Case Information

NON -PRECEDENTIAL DECISION SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA ^[1] IN THE SUPERIOR COURT OF PENNSYLVANIA

v.

ANTHONY CROZIER

Appellant No. EDA 2016 Appeal from the Judgment of Sentence November 16, 2015 the Court of Common Pleas of Montgomery County Criminal Division at No(s): CP- -CR- 0002065 -2012 BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.* FILED NOVEMBER 2016

MEMORANDUM BY RANSOM, J.: Anthony Crozier (Appellant) appeals from the judgment of sentence six to twenty years of incarceration plus three concurrent, one to five year terms following bench resulting conviction criminal solicitation to commit involuntary deviate sexual intercourse (IDSI) with child, criminal solicitation commit indecent assault less than thirteen years of age, criminal solicitation commit corruption minors, criminal solicitation commit exploitation children.' We affirm.

' See 18 Pa.C.S. § 902(a); see also §§ 3123(b), 3126(a)(7), 6301(a)(1)(i), 6320(a). *Former Justice specially assigned the Superior Court.

In December of 2011, Appellant and H.E. (mother) met on her exchange money, and suggested the eleven -year -old give him a hand job or a blow job. H.E. told Appellant that he would need bring condom if he intended to have intercourse with the child. Appellant asked H.E. at least three times how she would explain the sex acts to her daughter asked if H.E. had picture the child on her cell phone. He also inquired if the child had "any titties" told H.E. he physically aroused due to their conversation.

In the second call on February 19, 2012, Appellant H.E. discussed the arrangement further. H.E. explained should leave car at park close to her house around noon and she would walk him to her home Montgomery County. During this discussion, Appellant masturbated while asking how encounter with the child would go. Appellant attempted confirm child would give him hand job or blow job. asked at least six times how explained the proposed encounter with her child, including how child reacted during explanation. He asked how child would be dressed inquired whether child had "a little skirt" she could wear.

In the third conversation on February 2012, Appellant confirmed the way the meeting place. Id. -30. next day Appellant arrived at the prearranged meeting location where was arrested. Id. -39. Thereafter Appellant gave statement to police

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wherein admitted had offered to pay "a couple of bucks" to have sexual contact with her daughter. Id. -49.

Following a bench trial April of 2015, the court found Appellant guilty criminal solicitation to commit involuntary deviate sexual intercourse with a child, criminal solicitation to commit indecent assault with less than thirteen years of age, criminal solicitation to commit corruption minors, and criminal solicitation to commit sexual exploitation of children. Appellant sentenced to six to twenty years the charge of criminal solicitation commit involuntary deviate intercourse; for each remaining charge, one five years' incarceration run concurrently. Appellant filed post- sentence motions, which were denied. timely appealed filed court -ordered Pa.R.A.P. 1925(b) statement. trial court issued responsive opinion. presents the following questions our review:

1. Whether Appellant's conduct did meet the elements any of the crimes charged. Whether the trial court erred in denying challenge the sufficiency of the evidence finding Appellant guilty beyond reasonable doubt. 2. Whether the trial court precluded defense counsel from testing the witness' credibility truly meaningful effective manner.

3. Whether the trial court failed to properly merge the sentences.

4. Whether erred denying Appellant's challenge discretionary aspects of sentencing. The sentence excessive under the circumstances manifestly unreasonable where [Appellant's] guidelines were much lower -4-

than the sentence he received and the court exceeded the guidelines without just cause.

Appellant's Brief 10.

In his first issue, challenges the sufficiency of the evidence presented at trial. Appellant avers he lacked intent to commit any of the aforementioned crimes, as testimony H.E. was unreliable, the text messages between were indicative of desire H.E. alone, "there nothing more than talk." Appellant's Brief -45,

When examining challenge the sufficiency of the evidence, our standard of review is:

[W]hether there sufficient evidentiary support for jury's finding this effect, the reviewing court inquires whether the proofs, considered light most favorable the the in Commonwealth verdict winner, are sufficient enable a reasonable jury to find every element the crime beyond reasonable doubt. bears mind that: the Commonwealth may sustain its burden means of wholly circumstantial evidence; trial record should be the entire evaluated and all evidence received considered, whether or not court's rulings thereon were correct; trier of fact, while passing upon credibility of witnesses weight of the evidence, free to believe all, part, or none of the evidence. Diggs, 949 A.2d 2008) (citations

omitted). guilty of solicitation commit crime if with the intent

promoting or facilitating its commission commands, encourages or requests another person specific conduct which would to engage

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constitute such crime or which would establish complicity in its commission or attempted commission. 18 Pa.C.S.A. § 902.

