NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P

Transcription

1 NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P COMMONWEALTH OF PENNSYLVANIA : : IN THE SUPERIOR COURT OF PENNSYLVANIA v. : : JOHN KOEHNLEIN, JR., : No WDA 2012 : Appellant : Appeal from the Judgment of Sentence, August 21, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR BEFORE: FORD ELLIOTT, P.J.E., GANTMAN AND SHOGAN, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED MAY 13, 2014 Following a jury trial, John Koehnlein, Jr. ( appellant ), was convicted of involuntary deviate sexual intercourse, incest, indecent assault with a person less than 13 years of age, corruption of minors, and endangering the welfare of a child. He was sentenced to serve an aggregate term of 17 years and 6 months to 35 years in prison. Herein, appellant appeals from the judgment of sentence entered on August 21, 2012, in the Court of Common Pleas of Allegheny County. After careful review, we affirm. A brief recitation of the facts, as summarized by the trial court, are as follows.

2 [Mother] was assisting her three year old daughter, [G.K.],[ 1 ] in the bathroom, when [G.K.] began making a shaking gesture with her hand near her genital area. When [Mother] -- who was divorced from [appellant] -- asked [G.K.] what she was doing, she indicated that was what her father made her do to have his pee come out. She also indicated that she was supposed to lick [appellant s] penis (which she called peanuts ) to make the candy come out. When [appellant] was arrested, he wrote a statement in which he indicated that one evening while he had visitation with [G.K.] and his two (2) sons, he was in the bathroom masturbating over the toilet with the door unlocked. He stated that [G.K.] came into the bathroom and put her hand on his penis just before he ejaculated, and that he was unsure if he had gotten any semen on [G.K.]. He concluded the statement with an apology to [G.K.] and signed it Love, Daddy. Trial court opinion, 4/25/13 at 1-2. At trial, appellant testified that on the evening in question, he returned home with the children and ran to the bathroom; he had to urinate so badly that he developed an erection that persisted to his dismay and caused him difficulty urinating. Not wanting to appear before his children in this state, he decided to masturbate into the toilet. (Notes of testimony, 4/9/12 at 138.) At this point, G.K. walked in and touched his penis as he was about to ejaculate. Appellant testified that he quickly picked her up and put her outside. As he was doing this, G.K. asked why you doing that, to which he 1 We note that all references to the victim in the record use her full name. We have changed the victim s name to initials throughout this memorandum to preserve her privacy. In the Interest of R.C., 628 A.2d 893, 894 (Pa.Super. 1993)

3 stated sometimes it s how daddy has to get his pee to come out. (Id. at 140.) G.K. followed up with questions about the color of his semen. Appellant testified he was humiliated and went to his bedroom and locked the door behind him where he cried for a half hour over the trauma. (Id. at ) While being interviewed by the police, appellant initially denied the allegations. (Id. at 86.) However, after substantial questioning, his demeanor began to change and he explained that G.K. had walked in on him while he was masturbating, not urinating. (Id. at 87.) He explained that he got the children situated with the movie and went into the bathroom and was masturbating into the toilet when G.K. came in and she put her hand on his penis and he said she helped him masturbate. (Id.) He was not sure if he ejaculated on her or not but told the police that in the process of picking her up and taking her out of the bathroom, some of it may have gotten on her. (Id. at 88.) He never conceded that his daughter put her mouth anywhere near his genitalia. Rather, he reiterated on several occasions that he did not remember that happening. (Id.) Appellant then put his statement into writing. (Id. at 89.) Following the sentencing hearing, appellant filed a timely post-sentence motion on August 31, On September 5, 2012, defense counsel filed a petition to file supplemental post-sentence motions. The trial court granted the petition on September 6, By order dated the same, - 3 -

4 appellant s post-sentence motion was denied. A timely notice of appeal was filed. Appellant complied with the trial court s directive and filed a Rule 1925(b) concise statement of errors on appeal. The following issues have been presented for our review: Appellant s brief at 4. I. DID THE LOWER COURT ABUSE ITS DISCRETION IN ALLOWING THE HEARSAY STATEMENT OF THE NON-TESTIFYING VICTIM TO BE INTRODUCED AT TRIAL, WHERE THOSE STATEMENTS FAILED TO MEET THE REQUIREMENTS OF ANY HEARSAY EXCEPTION, AS WELL AS THE CONFRONTATION CLAUSES OF THE UNITED STATES AND PENNSYLVANIA CONSTITUTIONS? II. DID THE LOWER COURT ABUSE ITS DISCRETION BY DEPRIVING [APPELLANT] OF HIS CONSTITUTIONAL RIGHT TO ENGAGE IN A MEANINGFUL AND APPROPRIATE CROSS- EXAMINATION OF THE COMMONWEALTH S KEY WITNESS, [MOTHER]? III. DID THE LOWER COURT ABUSE ITS DISCRETION IN ALLOWING AN INFLAMMATORY PICTURE OF THE NON-TESTIFYING VICTIM TO BE DISPLAYED BEFORE THE JURY THROUGHOUT ITS CASE-IN-CHIEF? IV. DID THE LOWER COURT ABUSE ITS DISCRETION IN IMPOSING A MANIFESTLY EXCESSIVE AND UNREASONABLE SENTENCE BASED SOLELY ON THE NATURE OF THE UNDERLYING OFFENSES? - 4 -

