Com. v. Evans

Decision Date05 June 2006
Citation901 A.2d 528
PartiesCOMMONWEALTH of Pennsylvania, Appellee v. Dauntel Lamont EVANS, Appellant.
CourtPennsylvania Superior Court

William M. Shreve, Harrisburg, for appellant.

James P. Barker, Assistant District Attorney, Harrisburg, for Commonwealth, appellee.

BEFORE: DEL SOLE, P.J.E, STEVENS and ORIE MELVIN, JJ.

OPINION BY ORIE MELVIN, J.:

¶ 1 Appellant, Dauntel Lamont Evans, appeals nunc pro tunc from the judgment of sentence entered February 23, 2004, pursuant to the order entered September 2, 2005 granting his petition for relief under the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546, and reinstating his right to file a direct appeal nunc pro tunc. On appeal, he challenges the sufficiency of the evidence as to indecent assault, and the sufficiency of the determination that he is a sexually violent predator pursuant to Megan's Law.1 Additionally, he challenges the discretionary aspects and legality of his sentence. After review, we affirm.

¶ 2 The facts and procedural background of this matter were summarized by the trial court in its memorandum opinion as follows:

On January 29, 2003, eleven year old [B.H.] was on her way to the neighbors where her brother had been playing with one of his friends to tell him that it was time to go home when she encountered the appellant. The appellant, who happens to be the neighbor's boyfriend as well as a basketball coach to [B.H.'s] brother, called [B.H.] over and said that he had something to tell her that was to be kept between the two of them. The appellant asked [B.H.] if she liked him, to which [B.H.] responded that she liked him as a friend. The appellant continued to insist that [B.H.] liked him and then told her that there were some things that he would like to do to her but that he couldn't do because her mom was around and because she was just a little kid and it wouldn't look right. Then the appellant told [B.H.] that she was sexy and asked for a hug. When [B.H.] gave the appellant a hug he told her to look up and then grabbed her placing one arm behind her back and one arm around her neck while he kissed her and stuck his tongue in her mouth. [B.H.] pulled away from the appellant, went into the neighbor's house to get her brother and then returned home. As soon as [B.H.] got home she told her mother that she needed to talk to her and then she began to cry as she told her mother what had happened.

Following a jury trial on September 12, 2003, appellant was convicted of [indecent assault, corruption of minors, and unlawful contact/communication with a minor.2]. [The trial court] ordered an assessment by the Pennsylvania State Sexual Offenders Assessment Board (SOAB) to render an opinion as to whether the appellant should be classified as a sexually violent predator. On February 23, 2004, a hearing was held and [the trial] court heard testimony from the Commonwealth's witness, Nancy Einsel as well as the appellant. At the conclusion of the hearing, [the trial] court found appellant to be a sexually violent predator under Megan's Law[,] and imposed an aggregate term of incarceration of not less than ninety (90) months nor more than one hundred and eighty (180) months at a state correctional facility. In addition, appellant was ordered to pay the costs of prosecution plus fines.

Trial Court Opinion, 7/26/04, at 1-2 (citations to the record and footnote omitted).

¶ 3 On March 25, 2004, Appellant filed a direct appeal from his judgment of sentence. However, due to the untimely filing of his notice of appeal, this Court quashed Appellant's appeal on November 23, 2004. Commonwealth v. Evans, No. 486 MDA 2004 (Per Curiam Order). Appellant did not file a petition for allowance of appeal with our Supreme Court. On June 21, 2005, Appellant filed a pro se PCRA petition alleging ineffectiveness of counsel in failing to perfect his appeal in a timely manner. Present counsel was subsequently appointed to represent Appellant, and an amended PCRA petition was filed seeking reinstatement of Appellant's direct appeal rights due to the ineffectiveness of trial counsel. The Commonwealth failed to file a response to Appellant's amended PCRA petition. On September 2, 2005, the PCRA entered an order granting Appellant reinstatement of his direct appeal rights nunc pro tunc. This timely appeal followed.

¶ 4 Appellant presents the following questions for our review:

I. WHETHER THE EVIDENCE PRESENTED AT TRIAL WAS INSUFFICIENT TO CONVICT APPELLANT OF THE CRIME OF INDECENT ASSAULT[?]

II. WHETHER THE SENTENCE IMPOSED UPON APPELLANT WAS UNREASONABLE AND EXCESSIVE GIVEN APPELLANT'S CIRCUMSTANCES[?]

III. WHETHER THE COMMONWEALTH FAILED TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE DEFENDANT IS A SEXUALLY VIOLENT PREDATOR[?]

