J-S29038-15
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
JAIME JONES, :
:
Appellant : No. 1916 WDA 2014
Appeal from the Judgment of Sentence Entered September 18, 2014,
in the Court of Common Pleas of Mercer County,
Criminal Division, at No(s): CP-43-CR-0000917-2013,
CP-43-CR-0000919-2013
BEFORE: PANELLA, MUNDY, and STRASSBURGER,* JJ.
MEMORANDUM BY STRASSBURGER, J.: FILED JUNE 30, 2015
Jaime Jones (Appellant) appeals from the September 18, 2014
aggregate judgment of sentence of 27 to 75 years’ incarceration, entered
following his convictions for various offenses stemming from his sexual
abuse of his two nephews, K.R. and I.D., and his niece, J.D. We affirm.
The trial court summarized the facts underlying this matter as follows.
J.D. testified that she and her twin brother, I.D., were born
[in January 2004] and that K.R. is their cousin. [Appellant] is
their uncle and he sometimes would stay at her house. When
she was in first grade, [Appellant] touched her private parts on
more than one occasion and had her touch his penis. ...
[Appellant] removed her pants and underwear on at least one
occasion. [J.D. also testified that Appellant put his private part in
her private part.]
I.D. testified that on one occasion [Appellant], while
babysitting him, touched his penis and fondled it. The incident
occurred when he was in first grade.
*Retired Senior Judge assigned to the Superior Court.
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K.R. testified that on one occasion while [Appellant] was
babysitting him, [Appellant] touched his “pee pee.” After doing
so, [Appellant] took K.R. to the bathroom and put his “pee pee”
into K.R.’s bottom. [Appellant] then took K.R. downstairs and
put his “pee pee” into K.R.’s mouth. This action caused K.R. to
choke. After doing so, [Appellant] inserted his penis into K.R.’s
bottom. These incidents occurred when K.R. was in first grade.
Trial Court Opinion, 12/18/2014, at 2-3 (footnote omitted).
Based on the above, Appellant was charged with numerous offenses at
two different docket numbers, CP-43-CR-0000917-2013 (917-2013), and
CP-43-CR-0000919-2013 (919-2013). The cases were consolidated for
purposes of trial, which commenced on May 13, 2014. At trial, as part of its
case-in-chief, the Commonwealth presented the expert testimony of Nicole
Amabile, a licensed, nationally-certified professional counselor who, among
other things, has directly counseled approximately 60 child-sexual-assault
victims. N.T., 5/13-5/15/2014, at 128, 130. Following trial, the jury
convicted Appellant at docket 917-2013 of rape of a child, involuntary
deviate sexual intercourse (IDSI) with a child, unlawful contact with a minor,
statutory sexual assault, and indecent assault with respect to K.R. At docket
919-2013, the jury convicted Appellant of two counts each of unlawful
contact with a minor and indecent assault as to J.D. and I.D.
On September 18, 2014, Appellant was sentenced to an aggregate 27
to 75 years’ incarceration. Appellant timely filed post-sentence motions,
which the trial court denied. Appellant then timely filed a notice of appeal.
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On appeal, Appellant challenges the discretionary aspects of his
sentence. Appellant also contends that the trial court erred in permitting the
Commonwealth to present the testimony of Ms. Amabile under 42 Pa.C.S. §
5920,1 without holding a hearing pursuant to Frye v. United States, 293 F.
1013 (D.C. Cir. 1923).
We address Appellant’s evidentiary issue first.
As with other evidentiary decisions, the trial court may exercise
its discretion in deciding whether to admit expert testimony.
The trial court’s decision will be reversed only if the appellate
court finds an abuse of discretion or an error of law.
Pennsylvania continues to adhere to the Frye test, which
provides that novel scientific evidence is admissible if the
methodology that underlies the evidence has general acceptance
in the relevant scientific community. The Frye test is a two-step
process. First, the party opposing the evidence must show that
the scientific evidence is novel by demonstrating that there is a
legitimate dispute regarding the reliability of the expert’s
conclusions. If the moving party has identified novel scientific
evidence, then the proponent of the scientific evidence must
show that the expert’s methodology has general acceptance in
the relevant scientific community despite the legitimate dispute.
