Com. v. Shaffer, N.

J-S79017-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
NATHAN EDWARD SHAFFER :
:
Appellant : No. 832 MDA 2018

Appeal from the Judgment of Sentence January 3, 2018
In the Court of Common Pleas of Lycoming County Criminal Division at
No(s): CP-41-CR-0000585-2014

BEFORE: SHOGAN, J., OLSON, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED FEBRUARY 04, 2019

Appellant, Nathan Edward Shaffer, appeals from the judgment of

sentence following his jury trial convictions for one count of incest and two

counts each of rape of a child, statutory sexual assault, involuntary deviate

sexual intercourse (IDSI) with a child, sexual assault, corruption of minors,

and aggravated indecent assault of a complainant less than 13 years of age.1

We affirm.

The trial court briefly summarized this case as follows:

[A] jury trial was held on May 22 and 23, 2017. The jury found
[Appellant] guilty of [the aforementioned crimes]. The crimes
occurred [over the course of multiple years] against two separate
minor females, M.G. and B.W.[, one of which is Appellant’s
biological niece.]

____________________________________________

1 18 Pa.C.S.A. §§ 4302, 3121(c), 3122.1, 3123(b), 3124.1, 6301(a)(1),
3125(a)(7), respectively.
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On January 3, 2018, the [trial] court sentenced [Appellant] to an
aggregate term of 32 to 65 years’ incarceration in a state
correctional institution, consisting of 20 to 40 years on Count 1,
rape of a child; a consecutive 10 to 20 years on Count 2, rape of
a child; and a consecutive [two] to [five] years on Count 15,
incest.

Trial Court Opinion, 5/14/2018, at 1. This timely appeal resulted.2

On appeal, Appellant raises the following issues for our review:

I. Did the [trial] court err in sustaining the Commonwealth’s
[o]bjection to the introduction of character evidence,
pursuant to Pa.R.[E.] 404, which is relevant to the charges
against Appellant?

II. Did the [trial] court err in sustaining the Commonwealth’s
[o]bjection to the introduction of testimony pertaining to
“business records” kept by Children and Youth Services
[(CYS)], pursuant to Pa.R.[E.] 803(b) and 902(11)?

III. Did the trial court abuse its discretion by imposing 30 to 60
years [of] confinement for [r]ape of a [c]hild when []
Appellant had no prior history of violent or similar crimes,
and a prior record score of zero (0); and was the aggregate
sentence imposed manifestly excessive and unduly harsh
considering Appellant’s history, the nature of the offenses,
and [Appellant’s] rehabilitative needs?

Appellant’s Brief at 4.

____________________________________________

2 Appellant filed a timely post-sentence motion on January 10, 2018. The trial
court permitted Appellant to file an amended post-sentence motion on March
1, 2018. In sum, Appellant challenged two evidentiary rulings and sought
reconsideration of his sentence. On April 23, 2018, the trial court held a
hearing on Appellant’s post-sentence motions. The trial court denied relief by
opinion and order entered on May 14, 2018. Appellant filed a timely notice of
appeal on May 16, 2018. On May 18, 2018, the trial court filed an order
directing Appellant to file a concise statement of errors complained of on
appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied timely on May 29,
2018. On August 8, 2018, the trial court filed an opinion pursuant to Pa.R.A.P.
1925(a), relying upon its earlier decision filed on May 14, 2018.

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Appellant’s first two issues challenge the trial court’s evidentiary rulings.

On such issues, our Supreme Court has set forth our standard of review as

follows:

The standard of review governing evidentiary issues is settled.
The decision to admit or exclude evidence is committed to the
trial court's sound discretion, and evidentiary rulings will only be
reversed upon a showing that a court abused that discretion. A
finding of abuse of discretion may not be made merely because
an appellate court might have reached a different conclusion, but
requires a result of manifest unreasonableness, or partiality,
prejudice, bias, or ill-will, or such lack of support so as to be
clearly erroneous. Matters within the trial court's discretion are
reviewed on appeal under a deferential standard, and any such
rulings or determinations will not be disturbed short of a finding
that the trial court committed a clear abuse of discretion or an
error of law controlling the outcome of the case.

