Opinion
J. S27032/15 No. 438 EDA 2014
07-14-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. ANTHONY PARKER, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence January 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0006538-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD, JJ. MEMORANDUM BY FITZGERALD, J.:
Former Justice specially assigned to the Superior Court.
Appellant, Anthony Parker, appeals from the judgment of sentence entered in the Philadelphia County Court of Common Pleas following a jury trial and convictions for rape of a child, involuntary deviate sexual intercourse with a child, aggravated indecent assault of a person less than thirteen years of age, unlawful contact with a minor, endangering the welfare of children, indecent assault of a person less than thirteen years of age, and corruption of minors. Appellant contends that it was error for the court to admit into evidence a letter that was previously excluded at his first trial, which had resulted in a mistrial. He further contends the letter was not relevant and, regardless, was more prejudicial than probative. Appellant also claims the court failed to instruct the jury on a prompt complaint and improperly instructed the jury on flight. Finally, he asserts the court failed to merge his sentences for aggravated indecent assault and indecent assault. We hold Appellant is due no relief.
We adopt the facts set forth in the trial court's opinion. See Trial Ct. Op., 9/5/14, at 1-4. As part of the victim's recovery and counseling process, she was asked to write a letter to Appellant that described her feelings and what she would say to him. N.T. Trial, 9/25/13, at 66. At Appellant's first trial, the court excluded that letter. Because of a hung jury, that trial ended in a mistrial, and Appellant was tried again.
The letter was never intended to be read by Appellant. N.T. Trial, 9/25/13, at 66.
At the end of voir dire for the second trial, Appellant orally moved to exclude the letter. N.T. Trial, 9/24/13, at 207. The court held Appellant's motion under advisement. Id. at 210. Subsequently, the Commonwealth asked the victim to read the letter into the record without objection by Appellant. N.T. Trial, 9/25/13, at 65-68. At the close of the Commonwealth's case, the Commonwealth moved for the admission of all its exhibits and Appellant affirmatively indicated he had no objection. N.T. Trial, 9/27/13, at 23-24.
The jury found him guilty of the above charges. On January 10, 2014, the court sentenced Appellant to an aggregate sentence of twenty-six to fifty-two years' imprisonment followed by a consecutive sentence of seventeen years' probation. The aggregate sentence included a consecutive sentence of four to eight years' imprisonment for aggravated indecent assault of a person less than thirteen years of age and a consecutive sentence of five years' probation for indecent assault of a person less than thirteen years of age.
On January 16, 2014, Appellant filed a post-sentence motion, which only challenged his aggregate sentence as excessive. The court denied Appellant's motion on January 28, 2014, and Appellant timely appealed on February 5, 2014. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b) statement.
Appellant raises the following issues:
Did not the lower court err in permitting the introduction of the complainant's . . . letter to [A]ppellant in its case in chief because (1) the law of the case doctrine prohibited the lower court from reconsidering [the decision of theAppellant's Brief at 4.
judge presiding over Appellant's first trial] grant of [A]ppellant's motion in limine precluding the letter, and (2) the letter does not independently satisfy Pennsylvania Rule of Evidence 803(3), and even if it were admissible, it is irrelevant?
Did not the lower court err in denying [A]ppellant's request for a prompt complaint instruction indicating the lack of a prompt report even though the disclosure occurred at least some five to six years after the alleged incident and [A]ppellant was no longer living in the home?
Did not the lower court err by giving a flight instruction to the jury where the evidence did not reasonable suggest that [A]ppellant knowingly evaded the police or knew the police were looking for him?
Did not the lower court impose an illegal sentence by failing to merge indecent assault of a person less than 13, 18 Pa.C.S. § 3126(a)(7), with aggravated indecent assault of a person less than 13, 18 Pa.C.S. § 3125(a)(7)?
In support of his first issue, Appellant contends that the law-of-the-case doctrine barred the judge in the second trial from reversing the decision of the judge in the first trial to preclude admission of the victim's therapy letter. He also maintains that the letter does not satisfy any one of the exceptions to the hearsay rule. Regardless, Appellant insists the letter is irrelevant. We hold Appellant failed to preserve this issue for appellate review.
