Commonwealth v. Strafford

OPINION BY DUBOW, J.

Appeal from the Judgment of Sentence October 20, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No.: CP-23-CR-0003932-2015 BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J. OPINION BY DUBOW, J.:

Appellant, James Albert Strafford, appeals from the Judgment of Sentence entered by the Delaware County Court of Common Pleas following his convictions after a jury trial of Indecent Assault of a Person less than 13 years of age, Corruption of a Minor, and Involuntary Deviate Sexual Intercourse with a Child. After careful review, we affirm.

Briefly, between June 2013 and December 2014, Appellant sexually abused the eight-year-old victim. Appellant, a friend of the victim's cousin and known to the victim as "Jay," was a frequent overnight guest in the victim's home. In December 2014, the victim spontaneously disclosed the abuse to his older brother and then to his mother—while Appellant was in the house. The victim's mother reported the abuse that night to Pennsylvania State Police, and the victim provided a video-recorded statement to a child forensic interviewer on December 8, 2014.

The Commonwealth charged Appellant with, inter alia, the above offenses. On March 18, 2015, the Commonwealth filed (1) a Petition to Admit Out-of-Court Statements Under the Tender Years Hearsay Exception, and (2) a Motion to Allow a Child Witness to Testify Under Pennsylvania Uniform Child Witness Testimony by Alternative Methods Act. Following a hearing, the trial court granted the Commonwealth's Motions.

On August 3, 2016, a jury convicted Appellant of Indecent Assault of a Person less than 13 years of age, Corruption of a Minor, and Involuntary Deviate Sexual Intercourse with a Child.

On October 20, 2016, the trial court imposed an aggregate term of six to twelve years' incarceration, followed by five years' probation. At the time, Indecent Assault of a Person less than 13 years of age and Involuntary Deviate Sexual Intercourse with a Child were enumerated Tier III offenses under the Sexual Offender Registration and Notification Act ("SORNA") and required lifetime registration as a sexual offender. 42 Pa.C.S. § 9799.14(d); 42 Pa.C.S. § 9799.15(a)(3). At sentencing, Appellant signed a notification form stating that he understood his registration requirements.

On November 18, 2016, Appellant filed a Notice of Appeal. Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents three issues on appeal:

1) Whether the lower court erred in admitting the out of court statements (including related audio recording and contemporaneous writings) that the complainant allegedly supplied to his brother, his mother, and to a forensic interviewer since the time, content, and circumstances of those statements did not demonstrate sufficient indicia of reliability as required for the tender years exception to the hearsay rule?
2) Whether the lower court erred in permitting the minor complainant to testify by contemporaneous alternative means (closed circuit video) since it was not established that testifying either in an open forum in the presence and full view of the finder of fact or in [Appellant's] presence would result in him suffering from serious emotional distress such that it would substantially impair his ability to reasonably communicate?
3) Whether the evidence is insufficient to sustain the convictions for involuntary deviate sexual intercourse, indecent assault, and corruption of minors since Appellant was not identified as the offender beyond a reasonable doubt, especially where the complainant was not asked to identify him, did not reference his last name, and where no stipulation to identity was presented to the jury?

As an initial matter, we address an issue of first impression regarding the legality of Appellant's Judgment of Sentence.

In his Reply Brief, Appellant challenges the legality of his sentence based on Commonwealth v. Muniz , 164 A.3d 1189 (Pa. 2017) (OAJC) (holding that SORNA's enhanced registration requirements are punitive and, therefore, applying SORNA retroactively is a violation of the ex post facto clauses of the U.S. Constitution and Pennsylvania Constitutions). Appellant argues that his lifetime registration requirement—which he argues now constitutes direct criminal punishment rather than a collateral civil consequence in light of Muniz and Commonwealth v. Hart , 174 A.3d 660 (Pa. Super. 2017)—exceeds the lawful statutory maximum sentences applicable to his convictions. Appellant's Reply Brief at 1-4 (citing 18 Pa.C.S. § 1103 (entitled "Sentence of imprisonment for felony")).

This court may review issues regarding the legality of sentence sua sponte. Commonwealth v. Edrington , 780 A.2d 721, 723 (Pa. Super. 2001). "We review the legality of a sentence de novo and our scope of review is plenary." Commonwealth v. Butler , 173 A.3d 1212, 1215 (Pa. Super. 2017).

Appellant correctly observes that the Muniz Court found that the registration requirement mandated by SORNA is punitive. See Muniz , supra at 1218. We, thus, begin our analysis of Appellant's challenge with a review of various statutes and legal principles relating to punishments.

Our Supreme Court has explained the well-settled principle that the General Assembly "has the exclusive power to pronounce which acts are crimes, to define crimes, and to fix the punishment for all crimes. The legislature also has the sole power to classify crimes[.]" Commonwealth v. Eisenberg , 98 A.3d 1268, 1283 (Pa. 2014) (citation and quotation omitted).

Our General Assembly has authorized courts to impose specific punishments when fashioning a sentence, and specified maximum terms and amounts of those punishments. These categories of punishment include (1) partial or total confinement, (2) probation, (3) state or county intermediate punishment, (4) a determination of guilt without further penalty, and (5) a fine. 42 Pa.C.S. § 9721.