Commonwealth v. Koch, 106 A.3d 705, 710–711 (Pa. 2014) (internal

citations and quotations omitted).

In his first issue presented, Appellant claims that the trial court erred in

sustaining the Commonwealth’s objection to character witness testimony at

trial. Appellant’s Brief at 12-15. More specifically, Appellant claims the trial

court erred in precluding his sister from answering a question regarding “his

reputation around children” as generally known in the community. Id.; see

also N.T., 5/22/2017, at 135. Appellant claims that “[w]hile the

Commonwealth was correct” that character testimony may be presented

regarding “lawfulness, truthfulness, [and one’s] character for peace[,]” he was

also permitted to provide evidence of “a person’s good moral character,

chastity, and other relevant traits related to the crimes charged.” Id. at

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14-15. Because Appellant was charged with crimes pertaining to children, he

argues that “[i]t seems quite apparent that the community consensus of

Appellant’s behavior around children could not be any more relevant.” Id. at

15.

Regarding character evidence, our Court has recently reiterated:

As a general rule, evidence of a person's character may not be
admitted to show that individual acted in conformity with that
character on a particular occasion. Pa.R.E. 404(a). However,
Pennsylvania Rule of Evidence 404(a)(1) provides an exception
which allows a criminal defendant to offer evidence of his or her
character traits which are pertinent to the crimes charged and
allows the Commonwealth to rebut the same. Pa.R.E. 404(a)(1).
This Court has further explained the limited purpose for which this
evidence can be offered:

It has long been the law in Pennsylvania that an
individual on trial for an offense against the criminal
law is permitted to introduce evidence of his good
reputation in any respect which has “proper relation
to the subject matter” of the charge at issue. Such
evidence has been allowed on a theory that general
reputation reflects the character of the individual and
a defendant in a criminal case is permitted to prove
his good character in order to negate his participation
in the offense charged. The rationale for the admission
of character testimony is that an accused may not be
able to produce any other evidence to exculpate
himself from the charge he faces except his own oath
and evidence of good character.

It is clearly established that evidence of good
character is to be regarded as evidence of substantive
fact just as any other evidence tending to establish
innocence and may be considered by the jury in
connection with all of the evidence presented in the
case on the general issue of guilt or innocence.
Evidence of good character is substantive and positive
evidence, not a mere make weight to be considered in
a doubtful case, and, ... is an independent factor

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which may of itself engender reasonable doubt or
produce a conclusion of innocence. Evidence of good
character offered by a defendant in a criminal
prosecution must be limited to his general reputation
for the particular trait or traits of character involved in
the commission of the crime charged. The
cross-examination of such witnesses by the
Commonwealth must be limited to the same traits.
Such evidence must relate to a period at or about the
time the offense was committed, and must be
established by testimony of witnesses as to
the community opinion of the individual in
question, not through specific acts or mere rumor.

Commonwealth v. Goodmond, 190 A.3d 1197, 1201–1202 (Pa. Super.

2018) (citations and emphasis omitted).

In cases of rape, however, “evidence of the character of the defendant

[is] limited to presentation of testimony concerning his general reputation in

the community with regard to such traits as non-violence or peaceableness,

quietness, good moral character, chastity, and disposition to observe good

order.” Commonwealth v. Lauro, 819 A.2d 100, 109 (Pa. Super. 2003)

(citation omitted).

In this case, the trial court determined that the term “reputation around

children,” as posed by defense counsel to Appellant’s sister, was vague and

overly broad because it was “not clear what character trait defense counsel

was attempting to elicit.” Trial Court Opinion, 5/14/2018, at 14. As such, the

trial court was left to speculate that “[t]rial counsel might have been

attempting to elicit admissible character evidence regarding chastity[.]” Id.

