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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
ANDREW JOSEPH PATTERSON, :
:
APPELLANT : No. 1539 MDA 2015
Appeal from the Judgment of Sentence July 30, 2015
In the Court of Common Pleas of Huntingdon County
Criminal Division at No(s): CP-31-CR-0000460-2014
BEFORE: STABILE, J., DUBOW, J., and PLATT, J.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 17, 2016
Appellant, Andrew J. Patterson, appeals from the Judgment of
Sentence entered by the Huntingdon County Court of Common Pleas
following his conviction by a jury of Indecent Assault and Corruption of
Minors. After careful review, we affirm.
We summarize the relevant factual and procedural history as follows.
On July 29, 2014, Appellant was arrested and charged with Rape, Statutory
Sexual Assault, Involuntary Deviate Sexual Intercourse, Corruption of
Minors, and Indecent Assault1 for an incident that took place on Appellant’s
*
Retired Senior Judge Assigned to the Superior Court.
1
18 Pa.C.S. § 3121(a)(1); 18 Pa.C.S. § 3122.1(b); 18 Pa.C.S. §
3123(a)(1); 18 Pa.C.S. § 6301(a)(1)(ii); and 18 Pa.C.S. § 3126(a)(2),
respectively.
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farm in May 2012. The male complainant, B.S., alleged that when he was
15 years old, Appellant forcibly performed oral sex on him while he was
working on Appellant’s farm.
Appellant elected to proceed to a jury trial. Prior to trial, the
Commonwealth filed a Notice of Prior Bad Acts, seeking to introduce the
testimony of G.J. and C.B, two additional boys who alleged Appellant had
also had inappropriate sexual contact with them when they were 15 or 16
years old.2 The Commonwealth argued that the testimony was admissible
as part of a common plan, scheme, or design. The trial court agreed, ruling
that the testimony was admissible at trial. The Commonwealth withdrew the
Rape charges against Appellant at the same hearing.
At trial, complainant B.S. testified that in May of 2012, when he was
15 years old, his parents arranged for him to work on Appellant’s farm in
order to earn money for an upcoming vacation. While they were performing
chores on the farm, Appellant rubbed up against B.S. in a manner which
made him uncomfortable. When B.S. told him to stop, Appellant stopped for
some period, before later putting his hands down B.S.’s pants and grabbing
his genitals. After B.S. again protested, Appellant backed off, before
eventually tackling B.S. to the ground and forcibly performing oral sex on
B.S. while pinning him to the ground.
2
The prior bad acts at issue were the subject of criminal charges filed
against Appellant at CP-31-CR-244-2013. Appellant entered a plea of nolo
contendere to the charges.
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Victims G.J. and C.B. also testified at trial. Prior to G.J.’s testimony,
the trial court gave a cautionary instruction to the jury, admonishing them
against considering the testimony as propensity evidence. N.T., 4/6/15, at
131-32. G.J. testified that after Appellant lured him to his farm with the
promise of employment, Appellant twice groped G.J. without his consent.
G.J. also testified that Appellant later sent him text messages, asking G.J.
for pictures of his genitals and offering G.J. money to allow Appellant to
perform oral sex on him.
C.B. testified that Appellant obtained his phone number by promising
C.B. employment. However, instead of using his number to arrange work on
the farm, Appellant texted C.B. to offer him money in exchange for pictures
of C.B.’s genitals.
On April 6, 2015, the jury convicted Appellant of Corruption of Minors
and Indecent Assault. The jury was unable to reach a verdict on the
remaining charges, and the Commonwealth withdrew them.
The trial court ordered a Pre-Sentence Investigation (“PSI”) and on
July 30, 2015, the court sentenced Appellant to the statutory maximum term
of incarceration on each conviction, with the sentences to run consecutively,
for an aggregate sentence of six to twelve years of incarceration.
Appellant filed Post-Sentence Motions, which the trial court denied.
Appellant then timely appealed. Both Appellant and the trial court have
complied with Pa.R.A.P. 1925.
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On appeal, Appellant raises the following two issues:
I. Whether the [t]rial [c]ourt committed an abuse of discretion
in allowing the Commonwealth to present testimony regarding
Appellant’s “prior bad acts”?
