Commonwealth v. Strunk
| Decision Date | 06 January 2023 |
| Docket Number | 160 MDA 2022,J-A27031-22 |
| Parties | COMMONWEALTH OF PENNSYLVANIA v. MICHAEL L. STRUNK Appellant |
| Court | Pennsylvania Superior Court |
COMMONWEALTH OF PENNSYLVANIA
v.
MICHAEL L. STRUNK Appellant
No. 160 MDA 2022
J-A27031-22
Superior Court of Pennsylvania
January 6, 2023
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence Entered December 1, 2021 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0000106-2020
BEFORE: DUBOW, J., McLAUGHLIN, J., and COLINS, J. [*]
MEMORANDUM
COLINS, J.
Appellant, Michael L. Strunk, appeals from the aggregate judgment of sentence of 17 years to 35 years' incarceration imposed by the Court of Common Pleas of Dauphin County following his conviction by a jury of two counts of sexual assault, one count of aggravated indecent assault, three counts of indecent assault, one count of unlawful contact with a minor, and one count of corruption of minors.[1] For the reasons set forth below, we affirm.
Appellant was charged with the above offenses for committing three separate assaults on a girl who was 16 and 17 years old at the time (Victim). Appellant, who was Victim's mother's paramour, was living with Victim and
Victim's mother at the time. The charges were tried to a jury from July 22 to 23, 2021.
At trial, Victim testified that in February 2019, approximately a week before her 17th birthday, Appellant fondled her breast under her shirt, pulled down her pants and underwear, and had sexual intercourse with her when she had fallen asleep on the living room couch after she got home from work. N.T. Trial, 7/22/21, at 55-64. Victim woke up when Appellant was fondling her breast, but said nothing to Appellant during this attack and pretended to be asleep. Id. at 61. Victim testified that slightly more than a month later, on April 3, 2019, when she was medicated after having her wisdom teeth and other teeth removed, Appellant fondled her breast, pulled down her pants, and repeatedly put his fingers in her vagina. Id. at 65-71, 109. Victim testified that she was crying and tried to scream and fight him off but that she couldn't because of the effects of the pain medication that she was on and because her mouth was full of gauze. Id. at 69-71. Victim testified that a few days after this second assault, Appellant came into her bedroom after she had gone to bed, took her pajama pants off, and inserted his penis in her vagina. Id. at 71-76, 112. Victim testified that she pretended to be asleep and that the assault stopped when her mother walked into the bedroom and got angry at Appellant and Appellant left the room with her mother. Id. at 76-78, 117-19. Victim testified that she did not want the assaults reported to the police because she was afraid that she and her mother would become
homeless and she did not want to have to testify. Id. at 78-79. Victim testified that the assaults were not reported to the police and instead, she and her mother installed a lock on Victim's bedroom door, and that after the lock was installed, Victim woke up on several occasions to the sound of Appellant trying to pick the lock. Id. at 79-80. Victim testified that she had herself committed for psychiatric treatment shortly after the third assault because she was suicidal. Id. at 80, 91-92. Several months later, Victim spoke about being assaulted to an adult who had taken care of her in the past when Victim's mother was in drug treatment and that adult reported that Victim had been sexually assaulted. Id. at 27-29, 96-97.
Victim's mother testified that she walked into Victim's bedroom and found Appellant naked from the waist down in bed with Victim, who was also naked from the waist down. N.T. Trial, 7/22/21, at 146-48. Victim's mother testified that Victim appeared to be asleep. Id. at 148. Victim's mother testified that she had smoked PCP that night and was ashamed and afraid and that she did not make Appellant leave the house or call the police. Id. at 145, 148-51, 169-73. A Children and Youth Services worker testified that she spoke to Appellant in October 2019 after the sexual abuse report was received and that Appellant denied that he had any sexual contact with Victim. Id. at 182-85. A police detective who interviewed Appellant twice testified that in an October 2019 interview, Appellant denied that he had any sexual contact with Victim. N.T. Trial, 7/23/21, at 209-10. The detective testified that after
Appellant was arrested in November 2019, he asked to speak to her again and after being given Miranda[2] warnings, Appellant gave a videotaped statement. Id. at 211-13. In that videotaped statement, which was played to the jury, Appellant admitted sexual contact with Victim, but claimed that he mistook Victim for Victim's mother in the first assault and that the second and third incidents were consensual. Id. at 212-14, 218, 227, 242-43. Appellant did not testify or call any witnesses in his defense. Id. at 235-39.