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Upon review, we discern no abuse of discretion in limiting the character

evidence presented. The crux of the charges against Appellant pertained to

sexual misconduct with minors. While the crimes at issue were perpetrated

against children, Appellant was still required to comport with the limitations

for character evidence pertaining to rape. Specific questions about

non-violence or peaceableness, quietness, good moral character, chastity, and

disposition to observe good order with respect to children would have been

permissible. However, Appellant impermissibly asked an overly general

question about Appellant’s reputation around children without focusing the

inquiry upon a specific character trait that a defendant may develop within the

scope of a rape prosecution. We discern no abuse of discretion or error of law

in sustaining the Commonwealth’s objection to the question asked. Moreover,

we note that Appellant did elicit character evidence from his sister who stated

that people in the community knew Appellant to be a good, truthful, and

law-abiding man. N.T., 5/22/2017, at 14. Such testimony was not limited to

Appellant’s interactions with adults and, thus, the jury heard character

evidence relevant to the crimes at issue. For all of the foregoing reasons,

Appellant’s first issue fails.

In his next question presented, Appellant contends that the trial court

erred by sustaining a Commonwealth objection to the admission of an alleged

statement by one of the victims set forth in a report from CYS. Appellant’s

Brief at 16-19. “In the statement, [one of the victim’s] allegedly indicated

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that [Appellant] threatened to kill her if she told anyone.” Trial Court Opinion,

5/14/2018, at 10. Whereas, at trial, the victim claimed that Appellant did not

threaten her. Appellant claims the statement in the CYS report qualified as

an exception to the rule against hearsay as a business record and that the

record could have been authenticated by a custodian, in this case, the

testifying caseworker from CYS, Laura Quick. Appellant’s Brief at 16-17, citing

Pa.R.E. 803(6) and Pa.R.E. 902(11).3 Appellant argues, “this case rested

____________________________________________

3 Pennsylvania Rule of Evidence 902(11) provides that evidence of certified
domestic records of regularly conducted activity is self-authenticating and
requires no extrinsic evidence of authenticity to be admitted. The Rule
provides as follows:

(11) Certified Domestic Records of a Regularly Conducted
Activity. The original or a copy of a domestic record that meets
the requirements of Rule 803(6)(A)-(C), as shown by a
certification of the custodian or another qualified person that
complies with Pa.R.C.P. No. 76. Before the trial or hearing, the
proponent must give an adverse party reasonable written notice
of the intent to offer the record--and must make the record and
certification available for inspection--so that the party has a fair
opportunity to challenge them.

Pa.R.E. 902(11).

Pennsylvania Rule of Evidence 803(6), provides the following exception
to the rule against hearsay, regardless of whether the declarant is available
as a witness:

(6) Records of a Regularly Conducted Activity. A record
(which includes a memorandum, report, or data compilation in any
form) of an act, event or condition if:

(A) the record was made at or near the time by--or from information
transmitted by--someone with knowledge;

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largely on witness credibility, and the presentation of evidence purporting to

show inconsistent statements on the part of a key witness should weigh

heavily on a decision of innocence or guilt by the trier of fact.” Id. Appellant

concedes, however, that Pa.R.E. 902(11) requires the proponent of a business

record give the adverse party written notice of the intent to offer the record

at trial and that Appellant did not provide written notice to the Commonwealth.

Id. at 19. Instead, he argues that the Commonwealth was aware of the record

at issue and on notice. Id.

On this issue, the trial court first recognized that the testifying witness,

Ms. Quick, was not the person that compiled the report wherein one of the

victims allegedly stated that Appellant would kill her. “Instead, the statement

was contained in a summary or narrative created by [Chet] Troxell[, another

____________________________________________

(B) the record was kept in the course of a regularly conducted activity
of a “business”, which term includes business, institution,
association, profession, occupation, and calling of every kind,
whether or not conducted for profit;

(C) making the record was a regular practice of that activity;

(D) all these conditions are shown by the testimony of the custodian
or another qualified witness, or by a certification that complies
with Rule 902(11) or (12) or with a statute permitting
certification; and

(E) the opponent does not show that the source of information or
other circumstances indicate a lack of trustworthiness.