5 Appellant s first issue alleges the trial court erred in admitting G.K. s out-of-court statements to Mother at trial pursuant to the Tender Years Hearsay Act ( TYHA ), 42 Pa.C.S.A Appellant s brief at 17. Operating under the mistaken belief that the sole purpose of an in camera Tender Years Hearing is to determine an alleged victim s availability to testify at trial, the lower court here did not even attempt to address the relevance or reliability of the victim [G.K. s] hearsay statements, as instructed by [the TYHA]. Our standard of review of a trial court s determination to admit evidence pursuant to the TYHA is limited to an abuse of discretion. Commonwealth v. Delbridge, 580 Pa. 68, 73, 859 A.2d 1254, 1257 (2004). An abuse of discretion is not merely an error of judgment; rather, discretion is abused when 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. Busanet, 572 Pa. 535, 562, 817 A.2d 1060, 1076 (2002). To the extent our inquiry focuses upon the meaning and application of the statute, this Court s review is plenary and non-deferential. Commonwealth v. Conklin, 587 Pa. 140, , 897 A.2d 1168, (2006) (citations omitted). Generally, an out-of-court statement is inadmissible at trial unless it falls into one of the exceptions to the hearsay rule. Commonwealth v

6 O Drain, 829 A.2d 316, 319 (Pa.Super. 2003). The rationale for the hearsay rule is that hearsay is too untrustworthy to be considered by the trier of fact. Exceptions have been fashioned to accommodate certain classes of hearsay that are substantially more trustworthy than hearsay in general, and thus merit exception to the hearsay rule. Commonwealth v. Charlton, 902 A.2d 554, 559 (Pa.Super. 2006). The tender years exception allows for the admission of a child s out-of-court statement due to the fragile nature of young victims of sexual abuse. Commonwealth v. Fink, 791 A.2d 1235, 1248 (Pa.Super. 2002). The rule is codified at 42 Pa.C.S.A and provides: (a) General rule.--an out-of-court statement made by a child victim or witness, who at the time the statement was made was 12 years of age or younger, describing any of the offenses enumerated in 18 Pa.C.S. Chs. 25 (relating to criminal homicide), 27 (relating to assault), 29 (relating to kidnapping), 31 (relating to sexual offenses), 35 (relating to burglary and other criminal intrusion) and 37 (relating to robbery), not otherwise admissible by statute or rule of evidence, is admissible in evidence in any criminal or civil proceeding if: (1) the court finds, in an in camera hearing, that the evidence is relevant and that the time, content and circumstances of the statement provide sufficient indicia of reliability; and (2) the child either: (i) testifies at the proceeding; or - 6 -

7 (ii) is unavailable as a witness. (a.1) Emotional distress.--in order to make a finding under subsection (a)(2)(ii) that the child is unavailable as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child s ability to reasonably communicate. In making this determination, the court may do all of the following: (1) Observe and question the child, either inside or outside the courtroom. (2) Hear testimony of a parent or custodian or any other person, such as a person who has dealt with the child in a medical or therapeutic setting. (a.2) Counsel and confrontation.--if the court hears testimony in connection with making a finding under subsection (a)(2)(ii), all of the following apply: (1) Except as provided in paragraph (2), the defendant, the attorney for the defendant and the attorney for the Commonwealth or, in the case of a civil proceeding, the attorney for the plaintiff has the right to be present. (2) If the court observes or questions the child, the court shall not permit the defendant to be present. (b) Notice required.--a statement otherwise admissible under subsection (a) shall not be - 7 -

