Opinion
No. 724 WDA 2021
04-06-2022
COMMONWEALTH of Pennsylvania v. Mark Allen GLASS, Appellant
MEMORANDUM BY MURRAY, J.:
Mark Allen Glass (Appellant) appeals from the judgment of sentence imposed after a jury convicted him of one count each of aggravated indecent assault of a child, unlawful contact with a minor, corruption of minors, and indecent assault (person less than 13). We affirm.
Appellant purports to appeal from the June 14, 2021 order denying his post-sentence motion. However, this appeal "properly lies from the judgment of sentence made final by the denial of post-sentence motions." Commonwealth v. Shamberger , 788 A.2d 408, 410 n.2 (Pa. Super. 2001) (en banc ). We have corrected the caption accordingly.
Appellant and his wife babysat E.M. (the Victim). At the time of trial, the Victim was 14 years old. She testified that Appellant, over the course of four years, "touched [her] in places [she] didn't like." N.T., 5/6/21, at 10. The Victim testified that the assaults began when she was eight years old, and continued until she was 12. Id . at 10, 14. The Victim stated that Appellant would "take his fingers and he would put it on my girl parts and like rub and stuff." Id . at 13. When asked if Appellant would touch her under her clothes, the Victim replied, "yes. He would take his two fingers and he would like rub it and like dig his fingers." Id . at 15. The Victim described the touching as "pretty uncomfortable and it hurt." Id . The Victim testified that after "a presentation about boundaries" in health class, she "realized [she] should probably tell [her] parents," and "texted [her] stepdad" from school. Id . at 10.
On cross-examination, the Victim described where the assaults occurred:
[Counsel for Appellant]: Every time it happened, it happened on the couch; right?
[The Victim]: Yes.
[Counsel for Appellant]: Explain the set up of the couch for me.
[The Victim]: [Appellant's] side, it reclined out, and then it was like three seats, or three couch cushion seats, and then it sort of make an L-shape, and that's where [Appellant's wife] and my brother would normally sit.
[Counsel for Appellant]: So, it was like a sectional?
[The Victim]: Yes.
[Counsel for Appellant]: And, would it be fair to say if [Appellant's wife] – [Appellant's wife] was facing this way, the L goes like this?
[The Victim]: Yes.
[Counsel for Appellant]: And, you would be sitting here with [Appellant]?
[The Victim]: Yes.
[Counsel for Appellant]: So, you could see [Appellant's wife]?
[The Victim]: Yes.
[Counsel for Appellant]: Would your brother be there too?
[The Victim]: Yes.
[Counsel for Appellant]: How old is your brother?
[The Victim]: Eleven.
[Counsel for Appellant]: Most of the time it happened, would [Appellant's wife] be home?
[The Victim]: Yes.
N.T., 5/6/21, at 19-20.
On May 6, 2021, a jury convicted Appellant of the above crimes. The trial court deferred sentencing for the preparation of a presentence investigation (PSI) report. On May 13, 2021, the trial court sentenced Appellant to an aggregate 10 – 20 years in prison. Sentence Order, 5/13/21. The court awarded Appellant credit for time served and determined he was not RRRI eligible. Id . Appellant filed a timely post-sentence motion, which the trial court denied. On June 22, 2021, Appellant filed a timely notice of appeal. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents three issues for review:
1: DID THE COMMONWEALTH FAIL TO PRESENT SUFFICIENT EVIDENCE TO PROVE BEYOND A REASONABLE DOUBT THAT THE APPELLANT ENGAGED IN PENETRATION OF THE GENITALS OR ANUS OF THE COMPLAINANT?
2: DID THE TRIAL COURT ERR BY PROVIDING A CAUTIONARY INSTRUCTION TO THE JURY THAT THE APPELLANT'S WIFE HAD A PRIVILEGE NOT TO TESTIFY OR OFFER EVIDENCE AGAINST HIM IN THE ABOVE CAPTIONED CASE?
3: DID THE SENTENCING COURT FAIL TO ARTICULATE A REASONABLE BASIS FOR SENTENCING THE APPELLANT TO THE MAXIMUM SENTENCE ALLOWABLE BY LAW?
Appellant's Brief at 7.
