Opinion
J-S18041-16 No. 1156 MDA 2015
05-13-2016
COMMONWEALTH OF PENNSYLVANIA, Appellee v. KEVIN MARK HAGENS, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence May 4, 2015, in the Court of Common Pleas of Lancaster County, Criminal Division, at No(s): CP-36-CR-0000111-2014 CP-36-CR-0000114-2014 BEFORE: BOWES, LAZARUS, and STRASSBURGER, JJ. MEMORANDUM BY STRASSBURGER, J.:
Retired Senior Judge assigned to the Superior Court.
Kevin Mark Hagens (Appellant) appeals from the judgment of sentence imposed on May 4, 2015, following his convictions for various offenses relating to the sexual abuse of his great-nieces. Upon review, we affirm.
At docket number CP-36-CR-0000111-2014 (111-2014), Appellant was charged with involuntary deviate sexual intercourse (IDSI), unlawful contact with a minor, and corruption of minors for acts committed upon O.H., born in February 2007. At docket number CP-36-CR-0000114-2014 (114-2014), Appellant was charged with indecent assault, unlawful contact with a minor, and corruption of minors for acts committed upon A.K., born in February 2002.
On January 23, 2014, the Commonwealth filed a notice to consolidate the cases for trial pursuant to Pa.R.Crim.P. 582(B)(1).
On November 4, 2013, the Commonwealth filed a motion to permit testimony by O.H. and A.K. by contemporaneous alternative method pursuant to 42 Pa.C.S. § 5985. The Commonwealth subsequently filed two petitions to admit testimony under the tender years hearsay exception, 42 Pa.C.S. § 5985.1, and the court held hearings on the petitions on December 1, 2014, and January 20, 2015. Relevant to this appeal, the court allowed, inter alia, the admission of certain hearsay statements made by O.H. to S.P. as substantive evidence at trial.
A jury trial was held from January 28-30, 2015, after which Appellant was found guilty of all charges. He was sentenced to an aggregate term of 18 to 36 years of imprisonment. Specifically, at docket number 111-2014, Appellant was sentenced to concurrent terms of imprisonment of 16 to 32 years on the charges of IDSI and unlawful contact with a minor, as well as a concurrent term of imprisonment of two to four years for the corruption-of-minors charge. At docket number 114-2014, Appellant was sentenced to concurrent terms of imprisonment of two to four years for the charges of indecent assault, unlawful contact with minors, and corruption of minors. The aggregate sentences imposed at each docket number were to be served consecutively to one another, for a total aggregate sentence of 18 to 36 years of imprisonment.
Appellant was ordered to undergo an evaluation by the Sexual Offenders Assessment Board (SOAB) pursuant to the Sex Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41. According to the trial court,
On April 8, 2015, the Office of the District Attorney received the evaluation conducted by the SOAB[, which] determined that Appellant did not meet the criteria of a[ sexually violent predator (SVP)]. With this recommendation, the District Attorney's Office notified the [c]ourt on April 8, 2015, that it would not be filing a praecipe for an SVP hearing. Accordingly, the case was scheduled for sentencing.Trial Court Opinion, 8/3/2015, at 3 (citation omitted).
On May 13, 2015, Appellant filed post-sentence motions, which the trial court denied on June 2, 2015. Appellant then filed timely a notice of appeal to this Court. On July 6, 2015, the trial court directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b), and one was filed. The court filed its opinion pursuant to Pa.R.A.P. 1925(a) on August 3, 2015.
On appeal, Appellant presents the following issues for our consideration:
I. Was an aggregate sentence of eighteen years to thirty-six years [of] incarceration an abuse of the court's discretion and so manifestly excessive as to constitute too severe a punishment and clearly unreasonable under the circumstances of this case, as it was not consistent with the protection of the public, the gravity of the offenses and the rehabilitative needs of [Appellant] where [Appellant] did not cause the victims any physical harm, was not found to meet the criteria for that of a[n SVP] and was unlikely to reoffend and the [c]ourt inappropriately prejudged the case?
