Com. v. Marotta, M.

J. A19003/16

NON -PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.

MANFRED PHILLIP MAROTTA, No. 3407 EDA 2015

Appellant

Appeal from the Judgment of Sentence, October 8, 2015,
in the Court of Common Pleas of Bucks County
Criminal Division at No. CP- 09 -CR- 0001335 -2015

BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ.

MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 08, 2016

Manfred Phillip Marotta appeals from the October 8, 2015 aggregate

judgment of sentence of 4 to 23 months' imprisonment, followed by a

consecutive term of 2 years' probation, after he was found guilty of two

counts of indecent assault-- without the complainant's consent.' After careful

review, we affirm.

The trial court summarized the relevant facts and procedural history of

this case as follows:

The charges against [a]ppellant stemmed from
his conduct towards two alleged victims; E.S., his
niece, and H.M., a former manager at one of the
Dunkin Donuts shops owned by [a]ppellant. At trial,

* Former Justice specially assigned to the Superior Court.

1 18 Pa.C.S.A. § 3126(a)(1).
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both E.S. and H.M. testified as to [a]ppellant's
conduct towards them.

E.S. testified that [a]ppellant started giving
backrubs and massages to her when she was 18 or
19 years old, and that this eventually progressed
into more intimate contact. (Notes of testimony,
6/29/15 at 27 -28.) E.S. lived with [a]ppellant, and
relied on him for income and stability, as she also
worked at one of his Dunkin Donuts shops. (Id. at
20 -21, 29 -35.) At the bench trial, E.S. testified:

I would come down after work and I
would be stressed out, and he would
want to calm me down or find an answer
to help me relax or de- stress, and he
would say, come over here, you look
stressed out, you need to relax. And
then he would rub my back, and then
progressively it got to [sic] pull my pants
down and he would rub my butt. And
then sometimes he would like spread my
legs apart and rub in between my thighs,
and a few of the times he had put his
fingers in my vagina and touched around
my vagina and inside of it.

(Id. at 28.) E.S. also stated that she never wanted
her uncle to touch her in a sexual manner, and that
she was intimidated by his physical size. (Id. at 29,
32.) Further, E.S. stated that [a]ppellant touched
her vagina about ten times and put his fingers inside
of her between five and six times. (Id. at 34.)

E.S. decided to come forward about [a]ppellant
touching her when she heard that he may have
touched another worker at Dunkin Donuts, H.M., and
felt that her coming forward could help prevent
anyone else from being victimized in the future. (Id.
at 36 -37.) E.S. testified that she never felt like her
uncle's touching of her was okay or right. (Id. at
44 -45.) Further, E.S. stated that she never wanted
her uncle to touch her in a sexual way and there
were times where she felt like she couldn't just get

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up and walk away, largely due to the potential
consequences of her doing so, i.e. not having a place
to live, not having a job, not having support, and
losing her family. (Id. at 119 -120.)

H.M. also testified at trial on June 29, 2015.
H .M.was a manager at Dunkin Donuts after E.S.
held this position. (Id. at 132.) As manager of one
of [a]ppellant's Dunkin Donuts, H.M. had to drop
money off at [a]ppellant's house at the end of every
shift, and she was not comfortable with this
arrangement. (Id. at 139.) H.M. testified that there
were two incidents where [a]ppellant touched her.
(Id. at 140 -141.) In regard to the first incident,
H .M. testified:

Well, the one night I went to his house
for training and I was sitting next to him
in front of the computer, and I felt really
uncomfortable because it was just me
and him at the house, first of all, so I felt
like that was uncomfortable and
unnecessary. And then I was sitting
training with him, and he was rubbing
the inside of my leg while I was sitting
next to him training.

(Id. at 141.) H.M. clarified that [a]ppellant was
rubbing "the inside [of her legs] towards like where
[her] vagina is." (Id.)