In his first issue, Appellant argues the evidence was insufficient to support his conviction of aggravated indecent assault of a child because the Commonwealth did not prove the penetration element of 18 Pa.C.S.A. § 3125(b). Appellant's Brief at 10-11. Appellant cites the Victim's response to the following question on cross-examination:
[Counsel for Appellant]: So, you said [Appellant] would touch you with his fingers but never go inside of you, right?
[Victim]: Yes.
N.T., 5/6/21, at 27.
Appellant contends the Victim's testimony disproves "a finding that the Appellant penetrated the labia or vagina of [Victim]. On the contrary, [Victim] testified that the Appellant never placed his fingers inside of her on direct and cross examination." Appellant's Brief at 11. Upon review, we disagree.
Pertinently:
We review claims regarding the sufficiency of the evidence by considering whether, viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder.
Commonwealth v. Miller , 172 A.3d 632, 640 (Pa. Super. 2017) (citations omitted).
A person is guilty of aggravated indecent assault of a child when the person engages "in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures[.]" 18 Pa.C.S.A. § 3125(b). Sexual intercourse is defined as "intercourse per os or per anus, with some penetration however slight; emission is not required." 18 Pa.C.S.A. § 3101. This Court has determined "that the term ‘penetration, however slight’ is not limited to penetration of the vagina; entrance in the labia is sufficient." Commonwealth v. Hawkins , 614 A.2d 1198, 1200 n.1 (Pa. Super. 1992) (citations omitted).
Like any element of an offense, penetration can be proven with circumstantial evidence. See Commonwealth v. Wall , 953 A.2d 581, 584 (Pa. Super. 2008). Further, "the uncorroborated testimony of the complaining witness is sufficient to convict a defendant of sexual offenses." Commonwealth v. Bishop , 742 A.2d 178, 189 (Pa. Super. 1999) ; see also Commonwealth v. Trimble , 615 A.2d 48, 50 (Pa. 1992) (testimony of child victim alone is sufficient to support conviction for sex offenses). Also, the Commonwealth is not required to present forensic evidence of penetration. See Commonwealth v. Gibson , 951 A.2d 1110, 1140 (Pa. 2008) (there is no constitutional requirement for the police to conduct a forensic analysis of evidence).
Here, the record as a whole refutes Appellant's argument. As referenced above, and in contrast to the one-word response relied upon by Appellant, the Victim testified on direct examination as follows:
[The Commonwealth]: Okay. Can you tell us how he would touch you that you didn't like?
[Victim]: Yes. He would take his fingers and he would put it on my girls parts and like rub and stuff.
[The Commonwealth]: And, when you say your girl parts, I understand that it may be difficult, but can you tell us what part of your body that is?
[Victim]: Where I pee.
[The Commonwealth]: So, between your legs?
[Victim]: Yes.
[The Commonwealth]: And, he would touch you there?
[Victim]: Yes.
[The Commonwealth]: Would he touch you there while you had clothing on?
[Victim]: Yeah.
[The Commonwealth]: Did he ever touch you there under your clothes?
[Victim]: Yes.
[The Commonwealth]: Did he touch you there under your underwear?
[Victim]: Yes.
[The Commonwealth]: How would he touch you, [Victim]? Could you tell us what he would do?
[Victim]: He would take his two fingers and he would like rub it and like dig his fingers .
[The Commonwealth]: Physically, how did you feel when he did that?
[Victim]: It was pretty uncomfortable and it hurt .
[The Commonwealth]: Did you ever ask him to stop doing that?
[Victim]: Yes.
N.T., 5/6/21, at 14-15 (emphasis added).
The Victim's overall testimony contradicts Appellant's claim that the Commonwealth failed to prove the element of penetration. See In re A.G.C. , 142 A.3d 102, 109 (Pa. Super. 2016) ("[C]onflicts in the evidence and contradictions in the testimony of any witnesses are for the fact finder to resolve"). See also 18 Pa.C.S.A. § 3125(a)(1) (prohibiting "engag[ing] in penetration, however slight , of the genitals ...." (emphasis added)); Commonwealth v. Ortiz , 457 A.2d 559, 561 (Pa. Super. 1983) (stating "entrance in the labia is sufficient" to constitute penetration). As the evidence was sufficient to support the jury's determination that Appellant committed aggravated indecent assault of a child, his first issue lacks merit.