Pa.R.E. 803(6).

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CYS employee,] when the alleged sexual assault was reported through

Childline, before Ms. Quick became involved in the case.” Trial Court Opinion,

5/14/2018, at 10. As such, the trial court determined that “the statement

was not admissible, because it could not be properly authenticated through

the testimony of Ms. Quick.” Id. Moreover, the trial court determined that

“the mere fact that the statement was contained in a business record did not

establish its authenticity” and Appellant “did not offer [a] certification” of his

intent to offer the record pursuant to Pa.R.E. 902(11). Id. at 11. The trial

court concluded, “it would be unfair in this case to allow [the victim] to be

impeached on Mr. Troxell’s interpretation of what was said or, worse yet,

possibly a third party’s interpretation of [the victim’s] words that were relayed

to Mr. Troxell.” Id. at 12. In addition, the trial court noted that it did not

preclude Appellant from presenting evidence of the victim’s prior inconsistent

statements through other means. Id. at 11.

Upon review of the record and applicable law, we discern no abuse of

discretion or error of law by the trial court in precluding the Childline report.

Appellant failed to comply with Pa.R.E. 902(11) when he did not give the

Commonwealth written notice of the intent to offer the record at trial.

Appellant’s claim fails for this reason alone. However, as the trial court also

noted, Appellant could not impeach the victim using the CYS report, because

it was a summary of what the victim said. See Commonwealth v. Luster,

71 A.3d 1029, 1044 (Pa. Super. 2013). (“[A] summary of a witness'

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statement cannot be used for impeachment purposes absent adoption of the

statement by the witness as his/her own. It would be unfair to allow a witness

to be impeached on a [third party’s] interpretation of what was said rather

than the witness' verbatim words.”). Accordingly, for all of the foregoing

reasons, we discern no abuse of discretion or error of law by the trial court in

barring the CYS document from trial.

In his last issue presented, Appellant challenges his aggregate sentence

of 32 to 65 years of imprisonment as “manifestly excessive and unduly harsh

in light of his history, characteristics, and rehabilitative needs.” Appellant’s

Brief at 8. Appellant “avers that the trial court abused its discretion by

imposing the statutory maximum[ sentences] which, while technically part of

the standard range, are tantamount to being in the aggravated range, despite

the lack of aggravating factors justifying such.” Id. Appellant claims that,

“the trial court improperly focused nearly exclusively, and extensively, on the

gravity of the offense as it relates to the impact on the [lives] of the victim[s],

failing to properly consider and weigh the protection of the public or []

Appellant’s rehabilitative needs.” Id. at 23.

In considering a challenge to the discretionary aspects of sentencing,

this Court has previously determined:

Such a challenge is not appealable as of right. Rather, [an
a]ppellant must petition for allowance of appeal pursuant to 42
Pa.C.S.A. § 9781. When an [a]ppellant challenges a discretionary
aspect of sentencing, we must conduct a four-part analysis before
we reach the merits of the [a]ppellant's claim. In this analysis, we
must determine: (1) whether the present appeal is timely; (2)

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whether the issue raised on appeal was properly preserved; (3)
whether Appellant has filed a statement pursuant to Pa.R.A.P.
2119(f); and (4) whether Appellant has raised a substantial
question that his sentence is not appropriate under the Sentencing
Code.

Commonwealth v. King, 182 A.3d 449, 453 (Pa. Super. 2018) (internal case

citations omitted). Here, Appellant has complied with the first three

prerequisites as set forth above. As such, we must consider whether he raised

a substantial question for our review.

