Opinion
J-S43038-15 No. 3451 EDA 2014
09-09-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. MARCUS J. DUGAS Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 29, 2014
In the Court of Common Pleas of Monroe County
Criminal Division at No(s): CP-45-CR-0001797-2013; CP-45-CR-0001798-2013
BEFORE: GANTMAN, P.J., PANELLA, J., and OLSON, J. MEMORANDUM BY GANTMAN, P.J.:
Appellant, Marcus J. Dugas, appeals from the judgment of sentence entered in the Monroe County Court of Common Pleas, following his jury trial convictions for one count each of aggravated assault, rape by forcible compulsion, involuntary deviate sexual intercourse ("IDSI"), recklessly endangering another person ("REAP"), burglary, unlawful restraint, false imprisonment, endangering the welfare of children ("EWOC"), and harassment, and two counts each of simple assault and terroristic threats. We affirm.
18 Pa.C.S.A. §§ 2702(a)(1); 3121(a)(1); 3123(a)(1); 2705; 3502(a)(1); 2902(a)(1); 2903(a); 4304(a)(1); 2709(a)(1); 2701(a)(1); 2706(a)(1), respectively.
The relevant facts and procedural history of this case are as follows. On June 15, 2013, L.V. reported a domestic disturbance to the police. L.V. told the responding officers that Appellant (her boyfriend) had grabbed her by the arm and brandished a knife at her after she refused to give him her car keys. L.V. reported that Appellant fled after learning the police were on the way. The officers told L.V. to call the police if Appellant returned to her apartment. L.V. and Appellant ended their relationship after this incident.
On July 5, 2013, L.V. filed a protection from abuse ("PFA") petition against Appellant, alleging that since the June 15, 2013 incident, Appellant had made a copy of L.V.'s house key, entered L.V.'s home without her permission, and threatened her. The court granted L.V. a temporary PFA order that day and entered a final PFA order on July 15, 2013.
On July 18, 2013, L.V. awoke at 11:00 p.m. to find Appellant standing over her bed, screaming, "Oh, I'm going to kill you." Appellant lifted L.V. from the bed and threw her to the ground. Appellant then began to choke L.V. until she lost consciousness. L.V. regained consciousness and attempted to flee her bedroom. The couple's four-year-old son, M.D., heard his mother screaming and attempted to run for help. Appellant threatened to beat M.D. if he did not return to his room. After M.D. went back to his room, Appellant dragged L.V. back into her bedroom and grabbed a knife. L.V. was able to gain control of the knife and throw it out of Appellant's reach. L.V. again attempted to flee, but Appellant stopped her and bit L.V. on the side of her face. In an effort to stop Appellant's attack, L.V. told Appellant she wanted to continue their relationship. Appellant then performed oral sex on L.V. and had sexual intercourse with L.V. After Appellant fell asleep, L.V. fled from the apartment with the couple's two children. Police subsequently arrested Appellant at L.V.'s apartment.
Procedurally, at docket number CP-45-CR-0001797-2013 ("docket 1797"), the Commonwealth charged Appellant with simple assault, terroristic threats, and harassment, in connection with the incident on June 15, 2013. At docket number CP-45-CR-0001798-2013 ("docket 1798"), the Commonwealth charged Appellant with aggravated assault, rape by forcible compulsion, sexual assault, IDSI, indecent assault, REAP, burglary, kidnapping, terroristic threats, unlawful restraint, aggravated indecent assault without consent, simple assault, false imprisonment, EWOC, and corruption of minors, in connection with the incident on July 18, 2013.
The Commonwealth did not charge Appellant in relation to the events after June 15, 2013, and before July 5, 2013, which gave rise to entry of the PFA order.
On August 19, 2013, the Commonwealth filed a notice of intent to join for trial the charges at docket 1797 and docket 1798. While Appellant was incarcerated awaiting trial on these charges, Appellant wrote L.V. a letter from prison, in violation of the PFA order. Appellant also wrote a letter to his mother urging her to convince L.V. to ask the Commonwealth to drop the charges against him. Consequently, the Commonwealth filed a third criminal information against Appellant, at docket number CP-45-CR-0002252-2013 ("docket 2252"), charging Appellant with two counts of intimidation of a witness or victim and one count of solicitation to intimidate a witness or victim. On October 25, 2013, the Commonwealth filed a notice of intent to join for trial the charges at docket 2252 with the charges at docket 1797 and docket 1798.