"A person commits involuntary deviate sexual intercourse with child, felony of the first degree, when the person engages deviate sexual intercourse with complainant who is less than 13 years of age." 18 Pa.C.S.A. § 3123(b).

Pennsylvania's Crimes Code governs indecent assault provides in pertinent part:

A person who has indecent contact with complainant or causes complainant to have indecent contact person[,] guilty of indecent assault if:

* * *

(7) the complainant less than 13 years of age[.] 18 Pa.C.S.A. § 3126(a)(7). Indecent contact defined as "[a]ny touching of sexual or other intimate parts of the the purpose of arousing or gratifying desire, either person." 18 Pa.C.S.A. § statutory prohibition against corruption of minors sexual exploitation of children provide follows:

§ 6301 Corruption of minors

(ii) Whoever, being of the age 18 years upwards, any course of conduct violation Chapter 31 (relating to sexual offenses) corrupts or tends corrupt the morals of any minor less than years of age, or who aids, abets, entices or encourages any such minor the commission of offense under Chapter commits felony of the third degree. Pa.C.S.A. § 6301(a)(1)(i). corruption of minors charge, therefore, encompasses any such act the consequence of which transcends any specific

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sex act separately punishable. Commonwealth v. Fisher, 787 A.2d 992, 995 (Pa. Super. 2001) (citing Commonwealth v. Hitchcock, 565 A.2d 1159, 1162 (Pa. 1989)).

§ 6320. Sexual exploitation of children (a) Offense defined. - -A person commits the offense of sexual exploitation of children if procures for another child under 18 years of age for the purpose of sexual exploitation. * * *

(c) Definitions. - -As used this section, the following words and phrases shall have the meanings given them this in subsection:

"Procure." To obtain or make available for sexual exploitation. "Sexual exploitation." Actual or simulated activity or nudity arranged purpose of sexual stimulation or gratification of any person.

18 Pa.C.S.A. § 6320(a).

Our review of the evidence record supports the court's verdict encouraged and /or requested H.E. procure her eleven year -old daughter to engage criminal acts of IDSI indecent assault, activities that would tend corrupt the morals of any minor.

According to Appellant, the testimony of unreliable. We note this portion of Appellant's argument merely attacks the credibility H.E. thus risks waiver.4 Brief at -45. Appellant selectively See Gibbs, A.2d -82 (Pa. Super. 2009), appeal denied, A.3d 670 2010) (An argument regarding credibility witness's testimony "goes weight of the evidence, (Footnote Continued Next Page)

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quotes from the text messages phone transcripts in his brief in an attempt to establish that his propositions were just talk evidenced desire alone. Appellant's Brief at 35.

Appellant's contention mere communication is not enough to amount to the crime of solicitation is incorrect. Appellant relies heavily on Commonwealth v. Mlinarich, 542 A.2d 1335 (Pa. 1988) which he summarizes thusly, "the Pennsylvania Supreme Court held solicitation had not occurred in Milnarich [sic] where the alleged statements amounted to no more than suggestion." Appellant's Brief 35. (emphasis the original). However, solicitation crime charged in Mlinarich. As such, the case inapposite. Appellant also cites passage from Commonwealth Hacker, 959 A.2d 380, 387 (Pa. Super. 2008), rev'd, A.3d 333 (Pa. 2011), which expressly reversed by our Supreme Court 2011.5 In its reversal, our Supreme Court reasoned:

The purpose of the solicitation statute to hold accountable those who would command, encourage, or request commission of crimes others... statute requires proof of (Footnote Continued)

sufficiency of the evidence. "). We note failed to challenge to weight of the evidence before the court prior sentencing or his post- sentence motion. See Pa.R.Crim.P. 607(A)(1)(3); v. Gillard, 850 A.2d 1273, 1277 Super. 2004) ( "As noted comment Rule 607, the purpose of this rule make it clear challenge weight of the evidence must be raised trial judge or it will be waived. "). We note that failed provide the full citation for case, which

would have indicated its reversal. Appellant's Brief

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such encouragement, but with the intent to accomplish the acts which comprise the crime, not necessarily with intent specific all the elements of that crime, much less those crimes with elements for which scienter irrelevant. Hacker, A.3d 333, 336 2011). complete reading of the transcript between and H.E.

reveals that Appellant persistently questioned about the specific, sexual conduct could accomplish her daughter, while trying determine the child's physical development and proposing clothing the child could wear during the sex acts. Further, Appellant repeatedly inquired about H.E.'s process explaining the encounter the child, and while under the impression that discussions had occurred between the mother and daughter, actively attempted determine the child's level of interest understanding of the proposed conduct. Defense Exhibit -12, -22. also submits absence of $100 condom on his probative of lack intent to have sexual contact with the child. Appellant's Brief 33. Appellant's argument ignores the fact his their February 16th February 19th telephone questions H.E. conversations describe specific conduct proscribed statute deviate intercourse indecent assault, i.e., (1) H.E.'s eleven -year -old daughter would place penis her mouth (2) child

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would touch Appellant's genitals sexual gratification.6 See 18 Pa.C.S.A. § 3101 (defining "deviate intercourse" sexual intercourse per os or per anus between human beings); Pa.C.S.A. §

Taken in their entirety, Appellant's communications with could reasonably have been found by to have constituted encouragement (1) sexually exploit the child, (2) commit IDSI, (3) commit indecent assault and (4) corrupt the morals of a minor. Additionally, the evidence supports the finding encouragement commit the aforementioned crimes involved Appellant's meeting H.E. on a specific date specific time, namely, February 2012, at 12:00 p.m., the parking lot of designated park Montgomery County, Pennsylvania. Accordingly, Appellant's first issue without merit.

In second issue, avers defense counsel was precluded from testing H.E.'s credibility truly meaningful effective manner. Appellant's Brief -56. Specifically, argues the trial court abused its discretion sustaining asked answered objection the Commonwealth. Id. trial court has discretion determine both scope

permissible limits of cross -examination. Briggs, 12 It apparent from transcripts bringing condom condition precedent specific to having intercourse with child. This manner of sexual contact discussed further, thus, the absence condom negligible.

A.3d 291, 335 (Pa. 2011) (citing Rivera, 983 A.2d 1211, 1230 (Pa. 2009)). trial judge's exercise of judgment in setting those limits will not be reversed the absence of clear abuse of that Id. at 335 (quoting Commonwealth. v. discretion, or error law. Birch, A.2d 1992) (internal quotation marks omitted)).

Trial counsel twice attempted establish upset that had called her after their meeting December. N.T., 4/1/15, at 64, 72. As noted trial court:

Because... defense counsel on two occasions asked [H.E.] the same question, the Commonwealth's objection the third attempt recross examination properly sustained. Not only was this objection properly sustained, this [court] completely rejects the claim defense counsel was precluded from testing [H.E.]'s credibility meaningful way. In fact, defense counsel's cross -examination [of] [H.E.] consumes 100 notes of testimony even though her direct pages in testimony consumes only pages. These pages testimony are replete with defense counsel testing [H.E.'s] credibility. Trial Court Opinion, 1/28/16, -18.

We find no abuse of discretion court's decision sustain Commonwealth's asked answered objection. Third, Appellant avers trial court failed to properly merge the commit involuntary deviate sexual criminal solicitation sentences intercourse with child, indecent assault less than thirteen years of age, corruption of minors. Appellant's Brief at -54. Specifically, argues:

Since [c]orruption statute incorporates unlimited variety [i]ndecent [a]ssault [s]atute of conduct and the involves behavior can further incorporate [i]nvoluntary [d]eviate three charges all merge for sentencing [s]exual acts, purposes should not have been sentenced separately for these three charges.