"The admission of evidence is a matter vested within the sound discretion of the trial court, and such a decision shall be reversed only upon a showing that the trial court abused its discretion." Commonwealth v. Reid , 811 A.2d 530, 550 (Pa. 2002) (citation omitted). Failure to lodge a timely objection results in waiver of the claim on appeal. Commonwealth v. Murray , 83 A.3d 137, 155 (Pa. 2013). Instantly, Appellant failed to object to the introduction of the victim's letter at the second trial; indeed, Appellant indicated he had no objection to the admission of the letter. See N.T. Trial, 9/25/13, at 65-68; N.T. Trial, 9/27/13, at 23-24. Thus, because Appellant waived the issue for appellate review, we discern no basis for relief. See Murray , 83 A.3d at 155. Regardless, "the grant of a new trial 'wipes the slate clean,' so that a previous court's ruling on the admissibility of evidence generally does not bind a new court upon retrial . . . ." See Commonwealth v. Paddy , 800 A.2d 294, 311 (Pa. 2002) (citations omitted).
We summarize Appellant's arguments in support of his second and third issues. Appellant alleges the court erred by refusing to instruct the jury regarding the absence of a prompt complaint by the victim. He notes the victim, then five years old, waited six years to report the assault. Appellant maintains the victim understood his actions were wrong well before she reported it. Appellant also contends the court mistakenly instructed the jury on flight. He reasons the Commonwealth failed to adduce sufficient evidence to justify the flight instruction. Appellant, we hold, is due no relief for either issue.
In reviewing a challenge to the trial court's refusal to give a specific jury instruction, it is the function of this Court toCommonwealth v. Sandusky , 77 A.3d 663, 667 (Pa. Super. 2013) (citation omitted); accord Commonwealth v. Hawkins , 701 A.2d 492, 511 (Pa. 1997). "The propriety of a prompt complaint instruction is determined on a case-by-case basis pursuant to a subjective standard based upon the age and condition of the victim." Sandusky , 77 A.3d at 667 (citation omitted).
determine whether the record supports the trial court's decision. In examining the propriety of the instructions a trial court presents to a jury, our scope of review is to determine whether the trial court committed a clear abuse of discretion or an error of law which controlled the outcome of the case. A jury charge will be deemed erroneous only if the charge as a whole is inadequate, not clear or has a tendency to mislead or confuse, rather than clarify, a material issue. A charge is considered adequate unless the jury was palpably misled by what the trial judge said or there is an omission which is tantamount to fundamental error. Consequently, the trial court has wide discretion in fashioning jury instructions. The trial court is not required to give every charge that is requested by the parties and its refusal to give a requested charge does not require reversal unless the [a]ppellant was prejudiced by that refusal.
In Sandusky , the defendant alleged the court erred by not giving the prompt complaint instruction. Id. The trial court refused to give the instruction based on reasoning that disregarded the case-by-case standard set forth above. Id. at 668. Thus, the Superior Court ascertained whether the trial court's error was harmless. Id. The Sandusky Court held that because the trial court's credibility instruction mirrored the Pennsylvania Suggested Standard Criminal Jury Instruction on witness credibility and the defendant cross-examined the victims regarding their delay in reporting the criminal acts, no prejudice resulted. Id. at 669.
In Commonwealth v. Powers , 577 A.2d 194 (Pa. Super. 1990), the defendant alleged "the trial court erred in refusing to instruct the jury specifically that the absence of a prompt complaint by the victim must be considered in determining her credibility." Id. at 197. The Powers Court refused to find an abuse of discretion, reasoning, "[t]he charge given here adequately covered the general issue of credibility. To have given the charge requested would have given undue weight to a single factor in the jury's complex credibility analysis." Id. With respect to a flight instruction, this Court held there was no abuse of discretion when the "trial court explained that a motive other than consciousness of guilt may prompt flight." Commonwealth v. Garcia , 847 A.2d 67, 73 (Pa. Super. 2004).
After careful consideration of the parties' briefs, the record, and the decision by the Honorable Gwendolyn N. Bright, we affirm these two issues on the basis of the trial court's decision. See Trial Ct. Op. at 4-6 (holding facts did not justify issuance of prompt complaint instruction and court instructed the jury that Appellant claimed he was unaware police were looking for him and flight does not necessarily establish consciousness of guilt); see also Garcia , 847 A.2d at 73. Even assuming the trial court erred by failing to give a prompt complaint instruction, the court—similar to the trial court in Sandusky —instructed the jury generally on credibility. See N.T. Trial, 9/30/13, at 105-08; Sandusky , 77 A.3d at 669. Thus, any error was also harmless. See Sandusky , 77 A.3d at 669.
