Com. v. Kirkpatrick, C. ( 2015 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHARLES J. KIRKPATRICK, : No. 618 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, March 25, 2014,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0001133-2013
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
CHARLES J. KIRKPATRICK, : No. 619 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, March 25, 2014,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0002084-2013
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN AND WECHT, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 23, 2015
Appellant, Charles J. Kirkpatrick, appeals from the judgment of
sentence entered on March 25, 2014, in the Court of Common Pleas of Erie
County. Appellant’s conviction stems from allegations made on two separate
occasions and charged on two dockets. Following a two-day jury trial on
both dockets, appellant was convicted of rape of a child, corruption of
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minors, endangering the welfare of a child, and sexual assault at Docket
No. 1133 of 2013. At Docket No. 2084 of 2013, appellant was convicted of
rape/person less than 13 years of age, sexual assault, indecent assault
without consent of another, corruption of minors, endangering the welfare of
a child and aggravated indecent assault without consent of another.
Appellant was sentenced to an aggregate term of incarceration of 21 to
42 years on both dockets. We affirm.
At Docket No. 1133 of 2013, appellant was convicted of raping his
12 year old step-granddaughter, H.S., on January 13, 2013. The day after
she was raped by appellant while sleeping over at his home, H.S. told her
therapist what had occurred. Detective Sergeant John Holmes of the
Erie Police Department interviewed appellant on February 20, 2013. During
his videotaped statement, appellant admitted to raping H.S.
At Docket No. 2084 of 2013, appellant was convicted of repeatedly
raping and assaulting his step-granddaughter, J.H., beginning in 1999 and
continuing through 2001. J.H. was 10 years old when these assaults began.
In 2002, J.H. told her family and the police that appellant was touching her
inappropriately; however, she was too afraid to tell them the full extent of
the assaults. J.H.’s mother decided not to proceed with charges against
appellant because J.H. was facing serious health issues and pending
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surgery.1 In 2013, J.H. learned of appellant’s second victim, and decided to
proceed with her case.
On November 7, 2013, appellant filed a motion for separate trials
which was denied on November 14, 2013.2 Appellant was convicted of the
aforementioned crimes on November 22, 2013. The trial court ordered a
sexual violent predator (“SVP”) assessment. On November 25, 2013,
appellant filed a motion for a new trial which was denied on November 27,
2013. Appellant’s SVP hearing was held on March 25, 2014, and the trial
court found appellant was a sexually violent predator. Appellant was
thereafter sentenced to an aggregate term of imprisonment of 31 to
42 years. Appellant did not file a post-sentence motion at either docket.
A timely notice of appeal was filed, and appellant complied with the
trial court’s order to file a concise statement of errors complained of on
appeal. Appellant raises two issues for our review:
I. Whether the trial court abused its discretion in
denying Appellant’s Motion in Limine?
II. Whether the appellant’s sentence is manifestly
excessive, clearly unreasonable and
inconsistent with the objectives of the
Sentencing Code?
1
A huge mass was discovered in J.H.’s neck. (Notes of testimony, 11/22/13
at 34-35.)
2
In his motion for separate trials, appellant alleged that the requirements
for the joinder of offenses charged in separate informations were not met.
See Pa.R.Crim.P. 582. Appellant’s issue on appeal concerns the admission
of appellant’s confession in one docket as unfairly prejudicial to the
allegations raised in the second docket.
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Appellant’s brief at 4.
In his first argument, appellant challenges the trial court’s ruling on his
motion in limine. Prior to the start of trial, defense counsel made a motion
in limine to suppress the admission of appellant’s confession of raping H.S.
during trial as unfairly prejudicial to the allegations made at Docket No.
2084 of 2013 involving J.H. In denying defense counsel’s motion in limine,
the trial court opined, “I don’t see the prejudice as to both dockets.” (Notes
of testimony, 11/21/13 at 9-10.)
A motion in limine is a mechanism for obtaining a ruling on the
admissibility of evidence prior to the evidence being offered.
Commonwealth v. Lockcuff, 813 A.2d 857, 860 (Pa.Super. 2002), appeal
denied, 825 A.2d 638 (Pa. 2003).
