Com. v. Lawrence, R. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
RICHARD E. LAWRENCE, :
:
Appellant : No. 889 MDA 2015
Appeal from the Judgment of Sentence January 22, 2015
in the Court of Common Pleas of Lancaster County,
Criminal Division, No(s): CP-36-CR-0003170-2012
BEFORE: GANTMAN, P.J., BOWES and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED AUGUST 22, 2016
Richard E. Lawrence (“Lawrence”) appeals from the judgment of
sentence imposed following his conviction of corruption of minors
(misdemeanor), corruption of minors (felony), indecent exposure and
unlawful contact with a minor.1 We affirm.
The trial court set forth the relevant factual and procedural history in
its Opinion, which we adopt for purposes of this appeal. See Trial Court
Opinion, 4/20/15, at 1-4. The trial court denied Lawrence’s post-sentence
Motion on April 20, 2015. Thereafter, Lawrence filed a timely Notice of
Appeal.2
On appeal, Lawrence raises the following issues for our review:
1
See 18 Pa.C.S.A. §§ 6301(a)(1)(i), (ii), 3127(a), 6318(a)(1).
2
The trial court did not order Lawrence to file a concise statement of
matters complained of on appeal, pursuant to Pa.R.A.P. 1925(b). The trial
court relies on its Opinion, entered on April 20, 2015, in support of the
judgment of sentence imposed on Lawrence.
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1. Was the evidence presented by the Commonwealth
insufficient to sustain [] Lawrence’s conviction for indecent
exposure, where [] Lawrence exposed his penis to E.S. during
consensual sexual activity, and the Commonwealth did not
establish that the exposure was made under circumstances in
which [] Lawrence knew or should have known that his
conduct was likely to offend, affront or alarm?
2. Was the evidence presented by the Commonwealth
insufficient to sustain [] Lawrence’s conviction for unlawful
contact with a minor, as set forth at 18 Pa.C.S.[A.] § 6318,
which requires that he have had contact with a minor for the
purposes of certain offenses set forth in § 6318, and []
Lawrence did not commit any of these offenses?
3. Because the evidence was insufficient to sustain [] Lawrence’s
convictions for indecent exposure, unlawful contact with a
minor, or third[-]degree felony corruption of minors, was
there no basis for an assessment pursuant to 42 Pa.C.S.[A.]
§ 9799.24, and should [] Lawrence not have been found [to
be] a sexually violent predator [“SVP”]?
4. [Was] the evidence presented by the Commonwealth and the
trial court’s charge to the jury insufficient to sustain []
Lawrence’s conviction for corruption of minors, a third[-
]degree felony, as set forth at 18 Pa.C.S.A. § 6301(a)(1)(ii)?
5. Did the trial court err by precluding defense counsel from
informing the jury that a sixteen-year-old person was
permitted to consent to sexual activity, to the extent that
such consent was relevant to a consideration of whether []
Lawrence committed indecent exposure, and did the court’s
ruling unlawfully impede defense counsel’s right to present a
defense, in violation of the Sixth and Fourteenth Amendments
to the United States Constitution, and Article One, Section
Nine, of the Constitution of the Commonwealth of
Pennsylvania?
6. Did the trial court err by refusing to grant a mistrial after the
prosecutor deliberately misstated the law to the jury, stating
that a person under eighteen cannot consent to sexual
contact with an adult, and that he cannot consent to indecent
exposure, that [] Lawrence should have known that it would
be “offensive or alarming or affronting to the community” to
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expose himself to E.S., and that whether E.S. wanted the
sexual contact was not relevant, even to the charge of
indecent exposure; [and] did the prosecutor’s uncured errors
prejudice the jury against [] Lawrence such that they could
not render a fair and impartial verdict?
7. Was [] Lawrence’s sentence of ten and one-half to twenty
years[’] incarceration manifestly excessive, unreasonable,
and an abuse of discretion, where all sentences were imposed
consecutively, all sentences were statutory maximum
sentences, above the aggravated range of the sentencing
guidelines, and the court chose to ignore significant evidence
of [] Lawrence’s rehabilitation and other mitigating factors?
Brief for Appellant at 10-12 (issues renumbered for ease of disposition).
In his first issue, Lawrence contends that the Commonwealth failed to
prove the crime of indecent exposure because the evidence did not establish
that Lawrence knew or should have known that exposing his penis to E.S.
was likely to offend, affront or alarm E.S. Brief for Appellant at 26.
Lawrence asserts that the only crime for which an adult may properly be
charged, as related to private consensual sex with a sixteen or seventeen-
year-old minor, is first-degree misdemeanor corruption of minors. Id. at 27.
According to Lawrence, a sixteen-year-old minor may consent to sexual
activity, even with an adult. Id. at 28. Lawrence argues that, “[w]hile
consent is not an element of indecent assault, it surely is a defense, as it
would be absurd to suggest that a person could commit indecent exposure
during consensual sexual activity.” Id. at 29. Lawrence contends that,
“[b]ased on the evidence presented at trial, it appears that [] Lawrence first
exposed his genitals to E.S. during their first consensual sexual encounter, in
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the [s]pring of 2009.” Id. at 30. However, Lawrence asserts, based on
E.S.’s testimony, “it is not entirely clear whether [] Lawrence exposed his
penis to E.S. during this first sexual encounter, or exactly when, during this
first encounter, he did so.” Id. at 30-31. Lawrence claims that, although
his trial testimony that he and E.S. “masturbated each other” during that
first encounter “makes it more clear that [] Lawrence’s penis was exposed at
some point, [] there was no evidence from which the jury could determine
the order in which these acts took place.” Id. at 31. Lawrence argues that
he “reasonably believed that E.S. would not be offended or alarmed by
seeing his penis, while the two of them were engaged in consensual sexual
activity.” Id. Lawrence contends that, because he exposed his penis during
consensual, mutual masturbation with E.S., the Commonwealth failed to
establish that Lawrence knew or should have known that E.S would be
offended, affronted or alarmed by such exposure. Id. at 32.
In its Opinion, the trial court set forth the relevant law, addressed
Lawrence’s first issue, and determined that it lacks merit. See Trial Court
Opinion, 11/6/14, at 4-8. Viewing the record in the light most favorable to
the verdict winner, and giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence, we agree with the reasoning of
the trial court and affirm on this basis as to Lawrence’s first issue. See id.;
see also Commonwealth v. Franklin, 69 A.3d 719, 722 (Pa. Super.
2013).
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In his second issue, Lawrence contends that, because the evidence
was insufficient to sustain his conviction of indecent exposure, the evidence
was necessarily insufficient to sustain his conviction for unlawful contact with
a minor. Brief for Appellant at 33.
In its Opinion, the trial court set forth the relevant law, addressed
Lawrence’s second issue, and determined that it lacks merit. See Trial Court
Opinion, 11/6/14, at 8; see also id. at 6-8 (wherein the trial court
determined why the evidence was sufficient to sustain Lawrence’s conviction
of indecent exposure). Viewing the record in the light most favorable to the
verdict winner, and giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence, we agree with the reasoning of
the trial court and affirm on this basis as to Lawrence’s second issue. See
id. at 8; see also Franklin, 69 A.3d at 722.
In his third issue, Lawrence contends that, because the evidence was
insufficient to convict him of unlawful contact with minors or third-degree
felony corruption of minors, no SVP assessment should have been ordered,
and the finding that he is a SVP should be vacated. Brief for Appellant at 42.
Based on our determination that the evidence was sufficient to sustain
Lawrence’s conviction for unlawful contact with a minor, we conclude that
Lawrence’s third issue lacks merit. See 42 Pa.C.S.A. § 9795.1(a)(1)
(providing that a defendant convicted of unlawful contact with a minor must
register for a period of ten years); see also 42 Pa.C.S.A. § 9795.4
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(providing that “a court shall order an individual convicted of an offense
specified in section 9795.1 (relating to registration) to be assessed” to
determine “if the individual should be classified as a sexually violent
predator”).
In his fourth issue, Lawrence contends that the trial court did not
instruct the jury that one of the elements of third-degree felony corruption
of minors was a “course of conduct” of indecent exposure. Brief for
Appellant at 36. Lawrence contends that the trial court’s use of a jury
instruction for third-degree felony corruption of minors that was “taken
almost verbatim from the Pennsylvania Suggested Standard Criminal Jury
Instructions is unavailing, as the words ‘course of conduct’ contained in the
Crimes Code definition were omitted from the instruction to the jury.” Id.
