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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANTHONY PARKER, :
:
Appellant : No. 438 EDA 2014
Appeal from the Judgment of Sentence January 10, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division No(s).: CP-51-CR-0006538-2011
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JULY 14, 2015
Appellant, Anthony Parker, appeals from the judgment of sentence
entered in the Philadelphia County Court of Common Pleas following a jury
trial and convictions for rape of a child,1 involuntary deviate sexual
intercourse with a child,2 aggravated indecent assault of a person less than
thirteen years of age,3 unlawful contact with a minor,4 endangering the
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. § 3121(c).
2
18 Pa.C.S. § 3123(b).
3
18 Pa.C.S. § 3125(a)(7).
4
18 Pa.C.S. § 6318(a)(1).
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welfare of children,5 indecent assault of a person less than thirteen years of
age,6 and corruption of minors.7 Appellant contends that it was error for the
court to admit into evidence a letter that was previously excluded at his first
trial, which had resulted in a mistrial. He further contends the letter was not
relevant and, regardless, was more prejudicial than probative. Appellant
also claims the court failed to instruct the jury on a prompt complaint and
improperly instructed the jury on flight. Finally, he asserts the court failed
to merge his sentences for aggravated indecent assault and indecent
assault. We hold Appellant is due no relief.
We adopt the facts set forth in the trial court’s opinion. See Trial Ct.
Op., 9/5/14, at 1-4. As part of the victim’s recovery and counseling process,
she was asked to write a letter to Appellant8 that described her feelings and
what she would say to him. N.T. Trial, 9/25/13, at 66. At Appellant’s first
trial, the court excluded that letter. Because of a hung jury, that trial ended
in a mistrial, and Appellant was tried again.
At the end of voir dire for the second trial, Appellant orally moved to
exclude the letter. N.T. Trial, 9/24/13, at 207. The court held Appellant’s
5
18 Pa.C.S. § 4304(a)(1).
6
18 Pa.C.S. § 3126(a)(7).
7
18 Pa.C.S. § 6301(a)(1)(i).
8
The letter was never intended to be read by Appellant. N.T. Trial, 9/25/13,
at 66.
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motion under advisement. Id. at 210. Subsequently, the Commonwealth
asked the victim to read the letter into the record without objection by
Appellant. N.T. Trial, 9/25/13, at 65-68. At the close of the
Commonwealth’s case, the Commonwealth moved for the admission of all its
exhibits and Appellant affirmatively indicated he had no objection. N.T.
Trial, 9/27/13, at 23-24.
The jury found him guilty of the above charges. On January 10, 2014,
the court sentenced Appellant to an aggregate sentence of twenty-six to
fifty-two years’ imprisonment followed by a consecutive sentence of
seventeen years’ probation. The aggregate sentence included a consecutive
sentence of four to eight years’ imprisonment for aggravated indecent
assault of a person less than thirteen years of age and a consecutive
sentence of five years’ probation for indecent assault of a person less than
thirteen years of age.
On January 16, 2014, Appellant filed a post-sentence motion, which
only challenged his aggregate sentence as excessive. The court denied
Appellant’s motion on January 28, 2014, and Appellant timely appealed on
February 5, 2014. Appellant timely filed a court-ordered Pa.R.A.P. 1925(b)
statement.
Appellant raises the following issues:
Did not the lower court err in permitting the introduction of
the complainant’s . . . letter to [A]ppellant in its case in
chief because (1) the law of the case doctrine prohibited
the lower court from reconsidering [the decision of the
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judge presiding over Appellant’s first trial] grant of
[A]ppellant’s motion in limine precluding the letter, and (2)
the letter does not independently satisfy Pennsylvania Rule
of Evidence 803(3), and even if it were admissible, it is
irrelevant?
Did not the lower court err in denying [A]ppellant’s request
for a prompt complaint instruction indicating the lack of a
prompt report even though the disclosure occurred at least
some five to six years after the alleged incident and
[A]ppellant was no longer living in the home?
Did not the lower court err by giving a flight instruction to
the jury where the evidence did not reasonable suggest
that [A]ppellant knowingly evaded the police or knew the
police were looking for him?
Did not the lower court impose an illegal sentence by
failing to merge indecent assault of a person less than 13,
18 Pa.C.S. § 3126(a)(7), with aggravated indecent assault
of a person less than 13, 18 Pa.C.S. § 3125(a)(7)?
Appellant’s Brief at 4.
In support of his first issue, Appellant contends that the law-of-the-
case doctrine barred the judge in the second trial from reversing the decision
of the judge in the first trial to preclude admission of the victim’s therapy
letter. He also maintains that the letter does not satisfy any one of the
exceptions to the hearsay rule. Regardless, Appellant insists the letter is
irrelevant. We hold Appellant failed to preserve this issue for appellate
review.
