Opinion
J-S07042-17 No. 840 MDA 2016
04-13-2017
COMMONWEALTH OF PENNSYLVANIA v. RICHARD SOTO, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence February 19, 2016 in the Court of Common Pleas of Dauphin County, Criminal Division, No(s): CP-22-CR-0002599-2014 BEFORE: BOWES, LAZARUS and MUSMANNO, JJ. MEMORANDUM BY MUSMANNO, J.:
Richard Soto ("Soto") appeals from the judgment of sentence imposed following his convictions of rape of a child, involuntary deviate sexual intercourse ("IDSI") with a child, aggravated indecent assault of a child, indecent assault of a child under 13 years of age, unlawful contact with a minor, corruption of minors, and indecent exposure, arising from sexual offenses committed against his fiancé's daughter, M.M. (born in May 2005). We affirm.
See 18 Pa.C.S.A. §§ 3121(c), 3123(b), 3125(b), 3126(a)(7), 6318, 6301, 3127.
In its Opinion, the trial court set forth the relevant factual and procedural history, which we adopt for the purpose of this appeal. See Trial Court Opinion, 8/26/16, at 1-7.
On appeal, Soto raises the following questions for our review:
I. Did [] the [trial] court abuse its discretion by failing to grant [Soto] a new trial on the basis that the guilty verdicts were against the weight of the evidence?Brief for Appellant at 7.
II. Did [] the [trial] court err in sustaining the Commonwealth's objection to [Soto's] introduction of evidence that other adult males were alone with the minor complaining witness?
III. Was the imposition of two consecutive sentences, resulting in an aggregate sentence of 20 to 40 years, clearly unreasonable, so manifestly excessive as to constitute an abuse of discretion, and inconsistent with the protection of the public, the gravity of the offenses, and [Soto's] rehabilitative needs?
In his first claim, Soto argues that the trial court erred in failing to grant a new trial, where the verdicts were against the weight of the evidence. Id. at 33. Soto asserts that the "sole evidence of guilt was the testimony of [M.M.], a developmentally disabled female who was 8 years of age at the time of the alleged offenses." Id. at 34. Soto also claims that M.M.'s testimony was not corroborated by physical evidence. Id. Additionally, Soto contends that M.M. provided "confusing, non-specific, and inconsistent descriptions regarding the times on which the alleged offenses occurred[,]" and that even M.M.'s mother ("Mother") does not believe her. Id. at 34-35. Soto states that M.M. "was also deficient in describing the onset of the abuse." Id. at 36.
We observe the following standard of review:
The finder of fact—here, the jury—exclusively weighs the evidence, assesses the credibility of witnesses, and may choose to believe all, part, or none of the evidence. Issues of witness credibility include questions of inconsistent testimony and
improper motive. A challenge to the weight of the evidence is directed to the discretion of the trial judge, who heard the same evidence and who possesses only narrow authority to upset a jury verdict. The trial judge may not grant relief based merely on some conflict in testimony or because the judge would reach a different conclusion on the same facts. Relief on a weight of the evidence claim is reserved for extraordinary circumstances, when the jury's verdict is so contrary to the evidence as to shock one's sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. On appeal, this Court cannot substitute its judgment for that of the jury on issues of credibility, or that of the trial judge respecting weight. Or review is limited to determining whether the trial court abused its discretion; the Court's role precludes any de novo consideration of the underlying weight question.Commonwealth v. Sanchez , 36 A.3d 24, 39 (Pa. 2011) (internal citations and quotation marks omitted); see also Commonwealth v. Gibbs , 981 A.2d 274, 282 (Pa. Super. 2009) (stating that "[w]hen the challenge to the weight of the evidence is predicated on the credibility of trial testimony, our review of the trial court's decision is extremely limited. Generally, unless the evidence is so unreliable and/or contradictory as to make any verdict based thereon pure conjecture, these types of claims are not cognizable on appellate review." (citation omitted)).
