J-S69039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DALE SAUNDERS :
:
Appellant : No. 497 MDA 2018
Appeal from the Judgment of Sentence February 15, 2018
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001310-2016
BEFORE: BENDER, P.J.E., LAZARUS, J., and MURRAY, J.
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 26, 2018
Dale Saunders (Appellant) appeals from the judgment of sentence
imposed after a jury found him guilty of indecent assault,1 unlawful contact
with a minor,2 and corruption of minors.3 After careful review, we affirm.
The trial court detailed the evidence presented at trial:
Shannon Peiffer testified that she is a mother of five children. At
the time of the October 24, 2017 trial, her two oldest were
[Victim], a 12-year-old daughter, and [N.P.], a 10-year-old son.
Ms. Peiffer separated from [the children’s] father and she met
[Appellant], who she began dating in 2008. They started living
together in Dauphin, and then moved in with Ms. Peiffer’s parents
at 26 Willow Street in Harrisburg. Ms. Peiffer, [Appellant],
[Victim][,] and [N.P.] lived there for approximately six months,
after which they purchased a trailer in Middletown. The four of
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1 18 Pa.C.S.A. § 3126(a)(7).
2 18 Pa.C.S.A. § 6318(a)(1).
3 18 Pa.C.S.A. § 6301(a)(1)(i).
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them lived together in Middletown until Ms. Peiffer and [Appellant]
broke up seven months later. They had lived together for a total
of one and one-half years at that point. [Appellant] moved in with
Ms. Peiffer’s parents after the split and Ms. Peiffer stayed in the
trailer.
Ms. Peiffer testified that [Victim] was three and [N.P.] was
one when she and [Appellant] began dating, and [Appellant] took
on a fatherly role in his relationship with the children. She and
[Appellant] had a good relationship after the break-up and stayed
very close for the sake of the children. There was no animosity
between them. The kids did not have a good relationship with
their biological dad and looked to [Appellant] as their father.
[Appellant] eventually moved out of Ms. Peiffer’s parents’ home
and moved into an apartment two houses down from them. The
apartment was above a house, with one bedroom, a kitchen, a
living room, and a bathroom.
[Appellant] still had contact with [Victim] and [N.P.], and
there were occasions when they would stay overnight with him.
Ms. Peiffer had not observed any problems with [Appellant’s]
interactions with [Victim]. Ms. Peiffer did recall an occasion when
[Victim] and [N.P.] spent the night at [Appellant’s] place around
Christmas time in 2012. [Appellant] had sent Ms. Peiffer a
message telling her that he had gifts for the kids and asked to
have them overnight. Ms. Peiffer and the kids were fine with that,
and Ms. Peiffer transported them to and from the home. [Victim]
did not say anything to Ms. Peiffer about any problems the night
they stayed there. [Appellant] did not live at that location much
longer after that visit; he relocated to the Mechanicsburg area and
[Victim] and [N.P.] did not visit him at that location.
Ms. Peiffer testified that when [Victim] was in fifth grade, in
December of 2015, she had a conversation with her about “good
touch/bad touch.” The conversation was prompted by [Victim’s]
request to go to a male teacher’s house with her classmates, and
Ms. Peiffer had expressed concern. Ms. Peiffer told [Victim] that
men can do inappropriate things to little girls, like touching them
in places that would not be okay. Ms. Peiffer testified that the
next day, [Victim] approached her and said, “Do you remember
what we were talking about yesterday?” Ms. Peiffer replied,
“About the teacher, about going to his home?” [Victim] responded
yes, and told her mom she had to tell her something. Ms. Peiffer
recalled [Victim] crying at this point and said, “Well [Appellant]
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did touch me. He touched me down there.” [Victim] pointed to
her vagina.
Ms. Peiffer did not question [Victim] further at that point
because she was “having a panic attack.” Ms. Peiffer called her
father, who told her to call the police. The police were called that
day, December 15, 2015, and Ms. Peiffer was told to take [Victim]
to the Children’s Resource Center for an interview. Prior to
[Victim] telling her about the incident with [Appellant], it had been
about six months since Ms. Peiffer and her kids had last seen him.
They had all been at a playground together. Prior to that, the last
time [Victim] spent time alone together was three years earlier. .
..
