Opinion
J. S41028/16 No. 3308 EDA 2015
08-05-2016
COMMONWEALTH OF PENNSYLVANIA v. WILLIAM STERN Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence August 21, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division No(s): CP-46-CR-0001919-2014 BEFORE: BENDER, P.J.E., DUBOW, J., and STEVENS, P.J.E. MEMORANDUM BY DUBOW, J.:
Former Justice specially assigned to the Superior Court.
Appellant, William Stern, appeals from the Judgment of Sentence entered August 21, 2015, in the Court of Common Pleas of Montgomery County. After careful review, we conclude that (i) the evidence was sufficient to support a finding that Appellant was a sexually violent predator ("SVP"); and (ii) the trial court did not abuse its discretion or impose an unreasonable sentence where Appellant plead guilty to multiple counts of rape and involuntary deviate sexual intercourse for the repeated, escalating, sexual abuse of his minor son over a six-year period. Therefore, we affirm.
The relevant facts, as summarized by the trial court, are as follows.
The victim in this case is [Appellant's] biological son. On January 30, 2014, a friend of the victim, a fellow student at Norristown Area High School, informed a police officer that his friend, the victim, had disclosed to him that his father had been sexually assaulting him for many years.
On February 11, 2014, when the victim was 18 years old, he reported to the police that his biological father had sexually assaulted him since he was 11 years old. The first sexual assault was in September, 2007 (the month in which the victim turned 12). [Appellant] told him that he "wanted to see how he was developing sexually." He showed the victim a pornographic video on his laptop. [Appellant] then manually masturbated the victim. [Appellant] asked the victim about his sexual preference and "kept telling" him that it was "ok, and that there was nothing wrong." The victim reported that the sexual assaults continued "bi-weekly from that time until the present." The assaults progressed over time into mutual oral sex and mutual anal intercourse. The victim stated that oral sex occurred "probably close to 100 times, if not more." The victim reported that he never ejaculated, but that [Appellant] ejaculated "every time," into the victim's mouth. Intercourse occurred more than seven times. The victim reported that he grew up thinking, when he was younger, that it was "between every father and son." The victim was advised by the police to leave the home and seek a Protection From Abuse Order. The last sexual assault occurred on February 3, 2014. The victim stated, "I thought it was my fault that it was happening." He reported that his father was "everything I had" and that he had "no other way to live." "The way I saw it, I was stuck. I didn't have a choice."
In an intercepted telephone conversation between the victim and his father, [Appellant] admitted the sexual assaults but stated that the victim "never said no." He told the victim, "All I ever did was ask. And, and, and you said, okay." [Appellant] told the victim in that telephone conversation that "there would be no more sex," if the victim returned home.
[Appellant] gave a statement to the police after he was arrested on February 19, 2014. He admitted that he had engaged in sexual activity with his son, including manual masturbation, oral sex, and anal intercourse. He admitted showing the victim adult pornography, including homosexual pornography. He admitted that he knew the sexual encounters were wrong, illegal and no
part of the normal father-son relationship. When asked if he had anything to add to his statement, [Appellant] stated that the victim "never said anything that would indicate any problems or issues or that he was being forced. Therefore, it is my belief that it was voluntary."Trial Court Opinion, dated 1/12/16, at 3-5.
The victim began living with [Appellant] in March of 2004 when the victim would have been eight years old. [Appellant] had little contact with the victim prior to 2004. He obtained custody of the victim after the victim's mother was arrested in New Mexico for multiple felonies. The victim lived with [Appellant] until these crimes came to light.
On February 27, 2015, Appellant entered an open plea of guilty before the Honorable William T. Nicholas to two counts of Rape by Forcible Compulsion, one of which was with a victim under 16 years of age; two counts of Involuntary Deviate Sexual Intercourse by Forcible Compulsion, one of which was with a victim under 16 years of age; one count of Corruption of a Minor; and one count of Incest of a minor under 13 years of age.
18 Pa.C.S. § 3121(a)(1); 18 Pa.C.S. § 3123(a)(1); 18 Pa.C.S. § 6301(a)(1)(ii); and 18 Pa.C.S. § 4302(b)(1), respectively.