When reviewing the denial of a motion in limine, we
apply an evidentiary abuse of discretion standard of
review. See Commonwealth v. Zugay, 2000 PA
Super 15, 745 A.2d 639 (Pa.Super.), appeal
denied, 568 Pa. 662, 795 A.2d 976 (Pa.2000)
(explaining that because a motion in limine is a
procedure for obtaining a ruling on the admissibility
of evidence prior to trial, which is similar to a ruling
on a motion to suppress evidence, our standard of
review of a motion in limine is the same as that of a
motion to suppress).
Commonwealth v. Stokes 78 A.3d 644, 654 (Pa.Super. 2013), appeal
denied, 89 A.3d 661 (Pa. 2014).
The admission of evidence is committed to the sound discretion of the
trial court, and a trial court’s ruling regarding the admission of evidence will
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not be disturbed on appeal “unless that ruling reflects ‘manifest
unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of
support to be clearly erroneous.’” Id. quoting Commonwealth v. Einhorn,
911 A.2d 960, 972 (Pa.Super. 2006), appeal denied, 920 A.2d 831 (Pa.
2007).
The threshold inquiry with admission of evidence is
whether the evidence is relevant. “Evidence 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 the existence of a material
fact.” Commonwealth v. Spiewak, 533 Pa. 1, 8,
617 A.2d 696, 699 (1992). In addition, evidence is
only admissible where the probative value of the
evidence outweighs its prejudicial impact.
Commonwealth v. Story, 476 Pa. 391, 383 A.2d
155 (1978).
Stokes, supra.
In his brief, appellant argues the trial court improperly admitted
evidence that in any other regard would have never been heard by the jury,
absent appellant taking the stand. (Appellant’s brief at 14). Appellant poses
the question, “Had the Appellant plead guilty to the one charge while going
to trial on another, evidence would have been precluded by the rules of
evidence. Why then should the court permit the testimony of one admission
to support the case of another?” (Id.)
Regarding the admissibility of a defendant’s other crimes in a
consolidated case, it is well established that
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[e]vidence of distinct crimes is inadmissible solely to
demonstrate a defendant’s criminal tendencies.
Such evidence is admissible, however, to show a
common plan, scheme or design embracing
commission of multiple crimes, or to establish the
identity of the perpetrator, so long as proof of one
crime tends to prove the others. This will be true
when there are shared similarities in the details of
each crime.
Commonwealth v. Andrulewicz, 911 A.2d 162, 168 (Pa.Super. 2006),
appeal denied, 926 A.2d 972 (Pa. 2007); see also Pa.R.E. 404(b).3
The Commonwealth argues that the circumstances in each case
demonstrate the common plan or scheme exception of Pa.R.E. 404(b)(2).
The Pennsylvania Rules of Evidence prohibit the use of other crimes, wrongs,
3
Rule 404. Character Evidence; Crimes or Other
Acts
(b) Crimes, Wrongs or Other Acts.
(1) Prohibited Uses. Evidence of a
crime, wrong, or other act is not
admissible to prove a person’s
character in order to show that on
a particular occasion the person
acted in accordance with the
character.
(2) Permitted Uses. This evidence
may be admissible for another
purpose, such as proving motive,
opportunity, intent, preparation,
plan, knowledge, identity, absence
of mistake, or lack of accident. In
a criminal case this evidence is
admissible only if the probative
value of the evidence outweighs its
potential for unfair prejudice.
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or acts to show that the defendant acted in conformity when committing the
instant crime. Pa.R.E. 404(b)(1). However, such evidence may be
admissible for other purposes, including but not limited to, proof of motive,
opportunity, intent, preparation, plan knowledge, identity or absence of
mistake or accident.” Pa.R.E. 404(b)(2). When a party offers such evidence
for those permissible reasons, the trial court may admit this evidence if it
determines the probative value outweighs its potential prejudicial effect. Id.
Factors to be considered in weighing the probative value of evidence against
its prejudicial effect include:
. . . the strength of evidence as to the commission of
the other crime, the similarities between the crimes,
the interval of time that has elapsed between the
crimes, the need for the evidence, the efficacy of
alternative proof, and the degree to which the
evidence probably will rouse the jury to
overmastering hostility.
Commonwealth v. Page, 965 A.2d 1212, 1221 (Pa.Super. 2009), appeal
denied, 74 A.3d 125 (Pa. 2013), citing McCormick, Evidence, § 190 (6 th ed.