[Victim] was the next Commonwealth witness called to the
stand. [Victim] testified that she was twelve years old, a straight-
A student, member of National Junior Honor Society, band, and
math counts [sic]. She resides in Middletown with her mom,
mom’s boyfriend (Mr. Paduani), two younger sisters and two
younger brothers[.] [Victim] confirmed that she and her mom
and brother lived with [Appellant] at different residences,
including one in Dauphin and her current home in Middletown.
[Victim] testified that she got along well with [Appellant] and he
was like a dad to her. The last time [Victim] stayed with
[Appellant] overnight was when she was in second grade around
Christmastime. It was in the apartment he lived in near her
grandparents’ house. [Victim] and her brother [N.P.] were
sleeping in the living room in front of the TV on the floor, and
[Appellant] was in his bedroom. [Victim] testified that at some
point [Appellant] called [her] into his bedroom. She laid down
with him on his mattress and they started talking. [Victim’s] back
was facing [Appellant] and he started rubbing her stomach from
behind her. He had lifted her night gown to do so. She was
wearing a Hello Kitty night gown and underwear. [Victim]
attested that [Appellant] then started to move his hand down to
the front of her underwear, and said, “Don’t tell anyone that I’m
doing this because I can get in serious trouble.” His hand was not
inside her underwear, but on top of it, in front. He rubbed his
hand on her private area on top of her underwear. [Victim] recalls
[Appellant] wearing a tee shirt and boxers, and they were
underneath the bed covers at the time of the incident. [Victim]
remained still, facing the wall. When [Appellant] moved his hand
aside, she got up and went back into the living room, feeling
insecure and uncomfortable. [Victim] testified that she was afraid
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to tell her mom what happened because she feared [Appellant]
might hurt her. She eventually told her mom what happened
when she was in the fifth grade.
Detective Lee Tarasi of the Susquehanna Township Police
Department was the final Commonwealth witness. He testified
that once the police receive a complaint in reference to a potential
child abuse case, they will either contact Childline or it will get
turned over to the Criminal Investigation Division, which is
Detective Tarasi’s division. Two investigations take place
concurrently: Children and Youth as well as a law enforcement
investigation. The child is then forensically interviewed by a child
interview specialist at Children’s Resource center, and the
interview is recorded. In this case, Detective Tarasi got the case
and made the initial call to Childline. He was present for [Victim’s]
interview, but observed from another room by closed circuit
television. The interview took place on December 29, 2015. A
copy of such interview was admitted and published to the jury.
[Appellant] was the last to take the stand. He confirmed
the prior testimony that [Victim] and [N.P.] did not have a
relationship with their biological father, and he took on that role
with them. He testified that he was affectionate with the children,
encouraged them, disciplined them, and took care of them. He
said that several times during his relationship with Ms. Peiffer,
they spoke to the children together about appropriate versus
inappropriate touching. He and Ms. Peiffer broke up after
[Appellant] caught her cheating with Mr. Paduani, the father of
Ms. Peiffer’s younger children. After the break-up, [Appellant]
confirmed that he still saw [Victim] and [N.P.], and that such
contact was encouraged by Ms. Peiffer. [Appellant] attested that
he saw [Victim] after the night in question and it was not the last
time she stayed the night with him. [Appellant] moved back to
the Carlisle area to care for his mother and claimed that his
relationship with [Victim] and [N.P.] was still a good one.
[Appellant] testified that throughout the five years he spent with
the kids, he never had sexual thoughts about them, he never
touched [Victim] inappropriately, and was distraught when he was
being investigated for such allegations.
Trial Court Opinion, 6/6/18, at 2-6 (citations to notes of testimony omitted).
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On October 25, 2017, a jury found Appellant guilty of indecent assault,
unlawful contact with a minor, and corruption of minors. Appellant’s
sentencing was deferred by the trial court for the preparation of a pre-
sentence investigation report. On February 15, 2018, the trial court sentenced
Appellant to a total of one to seven years of incarceration followed by a five-
year probationary period.
Appellant filed a timely post-sentence motion, which the trial court
denied. Appellant filed this timely appeal on March 20, 2018. Both the trial
court and Appellant have complied with Pennsylvania Rule of Appellate
Procedure 1925.
