Opinion
J-S74039-16 No. 2106 EDA 2015
01-27-2017
COMMONWEALTH OF PENNSYLVANIA v. MICHAEL MURPHY Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 12, 2011
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): MC-51-CR-0640511-2006 BEFORE: OTT, J., RANSOM, J., STEVENS, P.J.E. MEMORANDUM BY STEVENS, P.J.E.:
Former Justice specially assigned to the Superior Court.
This is an appeal from the judgment of sentence entered by the Court of Common Pleas of Philadelphia County after the revocation of Appellant Michael Murphy's probation. Appellant contends there was insufficient evidence to support the revocation of his probation and claims that he received a manifestly excessive sentence. After careful review, we affirm.
In 2006, Appellant pled guilty to indecent assault and endangering the welfare of a child in connection with his inappropriate sexual contact with his girlfriend's minor daughter ("the victim"). The Honorable Alfred J. DiBona, Jr. imposed an aggregate term of ten years' probation and prohibited Appellant from having any unsupervised contact with the victim.
In July 2011, Appellant's probation officer sought the revocation of Appellant's probation after receiving a complaint from the victim's sister, A.M., in which she alleged that Appellant had inappropriately touched her in an attempt to have sexual contact with her. See Complaint, 6/21/11, at 1. On July 13, 2011, Judge DiBona conducted Appellant's violation of probation hearing. A.M. asserted that on the night in question, she was staying at her mother's home and awoke at 3:00 a.m. to find Appellant rubbing her leg towards her vagina. After A.M. demanded to know what he was doing, Appellant ordered her to quiet down and told her he was giving her a massage. Appellant proceeded to rip the bedsheets off of A.M. and tried to kiss her. A.M. resisted Appellant's advance and yelled for him to stop.
Once Appellant ran from the room, A.M. locked the door and escaped out the window. While A.M. indicated that Appellant was unable to make any physical contact with her breasts or vagina, A.M. shared that Appellant had previously made inappropriate sexual comments to her. For example, A.M. testified that Appellant had claimed A.M. would have an orgasm if he massaged her and Appellant told A.M. he would "F" the shit out of her. N.T., 7/13/11, at 10.
In response, Appellant testified on his own behalf, claiming that earlier the previous evening, Appellant had given A.M. marijuana, smoked it with her, and massaged her neck. In closing argument, Appellant's counsel argued that A.M.'s testimony merely showed that Appellant tried to make a romantic advance at an adult female and was unsuccessful. The prosecution asked the revocation court to find that Appellant had violated his probation, asserting that Appellant had committed attempted indecent assault.
At the conclusion of the hearing, Judge DiBona revoked Appellant's probation and sentenced him to one to five years' imprisonment. Appellant filed a post-sentence motion challenging the sufficiency of the evidence supporting his violation of probation and the discretionary aspects of his sentence. The revocation court denied his post-sentence motion.
Appellant filed an untimely notice of appeal. After Appellant sought post-conviction relief and had his direct appeal rights reinstated twice, the Honorable Ann Butchart directed Appellant to file a concise statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b) and indicated that any issue not raised in this statement would be waived for appellate review.
In his concise statement, Appellant limited his appeal to a single allegation: "[t]he VOP [Violation of Probation] Court erred by finding a violation of probation, because even if the complainant's testimony were believed, the evidence did not establish that [Appellant] violated a single term of his probation that warranted any term of imprisonment." Rule 1925(b) statement, 12/2/15, at 1.
On appeal, Appellant raises two issues for our review:
1. Was the evidence insufficient to establish [Appellant] had violated his probation, where the Commonwealth's own witness established that [Appellant] had not actually done anything wrong?Appellant's Brief, at 5.
2. Was the sentence imposed after probation was revoked manifestly excessive?
Our standard of review for sufficiency claims is well-established:
A challenge to the sufficiency of the evidence is a question of law subject to plenary review. We must determine 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 elements of the offenses. A reviewing court may not weigh the evidence or substitute its judgment for that of the trial court.Commonwealth v. Perreault , 930 A.2d 553, 558 (Pa.Super. 2007).