In regard to the second incident, H.M. testified
that she went to [a]ppellant's house "to drop off the
money after [her] shift at work, and [she] put it on
the table, and then [[a]ppellant] looked at [her] and
told [her] that [she] looked stressed out ... [and]
then he pointed - he brought [her] over to his
bedroom and pointed to his bed and said, lay (sic)
down." (Id. at 145.) H.M. stated that she "didn't
feel like [she] had a choice [but to listen to
[a]ppellant] because [she was] much smaller than
him and much weaker, so [she] was intimidated, and
[she] did it." (Id.) H.M. went on to explain that
after [a]ppellant told her to lay (sic) face down on

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the bed, he asked to take her shirt off, asked to take
her bra off, started massaging her, and eventually
pulled her pants down and started massaging the
skin of her butt under her underwear. (Id. at 146-
149.) Appellant was breathing deeply in a sexual
manner the entire time, and H.M. stated that she
was "very intimidated" and "very scared." (Id. at
148, 165, 176.) H.M. elaborated that:

[She] felt like if [she] would have gotten
up and ran out of the house, something
might have happened to [her]. [She]
didn't feel safe. It was only [her] and
[[a]ppellant] in the house, and [she] was
under pressure. [She] didn't know how
to act, [she] was only 19 years old
... [.]
(Id. at 147.) It was also noted by H.M.:

I didn't want any of that to ever happen
to me. I wouldn't have ever asked for
that, and I would never want some man,
who is that much older and who's my
boss to want to be treating me like that.
I would never want that.

(Id. at 183.)

The second day of trial was on June 30, 2015,
and [a]ppellant's counsel, Mr. Geday, started off the
proceedings by raising a corpus delicti issue in
regard to evidence that he anticipated would be
introduced by the Commonwealth. (Notes of
testimony, 6/30/15 at 4 -5.) Appellant's counsel
argued that the evidence presented so far in the trial
was insufficient to establish that the crimes charged
had occurred, and therefore that no subsequent
statements by [a]ppellant should be admissible and
considered. (Id.) In response, the [trial c]ourt
found that based on the record there was sufficient
evidence to warrant testimony involving any
statements that [a]ppellant may have made. (Id. at
7.)

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On the second day of trial there was testimony
from Detectives David Kemmerer and Robert McLeod
regarding statements made by [a]ppellant. (See id.
at 2.) Detective McLeod read into the record an
apology letter written by [a]ppellant to E.S., in which
[a]ppellant stated that he admitted to touching her.
(Id. at 50.) Further, Detective Kemmerer testified
as to his interviews with [a]ppellant, during which
[a]ppellant admitted to touching E.S.'s vagina and
stated that he was sexually attracted to her. (Id. at
78 -79.)

At the close of trial, before beginning
argument, the [trial c]ourt, after hearing all of the
evidence, asked if the Commonwealth was still
alleging the same time frames as stated on the
criminal information with respect to the charges
brought in regard to H.M. (Id. at 188.) The
Commonwealth initially alleged a timeframe between
January and the end of March of 2013. In response
to the [trial c]ourt's inquiry, and based on H.M.'s
testimony, the Commonwealth requested to be
granted leave to amend the timeframe on the
criminal information to include April of 2013. (Id.)
Appellant's counsel objected to this, saying that it
was too late for the Commonwealth to make
modifications to the criminal information after
evidence had closed, and that allowing amendment
amounted to an impermissible retroactive change to
the charges. (Id. at 188 -189.) The Commonwealth
countered that criminal informations are typically
broadly construed, that the change did not impact an
element of the offense, and that the Commonwealth
was not seeking to substantively change any of the
crimes being charged. (Id.) The [trial c]ourt
ultimately stated that amendment of criminal
informations is generally allowed as long as there is
no inherent unfairness to the defendant and that
under the circumstances the Commonwealth would
be allowed to amend the criminal information to
include April of 2013 as a potential time period with
respect to the counts regarding H.M. (Id. at 190-
191.)

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Trial court opinion, 12/24/15, at 2 -5 (citation formatting corrected;

footnotes omitted).

Appellant was charged with multiple counts of aggravated indecent

assault and indecent assault in connection with these incidents.2 On

June 29, 2015, appellant waived his right to a jury and proceeded to a bench

trial. Following a two -day trial, appellant was found guilty of two counts of

indecent assault -- without the complainant's consent on June 30, 2015.

Appellant was found not guilty of the remaining charges. As noted,

appellant was sentenced to an aggregate term of 4 to 23 months'

imprisonment, followed by a consecutive 2 years' probation, on October 8,

2015. At sentencing, the trial court directed that appellant:

[(1)] have contact with the victims or their
no
families[;] ...
[(2)] obtain an independent
psychological evaluation geared toward looking into
predatory sexual behavior and ...
abide by all the
treatment conditions following that
recommendation[; and (3)] have no contact with
anyone under 22 years of age which is unsupervised
and where you will be alone with that person.