IV. WHETHER THE CRIMINAL OFFENSE OF UNLAWFUL CONTACT/COMMUNICATION WITH A MINOR SHOULD MERGE WITH THE CRIMINAL OFFENSE OF INDECENT ASSAULT AND/OR CORRUPTION OF MINORS FOR THE PURPOSE OF SENTENCING[?]

Appellant's brief, at 6.3

¶ 5 Appellant first challenges the sufficiency of the evidence to support his conviction for indecent assault. "Our well-settled standard of review when evaluating a challenge to the sufficiency of the evidence mandates that we assess the evidence and all reasonable inferences drawn therefrom in the light most favorable to the verdict-winner." Commonwealth v. Salamone, 897 A.2d 1209 (Pa.Super.2006) (citation omitted). We must determine whether there is sufficient evidence to enable the fact finder to have found every element of the crime beyond a reasonable doubt. Commonwealth v. Clark, 895 A.2d 633 (Pa.Super.2006) (citation omitted).

In applying the above test, we may not weigh the evidence and substitute our judgment for that of the fact-finder. In addition, we note that the facts and circumstances established by the Commonwealth need not preclude every possibility of innocence. Any doubts regarding a defendant's guilt may be resolved by the fact-finder unless the evidence is so weak and inconclusive that as a matter of law no probability of fact may be drawn from the combined circumstances. The Commonwealth may sustain its burden of proving every element of the crime beyond a reasonable doubt by means of wholly circumstantial evidence. Moreover, in applying the above test, the entire record must be evaluated and all evidence actually received must be considered. Finally, the trier of fact while passing upon the credibility of witnesses and the weight of the evidence produced, is free to believe all, part or none of the evidence.

Id.

¶ 6 The statute under which Appellant was convicted provides in relevant part that,

A person who has indecent contact with the complainant or causes the complainant to have indecent contact with the person is guilty of indecent assault if:

* * * * * *

the complainant is less than 13 years of age[.]

18 Pa.C.S.A. § 3126(a)(7). Furthermore, indecent contact is defined as "[a]ny touching of the sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual desire, in either person." 18 Pa.C.S.A. § 3101.

¶ 7 Appellant submits that "a kiss on the mouth is not the type of conduct the statute was intended to prevent." Appellant's brief, at 13. He argues that "there was no touching of an intimate part of the victim's person for the purpose of arousing or gratifying sexual desire." Id. at 15. We disagree. Quite to the contrary, the act of wrapping one's arms around another person and inserting one's tongue into another's mouth clearly involves the touching of an intimate part of that person. We agree with the Commonwealth that such an act does not occur outside of the context of a sexual or intimate situation. Moreover, the fact-finder was free to infer that his comments, that the victim was sexy and he would like to do some things to her, further revealed that his intimate touching of the victim was done for the purpose of arousing or gratifying his sexual desire. Based on our consideration of the record utilizing our established standard of review, we conclude the evidence is sufficient to support Appellant's conviction under 18 Pa.C.S.A. § 3126(a)(7).

¶ 8 Appellant's next issue challenges the discretionary aspects of his sentencing. He submits that his sentence is unreasonable in that the sentence at count three is outside the guideline's range and, further, that the trial court failed to consider Appellant's expression of remorse.

¶ 9 Sentencing is a matter vested within the discretion of the court and will not be disturbed absent an abuse of that discretion. Commonwealth v. Miller, 835 A.2d 377, 380 (Pa.Super.2003). Before this Court may review the merits of a challenge to the discretionary aspects of a sentence, we must engage in a four-pronged analysis. In Commonwealth v. Hyland, 875 A.2d 1175, 1183 (Pa.Super.2005), this Court stated:

Challenges to the discretionary aspects of sentencing do not entitle an appellant to appellate review as of right. Commonwealth v. Sierra, 752 A.2d 910, 912 (Pa.Super.2000). Prior to reaching the 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 and 903; (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence, see Pa. R.Crim.P. 1410 [now Rule 720]; (3) whether appellant's brief has a fatal defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial question that the sentence appealed from is not appropriate under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Hyland, 875 A.2d at 1183 (quoting Commonwealth v. Martin, 416 Pa.Super. 507, 611 A.2d 731, 735 (1992)). "Objections to the discretionary aspects of a sentence are generally waived if they are not raised at the sentencing hearing or raised in a motion to modify the sentence imposed at that hearing." Id. (...

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