On July 23, 2021, the jury convicted Appellant of all of the above charges. N.T. Trial, 7/23/21, at 296-98. Following the verdict, the trial court directed that the probation department prepare a pre-sentence investigation report and ordered that Appellant be assessed by the Sexual Offenders Assessment Board (SOAB) to determine if he should be classified as a Sexually Violent Predator (SVP) under the Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S. § 9799.10, et seq. N.T. Trial, 7/23/21, at 300; Trial Court Order, 7/26/21.
On December 1, 2021, the trial court held a hearing on whether Appellant should be classified as an SVP and to sentence Appellant. At this hearing, the trial court heard testimony from the SOAB evaluator who assessed Appellant. N.T. SVP & Sentencing Hearing at 5-21. No other witnesses testified on the issue of whether Appellant should be classified as
an SVP. Id. at 21. Following the SOAB evaluator's testimony, the trial court found that Appellant was an SVP. Id. at 21-22. The trial court then imposed consecutive sentences of 5 to 10 years' incarceration for each of the sexual assault and aggravated indecent assault convictions, a concurrent sentence of 5 to 10 years' incarceration for the unlawful contact with a minor conviction, and a consecutive sentence 2 to 5 years' incarceration for corruption of minors, resulting on an aggregate sentence of 17 years to 35 years' incarceration. Id. at 36-41; Sentencing Order.[3]
Appellant filed a timely post-sentence motion in which he sought a new trial on the ground that the verdict was against the weight of the evidence and moved for modification of his sentence on the ground that the imposition of consecutive sentences was excessive and unreasonable. Post-Sentence Motion at 2-3. By order entered December 30, 2021, the trial court denied Appellant's post-sentence motion in its entirety. Trial Court Order, 12/30/21. This timely appeal followed.
Appellant presents the following four issues for our review:
I. Whether the evidence was insufficient to convict Mr. Strunk of unlawful contact with a minor, where the complainant testified that the sole verbal contact was in the first incident after any criminal offense was completed?
II. Whether the evidence at trial shocks the consci[ence] where the evidence produced clearly showed a mother finding her daughter in an alleged sexual assault and her daughter did not cry out for help, speak to her afterw[a]rds to characterize it as an assault, nor were the police called.
III. Whether the evidence failed to sufficiently show, by clear and convincing evidence, that M[r]. Strunk should be an SVP where the sole deciding factor appeared to be his number of offenses with the same victim.
IV. Whether the aggregate sentence of 17.5[4]-35 years was clearly unreasonable, so manifestly excessive as to constitute an abuse of discretion and inconsistent with the protection of the public, gravity of offenses, and defendant's rehabilitative needs?
Appellant's Brief at 11-12 (suggested answers omitted). None of these issues merits relief.
Appellant argues that the evidence at trial was insufficient to convict him of unlawful contact with a minor because there was no evidence that he communicated with Victim to accomplish any of the sexual assaults. Our standard of review in a challenge to the sufficiency of the evidence is well-settled:
The standard we apply in reviewing the sufficiency of the evidence is whether viewing all the evidence admitted at trial in the light most favorable to the verdict winner, there is sufficient evidence to enable the fact-finder to find every element of the crime beyond a reasonable doubt. In applying the above test, we may not weigh the evidence and substitute our judgment for 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.
Commonwealth v. Antidormi, 84 A.3d 736, 756 (Pa. Super. 2014) (quoting Commonwealth v. Estepp, 17 A.3d 939 (Pa. Super. 2011)).
The Crimes Code provides that a person commits the crime of unlawful contact with a minor
if he is intentionally in contact with a minor, or a law enforcement officer acting in the performance of his duties who has assumed the identity of a minor, for the purpose of engaging in an activity prohibited under any of the following, and either the person initiating the contact or the person being contacted is within this Commonwealth:
(1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses).
18 Pa.C.S. § 6318(a). The statute...
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