Com. v. Alred, M. ( 2015 )

J-S72023-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
MILO LAWRENCE ALRED, SR., :
:
Appellant : No. 556 WDA 2014
Appeal from the Judgment of Sentence Entered February 25, 2014,
In the Court of Common Pleas of Erie County,
Criminal Division, at No. CP-25-CR-0001774-2013.
BEFORE: BENDER, P.J.E., SHOGAN, J., and STRASSBURGER, J.*
MEMORANDUM BY SHOGAN, J.: FILED JANUARY 30, 2015
Appellant, Milo Lawrence Alred, Sr., appeals from the judgment of
sentence entered in the Court of Common Pleas of Erie County on
February 25, 2014, following a jury trial. We affirm.
The trial court summarized the facts of the crime as follows:
Between April 16, 2004 and November of 2009, Appellant
raped and/or sexually assaulted the victim, E.P., . . . a child
between the ages of 10 and 14 at the time of the assaults. The
victim’s mother abandoned the victim and her younger siblings,
D.H. and K.H. When the victim was six years old, the mother
placed the children in the care of Appellant and his wife.
Appellant and his wife were the parents of the mother’s ex-
boyfriend.
The victim and her siblings resided with Appellant and his
wife until she was fourteen years old. The children were told to
call Appellant and his wife “Dad” and “Mom.” The children were
removed from the Alred residence in November of 2009 by the
*
Retired Senior Judge assigned to the Superior Court.
J-S72023-14
Erie County Office of Children and Youth after reports by the
children of physical abuse including beatings with cords, belts, a
cane, and kitchen utensils, punches leaving bruises and being
thrown into the refrigerator hard enough to leave a dent.
The victim and/or her siblings had contacted the Erie
County Office of Children and Youth twenty times over the years
to report the physical abuse. Trial Transcript, Day 2, November
14, 2013, p. 60. By the time the caseworkers arrived to
investigate the reports, the bruises were healed and/or the
children were interviewed when the Alreds were present in the
home. The children had lived at numerous addresses with the
Alreds until the time of their removal.
After removal from the Alred home and after working with
a therapist, the victim disclosed the sexual abuse by the
Appellant.
Trial Court Opinion, 5/29/14, at 1–2.
Appellant was charged with one count each of aggravated indecent
assault of a child, corruption of minors, endangering the welfare of children,
rape, and rape of a child; two counts of involuntary deviate sexual
intercourse (“IDSI”); and four counts of indecent assault. Following a jury
trial that began on November 13, 2013, Appellant was found guilty of all
charges. On February 25, 2014, Appellant was sentenced to an aggregate
term of incarceration of twenty to forty years followed by a term of
probation.
On March 7, 2014, Appellant filed a post-sentence motion requesting a
new trial and alleging that the verdict was against the weight of the
evidence. Appellant also filed a motion for reconsideration of sentence,
-2-
J-S72023-14
claiming the imposition of consecutive sentences was manifestly excessive
and clearly unreasonable. The trial court denied the motions on March 7,
2014. On April 4, 2014, Appellant filed a notice of appeal. Both Appellant
and the trial court complied with Pa.R.A.P. 1925.
Appellant raises the following two issues on appeal:
The verdict in this case was against the weight of the evidence in
that the Commonwealth’s primary witness, the victim, had a
motive to fabricate the charges in this case[.]
The sentence in this case was manifestly excessive and clearly
unreasonable, especially considering the defendant’s history of
mental retardation and mental health issues.
Appellant’s Brief at 2 (full capitalization omitted).
Appellant first challenges the weight of the evidence supporting the
verdict, contending that the jury verdict shocks the conscience. In support,
he underscores that the victim did not report the sexual abuse until after
reporting the physical abuse and was removed from his home. Appellant’s
Brief at 10. He suggests that the testimony in this case “supported the
possibility [the victim] fabricated these allegations.” Id. at 11.
Appellant fails to cite to the record in support of his broad allegations
and fails to cite any case law. In Commonwealth v. Samuel, 102 A.3d
1001 (Pa. Super. 2014), we recently held that an issue was waived because
it was undeveloped and the appellant failed to cite relevant law. We stated:
The only case law . . . cite[d] in support of this claim is the
standard of review . . . . Again, we will not comb the record for
-3-
J-S72023-14
the facts in support of [a] claim and we will not develop
arguments on [the appellant’s] behalf. This issue is waived.
Mulholland, 702 A.2d at 1034 n.5; Gould, 912 A.2d at 873.
Id. at 1005 (citing Commonwealth v. Mulholland, 702 A.2d 1027, 1034
n.5 (Pa. 1997)), and Commonwealth v. Gould, 912 A.2d 869, 873 (Pa.
Super. 2006)). Thus, while we could find this issue waived, we consider the
merits.
The trial court will award a new trial only when the jury’s verdict is so
contrary to the evidence as to shock one’s sense of justice.
