Com. v. Rico, H. ( 2017 )


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  • J-S33045-17
    NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37
    COMMONWEALTH OF PENNSYLVANIA              :   IN THE SUPERIOR COURT OF
    :         PENNSYLVANIA
    Appellee                   :
    v.                               :
    :
    HECTOR RICO,                              :
    :
    Appellant                  :   No. 1542 MDA 2016
    Appeal from the Judgment of Sentence September 12, 2016
    in the Court of Common Pleas of Schuylkill County
    Criminal Division at No(s): CP-54-CR-0000850-2015
    BEFORE:       BENDER, P.J.E., OTT and STRASSBURGER,* JJ.
    MEMORANDUM BY STRASSBURGER, J.:                          FILED JULY 28, 2017
    Hector Rico (Appellant) appeals from the judgment of sentence
    entered following his convictions for four counts of rape of a child, four
    counts of incest of a minor, one count of corruption of a minor, and one
    count of endangering the welfare of a child. We affirm.
    The aforementioned charges stem from Appellant’s multiple rapes of
    his biological daughter (Victim). At trial, Victim testified that when she was
    eleven years old and in fifth grade, Appellant engaged in vaginal intercourse
    with her.     Trial Court Opinion, 11/28/2016, at 1-2.    Thereafter, Appellant
    continued to force her to submit to sexual intercourse at least once a week,
    in various rooms throughout the residence occupied by Appellant, Victim and
    Victim’s mother.     Id.   The abuse occurred while Victim’s mother was at
    work.     These rapes continued until March 19, 2015, when Appellant
    instructed Victim to take a pregnancy test in response to her complaining
    *Retired Senior Judge assigned to the Superior Court.
    J-S33045-17
    that her stomach hurt.      Id. at 2.      Upon discovering that Victim was
    pregnant, Appellant eventually admitted his wrongdoing to his Victim’s
    mother and the police. Specifically, after initially denying his involvement by
    accusing Victim of engaging in sexual intercourse with him while he was
    asleep, he admitted that he engaged in sexual intercourse with Victim
    several times in her bed, his bed, and the bathroom shower.        Id.   Victim
    carried her baby to term, and according to the Commonwealth’s forensic
    profiling expert, the probability of Appellant being the father was 99.9999
    percent. Id.
    Appellant was convicted of the aforementioned offenses following a
    jury trial, and, on September 12, 2015, he was sentenced to an aggregate
    term of 24 to 48 years of incarceration. Appellant did not file post-sentence
    motions, and timely filed this appeal.1
    On appeal, it appears that Appellant is asking us to decide whether he
    may be sentenced on four counts of incest despite engaging in sexual
    intercourse with only one familial victim.      We discern this issue from
    Appellant’s summary of the argument and argument, as Appellant’s brief
    does not include a “Statement of Questions Involved,” which is required by
    Pa.R.A.P. 2111 and 2116.      His brief also disregards the requirements of
    1
    The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
    statement and Appellant complied.          However, on appeal, Appellant
    abandoned both of the issues raised in his concise statement.
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    Pa.R.A.P. 2119(a) by failing to include a heading at the beginning of his
    argument stating in distinctive type or in type distinctively displayed the
    particular point treated therein. Additionally, as the Commonwealth points
    out, Appellant did not include the issue regarding multiple counts of incest in
    his Pa.R.A.P. 1925(b) concise statement.
    Normally, errors of this magnitude would result in waiver, and we
    caution Appellant that compliance with the Rules of Appellate Procedure is
    not optional.   Nevertheless, because Appellant appears to be raising a
    challenge to the legality of his sentence, we will proceed to review the
    merits.   See Commonwealth v. Rossetti, 
    863 A.2d 1185
    , 1193 (Pa.
    Super. 2004) (“While, ordinarily, we would find a claim to be waived because
    it was not raised in Appellant's 1925(b) statement, a challenge to the
    legality of sentence is never waived and may be the subject of inquiry by the
    appellate court sua sponte.”); Commonwealth v. Petterson, 
    49 A.3d 903
    ,
    911 (Pa. Super. 2012) (noting that a challenge to a sentence on the grounds
    that multiple counts should have merged for sentencing purposes is a
    nonwaivable challenge to the legality of the sentence).
