Com. v. Witmayer, M. , 2016 Pa. Super. 164 ( 2016 )

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2016 PA Super 164COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL WITMAYER,
Appellant No. 1560 EDA 2015
Appeal from the Judgment of Sentence May 4, 2015
In the Court of Common Pleas of Montgomery County
Criminal Division at No(s): CP-46-CR-0004935-2013
BEFORE: BOWES, MUNDY AND PLATT,* JJ.
OPINION BY BOWES, J.: FILED JULY 22, 2016
Michael Witmayer appeals from the judgment of sentence of five and
one-half to twenty years imprisonment that was imposed after he was
convicted at a jury trial of involuntary deviate sexual intercourse with a child
less than sixteen years of age (“IDSI”), indecent assault of a person less
than sixteen years of age, corruption of a minor, and endangering the
welfare of a child. We affirm.
Appellant’s convictions stemmed from his pattern of sexual abuse of
C.M. that occurred when C.M. was eight to fourteen years old in both
Chester County and Montgomery County. Appellant, who was a father-
figure to the victim, masturbated the victim, performed oral sex on him, and
had C.M. perform oral sex on Appellant. In May 2010, C.M., who was
twelve years old at the time, made allegations of sexual abuse against
* Retired Senior Judge assigned to the Superior Court.
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Appellant regarding events that transpired in Chester County. Detective
Timothy Prouty of the North Coventry Police Department investigated the
allegations, and, on June 3, 2010, Appellant met with Detective Prouty at
the police station. When Appellant arrived, he was taken to the interview
room, and Detective Prouty told him specifically that he was not under arrest
and that he was free to leave at any time. Appellant was provided with
directions for exiting the station.
Shortly thereafter, Detective Prouty and a colleague began to discuss
the sexual abuse allegations. The victim had told Detective Prouty about an
incident that occurred when he and Appellant were in a car alone riding from
a Wal-Mart located in Morgantown and headed towards a mall known as
Coventry Mall. C.M. said that, while they were on a side road, Appellant told
C.M. that he may be gay and convinced C.M. to remove his pants and
underwear and touch his own penis. After C.M. complied, Appellant asked to
touch C.M.’s penis. C.M. initially consented, but changed his mind and
pushed away Appellant’s hand.
When asked about this allegation, Appellant admitted that he had been
with the victim at the Wal-Mart in Morgantown and that, when they left, they
headed toward Coventry Mall alone in Appellant’s car. Appellant
acknowledged that they took a side road during the journey. Appellant
represented that C.M., not Appellant, had said that he might be gay and that
C.M. had voluntarily lowered his pants and underwear, and began to touch
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his own penis. Appellant also claimed that C.M. asked Appellant to touch
C.M.’s penis, but Appellant refused, telling C.M. that they could not engage
in sexual contact until C.M. was eighteen years old.
Ultimately, the Chester County District Attorney’s Office did not press
criminal charges against Appellant. In 2012, C.M. alerted authorities of new
incidents of sexual abuse perpetrated by Appellant in various locations
throughout Chester and Montgomery Counties. Montgomery County
authorities thereafter launched an investigation into all reported instances of
sexual abuse. During the investigation, Pottstown Police completed a
telephone intercept, with C.M.’s consent, of two conversations between
Appellant and the victim. In one, the victim and Appellant spoke about their
friendship, and, in the other, Appellant denied engaging in inappropriate
sexual contact with C.M.’s brother. The following business day, police
furnished the recording of the intercept to the Montgomery District
Attorney’s Office, where it remained in a safe until trial.
On June 10, 2013, this criminal action was instituted in Montgomery
County wherein Appellant was accused of committing a multitude of crimes
concerning the sexual abuse occurring from 2006 to 2012. The charges
encompassed crimes committed in both counties in question. Criminal
Complaint, 6/10/13.
On June 13, 2014, the Commonwealth moved to amend the
information to include the phrase “County of Chester,” which it maintained
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was mistakenly absent from the original information. N.T. Trial, 6/17/14, at
9. On June 17, 2014, the trial judge heard pre-trial arguments from both
parties on the issue and granted the Commonwealth’s motion to amend. Id.
at 3-12. The judge found that the crimes that transpired in Chester County
were part of the same criminal episode which initially occurred in
Montgomery County, and further, that Appellant had been on notice of all of
the charges. The trial judge also denied Appellant’s motion to suppress his
June 3, 2010 statement to Detective Prouty.