On November 4, 2013, Appellant filed an omnibus pre-trial motion to, inter alia, sever the charges at all docket numbers. Appellant filed a brief in support of his motion on January 21, 2014. On January 23, 2014, the Commonwealth filed a brief to support joinder of the charges. The court held a hearing on January 28, 2014. On February 12, 2014, the court denied Appellant's motion to sever and granted the Commonwealth's request to join the charges at all three docket numbers for trial.
Appellant proceeded to a jury trial on April 15, 2014. The jury returned a verdict on April 16, 2014. At docket 1797, the jury convicted Appellant of all charges (simple assault, terroristic threats, and harassment). At docket 1798, the jury convicted Appellant of aggravated assault, rape by forcible compulsion, IDSI, REAP, burglary, terroristic threats, unlawful restraint, simple assault, false imprisonment, and EWOC; the jury found Appellant not guilty of sexual assault or indecent assault at docket 1798. At docket 2252, the jury found Appellant not guilty of one count of intimidation of a witness.
Prior to the close of the Commonwealth's case-in-chief, the court granted Appellant's motion to dismiss the kidnapping charge at docket 1798. The Commonwealth withdrew the charges of aggravated indecent assault without consent and corruption of minors at docket 1798; the Commonwealth also withdrew two charges at docket 2252.
On July 31, 2014, the court sentenced Appellant at docket 1797 to nine (9) to twenty-four (24) months' imprisonment for terroristic threats. At docket 1798, the court sentenced Appellant to four and one-half (4½) to ten (10) years' imprisonment for aggravated assault; a consecutive term of five and one-half (5½) to ten (10) years' imprisonment for rape by forcible compulsion; a concurrent term of two and one-half (2½) to five (5) years' imprisonment for burglary; a concurrent term of six (6) to twelve (12) months' imprisonment for terroristic threats; a concurrent term of six (6) to twelve (12) months' imprisonment for unlawful restraint; and a concurrent term of one (1) to two (2) years' imprisonment for EWOC. The court imposed Appellant's sentence at docket 1797 concurrent to his sentences at docket 1798. Thus, the court imposed an aggregate sentence of ten (10) to twenty (20) years' imprisonment.
The court determined the remaining convictions at docket 1797 merged for sentencing purposes.
The court determined the remaining convictions at docket 1798 merged for sentencing purposes.
On August 1, 2014, the Commonwealth timely filed a post-sentence motion to modify Appellant's sentence, claiming the court's sentence was too lenient given the gravity of the offenses, aggravating circumstances, and the danger Appellant posed to the community. On Monday, August 11, 2014, Appellant timely filed a post-sentence motion challenging the sufficiency of the evidence and the legality of his sentence (claiming his sentences for aggravated assault and rape by forcible compulsion should have merged). The court held a hearing on the motions on August 29, 2014. During the hearing, the Commonwealth pointed out that Appellant's sentences for aggravated assault and rape by forcible compulsion carried minimum sentences which were not equal to half of the maximum sentences imposed. The court re-sentenced Appellant on that date to five and one-half (5½) to eleven (11) years' imprisonment for aggravated assault and four and one-half (4½) to nine (9) years' imprisonment for rape by forcible compulsion. The court did not alter the sentences for any of Appellant's other convictions. Thus, Appellant's aggregate sentence remained ten (10) to twenty (20) years' imprisonment. The court said it would take Appellant's post-sentence motion under advisement.
The court did not expressly deny the Commonwealth's request for a stricter sentence, but the court declined to impose a harsher aggregate sentence than previously imposed.
On November 19, 2014, the court denied Appellant's post-sentence motion. Appellant timely filed a notice of appeal on December 12, 2014. On December 24, 2014, the court ordered Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant complied.
Appellant raises the following issues for our review:
WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE VERDICT OF:
A. RAPE BY FORCIBLE COMPULSION [AND] INVOLUNTARY DEVIATE SEXUAL INTERCOURSE[?]
B. AGGRAVATED ASSAULT?
C. ENDANGERING THE WELFARE OF CHILDREN?
(Appellant's Brief at 6).
WHETHER THE TRIAL COURT ERRED IN DENYING [APPELLANT'S] MOTION TO SEVER?
WHETHER THE TRIAL COURT ERRED IN IMPOSING CONSECUTIVE SENTENCES FOR AGGRAVATED ASSAULT AND RAPE BY FORCIBLE COMPULSION?