Here, Soto asks us to substitute our judgment for that of the jury, and to reassess the credibility of M.M.'s testimony. From the verdict, it is apparent that the jury found M.M.'s testimony credible, and we may not reconsider the credibility of that testimony on appeal. See Sanchez , supra ; see also Gibbs , supra. Because the evidence supports the jury's verdict, and we discern no abuse of discretion by the trial court, this claim is without merit.
In his second claim, Soto asserts that the trial court erred in sustaining the Commonwealth's objection to evidence that other adult males had been alone with M.M. Brief for Appellant at 38. Soto contends that such evidence is relevant, because "it would have given rise to the inference that [M.M.'s] knowledge of sexual activity stemmed from interaction with someone other than [Soto]." Id. Specifically, Soto states that individuals known as "Percy" and "Uncle Chris" had also been alone with M.M. at various times. Id. Additionally, Soto claims that preventing him from presenting evidence of a third party's guilt would violate his constitutional right to present a complete defense. Id. at 40.
Our standard of review concerning the admissibility of evidence is well settled:
With regard to the admission of evidence, we give the trial court broad discretion, and we will only reverse a trial court's decision to admit or deny evidence on a showing that the trial court clearly abused its discretion. An abuse of discretion is not merely an error in judgment, but an overriding misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of the record.Commonwealth v. Talbert , 129 A.3d 536, 539 (Pa. Super. 2015) (citation omitted).
"Relevance is the threshold for admissibility of evidence." Commonwealth v. Tyson , 119 A.3d 353, 358 (Pa. Super. 2015); see also Pa.R.E. 402. "Evidence is relevant if it has any tendency to make a fact more or less probable than it would be without the evidence[,] and the fact is of consequence in determining the action." Pa.R.E. 401; see also Tyson , 119 A.3d at 358 (stating that "[e]vidence is relevant if it logically tends to establish a material fact in the case, tends to make a fact at issue more or less probable or supports a reasonable inference or presumption regarding a material fact."). However, "[t]he court may exclude relevant evidence if its probative value is outweighed by the danger of ... unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Pa.R.E. 403.
Here, Soto cites the Pennsylvania Supreme Court's decision in Commonwealth v. Johnson , 638 A.2d 940 (Pa. 1994), in support of his argument that evidence that "Percy" and "Uncle Chris" had also been alone with M.M. should have been admitted at trial. In Johnson , our Supreme Court held that, in a prosecution for sexual offenses, the Rape Shield Law does not bar the admission of evidence regarding a prior sexual assault suffered by the victim. Johnson , 638 A.2d at 941; see also id. at 942 (stating that "[t]o be a victim is not 'conduct' of the person victimized."). However, "[i]f the offer of proof shows only that others in addition to the defendant had sexual contact with the victim, but does not show how the evidence would exonerate the defendant, evidence of prior sexual activity is inadmissible under the Rape Shield Law." Commonwealth v. Fink , 791 A.2d 1235, 1242-43 (Pa. Super. 2002).
The pertinent portion of the Rape Shield Law provides the following:
§ 3104. Evidence of victim's sexual conduct18 Pa.C.S.A. § 3104(a).
(a) General Rule.—Evidence of specific instances of the alleged victim's past sexual conduct, opinion evidence of the alleged victim's past sexual conduct, and reputation evidence of the alleged victim's past sexual conduct shall not be admissible in prosecutions under this chapter except evidence of the alleged victim's past sexual conduct with the defendant where consent of the alleged victim is at issue and such evidence is otherwise admissible pursuant to the rules of evidence.
The trial court considered Soto's second claim, and stated the following:
This contention is merely a fishing expedition by [Soto,] and has no such relevance to the case at hand. In the instant matter, M.M. clearly testified that it was [Soto] ... [who] was committing these horrendous acts upon her. She went into great detail about the acts as they occurred. There was no such mention of anyone else having done this to her. M.M. never mentioned [] a "Percy" or an "Uncle Chris" anywhere during her conversation
with the guidance counselor or representative from Children and Youth. [Soto] offered no evidence ... that any other individual committed these acts upon M.M. The introduction of [] adult males other than [Soto,] who may have been alone with M.M. at one point in time (thus creating the inference that it was not [Soto who] harmed this little child)[,] has no relevancy to the outcome of this case.Trial Court Opinion, 8/26/16, at 9.