II. Did the [c]ourt err in admitting the testimony of S.P. regarding O.H.'s alleged statement to her, where the
circumstances of O.H.'s statement did not provide sufficient indicia of reliability as required by 42 Pa.C.S. §[]5985.1[?]Appellant's Brief at 6 (suggested answers omitted).
With regard to Appellant's first issue, we observe the following.
Challenges to the discretionary aspects of sentencing do not entitle an appellant to review as of right. An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
Commonwealth v. Griffin , 65 A.3d 932, 935 (Pa. Super. 2013) (some citations omitted) (quoting Commonwealth v. Evans , 901 A.2d 528, 533 (Pa. Super. 2006)).We conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.[] § 9781(b).
Instantly, Appellant has filed timely a notice of appeal, presented his claim in a post-sentence motion, and included a statement pursuant to Rule 2119(f) in his brief. Thus, we now consider whether he has raised a substantial question worthy of appellate review.
A substantial question exists where an appellant advances a colorable argument that the trial court's actions were inconsistent with a specific provision of the sentencing code, or contrary to the fundamental norms underlying the sentencing process. In determining whether a substantial question exists, [o]ur inquiry must focus on the reasons for which the appeal is sought in contrast to the facts underlying the appeal, which are
necessary only to decide the appeal on the merits. Additionally, we cannot look beyond the statement of questions presented and the prefatory 2119(f) statement to determine whether a substantial question exists.Commonwealth v. Provenzano , 50 A.3d 148, 154 (Pa. Super. 2012) (internal quotation marks, citations, and emphasis omitted).
Appellant challenges the consecutive nature of his sentences. In support of his challenge, Appellant points to certain mitigating factors present herein and argues that the trial court inappropriately "prejudged" the case with regard to the sentence Appellant would receive upon being convicted.
A court's exercise of discretion in imposing a sentence concurrently or consecutively does not ordinarily raise a substantial question. Rather, the imposition of consecutive rather than concurrent sentences will present a substantial question in only the most extreme circumstances, such as where the aggregate sentence is unduly harsh, considering the nature of the crimes and the length of imprisonment.
Commonwealth v. Caldwell , 117 A.3d 763, 769 (Pa. Super. 2015) (citations and internal quotation marks omitted; emphasis in original).To make it clear, a defendant may raise a substantial question where he receives consecutive sentences within the guideline ranges if the case involves circumstances where the application of the guidelines would be clearly unreasonable, resulting in an excessive sentence; however, a bald claim of excessiveness due to the consecutive nature of a sentence will not raise a substantial question.
The criminal conduct at issue herein related to the sexual abuse of Appellant's two great-nieces and resulted in convictions of one count each of IDSI and indecent assault, two counts of unlawful contact with a minor, and two counts of corruption of minors. Appellant received concurrent terms of imprisonment for each set of convictions as they related to the separate victims; his sentences were consecutive only in that his aggregate term of two to four years of imprisonment imposed at docket number 114-2014 was to be served following his aggregate term of 16 to 32 years of imprisonment imposed at docket number 111-2014. Considering the nature of the crimes at issue and the length of imprisonment imposed, we conclude that this is not a case wherein the court's decision to impose consecutive sentences raises a substantial question. See Commonwealth v. Austin , 66 A.3d 798, 809 (Pa. Super. 2013) (noting that "[i]n seeking a reduction in his aggregate sentence, [the a]ppellant [wa]s seeking a further 'volume discount'" and concluding that, in light of the criminal conduct at issue and the length of imprisonment, the appellant did not present a substantial question with respect to the trial court's decision to impose certain sentences consecutively).
