Case Information
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, the Court of Common Pleas Bucks County
Criminal Division at No. CP- 09 -CR- 0001335 -2015 BEFORE: FORD ELLIOTT, P.J.E., OTT AND FITZGERALD,* JJ. FILED NOVEMBER 08, 2016
MEMORANDUM BY FORD ELLIOTT, P.J.E.: Manfred Phillip Marotta appeals from the October 2015 aggregate judgment of sentence 4 23 months' imprisonment, followed a consecutive term 2 years' probation, after found guilty of two counts of indecent assault -- without complainant's consent.' After careful review, affirm.
The trial court summarized the relevant facts procedural history of this case follows:
The charges against [a]ppellant stemmed from conduct towards two alleged victims; E.S., his niece, H.M., former manager one of the Dunkin Donuts shops owned by [a]ppellant. At trial, * Former Justice specially assigned the Superior Court. Pa.C.S.A. § 3126(a)(1). testified as [a]ppellant's
both E.S. and H.M.
conduct towards them.
E.S. testified that [a]ppellant started giving backrubs and massages to her when she was or years old, and that this eventually progressed into more intimate contact. (Notes testimony, 6/29/15 at 27 -28.) E.S. lived [a]ppellant, and relied him income and stability, she also worked at one his Dunkin Donuts shops. (Id. at 20 -21, 29 -35.) At bench trial, E.S. testified:
I would come down after work and I would stressed out, and he would want to calm me down or find answer to help me relax or de- stress, and he would say, come over here, you look stressed out, you need relax. And then he would rub my back, and then progressively it got [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 few of the times he had put his fingers my vagina and touched around my vagina and inside it.
(Id. at 28.) E.S. also stated she never wanted her uncle to touch her sexual manner, she intimidated his physical size. (Id. at 29, 32.) Further, E.S. stated that [a]ppellant touched her vagina about ten times put fingers inside of her between five six times. (Id. 34.)
E.S. decided to come forward about [a]ppellant touching her when she heard may have touched another worker at Dunkin Donuts, H.M., felt that her coming forward could help prevent anyone else from being victimized the future. (Id. 36 -37.) E.S. testified she never felt like her
uncle's touching of her was okay or right. at -45.) Further, E.S. stated she never wanted her uncle to touch her sexual way there were times where she felt like she couldn't just get up and walk away, largely due to the potential consequences of her doing so, i.e. not having place live, not having job, not having support, and losing her family. (Id. at 119 -120.)
H.M. also testified at on June 29, 2015.
H .M. was manager at Dunkin Donuts after E.S.
held this position. (Id. at 132.) As manager of one [a]ppellant's Dunkin Donuts, H.M. had to drop money off at [a]ppellant's house at the end every shift, and she was comfortable with this arrangement. (Id. at 139.) H.M. testified that there were two incidents where [a]ppellant touched her.
(Id. at -141.) In regard to the first incident, H .M. testified:
Well, one night I went house for training and I was sitting next to him front of the computer, and I felt really uncomfortable because it was just me and him at the house, first all, so I felt was uncomfortable and like unnecessary. And then I was sitting training him, and he rubbing inside of my leg while I 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 she went [a]ppellant's house "to drop off money after [her] shift work, [she] put it on the table, then [[a]ppellant] looked [her] and told [her] that [she] looked stressed out ... [and] then pointed he brought [her] over his bedroom pointed his bed and said, lay (sic) down." at 145.) H.M. stated she "didn't [but to feel like [she] had choice listen [a]ppellant] because [she was] much smaller than him much weaker, so [she] intimidated, [she] did it." (Id.) H.M. went explain after [a]ppellant told her to lay (sic) face down on
- 3 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 skin of her butt under her underwear. (Id. at 146- 149.) Appellant was breathing deeply 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] It was only [her] and didn't feel safe. [[a]ppellant] house, [she] was under pressure. [She] didn't know how act, [she] was only years old ... [.] (Id. at 147.) It was also noted by H.M.:
I didn't want any of that ever happen I wouldn't have ever asked for to me. that, and I would never want some man, who that much older who's my boss want be treating me like that. I would never want that.
(Id. 183.)
The second day of June 2015, [a]ppellant's counsel, Mr. Geday, started off proceedings by raising corpus delicti issue in regard to evidence that anticipated would be introduced by (Notes of the Commonwealth. testimony, 6/30/15 -5.) Appellant's counsel argued the evidence presented so far trial insufficient establish crimes charged had occurred, therefore subsequent statements [a]ppellant should admissible (Id.) In response, [trial c]ourt considered.
found based on record there sufficient warrant evidence testimony involving any statements that [a]ppellant may have made. at 7.)