    We summarize Appellant’s argument as follows. Despite having sexual
    intercourse with his daughter multiple times, Appellant argues that the four
    convictions for incest should have merged into a single incest charge for
    sentencing purposes because he engaged only in a single criminal act.
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    Appellant’s Brief at 9.     Based on the subheadings in the crimes code,
    Appellant asserts that unlike rape, which is a crime against an individual, the
    legislature intended the crime of incest to be a crime against the family,
    which occurs one time when a person engages in prohibited conduct with a
    family member.     Id. at 11.    He further argues that because the statute
    criminalizing   incest   prohibits   marriage,   cohabitation,   and/or   sexual
    intercourse with a family member, and marriage and cohabitation indicate a
    continuing course of conduct over time, the statute is violated just once
    when the actor engages in any of the three acts with a family member, even
    if the actor engages in sexual intercourse repeatedly. Id. at 10.
    As this issue presents a question of law, our standard of review is de
    novo and the scope of our review is plenary.              Commonwealth v.
    Davidson, 
    938 A.2d 198
    , 203 (Pa. 2007).
    The following principles regarding statutory interpretation guide our
    analysis.
    The object of all interpretation and construction of statutes is to
    ascertain and effectuate the intention of the General Assembly.
    Every statute shall be construed, if possible, to give effect to all
    its provisions. In general, the best indication of the General
    Assembly’s intent is the plain language of the statute. When
    reviewing the language of a statute, the words and phrases
    employed by the General Assembly shall be construed according
    to rules of grammar and according to their common and
    approved usage. When the words of a statute are clear and
    unambiguous, there is no need to look beyond the plain meaning
    of the statute under the pretext of pursuing its spirit.
    Consequently, only when the words of a statute are ambiguous
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    should a court seek to ascertain the intent of the General
    Assembly through consideration of statutory construction
    factors.
    
    Id.
     at 216–17 (citations and quotation marks omitted).
    To determine whether multiple charges merge with one another, we
    must examine the statute governing merger, which provides as follows.
    No 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.
    Our Supreme Court has described the merger doctrine in the following
    fashion:
    The purpose of the merger doctrine is double jeopardy-based,
    i.e., to safeguard against multiple punishments for the same act.
    The test for sentencing merger is the same test utilized to decide
    whether more than one offense has been committed in the
    double jeopardy context. ...[T]he fact that this Court employs
    the same analysis in double jeopardy and sentencing merger
    cases is a function of the Double Jeopardy Clause’s prohibition ...
    which protects against both successive punishments and
    successive prosecutions for the same offense. The United States
    Supreme Court has explained, however, that [e]ven if the crimes
    are the same[,] ... if it is evident that a state legislature
    intended to authorize cumulative punishments, a court’s inquiry
    is at an end.
    Davidson, 938 A.2d at 217–18 (footnotes, citations, and quotation marks
    omitted).
    Appellant was convicted of the following offense:
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    (b) Incest of a minor.--A person is guilty of incest of a minor, a
    felony of the second degree, if that person knowingly marries,
    cohabits with or has sexual intercourse with a complainant who
    is an ancestor or descendant, a brother or sister of the whole or
    half blood or an uncle, aunt, nephew or niece of the whole blood
    and:
    (1) is under the age of 13 years….
    18 Pa.C.S.A. § 4302(b)(1).
    Appellant fails to convince us that he engaged in one single criminal
    act.   By the plain language of the statute, a person commits incest of a
    minor when the person knowingly has sexual intercourse with a complainant
    who is both a descendant and under the age of 13 years. According to the
    evidence of record, which Appellant does not dispute in his brief, Appellant
    knowingly had sexual intercourse with his daughter when she was under the
    age of 13. Appellant committed this act multiple times. Nothing about the
    phrase “has sexual intercourse” suggests that a father may have sexual
    intercourse with his daughter ad infinitum but be punished for only one
    incestuous encounter. Criminals are not entitled to a “volume discount” on
    crime. Commonwealth v. Anderson, 
    650 A.2d 20
    , 22 (Pa. 1994).