Judge Nicholas deferred sentencing and ordered a presentence investigation ("PSI"), a psychosexual evaluation, and a Sexually Violent Predator ("SVP") Assessment. On August 21, 2015, Judge Nicholas held a sexually violent predator hearing, at which both sides presented expert testimony and argument. Crediting the expert testimony of the Commonwealth's expert over Appellant's expert, Judge Nicholas concluded that, by clear and convincing evidence, Appellant is an SVP pursuant to 42 Pa.C.S. § 9799.24. N.T., 8/21/15, at 215-19.
After hearing additional testimony and arguments, Judge Nicholas then sentenced Appellant as follows: 10 to 20 years of imprisonment for each count of Rape, to run concurrent to one another; 10 to 20 years of imprisonment for each count of Involuntary Deviate Sexual Intercourse, to run concurrent to one another and consecutive to the Rape sentences; 5 to 10 years of imprisonment for the count of Incest, to run consecutive to the sentences for Involuntary Deviate Sexual Intercourse; and 3 ½ to 7 years of imprisonment for Corruption of a Minor, to run concurrent to the sentence for Incest. The aggregate sentence is 25 to 50 years of imprisonment.
Appellant filed a post-sentence motion challenging his classification as an SVP and alleging that his sentence was manifestly unfair and unreasonable. Both parties submitted briefs to the trial court on those issues. On October 20, 2015, the trial court denied Appellant's post-sentence motion.
Appellant filed a timely Notice of Appeal on November 2, 2015. The trial court and Appellant both complied with Pa.R.A.P. 1925.
On appeal, Appellant raises the two issues he preserved in his post-sentence motion, namely:
1. Did the Honorable Trial Court err in finding that the Appellant (i) has a mental abnormality or disorder making him likely to engage in predatory sexual violent offenses and (ii) meets the statutory criteria to be considered a sexually violent predator?
2. Did the Honorable Trial Court abuse its discretion in imposing a sentence that was manifestly unreasonable and, essentially, a life sentence given the Appellant's age?Appellant's Brief at 3.
In his first issue, Appellant avers that his SVP determination cannot stand because it is predicated on his diagnosis as a pedophile, and the Commonwealth introduced insufficient evidence that the victim in this case was pre-pubescent. 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 Nicholas 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. Trial Court Opinion, dated 1/12/16, at 5-11.
In his second issue, Appellant challenges the discretionary aspects of his sentence. A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right. See Commonwealth v. Hill , 66 A.3d 359, 363 (Pa. Super. 2013). 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." Id. at 363-64.
In the instant case, Appellant filed a timely notice of appeal and a timely post-sentence motion. He also included a separate Pa.R.A.P. 2119(f) statement in his appellate brief. Moreover, Appellant's claim—that the trial court imposed an unreasonable sentence while ignoring the sentencing guidelines and relevant sentencing criteria—presents a substantial question for our review. See Commonwealth v. Scassera , 965 A.2d 247, 250 (Pa. Super. 2009) (holding that a claim that the sentencing court failed to consider the applicable sentencing guidelines, prior to exceeding them, presents a substantial question); Commonwealth v. Sheller , 961 A.2d 187, 190 (Pa. Super. 2008) (holding that an "[a]ppellant's contention that the sentencing court exceeded the recommended range in the Sentencing Guidelines without an adequate basis raises a substantial question for this Court to review."). See also Commonwealth v. Riggs , 63 A.3d 780, 786 (Pa. Super. 2012) (finding a substantial question exists where appellant claims "that the trial court failed to consider relevant sentencing criteria, including the protection of the public, the gravity of the underlying offense and the rehabilitative needs of Appellant, as 42 Pa.C.S.A. § 9721(b) requires, and instead focused on the injuries suffered by the complaining victims.").
Accordingly, we turn to the merits of Appellant's claim, 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).