Appellant presents two issues for our review:
1. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION IN
DENYING APPELLANT’S POST-SENTENCE MOTION BECAUSE THE
JURY VERDICT WAS SO CONTRARY TO THE WEIGHT OF THE
EVIDENCE AS TO SHOCK ONE’S SENSE OF JUSTICE WHERE THE
COMMONWEALTH FAILED TO PROVE BEYOND A REASONABLE
DOUBT THAT THE APPELLANT HAD INDECENT CONTACT WITH
THE COMPLAINING WITNESS, COMMUNICATED WITH HER FOR
THE PURPOSE OF ENGAGING IN PROHIBITED SEXUAL ACTIVITY,
OR CORRUPTED THE MORALS OF A MINOR?
2. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION WHERE
THE SENTENCE IMPOSED WAS MANIFESTLY EXCESSIVE AND
UNREASONABLE IN LIGHT OF THE APPELLANT’S REHABILITATIVE
NEEDS AND WHAT WAS NECESSARY TO PROTECT THE
COMMUNITY?
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Appellant’s Brief at 6.4
In his first issue, Appellant argues that his verdict was against the
weight of the evidence.5 This claim was properly preserved below,6 and we
therefore address the merits of Appellant’s argument. We have stated,
When the challenge to the weight of the evidence is predicated on
the credibility of trial testimony, our review of the trial court’s
decision is extremely limited. Generally, unless the evidence is so
unreliable and/or contradictory as to make any verdict based
thereon pure conjecture, these types of claims are not cognizable
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4 Appellant's Rule 1925(b) statement raises a sufficiency of evidence claim
not presented in his appellate brief. See Rule 1925(b) Statement, 4/6/18, at
2. However, because Appellant abandoned the claim in his brief, we will not
address it. See Appellant's Brief at 6; see also Commonwealth v. Briggs,
12 A.3d 291, 310 n.19 (Pa. 2011), cert. denied, 132 S. Ct. 267 (2011)
(refusing to address claim appellant raised with trial court but subsequently
abandoned in brief).
5 While substantively Appellant’s first issue attacks the weight of the
testimonial evidence against him, his statement of the issue purports to set
forth a sufficiency of the evidence argument as well. Appellant’s Brief at 6
(“[T]he Commonwealth failed to prove beyond a reasonable doubt that the
Appellant had indecent contact with the complaining witness, communicated
with her for the purpose of engaging in prohibited sexual activity, or corrupted
the morals of a minor[.]”). Appellant has waived any sufficiency of evidence
claims by failing to develop them as separate issues in his appellate brief. See
Commonwealth v. Gibbs, 981 A.2d 274, 281 (Pa. Super. 2009) (claim of
insufficient evidence for multiple convictions was underdeveloped, did not set
forth the elements of the crimes, did not argue which specific element was not
met, and thus was waived); Commonwealth v. Plante, 914 A.2d 916, 924
(Pa. Super. 2006) (“We have repeatedly held that failure to develop an
argument with citation to, and analysis of, relevant authority waives the issue
on review.”).
6 In compliance with Pennsylvania Rule of Criminal Procedure 607, Appellant
preserved his weight of the evidence claim for this Court’s review by initially
raising the claim in a motion for a new trial. Appellant’s motion was included
in his post-sentence motion filed with the trial court on February 23, 2018.
Appellant’s Post-sentence Motion, 2/23/18, at unnumbered 3-4.
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on appellate review. “Moreover, where the trial court has ruled
on the weight claim below, an appellate court’s role is not to
consider the underlying question of whether the verdict is against
the weight of the evidence.” “Rather, appellate review is limited
to whether the trial court palpably abused its discretion in ruling
on the weight claim.”
Gibbs, 981 A.2d at 282 (citations omitted). “[I]t is for the fact-finder to make
credibility determinations, and the finder of fact may believe all, part, or none
of a witness’s testimony.” Id. (citation omitted).
Appellant asserts that the Commonwealth’s witnesses were not credible
and therefore his convictions are against the weight of the evidence.
Specifically, Appellant avers that the Victim’s “failure to report this incident
within a reasonable time frame diminishes the weight of her testimony,” and
her credibility is severely negated by Appellant’s close relationship with the
Victim’s family and Ms. Peiffer “testifying that she never suspected [Appellant]
of hurting the children in any way.” Appellant’s Brief at 19-20. Appellant
therefore argues that the trial court erred in denying his motion for a new trial
because “the verdict was so contrary to the weight of the evidence as to shock
one’s sense of justice.” Id. at 18.
Appellant’s claim rests solely on the weight given to the Victim’s
testimony. See id. at 18-20. At trial, Victim testified that she was twelve
years old. N.T., 10/24/17, at 57. She testified that the last time she spent
the night at Appellant’s apartment was when she was in the second grade.
