Com. v. Sanders

• Decision Date: 15 February 1985
• Citation: 339 Pa.Super. 373,489 A.2d 207
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Brian SANDERS, Appellant.
• Court: Pennsylvania Superior Court

Page 207

489 A.2d 207

339 Pa.Super. 373

COMMONWEALTH of Pennsylvania, Appellee, v. Brian SANDERS, Appellant.

Superior Court of Pennsylvania.

Argued May 10, 1984.

Filed Feb. 15, 1985.

Larry J. Folmar, Asst. Public Defender, Norristown, for appellant.

J. William Ditter, III, Asst. Dist. Atty., Norristown, for Commonwealth, appellee.

Before WICKERSHAM, WIEAND and HOFFMAN, JJ.

WIEAND, Judge:

Brian Sanders, a juvenile, having been certified for trial as an adult, was tried without jury and found guilty of rape, ¹ indecent assault, ² indecent exposure, ³ unlawful restraint, ⁴ recklessly endangering another person, ⁵ simple assault, ⁶ aggravated assault, ⁷ and escape. ⁸ Post-verdict motions were denied. At sentencing, the court concluded that the assault convictions and the conviction for indecent exposure had merged into the conviction for rape. Consecutive sentences of imprisonment totalling 17 to 34 years were imposed for rape, unlawful restraint, recklessly endangering another person and escape. On appeal, Sanders argues (1) that the evidence was insufficient to sustain the conviction for recklessly endangering another person; (2) that several evidentiary rulings by the trial court were erroneous; (3) that the sentence was excessive; and (4) that reckless endangerment merged with aggravated assault and rape for sentencing purposes. He also argues that the Juvenile Court failed to properly certify him for trial as an adult.

In determining whether evidence is sufficient to sustain a conviction, we view the evidence in a light most favorable to the Commonwealth and, drawing therefrom all proper inferences which could reasonably have been drawn, determine whether the evidence was sufficient to prove all elements of the crime beyond a reasonable doubt. Commonwealth v. Miller, 327 Pa.Super. 154, 156-57, 475 A.2d 145, 146 (1984); Commonwealth v. Leatherbury, 322 Pa.Super. 222, 225, 469 A.2d 263, 265 (1983).

The evidence in this case showed that appellant, at age 15, had been involuntarily committed to Norristown State Hospital in Montgomery County. On the evening of September 30, 1981, he was escorted to a laundry facility by Polly Holland, a psychiatric security aide trainee. Upon their return, appellant managed to grab Holland around the neck. He then dragged her backwards into a bathroom and later forced her into a day room in a remote part of the hospital. He held her neck so tightly that she was unable to breathe, and she sustained injury which required physical therapy for two months and the wearing of a neck brace for six months. Appellant took Holland's keys from her, locked the doors to the day room, and ordered Holland to undress. With his hand on her neck, appellant threatened to break Holland's neck if she didn't follow his instructions. He then forced her to the floor and engaged in sexual intercourse with her. Thereafter, he locked his victim in the room and left. Appellant escaped from the hospital by using a picnic table to assist him in climbing over the wall. Ms. Holland was able to use a pay phone in the day room to call for assistance, but she was too late to prevent appellant's escape. He was apprehended in Philadelphia on November 20, 1981.

A person commits the misdemeanor of recklessly endangering another person "if he recklessly engages in conduct which places or may place another person in danger of death or serious bodily injury." 18 Pa.C.S. § 2705. This section is, in effect, an ad hoc reckless conduct statute. Toll, Pennsylvania Crimes Code Annotated § 2705 (1974). A sine qua non to a conviction is a conscious disregard of a known risk of death or great bodily harm to another person. Commonwealth v. Henck, 329 Pa.Super. 275, 279, 478 A.2d 465, 468 (1984). In this case, the trial court could properly find from the manner in which appellant grabbed Polly Holland around the neck and pulled her backwards into a room that he consciously disregarded a known risk of serious bodily harm to her person.

While the victim was testifying on direct examination, she was asked, "Did you engage in this act of sexual intercourse willingly?" (N.T. 44). A general objection was made to the question and overruled by the trial court. Appellant contends that this was error. Since the objection was general, the court's ruling will be upheld if the evidence was competent for any purpose. Woldow v. Dever, 374 Pa. 370, 377, 97 A.2d 777, 781 (1953); Commonwealth v. Marshall, 287 Pa. 512, 521, 135 A. 301, 304 (1926). The question asked in the instant case was intended to ascertain from the witness whether she had consented to have intercourse with appellant and had willingly engaged therein without forcible compulsion. This evidence was relevant and was properly received.