Notes of testimony, 10/8/15 at 74 -75.

2 Specifically, appellant was charged with one count each of 18 Pa.C.S.A.
§§ 3125(a)(1) (aggravated indecent assault -- without the complainant's
consent), 3125(a)(2) (aggravated indecent assault -- forcible compulsion),
3125(a)(3) (aggravated indecent assault -- threat of forcible compulsion), and
two counts each of 18 Pa.C.S.A. §§ 3126(a)(1) (indecent assault -- without
the complainant's consent), 3126(a)(2) (indecent assault -- forcible
compulsion), and 3126(a)(3) (indecent assault -- threat of forcible
compulsion).

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Appellant did not file any post- sentence motions. On November 9,

2015, appellant filed a timely notice of appeal. On November 16, 2015, the

trial court ordered appellant to file a concise statement of errors complained

of on appeal pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).

Appellant filed his Rule 1925(b) statement on December 7, 2015, and the

trial court issued its Rule 1925(a) opinion on December 24, 2015.

Appellant raises the following issues for our review:

I. Whether the Honorable Trial Court erred by
finding [a]ppellant guilty of Indecent Assault
when the Commonwealth failed to Prove
Beyond a Reasonable Doubt all Requisite
Elements of Indecent Assault as Defined in
18 Pa.C.S.A. § 3126(a)(1), specifically that
[a]ppellant ever had indecent contact with the
complaining witness or that such contact was
without consent?

II. Whether the Honorable Trial Court erred by
admitting into evidence and considering
[a]ppellant's statements prior to the
Commonwealth establishing the corpus
delicti of a crime, or the fact that a crime
occurred at all?

III. Whether the Honorable Trial Court erred by
permitting the Commonwealth to amend the
Bills of Information after the trial concluded to
conform to the evidence that was presented
during trial, i.e., to extend the permissible date
range by a month, especially because
[a]ppellant was never on notice of the new
date range prior to trial?

IV. Whether the Honorable Trial Court erred by
imposing a condition of sentence upon
[a]ppellant that he have no unsupervised
contact with anyone under the age of 22?

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Appellant's brief at 4 (numeration corrected).

Appellant first argues that there was insufficient evidence to sustain

his conviction for two counts of indecent assault because the Commonwealth

failed to prove that he "had indecent contact with the complaining witnesses

without their consent." (Id. at 13, 15 -19.) This claim is meritless.

In reviewing the sufficiency of the evidence,
we must determine whether the evidence admitted
at trial and all reasonable inferences drawn
therefrom, viewed in the light most favorable to the
Commonwealth as verdict winner, is sufficient to
prove every element of the offense beyond a
reasonable doubt. As an appellate court, we may
not re -weigh the evidence and substitute our
judgment for that of the fact -finder. Any question of
doubt is for the fact -finder unless the evidence is so
weak and inconclusive that as a matter of law no
probability of fact can be drawn from the combined
circumstances.

Commonwealth v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal
denied, 4 A.3d 1054 (Pa. 2010) (citations omitted).

A person will be found 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 person does so without the
complainant's consent[.]

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18 Pa.C.S.A. § 3126(a)(1). The phrase "indecent contact" is defined as "any

touching of the sexual or other intimate parts of the person for the purpose

of arousing or gratifying sexual desire, in either person." Id. § 3101.

Viewing the evidence in the light most favorable to the

Commonwealth, the verdict winner, we find that there was ample evidence

for the trial court, as fact -finder, to conclude that appellant was guilty of

indecent assault -- without the complainant's consent. At trial, E.S. testified

that appellant touched her vagina on approximately ten occasions, and "put

his fingers inside of [her]" between five or six times. (Notes of testimony,
6/29/15 at 34.) E.S. indicated that she did not want appellant to touch her

in this sexual manner and did not feel it was "okay." (Id. at 29, 44 -45.)

H.M., in turn, testified that appellant had rubbed or massaged the inside of

her legs, back, and buttocks on multiple occasions. (Id. at 140 -141, 148-

149.) H.M. further testified that she did not want appellant to engage in

such "inappropriate" conduct, noting that "I would never want some man,
who is that much older and who's my boss to want to be treating me like

that[.]" (Id. at 183.) Moreover, both E.S. and H.M. testified that they were

intimidated by appellant because he was larger in size and held a position of

authority over them. (Id. at 30 -32, 176, 183 -184.)