Id. at 62. That night, Appellant called her into his bedroom and proceeded to
rub the Victim’s vaginal area with his hand on the outside of her underwear.
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Id. at 64-66, 69. Victim further testified that Appellant remarked: “Don’t tell
anyone that I’m doing this because I can get in serious trouble.” Id. at 67.
When asked about the delay in reporting, the Victim testified that she was
scared Appellant would hurt her if she reported the incident. Id. at 72-73.
However, in the fifth grade, approximately three years later, Victim testified
that she reported the incident to her mother. Id. at 73.
To allow Appellant “to prevail on a challenge to the weight of the
evidence, the evidence must be so tenuous, vague and uncertain that the
verdict shocks the conscience of the court.” Commonwealth v. Talbert, 129
A.3d 536, 545 (Pa. Super. 2016) (internal citation omitted). Appellant takes
issue with the delay in which the Victim reported the sexual abuse to her
mother. Our Supreme Court has specifically held that such a delay is relevant
to the credibility of a victim’s testimony. Commonwealth v. Snoke, 580
A.2d 295, 298 (Pa. 2004) (citing Commonwealth v. Lane, 555 A.2d 1246,
1250-51 (Pa. 1989)) (“[U]nquestionably, a prompt complaint is a factor which
must be assessed with all of the other pertinent evidence bearing upon the
question of the credibility of the complaining witness . . . consideration should
be given to factors inherent in cases involving minor victims which may explain
the delay without reflecting unfavorably on the minor witness’ credibility.”).
Moreover, we have held that a lack of prompt complaint is something to
consider, but “by itself it doesn't mean that the event didn't occur.”
Commonwealth v. Jones, 672 A.2d 1353, 1358 (Pa. Super. 1996)
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(emphasis in original). “[T]he law is that lack of a prompt complaint should
cause the jury to look more critically upon the credibility of the victim.” Id.
Instantly, Appellant is asking this Court to re-weigh the testimonial
evidence presented at trial and replace the credibility determinations of the
jury with our own. That is not our function as an appellate court. Talbert,
129 A.3d at 546 (internal citation omitted). The jury found that the
Commonwealth’s evidence proved Appellant committed indecent assault,
unlawful contact with a minor, and corruption of minors. Appellant points to
no evidence that the verdicts are “so contrary as to shock the conscience.”
Id. Accordingly, the trial court did not abuse its discretion in denying
Appellant’s weight claim.
In his second issue, Appellant challenges the discretionary aspects of
his sentence, averring that the “sentence imposed by the sentencing court is
manifestly excessive such that it constitutes too severe a punishment where
the court failed to consider that the Appellant has no prior record and was a
productive member of society.” Appellant’s Brief at 22.
“The right to appellate review of the discretionary aspects of a sentence
is not absolute, and must be considered a petition for permission to appeal.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1265 (Pa. Super. 2014),
appeal denied, 104 A.3d 1 (Pa. 2014). “An appellant must satisfy a four-
part test to invoke this Court’s jurisdiction when challenging the discretionary
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aspects of a sentence.” Id. We conduct this four-part test to determine
whether:
(1) the appellant preserved the issue either by raising it at the
time of sentencing or in a post[-]sentence motion; (2) the
appellant filed a timely notice of appeal; (3) the appellant set forth
a concise statement of reasons relied upon for the allowance of
appeal pursuant to Pa.R.A.P. 2119(f); and (4) the appellant raises
a substantial question for our review.
Commonwealth v. Baker, 72 A.3d 652, 662 (Pa. Super. 2013) (citation
omitted), appeal denied, 86 A.3d 231 (Pa. 2014). “A defendant presents a
substantial question when he sets forth a plausible argument that the
sentence violates a provision of the sentencing code or is contrary to the
fundamental norms of the sentencing process.” Commonwealth v. Dodge,
77 A.3d 1263, 1268 (Pa. Super. 2013) (quotations and citations omitted),
appeal denied, 91 A.3d 161 (Pa. 2014).
Appellant has complied with the first three prongs of this test by raising
his discretionary sentencing claims in a timely post-sentence motion, filing a
timely notice of appeal, and including in his brief a Rule 2119(f) concise
statement. See Appellant’s Brief at 15-17. Therefore, we examine whether
Appellant presents a substantial question for review.
