 768 (Pa.Super. 2018) (citation omitted), appeal denied, 195 A.3d 166 (Pa. 2018). "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." Id.
Following a thorough review of the record, including the briefs of the parties, the applicable law, and the well-reasoned opinion of the trial court, it is our determination that Appellant's first two claims on appeal warrant no relief. In its extensive 54-page opinion, the trial court comprehensively discussed each Appellant's first two allegations of error and concluded that they are without merit. We find that the trial court's conclusions are supported by competent evidence and are clearly free of legal error.
Specifically, we agree with the trial court that Appellant's motion to strike prospective juror number 42 for cause was properly denied, as the record demonstrated that this juror could be fair and impartial. Trial court opinion (redacted), 10/31/22 at 30-33. We further agree with the trial court that its decision to deny Appellant's motion in limine and admit the evidence extracted from his electronic devices was warranted, as this evidence was both relevant to the charges at hand and its probative value outweighed any unfair prejudice to Appellant. Id. at 33, 36-41. Accordingly, we adopt those relevant portions of the trial court's October 31, 2022 opinion as our own for purposes of this appellate review.
III. SORNA Registration
In his final claim, Appellant challenges the legality of the SORNA lifetime registration requirements imposed on him pursuant to Subchapter H. Appellant contends that he should be subject to the requirements of Subchapter I because "the jury never made any determinations regarding the alleged offense dates" nor specifically found that the offenses occurred after December 20, 2012. Appellant's brief at 33. Upon review, we are constrained to agree.
A challenge to the legality of a sentence "presents pure question of law. Our standard of review is de novo and our scope of review is plenary." Commonwealth v. Succi, 173 A.3d 269, 284 (Pa.Super. 2017) (citations omitted), appeal denied, 188 A.3d 1121 (Pa. 2018).
The General Assembly enacted SORNA II in response to the determination that aspects of SORNA I were unconstitutional in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), and Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2017). 42 Pa.C.S.A. § 9799.51(b)(4). As relevant to Appellant's claims, the General Assembly revised Subchapter H to apply only to individuals who committed a sexually violent offense on or after December 20, 2012. Id. § 9799.12 (defining "sexually violent offense"). The General Assembly also added Subchapter I, 42 Pa.C.S.A. §§ 9799.51-9799.75, to address those who committed designated offenses prior to December 20, 2012, if the offender was subject to registration requirements on that date. Id. § 9799.52.
Our Supreme Court has recognized that the registration requirements of Subchapter H, which are based on SORNA I, are more onerous than those under Subchapter I. Commonwealth v. Lacombe, 234 A.3d 602, 607 n.4, 626 (Pa. 2020) (declaring the Subchapter I registration requirements to be non-punitive). Nevertheless, based upon his convictions, Appellant would be subject to lifetime registration under either Subchapter. 42 Pa.C.S.A. §§ 9799.15(a)(3); 9799.55(b).
Instantly, the record reflects that Victim testified that Appellant's sexual abuse of her began when she was around eight years old, or in approximately 2017. Notes of testimony, 1/25/22 at 70. Additionally, Victim's father confirmed at trial that she lived at his residence until she was five years old, meaning the sexual abuse could not have happened any earlier than 2014. Id. at 139, 164-165. Based on the foregoing, Appellant clearly committed the aforementioned offenses at some point after the triggering date for Subchapter H, December 20, 2012. 42 Pa.C.S.A. § 9799.11(c).
Appellant, however, contends that pursuant to this Court's holding in Commonwealth v. Alston, 212 A.3d 526 (Pa. 2019), he should be subject to the requirements of Subchapter I because the jury did not specifically find that the offenses occurred after December 20, 2012. Appellant's brief at 34-35. Aston involved a defendant whose offenses occurred between May 28, 2009 to May 1, 2013, and the jury did not determine the dates of the offenses. Alston, 212 A.3d at 530. Relying upon Alleyne v. United States, 570 U.S. 99 (2013), and Muniz, the Alston Court held that absent "a specific finding by the chosen factfinder of when the offenses occurred, [an offender] is entitled to the lowest punishment." Id. Thus, the Alston Court remanded the case for imposition of the lesser restrictive requirements of Subchapter I. Id.
Similarly, in the instant matter, although Victim's testimony clearly supports that conclusion that Appellant sexually abused her after Subchapter H's triggering date of December 20, 2012, the jury's January 27, 2022 verdict is silent as to any offense dates. Accordingly, we are constrained to apply the holding of Alston to the instant case and conclude that Appellant is subject to Subchapter I. See id. at 529 n.4 (stating, "this Court is bound by existing precedent and continues to follow controlling precedent unless it is overturned by our Supreme Court[.]" (citation omitted)).
Based on the foregoing, we vacate the portion of Appellant's sentence imposing registration requirements under Subchapter H and remand for the trial court to amend the sentencing order and to instruct Appellant as to the requirements under Subchapter I. Appellant's May 16, 2022 judgment of sentence is affirmed in all other respects.
Judgment of sentence affirmed in part and vacated in part; case remanded with instructions. Jurisdiction relinquished.
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[*] Former Justice specially assigned to the Superior Court.