Additionally, the Commonwealth introduced the testimony of

Detectives David Kemmerer and Robert McLeod regarding various

inculpatory statements appellant made following his arrest. Specifically,

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Detective McLeod read into the record an apology letter written by appellant

to E.S., wherein he stated that he touched E.S. (Notes of testimony,

6/30/15 at 50.) Detective Kemmerer, in turn, testified that during his

interview of appellant, appellant acknowledged touching E.S.'s vagina and

stated that he was sexually attracted to her. (Id. at 78 -79.)

It is well established that the testimony of a complainant, even

standing alone, is sufficient to convict in sex offense prosecutions. See

Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa.Super. 2005).
Based on the totality of evidence presented in the case sub judice, we

conclude that appellant's claim that there was insufficient evidence to

sustain his convictions for indecent assault must fail.

Appellant next argues that the trial court erred in admitting his

inculpatory statements because the Commonwealth failed to establish "the

corpus delicti of a crime, or the fact that a crime occurred at all."

(Appellant's brief at 20.) We disagree.

Our standard of review for a challenge to the corpus delicti rule is

well settled.

The corpus delicti rule is a rule of evidence.
Our standard of review on appeals challenging an
evidentiary ruling of the trial court is limited to a
determination of whether the trial court abused its
discretion. The corpus delicti rule places the
burden on the prosecution to establish that a crime
has actually occurred before a confession or
admission of the accused connecting him to the
crime can be admitted. The corpus delicti is
literally the body of the crime; it consists of proof

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that a loss or injury has occurred as a result of the
criminal conduct of someone.

Commonwealth v. Hernandez, 39 A.3d 406, 410 -411 (Pa.Super. 2012),
appeal denied, 63 A.3d 1244 (Pa. 2013) (citation, internal quotation

marks, and emphasis omitted).

Courts in this Commonwealth have recognized that Pennsylvania law

requires courts to apply the corpus delicti rule in two distinct phases:

In the first phase, the court determines whether the
Commonwealth has proven the corpus delicti of the
crimes charged by a preponderance of the evidence.
If so, the confession of the defendant is admissible.
In the second phase, the rule requires that the
Commonwealth prove the corpus delicti to the
factfinder's satisfaction beyond a reasonable doubt
before the factfinder is permitted to consider the
confession in assessing the defendant's innocence or
guilt.

Commonwealth v. Otterson, 947 A.2d 1239, 1249 (Pa.Super. 2008),
appeal denied, 958 A.2d 1047 (Pa. 2008), cert. denied, 556 U.S. 1238
(2009), quoting Commonwealth v. Reyes, 870 A.2d 888, 894 n.4 (Pa.

2005).

Instantly, we discern no abuse of discretion on the part of the trial

court in rejecting appellant's corpus delicti claim. The record establishes

that the corpus delicti of the indecent assaults was sufficiently proven by

the Commonwealth prior to the admittance of appellant's inculpatory

statements. As discussed, the Commonwealth sought to introduce the

inculpatory statements at issue, over appellant's objection, on June 30,
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2015, the second day of trial. Prior to this time period, the trial court had

already heard extensive testimony from both E.S. and H.M. on the first day

of trial that was consistent with the indecent assaults having occurred.

Accordingly, we conclude that the corpus delicti of the indecent
assaults was sufficiently proven and the trial court did not abuse its

discretion in admitting appellant's inculpatory statements into evidence.

Additionally, as the evidence was sufficient to establish beyond a reasonable

doubt that appellant had indecent contact with both E.S. and H.M. without

their consent, we conclude that the trial court did not abuse its discretion in

considering appellant's admissions in reaching its verdict. See Otterson,

947 A.2d at 1249.

Appellant next argues that the trial court "erred by permitting the

Commonwealth to amend the Bills of Information after the trial concluded to

conform to the evidence that was presented during trial, i.e., to extend the

permissible date range by a month, especially because [he] was never on

notice of the new date range prior to trial." (Appellant's brief at 21.)

Amendments to a criminal information are governed by Pennsylvania

Rule of Criminal Procedure 564, which provides as follows:

The court may allow an information to be amended
when there is a defect in form, the description of the
offense(s), the description of any person or any
property, or the date charged, provided the
information as amended does not charge an
additional or different offense. Upon amendment,
the court may grant such postponement of trial or
other relief as is necessary in the interests of justice.

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Pa.R.Crim.P. 564.

