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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
RALPH SKUNDRICH
Appellant No. 1433 WDA 2014
Appeal from the Judgment of Sentence April 17, 2014
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0012621-2010
BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*
MEMORANDUM BY PANELLA, J.: FILED SEPTEMBER 09, 2016
Appellant, Ralph Skundrich, appeals from the judgment of sentence
entered in the Court of Common Pleas of Allegheny County after a jury
convicted him of five counts of involuntary deviate sexual intercourse and
other related offenses. After careful review, we affirm.
The relevant facts and procedural history are as follows. At
approximately 2:30 a.m. on July 25, 2002, D.W. awoke on her living room
couch to find an intruder standing above her. D.W. described him as a
Caucasian male with salt and pepper hair, between five foot six and five foot
eight inches tall, with a medium to stocky muscular build. Further, she
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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indicated that the intruder wore a mask during the entire incident. Once the
intruder noted D.W. was awake, he pointed a gun at her, demanded she
give him money, and threatened to kill her if she screamed. He ordered
D.W. into her bedroom. When she attempted to scream, he punched her in
the face and stomach and removed her clothing.
The intruder proceeded to perform oral sex on D.W., penetrate D.W.
anally with his penis, and force her to perform oral sex on him. He led D.W.
into the bathroom and forced her to urinate while he watched. While in the
bathroom, he again forced D.W. to perform oral sex on him and ejaculated
onto her face and chest. The intruder used a towel to clean D.W. off before
anally penetrating her for the second time. He led D.W. back into her
bedroom, demanded to know the location of her money, and instructed D.W.
to wait for five minutes before leaving the room. Upon leaving D.W.’s
residence, the intruder disconnected her phone and removed her phone
handset.
After ten minutes, D.W. contacted the police and was transported to a
hospital where DNA evidence was collected. In 2010, police obtained a
search warrant to collect DNA evidence from Skundrich to test against the
DNA evidence taken in relation to D.W.’s assault. Subsequent testing
confirmed a match and Skundrich was arrested and charged with D.W.’s
sexual assault.
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On January 13, 2014, a jury convicted Skundrich of burglary,1 five
counts of involuntary deviate sexual intercourse,2 two counts of sexual
assault,3 indecent assault,4 terroristic threats,5 simple assault, and false
imprisonment.6 Thereafter, the trial court sentenced Skundrich to an
aggregate term of 65 ½ to 131 years’ imprisonment. Skundrich
subsequently filed a post-sentence motion, which the trial court denied. This
timely appeal follows.
On appeal, Skundrich raises two issues for review. In his first issue,
Skundrich argues that the trial court abused its discretion by admitting
evidence of a sexual assault committed by Skundrich seven weeks prior to
D.W.’s sexual assault. Specifically, Skundrich contends that the prior sexual
assault was not sufficiently similar to D.W.’s sexual assault to constitute a
common plan or scheme, and therefore was unduly prejudicial and
improperly admitted under the common plan or scheme exception to
Pennsylvania Rule of Evidence 404(b). We disagree.
“[T]he admission of evidence is within the sound discretion of the trial
court and will only be reversed upon a showing that the trial court clearly
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1
18 Pa.C.S. § 3502(c)(1).
2
18 Pa.C.S. § 3123.
3
18 Pa.C.S. § 3124.1.
4
18 Pa.C.S. § 2706.
5
19 Pa.C.S. § 2701(a)(1).
6
18 Pa.C.S. § 2903(a).
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abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106
(Pa. Super. 2012). Evidence of other crimes is inadmissible at a trial when
that proof is introduced solely to show the defendant’s bad character or
criminal propensities. See Commonwealth v. Keaton, 729 A.2d 529, 537
(Pa. 1999); see also Pa.R.E. 404(b)(1). However, evidence of other crimes
is admissible in certain circumstances, such as when offered to prove
motive, opportunity, intent, preparation, plan, knowledge, identity, and
absence of mistake or accident. See Pa.R.E. 404(b)(2). Additionally, such
evidence is admissible “to show a common plan, scheme, or design
embracing commission of multiple crimes, or to establish the identity of the
perpetrator, so long as proof of one crime tends to prove the others.”