Where a trial court imposes a sentence outside of the sentencing guidelines, 42 Pa.C.S. § 9721(b) requires the trial court to provide, in open court, a "contemporaneous statement of reasons in support of its sentence." Commonwealth v. Bowen , 55 A.3d 1254, 1264 (Pa. Super. 2012). To satisfy the requirements of Section 9721(b), the trial court must:
demonstrate on the record, as a proper starting point, its awareness of the sentencing guidelines. Having done so, the sentencing court may deviate from the guidelines, if necessary, to fashion a sentence which takes into account the protection of the public, the rehabilitative needs of the defendant, and the gravity of the particular offense as it relates to the impact on the life of the victim and the community, so long as it also states of record the factual basis and specific reasons which compelled it to deviate from the guideline range.Id. (brackets and citation omitted).
The on-the-record disclosure requirement does not require the trial court to make "a detailed, highly technical statement." Commonwealth v. Hunter , 868 A.2d 498, 514 (Pa. Super. 2005). Where the trial court has the benefit of a presentence investigation ("PSI"), our Supreme Court has held that "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)). Where the trial court has reviewed the PSI, it may properly "satisfy the requirement that reasons for imposing sentence 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." Id.
Finally, where the trial court deviates above the guidelines, this Court may only vacate and remand a case for resentencing if we first conclude that "the sentencing court sentenced outside the sentencing guidelines and the sentence is unreasonable." 42 Pa.C.S. § 9781(c)(3). Although the Sentencing Code does not define the term "unreasonable," our Supreme Court has made clear that "rejection of a sentencing court's imposition of sentence on unreasonableness grounds [should] occur infrequently, whether the sentence is above or below the guideline ranges, especially when the unreasonableness inquiry is conducted using the proper standard of review." Commonwealth v. Walls , 926 A.2d 957, 964 (Pa. 2007).
In the instant case, the trial court sentenced Appellant to the statutory maximum on each of six counts, running one half of those sentences consecutive to one another. Although these sentences fell outside of the sentencing guidelines, we do not agree with Appellant that the trial court abused its discretion or otherwise erred in imposing an aggregate sentence of 25 to 50 years of imprisonment.
We begin our analysis by emphasizing the events which immediately proceeded the trial court's imposition of sentence. Although Appellant alleges the trial court merely paid lip service to a myriad of sentencing factors, the record of events immediately preceding the court's imposition of sentence belie Appellant's claim. Not only did the trial court have the benefit of a PSI, but the trial court imposed sentence immediately following hours of testimony and arguments regarding, inter alia: (i) Appellant's age and background, including his employment history and lack of criminal record; (ii) Appellant's rehabilitative needs and efforts to date; (iii) community support for Appellant; (iv) Appellant's willingness to plead guilty; (v) the details and seriousness of the offenses; and (vi) the impact of the offenses on the victim and the community.
The trial court imposed sentence following almost an entire day's worth of evidence and argument. The SVP proceedings commenced at 9:50 am and sentencing did not conclude until 3:50 pm. N.T., 8/21/15, at 1, 284. In that time, the trial court heard from seven witnesses, and the parties entered 15 documents into evidence, including four letters submitted in support of Appellant.
Moreover, prior to imposing sentence, the trial court made a lengthy statement, on the record, explaining its decision:
All right. The Court has the responsibility of fashioning a sentence and explaining the reasons for that sentence. And as judges, we have no greater responsibility than considering a sentence where the person to be sentenced presents with no prior criminal history but the offenses committed are serious, not to say horrendous and vile in the extreme. Mr. Stern has acknowledged that much.
The Sentencing Code directs the Court to consider a sentence where a sentence of confinement is consistent with the need to protect the public, consistent with the gravity of the - - 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.
We have presentence investigations done. And we have sentencing hearings. And we've been at this for the better part of the entire day to consider the facts of this case and to consider Mr. Stern's involvement and his personal situation. We sentence an individual. We sentence the crimes, but we sentence the individual as well.
So we take everything into account, everything that is reflected in the reports. And, certainly, I take into account the statements that [defense counsel] provided with respect to the family and friends that are here in support of Mr. Stern.
