J-A23004-14
NON-PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
CHRISTOPHER VANISTENDAEL, :
:
Appellant : No. 479 WDA 2013
Appeal from the Judgment of Sentence January 22, 2007,
Court of Common Pleas, Venango County,
Criminal Division at No. CP-61-CR-0000197-2006
BEFORE: DONOHUE, ALLEN and MUSMANNO, JJ.
MEMORANDUM BY DONOHUE, J.: FILED SEPTEMBER 15, 2014
Christopher Vanis
of sentence imposed following his convictions of involuntary deviate sexual
intercourse, corruption of the morals of a minor, and statutory sexual
assault.1 For the following reasons, we affirm.
We begi
procedural history of this case, which the trial court summarized as follows:
born June 8, 1989, was 14-years of age, and then
15-years of ag
then 24-years of age, born April 26, 1989 [sic], on
May 17, 2014 when she snuck out of her home with
a friend to meet [him]. [Vanistendael] was driving
his car. There were several people in the car and A.L.
rode in the
given Smirnoff malt liquor to drink, and that evening
1
18 Pa.C.S.A. §§ 3123, 6301, 3122.
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was 24[]years of age. She met him a week later
when she was spending the night with a friend. She
and her 14-year old friend snuck out and met [him]
at a gas station and then drove around. She told the
jury she had feelings for [Vanistendael]. On several
other occasions[,] A.L. snuck out of her mother and
step-father's home through a sliding door in the
basement and met [Vanistendael] late at night and
they drove around in his car. On one occasion with
her friend, Ember, in another car they went to a
grade. She had sex with him on this occasion in the
cabin and on several other occasions while in
had oral sex several times with her mouth on his
penis. She described that [Vanistendael] did
ejaculate into her mouth. She also described his
mouth and tongue on and in her vaginal orifice. She
estimated sexual intercourse 12 to 15 times in his
vehicle and in the cabin, and oral sex on most of
those occasions. The sex in the cabin was
corroborated by at least two witnesses.
***
The alleged offenses occurred on or about May 17,
2004 through June, 2004. The trial verdict, after a
one (1) day trial, occurred on October 12, 2006.
[Vanistendael] was sentenced on January 22, 2007.
[He] filed, through new counsel, a Post[]Conviction
Relief Act proceeding on August 3, 2007. On March
18, 2010 the Superior Court affirmed the trial court's
opinion denying the PCRA but remanded the case for
right to appeal. The trial court then conducted
further hearings on the issue of whether or not
[Vanistendael] properly waived his right to a direct
appeal. The trial court concluded that counsel had
acted properly in initially filing the PCRA by an
opinion and order dismissing the PCRA filed on July
2, 2010. The trial court was initially affirmed by the
Superior Court with a dissent on the 14th day of
July, 2011. However, the Pennsylvania Supreme
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matter be returned to the trial court for the court to
make a determination whether [Vanistendael] had
waived his right to take a direct appeal. Following
the directions from the Supreme Court[,] the trial
court, after hearing, entered findings on December
10, 2012, that [Vanistendael] had not waived his
right to take a direct appeal and the trial court, by
order dated December 10, 2012, granted leave for
[him] to take a direct appeal.
Trial Court Opinion, 9/12/13, at 1-4.
Presently, Vanistendael raises the following three issues:
1. Whether statements by
in closing argument constitute prosecutorial misconduct
to the degree that [Vanistendael] was prejudiced and
prevented [Vanistendael] from receiving a fair and
impartial trial.
2. Whether false representations by the Commonwealt
attorney to the [c]ourt during trial and sentencing
hearing constitute prosecutorial misconduct creating
bias and prejudice by the trial court and resulting in an
unduly harsh and excessive sentence.
3. Whether the sentencing court erred by failing to order a
psychological or psychiatric examination of
[Vanistendael] and obtain clinic records as set forth by
the Supreme Court of Pennsylvania prior to sentencing.
Vanistendael first argues that the following statements made by
Assistant District Attorney Carbone during its closing argument amount to
prosecutorial misconduct:
wanna put away a preferential predator and how
other people that would be bad; that would be
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wrong; I would not do that. How other people could
Decide it on this evidence; this one victim.
N.T., 10/12/06, at 55-56.
In these statements, despite the facetious manner in which he
couched them, Assistant District Attorney Carbone told the jury that unless
they convict Vanistendael, other people (impliedly, other children) would be
preyed upon by Vanistendael. These statements imposed a heavy burden
on the co
away from the task of weighing the evidence before them; as such, there is
a strong argument that they do constitute prosecutorial misconduct and that
Vanistendael is entitled to a new trial. See Commonwealth v. Cooper,
941 A.2d 655, 668 (Pa. 2007) (holding that a new trial is warranted where
bias and hostility toward the defendant such that the jurors could not weigh
Vanistendael did not object to these statements at the time they were made,
timely and specific objecti
Commonwealth v. Schoff, 911 A.2d 147, 158 (Pa. Super. 2006); see also
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Pa.R.A.P. 302. Accordingly, we must conclude that Vanistendael has waived
this issue.2
the Commonwealth caused the trial court to be biased against him, which
then led to the imposition of an unduly harsh and excessive sentence.