Lastly, Appellant contends the trial court imposed an illegal sentence. He reasons that a conviction of indecent assault of a complainant under the age of thirteen merges into the offense of aggravated indecent assault of a complainant under the age of thirteen. Appellant acknowledges that in Commonwealth v. Allen , 856 A.2d 1251 (Pa. Super. 2004), this Court held the offenses do not merge, but maintains Allen is wrong. Appellant's Brief at 39. Appellant acknowledges that a panel of this Court cannot overrule Allen , but asserts that after Allen , the aggravated indecent assault statute was amended to include divisible offenses:
The United States Supreme Court has recognized that where a statute involves "divisible offenses"—the kind which "sets out one or more elements of the offense in the alternative" it is proper to examine which alternative is at issue. See United States v. Descamps , ___ U.S. ___, 133 S. Ct. 2276, 2281 (2013). The current indecent assault provision is such a statute.Id. at 41-42. Appellant thus reasons this Court could hold merger was warranted without contradicting Allen. We hold Appellant is not entitled to relief.
The issue of merger is a question of law, and therefore "our scope of review is plenary and our standard of review is de novo." Commonwealth v . Williams , 920 A.2d 887, 888-89 (Pa. Super. 2007) (citation omitted). In Pennsylvania,
[n]o 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.42 Pa.C.S. § 9765. "The doctrine of merger is a rule of statutory construction designed to determine whether the legislature intended for the punishment of one offense to encompass that for another offense arising from the same criminal act or transaction." Commonwealth v. Evans , 901 A.2d 528, 536 (Pa. Super. 2006) (citation omitted).
Aggravated indecent assault of a person less than thirteen years of age is defined as follows:
(a) Offenses defined.—Except as provided in sections 3121 (relating to rape), 3122.1 (relating to statutory sexual assault), 3123 (relating to involuntary deviate sexual intercourse) and 3124.1 (relating to sexual assault), a person who 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 commits aggravated indecent assault if:
* * *
18 Pa.C.S. § 3125(a)(7). Indecent assault of a person less than thirteen years of age is defined as follows:(7) the complainant is less than 13 years of age . . . .
(a) Offense defined.—A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person or intentionally causes the complainant to come into contact with seminal fluid, urine
or feces for the purpose of arousing sexual desire in the person or the complainant and:
* * *
18 Pa.C.S. § 3126(a)(7). At the time Allen was decided, Section 3126(a) defined indecent assault as follows:(7) the complainant is less than 13 years of age . . . .
(a) Offense defined.—A person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if
* * *
18 Pa.C.S. § 3126(a)(7) (1995) (amended 2005). "Indecent contact" is defined as "[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in any person." 18 Pa.C.S. § 3101.(7) the complainant is less than 13 years of age . . . .
In Allen , our Court examined whether "whether the offenses of indecent assault and aggravated indecent assault are greater and lesser-included offenses." Allen , 856 A.2d at 1253. The Allen Court held they did not merge, reasoning as follows:
Aggravated indecent assault includes an element that is not required to commit indecent assault. That element is penetration of the genitals or anus of the victim. Indecent assault includes an element that is not required to commit aggravated indecent assault. That element is proof of arousing or gratifying sexual desire. [ See 18 Pa.C.S. § 3101.]Id. at 1254.
Since each crime has an additional element not included in the other crime, neither is a lesser-included offense of the other.
We are bound by Allen , and therefore discern no basis for granting Appellant relief. Appellant, however, suggests that the inclusion of divisible offenses in the present indecent assault statute, i.e., "intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant," see 18 Pa.C.S. § 3126(a), requires this Court to identify under which clause Appellant was convicted. We need not engage in that identification because both clauses incorporate the element of arousing sexual desire—an element absent from the aggravated indecent assault statute. Compare id., with 18 Pa.C.S. § 3125(a). Accordingly, having discerned no error of law, see Williams , 920 A.2d at 888-89, we affirm the judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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