We have explained that the purpose of Rule 564 is to inform a

defendant of the charges filed against him so that he may properly prepare a

defense. Commonwealth v. Sinclair, 897 A.2d 1218, 1223 (Pa.Super.
2006). Allowing the amendment of the information is not proper where

doing so prejudices the defendant. Id.
This court must consider the following factors in determining whether

an amendment results in prejudice to the defendant:

(1) whether the amendment changes the factual
scenario supporting the charges; (2) whether the
amendment adds new facts previously unknown to
the defendant; (3) whether the entire factual
scenario was developed during a preliminary
hearing; (4) whether the description of the charges
changed with the amendment; (5) whether a change
in defense strategy was necessitated by the
amendment; and (6) whether the timing of the
Commonwealth's request for amendment allowed for
ample notice and preparation.

Commonwealth v. Veon, 109 A.3d 754, 768 (Pa.Super. 2015), appeal
granted in part, 121 A.3d 954 (Pa. 2015) (citation omitted).

Upon review, we agree with the trial court's determination that

appellant was not prejudiced by the Commonwealth's decision to amend the

bill of information in this case. The trial court's December 24, 2015 opinion

comprehensively discusses and properly disposes of this issue, and

therefore, we adopt the following rationale of the trial court as our own:

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Here, it was not error to allow the
Commonwealth to amend the bill of information to
extend the timeframe in which the incidents were
alleged to have occurred by a period of one month,
because the amendment did not change or add any
charges brought against [a]ppellant, and therefore
did not prejudice [a]ppellant as he was always on
notice of the charges against him. Just as in
[Commonwealth v. 1.F., 800 A.2d 942 (Pa.Super.
2002), appeal denied, 812 A.2d 1228 (Pa. 2002)],
in the present case the Commonwealth amended the
bill of information to "merely change[] the date" by a
period of one month, and "neither additional charges
nor a different set of events were added to the
information ... [and] the offenses set forth in the
amendment[] involved the same ... elements and
the same factual situations as specified in the
original information[]." [Id. at 945.] Accordingly,
we suggest that it was not error to allow the
Commonwealth to amend the bill of information to
extend the time frame alleged in regard to the
incidents involving H.M. by a period of one month.

Trial court opinion, 12/24/15 at 13 (citation formatting amended).

Lastly, appellant argues that the trial court "erred by imposing a

condition of sentence upon [a]ppellant that he have no unsupervised contact

with anyone under the age of 22." (Appellant's brief at 23 (capitalization

omitted).) Appellant avers this condition "is unreasonable because it is so

broad, unrelated to [his] rehabilitative needs ..., and unduly restricts his

liberty." (Id. at 25.) Where an appellant challenges the discretionary

aspects of his sentence, as is the case here, the right to appellate review is

not absolute. See Commonwealth v. Allen, 24 A.3d 1058, 1064

(Pa.Super. 2011). Rather, an appellant challenging the discretionary

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aspects of his sentence must invoke this court's jurisdiction by satisfying the

following four -part test:

(1) whether the appeal is timely; (2) whether
Appellant preserved his issue; (3) whether
Appellant's brief includes a concise statement of the
reasons relied upon for allowance of appeal with
respect to the discretionary aspects of sentence; and
(4) whether the concise statement raises a
substantial question that the sentence is appropriate
under the sentencing code.

Commonwealth v. Carrillo -Diaz, 64 A.3d 722, 725 (Pa.Super. 2013)
(citations omitted).

"[I]ssues challenging the discretionary aspects of sentence must be

raised in a post- sentence motion or by presenting the claim to the trial court

during the sentencing proceedings. Absent such efforts, an objection to a

discretionary aspect of a sentence is waived." Commonwealth v.
Barnhart, 933 A.2d 1061, 1066 -1067 (Pa.Super. 2007) (citations and

internal quotation marks omitted); see also Pa.R.A.P. 302(a) (stating,

"[i]ssues not raised in the lower court are waived and cannot be raised for

the first time on appeal[] ").

Instantly, appellant failed to file a post- sentence motion raising his

sentencing claim, or point to the place in the record that indicates he

objected to the sentencing condition that he was to have no unsupervised

contact with anyone under the age of 22. Consequently, we find that

appellant's final claim is waived. See Barnhart.

Judgment of sentence affirmed.

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Judgment Entered.

Joseph D. Seletyn,
Prothonotary

Date: 11/8/2016

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