For purposes of disposition, we have re-ordered Appellant's issues.
After a thorough review of the record, the briefs of the parties, the applicable law, and the well-reasoned opinions of the Honorable Stephen M. Higgins, we conclude Appellant's first issue merits no relief. The trial court opinions comprehensively discuss and properly dispose of the question presented. ( See Trial Court Opinion, filed January 30, 2015, at 3; Opinion in Support of Order Denying Appellant's Post-Sentence Motions, filed November 19, 2014, at 4-9) (finding: regarding Appellant's rape by forcible compulsion conviction, L.V. testified that on night of July 18, 2013, Appellant appeared in her bedroom, standing over her and screaming, "Oh, I'm going to kill you"; after several unsuccessful attempts to flee, L.V. pretended she wanted to continue her relationship with Appellant so he would stop attacking her; at one point, Appellant and L.V.'s four-year-old son heard L.V. screaming and woke up crying; Appellant told his son to get back in his room or Appellant would whoop him with belt; after child left, Appellant performed oral sex on L.V. and then had sexual intercourse with L.V.; L.V. testified that she feared Appellant would kill her if she tried to stop him; L.V. did not want to have sex with Appellant, but did so only out of fear; regarding Appellant's IDSI conviction, L.V. encountered Appellant in her bedroom while she was sleeping; L.V. testified that she had sex with Appellant and allowed Appellant to perform oral sex on her solely out of fear that Appellant would kill her if she refused his advances; regarding Appellant's aggravated assault conviction, L.V. testified that Appellant choked her until she almost passed out; when L.V. regained consciousness, her vision was blurry, she could not hear, and L.V. had difficulty standing; Appellant bit L.V.'s face when she attempted to leave; L.V. was swollen and had broken blood vessels in her face after Appellant's attack; Commonwealth introduced photographs depicting L.V.'s injuries; regarding Appellant's EWOC conviction, Appellant and L.V.'s four-year-old son awoke crying after hearing his mother scream during attack; L.V. instructed her son to run and get help, but Appellant threatened to whoop his son with belt if he did not return to his room; Appellant also grabbed knife during this incident; Commonwealth presented sufficient evidence to sustain Appellant's convictions for rape by forcible compulsion, IDSI, aggravated assault, and EWOC). Accordingly, as to Appellant's first issue, we affirm on the basis of the trial court's opinions.
In his second issue, Appellant argues the Commonwealth sought joinder of his charges at docket 1797 and docket 1798 solely to show Appellant's propensity for violence. Appellant contends the incident on June 15, 2013, had no probative value relative to the charges stemming from the events on July 18, 2013, other than to show Appellant committed bad acts by assaulting L.V. on both of those dates. Appellant asserts joinder of the charges established only that Appellant is a violent man who assaulted L.V. on June 15, 2013, and acted in conformity with that character on July 18, 2013. Appellant claims the Commonwealth failed to meet its burden to demonstrate that the probative value of this "prior bad act" evidence outweighed the prejudice to his case. Appellant concludes the court abused its discretion by denying his motion to sever the charges at docket 1797 and docket 1798, and this Court should reverse and remand for separate trials at each docket. We disagree.
Appellant does not challenge the joinder of the charges at docket 2252.
Our standard of review of the denial of a motion to sever is as follows: "Joinder and severance of separate indictments for trial is a discretionary function of the trial court; consequently, the trial court's decision is subject to review for abuse of that discretion." Commonwealth v. Brookins , 10 A.3d 1251, 1255 (Pa.Super. 2010), appeal denied, 610 Pa. 625, 22 A.3d 1033 (2011).
The traditional justification for permissible joinder of offenses or consolidation of indictments appears to be the judicial economy which results from a single trial. The argument against joinder or consolidation is that where a defendant is tried at one trial for several offenses, several kinds of prejudice may occur: (1) [t]he defendant may be confounded in presenting defenses, as where his defense to one charge is inconsistent with his defenses to the others; (2) the jury may use the evidence of one of the offenses to infer a criminal disposition and on the basis of that inference, convict the defendant of the other offenses; and (3) the jury may cumulate the evidence of the various offenses to find guilt when, if the evidence of each offense had been considered separately, it would not so find.Commonwealth v. Janda , 14 A.3d 147, 155 (Pa.Super. 2011) (quoting Commonwealth v. Morris , 493 Pa. 164, 171, 425 A.2d 715, 718 (1981)). "Thus[,] in arriving at a meaningful standard to guide the trial court in its exercise of discretion, and to permit appellate courts to determine whether the trial court abused this discretion, we must weigh the possibility of prejudice and injustice caused by the consolidation against the consideration of judicial economy." Id.