“The admission of evidence is a matter vested within the sound
discretion of the trial court, and such a decision shall be reversed only upon
a showing that the trial court abused its discretion.” Commonwealth v.
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Reid, 811 A.2d 530, 550 (Pa. 2002) (citation omitted). Failure to lodge a
timely objection results in waiver of the claim on appeal. Commonwealth
v. Murray, 83 A.3d 137, 155 (Pa. 2013). Instantly, Appellant failed to
object to the introduction of the victim’s letter at the second trial; indeed,
Appellant indicated he had no objection to the admission of the letter. See
N.T. Trial, 9/25/13, at 65-68; N.T. Trial, 9/27/13, at 23-24. Thus, because
Appellant waived the issue for appellate review, we discern no basis for
relief. See Murray, 83 A.3d at 155. Regardless, “the grant of a new trial
‘wipes the slate clean,’ so that a previous court’s ruling on the admissibility
of evidence generally does not bind a new court upon retrial . . . .” See
Commonwealth v. Paddy, 800 A.2d 294, 311 (Pa. 2002) (citations
omitted).
We summarize Appellant’s arguments in support of his second and
third issues. Appellant alleges the court erred by refusing to instruct the
jury regarding the absence of a prompt complaint by the victim. He notes
the victim, then five years old, waited six years to report the assault.
Appellant maintains the victim understood his actions were wrong well
before she reported it. Appellant also contends the court mistakenly
instructed the jury on flight. He reasons the Commonwealth failed to
adduce sufficient evidence to justify the flight instruction. Appellant, we
hold, is due no relief for either issue.
In reviewing a challenge to the trial court’s refusal to give
a specific jury instruction, it is the function of this Court to
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determine whether the record supports the trial court’s
decision. In examining the propriety of the instructions a
trial court presents to a jury, our scope of review is to
determine whether the trial court committed a clear abuse
of discretion or an error of law which controlled the
outcome of the case. A jury charge will be deemed
erroneous only if the charge as a whole is inadequate, not
clear or has a tendency to mislead or confuse, rather than
clarify, a material issue. A charge is considered adequate
unless the jury was palpably misled by what the trial judge
said or there is an omission which is tantamount to
fundamental error. Consequently, the trial court has wide
discretion in fashioning jury instructions. The trial court is
not required to give every charge that is requested by the
parties and its refusal to give a requested charge does not
require reversal unless the [a]ppellant was prejudiced by
that refusal.
Commonwealth v. Sandusky, 77 A.3d 663, 667 (Pa. Super. 2013)
(citation omitted); accord Commonwealth v. Hawkins, 701 A.2d 492,
511 (Pa. 1997). “The propriety of a prompt complaint instruction is
determined on a case-by-case basis pursuant to a subjective standard based
upon the age and condition of the victim.” Sandusky, 77 A.3d at 667
(citation omitted).
In Sandusky, the defendant alleged the court erred by not giving the
prompt complaint instruction. Id. The trial court refused to give the
instruction based on reasoning that disregarded the case-by-case standard
set forth above. Id. at 668. Thus, the Superior Court ascertained whether
the trial court’s error was harmless. Id. The Sandusky Court held that
because the trial court’s credibility instruction mirrored the Pennsylvania
Suggested Standard Criminal Jury Instruction on witness credibility and the
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defendant cross-examined the victims regarding their delay in reporting the
criminal acts, no prejudice resulted. Id. at 669.
In Commonwealth v. Powers, 577 A.2d 194 (Pa. Super. 1990), the
defendant alleged “the trial court erred in refusing to instruct the jury
specifically that the absence of a prompt complaint by the victim must be
considered in determining her credibility.” Id. at 197. The Powers Court
refused to find an abuse of discretion, reasoning, “[t]he charge given here
adequately covered the general issue of credibility. To have given the
charge requested would have given undue weight to a single factor in the
jury’s complex credibility analysis.” Id. With respect to a flight instruction,
this Court held there was no abuse of discretion when the “trial court
explained that a motive other than consciousness of guilt may prompt
flight.” Commonwealth v. Garcia, 847 A.2d 67, 73 (Pa. Super. 2004).
After careful consideration of the parties’ briefs, the record, and the
decision by the Honorable Gwendolyn N. Bright, we affirm these two issues
on the basis of the trial court’s decision. See Trial Ct. Op. at 4-6 (holding
facts did not justify issuance of prompt complaint instruction and court
instructed the jury that Appellant claimed he was unaware police were
looking for him and flight does not necessarily establish consciousness of
guilt); see also Garcia, 847 A.2d at 73. Even assuming the trial court
erred by failing to give a prompt complaint instruction, the court—similar to
the trial court in Sandusky—instructed the jury generally on credibility.
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See N.T. Trial, 9/30/13, at 105-08; Sandusky, 77 A.3d at 669. Thus, any
error was also harmless. See Sandusky, 77 A.3d at 669.
Lastly, Appellant contends the trial court imposed an illegal sentence.