With respect to the punishment of incarceration, 18 Pa.C.S. § 1103 governs the maximum authorized sentence of imprisonment for felony convictions. By a separate statute, these maximum allowable terms also apply to probationary sentences, a different category of punishment authorized by the General Assembly. In 42 Pa.C.S. § 9754(a), the legislature directed that "[i]n imposing an order of probation the court shall specify at the time of sentencing the length of any term during which the defendant is to be supervised, which term may not exceed the maximum term for which the defendant could be confined, and the authority that shall conduct the supervision." Id. (emphasis added). Thus, the legislature explicitly connected the authorized punishments of incarceration and probation by statute.

However, most sentencing alternatives are not tied to the maximum authorized term of incarceration. For example, the legislature has authorized courts to include in sentences the requirement that a defendant pay a fine or restitution. These categories of punishment are not limited by the maximum period of incarceration; rather, the legislature set different maximum authorized amounts of punishment a court may impose as part of its sentence. See , e.g., 18 Pa.C.S. § 1101 (defining maximum fines); 18 Pa.C.S. § 1106 (providing statutory scheme for restitution for injuries to person or property).

In SORNA the legislature authorized courts to include periods of registration as part of a sentence. Similar to the treatment of the payment of fines or restitution, the legislature did not tie the period of registration to the length of incarceration. See 42 Pa.C.S. § 9799.14 ("Sexual offenses and tier system"); 42 Pa.C.S. § 9799.15 ("Period of registration"). SORNA's registration provisions are not constrained by Section 1103. Rather, SORNA's registration requirements are an authorized punitive measure separate and apart from Appellant's term of incarceration. The legislature did not limit the authority of a court to impose registration requirements only within the maximum allowable term of incarceration; in fact, the legislature mandated the opposite and required courts to impose registration requirements in excess of the maximum allowable term of incarceration.

Accordingly, we conclude that Appellant's lifetime registration requirement authorized by SORNA does not constitute an illegal sentence. Appellant is not entitled to relief.

Appellant asserts that the trial court erred in admitting the child-victim's out-of-court statements through the hearsay testimony of his brother, his mother, and a child forensic interviewer pursuant to the hearsay exception codified in the Tender Years Hearsay Act. Appellant's Brief at 14- 23. Appellant claims that there were not sufficient indicia of reliability to meet the requirements of 42 Pa.C.S. § 5985.1(a)(1).

The "[a]dmission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion." Commonwealth v. Tyson , 119 A.3d 353, 357 (Pa. Super. 2015) (en banc) (citations omitted). "Accordingly, a ruling admitting 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." Commonwealth v. Huggins , 68 A.3d 962, 966 (Pa. Super. 2013) (citation and quotation marks omitted).

The Tender Years Hearsay Act creates an exception to the general rule against hearsay for a statement made by a child who was twelve years old or younger at the time of the statement. 42 Pa.C.S. § 5985.1(a); Commonwealth v. Barnett , 50 A.3d 176, 182 (Pa. Super. 2012). Relevant to this appeal, a court may admit a child-victim's out-of-court statement for the truth of the matter asserted when "(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 [] testifies at the proceeding[.]" 42 Pa.C.S. § 5985.1(a)(1)-(2).

Pursuant to this statute, "indicia of reliability" include, inter alia, "the spontaneity of the statements, consistency in repetition, the mental state of the declarant, use of terms unexpected in children of that age[,] and the lack of a motive to fabricate." Barnett , 50 A.3d at 182-83 (citations omitted).

The Honorable Kevin F. Kelly, sitting as the trial court, has authored a comprehensive, thorough, and well-reasoned Opinion, citing the record and relevant case law in addressing Appellant's evidentiary claim regarding the child-victim's out-of-court statements. After a thorough review of the certified record, the briefs of the parties, the applicable law, and the trial court's Opinion, we conclude that there is no merit to Appellant's evidentiary claim on appeal. Accordingly, we affirm on the basis of the trial court's June 26, 2017 Opinion. See Trial Court Opinion, 6/26/17, at 14-23 (concluding it properly admitted the statements under Section 5985.1 because: (1) the child-victim's statements to his brother and mother were spontaneous and impulsive; (2) the child-victim's statements to the child forensic interviewer were consistent with these prior spontaneous statements to his brother and mother; (3) there was no suggestion that the child victim had any motive to fabricate; and (4) the child victim testified at trial).

In his next issue, Appellant claims that the trial court erred in allowing the child victim to testify by closed-circuit television because the Commonwealth failed to meet its burden of proving that testifying in Appellant's presence would have caused "serious emotional distress that would substantially impair his ability to reasonably communicate." Appellant's Brief at 29. Rather, Appellant avers that the Commonwealth merely showed that the child would be "agitated," which does not meet the applicable standard. Id.