Keaton, 729 A.2d at 537 (citation omitted).
When ruling upon the admissibility of evidence under the
common plan exception, the trial court must first examine the
details and surrounding circumstances of each criminal incident
to assure that the evidence reveals criminal conduct which is so
distinctive and so nearly identical as to become the signature of
the same perpetrator. Relevant to such a finding will be the
habits or patterns of action or conduct undertaken by the
perpetrator to commit crime, as well as the time, place, and
types of victims typically chosen by the perpetrator. Given this
initial determination, the court is bound to engage in a careful
balancing test to assure that the common plan evidence is not
too remote in time to be probative. If the evidence reveals that
the details of each criminal incident are nearly identical, the fact
that the incidents are separated by a lapse of time will not likely
prevent the offer of the evidence unless the time lapse is
excessive. Finally, the trial court must assure that the probative
value of the evidence is not outweighed by its potential
prejudicial impact of the evidence with such factors as the
degree of similarity established between the incidents of criminal
conduct, the Commonwealth’s need to present evidence under
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the common plan exception, and the ability of the trial court to
caution the jury concerning the proper use of such evidence by
them in their deliberations.
Commonwealth v. Tyson, 119 A.3d 353, 389-39 (Pa. Super. 2015)
(quoting Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa. Super.
2007).
Upon review of the facts surrounding the previous sexual assault
admitted under the common plan or scheme exception, it is clear that there
are striking similarities between the two sexual assaults. The assaults
occurred in neighboring counties, seven weeks apart. Both victims, who
were female, awoke at approximately 2:30 in the morning to find a masked
man standing over them as they slept. In both cases the intruder forced the
victim to undress and perform various sex acts. Both of the victims complied
with the intruder’s commands because he brandished a deadly weapon
throughout the assault. The intruder alternated between sexual acts that he
forced the victim to perform. At some point during both assaults, the
intruder ejaculated on the victim’s face and upper body, and proceeded to
use a towel or cloth to wipe the victim’s face. Finally, in both cases, before
he left, the intruder disconnected the victim’s telephone access and
instructed her to wait a specified period of time before leaving the room.
We find that the relevant details and circumstances surrounding each
of the sexual assaults indicate criminal conduct that is sufficiently distinctive
as to constitute a common plan or scheme. While Skundrich highlights
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differences between the two cases, i.e., different masks in each case,
different deadly weapons used, and different descriptions of the intruder’s
hair color, we find that these differences are insignificant compared to the
evidence of “criminal conduct which is so distinctive and so nearly identical
as to become the signature of the same perpetrator.” Tyson, 119 A.3d at
389-39. Contrary to Skundrich’s arguments, there is no requirement that
crimes have to be carried out in an identical fashion to be considered an
exception under the common plan or scheme doctrine. See
Commonwealth v. Patterson, 399 A.2d 123, 126, n.6 (Pa. 1976) (noting
that the requirement of an “identical modus operandi is not required under
the common plan or scheme exception”). Additionally, we do not find that
the trial court abused its discretion in determining that the probative value
of Skundrich’s prior sexual assault outweighed its potential for undue
prejudice. Given the substantial similarities between the two sexual assaults,
it was reasonable to find the previous assault highly probative in determining
the identity of D.W.’s intruder and that the description of Skundrich’s prior
assault alone did not render it unduly prejudicial. See Tyson, 119 A.3d at
361. Accordingly, Skundrich’s challenge to the admission of P.J.’s testimony
is without merit.
In his final issue, Skundrich argues that the sentence imposed by the
trial court was manifestly excessive and clearly unreasonable. Skundrich
relies upon two arguments to support this contention. First, Skundrich
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argues that the trial court abused its discretion by sentencing him outside
the guidelines to the statutory maximum on every count and running the
sentences consecutively, essentially creating a life sentence for a non-
homicide offense. See Appellant’s Brief, at 12, 22. Second, Skundrich argues
that the sentence imposed was improper because the trial court imposed a
sentence outside the guidelines without “meaningful consideration of the
statutory factors.” Appellant’s Brief, at 18. Skundrich concedes that both
arguments constitute challenges to the discretionary aspects of his sentence.