8 received into evidence unless the proponent of the statement notifies the adverse party of the proponent s intention to offer the statement and the particulars of the statement sufficiently in advance of the proceeding at which the proponent intends to offer the statement into evidence to provide the adverse party with a fair opportunity to prepare to meet the statement. 42 Pa.C.S.A (emphasis added). Thus, the plain language of the provision requires a determination of sufficient indicia of reliability and either (1) the child testifies or (2) a separate determination that the child is unavailable as a witness. Commonwealth v. Walter, A.3d, 2014 WL (2014). Regarding 42 Pa.C.S.A (a)(1), this court has recently reiterated in Walter that the focus is on the truthfulness of the statements, which is assessed by considering the spontaneity of the statements; consistency in repetition; the mental state of the child; the use of terms unexpected in children of that age; and the lack of a motive to fabricate. Id. at *8. In order for the child to be deemed unavailable to testify as a witness, the court must determine, based on evidence presented to it, that testimony by the child as a witness will result in the child suffering serious emotional distress that would substantially impair the child s ability to reasonably communicate. [42 Pa.C.S.A (a.1)]. In making this determination, the court may (1) observe and question the child, either inside or outside of the courtroom; and (2) hear testimony of the child s parent or custodian or any other person who has dealt with the child in a medical or therapeutic setting. [42 Pa.C.S.A (a.1)(1), (2)]. The TYHA does not require that a trial court s - 8 -

9 Id. at *9. determination of unavailability be supported by expert testimony. In the case sub judice, prior to trial, the Commonwealth filed a notice of intention to introduce evidence pursuant to the TYHA and asserted, in relevant part: 4. The victim told her mother on December 6, 2011 that she was touching her vaginal area when she urinated because this is what I do at daddy s house. When questioned about this statement, the victim told her mother that when she uses the bathroom at her father s house she, plays with daddy s peanuts (penis) and licks it until candy comes out. The victim told her mother that her father said that she will like licking his peanuts because it, will taste like candy. 5. The statements made by the victim to her mother are relevant, and the time, content and circumstances of the statements provide sufficient indicia of reliability. 6. The Defendant gave a written statement to the Allegheny County Police on December 21, 2011 where he said that his daughter caught him masturbating in the bathroom and,... she reached out and grabbed my penis where my hand was and moved her hand with mine. Before I was able to stop anything, I ejaculated into the toilet. Later in his statement he said, I am not sure if any of the cum got onto her clothes as I picked her up and put her outside the bathroom door

10 Docket #4. On April 9, 2012, an in camera proceeding was held and the Commonwealth introduced testimony of Mother who testified regarding the circumstances of her conversation with G.K. and how G.K. s behavior has changed since the incident. (Notes of testimony, 4/9/12 at 3-9.) The Commonwealth also introduced testimony of Patty Ghubril who is a trauma specialist who met G.K. for an hour in February to ascertain if she had symptoms related to the trauma. (Id. at ) The Commonwealth then presented a boilerplate argument to the trial court that the statements were reliable as they matched the partial confession of appellant and that she is emotionally unavailable as to the second prong of the statute. (Id. at 19.) The defense countered by stating: I have argument to that and I would request an opportunity to brief that issue for Your Honor. Here is basically an argument as of right now. [Mother] is unqualified to testify as to or attribute physical or psychological behavior to what happened. She testified to that herself. I believe that is speculation.... The second witness we heard from offered nothing and I think the second witness is more qualified to make those assertions. Id. at The Honorable Donna Jo McDaniel then declared the victim unavailable to testify at trial and permitted the Commonwealth to introduce out-of-court statements made by the victim pursuant to the Tender Years exception to the hearsay rule. Specifically, the court concluded:

11 Well, the issue that we are discussing is whether or not [G.K.] is unavailable under the legal meaning and under the exception of the tender years doctrine, and based on my observations- and for the record, I did, along with my court reporter and my daughter Jamie, spend a few minutes alone with [G.K.] in chambers trying to make her comfortable. I could get her to say maybe three words. She consistently tried to burrow into my body and hide behind her baby doll, so it is not just mom s testimony, but based on my observations of the child changing in personality, this kid is not going to be able in my opinion, to get on the stand and testify. I mean, you know, I did the whole, you know, look, I have a little girl at home. Here is her picture, none of this served to make much of a break-through, so I would believe it would be impossible for her to testify. And so although I would like to send you home and brief this, I will tell you it will be my decision on the evidence that [G.K.] is unavailable. Notes of testimony, 4/9/12 at Instantly, appellant argues that the trial court failed to fulfill the mandates of the TYHA as it failed to address the reliability and trustworthiness of the victim s statements. (Id. at ) However, we concur with the Commonwealth that while Judge McDaniel did not provide discussion of the reliability prong, appellant did not challenge that aspect of the Tender Years inquiry at the hearing. (Commonwealth s brief at 10.) Appellant fails to indicate where in the record the issue is preserved for appeal; and indeed, our review of the record indicates that appellant did not contend how G.K. s statements lacked indicia of reliability. See Pa.R.A.P. 2119(e) (statement of place of raising or preservation of issues); Pa.R.A.P. 302(a) (issues not raised in the lower court are waived and cannot