Lawrence further contends that, due to this omission, the trial court did not
instruct the jury that it was required to find that Lawrence had engaged in a
“course of conduct” of indecent exposure, or that it was required to find that
Lawrence had committed multiple acts of indecent exposure over time. Id.
at 37-38. On this basis, Lawrence argues that no jury verdict was returned
as to the “course of conduct” element of third-degree felony corruption of
minors. Id. at 36. Lawrence contends that this error may not be subjected
to a harmless error analysis. Id. at 37. Lawrence asserts that his
conviction of third-degree felony corruption of minors should be vacated,
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leaving only the conviction of first degree misdemeanor corruption of
minors. Id. at 39.
Lawrence further claims that, despite E.S.’s testimony that seeing
Lawrence’s penis during their first sexual encounter “didn’t feel right,” and
that it was “sort of, like, scary to me,” there was no evidence that the
subsequent sexual encounters between E.S. and Lawrence were anything
but consensual. Id. at 40. Lawrence argues that the indecent exposure, if
it occurred at all, occurred during the first sexual encounter between himself
and E.S. in the spring of 2009. Id. at 41. Lawrence contends that,
because the spring 2009 incident occurred before the enactment and
effective date of the third-degree felony version of corruption of minors of
which he was convicted, his conviction should be vacated. Id.3
Lawrence’s fourth issue challenges the grading of the offense of
corruption of minors rather than the offense itself. See Commonwealth v.
Kelly, 102 A.3d 1025, 1028 (Pa. Super. 2014) (en banc) (wherein this Court
ruled that the defendant’s claim that the evidence was insufficient to support
his conviction of third-degree felony corruption of minors, where the
3
Lawrence also contends that, because the evidence was insufficient to
sustain his conviction of indecent exposure, the evidence was, necessarily,
insufficient to sustain his conviction of third-degree felony corruption of
minors. Brief for Appellant at 34-35. Based on our conclusion that the
evidence was sufficient to sustain Lawrence’s conviction for indecent
exposure, this claim lacks merit.
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Commonwealth had failed to prove a “course of conduct,” presented a
challenge to the grading of the offense).
A claim that the trial court improperly graded an offense for sentencing
purposes implicates the legality of a sentence. See Commonwealth v.
Graeff, 13 A.3d 516, 518 (Pa. Super 2011). When we address the legality
of a sentence, our standard of review is plenary and is limited to determining
whether the trial court erred as a matter of law. Id.4
The offense of corruption of minors is defined as follows:
(a) Offense defined.
(1)(i) Except as provided in subparagraph (ii), whoever,
being of the age of 18 years and upwards, by any act
corrupts or tends to corrupt the morals of any minor less
than 18 years of age, or who aids, abets, entices or
encourages any such minor in the commission of any
crime, or who knowingly assists or encourages such minor
in violating his or her parole or any order of court, commits
a misdemeanor of the first degree.
(ii) Whoever, being of the age of 18 years and upwards,
by any course of conduct in violation of Chapter 31
(relating to sexual offenses) corrupts or tends to corrupt
the morals of any minor less than 18 years of age, or who
aids, abets, entices or encourages any such minor in the
commission of an offense under Chapter 31 commits a
felony of the third degree.
4
The Commonwealth argues that, because Lawrence did not raise any
objection to the trial court’s jury instruction on the felony corruption of
minors charge, it is waived on appeal. Although Lawrence did not object to
the instruction at trial, a grading issue raises a question as to the legality of
the sentence; thus, it is a non-waivable matter. See Commonwealth v.
Popow, 844 A.2d 13, 17 (Pa. Super. 2004).
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18 Pa.C.S.A. § 6301(a)(1)(i), (ii).5 The use of the phrase “course of
conduct” in subsection (a)(1)(ii) imposes a requirement of multiple acts over
time, in the same manner in which the term is used in the harassment,
stalking, and endangering the welfare of children statutes. See Kelly, 102
A.3d at 1031.
Our review of the record reveals that, although the trial court did not
specifically instruct the jury to consider whether Lawrence engaged in a
5
The corruption of minors statute was amended in 2010 to include
subsection (a)(1)(ii). Prior to the amendment, which became effective on
December 6, 2010, subsection (a)(1) only prohibited the offense now set
forth in subsection (a)(1)(i). For this reason, as discussed infra, the trial
court instructed the jury that the felony corruption of minors charge at
Count 1 pertained to the alleged conduct that took place after the statute
was amended (i.e., between December 7, 2010 and February 14, 2011),
while the misdemeanor corruption of minors charge at Count 2 pertained to
the alleged conduct that took place before the statute was amended (i.e.,
between the spring of 2009 and December 6, 2010). See N.T., 1/31/14, at
251. Notably, the jury found Lawrence guilty of indecently exposing himself
to E.S. during both time periods.
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“course of conduct,”6 the jury nevertheless convicted Lawrence of separate
sexual offenses against E.S., thereby determining that Lawrence had
perpetrated multiple instances of indecent exposure or improper sexual
contact with a minor over time. Thus, the jury necessarily found that
Lawrence had, in fact, engaged in a “course of conduct.”
Additionally, the record reflects that the trial court was aware of the
change in the corruption of minors statute, and that a “course of conduct”
element had been added to the felony offense. Notably, the trial court
informed the jury that the dates supplied on the verdict slip for Counts 1 and
2 were relevant due to a change in the law, and that, in order to convict
6
The trial court’s jury instruction regarding the third-degree felony
corruption of minors offense was as follows:
As charged in the first count – and the verdict slip will
indicate the dates that are relevant because of the change in the
law, as well as the underlying conduct which pertains to that
count. Under the first count, to find [Lawrence] guilty of the
offense of corruption of a minor, as charged in Count 1 of the
charging document, you must find that each of the following four
elements has been proven beyond a reasonable doubt; first, that
[Lawrence] was 18 years of age or older at the time of the
incident giving rise to the charge; second, that [E.S.], the
alleged victim, was under 18 years of age at that time; third,
that [Lawrence] committed the offense of indecent exposure.
That offense will be defined for you momentarily.
To find [Lawrence] guilty of corruption of [a] minor, as
charged in Count 1, you must be satisfied beyond a reasonable
doubt that [he] committed the offense of indecent exposure.
The fourth element of this offense, that the alleged conduct took
place between December 7, 2010[,] and February 14, 2011.
N.T., 1/31/14, at 251-52.
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Lawrence of the felony offense at Count 1, they needed to find that the
conduct alleged took place between a range of dates (i.e., December 7,
2010 and February 14, 2011), and not merely on a single date, as one would
expect if the alleged conduct encompassed a solitary incident. Indeed, the
conduct in question was never presented as a single incident. Rather, the
Commonwealth presented ample and undisputed evidence that Lawrence
engaged in sexual relations with E.S. on numerous occasions between 2009
and 2011, when E.S. was sixteen and seventeen years of age. E.S. testified
that, starting in the spring of 2009, sexual contact with Lawrence occurred
“once a week on the average.” N.T.. (trial), 1/30/14, at 100. E.S. described
seeing Lawrence’s penis and engaging in oral and anal sex with him. Id. at
98-99. E.S. further testified that his activity extended over the course of
two years. Id. at 103. Thus, we conclude that the trial court did not err by
grading the corruption of minors offense at Count 1 as a felony of the third
degree.7
In his fifth issue, Lawrence contends that, prior to closing arguments,
the Commonwealth “moved [in limine] to preclude any argument from
defense counsel that there was ‘no crime because [E.S.] consented to the
conduct, the sexual contact, including the indecent exposure.’” Brief for
Appellant at 43 (citing N.T., 1/31/14, at 216-17). Lawrence asserts that, in
7
Compare Popow, supra (wherein the trial court improperly graded the
offense of corruption of minors as a felony based on evidence of a singular
event which occurred over a matter of minutes).
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response, defense counsel argued that he “should be able to tell the jury
that a sixteen[-]year[-]old can consent to sexual activity, because the jury
should be aware that E.S. was old enough to consent to sexual activity.”
Brief for Appellant at 43. Lawrence challenges the trial court’s subsequent
ruling that anyone under the age of 18, for purposes of the corruption of
minors offenses and the unlawful contact offense, is not able to consent. Id.Lawrence argues that, despite the trial court’s ruling that defense counsel
could refer to E.S.’s “voluntariness or willingness to engage in conduct,” the
trial court nevertheless erred by prohibiting defense counsel from using the
terms “consent” or “consensual.” Id. at 44 (citing N.T., 1/31/14, at 218).