Upon review, we agree with the trial court's conclusion that such evidence is not relevant to the instant case, as Soto merely asks us to infer that "Percy" and "Uncle Chris" also had the opportunity to have sexual contact with M.M. See Fink , 791 A.2d at 1242-43. Even if Soto had offered evidence that either of those men did, in fact, have sexual contact with M.M., Soto has failed to explain why such evidence would exonerate him. See id.; see also Commonwealth v. Durst , 559 A.2d 504, 506 (Pa. 1989) (concluding that counsel was not ineffective for failing to introduce evidence that others may have also had sexual contact with the victim, where "[i]t was not argued how this evidence would prove that [the defendant] did not commit the assaults," and where "there was more than enough evidence produced at trial" to support the trial court's finding that the defendant had committed the assaults); Commonwealth v. Allburn , 721 A.2d 366, 368 (Pa. Super. 1998) (stating that evidence of a minor victim's prior sexual contact with a third party minor was not admissible in a sexual assault prosecution to explain the victim's knowledge of sexual activity). Thus, Soto's second claim is without merit.
In his third claim, Soto contends that the trial court's imposition of consecutive sentences resulted in an unreasonable and manifestly excessive aggregate sentence. Brief for Appellant at 41. Soto also claims that the trial court considered only the nature of the criminal conduct and need to protect others in imposing consecutive sentences, and failed to consider relevant mitigating evidence (i.e., Soto's work history, lack of prior criminal record, and support of Mother and his children). Id. at 43-44. Additionally, Soto asserts that the trial court improperly "sentenced [] Soto more harshly because [M.M.'s] family found her story incredible." Id. at 44.
Soto's prior record score was zero. For rape of a child and IDSI with a child, the offense gravity score is 14. The standard range of the sentencing guidelines recommends a minimum sentence between 72 months and the statutory limit. See 204 Pa. Code § 303.16. Each offense carries a maximum sentence of 40 years in prison. See 18 Pa.C.S.A. §§ 3121(e)(1), 3123(d)(1).
Soto's claim challenges the discretionary aspects of his sentence. See Commonwealth v. Moury , 992 A.2d 162, 170 (Pa. Super. 2010). "It is well-settled that, with regard to the discretionary aspects of sentencing, there is no automatic right to appeal." Commonwealth v. Mastromarino , 2 A.3d 581, 585 (Pa. Super. 2010).
An appellant challenging the discretionary aspects of his sentence must invoke this Court's jurisdiction by satisfying a four-part test:
We conduct a four-part analysis to determine: (1) whether the 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 the 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.A. § 9781(b).Moury , 992 A.2d at 170 (quotation marks and some citations omitted).
* * *
The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. A substantial question exists only when the appellant advances a colorable argument that the sentencing judge's actions were either: (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process.
Here, Soto filed a timely Notice of Appeal, preserved his issue in his post-sentence Motion, and included a Rule 2119(f) Statement in his brief. Accordingly, we will review Soto's Rule 2119(f) Statement to determine whether he has raised a substantial question.
In his Rule 2119(f) Statement, Soto argues that his aggregate sentence, although within the sentencing guidelines, is manifestly excessive because the trial court failed to consider relevant mitigating factors. Brief for Appellant at 29-31. Soto also claims that the trial court relied on impermissible factors in imposing his sentence. Id. at 32.