In his second issue, Appellant argues the trial court erred by issuing a cautionary instruction to the jury about Appellant's wife having the privilege to not testify or offer evidence against Appellant. Appellant's Brief at 11-14. Appellant states that during closing arguments, "Appellant's counsel argued that the Appellant's wife, who was present when these allegations [sic ] occurred, was not called by the Commonwealth to testify or even interviewed by the police." Id . at 12 (citing N.T., 5/6/21, at 71). While Appellant's counsel was making the closing argument, the trial court interjected, and provided the jury with the following cautionary instruction:
Ladies and Gentlemen, there is a privilege in Pennsylvania and most other states that a spouse is not required to testify, otherwise, give evidence against their spouse. Before counsel continues the argument, I am not going to bar him from making the argument, but there is a privilege that allows the spouse not to testify or offer any evidence against their spouse. Any commentary on what she was or wasn't asked or did or didn't say has to be construed in light of the fact that she is legally not required to present any evidence against her husband.
N.T., 5/6/21, at 71.
Appellant argues the trial court's instruction was improper because "this privilege does not apply in any criminal proceeding against ... any minor child in their care or custody, or in the care or custody of either of them or in any criminal proceeding in which one of the charges pending against the defendant includes murder, involuntary deviate sexual intercourse or rape." Appellant's Brief at 12 (citing 42 Pa.C.S.A. § 5913 ). Because the assaults occurred while Appellant and his wife were babysitting the Victim and she was in their care, Appellant asserts the privilege does not apply.
The Pennsylvania Rules of Criminal Procedure provide the trial court with the authority to give instructions to the jury "before taking of evidence or at anytime during the trial as the judge deems necessary and appropriate for the jury's guidance in hearing the case." Pa.R.Crim.P. 647(E). In reviewing a challenge to a jury instruction, "we must review the charge as a whole and not simply isolated portions. This way we can ascertain whether the charge fairly conveyed the required legal principles that were at issue." Commonwealth v. H.D. , 217 A.3d 880, 885-86 (Pa. Super. 2019). "A jury instruction will be upheld if it ‘clearly, adequately, and accurately reflects the law.’ " Commonwealth v. Smith , 956 A.2d 1029, 1034–35 (Pa. Super. 2008) (citation omitted).
To preserve a challenge to a jury instruction, the defendant must make a specific objection to the instruction before the jury retires to deliberate. Pa.R.Crim.P. 647(B). Instantly, Appellant does not indicate when, or where in the record, he preserved this claim. See Pa.R.A.P. 2119(c) ("If reference is made to the pleadings, evidence, charge, opinion or order, or any other matter appearing in the record, the argument must set forth, in immediate connection therewith, or in a footnote thereto, a reference to the place in the record where the matter referred to appears.").
Further, our review discloses that Appellant's counsel did not object to the trial court's cautionary instruction. Notably, at the conclusion of closing arguments and before the jury retired for deliberations, the court asked Appellant's counsel if he "had any additions or corrections to the [c]ourt's instructions," and Appellant's counsel responded, "No, Your Honor." N.T., 5/6/21, at 96-97. Accordingly, Appellant has waived his second issue regarding the trial court's jury instruction. See also Commonwealth v. May , 887 A.2d 750, 758 (Pa. 2005) ("To the extent the claims would sound in trial court error, they are waived due to the absence of contemporaneous objections."); Commonwealth v. Dougherty , 860 A.2d 31, 37 (Pa. 2004) (failure to object results in appellate waiver); Pa.R.A.P. 302(a) ("Issues not raised in the lower court are waived and cannot be raised for the first time on appeal.").
In his third issue, Appellant challenges the discretionary aspects of his sentence. Appellant asserts the trial court improperly "considered and relied upon allegations by which the Appellant was not charged or convicted." Appellant's Brief at 19; see also Commonwealth v. Fowler , 930 A.2d 586, 593 (Pa. Super. 2007) (claim that the sentencing court considered improper factors and failed to state its reasons for the sentence challenges the discretionary aspects of sentencing). Appellant argues, "In the instant case, the charges in the Information related to an incident that occurred on November 1, 2018. However, during trial, the [Victim] testified to multiple instances of misconduct, but the Commonwealth did not add multiple counts to reflect each allegation." Id . at 17. Appellant contends the trial court impermissibly sentenced him to the "maximum sentence allowable by law," and stated "that the sentencing guidelines were inadequate due to the multiple instances of misconduct. Appellant was not found guilty of multiple instances of misconduct. Rather, the Appellant was found guilty of one instance of misconduct." Id . at 18.