Pennsylvania Rule of Criminal Procedure 582 provides, in pertinent part:
Rule 582. Joinder—Trial of Separate Indictments or Informations
Pa.R.Crim.P. 582(A)(1). Pennsylvania Rule of Criminal Procedure 583 provides:(A) Standards
(1) Offenses charged in separate indictments or informations may be tried together if:
(a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.
Rule 583. Severance of Offenses or DefendantsPa.R.Crim.P. 583. "Under Rule 583, the prejudice the defendant suffers due to the joinder must be greater than the general prejudice any defendant suffers when the Commonwealth's evidence links him to a crime." Commonwealth v. Dozzo , 991 A.2d 898, 902 (Pa.Super. 2010), appeal denied, 607 Pa. 709, 5 A.3d 818 (2010).
The court may order separate trials of offenses or defendants, or provide other appropriate relief, if it appears that any party may be prejudiced by offenses or defendants being tried together.
The prejudice of which Rule 583 speaks is, rather, that which would occur if the evidence tended to convict the appellant only by showing his propensity to commit crimes, or because the jury was incapable of separating the evidence or could not avoid cumulating the evidence. Additionally, the admission of relevant evidence connecting a defendant to the crimes charged is a naturalId. (quoting Commonwealth v. Lauro , 819 A.2d 100, 107 (Pa.Super. 2003), appeal denied, 574 Pa. 752, 830 A.2d 975 (2003)).
consequence of a criminal trial, and it is not grounds for severance by itself.
Where the defendant moves to sever offenses not based on the same act or transaction...the court must therefore determine: (1) whether the evidence of each of the offenses would be admissible in a separate trial for the other; (2) whether such evidence is capable of separation by the jury so as to avoid danger of confusion; and, if the answers to these inquiries are in the affirmative, (3) whether the defendant will be unduly prejudiced by the consolidation of offenses.Dozzo , supra at 902 (quoting Commonwealth v. Collins , 550 Pa. 46, 55, 703 A.2d 418, 422 (1997), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d 447 (1998)). Thus, a court must first determine whether evidence of each of the offenses would be admissible in a separate trial for the other. Dozzo , supra. Evidence of other crimes is not admissible solely to show the defendant's bad character or propensity to commit crimes. Id.
Nevertheless, evidence of other crimes is admissible to demonstrate:
(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing the commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.Janda , supra at 156 (quoting Morris , supra at 175, 425 A.2d at 720). "Additionally, evidence of other crimes may be admitted where such evidence is part of the history of the case and forms part of the natural development of the facts." Dozzo , supra at 902 (quoting Collins , supra at 55, 703 A.2d at 423). See also Commonwealth v. Thomas , 879 A.2d 246 (Pa.Super. 2005), appeal denied, 605 Pa. 685, 989 A.2d 917 (2010) (holding court properly granted Commonwealth's motion to consolidate charges resulting from defendant's domestic dispute with his girlfriend at their home on March 23, 2001, with charges following another domestic dispute between defendant and his girlfriend on April 19, 2001; second assault occurred on day defendant was released from jail, after victim had refused to testify against him at hearing on first assault; evidence of each assault would be admissible in prosecution for other, as evidence constitutes chain or sequence of events that formed history of case and is part of natural development of case; jury was capable of separating evidence into different incidents on different days that gave rise to different crimes; evidence of defendant's relationship with victim was admissible to prove motive, malice, ill-will, and complete story of their relationship; defendant did not suffer undue prejudice as result of consolidation of offenses for trial).