On the second day of 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 [a]ppellant to E.S., which [a]ppellant stated that he admitted to touching her.
(Id. at 50.) Further, Detective Kemmerer testified as to interviews with [a]ppellant, during which [a]ppellant admitted to touching E.S.'s vagina stated that sexually attracted to her. (Id. at 78 -79.) trial, before beginning
At the close of argument, the [trial c]ourt, after hearing all of the evidence, asked if the Commonwealth still alleging the same time frames as stated criminal information with respect to charges (Id. at 188.) The brought regard to H.M. initially alleged timeframe between
January end March of 2013. In response to [trial c]ourt's inquiry, and based on H.M.'s testimony, the Commonwealth requested to be granted timeframe on leave to amend criminal information include April of 2013. (Id.) Appellant's counsel objected this, saying that it late the Commonwealth was too to make information after modifications to the criminal evidence had closed, allowing amendment amounted impermissible retroactive change to charges. (Id. -189.) The Commonwealth countered criminal informations are typically broadly construed, that change did impact an element of the offense, the Commonwealth not seeking to substantively change any of (Id.) The [trial c]ourt crimes being charged. ultimately stated amendment criminal informations generally allowed as long as there is inherent unfairness defendant under the circumstances the Commonwealth would allowed amend the criminal information include April potential time period with respect the counts regarding H.M. 190- 191.)
Trial court opinion, 12/24/15, 2 -5 (citation formatting corrected; footnotes omitted).
Appellant was charged with multiple counts of aggravated indecent assault and indecent assault connection with these incidents.2 On June 29, 2015, appellant waived right jury and proceeded to bench trial. Following two -day trial, appellant was found guilty of two counts of indecent assault -- without the complainant's consent on June 2015. Appellant found not guilty of the remaining charges. As noted, appellant sentenced aggregate term of 4 23 months' imprisonment, followed by consecutive 2 years' probation, October 8, 2015. At sentencing, the trial court directed appellant: [(1)] have no contact with the victims their ... [(2)] obtain an
families[;] independent psychological evaluation geared toward looking into predatory sexual behavior ... abide all treatment conditions following recommendation[; (3)] have contact with anyone under 22 years of age which unsupervised where you will alone with person. Appellant did 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 file a concise statement of errors complained of on appeal pursuant Pennsylvania Rule of Appellate Procedure 1925(b). Appellant filed his Rule 1925(b) statement on December 7, 2015, the trial court issued its Rule 1925(a) opinion on December 2015.
Appellant raises the following issues our review:
I. Whether Honorable Trial Court erred by
finding [a]ppellant guilty of Indecent Assault failed when the Commonwealth Prove Beyond a Reasonable Doubt all Requisite Elements of Indecent Assault Defined in Pa.C.S.A. § 3126(a)(1), specifically [a]ppellant ever had indecent contact with complaining witness such contact was without consent?
II. Whether the Honorable Trial Court erred by
admitting into evidence considering [a]ppellant's statements prior corpus Commonwealth establishing delicti of crime, or the fact crime occurred at all?
III. Whether the Honorable Trial Court erred by
permitting the Commonwealth to amend Bills Information after concluded to conform the evidence presented during trial, i.e., extend the permissible date range by month, especially because [a]ppellant never notice new date range prior trial?
IV. Whether Honorable Trial Court erred by
imposing condition of sentence upon [a]ppellant that have unsupervised contact anyone under the age 22? Appellant's brief (numeration corrected).
Appellant first argues there insufficient evidence sustain conviction for two counts of indecent assault because the Commonwealth failed prove "had indecent contact with the complaining witnesses without their consent." -19.) This claim is meritless.
In reviewing the sufficiency of the evidence, we must determine whether the evidence admitted all at reasonable inferences drawn therefrom, viewed the light most favorable the Commonwealth as verdict winner, is sufficient prove every element of the offense beyond a reasonable doubt. As an appellate court, may not re -weigh the evidence substitute our judgment for of the fact -finder. Any question of doubt for fact -finder unless the evidence so weak inconclusive matter law no probability of fact can be drawn from the combined circumstances. v. Thomas, 988 A.2d 669, 670 (Pa.Super. 2009), appeal
denied, A.3d 1054 (Pa. 2010) (citations omitted).