On June 19, 2014, a jury found Appellant guilty of IDSI, indecent
assault of a person less than sixteen years of age, corruption of minors, and
endangering the welfare of a child. On May 4, 2015, the trial court
sentenced Appellant to an aggregate term of five and one-half to twenty
years imprisonment. No mandatory minimum sentence was applied. This
timely appeal followed. On June 16, 2015, Appellant filed his Pa.R.A.P.
1925(b) concise statement of errors complained of on appeal and on July 7,
2015, the trial court issued its corresponding opinion. This matter is now
ready for review. Appellant raises these allegations.1
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1
We note that Appellant’s brief is forty-six pages in length and does not
contain the certification required by Pa.R.A.P. 2135. Pa.R.A.P. 2135(a)(1)
(“A principal brief shall not exceed 7,000 words, except as stated in
subparagraphs (a)(2)-(4) [involving cross appeals and capital cases]. A
party shall file a certificate of compliance with the word count limit if the
principal brief is longer than 30 pages or the reply brief is longer than 15
(Footnote Continued Next Page)
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1. The sentence levied on the charge of involuntary deviate sexual
intercourse is illegal because the element “the complainant and
person are not married to each other” was missed. The record is
silent on the element.
2. The [t]rial [c]ourt abused its discretion when it allowed the
Commonwealth to pursue alleged criminal conduct in Chester
County that had been thoroughly investigated by Chester County
detectives and passed on by the District Attorney of Chester
County.
3. The [t]rial [c]ourt abused its discretion when it failed to suppress
the [Appellant’s] statement given to Detective Timothy Prouty of
the North Coventry Township Police Department on June 3,
2010. The Detective’s invitation to the police station for no
stated purpose devolved into a custodial interrogation inside a
police station interrogation room without the benefit of Miranda.
4. The [t]rial [c]ourt abused its discretion when it failed to suppress
wiretap results that were unauthenticated by former county
detective Mary Anders who had been fired due to her reckless
disregard for the truth in another criminal investigation that
resulted in civil rights litigation.
5. The [t]rial [c]ourt abused its discretion when it failed to suppress
wiretap results that were seized in violation of enabling
legislation.
Appellant’s brief at 7-8 (internal citations omitted) (italics omitted) (re-
numbered for ease of disposition).
Appellant’s first averment purports to be a challenge to the legality of
his sentence. However, his actual averment is that there was no proof
_______________________
(Footnote Continued)
pages when prepared on a word processor or typewriter.”) As we conclude
that this single deviation from the rules applicable to briefs does not impede
our review, we will overlook it. Cf. Commonwealth v. Spuck, 86 A.3d 870(Pa.Super. 2014).
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adduced at trial that he was not married to C.M. Thus, his challenge relates
to a missing element of crime of IDSI. Specifically, Appellant was convicted
under 18 Pa.C.S. § 3123(a)(7), which states: “A person commits a felony of
the first degree when the person engages in deviate sexual intercourse with
a complainant . . . . who is less than 16 years of age and the person is four
or more years older than the complainant and the complainant and person
are not married to each other.” 18 Pa.S.C. § 3123(a)(7). In his first claim
on appeal, Appellant avers that there was no proof that he was not married
to C.M. and suggests that the sentence imposed thereon is illegal.
We conclude that Appellant’s allegation does not pertain to the legality
of his sentence. He does not suggest that his sentence exceeded the
mandatory minimum, should have been merged with another offense, or
was imposed under an infirm mandatory minimum sentencing provision. He,
instead, is asserting that an element of the crime in question was not
proven. A position that the Commonwealth failed to prove all elements of a
crime is obviously a challenge to the sufficiency of the evidence supporting a
conviction and not to the legality of the sentence imposed upon that
conviction. However, Appellant did not raise an objection to the sufficiency
of the evidence supporting his IDSI conviction in his Pa.R.A.P. 1925(b)
statement. Hence, his first claim is waived. Commonwealth v. Hill, 16
A.3d 484, 494 (Pa. 2011) (“Any issues not raised in a Pa.R.A.P. 1925(b)
statement will be deemed waived.”); Commonwealth v. Tyack, 128 A.3d
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254 (Pa.Super. 2015). Despite Appellant’s attempt to circumvent waiver by
reframing his first averment as pertaining to the legality of his sentence, we
reject this ploy.
In his second issue on appeal, Appellant contends that the trial court
abused its discretion when it allowed the Commonwealth to prosecute in this
Montgomery-County action the conduct that transpired in Chester County.