12 be raised for the first time on appeal). Nor does appellant provide such an explanation on appeal. In its opinion, the trial court states: [Appellant] concedes that this Court held an in camera hearing as required by the statute, however, he averred that this Court erred in finding that [G.K.] was unavailable for trial. Although the hearing was not transcribed, this Court can state that the Commonwealth made appropriate showings both that the testifying would have caused harm to [G.K.] and that the statements [G.K.] made were reliable. [Appellant] has not put forth any evidence to suggest that [G.K.] would not have suffered harm by testifying or that her statements were not reliable. Absent such evidence, this claim must fail. Trial court opinion, 4/25/13 at 7. Further, we now have the benefit of a transcript as the notes of testimony have been transcribed, and our independent review of the record indicates G.K s statements were timely and content appropriate. There was no evidence that any of the statements had been coerced, and there was no evidence of any motive on the part of the victim to fabricate. As the Commonwealth notes, the statements are consistent with appellant s partial confession. We conclude that the trial court did not abuse its discretion in admitting each of the statements pursuant to the Tender Years Statute. There was a sufficient showing of indicia of reliability with respect to each statement. The third issue presented concerns a photograph of the victim that was admitted into evidence. We find no error with the trial court s holding. After a thorough review of the record, the briefs of the parties, the

13 applicable law, and the well-reasoned opinion of the trial court, it is our determination that there is no merit to the question raised on appeal. The trial court s opinion, filed on April 25, 2013, comprehensively discusses and properly disposes of the question presented. We will adopt it as our own and affirm on that basis. Next, appellant avers that the trial court erred by limiting the cross-examination of Mother. (Appellant s brief at 25.) Appellant argues that he was not permitted to challenge the credibility and motive of Mother. For instance, appellant argues that he was not permitted to inquire of Mother s mental health issues, her new relationship, her honesty, bias, or infidelity. (Id. at 28.) Pennsylvania Rule of Evidence 611(b) addresses the scope of cross-examination, stating: Cross-examination of a witness other than a party in a civil case should be limited to the subject matter of the direct examination and matters affecting credibility; however, the court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. Pa.R.E. 611(b). Cross-examination may be employed to test a witness story, to impeach credibility, and to establish a witness s motive for testifying. The scope of cross-examination is a matter within the discretion of the trial court and will not be reversed absent an abuse of that discretion. Commonwealth v. Chmiel, 585 Pa. 547, 592, 889 A.2d 501, 527 (2005) (citation and quotation marks omitted)

14 Again, the trial court has concisely addressed appellant s challenge in its opinion and correctly determined that this claim lacked merit. Accordingly, we affirm based upon the trial court s opinion regarding this issue. 2 Finally, appellant challenges the discretionary aspects of his sentence. A challenge to the discretionary aspects of sentencing is not automatically reviewable as a matter of right. Commonwealth v. Hunter, 768 A.2d 1136 (Pa.Super.2001) appeal denied, 568 Pa. 695, 796 A.2d 979 (2001). When challenging the discretionary aspects of a sentence, an appellant must invoke the appellate court s jurisdiction by including in his brief a separate concise statement demonstrating that there is a substantial question as to the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Commonwealth v. Tuladziecki, 513 Pa. 508, 522 A.2d 17 (1987); 42 Pa.C.S.A. 9781(b); Pa.R.A.P. 2119(f). The requirement that an appellant separately set forth the reasons relied upon for allowance of appeal furthers the purpose evident in the Sentencing Code as a whole of limiting any challenges to the trial court s evaluation of the multitude of factors impinging on the sentencing decision to exceptional cases. Commonwealth v. Williams, 386 Pa.Super. 322, 562 A.2d 1385, 1387 (1989) (en banc) (emphasis in original). 2 Furthermore, a review of the record indicates that the jury was made aware of the marital difficulties appellant and Mother had experienced. For instance, on cross-examination, appellant was permitted to establish that Mother had accused appellant of cheating on her during their marriage but the court disallowed inquiry into whether she had cheated on him or whether she was in a relationship with a man after they separated. (Notes of testimony, 4/9/12 at ) Appellant also testified on direct examination as to the couple s marital difficulties and that their marriage allegedly ended because his wife had cheated on him. (Id. at )