II. Whether the [t]rial [c]ourt committed an abuse of discretion
in sentencing Appellant to the statutory maximum on each of the
convictions for an aggregate sentence of six to twelve (6-12)
years[’] incarceration?
Appellant’s Brief at 3.
In his first issue, Appellant avers that the trial court erred in admitting
the testimony of G.J. and C.B. under an exception to the general prohibition
against admitting evidence of prior bad acts. Our standard of review
concerning a challenge to the admissibility of evidence is as follows:
The admissibility of evidence is a matter for the discretion of the
trial court and a ruling thereon will be reversed on appeal only
upon a showing that the trial court committed an abuse of
discretion. An abuse of discretion may not be found 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.
Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and
quotation marks omitted).
Pennsylvania Rule of Evidence 404(b) prohibits evidence of a
defendant’s prior bad acts “to prove a person’s character” or demonstrate
“that on a particular occasion the person acted in accordance with the
character.” Pa.R.E. 404(b)(1). Nevertheless, the Rule further provides that
prior bad acts evidence “may be admissible for another purpose, such as
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proving motive, opportunity, intent, preparation, plan, knowledge, identity,
absence of mistake, or lack of accident. In a criminal case, this evidence is
admissible only if the probative value of the evidence outweighs its potential
for unfair prejudice.” Pa.R.E. 404(b)(2). See also Daniel J. Anders,
Ohlbaum on the Pennsylvania Rules of Evidence § 404.11 et. seq. (2016 ed.
LexisNexis Matthew Bender).
Evidence is properly admitted under the common plan, scheme, or
design exception where all of the alleged acts are of a similar character.
Commonwealth v. Booth, 435 A.2d 1220, 1226 (Pa. Super. 1981). To
establish a common plan or scheme, courts must examine the details of the
prior and present incidents for factual similarities. Commonwealth v.
O’Brien, 836 A.2d 966, 970-71 (Pa. Super. 2003). “[A] comparison of the
crimes must establish a logical connection between them.”
Commonwealth v. Arrington, 86 A.3d 831, 842 (Pa. 2014) (quotation
omitted).
Even where the alleged acts are sufficiently similar, “the court must
balance the potential prejudicial impact of the evidence[.]”
Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa. Super. 2007). In
so doing, the trial court should consider “the degree of similarity established
between the incidents of criminal conduct, the Commonwealth’s need to
present evidence under the common plan exception, and the ability of the
trial court to caution the jury concerning the proper use of such evidence by
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them in their deliberations.” Id. On review, this Court may affirm a trial
court’s ruling where we conclude that the court’s cautionary instruction to
the jury was sufficient to “ameliorate[] any undue prejudice caused by the
introduction of the prior bad acts.” Commonwealth v. Sherwood, 982
A.2d 483, 497-98 (Pa. 2009); see also Commonwealth v. Watkins, 843
A.2d 1203, 1216 (Pa. 2003) (observing that “[a] jury is assumed to have
followed the cautionary instruction given.”).
In the instant case, all three incidents were relatively close in time and
locality, occurring between 2010 and 2012 on Appellant’s farm. N.T.,
4/6/15, at 25, 133, 140. All three victims were either 15 or 16 years old at
the time of the offenses. Id. at 25, 134, 140. Appellant used an offer of
employment to entice or attempt to entice his victims to the farm in all three
cases. Id. at 25, 27, 134, 140. All three victims were affiliated with the Mill
Creek Fire Hall, and Appellant met each victim through their connection to
the Fire Hall.3 Id. at 47, 133, 140. With all three victims, Appellant sought
to see, touch, or perform sexual acts on their genitals. With B.S. and G.J.,
Appellant inappropriately rubbed and groped both while they were doing
chores on his farm. Id. at 31, 135. In both instances, when the victims
protested, he briefly stopped before ultimately continuing the offensive
3
Although B.S., the victim in this case, had not met Appellant before the
assault, he testified that his parents knew Appellant through their connection
to the Fire Hall and arranged for B.S. to work on Appellant’s farm. N.T.,
4/6/15, at 47.