We have reviewed Appellant’s argument and, despite experiencing some
difficulty in discerning the precise nature of his complaint, we have
concluded that Appellant is challenging two determinations in connection
with this second position: 1) the trial court’s ruling that Montgomery County
was the appropriate venue for prosecuting the sexual abuse that occurred in
both Montgomery and Chester Counties, and 2) the trial court’s grant of the
Commonwealth’s motion to amend the information to include the phrase,
“County of Chester.” See Appellant’s brief at 24-29.
We address the venue position first and employ this standard of
review:
Venue merely concerns the judicial district in which the
prosecution is to be conducted; it is not an essential element of
the crime, nor does it relate to guilt or innocence. Because
venue is not part of a crime, it need not be proven beyond a
reasonable doubt as essential elements must be. Accordingly,
applying the preponderance-of-the-evidence standard to venue
challenges allows trial courts to speedily resolve this threshold
issue without infringing on the accused's constitutional rights.
Like essential elements of a crime, venue need not be proven by
direct evidence but may be inferred by circumstantial evidence.
Appellate review of venue challenges, similar to that applicable
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to other pre-trial motions, should turn on whether the trial
court's factual findings are supported by the record and its
conclusions of law are free of legal error.
Commonwealth v. Gross, 101 A.3d 28, 33-34 (Pa. 2014) (citations
omitted).
Appellant argues that the trial court incorrectly viewed the various
crimes as the same criminal episode under Pa.R.Crim.P. 130. Appellant
proclaims that the “the criminal acts alleged have no connection but for the
same victim and defendant.” Appellant’s brief at 26. Appellant also
maintains that there was a significant gap of sixteen months between the
2010 Chester County allegations and the ones leveled in 2012. Id.Pa.R.Crim.P. 130 provides in pertinent part:
(A) Venue. All criminal proceedings in summary and court cases
shall be brought before the issuing authority for the magisterial
district in which the offense is alleged to have occurred . . .
subject, however, to the following exceptions:
(3) When charges arising from the same criminal episode occur
in more than one judicial district, the criminal proceeding on all
the charges may be brought before one issuing authority in a
magisterial district within any of the judicial districts in which the
charges arising from the same criminal episode occurred.
Pa.R.Crim.P 130(A)(3). This Court “has held that a condition precedent to
the exercise by a single county to jurisdiction in a case involving multiple
offenses in various counties is: the offense must constitute a single criminal
episode.” Commonwealth v. Kohler, 811 A.2d 1046, 1049 (Pa.Super.
2002) (citations omitted). If “a number of charges are logically or
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temporally related and share common issues of law and fact, a single
criminal episode exists.” Id. at 1050 (citation omitted). When we ascertain
whether a number of statutory offenses are ‘logically related’ to
one another, the court should initially inquire as to whether
there is a substantial duplication of factual, and/or legal issues
presented by the offenses. The mere fact that the additional
statutory offenses involve additional issues of law or fact is not
sufficient to create a separate criminal episode since the logical
relationship test does not require ‘an absolute identity of factual
backgrounds.’
The temporal relationship between criminal acts will be a
factor which frequently determines whether the acts are
‘logically related.’ However, the definition of a ‘single criminal
episode’ should not be limited to acts which are immediately
connected in time. ‘Transaction’ is a word of flexible meaning. It
may comprehend a series of many occurrences, depending not
so much upon the immediateness of their connection as upon
their logical relationship.
Id. at 1050-51.
Our review of the record reveals that the crimes in question were
logically and temporally related. The proof adduced at trial was that
Appellant groomed the victim as a young child, corrupted his morals as a
young teenager, and continued to seek sexual contact with him as he aged.
Appellant engaged in a continuing course of sexual molestation, and the
2012 allegations included incidents occurring at various locations in both
Chester County and Montgomery County. Based on the foregoing we
conclude that the trial court’s finding is supported by the record and that the
court did not commit legal error in concluding the offenses charged in this
action were part of the same criminal episode.
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Appellant also contends that the trial court’s grant of the
Commonwealth’s motion to amend the information on the day of trial
unfairly prejudiced him and violated Pa.R.Crim.P. 564. That rule provides:
The court may allow an information to be amended when there
is a defect in form, the description of the offense(s), the
description of any person or any property, or the date charged,
provided the information as amended does not charge an
additional or different offense. Upon amendment, the court may
grant such postponement of trial or other relief as is necessary
in the interests of justice.
Pa.R.Crim.P. 564.
