Commonwealth v. Strafford

• Decision Date: 06 August 2018
• Docket Number: No. 3827 EDA 2016,3827 EDA 2016
• Citation: 194 A.3d 168
• Parties: COMMONWEALTH of Pennsylvania v. James Albert STRAFFORD, Appellant
• Court: Pennsylvania Superior Court

194 A.3d 168

COMMONWEALTH of Pennsylvania

v.James Albert STRAFFORD, Appellant

No. 3827 EDA 2016

Superior Court of Pennsylvania.

Submitted December 18, 2017

Filed: August 6, 2018

Patrick J. Connors, Public Defender and Steven M. Papi, Public Defender, Media, for appellant.

Katayoun M. Copeland, Assistant District Attorney, and Andrew S. Kovach, Assistant District Attorney, Media, for Commonwealth, appellee.

BEFORE: GANTMAN, P.J., OLSON, J., and DUBOW, J.

OPINION BY DUBOW, J.:

Appellant, James Albert Strafford, appeals from the Judgment of Sentence entered by the Delaware County Court of Common Pleas following his convictions after a jury trial of Indecent Assault of a Person less than 13 years of age, Corruption of a Minor, and Involuntary Deviate Sexual Intercourse with a Child.¹After careful review, we affirm.

Briefly, between June 2013 and December 2014, Appellant sexually abused the eight-year-old victim.Appellant, a friend of the victim's cousin and known to the victim as "Jay," was a frequent overnight guest in the victim's home.In December 2014, the victim spontaneously disclosed the abuse to his older brother and then to his mother—while Appellant was in the house.The victim's mother reported the abuse that night to Pennsylvania State Police, and the victim provided a video-recorded statement to a child forensic interviewer on December 8, 2014.

The Commonwealth charged Appellant with, inter alia , the above offenses.On March 18, 2015, the Commonwealth filed (1) a Petition to Admit Out-of-Court Statements Under the Tender Years Hearsay Exception, and (2) a Motion to Allow a Child Witness to Testify Under Pennsylvania Uniform Child Witness Testimony by Alternative Methods Act.Following a hearing, the trial court granted the Commonwealth's Motions.

On August 3, 2016, a jury convicted Appellant of Indecent Assault of a Person less than 13 years of age, Corruption of a Minor, and Involuntary Deviate Sexual Intercourse with a Child.

On October 20, 2016, the trial court imposed an aggregate term of six to twelve years' incarceration, followed by five years' probation.At the time, Indecent Assault of a Person less than 13 years of age and Involuntary Deviate Sexual Intercourse with a Child were enumerated Tier III offenses under the Sexual Offender Registration and Notification Act ("SORNA") and required lifetime registration as a sexual offender.42 Pa.C.S. § 9799.14(d);42 Pa.C.S. § 9799.15(a)(3).²At sentencing, Appellant signed a notification form stating that he understood his registration requirements.

On November 18, 2016, Appellant filed a Notice of Appeal.Both Appellant and the trial court complied with Pa.R.A.P. 1925.

Appellant presents three issues on appeal:

1) Whether the lower court erred in admitting the out of court statements (including related audio recording and contemporaneous writings) that the complainant allegedly supplied to his brother, his mother, and to a forensic interviewer since the time, content, and circumstances of those statements did not demonstrate sufficient indicia of reliability as required for the tender years exception to the hearsay rule?

2) Whether the lower court erred in permitting the minor complainant to testify by contemporaneous alternative means (closed circuit video) since it was not established that testifying either in an open forum in the presence and full view of the finder of fact or in [Appellant's] presence would result in him suffering from serious emotional distress such that it would substantially impair his ability to reasonably communicate?

3) Whether the evidence is insufficient to sustain the convictions for involuntary deviate sexual intercourse, indecent assault, and corruption of minors since Appellant was not identified as the offender beyond a reasonable doubt, especially where the complainant was not asked to identify him, did not reference his last name, and where no stipulation to identity was presented to the jury?

Appellant's Briefat 5.

As an initial matter, we address an issue of first impression regarding the legality of Appellant's Judgment of Sentence.

Legality of Sentence

In his Reply Brief, Appellant challenges the legality of his sentence based on Commonwealth v. Muniz , 640 Pa. 699, 164 A.3d 1189(2017)(OAJC)(holding that SORNA's enhanced registration requirements are punitive and, therefore, applying SORNA retroactively is a violation of the ex post facto clauses of the U.S. Constitutionand Pennsylvania Constitutions).Appellant argues that his lifetime registration requirement—which he argues now constitutes direct criminal punishment rather than a collateral civil consequence in light of MunizandCommonwealth v. Hart , 174 A.3d 660(Pa. Super.2017) —exceeds the lawful statutory maximum sentences applicable to his convictions.³Appellant's Reply Briefat 1-4(citing18 Pa.C.S. § 1103(entitled "Sentence of imprisonment for felony")).⁴

This court may review issues regarding the legality of sentence sua sponte .Commonwealth v. Edrington , 780 A.2d 721, 723(Pa. Super.2001)."We review the legality of a sentence de novo and our scope of review is plenary."Commonwealth v. Butler , 173 A.3d 1212, 1215(Pa. Super.2017).