Appellant's Brief 49.

We disagree. claim crimes should have merged for sentencing purposes challenges the legality a sentence, which cannot be waived. Commonwealth v. Duffy, 832 A.2d 1132, 1136 (Pa. Super. 2003) (citing Commonwealth v. Kitchen, 814 A.2d 209, -215 (Pa. Super. 2002)). Our standard of review cases dealing questions of law is de novo, our scope of review is plenary. See Kimmel, 125 A.3d Super. 2015) (en banc) ( "A claim convictions merge for sentencing is question of law; therefore, our standard of review is de novo our scope of review is plenary. "). Section 9765 of our Judicial Code provides follows:

No crimes shall merge for sentencing purposes unless crimes arise from single criminal act and all of the statutory elements one offense are included statutory elements of the other offense. Where crimes merge sentencing purposes, the may sentence the defendant only the higher graded offense. Pa.C.S.A. § preliminary consideration under Section 9765 whether

two crimes at issue arose from single act. This because our courts have long held where defendant commits multiple distinct criminal acts, concepts of merger do not apply... [T]he proper focus whether there break chain criminal activity, but rather, whether the actor commits multiple criminal acts beyond which is necessary establish the bare elements the additional crime. If so, then the defendant has committed more than one criminal act. The rationale prevent defendants from receiving "volume discount" crime. Yeomans, A.3d Super. 2011) (citations omitted). three crimes underlying Appellant's solicitation convictions at issue

are separate distinct injurious acts. Here, the actions Appellant solicited from H.E.'s daughter tended to corrupt the morals of child under the age of eighteen separately punishable. See Fisher, 787 A.2d 995. Appellant arranged over the phone to meet with an eleven -year -old for distinct dual purposes of (1) engaging indecent contact the form of hand job (2) engaging an act of deviate intercourse. Appellant committed "multiple distinct criminal acts," beyond the soliciting hand job from child, thereby supporting his convictions IDSI with child, corruption of minors. Yeomans, supra. As Appellant committed three separate criminal acts, the crimes for which convicted do not merge. Thus, claim meritless.

In his fourth issue, Appellant challenges the discretionary aspects sentence. Specifically, contends his sentence was excessive because imposed an aggravated range sentence without adequately considering mitigating circumstances. Appellant's Brief Moreover, asserts "ideal candidate rehabilitation." Id. -63.

Challenges to discretionary aspects of sentencing do not entitle an appellant an appeal as of right. Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa. Super. 2000). Prior to reaching merits of a discretionary sentencing issue:

[W]e conduct a four -part analysis to determine: (1) whether appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 903; (2) whether issue was properly preserved at sentencing or a motion reconsider modify sentence, see Pa.R.Crim.P. 720; (3) whether appellant's brief has fatal defect, Pa.R.A.P. 2119(f); (4) whether there substantial question the sentence appealed from appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 2006) (most citations omitted), appeal denied, 909 A.2d 303 (Pa. 2006).

When appealing the discretionary aspects sentence, an appellant must invoke the appellate court's jurisdiction including brief separate concise statement demonstrating there substantial question as the appropriateness of the sentence under the Sentencing Code. Commonwealth v. Mouzon, 812 A.2d 617, 621 (Pa. 2002); Pa.R.A.P. 2119(f). "The requirement appellant separately set forth reasons relied upon allowance of appeal furthers the purpose evident the Sentencing Code whole of limiting any challenges trial court's evaluation of the multitude factors impinging the sentencing decision exceptional cases." Phillips, A.2d Super. 2008) (emphasis original) (internal quotation marks omitted), appeal denied, 954 A.2d 895 (Pa. 2008), cert. denied, 129 S. Ct. (2009). determination what constitutes a substantial question must be evaluated on a case -by -case basis. See Commonwealth v. Anderson, 830 A.2d 1013, 1018 (Pa. Super. 2003). A substantial question exists "only when appellant advances a colorable argument the sentencing judge's actions were either: (1) inconsistent a specific provision of the Sentencing Code; or (2) contrary fundamental norms which underlie the sentencing process." Sierra, 752 A.2d at 912 -13. claim trial erred imposing aggravated range sentence without considering mitigating circumstances raises a substantial question that the sentence was appropriate under the Sentencing Code. Commonwealth Felmlee, 828 A.2d 1105, 1107 (Pa. Super. 2003) (citing v. Anderson, 552 A.2d 1064 Super. 1988)).

