Opinion
J. S55027/16 No. 1337 EDA 2015
11-10-2016
COMMONWEALTH OF PENNSYLVANIA, v. NELSON MARTINEZ Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered April 8, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002416-2013 BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY DUBOW, J.:
Former Justice specially assigned to the Superior Court.
Appellant seeks review of the Judgment of Sentence entered by the Court of Common Pleas of Lehigh County after a jury convicted him of Rape of a Child and related offenses. He challenges the discretionary aspect of his sentence, the sufficiency of the evidence supporting his designation as a sexually violent predator, and certain evidentiary rulings. The Hon. Kelly L. Banach has provided a thorough, well-reasoned Pa.R.A.P. 1925(a) Opinion that properly addresses the issues presented. We adopt that Opinion as our own, and affirm the Judgment of Sentence.
The trial court has set forth the facts in detail and we need not fully restate them here. See Trial Court Opinion, dated October 20, 2015, at 2-8. In sum, in the fall of 2012, on at least four occasions, Appellant sexually abused his 11-year-old step-daughter. Appellant, who was married but estranged from the victim's mother at the time of the abuse, had known the victim since she was four or five years old. The victim referred to Appellant as "Daddy."
After a three-day trial at which both the victim and Appellant testified, the jury found Appellant guilty of one count each of Rape of a Child, Involuntary Deviate Sexual Intercourse with a Child ("IDSI"), Aggravated Indecent Assault of a Child, Sexual Assault, Corruption of Minors, and Indecent Assault of a Child. Appellant underwent a Sexual Offender Assessment Board Evaluation ("SOAB"), and obtained his own independent pre-sentence psychological evaluation. The court requested a pre-sentence investigation ("PSI").
18 Pa.C.S. § 3121(c); 18 Pa.C.S. 3123(b); 18 Pa.C.S. § 3125(b);18 Pa.C.S. § 3124.1; 18 Pa.C.S. § 6301(a)(1)(ii); and 18 Pa.C.S. § 3126(a)(7), respectively.
At sentencing, Appellant did not present the results of his independent psychological evaluation. The court stated on the record that it had reviewed, inter alia, the PSI report, which included numerous prior drug offenses, the sentencing guidelines, victim impact statements from the victim and her mother, the SOAB assessment, and a copy of a memo from the jail that indicated that Appellant had not misbehaved or participated in any programs, activities or employment. See N.T. Sentencing, 4/8/15, at 5. The court found Appellant to be a sexually violent predator and sentenced him to consecutive statutory maximum sentences, for an aggregate term of incarceration of 43½ years to 87 years. See N.T. Sentencing, 4/8/15, at 52-61.
Specifically, the court sentenced Appellant to the following terms of incarceration: 20 to 40 years' incarceration on the rape conviction (count 1); a consecutive term of 20 to 40 years on the IDSI conviction (count 2); two concurrent 5 to 10 year terms for the aggravated indecent assault and sexual assault convictions (to be served concurrently with counts 1 and 2); 3½ to 7 years for the corruption of minors conviction (consecutive to counts 1 and 2); and 2½ to 5 years for indecent assault of a child (concurrent with corruption of minors sentences).
After the denial of his Post-sentence Motion, Appellant timely appealed to this Court. Appellant and the trial court complied with Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Whether the aggregate sentence of forty-three and one-half (43.5) to eighty[-]seven (87) years was excessive, unreasonable[,] and unduly harsh, and was an abuse of discretion?
2. Whether the trial court erred in prohibiting the testimony of juvenile witnesses, Noah and Moses Martinez, who would have offered potentially exculpatory material evidence in contradiction of the victim's testimony, which prohibition was highly prejudicial to the Defendant?
3. Whether the trial court erred in denying the Defendant's motion in limine to exclude testimony of Deputy Sheriff, James E. Bonner, pursuant to Pennsylvania Rules of Evidence 401 and 403, as such testimony was irrelevant, speculative, conjectural, unsupported by scientific or expert opinion and was far more prejudicial to Defendant that it was probative?
4. Whether the trial court erred in ruling that the Defendant was a sexually violent predator?Appellant's Brief at 3.
In his first issue, Appellant argues that the sentencing court's imposition of "consecutive statutory maximum sentences of twenty to forty years ... is excessive and indicative of the Court's ill-will against the Defendant[.]" Id. at 16. He contends that "the court failed to explicitly state adequate reasons on the record or directly address the enumerated sentencing factors." Id. For the following reasons, we conclude there is no merit to this sentencing challenge.