A defendant will be afforded relief when the trial court exercises its
discretionary power to allow amendment of the information only if the
defendant was prejudiced by the amendment. Commonwealth v. Veon,
109 A.3d 754, 768 (Pa. 2015). Factors for a court to consider in determining
the existence of prejudice include:
(1) whether the amendment changes the factual scenario
supporting the charges; (2) whether the amendment adds new
facts previously unknown to the defendant; (3) whether the
entire factual scenario was developed during a preliminary
hearing; (4) whether the description of the charges changed
with the amendment; (5) whether a change in defense strategy
was necessitated by the amendment; and (6) whether the timing
of the Commonwealth's request for amendment allowed for
ample notice and preparation.
Id.Appellant avers that “additional and different offenses were
undoubtedly added and prejudiced” him. Appellant’s brief at 27 (emphasis
removed). He continues that the amendment caused prejudice because it,
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inter alia, added new facts, was deceptive, and unfairly harmed the defense
strategy. Appellant’s brief at 29. These assertions are without merit. The
amendment merely added the phrase, “County of Chester,” to the
information. It did not add any new facts or charges of which Appellant was
previously unaware. Both the criminal complaint and affidavit of probable
cause detailed acts of abuse occurring in both Chester County and
Montgomery County. Thus, the trial court agreed with the Commonwealth
that the missing phrase was merely a defect in form. The fact that Appellant
leveled pretrial attacks on the prosecution of the charges committed in
Chester County is a clear indication that he was both aware of and preparing
a defense against those charges. Accordingly, we find no prejudice as a
result of the amendment to the information, and therefore, the trial court did
not err or abuse its discretion in permitting it.
In his third issue, Appellant claims that his statement to Detective
Prouty in June of 2010 should have been suppressed. Appellant suggests
that he reasonably believed he was in police custody, and was therefore
legally entitled to Miranda warnings. Appellant’s brief at 33-35.
When reviewing the denial of a defendant's suppression motion, we
are subject to the following standard of review:
[An appellate court's] standard of review in addressing a
challenge to the denial of a suppression motion is limited to
determining whether the suppression court's factual findings are
supported by the record and whether the legal conclusions
drawn from those facts are correct. Because the Commonwealth
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prevailed before the suppression court, we may consider only
the evidence of the Commonwealth and so much of the evidence
for the defense as remains uncontradicted when read in the
context of the record as a whole.
Commonwealth v. Jones, 121 A.3d 524, 526 (Pa.Super. 2015) (citation
omitted).
Our law is well settled that an individual is entitled to Miranda
warnings only when he is subject to a custodial interrogation. See
Commonwealth v. Cooley, 118 A.3d 370, 376 (Pa. 2015). An individual is
considered to be in custody when “he is physically denied his freedom of
action in any significant way or is placed in a situation in which he
reasonably believes that his freedom of action or movement is restricted by
the interrogation." Id. (quoting Commonwealth v. Johnson, 727 A.2d
1089, 1100 (Pa. 1999)). The determination of whether a person is in
custody is an objective one and based upon the reasonable belief conveyed
to the person being questioned, with attention on the totality of the
circumstances. Id.The factors a court utilizes to determine, under the totality of the
circumstances, whether a detention has become so coercive as
to constitute the functional equivalent of arrest include: the basis
for the detention; its length; its location; whether the suspect
was transported against his or her will, how far, and why;
whether restraints were used; whether the law enforcement
officer showed, threatened or used force; and the investigative
methods employed to confirm or dispel suspicions. The fact that
a police investigation has focused on a particular individual does
not automatically trigger “custody,” thus requiring Miranda
warnings.
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Commonweath v. Baker, 963 A.2d 495, 501 (Pa.Super. 2008) (citation
omitted).
Appellant professes that his meeting with Detective Prouty amounted
to a seizure because a reasonable man would not have felt free to leave
upon learning of the allegations against him. Appellant’s brief at 35.
Appellant relies on this Court’s holding in Commonwealth v. Dewar, 674
A.2d 714 (Pa.Super. 1996), wherein the defendant was found to be subject
to a custodial interrogation. Id. at 717. However, that case is distinguishable
from the case sub judice. In Dewar, the Commonwealth had appealed the
trial court’s suppression of statements that the defendant provided to police,
and this Court refused to overturn the trial court’s findings due to a lack of
evidence regarding the circumstances of the interrogation. Thus, we were
unable to discern if the court erred in concluding that the defendant was in
custody. Id. at 717 (“No evidence was offered as to the length of detention
or whether appellee's freedom of movement was restricted. Under the
circumstances, given the evidence presented, we cannot find that the trial
court erred in concluding that appellee was in ‘custody’ during the police
interrogation.”).