Commonwealth v. Foley, 38 A.3d 882, 888 (Pa. Super. 2012) (citations
and internal quotation marks omitted).
Appellant argues that
[t]he testimony of Ms. Amabile … contains opinions based
on the human behavioral sciences of child psychology, child
development, human development and pediatric development
1
Section 5920 provides, in relevant part, that in criminal proceedings for
sexual offenses, a qualified expert witness “may testify to facts and opinions
regarding specific types of victim responses and victim behaviors.” 42
Pa.C.S. § 5920(b)(2).
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and science. Because the opinions … were as to matters covered
by these scientific disciplines, the Commonwealth was required
to prove that the witness’s opinions were generally accepted in
the relevant scientific communities and disciplines of human
development and behavioral science.”
Appellant’s Brief at 20-21.
In addressing Appellant’s claim, we find this Court’s decision in
Commonwealth v. Passarelli, 789 A.2d 708 (Pa. Super. 2001), to be
instructive. In that case, Passarelli was convicted of simple assault and
endangering the welfare of a child for inflicting injuries upon his three-
month-old daughter. Passarelli, 789 A.2d at 710-11. At trial, the
Commonwealth presented expert medical testimony from three doctors as to
the diagnosis of “shaken-impact syndrome” and the timing of the child’s
injuries. Id. at 711. On appeal, Passarelli argued that the Commonwealth’s
expert medical opinion testimony was subject to the Frye standard and,
accordingly, a hearing should have been held. Id. at 714-15. Rejecting
Passarelli’s argument, this Court held that the doctors’ “testimony was
opinion testimony subject to the standard rules governing expert witness
testimony and not ‘scientific evidence’ subject to a Frye analysis”:
The diagnosis of “shaken-impact syndrome” refers to a
series of injuries to the brain that result from violent shaking of
a small child whose weak neck muscles permit tremendous
acceleration and deceleration movement of the brain within the
skull. When a qualified medical expert witness testifies that a
particular child suffered from “shaken-impact syndrome,” he or
she is giving an opinion as to the means used to inflict the
particular injuries, i.e., the types of injuries, their size, number,
location and severity. A diagnosis of “shaken-impact syndrome”
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simply indicates that a child found with the type of injuries
described above has not suffered those injuries by accidental
means. Thus, such expert testimony shows that the child was
intentionally, rather than accidentally, injured.
{ "pageset": "S45
Here, Passarelli does not challenge the Commonwealth’s
experts’ qualifications. Rather, Passarelli’s sole contention is that
“shaken-impact syndrome,” and the method used by the
Commonwealth’s experts to determine the timing of the injuries
were not generally accepted in the medical community, an
argument that Passarelli presented to the jury through his own
medical expert testimony. As previously discussed, the expert
testimony on “shaken-impact syndrome” was opinion testimony,
not scientific evidence, offered to show that [the child’s] injuries
were intentional. Therefore, we conclude that the Frye analysis
does not apply, and we, consequently, conclude that Passarelli’s
contention is without merit.
Id. at 715-16 (citations omitted).
In the instant case, the Commonwealth elicited the following testimony
from Ms. Amabile:
[Commonwealth:] Ma’am, in your training and experience, have
you found that a large number of child sexual abuse victims
know their abusers?
[Ms. Amabile:] Yes.
[Commonwealth:] Okay. Has it also been your experience that
it’s common for them to maintain a relationship with this person
after the abuse?
[Ms. Amabile:] Yes.
N.T., 5/13-5/15/2014, at 131. On cross-examination, Ms. Amabile testified
as follows:
[Appellant’s Counsel:] Hi. It’s also common, isn’t it, for children
who claim they’ve been sexually abused to withdraw from the
person they claim is the abuser?
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[Ms. Amabile:] That’s not been my experience.
[Appellant’s Counsel:] Are you saying it’s not common for
children who claim they’ve been abused by a particular person
not to withdraw from the presence of that person?
[Ms. Amabile:] That’s not been my experience, no.