"An appellant is not entitled to the review of challenges to the discretionary aspects of a sentence as of right. Rather, an appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction." Commonwealth v. Samuel , 102 A.3d 1001, 1006-07 (Pa. Super. 2014). In determining whether this Court has jurisdiction, we consider whether: (1) Appellant has filed a timely notice of appeal; (2) the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence; (3) the brief includes a "concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence" pursuant to Pa.R.A.P. 2119(f) ; and (4) Appellant has presented a "substantial question" that the sentence is inappropriate under the Sentencing Code. Id .
Appellant has complied with the first two requirements by filing a timely notice of appeal and preserving his claim in a post-sentence motion. See Post-Sentence Motion, 5/21/21, at ¶¶ 8-12. Also, Appellant has included a Rule 2119(f) statement in his brief. See Appellant's Brief at 15. We therefore examine the Rule 2119(f) statement to determine whether Appellant has raised a substantial question. See Commonwealth v. Provenzano , 50 A.3d 148, 154 (Pa. Super. 2012) ("[W]e cannot look beyond the statement of questions presented and the prefatory [Rule] 2119(f) statement to determine whether a substantial question exists.").
Appellant "contends that the Sentencing Court failed to articulate a reasonable basis for sentencing Appellant in the aggravated range of the sentencing guidelines." Appellant's Brief at 15. This Court has previously held an appellant "raise[s] a substantial question by alleging that the sentencing court did not sufficiently state its reasons for the sentence." Commonwealth v. McNabb , 819 A.2d 54, 56 (Pa. Super. 2003). Further, Appellant "raises a substantial question by alleging his sentence is excessive due to the trial court's reliance on impermissible factors." Id .
We review a challenge to the discretionary aspects of a sentence mindful of the following:
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, exercises its judgment for reasons of partiality, prejudice, bias or ill will, or arrived at a manifestly unreasonable decision.
A sentencing judge has broad discretion in determining a reasonable penalty, and appellate courts afford the sentencing court great deference, as it is the sentencing court that is in the best position to view the defendant's character, displays of remorse, defiance, or indifference, and the overall effect and nature of the crime. When imposing a sentence, the sentencing court must consider "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." 42 Pa.C.S. § 9721(b). As we have stated, [a] court is required to consider the particular circumstances of the offense and the character of the defendant. In particular, the sentencing court should refer to the defendant's prior criminal record, his age, personal characteristics, and his potential for rehabilitation.
...
Our Supreme Court has determined that where the trial court is informed by a [presentence investigation report (PSI)], it is presumed that the court is aware of all appropriate sentencing factors and considerations, and that where the court has been so informed, its discretion should not be disturbed. The sentencing judge can satisfy the requirement that reasons for imposing sentencing be placed on the record by indicating that he or she has been informed by the [PSI]; thus properly considering and weighing all relevant factors.
Commonwealth v. Edwards , 194 A.3d 625, 637-38 (Pa. Super. 2018) (citations omitted).
A sentencing court is statutorily required to disclose in open court the reasons for the sentence imposed. See 42 Pa.C.S.A. § 9721(b) ("In every case in which the court imposes a sentence for a felony or misdemeanor, ... the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reasons for the sentence imposed."). However, "[t]he court is not required to parrot the words of the Sentencing Code, stating every factor that must be considered under Section 9712(b)[.]" Commonwealth v. Antidormi , 84 A.3d 736, 761 (Pa. Super. 2014).
Critically, the notes of testimony from the sentencing hearing are not in the certified record. Upon careful review, we are constrained to find waiver. We have explained:
The fundamental tool for appellate review is the official record of the events that occurred in the trial court. To ensure that an appellate court has the necessary records, the Pennsylvania Rules of Appellate Procedure provide for the transmission of a certified record from the trial court to the appellate court. The law of Pennsylvania is well settled that matters which are not of record cannot be considered on appeal. Thus, an appellate court is limited to considering only the materials in the certified record when resolving an issue.
...