Lawrence contends that consent is a defense to the charge of indecent
exposure, and asserts that the trial court erred by prohibiting defense
counsel from arguing to the jury that E.S. had consented to the sexual
contact with Lawrence. Brief for Appellant at 44-45. Lawrence asserts that
the trial court’s prohibition essentially left him without a defense, in violation
of his right to counsel under the Sixth and Fourteenth Amendments of the
United States Constitution and Article I, Section 9 of the Constitution of the
Commonwealth of Pennsylvania. Id. at 46. Lawrence claims that, because
every charge against him, except for the misdemeanor corruption of minors
charge, was dependent upon his conviction of indecent exposure, the trial
court’s prohibition was significant and cannot be considered as a harmless
error. Id.- 12 -
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In evaluating the denial or grant of a motion in limine, our standard of
review is the same as that utilized to analyze an evidentiary challenge. See
Commonwealth v. Pugh, 101 A.3d 820, 822 (Pa. Super. 2014) (en banc).
Pursuant to that standard,
[t]he 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 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. (citations omitted).
Here, our review discloses that the Commonwealth moved in limine to
prohibit defense counsel from arguing to the jury in his closing argument
that no crime had been committed by Lawrence because E.S. had consented
to sexual contact with Lawrence. See N.T., 1/31/14, at 217. In response,
defense counsel claimed that, although “[i]t was never [his] purpose to
argue that[,] because [E.S.] voluntarily went into this relationship[,
Lawrence] should be found not guilty[,] [his] purpose in raising the consent
[issue] was to let the jury know that a 16[-]year[-]old can consent.” Id.;
see also id. (wherein defense counsel conceded that consent “is not an
element of any of these charges” and claimed, contrary to his argument on
appeal, that he “would never raise the argument that because [E.S.]
consented[, Lawrence] should be found not guilty.”). Thereafter, the trial
court ruled that “consent” is “a term of art,” and that “anyone under the age
of 18 being defined as a minor for the purposes of both the corruption of
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minors charges, as well as the unlawful contact [charge], is not able to
consent[,]” and that, “[a]s a matter of law, a minor under the age of 18
cannot consent to unlawful contact or to being corrupted.” N.T., 1/31/14, at
218. We discern no manifest unreasonableness, partiality, prejudice, bias,
or ill-will, or lack of support for the trial court’s ruling. Accordingly, we
conclude that Lawrence’s fifth issue lacks merit.
In his sixth issue, Lawrence contends that the trial court erred by
failing to grant defense counsel’s request for a mistrial at the conclusion of
the prosecutor’s closing arguments, based on the prosecutor’s comments
that E.S. could not consent to sexual activity with Lawrence. Brief for
Appellant at 50. Lawrence points to the prosecutor’s comments in his
closing statement, wherein he instructed the jury to ignore defense counsel’s
use of the words “voluntary,” “voluntarily,” “willingly,” and “of his free will,”
because a “minor cannot consent to sexual contact with an adult.” Id. at 46
(citing N.T., 1/31/14, at 240). Lawrence argues that the trial court
improperly ruled that the prosecutor had not misstated the law, and thereby
permitted the prosecutor’s erroneous instruction to the jury to remain
uncorrected. Brief for Appellant at 46. Lawrence asserts that, although the
trial court’s instruction to the jury regarding indecent exposure was correct,
the jury was likely confused by the prosecutor’s misstatements, and the jury
instruction provided was inadequate to correct and clarify the
misstatements. Id. at 52. Lawrence claims that the instruction failed to
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explain that “Lawrence had to believe his conduct would offend E.S., not that
he should have known that his conduct would offend the community.” Id.
Lawrence argues that, based on the instruction provided, the jury could have
believed that Lawrence’s exposure of his genitals to E.S. automatically
constituted indecent exposure because E.S. could not consent to the
exposure, or that Lawrence was guilty if the community would be offended
by Lawrence’s exposure of his genitals. Id. Lawrence contends that,
because his “conviction for indecent exposure was the linchpin upon which
all other convictions rested, other than first-degree misdemeanor corruption
of minors, an error in the jury’s understanding of the elements of indecent
exposure and any defenses to the charge, effected [sic] the entire
proceeding with unfair bias.” Id. at 52-53.
Our standard of review in assessing the denial of a mistrial is as
follows:
The trial court is in the best position to assess the effect of
an allegedly prejudicial statement on the jury, and as such, the
grant or denial of a mistrial will not be overturned absent an
abuse of discretion. A mistrial may be granted only where the
incident upon which the motion is based is of such a nature that
its unavoidable effect is to deprive the defendant of a fair trial by
preventing the jury from weighing and rendering a true verdict.
Likewise, a mistrial is not necessary where cautionary
instructions are adequate to overcome any possible prejudice.
Commonwealth v. Johnson, 107 A.3d 52, 53 (Pa. 2014) (citation
omitted).
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Here, in denying Lawrence’s request for a mistrial, the trial court ruled
that “consent forms no part of the elements of the offense[s] and is not a
valid defense to any of the[ charges against Lawrence]. And, therefore,
precluding the defense from arguing anything with regard to consent [by
E.S.] was completely proper.” N.T., 1/31/14, at 240. The trial court further
ruled that “[t]he Commonwealth has not misstated the law. And just
because I don’t permit one side to misstate the law doesn’t mean the other
side isn’t allowed to properly state the law.” Id. (emphasis supplied).
Moreover, the trial court determined that Lawrence would not be deprived of
a fair trial because defense counsel had been able to argue to the jury E.S.’s
“voluntariness and willingness[,] which goes directly to an element of the
chief underlying offense here,” i.e., whether E.S. was “offended alarmed or
affronted.” Id.; see also id. at 241 (wherein the trial court noted that
“[j]ust because [E.S.] can’t consent doesn’t mean he wasn’t okay with [the
sexual contact with Lawrence] and, therefore, not affronted, etc.”). We
discern no abuse of discretion by the trial court, and conclude that
Lawrence’s sixth issue lacks merit.
In his final issue, Lawrence contends that the trial court erred by
refusing to consider “Lawrence’s letters of apology to E.S. and his parents,
taking responsibility for his actions.” Brief for Appellant at 57. Lawrence
asserts that the trial court’s finding that Lawrence was “mostly sorry that it
had to turn out this way only because it’s wrong criminally” is not consistent
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with the evidence presented at sentencing. Id. Lawrence claims that the
trial court erred by “failing to consider the fact that [] Lawrence was able to
rehabilitate himself after his release from prison in 1992 through regular
church attendance, prison ministry and careful attention to his spiritual
state, and that during this time there was no violation of his parole, and he
committed no offenses, for over fifteen years.” Id.8 Lawrence argues that
the trial court failed to acknowledge that his work with Pastor Melvin Esh
(“Pastor Esh”) for nearly two years showed that Lawrence was willing to and
capable of being rehabilitated through recommitment to his religious beliefs
and involvement with the church. Id. at 58. Lawrence contends that his
work with Pastor Esh was objective conduct showing real remorse and a
desire to conform to the law in the future. Id. at 58-59. Lawrence points
out that, by engaging with the church, he was able to conform to the law for
nearly two years prior to his trial. Id. at 59. Lawrence asserts that the trial
court failed to state an adequate basis for imposing sentences which
deviated far beyond the top of the aggravated range of the sentencing
guidelines, nor did it state an adequate basis for statutory maximum
sentences. Id. Lawrence also claims that the trial court’s statutory
maximum sentences, imposed consecutively, were unreasonable, manifestly
excessive and constitute an abuse of discretion. Id.
8
Lawrence has several prior convictions for sexual offenses against minors.
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Lawrence challenges the discretionary aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Moury, 992 A.2d 162,
170 (Pa. Super. 2010). Prior to reaching the merits of a discretionary
sentencing issue,
[this Court conducts] a four part analysis to determine: (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, [see] 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, [see] 42
Pa.C.S.A. § 9781(b).
Moury, 992 A.2d at 170 (citation omitted).
When an appellant challenges the discretionary aspects of his
sentence, we must consider his brief on this issue as a petition for
permission to appeal. Commonwealth v. Yanoff, 690 A.2d 260, 267 (Pa.
Super. 1997); see also Commonwealth v. Tuladziecki, 522 A.2d 17, 18
(Pa. 1987); 42 Pa.C.S.A. § 9781(b).
In the instant case, Lawrence filed a timely Notice of Appeal,
preserved his claims in a timely post-sentence Motion, and included in his
appellate brief a separate Rule 2119(f) statement. A substantial question is
raised where an appellant alleges the sentencing court erred by imposing an
aggravated range sentence without consideration of mitigating
circumstances. Commonwealth v. Bowen, 55 A.3d 1254, 1263 (Pa.