ls that the trial court ordered
Vanistendael to file a statement of errors complained of pursuant to
Pa.R.A.P. 1925(b), but Vanistendael did not include this issue therein. See
Trial Court Order, 3/25/13; Concise Statement of the Matters Complained of
on Appeal, 4/10/13. It is well established that when ordered by the trial
court to file a statement of errors complained of on appeal, the appellant
must comply and any issue not contained therein is deemed waived for
purposes of appeal. Commonwealth v. Garland, 63 A.3d 339, 342
2
Despite the lack of objection at trial, the trial court addressed this issue in
its Rule 1925(a) opinion. It concluded that when read in context, these
statements were a fair rebuttal to statement made by defense counsel that
Vanistendael is mentally disabled and deserving of sympathy. Trial Court
Opinion, 9/12/13, at 6. We have read the closing arguments of both parties
and conclude that any plea for sympathy made by defense counsel was
extraordinarily subtle, as the vast majority of his argument was dedicated to
were friends of the victim. In fact, defense counsel mentioned
that he was easily manipulated by See N.T., 10/12/06,
at 48-
attempt to curry sympathy for Vanistendael, we cannot agree that a call to
save other children by convicting Vanistendael is fair rebuttal thereto. No
part of the statement by Assistant District Attorney Carbone at issue
responded to anything said by defense counsel in his closing argument.
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(Pa. Super. 2013) (holding issue waived where appellant failed to include
that specific issue in his court-ordered Pa.R.A.P. 1925(b) statement)
Pa.R.A.P. 1925(b)(4)(vii). Accordingly, this issue has been waived, as well.3
The third issue raised by Vanistendael is that the trial court erred by
not ordering that he undergo a psychological or psychiatric evaluation before
4
He argues that the pre-sentence
s inadequate and the trial court erred
by relying on it without additional information about his mental health. Id.
at 16-17.
To the extent that Vanistendael argues that the trial court erred as a
matter of law by failing to order such tests, he is mistaken. Whether to
3
In his statement of errors complained of on appeal, Vanistendael raised a
claim challenging his sentenc
or why the sentence was excessive and inappropriate. Concise Statement of
the Matters Complained of on Appeal, 4/10/13, at ¶ 7. This general
statement does not suffice to preserve the specific allegation of error that
Vanistendael has presented in his brief on appeal. Garland, 63 A.3d at 342
(finding an issue waived because appellant failed to present the specific
issue in his court-ordered Pa.R.A.P. 1925(b) statement).
4
At no point prior to the imposition of sentence did Vanistendael request
that the trial court order such tests or obtain such documents prior to
affirmed that there were no corrections to be made to the PSI report and
when asked whether there was anything beyond the PSI report that he
issue of psychological or psychiatric testing or records. N.T., 1/22/07, at 12,
24. However, because Vanistendael subsequently raised the issue that the
trial court should have obtained these tests in his post-sentence motions, we
do not find it waived.
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order psychological or psychiatric evaluations is left to the discretion of the
before the imposition of sentence, after notice to counsel for both parties,
the sentencing judge may, as provided by law, order the defendant to
(emphasis added). There was no indication at trial that Vanistendael
suffered from any psychological disorder such that the trial court should
have sua sponte divined a need for psychological or psychiatric testing,5 and
Cf.
Commonwealth v. Marshall, 318 A.2d 724, 724-25 (Pa. 1974) (pre-trial
psychiatric evaluation of defendant that found defendant competent to stand
funds to hire psychiatrist prompted trial court to order psychiatric testing
prior to sentencing).
Vanistendael relies on Commonwealth v. Carrillo-Diaz, 64 A.3d
722, 728 (Pa. Super. 2013), but this reliance is misplaced. The issue in
Carrillo-Diaz was whether it was reversible error for a trial court to impose
a sentence without a PSI report or without explaining its reasons for not
ordering such a report. This Court held that there is no requirement for a
5
r testified that in 2003 Vanistendael had
10/12/06, at 228-29.
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PSI report, but the salient inquiry is whether the trial court has adequate
information before it, from whatever source. We stated,
[t]he first responsibility of the sentencing judge is to
be sure that he has before him sufficient information
to enable him to make a determination of the
circumstances of the offense and the character of the
defendant. Thus, a sentencing judge must either
order a PSI report or conduct sufficient presentence
inquiry such that, at a minimum, the court is
apprised of the particular circumstances of the
offense, not limited to those of record, as well as the
defendant's personal history and background. ... The
court must exercise the utmost care in sentence
determination if the defendant is subject to a term of
incarceration of one year or more.
***
While case law does not require that the trial court
order a pre-sentence investigation report under all
circumstances, the cases do appear to restrict the
court's discretion to dispense with a PSI report to
circumstances where the necessary information is
provided by another source. Our cases establish, as
well, that the court must be apprised of
comprehensive information to make the punishment
fit not only the crime but also the person who
committed it.
Id. at 725-26 (quoting Commonwealth v. Goggins, 748 A.2d 721, 728
(Pa. Super. 2000) (en banc)).
As made clear by the excerpt from Carrillo-Diaz above, the applicable
inquiry is whether the trial court has been apprised of the particular
circumstances of the offense and the defendant's personal history and
background, from whatever source, before imposing sentence. Here, the
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ular
mental health issues. The trial court had the benefit of not only the PSI
report but also a report performed by the Sexual Offenders Assessment
approximately 70 and that he suffers from bipolar disorder, attention deficit
disorder and obsessive compulsive disorder. Id. at 25. Counsel also
informed the trial court that Vanistendael was sexually abused as a child.
Id. at 24. The trial court stated that in imposing the sentence, it considered
the PSI report, the SOA
counsel. Id. at 34. Accordingly, we conclude that the trial court had
sufficient evidence of the particular circumstances surrounding
particular relevance, it is clear that the trial court did not rely solely on the
PSI report. Thus, we reject the argument that the trial court did not have
adequate information before it for sentencing purposes.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/15/2014
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Com. v. Vanistendael, C.
Combined Opinion