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contact, attempting to, or actually, performing oral sex on both. Id. at 32,
39, 135-37.
In his closing argument, Appellant’s defense counsel reminded the jury
of the trial court’s cautionary instruction. Id. at 218-19. Before sending the
jury into deliberations, the trial court again delivered a cautionary
instruction, reminding them of the limited purpose for which they could
consider the testimony of G.J. and C.B., and admonishing the jury that they
“may not convict a person simply because [they] believe he may have
committed similar acts in the past.” Id. at 243-44.
Based on the foregoing, we agree with the trial court that there were
sufficient similarities between the prior bad acts and the allegations in the
instant case to support the proper admission of G.J.’s and C.B.’s testimony.
We further conclude that the trial court sufficiently addressed any risk of
unfair prejudice with its cautionary instructions to the jury. Accordingly, we
find no abuse of discretion on the part of the trial court in admitting the
testimony of G.J. and C.B. under the common plan, scheme and design
exception provided in Pa.R.E. 404(b)(2).
In his second issue, Appellant challenges the discretionary aspects of
his sentence when he avers that the trial court erred in sentencing him
outside of the guidelines after considering the details of his prior offenses.4
4
The argument section of Appellant’s Brief presents a confusing
amalgamation of alleged errors, none of which he supports with citation to
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He alleges that the sentencing court’s “equating the case under review with
his prior convictions reflects the [sentencing c]ourt’s prejudice against him
[and] the [c]ourt’s rationale does not support such a significant departure
from the sentencing guidelines and is manifestly unreasonable.” Appellant’s
Brief at 14-15.
A challenge to the discretionary aspects of sentencing is not
automatically reviewable as a matter of right. See Commonwealth v. Hill,
66 A.3d 359, 363 (Pa. Super. 2013). Rather, where, as here, the appellant
has preserved the sentencing challenge for appellate review by raising it at
sentencing or in a timely post-sentence motion, the appellant must (1)
“include in his brief a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary aspects of a
sentence[,]” pursuant to Pa.R.A.P. 2119(f); and (2) “show that there is a
substantial question that the sentence imposed is not appropriate under the
Sentencing Code.” Id. at 363-64.
In the instant case, Appellant filed a timely Notice of Appeal and a
timely Post-Sentence Motion. He also included a separate Pa.R.A.P. 2119(f)
Statement in his appellate brief. In addition, Appellant has presented a
substantial question for our review. See Commonwealth v. McNabb, 819
A.2d 54, 56-57 (Pa. Super. 2003) (holding that an appellant does raise a
supporting law or legal analysis. Appellant’s Brief at 13-15.
Notwithstanding these briefing errors, we are able to review his sentencing
challenge.
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substantial question when he avers an excessive sentence due to the court’s
reliance on impermissible factors); Commonwealth v. Sheller, 961 A.2d
187, 190 (Pa. Super. 2008) (holding that an “[a]ppellant’s contention that
the sentencing court exceeded the recommended range in the Sentencing
Guidelines without an adequate basis raises a substantial question for this
Court to review.”).
Accordingly, we turn to the merits of Appellant’s claim, mindful of our
standard of review:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and 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.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted).
Where a trial court imposes a sentence outside of the sentencing
guidelines, 42 Pa.C.S. § 9721(b) requires the trial court to provide, in open
court, a “contemporaneous statement of reasons in support of its sentence.”
Commonwealth v. Bowen, 55 A.3d 1254, 1264 (Pa. Super. 2012). To
satisfy the requirements of Section 9721(b), the trial court must:
demonstrate on the record, as a proper starting point, its
awareness of the sentencing guidelines. Having done so, the
sentencing court may deviate 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
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gravity of the particular offense as it relates to the impact on the
life of the victim and the community, so long as it also states of
record the factual basis and specific reasons which compelled it
to deviate from the guideline range.
Id. (brackets and citation omitted). See also Commonwealth v. Hunzer,
868 A.2d 498, 514 (Pa. Super. 2005) (observing that the trial court’s
statement of reasons need not be “a detailed, highly technical statement.”).