Appellant argues that the trial court imposed an excessive sentence
where it failed to consider Appellant’s criminal history and societal
contributions. Appellant’s Brief at 22. This argument presents a substantial
question. See Dodge, 77 A.3d at 1272 (“[A]n excessive sentence claim, in
conjunction with an assertion that the court did not consider mitigating
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factors, raise[s] a substantial question.”). We thus review Appellant’s
sentencing claim mindful of the following:
Sentencing is a matter vested in the sound discretion of the
sentencing judge. The standard employed when reviewing the
discretionary aspects of sentencing is very narrow. We may
reverse only if the sentencing court abused its discretion or
committed an error of law. A sentence will not be disturbed on
appeal absent a manifest abuse of discretion. In this context, an
abuse of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law, exercised
its judgment for reasons of partiality, prejudice, bias or ill will, or
arrived at a manifestly unreasonable decision. We must accord
the sentencing court’s decision great weight because it was in the
best position to review the defendant’s character, defiance or
indifference, and the overall effect and nature of the crime.
Commonwealth v. Cook, 941 A.2d 7, 11-12 (Pa. Super. 2007) (internal
quotations and citations omitted).
The relevant portion of 42 Pa.C.S.A. § 9721(b) states:
In selecting from the alternatives set forth in subsection (a), the
court shall follow the general principle that the sentence imposed
should call for confinement that is consistent with the protection
of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the
rehabilitative needs of the defendant. . . . In every case in which
the court imposes a sentence for a felony or misdemeanor . . . the
court shall make as a part of the record, and disclose in open court
at the time of sentencing, a statement of the reason or reasons
for the sentence imposed.
Id.
This Court has also held, “[w]hen a sentencing court has reviewed a
pre[-]sentence investigation report, we presume that the court properly
considered and weighed all relevant factors in fashioning the defendant’s
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sentence.” Baker, 72 A.3d at 663 (citing Commonwealth v. Fowler, 893
A.2d 758, 767 (Pa. Super. 2006)). Additionally:
[i]n imposing sentence, the trial court is required to consider the
particular circumstances of the offense and the character of the
defendant. The trial court should refer to the defendant’s prior
criminal record, age, personal characteristics, and potential for
rehabilitation. However, where the sentencing judge had the
benefit of a presentence investigation report, it will be presumed
that he or she was aware of the relevant information regarding
the defendant’s character and weighed those considerations along
with mitigating statutory factors.
Fowler, 893 A.2d at 767-68 (citing Commonwealth v. Boyer, 856 A.2d 149,
154 (Pa. Super. 2004)) (some internal citations omitted).
At the outset of the February 15, 2018 hearing, the Commonwealth
noted that Appellant’s sentencing was deferred for the preparation of a pre-
sentence investigation report. N.T., 2/15/18, at 2. The trial court also
acknowledged that “a pre-sentence report was prepared and considered.”
Trial Court Opinion, 6/6/18, at 11. Before imposing Appellant’s sentence in
open court, the trial court commented:
[T]his Court has sat now for well over 20 years and we’ve
seen all types of crime that’s been committed in various degrees
and levels. And in this particular case there’s not the penetration
types of concerns. And the first view of the case is although it is
a victim crime, although it is a heinous crime, it is not as
outrageous as it could have been. That doesn’t mitigate it, it just
tries to put it in the light of trying to balance where, when you’re
weighing the rehabilitative needs of the defendant, which you
have to do, and where you weigh the circumstances under which
it occurred, each crime occurs. And when you weigh the crime
itself you have a type of sliding scale.
What this case brings out, and I think it widened my eyes a
little more than my sometimes more callus objective attempt to
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analyze criminal activity, is impact. Here the impact had a
reverberating reaction that all too often is ignored by the [c]ourt.
And I dare say the impact statement -- and noting the trial as it
went -- became really apparent.
N.T., 2/15/18, at 8-9.
Based on our review of the record – including the notes of testimony
from the sentencing hearing and the above remarks by the trial court – we
conclude that the trial court considered the appropriate factors when imposing
Appellant’s sentence. The trial court specifically discussed the severity of
Appellant’s crimes, the rehabilitative needs of Appellant, and victim impact.
Ultimately, and in its discretion, the trial court determined that Appellant’s
convictions warranted a one-year minimum sentence. Thus, we find no merit
to Appellant’s second issue.
Judgment of Sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/26/2018
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