A person will found guilty of indecent assault: indecent contact with
if person has complainant, causes complainant to have indecent contact with person intentionally causes complainant come into contact with seminal fluid, urine or feces the purpose of arousing sexual desire person or in complainant ... person does so without complainant's consent[.] Pa.C.S.A. § 3126(a)(1). The phrase "indecent contact" defined as "any
touching of the sexual or other intimate parts of the person for the purpose of arousing gratifying sexual desire, either person." Id. § 3101. light most favorable
Viewing the evidence in Commonwealth, the verdict winner, find that there ample evidence court, fact -finder, conclude that appellant guilty of indecent assault -- without 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 testimony, 6/29/15 at 34.) E.S. indicated that she did not want appellant touch her this sexual manner and did not feel it was "okay." (Id. at 29, 44 -45.) H.M., turn, testified that appellant had rubbed or massaged inside of her legs, back, buttocks multiple occasions. (Id. at 140 -141, 148- 149.) H.M. further testified she did want appellant engage in such "inappropriate" conduct, noting "I would never want some man, who much older who's my boss want treating me like that[.]" 183.) Moreover, both E.S. H.M. testified they were intimidated appellant because larger size and held position of authority over them. (Id. -32, 183 -184.)
Additionally, introduced testimony of the Commonwealth Detectives David Kemmerer Robert McLeod regarding various inculpatory statements appellant made following arrest. Specifically, Detective McLeod read into the record apology letter written appellant to E.S., wherein he stated that he touched E.S. (Notes of testimony, 6/30/15 at 50.) Detective Kemmerer, turn, testified that during his interview of appellant, appellant acknowledged touching E.S.'s vagina stated that sexually attracted to her. -79.)
It is well established that the testimony of a complainant, even standing alone, is sufficient convict sex offense prosecutions. See v. Castelhun, A.2d 1228, 1232 (Pa.Super. 2005). Based on totality of evidence presented case sub judice, we conclude appellant's claim that there insufficient evidence to sustain convictions for indecent assault must fail.
Appellant next argues trial court erred admitting his inculpatory statements because the Commonwealth failed establish "the corpus delicti a crime, or the fact a crime occurred at all." (Appellant's brief 20.) We disagree.
Our standard of review challenge corpus delicti rule is well settled.
The corpus delicti rule rule evidence. Our standard of review on appeals challenging an evidentiary ruling of the court limited a determination whether trial court abused its discretion. The corpus delicti rule places burden the prosecution establish crime has actually occurred before confession or admission of the accused connecting him crime can admitted. The corpus delicti is literally body of crime; it consists of proof - loss injury has occurred 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, emphasis omitted).
Courts this Commonwealth have recognized Pennsylvania law requires courts apply the corpus delicti rule two distinct phases:
In the first phase, the court determines whether the Commonwealth has proven the corpus delicti of the crimes charged preponderance of the evidence.
If so, confession of the defendant admissible.
In the second phase, rule requires Commonwealth prove the corpus delicti factfinder's satisfaction beyond reasonable doubt before the factfinder permitted consider the confession assessing 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, U.S. 1238 (2009), quoting v. Reyes, 870 A.2d n.4 (Pa. 2005).
Instantly, discern abuse of discretion on part of trial court rejecting appellant's corpus delicti claim. The record establishes corpus delicti of the indecent assaults sufficiently proven by the Commonwealth prior admittance appellant's inculpatory statements. As discussed, the Commonwealth sought introduce inculpatory statements issue, over appellant's objection, June 30, 2015, the second day of trial. Prior to this time period, the trial court had already heard extensive testimony from both E.S. H.M. on the first day of trial that was consistent with the indecent assaults having occurred.
Accordingly, we conclude that the corpus delicti the indecent assaults was sufficiently proven trial court did not abuse its discretion admitting appellant's inculpatory statements into evidence. Additionally, as the evidence sufficient to establish beyond reasonable doubt appellant had indecent contact both E.S. H.M. without their consent, conclude trial court did not abuse its discretion in considering appellant's admissions reaching its verdict. See Otterson, 947 A.2d at 1249.
Appellant next argues trial court "erred by permitting amend Bills Information after trial concluded to conform the evidence presented during trial, i.e., extend the permissible date range by month, especially because [he] never on notice of the new date range prior trial." (Appellant's brief 21.)