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Super. 2012). Additionally, a claim that the sentencing court imposed a
sentence outside the standard sentencing guidelines without stating
adequate reasons on the record presents a substantial question. See
Commonwealth v. Antidormi, 84 A.3d 736, 759 (Pa. Super. 2014). As
such, he is in technical compliance with the requirements to challenge the
discretionary aspects of a sentence. Commonwealth v. Rhoades, 8 A.3d
912, 916 (Pa. Super. 2010). Thus, we will address his claim.
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. Garcia-Rivera, 983 A.2d 777, 780 (Pa. Super. 2009)
(citation omitted).
The Sentencing Code sets forth the considerations a sentencing court
must take into account when formulating a sentence, providing that “the
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). Additionally, in every case where a sentencing court
imposes a sentence outside of the sentencing guidelines, the court must
- 19 -
J-S24015-16
provide, in open court, a contemporaneous statement of reasons in support
of its sentence. Id. When doing so,
a [sentencing] judge ... [must] demonstrate on the record, as a
proper starting point, its awareness of the sentencing guidelines.
Having done so, the sentencing court may deviate from the
guidelines, if necessary, to fashion a sentence which takes into
account the protection of the public, the rehabilitative needs of
the defendant, and the gravity of the particular offense as it
relates to the impact on the life of the victim and the
community, so long as it also states of record the factual basis
and specific reasons which compelled it to deviate from the
guideline range.
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012) (citation
and brackets omitted). An appellate court must vacate and remand a case
where it finds that “the sentencing court sentenced outside the sentencing
guidelines and the sentence is unreasonable.” 42 Pa.C.S.A. § 9781(c)(3).
The trial court addressed Lawrence’s final issue and determined that it
lacks merit. See Trial Court Opinion, 4/20/15, at 4-10. We agree with the
sound reasoning of the trial court and discern no manifest abuse of
discretion. Accordingly, we affirm on this basis as to this issue. See id.
Because we find no merit to any of Lawrence’s issues, we affirm his
judgment of sentence.
Judgment of sentence affirmed.
- 20 -
J-S24015-16
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/22/2016
- 21 -
Circulated 05/03/2016 03:54 PM
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
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OPINION iJ co
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By: MILLER, J.
November 5, 2014
Before the court are the Post-Sentence and Supplemental Post-Sentence Motions filed by
Defendant Richard Lawrence. For the reasons that follow, the Motions are granted in part and
denied in part,
BACKGROUND
Defendant was charged with, and following a jury trial, convicted of, two counts of
1
corruption of minors, one a felony of the third degree (Count 1 of the Criminal Information), and
the other a misdemeanor of the first degree (Count 2 of the Criminal Informationj;' indecent
exposure (Count 3 of the Criminal Information);' and unlawful contact with a minor (Count 4 of
the Criminal Information).4 The charges arose from accusations of sexual contact with E.S., a 16-
1
18 Pa. C.S. § 6301(a)(l)(ii).
18 Pa. C.S. § 6301(a)(l)(i).
18 Pa. C.S. § 3127(a), a misdemeanor of the second degree.
4
18 Pa. C.S. § 63 I 8(a)( I), a felony of the third degree.
Un
No. 3170-2012
year-old male,5 beginning in May 2009, and continuing through at least February 15, 2011, when
E.S. turned 18 years of age. Count 1, the felony corruption of minors charge, was based upon
Defendant committing the crime of indecent exposure as to E.S. between December 7, 2010, and
February 14, 2011. Count 2, the misdemeanor corruption of minors charge, was based upon
Defendant having sexual contact with E.S. between May 1, 2009, and December 6, 2010.
Following Defendant's conviction on January 31, 2014, the court ordered the required
assessment by the Sexual Offenders Assessment Board pursuant to section 9799.24 of the Judicial
Code6 (the convictions on Counts 1 and 4 being sexually violent offenses, see 42 Pa. C.S. §§
9799.12 and 9799.14), as well as a presentence investigation. A hearing pursuant to 42 Pa. C.S. §
9799.24(e) (SVP Hearing) was conducted on June 30, 2014, following which the court determined
that Defendant met the statutory criteria to be classified as a sexually violent predator.
Immediately following the SVP Hearing, Defendant stood for sentencing. As to Counts 1 and 4,
the Commonwealth invoked the provisions of 42 Pa. C.S. § 9718.2(a)(2),7 and provided to the
court the records of six prior convictions of Defendant from the Circuit Court of Fairfax County,
Commonwealth of Virginia, which it alleged were for offenses equivalent to those set forth in 42
5
E.S.'s date ofbirth was February 15, 1993; Defendant's date ofbirth was June 17, 1955.
6
42 Pa. C.S. § 101 et seq., 42 Pa. C.S.A. § 9799.24.
7
42 Pa. C.S.A. § 9718.2. Sentences for sexual offenders
(a) Mandatory sentence.-
(2) Where the person had at the time of the commission of the current offense previously been
convicted of two or more offenses arising from separate criminal transactions set forth in section
9799.14 or equivalent crimes under the laws of this Commonwealth in effect at the time of the
commission of the offense or equivalent crimes in another jurisdiction, the person shall be sentenced
to a term of life imprisonment, notwithstanding any other provision of this title or other statute to
the contrary. Proof that the offender received notice of or otherwise knew or should have known of
the penalties under this paragraph shall n.2tbe required.
2
No. 3170-2012
Pa. C.S. § 9799.14. The court agreed that the offenses and conduct underlying the Virginia
convictions were sufficiently equivalent tsJh~ offenses set forth in 42 Pa. C.S. § 9799.14 to require
imposition of mandatory sentences of life imprisonment on Counts 1 and 4.
The undersigned sentenced Defendant as follows:
Count 1, Corruption of Minors (F3) Life imprisonment
Count 2, Corruption of Minors (Ml) 18 months to 5 years' incarceration
Consecutive to count 4
Count 3, Indecent Exposure (M2) ,,,, 1 .:::. 2 years' incarceration
Concurrent with count 2
Count 4, Unlawful Contact (F3) Life imprisonment
Consecutive to count 1
Defendant's aggregate sentence was two consecutive life sentences, followed by eighteen (18)
months' to five (5) years' incarceration.
,·>".'""f/
On July 10, 2014, Defendant filed a Post-Sentence Motion, in which he requested
permission to file a Supplemental Post-Sentence Motion following receipt of the transcript of the
June 30, 2014, Sentencing Hearing. The request was granted and Defendant's Supplemental Post-
Sentence Motion was filed on July 25, 20}j.;.~ The Commonwealth filed its Response on October
20, 2014.
DISCUSSION
Defendant contends that the sentences of life imprisonment were illegal and advances
several different theories in support of his contention, one of which is that Defendant's previous
.,,,-...-;~;,;_c,:··· .
convictions in the Commonwealth of Virginia were not equivalent to any Pennsylvania offenses
8
Defendant's Supplemental Post-Sentence Motion included certain exhibits to which the Commonwealth objected -
specifically, photocopies of Virginia statutes defining certain crimes, a criminal information and excerpt from a
separate case in the Lancaster County Court of Common Pleas, and briefs submitted by both the Commonwealth and
a defendant from yet another case in the Lancaster County Court of Common Pleas. Following an in-chambers
conference with counsel, and in order to allow the matter to move forward and be decided within the 120 day deadline,
see Pa. R. Crim. P. 720(8)(3), Defendant agreed to withdraw the exhibits and all references to them, and the court
entered an Order to that effect on September 5, 2014. By the same Order striking the exhibits, the undersigned directed
the Commonwealth to respond to Defendant's Supplemental Motion within 45 days.
3
No.3170-2012
subject to the mandatory sentencing provisions contaLned in 42 Pa. C.S. § 9795.1, as effective
between May 1, 2009, and February 14, 2011, or contained in 42 Pa. C.S. § 9799.14, as effective
December 20, 2012. The Commonwealth concedes that the offenses underlying the Virginia
convictions are not equivalent to those which would trigger imposition of the mandatory sentence
of life imprisonment under Pennsylvania.law. Therefore, Defendant's sentence will be vacated
and the court need not address the other bases for the claimed illegality of his sentence.
