Com. v. McAleer, T. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
TERRENCE MCALEER,
Appellant No. 2261 EDA 2013
Appeal from the Judgment of Sentence Entered on November 7, 2008
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006283-2007
BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*
MEMORANDUM BY BENDER, P.J.E.: FILED OCTOBER 01, 2014
Appellant, Terrence McAleer, appeals from the judgment of sentence of
7-14 years’ incarceration and 15 years’ consecutive probation, imposed
following his conviction for involuntary deviate sexual intercourse (IDSI),
unlawful contact with a minor (UCM), aggravated indecent assault (AIA),
corruption of a minor (COM), and endangering the welfare of a child
(EWOC).1 Appellant challenges the discretionary aspects of his sentence and
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 3123, 18 Pa.C.S. § 6318, 18 Pa.C.S. § 3125, and 18 Pa.C.S. §
6301, respectively.
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claims that the evidence was insufficient to support his convictions. After
careful review, we affirm.2
Appellant’s conviction stems from his sexual molestation of a fifteen-
year-old girl, R.B., on or about November 11 and 12, 2006. R.B., a friend of
Appellant’s daughter, slept over at Appellant’s house that evening. N.T.,
8/5/08, at 90. At approximately 8:30 p.m., Appellant told R.B. to select a
movie to watch. Id. at 92. Appellant’s daughter decided not to watch the
movie. Instead, she spent the remainder of the evening upstairs in
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2
Appellant’s attorney, John P. Cotter, Esq., initially requested oral argument
in this case. However, immediately prior to the date set for oral argument,
Attorney Cotter submitted this case for our consideration without oral
argument. Such action does not typically concern us; indeed, when the
controversy that gives rise to appellate review is adequately addressed in
the parties’ briefs, and our review is unlikely to benefit from oral argument,
submission without oral argument is permitted, if not encouraged.
However, Attorney Cotter requested oral argument in two other cases
set to be heard by this panel on the same day. And, as he did in the instant
case, Attorney Cotter submitted those cases for our consideration without
oral argument immediately prior to the date set for oral argument. Indeed,
it appears to be Attorney Cotter’s usual practice to request, but never to
attend oral argument.
Rule 3.2 of Pennsylvania’s Rules of Professional Conduct states that
“[a] lawyer shall make reasonable efforts to expedite litigation consistent
with the interests of the client.” Requesting oral argument, without any
intention to actually attend oral argument, does not comport with the text or
the spirit of Rule 3.2, as oral argument panels do not occur with the same
frequency as panels composed of cases where oral argument is not
requested. Additionally, insincere requests for oral argument may serve to
delay appellate review of other cases where there is a genuine desire by
those appellants to assist this Court’s disposition through oral advocacy.
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Appellant’s room, listening to music on the computer while Appellant and
R.B. sat together on the couch watching the movie. Id. During the movie,
Appellant began touching R.B.’s vagina both above and under her
underwear. Id. at 96-97. He inserted his finger into her vagina. Id. at 97-
98. He also lifted up R.B.’s shirt and “sucked on” her breasts. Id. at 99.
At some point, Appellant’s daughter came downstairs. When this
occurred, Appellant stopped touching R.B. Id. at 101. The three ate dinner,
and then Appellant’s daughter went back upstairs. Id. at 102.
Subsequently, R.B. went to the bathroom and, pursuant to Appellant’s
request, removed her underwear. Id. at 103. When R.B. returned to the
couch, Appellant removed her pants, asked her to spread her legs, and
performed oral sex on her, at which time his tongue entered her vagina. Id.
at 104. Afterwards, R.B. went upstairs to bed. Id. at 105.
During these events, R.B. indicated that she “liked it at first,” however,
she eventually became uncomfortable and stated that it felt “weird.” Id. at
111. “Once or twice” she told Appellant “no.” Id. Specifically, she recalled
telling Appellant “no” when he penetrated her anus with his finger. Id. The
next morning, Appellant entered the room in which R.B. was sleeping and
asked if she wanted his company, and she replied, “no.” Id. at 115. Later,
Appellant asked R.B. to follow him into his room. Id. There, Appellant
showed R.B. a pornographic video depicting naked adults performing oral
sex on each other. Id. at 116. At school the following day, R.B. told her
friends what happened with Appellant. Id. at 120. She also told a counselor
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at her church youth group what had happened. Id. at 126-27. R.B. was
advised to tell her parents, and later that evening, she did so. Id. at 128-
29.