Commonwealth v. Diggs, 949 A.2d 873 (Pa. 2008). “In determining
whether this standard has been met, appellate review is limited to whether
the trial judge’s discretion was properly exercised, and relief will be granted
only where the facts and inferences of record disclose a palpable abuse of
discretion.” Id. at 879. Thus, “the trial court’s denial of a motion for a new
trial based on a weight of the evidence claim is the least assailable of its
rulings.” Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009).
We have stated:
When a trial court denies a weight-of-the-evidence motion, and
when an appellant then appeals that ruling to this Court, our
review is limited. It is important to understand we do not reach
the underlying question of whether the verdict was, in fact,
against the weight of the evidence. We do not decide how we
would have ruled on the motion and then simply replace our own
judgment for that of the trial court. Instead, this Court
determines whether the trial court abused its discretion in
reaching whatever decision it made on the motion, whether or
-4-
J-S72023-14
not that decision is the one we might have made in the first
instance.
Commonwealth v. Ferguson, ___ A.3d ___, ___, 2015 PA Super 1, *5,
(Pa. Super. 2015) (filed January 5, 2015).
The trial court noted that Appellant failed to indicate in his Rule
1925(b) statement why the verdict was against the weight of the evidence
and failed to identify how the testimony and evidence of record exonerated
him. Thus, it determined that the issue was waived. Trial Court Opinion,
5/29/14, at 4. In the alternative, it addressed the issue and concluded that
the claim lacked merit. Id. While the trial court, at times, mistakenly
focused on principles related to the sufficiency of the evidence, it adequately
supported its decision concerning the weight of the evidence, as follows:
Appellant’s claim is directed entirely to the credibility of
the witnesses, and, as such, challenges the weight and not the
sufficiency of the evidence. A weight of the evidence review
includes an assessment of the credibility of the testimony offered
by the Commonwealth. Com. v. Wilson, 825 A.2d 710 (Pa.
Super. 2003); Com. v. Brown, 538 Pa. 410, 438, 648 A.2d 1177,
1191 (1994).
In determining the weight of evidence at trial, the finder of
fact is free to believe all, part or none of the evidence presented
and determines the credibility of the witnesses. Com. v. Boyd,
73 A.3d 1269, 1274 (Pa. Super. 2013); Com. v. Marks, 704 A.2d
1095, 1098 (Pa. Super. 1997).
* * *
The victim testified to forced digital penetration, penile vaginal
and anal penetration, oral sex, watching pornographic movies
and having her genitals photographed. The victim was
-5-
J-S72023-14
threatened with physical harm to herself and her siblings if she
disclosed the abuse. Jury Transcript, Day 1, November 13, 2013
(“TT. Day 1”), pp. 30—94.
The victim testified to all the children being beaten with
Appellant’s hands, belt, kitchen utensils and a cane about her
face, arms, buttocks, chest and back. T.T. Day 1, p. 35. All
three children had their heads hit against the refrigerator. T.T.
Day 1, p. 36. Her brother was stomped on and punched in the
face causing the glass on Appellant’s watch to break off in the
boy’s eye. T.T. Day 1, p. 36.
* * *
Thereafter, the victim and Appellant were in the living
room. He had pulled her pants down and digitally penetrated
her inner labia. Appellant took pictures of her vagina and
showed her the pictures afterwards. T.T. Day 1, 41. Appellant
would have the victim “dry hump” him while they were fully
clothed. T.T Day 1, p. 42. Appellant would have the victim
touch his penis with her hands. T.T. Day 1, p. 47.
Trial Court Opinion, 5/29/14, at 4–5, 7–8. The trial court explained that
eventually, Appellant proceeded to force oral and vaginal intercourse. N.T.,
11/13/13, at 45–50. When the victim was twelve years old, the family
moved to a different residence where the victim had her own bedroom. She
testified that Appellant’s wife “had her leg amputated so she was in a
wheelchair” and was unable to go to the second floor bedrooms. Id. at 56.
It was then that Appellant anally raped the child. Id. The victim testified
that Appellant threatened on multiple occasions to kill her and her siblings,
and in fact, beat her and her siblings a myriad of times. Id. at 30–94.
-6-
J-S72023-14
Appellant implies significance to the fact that the victim failed to tell
Appellant’s wife or anyone else about the sexual assaults until the victim and
her siblings were removed from the home. At trial, the victim testified that
she did not tell Appellant’s wife because she “didn’t trust her.” N.T.,
11/13/13, at 54. The victim testified that her fear of Appellant kept her
from disclosing the sexual abuse. Id. at 67.
Jared Miller, a Children and Youth caseworker, testified that he
removed the children from the home on November 10, 2009. N.T.,
11/14/13, at 53–55. The victim testified that Mr. Miller told her there was a
chance she would have to return to Appellant’s home, and she was afraid if
she disclosed the sexual abuse she “was probably going to get beaten to
death.” N.T., 11/13/13, at 67. Finally, at a dispositional hearing on
December 16, 2009, the juvenile court recommended “permanent legal
custodianship, guardianship or placement intended to be permanent in
nature. It was not to return home.” N.T., 11/14/13, at 57. The victim
testified that after that hearing, she understood “that I wouldn’t ever have
to go back to live with” Appellant. N.T., 11/13/13, at 68. Her disclosure
occurred thereafter. Id. at 68–69.