In addition to challenging his sentence, Defendant contends that the evidence presented at
trial was insufficient to sustain his convictions on Counts 1, 3 and 4 of the Criminal Information.9
Defendant argues that the evidence presented at trial was insufficient to sustain his conviction for
indecent exposure (Count 3), therefore it follows that the evidence was insufficient to sustain his
conviction for unlawful contact with a minor (Count 4), and therefore it further follows that the
evidence was insufficient to sustain his conviction for the third-degree-felony-graded offense of
corruption of minors (Count I). If the convictions fo~ the third-degree-felony-graded offense of
corruption of minors and unlawful contact with a minor (Counts 1 and 4, respectively) are not
valid, there was no legal basis for his assessment under 42 Pa. C.S. § 9799.24, or his classification
as a sexually violent predator.
Because the domino effect of Defendant's claims are predicated upon his conviction of
indecent exposure (Count 3), the court will address that charge first. The Crimes Code" defines
the offense of indecent exposure as follows:
18 Pa. C.S. § 3127. Indecent exposure
(a) Offense defined.--A person C5?JJ.1mits indecent exposure if that person exposes
9
Respectively, the third-degree-felony-graded offense of corruption of minors, indecent exposure, and unlawful
contact with a minor.
10
18 Pa. C.S. § IO I et seq.
4
No. 3170-2012
• d-.l:..'t....._
....
his or her genitals in any public place or in any place where there are present other
persons under circumstances in which he or she knows or should know that this
conduct is likely to offend, affront or alarm.
The court's instructions to the jury on this offense were consistent with the Crimes Code definition
and were taken almost verbatim from the .. Pennsylvania Suggested Standard Jury Instructions
,;;(if.:~~· .. · ' .. ' ".\".,
11
(SS.Tl) for criminal charges:
The defendant has been charged with indecent exposure. To find the
defendant guilty of this offense[,] you must find that each of the following elements
has been proven beyond a reasonable doubt: First, that the defendant exposed his
genitals; second, that the defendant did so in a place where another person or other
persons were present, specifically alleged here at 644A Cambridge Road, Salisbury
Township, Lancaster County; a11d third, that the defendant did so under
circumstances in which he knew or should have known that his conduct was likely
to offend, affront, or alarm. These elements make out the offense of indecent
exposure. (N.T. Jury Trial, Volume II, January 31, 2014, p. 253:4-15.)
In meeting its burden of proof, it is sufficient for the Commonwealth to show that a defendant
knew or should have known that his conduct is likely to cause affront or alarm. Commonwealth
. ..... ::~~:,~~·
v. Tiffany, 926 A.2d 503, 511 (Pa. Super. 2007) (citing Commonwealth v. King, 434 A.2d 1294,
1299 (Pa. Super. 1981)).
In order to overturn a verdict for insufficiency of evidence, the trial court must determine
"the evidence supporting the verdict to be so weak and inconclusive that a jury of reasonable
.;;,'-':::+::::/~· -~ •..
persons would not have been satisfied as to the [defendant]'s guilt." Commonwealth v. Bigelow,
611 A.2d 301, 303 (Pa. Super. 1992) (citing Commonwealth v. Blevins, 309 A.2d 421, 425 (Pa.
1973). If the evidence is insufficient as a matter of law, the trial judge must sustain the post-trial
motion and dismiss the charges. Common':!ealth v. Poindexter, 399 A.2d 390, 391 (Pa. 1979).
Review of a motion alleging insufficient evidence is limited to determining whether there was an
absence of the quantum evidence necessary to establish the elements of the charged offense.
11
Pennsylvania Suggested Standard Criminal Jury Instructions, Second Edition. SSJJ (Crim.) 15.3127 (indecent
exposure).
5
No. 3170-2012
Commonwealth v. Caterino, 678 A.2d 389, 391 (Pa. Super. 1996); Bigelow, supra. The trial court
must consider all of the evidence on the record, even if the evidence was not presented by the
Commonwealth or was erroneously admitted
.
and must
..,.,._
view that evidence in the light most
favorable to the Commonwealth. Commonwealth v. Tabb, 207 A.2d 884, 886 (Pa. 1965);
Commonwealth v. Downing, 739 A.2d 169, 173 (Pa. Super. 1999).
The law is well-settled that the test for reviewing the sufficiency of evidence is whether,
viewing the evidence in the light mostfavorable
...
to .... the verdict winner, the fact-finder could
. ·.:
reasonably have determined all the elements of the crime to have been established beyond a
reasonable doubt. Commonwealth v. Hopkins, 747 A2d. 910, 914 (Pa. Super. 2000). The "well-
settled" principles applicable to a sufficiency claim were recently acknowledged by the
Pennsylvania Superior Court in Commonwealth
...
v. Kelly, 2014 Pa. Super. 243, 2014 WL 5408185:
·,·'.·.
A claim challenging the sufficiency of the evidence is a question of law. Evidence
will be deemed sufficient to support the verdict when it establishes each material
element of the crime charged and the commission thereof by the accused, beyond
a reasonable doubt. Where the evidence offered to support the verdict is in
contradiction to the physical facts, in contravention to human experience and the
laws of nature, then the evidence is insufficient as a matter oflaw. When reviewing
a sufficiency claim(,] the court is,,_r~quired to view the evidence in the light most
favorable to the verdict winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence.
Kelly, supra., 2014 WL 5408185 *2-*3, citing Commonwealth v. Widmer, 560 Pa. 308, 744 A.2d
745, 751 (Pa.2000) (internal citations omitted).
In his Supplemental Post-SentenceMotion,
~.,,-~.
Defendant
-. ..,. alleges the following in support of
his challenge to his conviction for indecent exposure:
The evidence showed that [Defendant] exposed his penis to E.S. in the privacy of
his bedroom, solely in the context of consensual sexual activity. E.S. was sixteen
years old when his sexual contact with [Defendant] began, he consented to this
sexual activity, and was old enough to consent to this sexual activity under the law.
Thus, [Defendant] did not expose his penis under circumstances in which he knew
or should have known that his c';nduct was "likely to offend, affront or alarm.
6
No. 3170-2012
[Defendant] exposed his penis to E.S. while teaching E.S. to masturbate, and while
engaging in consensual oral and anal intercourse with E.S. E.S. 's participation in
the aforementioned sexual activitieswas consensual.
Defendant's Supplemental Post-Sentence Motion,~ 8. The Commonwealth counters Defendant's
assertions:
Defendant exposed his genitals to the victim, E.S. E.S. testified that seeing
Defendant's penis was "scary" to him, and repeatedly stated "it didn't feel right. It
was - it didn't seem right. It didn't-feel right." [(N.T. Jury Trial, Volume I, January
30, 2014, pp. 99:24-25 - 100: 1.)] It is clear that E.S. was offended, affronted and
alarmed at the sight of Defendant's genitals. Defendant knew E.S. grew up on a
farm, had never seen T.V. or movies, and knew nothing about sex. [[(N.T. Jury
Trial, Volume I, January 30, 2014, pp. 94:7-9, 95:24-25 -96: 1-5, 96:21-25 - 97: 1.)]
Defendant should have known his conduct was likely to offend, affront or alarm
E.S., which it clearly did based on E.S. 's testimony.
Commonwealth's response to Defendant's-Supplemental Post-Sentence Motion,~ 5.
Defendant's characterization of E.S. 's participation in the sexual activities initiated by
Defendant as "consensual" encroaches on the jury's prerogative to determine, based on all of the
evidence presented. the nature of the relationship between Defendant and E.S.12 In considering a
sufficiency claim, the trial court must be-mindful thatthe jury, as fact-finder, is responsible for
resolving questions of credibility. Commonwealth v. Blackham, 909 A.2d 315, 319 (Pa. Super.
2006). As such, they are free to believe all, some, or none of the evidence presented, id.; see also
Champney, 832 A.2d at 408; and the trial court may not to change the verdict because of a
redetermination of credibility or reexamination of theevidence, See, e.g., Bigelow, 611 A.2d at
303.
In the instant case, the jury was able to view the demeanor and presentation of E.S., as well
as his manner of testifying, in addition to considering the content of the testimony itself. Based
12
As consent is not an element of the crime of indecent exposure, the court need not address whether a minor can
legally consent to conduct or activities of a sexual nature which, whether voluntary or not, may still form the basis of
criminal charges against the adult actor.
7
,;<\.
No.3170-2012
on the verdict, the jury was apparently satisfied that E.S. was the somewhat naive, backward,
immature, young man characterized by the Commonwealth, that Defendant's actions did affront,
offend and alarm him, and that Defendant spent enough time with E.S. to know or have reason to
know that the sexual activities Defendant initiated, including the displays of Defendant's genitalia,
were disturbing and discomfiting to E.S. Far from being "so weak and inconclusive that a jury of
reasonable persons would not have been satisfied as to the [defendant]'s guilt," see Bigelow, supra.,
at 303, the evidence here was more than ample to support the jury's verdict, and the verdict cannot
be characterized as a "contradiction to the physical facts, in contravention to human experience
and the laws of nature," see Kelly, supra., *2.