2006).
Instantly, both victims were of similar ages when the assaults took
place. Both victims were step-granddaughters of appellant and were
assaulted in his home where they were staying overnight, and the sexual
conduct was similar. This was more than sufficient to satisfy the common
plan or scheme requirements of Pa.R.E. 404(b). See Commonwealth v.
Aikens, 990 A.2d 1181 (Pa.Super. 2010), appeal denied, 4 A.3d 157 (Pa.
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2010) (Evidence of defendant’s prior sexual abuse of his daughter was
admissible to show a common scheme, design, or plan in prosecution for
corruption of a minor, endangering the welfare of a child and indecent
assault; both victims were defendant’s biological daughters, both victims
were of a similar age when the abuse occurred, defendant initiated the
contact with both victims during an overnight visit to his apartment,
defendant showed both victims a pornographic movie, and defendant raped
his older daughter but did not rape his younger daughter because she
stopped him from disrobing her); Commonwealth v. O’Brien, 836 A.2d
966 (Pa.Super. 2003), appeal denied, 845 A.2d 817 (Pa. 2004) (the
evidence was sufficient to show a common scheme or plan where the victims
were the same race, the victims were prepubescent, the victims knew the
defendant, the crimes took place in the same location, and the crimes
involved similar sexual activities).
Next, we turn to whether the probative value of appellant’s confession
was outweighed by its prejudicial effect. Our supreme court has held that
“[w]hether relevant evidence is unduly prejudicial is a function in part of the
degree to which it is necessary to prove the case of the opposing party.”
Commonwealth v. Gordon, 673 A.2d 866, 870 (Pa. 1996).
In the instant matter, the Commonwealth had to prove that appellant
raped and sexually assaulted H.S. and J.H. Appellant admitted raping H.S.
to Detective Homes in a videotaped statement; however, there was no
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mention of J.H. at the time of the interview. Defense counsel argued the
statement appellant made to the detective was not reliable. (Notes of
testimony, 11/22/13 at 135.) Our review indicates appellant made two
contradictory 20-minute statements during the same interview; there was a
one and one-half hour time lapse between the statements. (Notes of
testimony, 11/21/13 at 89.) Additionally, we note there was no physical
corroborating medical evidence for either victim.
Plainly, the admission of the statement appears prejudicial as to the
case involving J.H. However, given the fact that appellant made two
statements regarding H.S., one denying the rape and one admitting the
rape, along with the lack of any medical evidence in either case, we do not
find the admission of this statement to be unduly prejudicial. Hence, the
trial court did not abuse its discretion when it denied appellant’s motion
in limine.
As to appellant’s claim that the jury would have never heard evidence
of both crimes if he had plead guilty in one and gone to trial on the other,
we reject this assertion. Pennsylvania Rule of Criminal Procedure 582
provides that joinder of offenses charged in separate indictments or
informations is permitted when “the evidence of each of the offenses would
be admissible in a separate trial for the other and is capable of separation by
the jury so that there is no danger of confusion.” Pa.R.Crim.P. 582(A)(1)(a).
The “[c]onsolidation of indictments requires that there are shared similarities
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in the details of each crime.” Commonwealth v. Smith, 47 A.3d 862, 867
(Pa.Super. 2012). Here, the indictments were properly joined and the
evidence at one docket would have been admitted at a separate trial on the
other based on the similarities between the two fact patterns.
Next, appellant complains his sentence is manifestly excessive and
clearly unreasonable. Appellant’s challenge goes to the discretionary
aspects of his sentence. In order to preserve an issue pertaining to the
discretionary aspects of sentence, the issue must first be raised either at the
time of sentencing, or in a post-sentence motion. Commonwealth v.
McAfee, 849 A.2d 270, 275 (Pa.Super. 2004), appeal denied, 860 A.2d
122 (Pa. 2004). Appellant failed to do either; consequently, the sentencing
judge did not have an opportunity to reconsider or modify his sentence.
Accordingly, the claim is waived. See Commonwealth v. Reeves, 778
A.2d 691, 692-693 (Pa.Super. 2001); Pa.R.A.P., Rule 302(a), 42 Pa.C.S.A.
(issues not raised in the lower court are waived and cannot be raised for the
first time on appeal).
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/23/2015
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