Likewise, we conclude that Appellant's argument based on mitigating factors fails to raise a substantial question. It is unclear whether Appellant argues that the court failed to consider mitigating factors altogether or failed to consider them adequately. We note, however, that the sentencing court had the benefit of a presentence investigation report (PSI). "Where the sentencing court had the benefit of a [PSI], we can assume the sentencing court 'was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors.'" Griffin , 65 A.3d at 937 (quoting Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988)). Moreover, the factors Appellant sets forth were discussed at sentencing, N.T., 5/4/2015, at 2-6, 10-11, and presented in a sentencing memorandum submitted by Appellant. Defense Sentencing Memorandum, 4/29/15, at unnumbered pages 3-5. Thus, we interpret Appellant's argument to be that the court failed to consider mitigating factors adequately. "'[T]his Court has held on numerous occasions that a claim of inadequate consideration of mitigating factors does not raise a substantial question for our review.'" Commonwealth v. Disalvo , 70 A.3d 900, 903 (Pa. Super. 2013) (quoting Commonwealth v. Downing , 990 A.2d 788, 794 (Pa. Super. 2010)). Appellant fails to convince us that such a claim raises a substantial question in this case.
Finally, assuming arguendo that Appellant's claim regarding the court's alleged "prejudgment" of the case raises a substantial question, we conclude that it has no merit. In so doing, we adopt the well-reasoned analysis provided by the Honorable David L. Ashworth on pages 13 to 17 of his Rule 1925(a) opinion, filed August 3, 2015, and we incorporate it herein. Trial Court Opinion, 8/3/2015, at 13-17. Thus, Appellant is not entitled to relief on his discretionary-aspects-of-sentence claim.
In his second issue, Appellant contends that the trial "[c]ourt erred in admitting the testimony of S.P. regarding O.H.'s alleged statement to her, where the circumstances of O.H.'s statement did not provide sufficient indicia of reliability as required by 42 Pa.C.S. §[]5985.1." Appellant's Brief at 17. Appellant argues that, at the hearing held on December 1, 2014, S.P. repeatedly testified that O.H. never talked to S.P. about whether Appellant "had done anything to O.H.," but in S.P.'s interview with the Lancaster County Children's Alliance, which was also played during the hearing, S.P. stated that "two of her cousins were sexually abused," both cousins told her, and O.H. told her that Appellant "had licked her girl part." Id. at 19. Appellant contends that "[t]his blatant discrepancy and contradiction certainly calls into question the reliability of O.H.'s alleged statement and whether or not O.H. ever even made such a statement to S.P." Id. We disagree.
Generally, the admissibility of evidence is a matter of trial court discretion and a ruling thereon will only be reversed upon a showing that the trial court abused that discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.
Hearsay is generally inadmissible at trial unless it falls into an exception to the hearsay rule. [T]he Tender Years Statute creates an exception to the hearsay rule in recognition of the fragile nature of the victims of childhood sexual abuse.
The Tender Years Statute provides an exception to the hearsay rule, in pertinent part, as follows:
(a) General rule.—An out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Ch[] ... 31 (relating to sexual offenses), ... not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if:
(1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and
(2) the child either:
(i) testifies at the proceeding; or
(ii) is unavailable as a witness.
Commonwealth v. Barnett , 50 A.3d 176, 182-83 (Pa. Super. 2012) (internal quotation marks, footnote, and some citations omitted).
42 Pa.C.S. § 5985.1.
Regarding 42 Pa.C.S. § 5985.1(a)(1), this Court has previously stated that [i]ndicia of reliability include: the spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age and the lack of a motive to fabricate.
Upon review, we conclude that Appellant's argument misses the mark. Specifically, Appellant takes issue with the statement made by O.H. to S.P., arguing that it does not provide sufficient indicia of reliability pursuant to the tender years hearsay exception. Appellant supports his argument, however, by pointing to the conflict between S.P.'s testimony provided at the December 1, 2014 hearing and S.P.'s statements made during the interview with the Lancaster County Children's Alliance played during the hearing. Appellant has failed to demonstrate, and we fail to see, how the inconsistency in S.P.'s statements provides a basis upon which to conclude that the underlying statements made by O.H. are unreliable pursuant to the multi-factored test outlined above. Indeed, such inconsistency has no bearing on that determination. For this reason, Appellant's argument does not entitle him to relief.
Judgment of sentence affirmed.
Judge Lazarus joins.
Judge Bowes concurs in the result. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 5/13/2016
Image materials not available for display.