Having concluded that Defendant's challenge to the sufficiency of the evidence to support
his conviction of indecent exposure lacks merit, it follows that the evidence was sufficient to
support his conviction on Count 4, unlawful contact with a minor. The Crimes Code defines that
offense as follows:
18 Pa. C.S. § 6318. Unlawful contact with minor
(a) Offense defined.--A person commits an offense if he is intentionally in contact
with a minor, or a law enforcement officer acting in the performance of his duties
who has assumed the identity of a minor, for the purpose of engaging in an activity
prohibited under any of the following, and either the person initiating the contact
or the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated i1: Chapter 31 [ of the Crimes Code]
(relating to sexual offenses).
It is undisputed that indecent exposure is an offense "enumerated in Chapter 31" of the Crimes
Code, and there is no other challenge to the sufficiency of the evidence with respect to the other
elements of this offense.
8
No.3170-2012
With respect to Defendant's claim as to Count 1, the third-degree-felony-graded offense of
corruption of minors, the court observes, as did the Pennsylvania Superior Court in Kelly, supra.,
that while Defendant's claim is couched as one of sufficiency of the evidence, "his sufficiency
claim actually addresses the grading of the offense of corruption of minors rather than the offense
itself .... " Kelly, 2014 WL 5408185 *2.
The Crimes Code defines the third-degree-felony-graded offense as follows:
18 Pa. C.S. §6301. Corruption of minors
(a) Offense defined>-
(1) ...
(ii) Whoever, being of the age ofJ8,,years and,ypwards, by any course of conduct
in violation of Chapter 31 (relating to sexual offenses) corrupts or tends to corrupt
the morals of any minor less than 18 years of age, or who aids, abets, entices or
encourages any such minor in the commission of an offense under Chapter 31
commits a felony of the third degree.
As with the offense of unlawful contact with a minor, the predicate offense of indecent exposure
,-,., .....
is the relevant "violation of Chapter 31" of the Crimes . Code and there is no other challenge to the
sufficiency of the evidence with respect to the other elements of this offense. However, because
the Superior Court has so recently had occasion to review the third-degree-felony-graded
corruption of minors offense, the court believes it is appropriate to address this offense and
__ ..,,~,..·~·-.
Defendant's conviction vis-a-vis the holding in Kelly, supra.
The court's instructions to the jury on this offense were consistent with the Crimes Code
definition and taken almost verbatim from the Pennsylvania Suggested Standard Criminal Jury
13
Instructions:
13
SSJI (Crim.) 16.630IA (corruption of minor).
9
No. 3170-2012
As charged in the first co~i~t ... to find the defendant guilty of the offense of
corruption of a minor, as charged in Count 1 of the charging document, you must find that
each of the following four elements has been proven beyond a reasonable doubt: [F]irst,
that the defendant was 18 years of age or older at the time of the incident giving rise to the
charge; second, that [E.S.], the alleged victim, was under 18 years of age at that time; third,
that the defendant: committed the offense of indecent exposure ....
To find the defendant guil!X.Q.f corruption of minor as charged in Count 1, you must
be satisfied beyond a reasonable doubt that the defendant committed the offense of indecent
exposure. The fourth element of this offense, that the conduct alleged took place between
December 7, 2010[,] and February 14, 2011. (N.T. Jury Trial, Volume II, January 31, 2014,
pp. 25 l: 19-25 and 252: 1-12.)
Moreover, the instruction made clear to the jury the need for finding a "course of conduct" (as that
element of the offense has now been explained
-~-"'·
by Kelly) by requiring the jury to find that conduct
took place between the dates specified. This is consistent with the trial testimony, wherein E.S.
testified to ongoing sexual contact, including conduct constituting the offense of indecent
exposure, which took place on repeated occasions over the time period indicated. The court's
inclusion of these dates on the verdict slip Jo help differentiate the corruption of minors offenses
~."2°"'~ · .
rx.,
charged in Counts 1 and 2 further reinforced the necessity of finding a "course of conduct" as an
element of the offense.
Satisfied as the court is that the evidence was sufficient to convict Defendant of indecent
exposure (Count 3), it therefore follows th~phe
,
evidence was sufficient to sustain his conviction
.,;;,..;.:~::·~ "·
for unlawful contact with a minor (Count 4), and it therefore further follows that the evidence was
sufficient to sustain his conviction for the third-degree-felony-graded offense of corruption of
minors (Count 1 ). The convictions for the third-degree-felony-graded offense of corruption of
minors and unlawful contact with a minor (Counts 1 and 4, respectively) being valid, the court was
_j,"_~-:s~' .....
. ..._
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
vs. No. 3170-2012
RICHARD EUGENE LAWRENCE
ORDER
AND NOW, this 5th day of November, 2014, upon consideration of Post-Sentence and
Supplemental Post-Sentence Motions, th';·Motions are GRANED IN PART and DENIED IN
PART, consistent with the foregoing Opinion.
The sentences imposed on Defendant on June 30, 2014, are hereby VACATED. The court
wi 11 enter a separate Order for the purpose of scheduling a resentencing hearing.
ATTEST: BY THE COURT:
~~M~/
JUDGE
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *'*\'* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Copies to: James M. Reeder, Esquire - Office of the District Attorney
Mary Jean Glick, Esquire - Office of the Public Defender
No. 3170-2012
correct 111 ordering Defendant's assessment under 42 Pa. C.S. § 9799.24, and, following the
hearing, classifying him as a sexually violent predator.14
Accordingly, the court enters the following:
14
Beyond challenging the predicate convictions on Counts I and 4, Defendant's Post-Sentence and Supplemental
Post-Sentence Motions do not specifically challenge the SVP Hearing or the court's findings and conclusions in
support of its determination that Defendant satisfies the statutory criteria to be classified as a sexually violent predator
under 42 Pa. C.S. § 9799.24.
11
'-·~-
Circulated 05/03/2016 03:54 PM
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEAL TH OF PENNSYLVANIA i- r-....:,
·~-
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vs. No. 3170-2012 :;:::·. -~;
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RICHARD EUGENE LAWRENCE ::::0 c:; .
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OPINION -1 . ..
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·~·
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(. ..)
-0
By: MILLER, J. !:'"-'"
April 20, 2015
Before the court is the Post-Sentence Motion filed by Defendant Richard Lawrence
following his re-sentencing !)earing on January 22, 2015. For the reasons that follow, the Motion
is denied.
BACKGROUND
..
Defendant was charged with, and following a jury trial, convicted of, two counts of
corruption of minors, indecent exposure, and unlawful contact with a minor.' The charges arose
from accusations of sexual contact with E.S., a 16-year-old male,2 beginning in May 2009, and
continuing through at least February 15, 2011, when E.S. turned 18 years of age. Following
.-=;:·····
Defendant's conviction on January 31, 2014, the court ordered the required assessment by the
Sexual Offenders Assessment Board pursuant to section 9799.24 of the Judicial Code,' as the
1
18 Pa. C.S ~ 630l(a)(l)(ii). a felony of the third degree (Count I): 18 Pa. C.S. ~ 630l(a)(l)(i), a misdemeanor of
the first degree (Count 2); 18 Pa. C.S. § 3 l 27(a), a misdemeanor of the second degree (Count 3 ); and 18 Pa. C.S. ~
63 I 8(a)( l ), a felony of the third degree (Count 4).
" E.S.'s date of birth was February 15, 1993; Defendant's date of birth was June 17, 1955.
3
42 Pa. C.S. § IO I et seq., 42 Pa. C.S.A. § 9799.24.
No.3170-2012
convictions on Counts 1 and 4 (corruption of minors and unlawful contact with a mmor,
'$.
respectively, both felonies of the third degree) were sexually violent offenses, see 42 Pa. C.S. §§
9799 .12 and 9799 .14. The court also ordered a pre sentence investigation.
