Opinion
J-S18029-19 No. 1317 MDA 2018
06-03-2019
COMMONWEALTH OF PENNSYLVANIA v. MANUEL PAGAN, JR. Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered July 11, 2018
In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0001286-2017 BEFORE: BOWES, J., NICHOLS, J., and STEVENS, P.J.E. MEMORANDUM BY NICHOLS, J.:
Former Justice specially assigned to the Superior Court.
Appellant Manuel Pagan, Jr. appeals from the judgment of sentence imposed following his jury trial convictions for two counts each of aggravated indecent assault and indecent assault. Appellant alleges the trial court erred in making various evidentiary rulings, refusing to find a conflict of interest with trial counsel's representation of Appellant, and imposing separate sentences for the aggravated indecent assault convictions. We affirm.
18 Pa.C.S. §§ 3125(a)(1), (2); 3126(a)(1), (2).
We adopt the trial court's facts and procedural history. See Trial Ct. Op., 10/3/18, at 1-5. On July 11, 2018, the trial court sentenced Appellant to an aggregate term of seven to twenty years' imprisonment. Appellant did not file post-sentence motions.
In relevant part, the trial court sentenced Appellant to five to ten years' imprisonment for aggravated indecent assault "involving forcible digital penetration which occurred downstairs" and a consecutive two to ten years' imprisonment for aggravated indecent assault involving the "digital penetration which occurred upstairs without the victim's consent." Trial Ct. Op. at 4.
On August 10, 2018, Appellant timely filed a notice of appeal. The court ordered Appellant to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal, which Appellant timely filed.
Appellant now raises five questions for this Court's review:
[1]. Did the trial court abuse its discretion in determining that the probative value of Appellant's 2005 crimen falsi convictions outweighed the prejudicial effect arising from the admission of the evidence?Appellant's Brief at 3-4.
[2]. Did the trial court err in denying Appellant's objection to an actual conflict of interest created by his filing of a PCRA petition involving representation of Appellant by a member of the Public Defender's Office in another docket?
[3]. Did the trial court err in denying Appellant's motion to admit impeachment evidence?
[4]. Did the trial court err in determining that testimony from two Commonwealth witnesses to whom the victim spoke after the alleged assault constituted prior consistent statements?
[5]. Was Appellant's sentence an illegal sentence with respect to counts 3 and 4 of the information?
After a review of the parties' briefs, the record, and the trial court's decision, we adopt and affirm on the basis of the trial court's opinion addressing the merits of the issues raised on appeal. See Trial Ct. Op. at 5-26. The court did not abuse its discretion in determining that Appellant's 2005 juvenile adjudications were more probative than prejudicial under the circumstances of this case. See id. at 5-9. The court correctly determined that trial counsel from the public defender's office did not have a conflict of interest due to Appellant's filing of a Post Conviction Relief Act petition, alleging ineffective assistance from another member of the public defender's office in an unrelated case. See id. at 9-13. The court did not err in denying Appellant's motion to admit DNA evidence suggesting that the victim engaged in prior sexual activity with other males, because the limited impeachment value of the evidence was outweighed by its prejudicial effect. See id. at 14-18 (discussing 18 Pa.C.S. § 3104).
We do not, however, adopt the trial court's conclusion that the victim's statements to her mother and friend were admissible as prior consistent statements to rehabilitate, pursuant to Pa.R.E. 613(c). See Trial Ct. Op. at 19-22.
The court did not abuse its discretion by admitting the victim's statements to her mother and friend, which were admissible as evidence of the "prompt complaint" of the sexual assault. See id. at 22-24. Finally, Appellant's aggravated indecent assault convictions did not merge for sentencing, because Appellant committed multiple criminal acts and the charges were based on two different subsections of the statute. See id. at 25-26. Accordingly, having discerned no abuse of discretion or error of law, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 06/03/2019
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