15 Commonwealth v. McNear, 852 A.2d 401, (Pa.Super. 2004). To demonstrate that a substantial question exists, a party must articulate reasons why a particular sentence raises doubts that the trial court did not properly consider [the] general guidelines provided by the legislature. Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617, 622 (2002), quoting, Commonwealth v. Koehler, 558 Pa. 334, 737 A.2d 225, 244 (1999). In Mouzon, our Supreme Court held that allegations of an excessive sentence raise a substantial question where the defendant alleges that the sentence violates the requirements and goals of the Code and of the application of the guidelines.... Id. at 627. A bald allegation of excessiveness will not suffice. Id. Commonwealth v. Fiascki, 886 A.2d 261, 263 (Pa.Super. 2005), appeal denied, 587 Pa. 684, 897 A.2d 451 (2006). Appellant s brief contains the requisite concise statement of reasons for allowance of appeal, and appellant s post-trial motion and statement pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., adequately preserved the issues presented here. Appellant complains that his aggregate sentence was manifestly excessive as the court focused solely on the serious nature of the crimes he committed. Appellant also argues the trial court did not comply with the directives of 42 Pa.C.S.A. 9721(b) in that it failed to adequately consider and address his background and rehabilitative needs. Nonetheless, we see that appellant s sentences, by his own admission, fall within the sentencing guidelines, albeit in the aggravated range. (See appellant s brief at 38.) Appellant s general argument seems to suggest that ordering the sentences to be served consecutively caused the aggregate

16 sentence to be excessive. Generally speaking, the decision to impose concurrent or consecutive sentences is a matter entrusted to the discretion of the sentencing court. See Commonwealth v. Marts, 889 A.2d 608 (Pa.Super. 2005) (sentencing court s decision to order two of four robbery sentences to be served consecutively did not raise a substantial question entitling appellant to review of his sentence, let alone constitute a basis for vacating the sentence). Thus, upon its face, appellant s challenge does not appear to be of a kind that compels the granting of allowance of appeal. Moreover, in light of Commonwealth v. Walls, 592 Pa. 557, 926 A.2d 957 (2007), a challenge to the discretionary aspects of sentence might be viewed as not cognizable where the sentence is within the guideline ranges. Referencing 42 Pa.C.S.A. 9781(c), Walls seemingly limits this court s ability to vacate sentences to those outside the guidelines, which are also found to be unreasonable. Id. at 563, 926 A.2d at 963. If, under Walls, we are unable to vacate the sentence, there is little point in granting allowance of appeal as to this particular challenge. Moreover, prior to sentencing, the trial court noted that it had read the presentence report, was aware of the guideline ranges, and had received notice that the Commonwealth intended to seek mandatory penalties. (Notes of testimony, 8/21/12 at 2-3; docket #7.) The trial court heard testimony from appellant s mother, Suzanne Koehnlein, who sought leniency in sentencing. (Id. at 3.) The Commonwealth presented the testimony of

17 the victim s grandmother relating to victim impact. (Id. at 6.) The trial court gave the following explanation before imposing sentence: You understand that as a result of this conviction, you must register with Megan s Law for life.... This was a particularly horrific crime. I listen to a lot of sex assault cases, but I can t imagine anything more damaging to your family or your wife s family than having sexual intercourse with a child that is three years old. Perhaps the only other thing that is more egregious is having it when her brothers, who were 5 or 6 or something, were in the next room. You know, she trusted you. She loved you. You were her father. She was spending the weekend with you. I also would say that I was particularly offended by the bizarre story you told when you were on the witness stand, but I don t know of anybody that is more a danger than when he s a danger to his own family. So, at Count 1, I m going to waive the costs, order you to serve 10 to 20 years with credit from June 1 st of this year. At Count 2, I order [you to] serve 5 to 10 years consecutive, and at Count 5, I order you to serve two-and-a-half to five years consecutively. Notes of testimony, 8/21/12 at 8-9. Where a trial court has the benefit of a pre-sentence report, it is presumed the court is aware of all appropriate sentencing factors and considerations, and where the court has been so informed, its decision should not be disturbed. Commonwealth v. Ventura, 975 A.2d 1128, 1135 (Pa.Super. 2009), appeal denied, 604 Pa. 706, 987 A.2d 161 (2009). The trial court s remarks at sentencing and in its Rule 1925(a) opinion reflect

18 its awareness of the relevant sentencing factors and its belief that the sentence imposed was the way to deter appellant s criminal conduct and protect the public. Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 5/13/

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