The Commonwealth in the present case offered ample evidence to
support the trial court’s legal conclusion that Appellant was not subject to a
custodial interrogation. Appellant voluntarily agreed to meet with Detective
Prouty at the police station. The Detective informed Appellant he was not
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under arrest and that he was free to leave at any time. Appellant was given
directions for exiting the station. A casual interview ensued and it was not
unduly long. At no point did Appellant exhibit signs of misunderstanding or
incapacity. These circumstances sufficiently support the trial court’s holding
that a reasonable man would not have believed he was in police custody.
Baker, supra. Thus, Appellant’s third claim fails.
Appellant’s fourth and fifth issues pertain to the consensual recordings
of the telephone intercept utilized by the Commonwealth at trial. He attacks
their admission on two bases. First, he claims the recordings were
unauthenticated since the detective who originally obtained them did not
testify at trial. He also avers that, since the district attorney did not have
possession of the recordings for a short period, they were obtained in
violation of the Wiretap Act, which permits consensual phone intercepts and
mandates that the recordings of such intercepts be in the custody of the
district attorney. See 18 Pa.C.S. § 5704(2)(ii).2 Both of these contentions
implicate the admissibility of the recordings.
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2
That section states:
(ii) one of the parties to the communication has given prior
consent to such interception. However, no interception under
this paragraph shall be made unless the Attorney General or a
deputy attorney general designated in writing by the Attorney
General, or the district attorney, or an assistant district attorney
designated in writing by the district attorney, of the county
(Footnote Continued Next Page)
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The standard of review for challenges to the admissibility of evidence
is well-settled:
The admission of evidence is solely within the discretion of the
trial court, and a trial court's evidentiary rulings will be reversed
on appeal only upon an abuse of that discretion. An abuse of
discretion will not be found based on a mere error of judgment,
but rather occurs where the court has reached a conclusion that
overrides or misapplies the law, or where the judgment
exercised is manifestly unreasonable, or the result of partiality,
prejudice, bias or ill-will.
Commonwealth v. Woodard, 129 A.3d 480, 494 (Pa. 2015) (citations and
quotation marks omitted).
Regarding authentication, several principles apply. "To satisfy the
requirement of authenticating or identifying an item of evidence, the
proponent must produce evidence sufficient to support a finding that the
item is what the proponent claims it is." Pa.R.E. 901(a). Critically, “Physical
evidence may be properly admitted despite gaps in testimony regarding
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(Footnote Continued)
wherein the interception is to be initiated, has reviewed the facts
and is satisfied that the consent is voluntary and has given prior
approval for the interception; however, such interception shall
be subject to the recording and record keeping requirements of
section 5714(a) (relating to recording of intercepted
communications) and that the Attorney General, deputy attorney
general, district attorney or assistant district attorney
authorizing the interception shall be the custodian of recorded
evidence obtained therefrom[.]
18 Pa.C.S. § 5704(2)(ii). We note that our Wiretap Act is preempted by the
Federal Wiretap Act in circumstances not involved herein. Bansal v. Russ,
513 F. Supp.2d 264 (E.D.Pa. 2007).
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custody.” Commonwealth v. Feliciano, 67 A.3d 19, 29 (Pa.Super. 2013).
Furthermore, any issue regarding gaps in the chain of custody relate to the
weight of the evidence, not its admissibility. Id.Appellant’s contentions are that the absence of the detective who
conducted the phone intercept rendered the recordings of the consensual
phone intercept unauthenticated and that the district attorney failed to keep
the recordings in his custody as required by the Wiretap Act, 18 Pa.C.S. §
5704(2)(ii), are wholly without merit. The evidence adduced at trial was
more than sufficient to establish the authenticity of the tape recordings.
C.M., his mother, a detective, and two assistant district attorneys all testified
as to the authenticity of the recordings. There is no requirement that the
prosecution must present, as a witness, every individual involved with the
evidence sought to be presented. Feliciano, supra at 29.
Additionally, Assistant District Attorney Kevin Steele testified that the
phone interception took place on December 28, 2012, a Friday, and the
recordings were received by the District Attorney’s Office on December 31,
2012, the following Monday. Thereafter, they remained in a safe at the
district attorney’s office. As the trial court correctly noted, “[t]he gap in the
chain of custody was brought out by both the Commonwealth and by
defense counsel on cross-examination, therefore, it was for the jury to
determine the weight to be given to the evidence despite the gap in the
chain of custody.” Trial Court Opinion, 7/7/15, at 8. Accordingly, the trial
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court did not abuse its discretion when it allowed the recordings to be
admitted into evidence, nor did it abuse its discretion when it denied
Appellant’s motion to prevent introduction of the recordings. For the
foregoing reasons, Appellant’s fourth and fifth claims fail.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/22/2016
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