Amendments criminal information are governed Pennsylvania Rule of Criminal Procedure 564, which provides as follows:
The court may allow information amended when there defect form, the description of the offense(s), the description of any person or any property, or the date charged, provided information as amended does charge an additional different offense. Upon amendment, court may grant such postponement of or other relief necessary interests of justice. -
Pa.R.Crim.P. 564.
We have explained purpose Rule 564 inform a defendant of the charges filed against him so may properly prepare a defense. Commonwealth v. Sinclair, 897 A.2d 1218, 1223 (Pa.Super. 2006). Allowing the amendment of the information proper where doing so prejudices the defendant. Id.
This court must consider the following factors determining whether amendment results prejudice the defendant:
(1) whether amendment changes the factual scenario supporting the charges; (2) whether amendment adds new facts previously unknown (3) whether factual defendant; entire preliminary scenario developed during hearing; (4) whether the description of the charges changed with amendment; (5) whether change defense strategy necessitated by amendment; (6) whether timing of the Commonwealth's request for amendment allowed for ample notice preparation. v. Veon, 109 A.3d 768 (Pa.Super. 2015), appeal
granted in part, A.3d 954 (Pa. 2015) (citation omitted).
Upon review, we agree trial court's determination appellant not prejudiced the Commonwealth's decision to amend bill information this case. The trial court's December 24, 2015 opinion comprehensively discusses properly disposes of this issue, therefore, adopt the following rationale of the court our own: - it was not error allow the
Here, Commonwealth amend the bill of information to extend the timeframe which the incidents were alleged to have occurred by period of one month, because the amendment did not change or add any charges brought against [a]ppellant, therefore did not prejudice [a]ppellant as he 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)], the present case the Commonwealth amended the bill of information to "merely change[] date" by a period of one month, "neither additional charges nor different set of events were added to the information ... [and] the offenses set forth amendment[] involved the same ... elements same factual situations as specified in [Id. at 945.] Accordingly, original information[]." suggest it error allow the Commonwealth amend bill information extend the time frame alleged regard incidents involving H.M. by period one month.
Trial court opinion, 12/24/15 13 (citation formatting amended).
Lastly, appellant argues trial court "erred imposing a condition of sentence upon [a]ppellant that have unsupervised contact anyone under the age 22." (Appellant's brief 23 (capitalization omitted).) Appellant avers this condition "is unreasonable because it so broad, unrelated to [his] rehabilitative needs ..., unduly restricts his at 25.) Where an appellant challenges the discretionary liberty." aspects of sentence, case here, right appellate review is not absolute. See v. Allen, A.3d 1064 (Pa.Super. 2011). Rather, appellant challenging discretionary - aspects of sentence must invoke this court's jurisdiction by satisfying the following four -part test:
(1) whether appeal is timely; (2) whether Appellant preserved his (3) whether issue; Appellant's brief includes concise statement of the reasons relied upon allowance of appeal with respect discretionary aspects of sentence; and (4) whether concise statement raises a substantial question the sentence is appropriate under the sentencing code.
Commonwealth v. Carrillo -Diaz, 64 A.3d 722, (Pa.Super. 2013) (citations omitted).
"[I]ssues challenging the discretionary aspects of sentence must be raised post- sentence motion or presenting the claim court during the sentencing proceedings. Absent such efforts, objection a discretionary aspect sentence waived." v. Barnhart, 933 A.2d -1067 (Pa.Super. 2007) (citations internal quotation marks omitted); see also Pa.R.A.P. 302(a) (stating, "[i]ssues raised the lower court are waived cannot raised for first time appeal[] ").
Instantly, appellant failed file post- sentence motion raising his sentencing claim, point place record indicates he objected the sentencing condition was to have unsupervised contact anyone under the age 22. Consequently, find appellant's final claim waived. See Barnhart.
Judgment of sentence affirmed. -
Judgment Entered.
Joseph D. Seletyn,
Prothonotary
Date: 11/8/2016 - Notes testimony, 10/8/15 -75.
[2] Specifically, appellant charged one count each 18 Pa.C.S.A. §§ 3125(a)(1) (aggravated indecent assault -- without complainant's consent), 3125(a)(2) (aggravated indecent assault -- forcible compulsion), 3125(a)(3) (aggravated indecent assault -- threat of forcible compulsion), two counts each Pa.C.S.A. §§ 3126(a)(1) (indecent assault -- without complainant's consent), 3126(a)(2) (indecent assault -- forcible compulsion), 3126(a)(3) (indecent assault -- threat of forcible compulsion).