The individual sentences imposed on Appellant are within the permissible statutory maximums and, therefore, clearly are legal sentences. Appellant's appeal asks us to review the discretionary aspects of his sentence. See , e.g., Commonwealth v. Gonzalez , 994 A.2d 595, 597 (Pa. Super. 2010) (acknowledging that a claim that an aggregate sentence was excessive after court imposed consecutive sentences challenges the discretionary aspects of a sentence).
An appeal from the discretionary aspects of a sentence is not guaranteed as a matter of right. Commonwealth v. Mastromarino , 2 A.3d 581, 585 (Pa. Super. 2010). Rather, where, as here, the appellant has preserved the sentencing challenge for appellate review by raising it at sentencing or in a timely post-sentence motion, the appellant must (1) "include in his brief 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 (2) "show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code." Commonwealth v. Hill , 66 A.3d 359, 363-64 (Pa. Super. 2013).
In the instant case, Appellant filed a timely Notice of Appeal and a timely Post-Sentence Motion. He also included a Pa.R.A.P. 2119(f) Statement in his appellate brief. Although a court's exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question, where an appellant avers an excessive sentence due to the court's reliance on impermissible factors, the appellant has presented a substantial question for our review. Commonwealth v. McNabb , 819 A.2d 54, 56-57 (Pa. Super. 2003). See , e.g., Commonwealth v. Dodge , 77 A.3d 1263, 1273 (Pa. Super. 2013) (holding that a defendant's challenge to the consecutive nature of his sentence raised a substantial question where the defendant articulated particular reasons why consecutive sentences were unreasonable); Commonwealth v. Spencer , 496 A.2d 1156, 1164 (Pa. Super. 1985) (vacating and remanding where sentencing judge in a robbery case showed bias in repeatedly referring to sixteen-year-old defendant as an "animal" and stating that it wished it could impose the death penalty because it "would gladly pull the switch on you, Chief.").
Having determined that Appellant's issue on appeal raises a substantial question for review, we turn to the merits of Appellant's sentencing challenge, mindful of 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. Raven , 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation omitted).
"In reviewing a challenge to the discretionary aspects of sentencing, we evaluate the court's decision under an abuse of discretion standard." Dodge , 77 A.3d at 1274 (citation omitted). Additionally, "this Court's review of the discretionary aspects of a sentence is confined by the statutory mandates of 42 Pa.C.S. § 9781(c) and (d)." Id. Section 9781(c) provides, in relevant part, that "[t]he appellate court shall vacate the sentence and remand the case to the sentencing court with instructions if it finds ... (3) the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable. In all other cases the appellate court shall affirm the sentence imposed by the sentencing court." 42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the history and characteristics of the defendant.
(2) The opportunity of the sentencing court to observe the defendant, including any presentence investigation.42 Pa.C.S. § 9781(d).
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
With respect to reviewing a sentence alleged to be "unreasonable," the Pennsylvania Supreme Court has recognized that
Generally speaking, "unreasonable" commonly connotes a decision that is "irrational" or "not guided by sound judgment." The Random House Dictionary of the English Language, 2084 (2nd ed.1987); see 1 Pa.C.S. § 1903 (words to be construed according to their common and approved usage). While a general understanding of unreasonableness is helpful, in this context, it is apparent that the General Assembly has intended the concept of unreasonableness to be a fluid one, as exemplified by the four factors set forth in Section 9781(d) to be considered in making this determination. Indeed, based upon the very factors set out in Section 9781(d), it is clear that the General Assembly intended the concept of unreasonableness to be inherently a circumstance-dependent concept that is flexible in understanding and lacking precise definition.Commonwealth v. Walls , 926 A.2d 957, 963 (Pa. 2007)
We are mindful that where, as here, the trial court has the benefit of a 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." Commonwealth v. Ventura , 975 A.2d 1128, 1135 (Pa. Super. 2009) (discussing Commonwealth v. Devers , 546 A.2d 12, 18-19 (Pa. 1988)). Thus, if the sentencing court states that it considered the PSI, the court has properly explained the basis for the sentence that it imposed. Ventura , supra at 1135 (citation omitted).