[Appellant’s Counsel:] What about--Isn’t it common for children
who claim to be abused by a person, to cry when they’re in the
presence of the abuser or cry about it?
[Ms. Amabile:] No.
[Appellant’s Counsel:] No it isn’t common for a child who claims
that they’ve been sexually abused by a person to cry when the
person’s name is mentioned or when the person is talked about?
[Ms. Amabile:] No.
[Appellant’s Counsel:] No? Isn’t it common that children who
claim that they have been abused by a person clam up or don’t
talk, don’t want to talk when they see the person?
[Ms. Amabile:] No.
N.T., 5/13-5/15/2014, at 131-32.
Upon review, we conclude that, like the challenged testimony in
Passarelli, Ms. Amabile’s testimony is not “scientific evidence” subject to
the Frye standard. Ms. Amabile applied no methodology, novel or
otherwise, to reach her conclusions. Rather, her testimony consisted of
personal observations she has made based on her training and experience
counseling child-sexual-abuse victims. As such, it was testimony “subject to
the standard rules governing expert witness testimony.” Passarelli, 789
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A.2d at 715. Thus, the trial court did not err in permitting the testimony
without first holding a hearing pursuant to Frye.
We now turn to Appellant’s discretionary-aspects-of-sentencing claim.
Where an appellant challenges the discretionary aspects of a sentence, there
is no automatic right to appeal, and the notice of appeal should be
considered to be a petition for allowance of appeal. Commonwealth v.
W.H.M., 932 A.2d 155, 163 (Pa. Super. 2007). As we observed in
Commonwealth v. Moury, 992 A.2d 162 (Pa. Super. 2010),
[a]n appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test:
… (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).
Id. at 170 (quoting Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.
Super. 2006)).
Instantly, Appellant timely filed his notice of appeal and properly
preserved his discretionary-aspects-of-sentencing claim by including it in a
post-sentence motion. Moreover, Appellant has included in his brief a
statement pursuant to Pa.R.A.P. 2119(f). Thus, we must determine if
Appellant’s claim raises a substantial question.
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The determination of what constitutes a substantial question
must be evaluated on a case-by-case basis. 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.
Commonwealth v. Disalvo, 70 A.3d 900, 903 (Pa. Super. 2013) (quoting
Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa. Super. 2013)).
In his Rule 2119(f) statement, Appellant claims that his aggregate
sentence,
although within the applicable sentencing guidelines and within
the maximum statutory limits for all offenses for which
sentences were imposed, presents a substantial question that
the effective sentence of imprisonment was not appropriate
under 42 [Pa.C.S. § 9781(b)], because … Appellant … had no
previous criminal convictions or juvenile adjudications, had
served the United States with military service in the New York
Army National Guard, and was born on January 5, 1970 making
him currently 45 years of age.
Appellant’s Brief at 16.
It is unclear whether Appellant contends that, in sentencing him, the
court failed either to consider mitigating factors altogether or to consider
those factors adequately. However, at the sentencing hearing, Appellant’s
counsel explained to the court, inter alia, that Appellant has “no prior
convictions of any kind anywhere,” was “currently 44 years of age,” and
“served his country in the New York and the Army National Guard from 1989
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to 1991 with an honorable discharge.” N.T., 9/18/2014, at 15-16.2 Thus,
we interpret Appellant’s argument to be that the court failed to consider
mitigating factors adequately. Such a contention does not raise a
substantial question. Disalvo, 70 A.3d at 903 (“[T]his Court has held on
numerous occasions that a claim of inadequate consideration of mitigating
factors does not raise a substantial question for our review.”) (quoting
Commonwealth v. Downing, 990 A.2d 788, 794 (Pa. Super. 2010)).
Thus, Appellant is not entitled to relief on his discretionary-aspects-of-
sentencing claim.
For the foregoing reasons, we affirm Appellant’s judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/30/2015
2
The sentencing court also had the benefit of a presentence investigation
report (PSI). Thus, we presume that the court was aware of the above
information. See Griffin, 65 A.3d at 937 (“Where the sentencing court had
the benefit of a [PSI], we can assume the sentencing court was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.”) (internal quotation
marks omitted).
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