Regarding substantial questions, our Court has previously determined:

Generally, [] in order to establish a substantial question, the
appellant must show actions by the sentencing court inconsistent
with the Sentencing Code or contrary to the fundamental norms
underlying the sentencing process.

* * *

Our Supreme Court [has held] that the appellate courts cannot,
as a matter of law, reject excessiveness claims on the basis that
the sentence is within the statutory limits. Rather, when an
excessiveness claim is raised in cases where the sentence falls
within the statutory limits, this Court is to review each claim on a
case-by-case basis to determine whether a substantial question
has been presented. The Supreme Court explained that while we
need not accept bald allegations of excessiveness, where the
appellant has provided a plausible argument that a sentence is
contrary to the Sentencing Code or the fundamental norms
underlying the sentencing process, a substantial question exists,
requiring a grant of allowance of appeal of the discretionary
aspects of the sentence.

Commonwealth v. Titus, 816 A.2d 251, 255 (Pa. Super. 2003) (citations

omitted).

Moreover, this Court has stated:

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A court's exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question. Commonwealth v. Mastromarino, 2 A.3d
581, 587 (Pa. Super. 2010), appeal denied, 14 A.3d 825 (Pa.
2011). Rather, the imposition of consecutive rather than
concurrent sentences will present 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.” Commonwealth v. Lamonda, 52
A.3d 365, 372 (Pa. Super. 2012), appeal denied, 75 A.3d 1281
(Pa. 2013).

To make it clear, a defendant may raise a substantial
question where he receives consecutive sentences
within the guideline ranges if the case involves
circumstances where the application of the guidelines
would be clearly unreasonable, resulting in an
excessive sentence; however, a bald claim of
excessiveness due to the consecutive nature of a
sentence will not raise a substantial question.

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa. Super.
2013), reargument denied (Nov. 21, 2013), appeal denied, 91
A.3d 161 (Pa. 2014) (emphasis in original).

Further, “ordinarily, a claim that the sentencing court failed to
consider or accord proper weight to a specific sentencing factor
does not raise a substantial question.” Commonwealth v. Berry,
785 A.2d 994, 996–997 (Pa. Super. 2001) (internal citation
omitted) (emphasis in original). Specifically,

[t]here is ample precedent to support a determination
that [a claim that the trial court failed to consider an
appellant's rehabilitative needs] fails to raise a
substantial question.... See Commonwealth v.
Cannon, 954 A.2d 1222, 1228–1229 (Pa. Super.
2008), appeal denied, 964 A.2d 893 (Pa. 2009) (claim
that the trial court failed to consider the defendant's
rehabilitative needs, age, and educational background
did not present a substantial question);
Commonwealth v. Coolbaugh, 770 A.2d 788, 793
(Pa. Super. 2001) (citing Commonwealth v.
Mobley, 581 A.2d 949, 952 (Pa. Super. 1990)) (claim
that sentence failed to take into consideration the

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defendant's rehabilitative needs and was manifestly
excessive did not raise a substantial question where
sentence was within statutory guidelines and within
sentencing guidelines); Commonwealth v. Coss,
695 A.2d 831, 833 (Pa. Super. 1997) (when the
sentence imposed falls within the statutory limits, an
appellant's claim that a sentence is manifestly
excessive fails to raise a substantial question);
Commonwealth v. Bershad, 693 A.2d 1303, 1309
(Pa. Super. 1997) (a claim that a trial court failed to
appropriately consider an appellant's rehabilitative
needs does not present a substantial question);
Commonwealth v. Lawson, 650 A.2d 876, 881 (Pa.
Super. 1994) (claim of error for failing to consider
rehabilitative needs does not present substantial
question).

Commonwealth v. Griffin, 65 A.3d 932, 936–937 (Pa. Super.
2013), appeal denied, 76 A.3d 538 (Pa. 2013). Similarly, “this
Court has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial
question for our review.” Commonwealth v. Disalvo, 70 A.3d
900, 903 (Pa. Super. 2013) (internal citation omitted).