R.B.’s parents ultimately contacted police on the morning of November
16, 2006.3 Police officer John Holt took statements from R.B. and her
father. N.T., 8/6/08, at 77-78. R.B. also recounted her story to Detective
Ken Mbaya. Id. at 101. Detective Mbaya then interviewed Appellant.
Appellant repeated the account he gave to R.B.’s father, telling the detective
that R.B. had put her hand on his leg and that he told her it was
inappropriate. Id. at 109. He denied having shown R.B. pornography;
however, he admitted that it was on his computer, but indicated that it was
blocked by a password. Id. Appellant also indicated that he believed R.B.
had manufactured the allegations because he had rejected her advances.
Id. at 110. Detective Mbaya later obtained a search warrant and discovered
that adult pornography films had been downloaded to Appellant’s computer.
Id. at 117.
The foregoing was presented as evidence at Appellant’s jury trial
through the testimony of R.B., her father, Officer Holt, and Detective Mbaya.
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3
Prior to contacting the police, R.B.’s father called Appellant to confront him
about the matter. At that time, Appellant told R.B.’s father that R.B. had put
her hand in his lap, but that Appellant told her that it was inappropriate and
instructed her to move to the other side of the couch. Appellant admitted
answering R.B.’s questions about sex and that he had shown her a sex
education book. Id. at 42-43.
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Additionally, four character witnesses testified on Appellant’s behalf,
describing Appellant’s reputation in the community for being peaceful, law-
abiding, and non-violent. Appellant’s daughter also testified, indicating that
she had not witnessed any of the events described by R.B. Id. at 22-53.
She did state that R.B. admitted to having a crush on Appellant. Id. at 48.
On August 7, 2008, the jury found Appellant guilty of IDSI, UCM, AIA,
and COM. On November 7, 2008, following the completion of a pre-sentence
report, a mental health evaluation, and a Megan’s Law report, the trial court
sentenced Appellant to 7-14 years’ incarceration for IDSI, and consecutive
terms of 5 years’ probation each for UCM, AIA, and COM, for an aggregate,
consecutive term of 15 years’ probation.
Appellant filed a direct appeal in which he raised a challenge to the
discretionary aspects of his sentence. We affirmed his judgment of sentence
on July 13, 2010, when a panel of this Court concluded that it could not
reach the merits of Appellant’s discretionary aspects of sentencing claim
because he had filed a defective Pa.R.A.P. 2119(f) statement. See
Commonwealth v. McAleer, 6 A.3d 558 (Pa. Super. 2010) (unpublished
memorandum). Appellant subsequently filed a timely PCRA4 petition
seeking, inter alia, reinstatement of his direct appellate rights nunc pro tunc.
Reinstatement was granted by order dated July 18, 2013, with the
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4
Post Conviction Relief Act, 42 Pa.C.S. § 9541 et seq.
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Commonwealth’s consent. Appellant subsequently filed a timely notice of
appeal nunc pro tunc on August 5, 2013.
The trial court did not request a Pa.R.A.P. 1925(b) statement from
Appellant, nor did it file a Rule 1925(a) opinion in the instant appeal.
However, on October 28, 2013, the trial court issued a letter to our
Prothonotary indicating that the trial judge, the Honorable John J. O’Grady,
had retired. Consequently, the record was forwarded to this Court without
an opinion. We note, however, that Judge O’Grady had filed a Rule 1925(a)
opinion on October 14, 2009.
Appellant now presents the following questions for our review:
I.
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by physical or medical evidence and it is contradicted by the
other evidence introduced by the Commonwealth the conviction
of … [A]ppellant for these offenses is based on surmise and
conjecture. This Court should vacate the sentence and reverse
the trial court’s finding of guilt.
Id.
