Commonwealth v. Semenza

• Decision Date: 02 November 2015
• Docket Number: No. 531 MDA 2014,531 MDA 2014
• Citation: 127 A.3d 1
• Parties: COMMONWEALTH of Pennsylvania, Appellee v. Lawrence A. SEMENZA, Appellant.
• Court: Pennsylvania Superior Court

127 A.3d 1

COMMONWEALTH of Pennsylvania, Appellee

v.Lawrence A. SEMENZA, Appellant.

No. 531 MDA 2014

Superior Court of Pennsylvania.

Submitted March 30, 2015.

Filed Nov. 2, 2015.

Robert M. Buttner, Conflict Counsel, Scranton, for appellant.

Lisa A. Swift, Assistant District Attorney, Scranton, for Commonwealth, appellee.

BEFORE: OTT, J., WECHT, J., and JENKINS, J.

OPINION BY JENKINS, J.:

Lawrence Semenza, captain of the Old Forge Fire Department and chief of the Old Forge Police Department, was accused of committing various sexual offenses against a minor, N.B., a volunteer firefighter, in 2004–05. A jury found Semenza guilty of corruption of minors¹ and failure to report suspected child abuse² but acquitted him of unlawful contact with a minor,³ indecent exposure⁴ and indecent assault.⁵ The trial court sentenced Semenza to an aggregate of 1 ½–4 years' imprisonment. Semenza filed timely post-sentence motions, which the court denied, and a timely notice of appeal. Both Semenza and the trial court complied with Pa.R.A.P.1925.

The first issue in this appeal is whether the trial court abused its discretion in admitting evidence under Pa.R.E. 404(b) of Semenza's sexual relationship with an adult female, M.K.S.,⁶ in 2007–08, subsequent to Semenza's alleged crimes against N.B. The trial court held that this evidence was admissible under Rule 404(b)(2) to demonstrate the existence of a common scheme or plan. We disagree, and we reverse Semenza's judgment of sentence and remand for a new trial.

Semenza raises the following four issues on appeal:

1. Did the trial court err and abuse its discretion in allowing [S.] to testify to matters involving prior wrongs or bad acts which neither fell within an exception under Pa.R.E. 404(b) and, alternatively, were irrelevant and unduly and unfairly prejudicial to the Defendant's right to a fair trial?

2. Did the trial court err and abuse its discretion in refusing to give the jury instruction on corruption of minors as requested by the defense and in failing, over the objection of the defense, to provide the Pennsylvania Standard Criminal Jury Instruction on corruption of minors?

3. Did the trial court abuse its discretion and/or err as a matter of law in concluding that 18 Pa.C.S.A. § 6301(a)(1) is a sexual offense or similar to § 6301(a)(1)(ii) thereby requiring registration pursuant to 42 Pa.C.S.A. §§ 9799.13(1) & 9799.14 and in directing that [Semenza] register as a sex offender for a period of 15 years?

4. Did the trial court abuse its discretion and impose a manifestly excessive sentence which fell outside the Pennsylvania Sentencing Guidelines in assigning an offense gravity score of ‘5’ rather than a ‘4’ to the corruption of minors conviction, where the alleged conduct occurred between 2004–2007 and it could not be concluded from the verdict that the offense was one of a ‘sexual nature’?

Brief For Appellant, at 6.

In his first argument, Semenza challenges the trial court's decision to admit evidence of his sexual relationship with M.K.S. under the common scheme exception to Rule 404(b)(2). The admissibility of evidence is within the sound discretion of the trial court, and we will not disturb an evidentiary ruling absent an abuse of that discretion. Commonwealth v. Flor, 606 Pa. 384, 998 A.2d 606, 623 (2010). "An abuse of discretion is not merely an error of judgment, but is rather the overriding or misapplication of the law, or the exercise of judgment that is manifestly unreasonable, or the result of bias, prejudice, ill-will or partiality, as shown by the evidence of record." Commonwealth v. Harris, 884 A.2d 920, 924 (Pa.Super.2005).

The following evidence is pertinent to the common scheme issue. In 2004, Semenza was 40 years old, and he was both captain of the Old Forge Fire Department and a sergeant in the Old Forge Police Department. N.T., 10/16/13, at 62, 118. In 2005, he became chief of the Police Department. N.T., 10/21/13, at 201.

N.B. testified that in 2004, when she was 15 years old and a sophomore in high school, she wanted to become a member of the fire department, because she had grown up around firefighters. N.T. 10/16/13, pp. 53, 57. She applied to become a firefighter at the Old Forge firehouse. Semenza approved her application, making her the only female junior firefighter in the house. She began the Essentials training program that summer and completed it in the fall of 2004. Id. at 58–61. Semenza, her boss, was very supportive and accepting, and she saw him on a daily basis. Id. at 62, 63. She considered the firehouse a second home. Id. at 170.