42 Pa.C.S. § 5985 permits a court to conduct an in camera hearing to determine whether a child victim should testify by contemporaneous alternative method outside of the courtroom and the jury's presence. In order to allow this alternative method, the court must find "that testifying either in an open forum in the presence and full view of the finder of fact or in the defendant's presence will result in the [child] suffering serious emotional distress that would substantially impair the [child's] ability to reasonably communicate." 42 Pa.C.S. § 5985(a.1). The court may observe and question the child inside or outside the courtroom, or hear testimony from a parent, custodian, or any other person that has dealt with the child "in a medical or therapeutic setting." 42 Pa.C.S. § 5985(a.1)(1)-(2).

After a thorough review of the record, the briefs of the parties, the applicable law, and the comprehensive and well-reasoned Opinion of the trial court, we conclude that there is no merit to Appellant's claim. Accordingly, we affirm on the basis of the trial court's Opinion. See Trial Court Opinion at 7-14 (concluding it properly permitted the eight-year-old victim to testify by closed-circuit television to avoid serious emotional distress because the victim's mother testified in detail about the victim's ongoing behavioral issues after disclosing the abuse as follows: (1) experiencing frequent nightmares; (2) sleeping in bed with his parents; (3) bedwetting at night; (4) experiencing difficulty in school with obeying instructions from his teacher and staying focused on assigned tasks, which requires additional assistance at school; (5) becoming "very agitated" and experiencing "a complete freak out" one day when the victim believed he observed Appellant's vehicle; (6) becoming "moody" when informed of his required attendance in court; and (7) responding, when informed that Appellant may be present in court for his testimony, that he did not want to see Appellant, that he would "run out of the room" if he were present, and that if he even saw Appellant he would either conceal his face or try to hide under a table).

Appellant avers that the evidence was insufficient to support his convictions for Indecent Assault of a Person less than 13 years of age, Corruption of a Minor, and Involuntary Deviate Sexual Intercourse with a Child. Appellant's Brief at 30-32. Appellant specifically challenges the element of identity insofar as the victim did not make an in-court identification of Appellant as the perpetrator.

We review claims regarding the sufficiency of the evidence by considering whether, "viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt." Commonwealth v. Melvin , 103 A.3d 1, 39 (Pa. Super. 2014). Further, a conviction may be sustained wholly on circumstantial evidence, and the trier of fact—while passing on the credibility of the witnesses and the weight of the evidence—is free to believe all, part, or none of the evidence. Id. at 40. In conducting this review, the appellate court may not weigh the evidence and substitute its judgment for the fact-finder. Id. at 39-40.

"A person is guilty of indecent assault if the person has indecent contact with the complainant, causes the complainant to have indecent contact with the person[,] or intentionally causes the complainant to come into contact with seminal fluid, urine or feces for the purpose of arousing sexual desire in the person or the complainant and . . . the complainant is less than 13 years of age[.]" 18 Pa.C.S. § 3126(a)(7).

Corruption of a Minor is defined, in relevant part, as:

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.

"A person commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when the person engages in deviate sexual intercourse with a complainant who is less than 13 years of age." 18 Pa.C.S. § 3123(b).

"In addition to proving the statutory elements of the crimes charged beyond a reasonable doubt, the Commonwealth must also establish the identity of the defendant as the perpetrator of the crimes." Commonwealth v. Brooks , 7 A.3d 852, 857 (Pa. Super. 2010). "Evidence of identification need not be positive and certain to sustain a conviction." Commonwealth v. Orr , 38 A.3d 868, 874 (Pa. Super. 2011) (en banc) (citation omitted).

Our Supreme Court has stated that "any indefiniteness and uncertainty in the identification testimony goes to its weight. Direct evidence of identity is, of course, not necessary and a defendant may be convicted solely on circumstantial evidence." Commonwealth v. Hickman , 309 A.2d 564, 566 (Pa. 1973) (citations omitted).

Where a victim testifies via closed-circuit television and, thus, does not directly identify the defendant in court, the Commonwealth may establish the defendant as the perpetrator based on alternative circumstantial evidence, e.g., the victim's testimony coupled with other contextual evidence or witness identifications. Brooks , 7 A.3d at 857.

Our review of the record supports the trial court's conclusion that there is no merit to Appellant's sufficiency claim. Because the victim testified via closed-circuit television, in-court identification of Appellant was impossible. Nevertheless, as the trial court aptly observed, the victim's testimony repeatedly identifying the perpetrator as "Jay" was sufficient to establish that Appellant was the perpetrator of the sexual abuse when coupled with: (1) the in-court identifications by the victim's mother and the victim's brother; (2) the fact that, after the victim disclosed to his brother the abuse by "Jay" while Appellant was inside the home, the victim's brother then confronted Appellant; (3) other circumstantial evidence that made clear Appellant was the person the victim referred to as "Jay," who frequently stayed overnight in the victim's home; and (4) two defense witnesses who referred to Appellant as "Jay" during their testimony. See Trial Court Opinion at 31-39. Accordingly, we affirm on the basis of the trial court's Opinion.

The parties are instructed to attach a copy of the trial court's June 26, 2017 Opinion to all future filings.

Judgment of Sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary Date: 8/6/18

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