    The legislature’s decision to criminalize marriage to and cohabitation
    with certain relatives within the same statute does not change the plain
    meaning of the words “has sexual intercourse.”2      There are three ways to
    2
    In his brief, Appellant poses several unrelated hypotheticals regarding
    marriage and cohabitation, and argues that we should find Section 4302 void
    -6-
    J-S33045-17
    violate the incest statute, as indicated by the disjunctive use of the word
    “or,” and Appellant chose the third way to violate the statute and did so
    repeatedly. The statutory language does not reveal any legislative intent to
    prohibit prosecuting a defendant for more than one count of incest when the
    defendant subjected one victim to sexual intercourse on multiple occasions.
    Appellant’s argument that repeated engagement in sexual intercourse
    is a single act committed against the family is unconvincing. As this Court
    has pointed out previously, “[a]lthough incest is included in the chapter
    setting forth offenses against the family, the portion of the statute at issue
    here also involves sexual offenses.” Commonwealth v. Fouse, 
    612 A.2d 1067
    , 1069 (Pa. Super. 1992). While the purpose of the incest statute is to
    “lessen the chance of genetic defects while promoting the solidarity of the
    family unit,” it also aims to protect “children from parental or familial sexual
    abuse.” Commonwealth v. White, 
    491 A.2d 252
    , 255 (Pa. Super. 1985).
    Appellant’s interpretation of the statute ignores the plain language and
    for vagueness. Appellant’s Brief at 10. Appellant fails to develop sufficiently
    this argument. He does not cite to specific sections of the United States or
    Pennsylvania constitution or any applicable law. Moreover, Appellant did not
    challenge the constitutionality of the statute in the trial court below or in his
    concise statement.     Therefore, Appellant’s claim that Section 4302 is
    unconstitutionally vague is waived. See Pa.R.A.P. 302(a); Pa.R.A.P.
    1925(b)(4)(v); see also Commonwealth v. Diodoro, 
    970 A.2d 1100
    ,
    1104 (Pa. 2009), quoting Commonwealth v. Castillo, 
    888 A.2d 775
    , 780
    (Pa. 2005) (“Any issues not raised in a Pa.R.A.P.1925(b) statement will be
    deemed waived.”) and Commonwealth v. Bavusa, 
    832 A.2d 1042
    , 1051–
    52 (Pa. 2003) (“If appellant had a constitutional objection to the statute ...,
    he was obliged to specifically forward it below.”).
    -7-
    J-S33045-17
    minimizes the sexual abuse endured by his daughter, who was victimized
    each time Appellant had sexual intercourse with her.
    Moreover, this Court has not hesitated to uphold multiple convictions
    for incest when the perpetrator has committed more than one criminal act
    against a single child.   Commonwealth v. Northrip, 
    945 A.2d 198
     (Pa.
    Super. 2008) (affirming conviction of four counts of incest in connection with
    repeated sexual assaults against one familial victim and vacating the
    judgment of sentence on other grounds); Commonwealth v. J.F., 
    800 A.2d 942
    , 944 (Pa. Super. 2002) (affirming judgment of sentence imposed after
    convictions for three counts of incest relating to sexual acts performed on
    two familial victims); Commonwealth v. Ross, 
    543 A.2d 1235
    , 1236 (Pa.
    Super. 1988) (affirming judgment of sentence imposed after convictions for
    two counts of incest in connection with discrete sexual acts performed on
    one familial victim).
    Based on the foregoing, multiple punishment was properly imposed
    upon Appellant for committing multiple, independent violations of Section
    4302(b)(1).    See Petterson, 49 A.3d at 912 (holding that where a
    defendant commits multiple distinct criminal acts, the concept of merger for
    sentencing purposes does not apply); Davidson, 938 A.2d at 218–19
    (same).
    Judgment of sentence affirmed.
    -8-
    J-S33045-17
    Judgment Entered.
    Joseph D. Seletyn, Esq.
    Prothonotary
    Date: 7/28/2017
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