However, “prior decisions from this Court involving whether a
substantial question has been raised by claims that the sentencing
court ‘failed to consider’ or ‘failed to adequately consider’
sentencing factors [have] been less than a model of clarity and
consistency.” Commonwealth v. Seagraves, 103 A.3d 839, 842
(Pa. Super. 2014) (citing Dodge, supra). In Commonwealth v.
Dodge, this Court determined an appellant's claim that the
sentencing court “disregarded rehabilitation and the nature and
circumstances of the offense in handing down its sentence”
presented a substantial question. Dodge, supra at 1273.

This Court has also held that “an excessive sentence claim—in
conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question.”
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super.
2014), appeal denied, 105 A.3d 736 (Pa. 2014) (quoting
Commonwealth v. Perry, 883 A.2d 599, 602 (Pa. Super.
2005)). Additionally:

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In determining whether a substantial question exists,
this Court does not examine the merits of whether the
sentence is actually excessive. Rather, we look to
whether the appellant has forwarded a plausible
argument that the sentence, when it is within the
guideline ranges, is clearly unreasonable.
Concomitantly, the substantial question
determination does not require the court to decide the
merits of whether the sentence is clearly
unreasonable.

Dodge, supra at 1270 (internal citations omitted).

Commonwealth v. Caldwell, 117 A.3d 763, 769-770 (Pa. Super. 2015).

Here, Appellant received consecutive sentences totaling 32 to 65 years

of imprisonment. He challenges the aggregate term of incarceration as

excessive4 and claims that the trial court failed to consider his rehabilitative

needs. We conclude that Appellant has forwarded a plausible argument that

his sentence is unreasonable and, therefore, he has advanced a substantial

issue for our review. See Caldwell, 117 A.3d at 770 (“challenge to the

imposition of [defendant’s] consecutive sentences as unduly excessive,

together with [a] claim that the court failed to consider [] rehabilitative needs

upon fashioning its sentence, presents a substantial question.”). As such, we

turn to the merits of his claim.

Our standard of review is as follows:

Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
____________________________________________

4 While Appellant does not overtly assail the consecutive nature of the
sentence, he does so implicitly by challenging the length of his aggregate
sentence.

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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.

Id.

Initially, we note that the trial court received, and reviewed, a

pre-sentence investigation (PSI) report prior to sentencing. See N.T.,

1/3/2018, at 5. This Court has recently reiterated:

When imposing a sentence, the sentencing court must consider
the factors set out in 42 Pa.C.S.A. § 9721(b), that is, the
protection of the public, gravity of offense in relation to impact on
victim and community, and rehabilitative needs of the defendant.

* * *

A judge's statement of the reasons for imposing a particular
sentence must clearly show that he has given individualized
consideration to the character of the defendant. In addition:

Where pre-sentence reports exist, we shall continue
to 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 presentence
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 purification, 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.

Accordingly, where the sentencing judge had the benefit of a
pre-sentence report, it will be presumed that he was aware of
relevant information regarding appellant's character and weighed
those considerations along with the mitigating statutory factors.

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Commonwealth v. Conte, 2018 WL 5666923, at *5 (Pa. Super. November

1, 2018). Because the trial court had the benefit of a PSI report, we presume

that it considered the required statutory factors when sentencing Appellant.

Finally, upon our review of the sentencing transcript, we conclude that

the trial court stated its reasons on the record regarding Appellant’s potential

for rehabilitation. The trial court first noted that Appellant lacked remorse and

failed to accept responsibility for his crimes. Instead, Appellant claimed that

the victims fabricated the crimes because he would not buy them alcohol.

N.T., 1/3/2018, at 30-32. The trial court also concluded that Appellant’s risk

of re-offense was “significant,” because of “the predatory nature of the

offenses, [] breach of trust, [and] progressive conduct.” Id. at 33. As such,

we reject Appellant’s argument that the trial court failed to consider

rehabilitation when fashioning its sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 02/04/2019

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