"This Court has [] held that an excessive sentence claim—in conjunction with an assertion that the [trial] court failed to consider mitigating factors—raises a substantial question." Commonwealth v. Caldwell , 117 A.3d 763, 770 (Pa. Super. 2015) (en banc) (citing Commonwealth v. Raven , 97 A.3d 1244, 1253 (Pa. Super. 2014)). "Further, reliance on impermissible sentencing factors can raise a substantial question." Commonwealth v. Dodge , 77 A.3d 1263, 1273 (Pa. Super. 2013). Accordingly, we will consider the merits of Soto's claim.
Our standard of review of a challenge to the discretionary aspects of a sentence is well-settled:
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. Robinson , 931 A.2d 15, 26 (Pa. Super. 2007) (citation omitted).
The Sentencing Code provides that "the [trial] court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity 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." 42 Pa.C.S.A. § 9721(b). The trial court must also consider the sentencing guidelines. See id.; see also Commonwealth v. Sheller , 961 A.2d 187, 190 (Pa. Super. 2008) (stating that "[w]hen imposing a sentence, the [trial] court is required to consider the sentence ranges set forth in the Sentencing Guidelines...."). Here, the sentence imposed for each charge falls within the standard range of the sentencing guidelines. See 204 Pa. Code § 303.16(a). Therefore, we may only vacate Soto's sentence if "the case involves circumstances where the application of the guidelines would be clearly unreasonable." 42 Pa.C.S.A. § 9781(c)(2); see also Raven , 97 A.3d at 1254.
Initially, we observe that the sentencing court had the benefit of a pre-sentence investigation report. See N.T., 2/19/16, at 45 (wherein the trial court stated that it reviewed the pre-sentence investigation report prior to sentencing). "Where pre-sentence reports exist, we shall continue to presume that the sentencing judge was aware of relevant information regarding the defendant's character and weighed those considerations along with mitigating statutory factors. A pre-sentence report constitutes the record and speaks for itself." Commonwealth v. Devers , 546 A.2d 12, 18 (Pa. 1988); see also id. (stating that "[h]aving been fully informed by the pre-sentence report, the sentencing court's discretion should not be disturbed.").
Additionally, our review of the record reveals that the trial court considered relevant mitigating factors prior to sentencing Soto. At the sentencing hearing, Soto stated that he loves Mother's children and would never do anything inappropriate to them. See N.T., 2/19/16, at 44. Thereafter, the trial court detailed its sentencing considerations, stating the following:
I also consider that, [] Soto, as an adult, you violated your duty as a stepparent in this case. [M.M. is] not your natural child, and I recognize that. From listening to your children, I'm sure you love all of them very much, as they love you, and that's
quite obvious, and that's a good thing, but I believe you violated your duty as a stepparent to [M.M.]N.T., 2/19/16, at 45-46. The trial court also expressed doubt regarding Soto's ability to be rehabilitated. See Trial Court Opinion, 8/26/16, at 11. Based upon the foregoing, the trial court imposed consecutive standard range sentences for Soto's rape of a child and IDSI with a child convictions. Discerning no abuse of discretion by the trial court, we will not disrupt Soto's sentence on appeal.
Your conduct certainly violates community standards. That goes beyond any words I could ever utter. You've betrayed the trust that was placed in you to safeguard this child. You shattered, literally shattered the life of this child. There's no other way to say it. You shattered her life, totally, completely, unequivocally. You've shattered her life. You've robbed her of her innocence. You took advantage of a vulnerable child.
And you not only robbed her of her innocence and shattered her life, you stole the rest of her family away from her. The other siblings in that household that I'm sure she, being the younger one, looked up to, now from everything I've heard want nothing to do with her, and that's a terrible shame. It really is. So you stole everything from her. So I have to consider that in fairness as well.
The consecutive nature of Soto's sentences, without more, does not necessitate the conclusion that Soto's sentence is manifestly excessive. See Commonwealth v. Prisk , 13 A.3d 526, 533 (Pa. Super. 2011) (stating that "[g]enerally, Pennsylvania law affords the sentencing court discretion to impose its sentence concurrently or consecutively to other sentences being imposed at the same time or to sentences already imposed.") (citation omitted). --------
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 4/13/2017
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