A hearing pursuant to 42 Pa. C.S. § 9799.24(e) (SVP Hearing) was conducted on June 30,
2014, following which the court determined that Defendant met the statutory criteria to be
...~ . ,/~~-·-·
classified as a sexually violent predator. Immediately f~llowing the SVP Hearing, Defendant stood
for sentencing. As to Counts 1 and 4, the Commonwealth invoked the provisions of 42 Pa. C.S. §
97 l 8.2(a)(2), calling for mandatory life sentences for certain sexual offenders, and provided to the
court the records of six prior convictions of Defendant from the Commonwealth of Virginia, which
......,
it alleged were for offenses equivalent to those set forth in 42 Pa. C.S. § 9799.14. The court agreed
and sentenced Defendant to consecutive terms of Life imprisonment on Counts l and 4, 18 months
to five years' incarceration on Count 2 and one to two years' incarceration on Count 3. The
sentence on Count 2 was made consecutive to the life sentence on Count 4; the sentence on Count
3 was made concurrent with the sentence on Count 2:"· Defendant's aggregate sentence was two
consecutive life sentences, followed by eighteen ( 18) months' to five (5) years' incarceration.
Defendant timely filed Post-Sentence and Supplemental Post-Sentence Motions,
contending. inter alia, that the sentences of life imprisonment were illegal." The Commonwealth
-~~---..-~
conceded that the offenses underlying the Virginia convictions were not equivalent to those which
would trigger imposition of the mandatory sentence of life imprisonment under Pennsylvania law.
By Order of November 5, 2014, this court vacated the sentences imposed on June 30, 2014.
4
In addition to challenging his life sentenceS:'"''o;fendant contended that the evidence presented at trial was
insufficient to sustain his convictions on Counts 1, 3 and 4 of the Criminal Information, and challenged the grading
of the Count I corruption of minors charge as a felony of the third degree. The court found no merit in these claims
and denied relief. The issues raised in Defendant's initial Post-Sentence and Supplemental Post-Sentence Motions
are addressed in full in this court's Opinion ofNovember 5, 2014.
2
No. 3170-2012
Having vacated Defendant's sentences, the court held a re-sentencing hearing, at which
time the court concluded that the previously calculated prior record score (PRS) ascribed to
Defendant was incorrect, resulting in a change in the Sentencing Guidelines applicable to the
calculation of Defendant's minimum sentences for the various offenses. Concluding that
Defendant's PRS was 1, the Guidelines indicated the following standard minimum incarceration
sentence ranges for the offenses of which Defendant was convicted, as well as the number of
months to be added or subtracted for aggravating or mitigating circumstances:
Count 1 Corruption of Minors (F3) 1 month - 12 months +/- 3 months
Count 2 Corruption of Minors (M l"f ·'"'· 1 month - 12 months +/- 3 months
Count 3 Indecent Exposure (M2) RS-6 months +/- 3 months
Count 4 Unlawful Contact (F3) 6 months - 14 months +/- 6 months
At the January 22, 2015, re-sentencing hearing, the court imposed the following sentences
of incarceration:
Count l Corruption of Minofs(F3) 3 1/2 - 7 years' incarceration
Count 2 Corruption of Minors (Ml) 2 1/2 - 5 years' incarceration
Count 3 Indecent Exposure (M2) 1 - 2 years' incarceration
Count 4 Unlawful Contact (F3) 3 1/2 - 7 years' incarceration
The sentences on each count were made consecutive to one another, resulting in an aggregate
sentence of 10 1/2 - 21 years' incarceration. The court concluded, and defense counsel agreed, that
-~····"-.-.:-:il;:.~-
Defendant was not eligible for reduction of his minimum sentences under the Recidivism Risk
Reduction Incentive (RRRI) program5 and the Commonwealth did not waive Defendant's RRRI
ineligibility.
On February 2, 2015, Defendant timely filed the instant Post-Sentence Motion, alleging
that: ( 1) the sentences imposed by the court at the January 22, 2015, re-sentencing hearing were
unreasonable in that the minimum sentences deviated from the Sentencing Guidelines by
5
61 Pa. C.S. Chapter 45, 61 Pa. C.S. § 450 l et seq.
3
No. 3170-2012
»«: .
exceeding the aggravated range, the maximum sentences were imposed at the statutory limit, and
the sentences were made consecutive to one another; (2) the court failed to state on the record
adequate bases for deviating from the Guidelines, imposing the statutory limits, or making the
sentences consecutive; and (3) the court failed to consider the positive aspects of Defendant's life,
his statements of remorse, and his amenability to rehabilitation.
DISCUSSION
It is well established that sentencing is a matter vested in the sentencing court's discretion.
A sentencing court is vested with broad discretion in determining a defendant's sentence, as it is
,..;,.;::<'c,".':'.'._,,?t,.
in the best position to view the defendant's character, displays of remorse, defiance, or
indifference, and the overall effect and nature of the crime. Commonwealth v. Begley, 780 A.2d
605, 643 (Pa. 2001 ). A sentence will not be disturbed absent a manifest abuse of discretion.
Commonwealth v. Cunningham, 805 A.2d 566, 575 (Pa. Super. 2002); accord Commonwealth v.
_,;."tn,fl,~./.£.::.. ..
Ritchie, 779 A.2d 1183 (Pa. Super. 2001). A manifest abuse of discretion occurs where the
judgment imposed was manifestly unreasonable or the result of partiality, prejudice, bias, or ill
will. Cunningham at 575.
Under the Sentencing Code,6 the court must select a sentencing option, be it probation,
guilt without further penalty, partial confinement, or total confinement, and in doing so must be
guided by the statutory standard which requires that the sentence imposed be 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. § 9721(b). See
also Commonwealth v. Walls, 926 A.2d 957 (Pa. 2001r· In fashioning its sentence, the undersigned
was guided by these standards and also the Walls court's review of sentencing considerations,
6
42 Pa. C.S. § 970 I et seq.
No. 3170-2012
including its discussion of the Sentencing Guidelines established by the Pennsylvania Commission
on Sentencing.
While the Sentencing Guidelines are a valuable starting point to be considered, they are
but one factor among many that a court must consider. Commonwealth v. Sheller, 961 A2.d 187,
190 (Pa. Super. 2008). The Guidelines are not binding, they create no presumptions in sentencing
and are "advisory guideposts," which "recommend ... rather than require a particular sentence."
Walls at 963. Neither the Guidelines nor the Sentencing Code require that the court impose the
-~·/;:.:,"""".:-·
minimum possible confinement. Id. A court may depart from the Guidelines when necessary to
fashion a sentence "which takes into account the protection of the public, the rehabilitative needs
of the defendant, and the gravity of the particular offense as it relates to the impact on the life of
the victim and the community." Sheller at 190. When the sentencing court deviates from the
Guidelines, choosing (as in this instanceft~~.sentence 'a defendant above the aggravated range, it
must also provide a statement of its reason or reasons for deviating from the guidelines.
Commonwealth v. Guth, 735 A.2d 709, 711 (Pa. Super. 1999).
In determining the reasonableness of a minimum sentence which falls outside the standard
.JI~,'
range of the sentencing guidelines, or ofthe aggregatesentence generally, a reviewing court will
consider: (1) the "nature and circumstance of the offense and the history and characteristics of the
defendant, (2) the opportunity of the sentencing court to observe the defendant, including any
presentence investigation, (3) the findings upon which the sentence was based, and ( 4) the
[Sentencing G]uidelines promulgated bitl1"e [Pennsylvania Commission on Sentencing]." Sheller
at 190-191. Unless a sentence exceeds the statutory maximum, or is so excessive as to constitute
a manifest abuse of discretion, a trial court's sentence will not be disturbed. See Commonwealth
v. Plank, 445 A.2d 491 (Pa. 1982).
5
No. 3170-2012
The essential gravamen of each contention of Defendant's Post-Sentence Motion is that
the court abused its discretion in imposing-the
.
sentences it did.
;.,:;~
An abuse of discretion is "not
merely an error of judgment, but if in reaching a conclusion the law is overridden or misapplied,
or the judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, bias, or
ill-will, as shown by the evidence or the record." Commonwealth v. Stollar, 84 A.3d 635, 650 (Pa.
2014) (citing Commonwealth v. Chambers, 685 A.22. 96, 104 (Pa. 1996)). The record clearly
shows the undersigned's application of the required sentencing considerations to Defendant's
circumstances and its detailed explanation of its underlying reasoning.