In addition, where the trial court has the benefit of a PSI, “it is
presumed that the court is aware of all appropriate sentencing factors and
considerations, and that where the court has been so informed, its discretion
should not be disturbed.” Commonwealth v. Ventura, 975 A.2d 1128,
1135 (Pa. Super. 2009) (discussing Commonwealth v. Devers, 546 A.2d
12, 18-19 (Pa. 1988)). Thus, if the sentencing court states that it
considered the PSI, the court has properly explained the basis for the
sentence that it imposed. Ventura, supra at 1135 (citation omitted).
Where the trial court deviates above the guidelines, this Court may
only vacate and remand a case for resentencing if we first conclude that “the
sentence is unreasonable.” 42 Pa.C.S. § 9781(c)(3). A sentence is not
unreasonable simply because the trial court deviates above the guidelines to
impose the statutory maximum. See, e.g., Commonwealth v. Rossetti,
863 A.2d 1185, 1194-95 (Pa. Super. 2004) (affirming a statutory maximum
sentence imposed after the trial court considered and balanced all of the
relevant mitigating and aggravating facts). Our Supreme Court has
emphasized that “rejection of a sentencing court’s imposition of sentence on
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unreasonableness grounds [should] occur infrequently, whether the
sentence is above or below the guideline ranges, especially when the
unreasonableness inquiry is conducted using the proper standard of review.”
Commonwealth v. Walls, 926 A.2d 957, 964 (Pa. 2007).
In the instant case, the trial court made the following detailed
statement on the record before imposing sentence:
[Appellant], I have read the pre-sentence investigation. I sat
through trial. I think the statements you made in the pre-
sentence investigation regarding these young men are
ridiculous.[5] You have a history of grooming young men. I
went back and I reviewed the files from your previous
conviction. In 2007 it was the same thing.[6] You used text
message. You get young boys to the farm and you do what you
do.
I have reviewed the sentencing guidelines in this case. What the
sentencing guidelines of one to 12 months don’t take into
consideration is the fact that you have been convicted of
corruption of minors before and this is exactly the same conduct.
You have not learned your lesson. You continue to do the same
thing over and over. The public is at risk. Young men are at
risk.
5
Appellant averred that B.S., G.J., and C.B. must have seen the high-profile
allegations against Jerry Sandusky on the news and made up their
allegations against him in order to get money. Pre-Sentence Investigation
at 2.
6
In 2013, the Commonwealth charged Appellant with two counts each of
Unlawful Contact with Minors and related offenses. He pled nolo contendere
to one count each of Criminal Solicitation (Unlawful Contact with Minor) and
one count of Corruption of Minors. G.J. and C.B. testified at trial to the
events underlying the 2013 charges. In 2007, in an unrelated case, the
Commonwealth charged Appellant with Possession of Child Pornography and
related offenses. He eventually pled nolo contendere to one count of
Corruption of Minors in the 2007 case.
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I’ve read the letter from your brother Brian. I heard the
comments of your dad. I feel very bad for your parents. I really
do because you have put them through this and they are victims
of this, maybe not so much as these young men but they are
victims as well. They have fought through your convictions and
your conduct over and over and over. Again, you are a threat to
the public.
I’ve considered your rehabilitative needs and I don’t think you
can be rehabilitated. The only way that the public is protected is
if you are in the state prison. So once again I have considered
the sentencing guidelines and I’m not going to follow the
sentencing guidelines.
N.T., 7/30/15, at 9-10. See also Pa.R.A.P. 1925(a) Opinion, at 10-13.
Contrary to Appellant’s contention, we conclude that the trial court did
not impose its sentence as a result of prejudice. The record indicates that
the sentencing court properly considered and balanced all of the relevant
mitigating and aggravating facts, including Appellant’s background and his
prior conduct. Appellant has not established “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.” Raven, supra at 1253.
In light of the record facts of this case and the sentencing court’s
thorough explanation of its rationale, we are not persuaded that the
imposition of consecutive statutory maximum sentences was unreasonable.
Accordingly, we affirm Appellant’s Judgment of Sentence.
Judgment of Sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/17/2016
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