See Appellant’s Brief, at 11.
We find that Skundrich preserved his arguments concerning the
discretionary aspects of his sentence through a post-sentence motion. Thus,
he is in technical compliance with the requirements to challenge the
discretionary aspects of his sentence. “A challenge to the discretionary
aspects of a sentence must be considered a petition for permission to
appeal, as the right to pursue such a claim is not absolute.”
Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation
omitted). “Two requirements must be met before we will review this
challenge on its merits.” Id. (citation omitted).
“First, an appellant must set forth in his brief a concise statement of
the reasons relief upon for allowance of appeal with respect to the
discretionary aspects of a sentence.” Id. (citation omitted). “Second, the
appellant must show that there is a substantial question that the sentence
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imposed is not appropriate under the Sentencing Code.” Id. (citation
omitted). That is, “the sentence violates either a specific provision of the
sentencing scheme set forth in the Sentencing Code or a particular
fundamental norm underlying the sentencing process.” Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f). In the present
case, Skundrich’s appellate brief contains the requisite Rule 2119(f) concise
statement.
First, Skundrich argues in his Rule 2119(f) statement that the trial
court abused its discretion by sentencing him outside the guidelines and to
the statutory maximum on every count and running the sentences
consecutively, essentially creating a life sentence for a non-homicide
offense. Essentially, through this argument, Skundrich is objecting to the
consecutive nature of his sentence.
“Although Pennsylvania’s system stands for individualized sentencing,
the court is not required to impose the ‘minimum possible’ confinement.”
Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation
omitted). The sentencing court “has the discretion to impose sentences
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consecutively or concurrently and, ordinarily, a challenge to this exercise of
discretion does not raise a substantial question.” Id. (citation omitted); see
also 42 Pa.C.S.A. § 9721(a). “The imposition of consecutive, rather than
concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.”
Moury, 992 A.2d at 171-72 (citation omitted).
Skundrich argues that the length of his sentence indicates that
“extreme circumstances” are present here, and therefore the trial court’s
imposition of consecutive, rather than concurrent, sentences raises a
substantial question. Skundrich bases this contention solely upon our holding
in Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011). In
Coulverson, we found that the trial court abused its discretion by
sentencing a sex offender to the statutory maximum on each count and
imposing the individual sentences consecutively, creating a virtual life
sentence. See id. at 148. Based upon the similarities of this case to the
facts in Coulverson, Skundrich argues that the mere fact that the trial court
imposed a life sentence renders the trial court’s aggregate sentence
unreasonable. See Appellant’s Brief, at 23.
Coulverson is plainly distinguishable. Our finding that the trial court
in Coulverson abused its discretion was based upon the trial court’s failure to
adequately explain its reasons for imposing its sentence. See Coulverson,
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34 A.3d at 143. Here, as discussed below, we find that the trial court
provided a lengthy and comprehensive explanation of Skundrich’s aggregate
sentence, and demonstrated that it fully considered the requirements of the
Sentencing Code.
We do not find that an “extreme circumstance” is present here. The
trial court acted within its discretion in imposing consecutive sentences.
Although the aggregate sentence is lengthy, it is nonetheless a legal
sentence. Given the egregious nature of the sexual abuse in this case, and
the resultant emotional harm that Skundrich inflicted on D.W., we agree
with the trial court’s conclusion that a sentence of 65 ½ years to 131 years
imprisonment is reasonable under the circumstances and not excessive.
Therefore, Skundrich’s first challenge to the discretionary aspects of his
sentence is without merit; it does not even raise a substantial question for
our review.
Finally, Skundrich argues in his Rule 2119(f) statement that the trial
court abused its discretion by imposing a sentence outside of the sentencing
guidelines without a meaningful consideration of the statutory factors.7
Specifically, Skundrich alleges that the trial court’s sentence was improper
because his sentence only reflected the seriousness of the crime,
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7
We note that while Skundrich’s sentences for burglary and terroristic
threats fall outside of the statutory guidelines, his sentences for involuntary
deviate sexual intercourse, indecent assault, false imprisonment or simple
assault are guideline range sentences.