This Court cannot meaningfully review claims raised on appeal unless we are provided with a full and complete certified record. This requirement is not a mere "technicality" nor is this a question of whether we are empowered to complain sua sponte of lacunae in the record. In the absence of an adequate certified record, there is no support for an appellant's arguments and, thus, there is no basis on which relief could be granted.
Commonwealth v. Preston , 904 A.2d 1, 6-7 (Pa. Super. 2006) (en banc ). (citations omitted).
After filing a notice of appeal, "an appellant is responsible for requesting ‘any transcript required’ and making the necessary payment to the court reporter." Commonwealth v. Almodorar , 20 A.3d 466, 467 (Pa. 2011) (citing Pa.R.A.P. 1911(a) ). Rule 1911(a) states that the appellant "shall request any transcript under this chapter in the manner and make any necessary payment or deposit therefor in the amount and within the time prescribed by Rules 4001 et seq . of the Pennsylvania Rules of Judicial Administration." "When the appellant ... fails to conform to the requirements of Rule 1911, any claims that cannot be resolved in the absence of the necessary transcript or transcripts must be deemed waived for the purpose of appellate review." Preston , 904 A.2d at 7 (citing Commonwealth v. Williams , 715 A.2d 1101, 1105 (Pa. 1998) ). "It is not proper for either the Pennsylvania Supreme Court or the Superior Court to order transcripts nor is it the responsibility of the appellate courts to obtain the necessary transcripts." Id .
"While the duty is on the appellant to initiate the action necessary to provide the appellate court with all the documents necessary to allow a complete and effective appellate review, once the appellant has discharged that duty, court personnel are charged with assembling and transmitting the official record to the appellate court." Almodorar , 20 A.3d at 467 (citing Williams , 715 A.2d at 1104 ). As such, "[a]n appellant should not be denied appellate review if the failure to transmit the entire record was caused by an ‘extraordinary breakdown in the judicial process.’ " Williams , 715 A.2d at 1106. However, "[i]n the absence of specific indicators that a relevant document exists but was inadvertently omitted from the certified record, it is not incumbent upon this Court to expend time, effort and manpower scouting around judicial chambers or the various prothonotaries’ offices of the courts of common pleas for the purpose of unearthing transcripts." Preston , 904 A.2d at 7-8 (citation omitted).
See also Commonwealth v. Lesko , 15 A.3d 345, 410 (Pa. 2011) (citation omitted) ("[An appellant] cannot fault the trial court for [his] failures. Instead, it is only when an appellant can show that a request was made and erroneously denied ... that such a claim would have merit. And that sort of claim ripens, and should be pursued upon, the very appeal that supposedly was impeded by a missing portion of the record[.]").
Our review of the certified record reveals that on June 22, 2021, Appellant filed his notice of appeal with the trial court. Attached to Appellant's notice of appeal is a "Request to Produce, Certify and File Transcript," which reads: "A Notice of Appeal having been filed in this matter, the official court reporter is hereby requested to produce, certify and file the transcript in this matter in conformity with Rule 1922 of the Pennsylvania Rules of Appellate Procedure." Request to Produce, Certify and File Transcript, 6/22/21 (emphasis added).
Consistent with the foregoing, a single transcript, i.e. , the May 5-6, 2021, trial transcript, was ordered and filed. That transcript is in the record and referenced above. Conversely, there is no indication that the May 13, 2021, sentencing transcript was ordered or filed. See id . The trial court does not cite the sentencing transcript in its opinion, and Appellant and the Commonwealth do not reference a sentencing transcript in their briefs. Finally, there is no indication in the record that the absence of the sentencing transcript was caused by a breakdown in the judicial process. Without a sentencing transcript, we cannot adequately review Appellant's sentencing issue. Accordingly, Appellant's third issue is waived.
Waiver notwithstanding, it appears from the record, exclusive of the sentencing transcript, that Appellant would not be entitled to relief. See, e.g., N.T., 5/6/21, at 101 (trial court deferring sentencing at the end of trial for preparation of a PSI report); see also Trial Court Opinion, 8/4/21, at 11 (acknowledging Appellant "was charged with only a single count" and citing as sentencing factors the Victim's relationship with Appellant, the Victim's young age and being "a child in [Appellant's] care," and Appellant's "conduct occur[ing] on multiple occasions.").
Judgment of sentence affirmed.