As an initial matter, we note filed timely notice appeal, preserved instant issue motion reconsider sentence, included Pa.R.A.P. 2119(f) statement brief. Therefore, our analysis turns whether there substantial question sentence appealed from inappropriate under the Sentencing Code. See Pa.C.S.A. § 9781(b). We conclude has failed to present substantial question our review.

Appellant argues that the sentencing scheme in the instant case was outside the standard range the trial court failed to give sufficient consideration mitigating factors, which included his children, wife, work history reputation in the community. Appellant's Brief at 60. Appellant acknowledges trial court considered mitigating evidence presented on Appellant's behalf; however, takes issue with amount deference given trial court. Appellant's Brief at 62 -63. As part of the mitigating circumstances in his case, points out:

Unfortunately for Appellant, sixty years old, operates on a pre -internet approach to life very generationally naïve. He accordingly not cautious approach to internet sensations such the Ashly [sic] Madison webcite [sic]. Brief 63. We find this argument exceedingly unpersuasive when viewed the facts that Appellant (1) established an online presence AshleyMadison.com, (2) exchanged series of electronic messages with H.E., and (3) utilized the telephone, device has been existence since 1876, to conduct the aforementioned illegal activity. See N.T., 4/1/15, -17, -33.

Here, it uncontested court expressly considered the mitigating evidence fashioning aggravated range sentence was consistent with the Sentencing Code and norms underlying the sentencing process Consequently, failed demonstrate the existence substantial question our review. See Felmlee, 828 A.2d at 1107. At time sentencing, its opinion, the trial court outlined its procedure used arrive at Appellant's individualized sentence. N.T., 11/16/15, at 22- 23; Trial Court Opinion, 20 -21. trial court considered: (1) the presentence investigation report, arguments of counsel and statements letters of Appellant's family Commonwealth, (2) members friends, (3) gravity of the offense, (4) the Appellant's background criminal history, (6) "character attitude

[Appellant]; crafted sentencing scheme. N.T., 11/16/15, -14, -34. As such, dissatisfaction sentence does not invoke our jurisdiction. See Mouzon, 812 A.2d at 621. No relief due.

Judgment of sentence affirmed.

Judge Ott joins the memorandum.

President Judge emeritus Stevens concurs the result. Judgment Entered.

J seph D. Seletyn,

Prothonotary

Date: 11/8/2016 AshleyMadison.com and exchanged series messages. Notes of Testimony (N.T.), 4/1/15, at 11. Later month, Appellant and H.E. met on the day H.E. lost her job and she performed oral sex on him. Id. at 15. On January 17, 2012, during phone conversation Appellant inquired whether H.E. had obtained employment and when she responded she had not, offered to pay H.E. if her daughter gave him hand job. Id. at 10, 16 -17. H.E. initially thought Appellant was referring her then eighteen -year -old daughter, however, Appellant corrected H.E. clarify he was inquiring about H.E.'s eleven -year -old daughter. Id. at 16 -17, 75. H.E. got off phone the next day met with Detective Joseph Rudner, Jr. of Souderton Police Department. Id. at 18 -19, 73 -74. H.E. informed Detective Rudner had offered her $100 exchange hand job from her daughter. Id. at 174 -78. Subsequently, H.E. consented having her phone calls recorded, directed call Appellant. Id. at 27 -28.2 series of three calls were recorded on February 16th, 19th, 20th 2012.3 Id. at 87 -88. During February 16, phone call, Appellant confirmed age of the child, confirmed would get sexual contact

[2] spoke to again via phone January 22, 2012, however this conversation not recorded. N.T., 4/1/15, -89, 92.

[3] audio of the three calls, marked Commonwealth's Exhibit were played transcripts of the calls were marked into evidence as Defense Exhibit 4. N.T., 4/1/15, -39, -2