Our standard of review of sufficiency claims is well-settled:
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 of law. When reviewing a sufficiency
claim[,] the court is required 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.
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000) (internal
citations omitted).
We note that “[a] mere conflict … does not render the evidence
insufficient[.]” Commonwealth v. Halye, 719 A.2d 763, 764 (Pa. Super.
1998). Instead, “it is within the province of the fact finder to determine the
weight to be given to the testimony and to believe all, part, or none of the
evidence.” Id. Accordingly, this Court has long-recognized “that the
uncorroborated testimony of a sexual assault victim, if believed by the trier
of fact, is sufficient to convict a defendant, despite contrary evidence from
defense witnesses.” Commonwealth v. Davis, 650 A.2d 452, 455 (Pa.
Super. 1994) (emphasis added). “[I]f the factfinder reasonably could have
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determined from the evidence adduced that all of the necessary elements of
the crime were established, then that evidence will be deemed sufficient to
support the verdict.” Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa.
Super. 2006) (citing Commonwealth v. Hopkins, 747 A.2d 910, 914 (Pa.
Super. 2000)).
Here, the jury was free to believe R.B.’s uncorroborated testimony,
and it was also free to disbelieve any testimony contradicting her account of
the events. Davis. Appellant fails to cite any controlling or persuasive
authority to the contrary. Accordingly, Appellant’s sufficiency claim lacks
merit.
Next, Appellant claims he is entitled to a new sentencing hearing
because his sentence was “unjust, improper, manifestly unreasonable,
irrational, and an abuse of discretion[.]” Appellant’s Brief at 10. Appellant’s
claim presents a challenge to 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. Sierra, 752 A.2d 910, 912 (Pa. Super. 2000). An appellant
challenging the discretionary aspects of his sentence must
invoke this Court's jurisdiction by satisfying a four-part test:
[W]e conduct 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, 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).
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Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006), appeal denied, 589 Pa. 727, 909 A.2d 303 (2006)
(internal citations omitted). Objections to the discretionary
aspects of a sentence are generally waived if they are not raised
at the sentencing hearing or in a motion to modify the sentence
imposed. Commonwealth v. Mann, 820 A.2d 788, 794 (Pa.
Super. 2003), appeal denied, 574 Pa. 759, 831 A.2d 599 (2003).
The determination of what constitutes a substantial
question must be evaluated on a case-by-case basis.
Commonwealth v. Paul, 925 A.2d 825, 828 (Pa. Super. 2007).
A substantial question exists “only when the appellant advances
a colorable argument that the sentencing judge's actions were
either: (1) inconsistent with a specific provision of the
Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process.” Sierra, supra at 912-
13.
As to what constitutes a substantial question, this Court
does not accept bald assertions of sentencing errors.
Commonwealth v. Malovich, 903 A.2d 1247, 1252 (Pa. Super.
2006). An appellant must articulate the reasons the sentencing
court's actions violated the sentencing code. Id.Commonwealth v. Moury, 992 A.2d 162, 170 (Pa. Super. 2010).
Subjecting Appellant’s discretionary aspects of sentencing claim to the
four-part Evans test described above, we conclude that Appellant failed to
invoke the jurisdiction of this Court to review his sentencing claim.
Regarding the first element of the Evans test, we note that Appellant filed a
timely notice of appeal. As for the second element of the Evans test,
Appellant did file a post-sentence motion. However, in that motion,
Appellant raised the following claim: “The defendant moves for
reconsideration of the sentence imposed and respectfully submits said
sentence i[s] excessive in light of the requirements of the sentencing code.”
Post-Sentence Motion, 11/17/08, at 3
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not satisfy the requirement that Appellant’s claim be preserved in a post-
sentence motion, because it does not identify the specific part of the
Sentencing Code contravened by the sentence imposed, nor does it describe
the manner in which the Sentencing Code was disregarded or infringed.5
However, we are reluctant to dismiss Appellant’s claim on this basis, as it is
unclear if Appellant preserved his arguments during his sentencing hearing,
because the record before us does not contain a transcript of that
proceeding.6
Appellant is also required to file a Rule 2119(f) statement to satisfy the
third Evans element. Although he did file a Rule 2119(f) statement, that
statement suffers one of the same defects that we found in the Rule 2119(f)
statement that Appellant filed during his initial direct appeal. See
Commonwealth v. McAleer, No. 1089 EDA 2009, unpublished
memorandum at 4 (Pa. Super. filed July 13, 2010) (holding Appellant failed
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5
The Rules of Criminal Procedure provide that: “The defendant in a court
case shall have the right to make a post-sentence motion. All requests for
relief from the trial court shall be stated with specificity and
particularity, and shall be consolidated in the post-sentence motion ….”