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Skundrich’s criminal history, and the impact on the victim. A claim that a
sentencing court imposed a sentence outside of the guidelines without
specifying sufficient reasons presents a substantial question for review. See
Commonwealth v. Holiday, 954 A.2d 6, 10 (Pa. Super. 2008). Therefore,
we will review Skundrich’s arguments on the merits.
In imposing a sentence, the sentencing court must consider relevant
statutory factors, including “the protection of the public, gravity of an
offense in relation to impact on victim and community, and rehabilitative
needs of the defendant.” 42 Pa.C.S.A. § 9721(b). A sentencing court has
broad discretion in fashioning its sentence. See Commonwealth v. Walls,
926 A.2d 957, 962-63 (Pa. 2007). A sentencing court is required to consider
the sentence ranges set forth in the sentencing guidelines, but it is not
bound by them. See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118
(Pa. 2007). Moreover, a sentencing court may depart from the guidelines,
“if necessary, to fashion a sentence which takes into account the protection
of the public, the rehabilitative needs of the defendant, and the gravity of
the particular offense as it related to the impact on the life of the victim and
the community.” Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super.
2001).
Initially we note that the trial court reviewed the pre-sentence
investigation report. See N.T., Sentencing, 4/17/14 at 11. Where the trial
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court had the benefit of reviewing a pre-sentence investigation report, we
must
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal publication, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing
Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)). As the trial court
in this case had the benefit of a pre-sentence report, we must presume that
it considered all relevant sentencing factors and did not impose an
unreasonable sentence based solely on a limited number of factors.
Further, after review of the trial court’s statements at sentencing, we
are satisfied that the trial court adequately stated its reasons for imposing
the sentence as follows.
We have to determine how to sentence you. Do we
sentence you to [a] single sentence for each count, or do we
sentence you on each count, to run them concurrent or
consecutive; and we make that determination by looking at all of
the factors that are involved in this particular case, the facts in
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this brutal assault, your despicable conduct, and the damage you
have done to any innocent victim.
We look at the Guidelines; and, fortunately, the Guidelines
are advisory. They’re not mandatory. I don’t have to stick to
those guidelines. I can deviate from those Guidelines. There is
no question that this is a criminal that requires total
confinement, since you are a risk to society should you be free.
That, also, demonstrated that any sentence that I would
give you other than the one I am now would defalcate [sic] the
nature of the offenses that have been committed in this
particular violent act.
I’ve reviewed the Pre-sentence Report. I’ve reviewed the
Sexual Offender’s Report. I’ve reviewed the transcript; and I
remember this case vividly for the terror that you inflicted on
that particular victim; and in going further through the Pre-
Sentence Report, I note that your criminal activity started in
1987.
.....
You’re also, awaiting trial in Broward County Florida, 2012,
for kidnapping and sexual battery. Not a very good history, is it?
All of these factors make it clear that the sentence that I’m going
to impose upon you is correct, because you are needed [sic] to
be removed from society, and you are incapable of being
rehabilitated.
You have had the opportunity to be supervised by County
facilities and State facilities; and none of that has done anything
to curb your criminal behavior.
In light of all of these factors, I’m going to advise you that
your days of torturing women have now come to an end, as your
decades of incarceration are about to begin.
N.T., Sentencing, 4/17/14 at 10-14.
While it is clear that the trial court noted the seriousness of the crime,
Skundrich’s criminal history, and the impact on the victim in fashioning a
sentence, this is far from definitive proof that the court relied exclusively
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upon such findings in imposing sentence. In fact, we note that the court
remarked that it considered Skundrich’s rehabilitative needs and the
protection of the public in fashioning a sentence. Similarily, it is clear that
the court did not rely upon one reason for the departure from the sentencing
guidelines, but rather relied upon the seriousness of the crime, Skundrich’s
low probability of rehabilitation, Skundrich’s criminal history, and the impact
upon the victim and the community. These factors are permissible reasons
for deviating from the guideline ranges. See Eby, 784 A.2d at 206.
Therefore, we find that Skundrich’s final challenge to the discretionary
aspects of his sentence merits no relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/9/2016
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