Here, Appellant concludes that his sentence is "excessive and indicative of the Court's ill-will against [him]." Appellant's Brief at 16. In support, he quotes from the sentencing court's colloquy, throughout which Appellant repeatedly interrupted to state his innocence and to argue with the judge. In particular, Appellant emphasizes the judge's statements that (1) she was "offended ... at the vile way in which you [Appellant] speak about [the victim's] mother, about the mother of your other children;" (2) "[y]ou are a vile, heinous, aggressive, dangerous man;" (3) "you are a scary scary, man. You have no regard for anyone other than yourself ... [a]nd I would not want to meet you under other circumstances; and (4) "But you are really climbing to the top of my list of truly despicable human beings." Appellant's Brief at 10-14 (quoting N.T. Sentencing, 4/8/15, at 51-59).
Based on our review of the entire record, the briefs of the parties, the applicable law, and the comprehensive and well-reasoned opinion of the trial court, we conclude that there is no merit to Appellant's claim that his sentence was unreasonable or the result of the court's bias. Moreover, contrary to Appellant's contention, the court stated adequate reasons on the record for imposing the sentence it did after acknowledging that it had read the PSI report. While some of the court's language during sentencing may be perceived as harsh, it was not unduly so and did not manifest such "ill- will" so as to render Appellant's consecutive sentences unreasonable. As the jury determined, Appellant sexually abused his step-daughter and one of her friends; with respect to his step-daughter, he raped her anally several times, fondled and licked her breasts and genitals, and forced her to give him oral sex under threat of her "getting in trouble," all while acting in the role of her father. See Trial Ct. Op., dated 10/20/15, at 9-13 (reviewing case law and the record before concluding that the "lengthy sentence was justified by the heinous and physical and emotionally damaging acts that [ ] Appellant was found to have committed, the need to protect the public from [ ] Appellant, [ ]Appellant's serious criminal history, and the [c]ourt's opinion that total confinement was necessary and proper.").
In light of the nature and circumstances of the offense, the history and characteristics of Appellant, the opportunity of the sentencing court to observe and interact with Appellant, the presentence investigation, and the jury's verdict, we cannot conclude the aggregate sentence was unreasonable or, as Appellant contends, the result of "ill-will." Accordingly, we affirm.
Appellant next avers that the trial court should have allowed his two minor sons to testify at trial to present "potentially exculpatory material evidence to contradict[ ] the victim's testimony" regarding when and where the abuse occurred. Appellant's Brief at 16. He contends that by quashing the subpoenas issued to compel the boys' testimony, the court violated his "[c]onstitutional right to exercise compulsory process, thereby depriving the Defense of material witness testimony in the presentation of a defense to the charges." Id. at 18-19.
As Appellant notes, the Pennsylvania Constitution guarantees an accused the right "to have compulsory process for obtaining witnesses in his favor." Pa. Const. art. I, § 9. Our Supreme Court has addressed the right to obtain witness testimony as follows:
The right to compulsory process encompasses the right to meet the prosecution's case with the aid of witnesses, and the right to elicit the aid of the Commonwealth in securing those witnesses at trial, both of which are fundamental to a fair trial. This constitutional right, though fundamental, is not, however, absolute. Evidentiary rules based on legitimate state interests which exclude certain witnesses or certain testimony are not inconsistent nor incompatible with the right to compulsory process.[ ] Accordingly, where certain witnesses' testimony would not be admissible at trial, the Constitution does not require that a defendant be given the right to secure the attendance of witnesses which he has no right to use. Washington v. Texas , 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967). Our inquiry is thus directed to the question of the admissibility of the testimony which would have been given by the two witnesses whom appellant requested to be subpoenaed.Commonwealth v. Jackson , 324 A.2d 350, 354-55 (Pa. 1974) (internal footnote omitted).
It is well-settled that "[q]uestions regarding the admission of evidence are left to the sound discretion of the trial court, and we, as an appellate court, will not disturb the trial court's rulings regarding the admissibility of evidence absent an abuse of that discretion." Commonwealth v. Russell , 938 A.2d 1082, 1091 (Pa. Super. 2007) (citation omitted). An abuse of discretion is more than a mere error of judgment; rather, an abuse of discretion will be found when "the law is overridden or misapplied, or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill-will, as shown by the evidence or the record." Commonwealth v. Busanet , 817 A.2d 1060, 1076 (Pa. 2002) (citation and quotation omitted).
In the instant case, prior to trial, the court ordered that Appellant's counsel be allowed to interview the boys. The guardian ad litem conducted the interview by posing questions prepared by Appellant's attorney. Appellant's attorney, the children's caseworker from Children and Youth Services, and Allentown Police Department detectives observed the interviews. Appellant's attorney then informed the court that he still wished to subpoena the boys to testify at trial for Appellant, despite the guardian ad litem's opposition to the subpoena.