To establish a probation violation meriting revocation, the Commonwealth must prove, by a preponderance of the evidence that "that the probationer's conduct violated the terms and conditions of his probation, and that probation has proven an ineffective rehabilitation tool incapable of deterring probationer from future antisocial conduct." Id. As our courts apply a broad standard to use in determining whether probation has been violated, "the reason for revocation of probation need not necessarily be the commission of or conviction for subsequent criminal conduct." Commonwealth v. Ortega , 995 A.2d 879, 886 (Pa.Super. 2010) (citations and internal quotations omitted). See also Commonwealth v. Castro , 856 A.2d 178, 180 (Pa.Super. 2004) ("probation may be revoked on the basis of conduct which falls short of criminal conduct"). While the burden of proof in a criminal case to sustain a conviction is beyond a reasonable doubt, the lesser burden of proof of a preponderance of the evidence is necessary to establish a violation probation. Castro , 856 A.2d at 180.
The record contains sufficient evidence to support Judge DiBona's decision to find Appellant had violated his probation. In this case, Appellant had been previously convicted of the indecent assault of a minor victim. At the probation revocation hearing, the same victim's young adult sister, A.M., testified that she awoke at 3:00 a.m. one early morning to find Appellant rubbing her leg. In the statement she provided to Appellant's probation officer, A.M. specifically stated that Appellant "put his hand up my leg towards my vagina." N.T. at 5, Statement of Complaint (Exhibit D-1), at 1.
This testimony demonstrated that Appellant entered A.M.'s room in the middle of the night and touched her upper thigh as she slept. While Appellant characterizes this conduct as a harmless effort to massage A.M. and a "routine attempt at physical affection that was rebuffed," A.M. was incapable of consenting to this physical contact as she was sleeping. Appellant's Brief, at 12. It is clear that Appellant sought sexual gratification through this touch, given his previous inappropriate sexual comments indicating that he would give A.M. an orgasm if he massaged her and expressed his desire to "F the shit" out of A.M. N.T., 7/13/11, at 10.
While probation may be revoked on the basis of conduct which falls short of criminal conduct, Appellant could be prosecuted for attempted indecent assault. "[A] person is guilty of indecent assault if the person has indecent contact with the complainant ... for the purpose of arousing sexual desire in the person or the complainant and ... the person does so without the complainant's consent." 18 Pa.C.S. § 3126. The Crimes Code defines indecent contact 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. This Court has found that a victim's leg could be considered an "intimate part" for the purpose of sustaining an indecent assault conviction. See Commonwealth v. Fisher , 47 A.3d 155, 158 (Pa.Super. 2012) (stating that the "evidence was sufficient to permit the jury to find that the backs of [the victim's] legs from ankle to just below the buttocks were intimate parts of the body that Appellant touched"). See also Commonwealth v. Capo , 727 A.2d 1126, 1127 (Pa.Super. 1999) (affirming indecent assault conviction for appellant who touched the victim's shoulders, neck, and back without her consent).
Appellant's inappropriate touch of A.M. was sufficient proof that his probationary sentence for his previous indecent assault of A.M.'s minor sister was an "ineffective vehicle to accomplish rehabilitation and not sufficient to deter against future antisocial conduct." Ortega , supra. Instead, Appellant showed a propensity to seek sexual contact with his girlfriend's daughters without their consent. Moreover, Appellant admitted to drug use while on probation as he testified that he smoked marijuana and gave some to A.M. As noted above, it is not necessary that the Commonwealth have brought criminal charges against Appellant for this conduct to be considered a violation of probation. See also Commonwealth v. Colon , 102 A.3d 1033, 1042 (Pa.Super. 2014) (finding the appellant's assaultive behavior was sufficient to show his probation was ineffective in accomplishing rehabilitation and had not deterred antisocial conduct). Accordingly, the Commonwealth presented sufficient evidence to justify the revocation of Appellant's probation.
In his appellate brief, Appellant also raises a challenge to the discretionary aspects of his sentence, claiming that his sentence was excessive. As Appellant failed to raise this sentencing claim in his concise statement pursuant to Rule 1925(b), it is waived for appellate review. Pa.R.A.P. 1925(b)(4)(vii); Commonwealth v. Lord , 553 Pa. 415, 719 A.2d 306 (1998) ("Any issues not raised in a 1925(b) statement will be deemed waived").
As Appellant's claims on appeal are meritless or waived, we affirm the judgment of sentence.
Affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 1/27/2017