These facts contradict Appellant’s assertion that the victim’s disclosure
was in retaliation for his beatings. Rather, the victim finally felt safe enough
to disclose the horrific abuse at Appellant’s hands, and the jury accepted and
-7-
J-S72023-14
credited this testimony. Thus, we rely on the trial court’s conclusion that the
claim, if addressed on the merits, did not shock one’s sense of justice. The
jury obviously agreed. The trial court did not abuse its discretion in denying
this weight-of-the-evidence claim.
Appellant’s second issue assails the sentence imposed, contending it
was excessive and unreasonable. Appellant’s Brief at 12. Such a claim
challenges the discretionary aspects of the sentence, which is not an appeal
as of right. Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super.
2013). Rather, an appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction. To make that determination,
we consider the following four factors:
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.A. § 9781(b).
Samuel, 102 A.3d at 1006–1007 (citing Griffin, 65 A.3d at 935).
Here, Appellant timely filed his notice of appeal, preserved the issue in
his post-sentence motion, and included a statement pursuant to Pa.R.A.P.
2119(f) in his appellate brief. In his Rule 2119(f) statement, Appellant
asserts that the sentence was “manifestly excessive in that it was not
individualized.” Appellant’s Brief at 8. He further contends that the trial
-8-
J-S72023-14
court “failed to take into consideration his ‘significant defects’ and his past
history of mental health issues.” Id. at 9. Essentially, this is a claim that
his sentence is excessive and that the trial court erred by not considering
mitigating factors. “[T]his Court has held that an excessive sentence claim—
in conjunction with an assertion that the court failed to consider mitigating
factors—raises a substantial question.” Samuel, 102 A.3d at 1007 (citing
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014)). Thus,
we consider the merits of this claim.
At sentencing, the trial court explained as follows:
THE COURT: I have listened to the evidence presented here
today. I’ve read the Presentence Report in its entirety including
the sentencing guidelines. I’m very familiar with this case
having presided over the jury trial. I have now read the letter
from the victim in this case. I’ve also read the psychological.
I’ve also considered your prior criminal history, Mr. Alred.
And while I recognize and accept the representation that you
intellectually or cognitively you are functioning at a lower level,
you clearly know right from wrong. You clearly know that it’s
wrong to do what you did in this case. And that’s manifested by
the statements and the force that you used to accomplish it. But
the manner in which you tried to coerce or intimidate the victim
into not reporting it and to cover up what you were doing wrong
and - - which is a manifestation of your guilty knowledge.
I would echo this point from the Commonwealth, that,
unfortunately for the victim, she was placed in your care and in
your trust by a mother who basically was abandoning her, and
so she was victimized of sorts by that conduct, which - - for
which I don’t fault you, Mr. Alred. In fact, you were willing to
take the child into your home speaks in your favor. But knowing
that the child’s background and history to that extent and then
to revictimize her in one of the most egregious ways over an
-9-
J-S72023-14
extended period of time involving a variety of forms of force and
sexual behavior is just unacceptable, uncivilized, and certainly
creates a risk of harm to other young children in our community.
I note that your prior conviction for corruption of minors
was the corruption - - was of a sexual nature and that you were
given access to help at that time, that was in 1991, and you had
to be revoked twice from that sentence for noncompliance. You
were given the benefit of sexual offender counseling and,
nonetheless, you continued in the most egregious way to
victimize this child.
And while I understand the technical point, [defense
counsel’s] point that there’s only one victim here, there’s only
one victim of sexual conduct, but, as you know, Mr. Alred, her
siblings observed what occurred in this case and obviously
there’s some trauma to them.
I certainly understand the trauma to the victim. In her
letter she starts off by saying, “Milo Alred has permanently
damaged my life emotionally and socially. It is very difficult for
me to carry on a normal life. I am not confident in myself,
extremely low goals for myself and have trouble socializing with
people at my own level.” And that is certainly understandable
given the nature of what occurred in this case.
When I look at the guidelines and all the various offenses
in this case, what strikes me is just all the different types of
ways you violated this child. And there are separate guidelines
to address each of those . . . .
N.T. (Sentencing), 2/25/14, at 16–19.
The trial court specifically stated on the record its reliance on the
presentence report, Appellant’s background, mental health issues and low
cognitive functioning, prior criminal conduct, the significant impact on the
victim, Appellant’s violation of his position of trust in relation to the victim,
and the severity, scope, and duration of abuse inflicted upon the victim. A
-10-
J-S72023-14
trial court is required to state the reasons for the sentence it imposes on the
record, see 42 Pa.C.S.A. § 9781(b), and the record herein reveals that the
trial court adequately explained the reasons for the sentence it imposed.
Contrary to Appellant’s claim, the court considered all of the factors present.
There is no merit to the issue.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/30/2015
-11-