N.B. testified that upon joining the fire department, she received old firefighter gear but was then immediately fitted for better fitting gear, a development she attributed to her relationship with Semenza. N.T., 10/16/13, at 66–70. Other evidence indicates, however, that she did not receive the new gear until one year after joining the fire department, and that 8 of the 12–15 members of the firehouse received new gear at the same time as she. N.T., 10/21/13, at 119–21. This equipment was paid for by the fire company. N.T., 10/16/13, at 70.

N.B. testified that her first intimate physical contact with Semenza occurred in the kitchen of the firehouse, where he touched and kissed her. N.T., 10/16/13, at 73. N.B. did not identify the date of this incident. Furthermore, in February 2005, after N.B. fought her first large fire, Semenza watched her take a shower in the firehouse bathroom. Id. at 82–85. N.B. also stated that she and Semenza kissed on multiple occasions, and that Semenza "grabbed [her] butt" in front of people and ground his body into her back. Id. at 117. Other witnesses observed displays of affection between Semenza and N.B. See pages 6–7, infra.

N.B. accused Semenza of digitally penetrating her vagina on two occasions. Once, in early 2005, while N.B. sat under a blanket with Semenza on the couch in the television room of the firehouse, Semenza placed his hand within her underwear and digitally penetrated her. N.T., 10/16/13, at 108–09, 111, 112. On another occasion close in time to the incident on the couch, Semenza digitally penetrated her in the firehouse weight room. Id. at 116. These were the only times that Semenza touched her vaginally, and he never touched her in that manner after her sixteenth birthday in March 2006. Id. at 117, 191, 197. Semenza never had vaginal intercourse or oral sex with N.B. Id. at 178, 196.

N.B. added that on another unspecified date, Semenza exposed himself to her in the firehouse kitchen and asked her to touch his penis. N.T., 10/16/13, at 117.

N.B. stated that she went to multiple training events with Semenza and other members of the department. N.T., 10/16/13, at 91. At most events, Semenza was an instructor. Id. On one trip, they had "intimate kissing" in his room, but nothing else happened. Id. at 94–95.

N.B. testified that she wanted a romantic relationship with Semenza and believed that she was almost like his wife. N.T., 10/16/13, at 214. As part of their relationship, Semenza gave N.B. presents, such as a Claddagh ring (a traditional Irish ring) and a Maltese Cross. N.T., 10/16/13, at 98, 100. These gifts, however, coincided with other members of the fire department exchanging Christmas gifts. Id. at 97, 100–102, 174.

N.B. testified that her romantic relationship with Semenza started to wane during her senior year in high school and ended by the end of 2006 or beginning of 2007. N.T., 10/16/13, at 144–145, 244. According to N.B., she became "very busy" with "[her] senior project and senior activities," and Semenza was busy as well, so their relationship "kind of just faded away." Id. at 148.

The testimony of other Commonwealth witnesses suggests that Semenza's relationship with N.B. had a sexual dimension. Kim Zupon, Semenza's ex-wife, and Michael Zupon, Kim's present husband, testified that in the spring of 2004 or 2005,⁷ they observed Semenza with N.B. in a lingerie department in Wal–Mart. N.T., 10/17/13, at 160–62, 180–82. Semenza was holding thong underwear against N.B. and commenting about how thong underwear would look sexy on her. N.T., 10/17/13, at 180–82. Alysha Englert testified that in the fall of 2004, she observed Semenza kissing N.B. romantically in the firehouse kitchen. N.T., 10/17/13, at 14749. Tammy Eastwood testified that she observed Semenza kissing N.B. on the street outside of the police department. The kiss "started off as a slow, passionate kiss, hands going up and down, again, above the clothes, below the clothes."⁸ N.T., 10/18/13 at 214. Walter Chiavicci, another firefighter, testified that he in the fall of 2004, observed Semenza and N.B. in the firehouse kitchen with his hand up her skirt. N.T., 10/17/13, at 267, 280. Steve Lowe, a former policeman, testified that on Halloween evening in 2004 (October 31, 2004), he observed Semenza and N.B. close together on the couch in the firehouse with a blanket covering them. Id. at 288–89. Lowe also testified that he heard Semenza tell N.B. that he wanted to take her next door and have sex with her, using the "f---" expletive. Id. at 291–92.

Over Semenza's objection, the trial court permitted the Commonwealth to present M.K.S.'s testimony as "common scheme" evidence under Rule 404(b). M.K.S. testified that she met Semenza in January 2007. N.T., 10/18/13, at 30. Before meeting Semenza, M.K.S. joined the military at age 17,⁹ went through basic and advanced individual training, came home for two weeks, was deployed to Iraq, and returned to the United States in 2006. N.T., 10/18/13, at 25. In January 2007, the same month she met Semenza, she graduated from the Police Academy at Lackawanna College.¹⁰ Id. at 25–26. The record does not explicitly disclose M.K.S.'s age, but it is unlikely that she accomplished all of these milestones before the age of eighteen. Thus, we find it all but certain that she was at least eighteen, and no longer a minor, at the time she met Semenza.

After M.K.S. met Semenza through mutual...