He reasons that a conviction of indecent assault of a complainant under the
age of thirteen merges into the offense of aggravated indecent assault of a
complainant under the age of thirteen. Appellant acknowledges that in
Commonwealth v. Allen, 856 A.2d 1251 (Pa. Super. 2004), this Court held
the offenses do not merge, but maintains Allen is wrong. Appellant’s Brief
at 39. Appellant acknowledges that a panel of this Court cannot overrule
Allen, but asserts that after Allen, the aggravated indecent assault statute
was amended to include divisible offenses:
The United States Supreme Court has recognized that
where a statute involves “divisible offenses”—the kind
which “sets out one or more elements of the offense in the
alternative” it is proper to examine which alternative is at
issue. See United States v. Descamps, ___ U.S. ___,
133 S. Ct. 2276, 2281 (2013). The current indecent
assault provision is such a statute.
Id. at 41-42. Appellant thus reasons this Court could hold merger was
warranted without contradicting Allen. We hold Appellant is not entitled to
relief.
The issue of merger is a question of law, and therefore “our scope of
review is plenary and our standard of review is de novo.” Commonwealth
v. Williams, 920 A.2d 887, 888-89 (Pa. Super. 2007) (citation omitted). In
Pennsylvania,
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[n]o crimes shall merge for sentencing purposes unless the
crimes arise from a single criminal act and all of the
statutory elements of one offense are included in the
statutory elements of the other offense. Where crimes
merge for sentencing purposes, the court may sentence
the defendant only on the higher graded offense.
42 Pa.C.S. § 9765. “The doctrine of merger is a rule of statutory
construction designed to determine whether the legislature intended for the
punishment of one offense to encompass that for another offense arising
from the same criminal act or transaction.” Commonwealth v. Evans, 901
A.2d 528, 536 (Pa. Super. 2006) (citation omitted).
Aggravated indecent assault of a person less than thirteen years of
age is defined as follows:
(a) Offenses defined.—Except as provided in sections
3121 (relating to rape), 3122.1 (relating to statutory
sexual assault), 3123 (relating to involuntary deviate
sexual intercourse) and 3124.1 (relating to sexual
assault), a person who engages in penetration, however
slight, of the genitals or anus of a complainant with a part
of the person’s body for any purpose other than good faith
medical, hygienic or law enforcement procedures commits
aggravated indecent assault if:
* * *
(7) the complainant is less than 13 years of age . . . .
18 Pa.C.S. § 3125(a)(7). Indecent assault of a person less than thirteen
years of age is defined as follows:
(a) Offense defined.—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
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or feces for the purpose of arousing sexual desire in the
person or the complainant and:
* * *
(7) the complainant is less than 13 years of age . . . .
18 Pa.C.S. § 3126(a)(7). At the time Allen was decided, Section 3126(a)
defined indecent assault as follows:
(a) Offense defined.—A person who has indecent contact
with the complainant or causes the complainant to have
indecent contact with the person is guilty of indecent
assault if
* * *
(7) the complainant is less than 13 years of age . . . .
18 Pa.C.S. § 3126(a)(7) (1995) (amended 2005). “Indecent contact” is
defined as “[a]ny touching of the sexual or other intimate parts of the
person for the purpose of arousing or gratifying sexual desire, in any
person.” 18 Pa.C.S. § 3101.
In Allen, our Court examined whether “whether the offenses of
indecent assault and aggravated indecent assault are greater and lesser-
included offenses.” Allen, 856 A.2d at 1253. The Allen Court held they did
not merge, reasoning as follows:
Aggravated indecent assault includes an element that is
not required to commit indecent assault. That element is
penetration of the genitals or anus of the victim. Indecent
assault includes an element that is not required to commit
aggravated indecent assault. That element is proof of
arousing or gratifying sexual desire. [See 18 Pa.C.S. §
3101.]
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Since each crime has an additional element not included
in the other crime, neither is a lesser-included offense of
the other.
Id. at 1254.
We are bound by Allen, and therefore discern no basis for granting
Appellant relief. Appellant, however, suggests that the inclusion of divisible
offenses in the present indecent assault statute, i.e., “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,” see
18 Pa.C.S. § 3126(a), requires this Court to identify under which clause
Appellant was convicted. We need not engage in that identification because
both clauses incorporate the element of arousing sexual desire—an element
absent from the aggravated indecent assault statute. Compare id., with
18 Pa.C.S. § 3125(a). Accordingly, having discerned no error of law, see
Williams, 920 A.2d at 888-89, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/14/2015
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Circulated 06/15/2015 03:27 PM
IN THE COURT OF COMMON PLEAS
PHILADELPHIA COUNTY
CRIMINAL TRIAL DIVISION
COMMONWEALTH OF PENNSYLVANIA CP-5 l-CR-0006538-2011
CP-51-CR-0006538-2011_Comm v. Pa1ka.Anthony
OpinlO