The court quashed the subpoenas after concluding that (1) the boys were unable to determine any dates at all; (2) no solid dates were provided either by the victim or the victim's friend; and (3) the victim's mother testified that she and the victim had been staying at Appellant's residence off and on until November 7, 2012, when they moved out permanently and the victim did not return to Appellant's apartment. Trial Ct. Op. at 15.
Our review of the record indicates that the court's decision to prohibit the boys' testimony was not based on partiality, prejudice, bias, or ill-will. The trial court has provided a thorough review of the relevant evidence and case law, and we affirm based on the trial court's opinion. See Trial Ct. Op. at 14-17 (concluding, inter alia, (1) "the Court was not persuaded that the boys would be able to establish a timeframe either disputing the one testified to by the victim [] or [her mother] due to the fact that they could not recall specific dates or even descriptions of the residence in question;" and (2) "testimony by the boys, which would be speculative at best, would present a risk of harm to the boys, given the representation from their guardian ad litem that their therapist(s) believed that contact with the Appellant would cause additional trauma.").
Appellant next argues that the court erred in denying his motion in limine to exclude testimony from Deputy Sheriff James E. Bonner. The testimony at issue pertained to Appellant's behavior during the preliminary hearing, i.e., that while the victim was testifying about the abuse, Appellant was "fondling himself" with his pinkies while his hands were shackled at his waist. Appellant's Brief at 22-23, quoting N.T. Trial. Appellant avers that the testimony was "highly and unfairly prejudicial[.]" Appellant's Brief at 21.
The trial court has accurately and thoroughly addressed this issue and we affirm on the basis of its opinion. See Trial Ct. Op. at 17-19 ((1) noting, inter alia, the Commonwealth's argument that the testimony was relevant because it tended to show that Appellant was sexually aroused by the victim, which was the motive behind the alleged abuse, and (2) concluding the prejudice here did not outweigh the probative value of the testimony.).
In his final issue, Appellant challenges the sufficiency of the evidence supporting his designation as a SVP.
This Court will review a claim that the trial court relied upon insufficient evidence when designating a defendant as an SVP under the following standard:
A challenge to the sufficiency of the evidence is a question of law requiring a plenary scope of review. The appropriate standard of review regarding the sufficiency of the evidence is whether the evidence admitted at trial and all reasonable inferences drawn therefrom, when viewed in the light most favorable to the Commonwealth as the verdict winner, is sufficient to support all the elements of the offenses. As a reviewing court, we may not weigh the evidence and substitute our judgment for that of the fact-finder. Furthermore, a fact-finder is free to believe all, part or none of the evidence presented.Commonwealth v. Haughwout , 837 A.2d 480, 484 (Pa. Super. 2003) (citations and quotations omitted).
At the hearing prior to sentencing the court shall determine whether the Commonwealth has proved by clear and convincing evidence that the individual is a sexually violent predator. Accordingly, in reviewing the sufficiency of the evidence regarding the determination of SVP status, we will reverse the trial court only if the Commonwealth has not presented clear and convincing evidence sufficient to enable the trial court to determine that each element required by the statute has been satisfied.
As our Supreme Court has made clear, this Court is limited to "simply assessing the legal sufficiency" of the evidence presented; we may neither reweigh the evidence nor require greater proof than is required by the statute. Commonwealth v. Meals , 912 A.2d 213, 214 (Pa. 2005). In assessing the legal sufficiency, this Court must consider the "expert opinion that, to a reasonable degree of professional certainty, [Appellant] was a pedophile." Id. at 223. Our role as an appellate court does not permit us to pick apart, on appeal, the merits of that diagnosis. Id. The diagnosis itself is evidence, and any attack on the underlying merits of the opinion goes to "the weight, and not the sufficiency, of the expert's evidence." Id. at 224.
In the instant case, Judge Banach has authored a comprehensive, thorough, and well-reasoned Opinion, citing to the record and relevant case law, and discussing each of the factors considered in an SVP determination. After a careful review of Appellant's argument and the record, we affirm the trial court's determination that Appellant is an SVP on the basis of that Opinion. See Trial Court Op. at 19-24.
The parties are instructed to append a copy of the trial court's October 20, 2015 Opinion to all future filings. Judgment affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 11/10/2016
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