Instantly, in denying Appellant's request for severance of the charges at each docket, the trial court stated: "Pursuant to prevailing Pennsylvania case law, evidence of each offense would be admissible in prosecution for the other, the evidence is separable by a jury, and there is no showing of undue prejudice to [Appellant]. See [ id.]. As such, [Appellant's] Motion is DENIED." (Order Denying Appellant's Motion to Sever, 2/12/14, at 1). We see no reason to disrupt the court's ruling. See Brookins , supra. Appellant's actions showed an escalating pattern of abuse. L.V. refused to give Appellant her car keys on June 15, 2013, and Appellant responded by grabbing her arm and threatening her with a knife. Appellant fled after L.V. called the police. L.V. subsequently obtained a PFA order against Appellant after Appellant had made a copy of L.V.'s house key, entered L.V.'s home without her permission, and threatened her. Appellant violated the PFA order when he broke into L.V.'s home on July 18, 2013, choked her until she passed out, attacked and assaulted L.V., and threatened to kill her. Appellant's actions on June 15, 2013 and July 18, 2013, respectively, would constitute admissible evidence in each case if the court had conducted separate trials, where the crimes from each incident demonstrate a sequence of events that formed the history and natural development of the case. See Pa.R.Crim.P. 582; Dozzo , supra ; Thomas , supra. Additionally, evidence of Appellant's relationship with L.V. was admissible to prove Appellant's motive, malice, and ill-will toward L.V., and to develop the complete story of their relationship. See id. Further, the jury found Appellant not guilty of indecent assault and sexual assault at docket 1798, and acquitted Appellant of intimidation of a witness at docket 2252, demonstrating that the jury was capable of separating the charges at all three dockets and did not cumulate the evidence. See Pa.R.Crim.P. 582; Dozzo , supra. Thus, Appellant's second issue warrants no relief. See Janda , supra ; Dozzo , supra.
In his third issue, Appellant argues the aggravated assault and rape by forcible compulsion convictions were part of the same offense because the crime of aggravated assault constituted evidence of forcible compulsion necessary to prove the crime of rape. Appellant asserts the court erred by imposing consecutive sentences for aggravated assault and rape by forcible compulsion because the sentences for these convictions should have merged. Appellant concludes this Court must vacate and remand for re-sentencing. We disagree.
Notwithstanding the phrasing of Appellant's third question presented, Appellant challenges only the legality of his sentence; he does not claim the court abused its discretionary sentencing authority.
"Whether [a defendant's] convictions merge for sentencing is a question implicating the legality of [his] sentence. Consequently, our standard of review is de novo and the scope of our review is plenary." Commonwealth v. Baldwin , 604 Pa. 34, 38, 985 A.2d 830, 833 (2009).
Section 9765 provides:
§ 9765. Merger of sentences42 Pa.C.S.A. § 9765.
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.
The statute's mandate is clear. It prohibits merger unless two distinct facts are present: 1) the crimes arise from a single criminal act; and 2) all of the statutory elements of one of the offenses are included in the statutory elements of the other.Baldwin , supra at 38-39, 985 A.2d at 833. In other words: "If two crimes each require proof of at least one element that the other does not, then the crimes are not greater and lesser included offenses, and therefore the sentences do not merge." Thomas , supra at 263.
The Crimes Code defines the offenses of aggravated assault and rape by forcible compulsion, in relevant part, as follows:
§ 2702. Aggravated assault18 Pa.C.S.A. § 2702(a)(1).
(a) Offense defined.—A person is guilty of aggravated assault if he:
(1) attempts to cause serious bodily injury to another, or causes such injury intentionally, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life[.]
§ 3121. Rape18 Pa.C.S.A. § 3121(a)(1).
(a) Offense defined.—A person commits a felony of the first degree when the person engages in sexual intercourse with a complainant:
(1) By forcible compulsion.
Instantly, aggravated assault under subsection (a)(1) requires the element of causing or attempting to cause serious bodily injury; rape by forcible compulsion does not require serious bodily injury or an attempt to cause serious bodily injury. Additionally, rape by forcible compulsion requires sexual intercourse, which aggravated assault does not. Compare 18 Pa.C.S.A. §§ 2702(a)(1), 3121(a)(1). Because aggravated assault under subsection (a)(1) and rape by forcible compulsion involve at least one separate element the other does not, the court correctly imposed separate sentences for those crimes. See Baldwin , supra ; Thomas , supra . Therefore, Appellant's third issue merits no relief. Accordingly, we affirm.
Appellant relies on this Court's decision in Commonwealth v. Sanders , 489 A.2d 207 (Pa.Super. 1985) (holding defendant's convictions for aggravated assault and REAP merged for sentencing purposes with defendant's rape by forcible compulsion conviction where crimes arose from same criminal incident and evidence of aggravated assault and REAP constituted evidence of forcible compulsion necessary to prove rape). Nevertheless, this Court decided Sanders before the legislature enacted the pure elements-based merger statute under Section 9765. Thus, Sanders is not dispositive of the present case.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2015
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