The Court first must consider the seriousness of the offense. And no one who has been in this courtroom could fail to come to the conclusion that these offenses were vile and horrendous in the extreme.
[The Commonwealth's Attorney], I think, correctly points out we owe our children love and nurture. We don't victimize our children as responsible human beings. That is so outside the
realm of normal, appropriate parental behavior that that need not be commented upon further. It's vile in the extreme.
And as [the Commonwealth's Attorney] points out, I think quite correct, these events - - these offenses were committed over a seven-year period of time.
Mr. Stern, you did deprive your son of his childhood. And I think without question that's going to carry long-term consequences for him, but we hope and pray that he will find the strength to move on and make a life for himself that's constructive, that he can somehow put this in his past, but that's going to be very difficult, problematical. If he succeeds, wonderful.
But despite that, we have to take into account the seven years of horror that he experienced at your hands. He was truly a victim in the sense that he had nowhere to turn. The person who owed him everything basically deprived him of everything as a child. So that has to be taken into account.
Now, in imposing a sentence, the Court doesn't act out of vengeance, no, but the Court certainly has to take into account the nature of the offense. And we talk in terms of the goals of the sentencing. Certainly, we take into account the rehabilitative needs of the Defendant, but that's a factor that's considered. It's not - - it's not an exclusively considered factor.
In addition to that, we consider the need to send the right message to the larger society. Every sentencing in every case in these Courts is, we hope, a lesson for the larger community as to what conduct will and will not be tolerated.
So while we don't sentence out of vengeance, our sentence has to essentially channel society's outrage at the behavior. That's what this is about.
So we talk in terms of individual deterrence, incapacitation, if you please. You've got to be taken out of society for the period of time that we think is appropriate so that others cannot be victimized.
But beyond the need for individual deterrence, a sentence also has to serve the goal of general deterrence. That's the lesson to the larger community. This conduct simply cannot be tolerated in civilized society. So the sentence has to reflect that.
Now, I do take into account that you did plead guilty. That certainly did spare [the victim] the necessity of offering his testimony in court, but that's basically a consideration that doesn't persuade the Court to impose a sentence any less than the one that I'm about to impose. I think any sentence other than the one I'm about to impose would depreciate the seriousness of this offense.N.T., 8/21/15, at 273-78.
I take into account your age. And I understand that this is going to be a sentence that deprives you of a good portion of the rest of your life, but it's a sentence that must be imposed, I think, for the reasons I've indicated.
And I come back to the point that you made. This was not a single, isolated act for which these guidelines are essentially designed. The guidelines in this case - - and I certainly take into account the sentencing guidelines - - but these sentences will be outside the guidelines as they must be because the guidelines don't take into account the fact that these offenses were repeated over and over and over again literally hundreds of times when this youngster was victimized.
And, again, the fact that the victim was your own child is a betrayal of trust and an utter betrayal of the proper parental role. And I believe what you say is that you now realize that, and you are remorseful. I don't doubt that.
But the point that I come back to is that these crimes deserve punishment. They deserve severe punishment. Liberty is precious. We don't take it away lightly, but in this case, I think you must be deprived of your liberty for a substantial period of time, Mr. Stern.
So if you'll stand, please.
The following sentence is imposed.
Based on all of the foregoing, we conclude that the trial court did not abuse its discretion in imposing a sentence in excess of the aggravated range of the sentencing guidelines. Although the sentences imposed on each count significantly exceeded the sentencing guidelines, the aggregate sentence was not unreasonable. Moreover, the trial court, having considered all of the pertinent aggravating and mitigating information, did not abuse its discretion in sentencing Appellant to the statutory maximum. See Commonwealth v. Rossetti , 863 A.2d 1185, 1194-95 (Pa. Super. 2004) (affirming a statutory maximum sentence imposed after the trial court considered and balanced all of the relevant mitigating and aggravating facts). Thus, Appellant's argument to the contrary lacks merit.
We note that, had the trial court sentenced Appellant to the top of the standard range and run all six sentences consecutive to one another, Appellant would have received an identical 25 to 50 year sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/5/2016
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