As to the consecutive rather than concurrent nature of the sentences, the Superior Court of
Pennsylvania has recently had occasion.jo. reaffirm the well-established standard for such a
determination:
We have stated that the imposition of consecutive rather than concurrent sentences
lies within the sound discretion of the sentencing court. Commonwealth v. Lloyd,
878 A.2d 867, 873 (Pa. Super. 2005) (citing Commonwealth v. Hoag, 445 Pa.
Super. 455, 665 A.2d 1212, 1214 (1995)). Long standing precedent of this Court
recognizes that 42 Pa. C.S.A. § .2,721 affords the sentencing court discretion to
impose its sentence concurrently o~·
consecutively to other sentences being imposed
at the same time or to sentences already imposed. Commonwealth v. Marts, 889
A.2d 608, 612 (Pa. Super. 2005) ( citing Commonwealth v. Graham, 541 Pa. 173,
661 A.2d 1367. 1373 (1995)).
Commonwealth v. Zirkle, 107 A.3d 127, 133 (Pa. Super 2014), citing Commonwealth v. Johnson,
961 A.2d 877, 880 (Pa. Super. 2008) (citations modified).
When fashioning Defendant's sentence, this court took into account numerous
considerations comprising the totality of the circumstances surrounding Defendant and his crimes,
including those enunciated in 42 Pa. C.S. § 9271 (b) (i.e. requiring consideration of the general
public and its safety, the gravity of the offense, and Defendant's rehabilitative needs), as well as
6
No. 3170-2012
the information contained in the PresentenceInvestigation Report.7 These considerations included
,.~.:... ... -
Defendant's comments at the re-sentencing hearing (contrary to Defendant's assertion to the
contrary) and the effect of the crimes and the manner in which they were perpetrated on the victim,
E.S. These are fair matters for the court's consideration when it fashions a sentence. See Zirkle
at 133: " ... Zirkle argued that the cou~,twas unduly influenced by the victims' statements .
.::-:i:·~···.. ..,.,..~
However. we have held that a claim that a court did not weigh the factors as an appellant wishes
does not raise a substantial question." (Citations omitted); and see id., n.1.
At trial, the court, as well as the jury, was able to view the demeanor and presentation of
E.S., as well as his manner of testifying, ./.~i·r..:
in. addition to considering the content of the testimony
·l"".i;_
itself. The court's conclusion, and apparently the jury's, too, based upon the verdict, is that E.S.
was the somewhat naive, backward, immature, young man characterized by the Commonwealth.
As the court noted in its Opinion of November 5, 2014, in discussing the sufficiency of evidence
to support the jury's verdict on the indecent assault charge, "Defendant's actions did affront,
~~~(":'"~- fi;_.
offend and alarm [E.S.], and ... Defendant spent enough time with E.S. to know or have reason
to know that the sexual activities Defendant initiated, including the displays of Defendant's
genitalia, were disturbing and discomfiting to E.S." Commonwealth v. Lawrence, CP-36-CR-
3170-2014, November 5, 2014, Opinion, pp. 7-8 (CCP Lancaster County) (emphasis added) .
.~:::'.·~~-(
Considerations such as these play a part in the sentencing court's determination of the "nature and
circumstance of the offense and the history and characteristics of the defendant." See Sheller,
supra.
7
"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 [or
aggravating l statutory factors." Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988). The presumption is satisfied
where the sentencing judge indicates that it has been informed by the pre-sentence report. Commonwealth v. Egan,
679 A.2d 237, 239 (Pa. Super. 1996).
7
No. 3170-2012
Defendant's contentions that the court failed to state adequate bases for its sentence and
failed to consider the positive aspects of Defendant's life, his statements of remorse, and his
amenability to rehabilitation are belied by the court's remarks when sentence was imposed:
Certainly, having been the-presiding judge at trial, I am very familiar with
the testimony, having had now numerous opportunities at different stages to view
the trial transcripts. It has kept it relatively fresh in my mind. And in preparation
for ruling on the post-sentence motions, the Court had further opportunity to review
the SVP testimony and report of Dr. Stein, and I looked at all of that in preparation
for today's re-sentencing hearing.
Knowi ng that. short of all of the other legal issues that may be surrounding
this case, what is most important-here is that the criminal justice system respond
based on the jury's convictions of the crimes charged and that the system do so in
accordance with the law and based on the factors that the sentencing code requires
me, as the sentencing judge, to consider.
Those factors, Mr. Lawrence, do not really have anything to do with any
epiphany of your personal spiritual state at any given time, because what you need
to understand is the criminal justice system seeks to protect those who are
vulnerable from those who would commit crimes against them. And an individual's
spiritual state of mind is personal to that individual. The Court cannot see into a
man's heart or soul, or they shouldn't sentence on that basis, but should sentence
based on the objective conduct and the objective factors. Those factors are the
significance of the crime on the life of the victim, and as it affects the community
in general.
Those factors include your prospects for rehabilitation, and also the extent
to which you acknowledge or take=responsibility for your role in bringing the
circumstances to fruition or into being. I am required here to think back on the
victim's testimony. I dislike the word victim, but the language is limiting, and what
still slicks out to me the most is the naive, youthful, uncertain young man who was
groomed, intimidated, and he was groomed by you and intimidated by you.
You didn't have to do any of this. You never had to lay a finger on him. He
never asked you to lay a finger on him. And you knew it was wrong. And I know
you knew it was wrong because you-said to him, I can't get in trouble unless you
testify. And you did, based on the testimony, take active or make active attempts
at creating an atmosphere that would, if not outright scare, at least intimidate or
discourage the young man from disclosing or ending it. And that's on you. That's
all on you. It's your responsibility, you brought all of that to bear. And you need
to be answerable for that because, based on your history, I know that you know that
certain forms of conduct with a minor are illegal.
8
No.3170-2012
You've been convicted of certain forms of sexual conduct with a minor, and
they were illegal, and notwithstanding whether your sodomy convictions are
constitutional or unconstitutional, whether they are legal conduct in the secular and
against the law of God, has no bearing at all on what's before me today. Because
this is not about equally-placed individuals engaging in consensual conduct. It is
an individual who, frankly, targeted a victim, groomed that victim, predated that
victim, brought him along, scared him into continuing conduct that made him
uncomfortable and exposed him to criminal activity. Plain and simple.
The ultimate morality of it is not for me to say. If an individual's orientation
wants to go one way or another with a consenting adult is not the question in front
of me. So many of the things thatyoi; had to say in your statement, while you may
need to in your personal rehabilitation subscribe to certain beliefs and find your
way through by reconnecting with certain Biblical precepts, that's between you and
God; that's not between the Court and you.
I see an individual who, notwithstanding everything you said today,
basically is mostly sorry that it had to tum out this way, only because it's wrong,
criminally wrong. Morally wrong, that's another question. It's not for me. You are
sorry it's criminally wrong and it ended you up-in court.
l have to be mindful of the nature of your prior offenses and the fact that I
was satisfied, based on Dr. Stein's opinion, that you are an individual who satisfies
the statutory definition of a sexually violent predator, and my sentence needs to
reflect that, because ultimately, I am required to protect, and the protection of the
community sometimes does require this Court to deviate from the sentencing
guidelines. They are, it is true, as a matter of law, a starting point, and they are not
an ending point, particularly, wherelbelieve, as it is in this case here, the conduct,
that when one is not adequately controlled by a sentence that is even in the
aggravated range, I think your propensity for re-offense is high. I think the matter
in which you relate the matter to yourself is more indicative of one who, how shall
I say, regrets that he enjoys his weakness so much.
With that in mind, and having given a great deal of thought to this, I am
deviating from the sentencing guidelines for the reasons stated. I do not believe
that the guidelines even in the aggravated range adequately protect the community,
nor do they adequately reflect the degree of culpability of Mr. Lawrence in his
conduct as to this victim over the periods of time that were found to have occurred.
/vnd also I need to think of the vindication of the victim and his right to justice,
where an individual has preyed upon him. (N.T. Re-sentencing Hearing, January
::::::. :2015. pp. 48:3-5:2: 10.)
The court is satisfied that Defendant's sentence accords with the Jaw and fairly reflects the
nature and circumstances of Defendant's crimes, their effect on the victim, and Defendant's
9
No. 3170-2012
culpability in light of his actions toward-E'S. before.and after his sexual encounters with E.S.
Accordingly, the court enters the following:
··~·- ..
lN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA
CRIMINAL
COMMONWEAL TH OF PENNSYLVANIA
VS. No. 3170-2012
RICHARD EUGENE LAWRENCE
.-!f:~; _,
ORDER~·
AND NOW, this 20th day of April, 2015, upon consideration of the Post-Sentence Motion
filed on behalf of Defendant Richard Lawrence, the Motion is DENIED, consistent with the
foregoing Opinion.
ATTEST: BY THE COURT:
lo~
MARIiirc:MILLER
JUDGE
c, C• I
)>
(./)
.-"·-~
(/)
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Copies to: Jennifer L. Ponessa-Hundley, Esquire - Office of the District Attorney
Mary Jean Glick, Esquire - Office of the Public Defender