Appellant correctly observes that the Muniz Court found that the registration requirement mandated by SORNA is punitive.SeeMuniz , supra at 1218.We, thus, begin our analysis of Appellant's challenge with a review of various statutes and legal principles relating to punishments.

Our Supreme Court has explained the well-settled principle that the General Assembly "has the exclusive power to pronounce which acts are crimes, to define crimes, and to fix the punishment for all crimes.The legislature also has the sole power to classify crimes[.]"Commonwealth v. Eisenberg , 626 Pa. 512, 98 A.3d 1268, 1283(2014)(citation and quotation omitted).

Our General Assembly has authorized courts to impose specific punishments when fashioning a sentence, and specified maximum terms and amounts of those punishments.These categories of punishment include (1) partial or total confinement, (2) probation, (3) state or county intermediate punishment, (4) a determination of guilt without further penalty, and (5) a fine.42 Pa.C.S. § 9721.

With respect to the punishment of incarceration, 18 Pa.C.S. § 1103 governs the maximum authorized sentence of imprisonment for felony convictions.By a separate statute, these maximum allowable terms also apply to probationary sentences, a different category of punishment authorized by the General Assembly.In 42 Pa.C.S. § 9754(a), the legislature directed that "[i]n imposing an order of probation the court shall specify at the time of sentencing the length of any term during which the defendant is to be supervised, which term may not exceed the maximum term for which the defendant could be confined , and the authority that shall conduct the supervision."Id.(emphasis added).Thus, the legislature explicitly connected the authorized punishments of incarceration and probation by statute.

However, most sentencing alternatives are not tied to the maximum authorized term of incarceration.For example, the legislature has authorized courts to include in sentences the requirement that a defendant pay a fine or restitution.These categories of punishment are not limited by the maximum period of incarceration; rather, the legislature set different maximum authorized amounts of punishment a court may impose as part of its sentence.See , e.g. , 18 Pa.C.S. § 1101(defining maximum fines);18 Pa.C.S. § 1106(providing statutory scheme for restitution for injuries to person or property).

In SORNAthe legislature authorized courts to include periods of registration as part of a sentence.Similar to the treatment of the payment of fines or restitution, the legislature did not tie the period of registration to the length of incarceration.See42 Pa.C.S. § 9799.14("Sexual offenses and tier system");42 Pa.C.S. § 9799.15("Period of registration").SORNA's registration provisions are not constrained by Section 1103.Rather, SORNA's registration requirements are an authorized punitive measure separate and apart from Appellant's term of incarceration.The legislature did not limit the authority of a court to impose registration requirements only within the maximum allowable term of incarceration; in fact, the legislature mandated the opposite and required courts to impose registration requirements in excess of the maximum allowable term of incarceration.

Accordingly, we conclude that Appellant's lifetime registration requirement authorized by SORNA does not constitute an illegal sentence.Appellant is not entitled to relief.

Tender Years Hearsay Act

Appellant asserts that the trial court erred in admitting the child-victim's out-of-court statements through the hearsay testimony of his brother, his mother, and a child forensic interviewer pursuant to the hearsay exception codified in the Tender Years Hearsay Act. Appellant's Briefat 14-23.Appellant claims that there were not sufficient indicia of reliability to meet the requirements of 42 Pa.C.S. § 5985.1(a)(1).

The "[a]dmission of evidence is within the sound discretion of the trial court and will be reversed only upon a showing that the trial court clearly abused its discretion."Commonwealth v. Tyson , 119 A.3d 353, 357(Pa. Super.2015)(en banc )(citations omitted)."Accordingly, a ruling admitting evidence will not be disturbed on appeal unless that ruling reflects manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support to be clearly erroneous."Commonwealth v. Huggins , 68 A.3d 962, 966(Pa. Super.2013)(citation and quotation marks omitted).

The Tender Years Hearsay Act creates an exception to the general rule against hearsay for a statement made by a child who was twelve years old or younger at the time of the statement.42 Pa.C.S. § 5985.1(a);Commonwealth v. Barnett , 50 A.3d 176, 182(Pa. Super.2012).Relevant to...