Appellant argues also that the trial court erred when it overruled a specific objection on the grounds of repetitiveness to a question asked of the victim to determine the duration of vaginal intercourse. In both instances, the witness answered that she did not know. Whether to exclude repetitive testimony is a matter within the discretion of the trial court. Commonwealth v. Simmons, 482 Pa. 496, 510, 394 A.2d 431, 438 (1978). The trial judge in this instance committed no abuse of discretion. Moreover, appellant was not prejudiced thereby in any way.

The Commonwealth offered into evidence a photograph of a picnic table leaning against the wall of the hospital over which appellant allegedly had escaped. There was testimony that the photograph depicted the table as it had appeared on the night of the escape. The evidence also disclosed, however, that the photograph had been taken three weeks before trial and almost ten months after the alleged escape.

The admission of photographs is a matter largely within the discretion of the trial judge. Commonwealth v. Fields, 317 Pa.Super. 387, 402, 464 A.2d 375, 383 (1983). "A photograph must be verified either by the testimony of the person who took it or by another person with sufficient knowledge to state that it fairly and accurately represents the object or place reproduced as it existed at the time of the [event], or if there is a difference or change, the difference or change is specifically pointed out and is readily capable of being clearly understood and appreciated by the [factfinder]." Tolbert v. Gillette, 438 Pa. 63, 66, 260 A.2d 463, 465 (1970) (emphasis deleted), quotingSemet v. Andorra Nurseries, Inc., 421 Pa. 484, 488-489, 219 A.2d 357, 360 (1966). See also: Commonwealth v. Braithwaite, 253 Pa.Super. 447, 452-453, 385 A.2d 423, 426 (1978). The trial judge, who was also the trier of facts, was aware that the photograph had been staged three weeks prior to trial in order to show the manner in which the picnic table had been used to gain access to the top of the wall. The court did not abuse its discretion in receiving this evidence. It was relevant to explain how appellant was able to escape over the wall of the hospital.

The imposition of a proper sentence is a matter which is vested in the sound discretion of the trial court. Commonwealth v. Muller, --- Pa.Super. ----, ----, 482 A.2d 1307, 1311 (1984). " '[U]nless the sentence exceeds the statutory maximum or is so excessive as to constitute a manifest abuse of discretion, the trial court's determination will not be disturbed.' " Commonwealth v. Ignatavich, --- Pa.Super. ----, ----, 482 A.2d 1044, 1048 (1984), quoting Commonwealth v. Scarborough, 313 Pa.Super. 521, 533, 460 A.2d 310, 316 (1983). A sentencing court must examine the circumstance of the crime and the individual background of the defendant and in so doing is entitled to consider intervening criminal activities and convictions of the defendant. Commonwealth v. Johnson, --- Pa.Super. ----, ----, 481 A.2d 1212, 1214 (1984).

The sentences imposed upon appellant were within the permissible ranges established by the legislature. The sentencing court carefully considered appellant's personal history, which included a lengthy juvenile record of delinquency adjudications, many of them involving assaultive, sex-related offenses. See: N.T. December 14, 1982, pgs. 19-22. On June 23, 1982, appellant was also convicted in Philadelphia of attempted rape and involuntary deviate sexual intercourse. Rehabilitation in mental institutions had been tried unsuccessfully, a fact evidenced by the instant offenses. The sentence imposed by the court was not manifestly excessive or an abuse of discretion in view of appellant's history.

Appellant contends, however, that for sentencing purposes the offense of recklessly endangering merged in the crime of rape. We are constrained to agree. "Analysis of duplicitous sentence questions has traditionally revolved around the concept of injury to the sovereign, in this case the Commonwealth." Commonwealth v. Walker, 468 Pa. 323, 331, 362 A.2d 227, 231 (1976). For crimes to merge, one must "necessarily involve" the other. Commonwealth v. Miranda, 296 Pa.Super. 441, 461, 442 A.2d 1133, 1143 (1982). In Commonwealth ex rel. Moszczynski v. Ashe, 343 Pa. 102, 21 A.2d 920 (1941), the Supreme Court said:

The true test of whether one criminal offense has merged in another ... is whether one crime necessarily involves another, as, for example, rape involves fornication, and robbery involves both assault and larceny. The 'same transaction' test is valid only when the 'transaction' means a single act. When the 'transaction' consists of two or more criminal acts, the fact that the two acts are "successive" does not require the conclusion that they have merged. Two crimes may be successive steps in one crime and therefore merge, ... or they may be two distinct crimes which do not merge.

Id. at 104-105, 21 A.2d at 921 (emphasis in original). "Following this test, it has been noted that for two crimes to merge 'they must be part of the same act." Commonwealth v. Miranda, supra 296 Pa.Super. at 461, 442 A.2d at 1143. See also: Commonwealth v. Wojciechowski, ...