Pa.R.Crim.P. 720(B)(1)(a) (emphasis added).
6
We are, perhaps, being excessively cautious in this regard, as “[i]t is well
settled that the Appellant bears the burden of ensuring a completed record.”
Commonwealth v. Dunkle, 932 A.2d 992, 996 (Pa. Super. 2007).
Additionally, Appellant has not cited, in either his Rule 2119(f) statement or
the argument portion of his brief, where in the record he preserved his
discretionary aspect of sentencing claim(s).
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to “specify where his sentence falls in relation to the appropriate sentencing
guidelines[.]”).
“[A]n appellant who seeks to challenge the discretionary aspects of his
or her sentence must provide a separate statement, pursuant to Rule of
Appellate Procedure 2119(f), specifying where the sentence falls in relation
to the Sentencing Guidelines and what particular provision of the Sentencing
Code has been violated.” Commonwealth v. Hartle, 894 A.2d 800, 805
(Pa. Super. Ct. 2006) (citing Commonwealth v. Boyer, 856 A.2d 149 (Pa.
Super. 2004)). Although Appellant’s Rule 2119(f) statement does specify
particular provisions of the Sentencing Code that he claims were
contravened, he fails to specify where his sentence fell within the Sentencing
Guidelines. As such, we cannot determine whether Appellant raises a
substantial question. Accordingly, we conclude that Appellant’s defective
Rule 2119(f) statement fails to invoke this court’s jurisdiction to review his
discretionary aspects of sentencing claim. Evans.
Nevertheless, should we overlook this particular defect in Appellant’s
Rule 2119(f) statement, we must address the fourth element of the Evans
test: whether Appellant presents a substantial question for our review. One
of the two arguments subsumed in his discretionary aspects of sentencing
claim does not present a substantial question for our review. Appellant
states that his “long period of probation is particularly onerous and
unnecessary because [Appellant] is required to be a lifetime registrant with
the State Police.” Appellant’s Brief at 3. This argument is a “bald assertion
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that Appellant's sentence was excessive, devoid of supporting legal
authority.” Commonwealth v. Fisher, 47 A.3d 155, 159 (Pa. Super.
2012), appeal denied, 62 A.3d 378 (Pa. 2013). Such a claim does not
present a substantial question. Id.However, Appellant also asserts that the sentencing court did not
consider his rehabilitative needs when crafting his sentence. This claim does
present a substantial question for our review. See Commonwealth v.
Downing, 990 A.2d 788, 793 (Pa. Super. 2010) (holding that “Appellant’s …
claim … that the trial court failed to consider [his] rehabilitative needs …
raises a substantial question.”).
Should we reach the merits of this claim, however, Appellant would
still not be entitled to relief.
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. Hoch, 936 A.2d 515, 517–18 (Pa. Super. 2007)
(citation omitted).
Appellant does not dispute that a pre-sentence investigation report
was provided to the trial court for sentencing. In Commonwealth v.
Devers, 546 A.2d 12, 18 (Pa. 1988), our Supreme Court found that
“[w]here pre-sentence reports exist, we shall continue to presume that the
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sentencing judge was aware of the relevant information regarding the
defendant's character and weighed those considerations along with
mitigating statutory factors.” Here, Appellant fails to present any argument
to counter the Devers presumption that the sentencing court considered
Appellant’s relevant rehabilitative needs. Accordingly, were we to reach the
merits of Appellant’s discretionary aspects of sentencing claim, he still would
not be entitled to relief.
Judgment of sentence affirmed.
Judge Platt joins in the memorandum.
President Judge Gantman concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/1/2014
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