Commonwealth v. Witmayer
| Decision Date | 22 July 2016 |
| Docket Number | No. 1560 EDA 2015,1560 EDA 2015 |
| Citation | 2016 PA Super 164,144 A.3d 939 |
| Parties | COMMONWEALTH of Pennsylvania, Appellee v. Michael WITMAYER, Appellant. |
| Court | Pennsylvania Superior Court |
Joseph P. Lenik, Media, and Richard J. Blasetti, Public Defender, Media, for appellant.
Kevin R. Steele, Assistant District Attorney, Robert M. Falin, Assistant District Attorney, and Adrienne D. Jappe, Assistant District Attorney, Norristown, for Commonwealth, appellee.
BEFORE: BOWES, MUNDY and PLATT,* JJ.
OPINION BY BOWES
, J.:
Michael Witmayer appeals from the judgment of sentence of five and one-half to twenty years imprisonment that was imposed after he was convicted at a jury trial of involuntary deviate sexual intercourse with a child less than sixteen years of age (“IDSI”), indecent assault of a person less than sixteen years of age, corruption of a minor, and endangering the welfare of a child. We affirm.
Appellant's convictions stemmed from his pattern of sexual abuse of C.M. that occurred when C.M. was eight to fourteen years old in both Chester County and Montgomery County. Appellant, who was a father-figure to the victim, masturbated the victim, performed oral sex on him, and had C.M. perform oral sex on Appellant. In May 2010, C.M., who was twelve years old at the time, made allegations of sexual abuse against Appellant regarding events that transpired in Chester County. Detective Timothy Prouty of the North Coventry Police Department investigated the allegations, and, on June 3, 2010, Appellant met with Detective Prouty at the police station. When Appellant arrived, he was taken to the interview room, and Detective Prouty told him specifically that he was not under arrest and that he was free to leave at any time. Appellant was provided with directions for exiting the station.
Shortly thereafter, Detective Prouty and a colleague began to discuss the sexual abuse allegations. The victim had told Detective Prouty about an incident that occurred when he and Appellant were in a car alone riding from a Wal–Mart located in Morgantown and headed towards a mall known as Coventry Mall. C.M. said that, while they were on a side road, Appellant told C.M. that he may be gay and convinced C.M. to remove his pants and underwear and touch his own penis. After C.M. complied, Appellant asked to touch C.M.'s penis. C.M. initially consented, but changed his mind and pushed away Appellant's hand.
When asked about this allegation, Appellant admitted that he had been with the victim at the Wal–Mart in Morgantown and that, when they left, they headed toward Coventry Mall alone in Appellant's car. Appellant acknowledged that they took a side road during the journey. Appellant represented that C.M., not Appellant, had said that he might be gay and that C.M. had voluntarily lowered his pants and underwear, and began to touch his own penis. Appellant also claimed that C.M. asked Appellant to touch C.M.'s penis, but Appellant refused, telling C.M. that they could not engage in sexual contact until C.M. was eighteen years old.
Ultimately, the Chester County District Attorney's Office did not press criminal charges against Appellant. In 2012, C.M. alerted authorities of new incidents of sexual abuse perpetrated by Appellant in various locations throughout Chester and Montgomery Counties. Montgomery County authorities thereafter launched an investigation into all reported instances of sexual abuse. During the investigation, Pottstown Police completed a telephone intercept, with C.M.'s consent, of two conversations between Appellant and the victim. In one, the victim and Appellant spoke about their friendship, and, in the other, Appellant denied engaging in inappropriate sexual contact with C.M.'s brother. The following business day, police furnished the recording of the intercept to the Montgomery District Attorney's Office, where it remained in a safe until trial.
On June 10, 2013, this criminal action was instituted in Montgomery County wherein Appellant was accused of committing a multitude of crimes concerning the sexual abuse occurring from 2006 to 2012. The charges encompassed crimes committed in both counties in question. Criminal Complaint, 6/10/13.
On June 13, 2014, the Commonwealth moved to amend the information to include the phrase “County of Chester,” which it maintained was mistakenly absent from the original information. N.T. Trial, 6/17/14, at 9. On June 17, 2014, the trial judge heard pre-trial arguments from both parties on the issue and granted the Commonwealth's motion to amend. Id. at 3–12. The judge found that the crimes that transpired in Chester County were part of the same criminal episode which initially occurred in Montgomery County, and further, that Appellant had been on notice of all of the charges. The trial judge also denied Appellant's motion to suppress his June 3, 2010 statement to Detective Prouty.
On June 19, 2014, a jury found Appellant guilty of IDSI, indecent assault of a person less than sixteen years of age, corruption of minors, and endangering the welfare of a child. On May 4, 2015, the trial court sentenced Appellant to an aggregate term of five and one-half to twenty years imprisonment. No mandatory minimum sentence was applied. This timely appeal followed. On June 16, 2015, Appellant filed his Pa.R.A.P.1925(b)
concise statement of errors complained of on appeal and on July 7, 2015, the trial court issued its corresponding opinion. This matter is now ready for review. Appellant raises these allegations.1
Appellant's brief at 7–8 (internal citations omitted) (italics omitted) (re-numbered for ease of disposition).
Appellant's first averment purports to be a challenge to the legality of his sentence. However, his actual averment is that there was no proof adduced at trial that he was not married to C.M. Thus, his challenge relates to a missing element of crime of IDSI. Specifically, Appellant was convicted under 18 Pa.C.S. § 3123(a)(7)
, which states: “A person commits a felony of the first degree when the person engages in deviate sexual intercourse with a complainant .... who is less than 16 years of age and the person is four or more years older than the complainant and the complainant and person are not married to each other.” 18 Pa.S.C. § 3123(a)(7). In his first claim on appeal, Appellant avers that there was no proof that he was not married to C.M. and suggests that the sentence imposed thereon is illegal.
We conclude that Appellant's allegation does not pertain to the legality of his sentence. He does not suggest that his sentence exceeded the mandatory minimum, should have been merged with another offense, or was imposed under an infirm mandatory minimum sentencing provision. He, instead, is asserting that an element of the crime in question was not proven. A position that the Commonwealth failed to prove all elements of a crime is obviously a challenge to the sufficiency of the evidence supporting a conviction and not to the legality of the sentence imposed upon that conviction. However, Appellant did not raise an objection to the sufficiency of the evidence supporting his IDSI conviction in his Pa.R.A.P.1925(b)
statement. Hence, his first claim is waived. Commonwealth v. Hill, 609 Pa. 410, 16 A.3d 484, 494 (2011) (); Commonwealth v. Tyack, 128 A.3d 254 (Pa.Super.2015). Despite Appellant's attempt to circumvent waiver by reframing his first averment as pertaining to the legality of his sentence, we reject this ploy.
In his second issue on appeal, Appellant contends that the trial court abused its discretion when it allowed the Commonwealth to prosecute in this Montgomery–County action the conduct that transpired in Chester County. We have reviewed Appellant's argument and, despite experiencing some difficulty in discerning the precise nature of his complaint, we have concluded that Appellant is challenging two determinations in connection with this second position: 1) the trial court's ruling that Montgomery County was the appropriate venue for prosecuting the sexual abuse that occurred in both Montgomery and Chester Counties, and 2) the trial court's grant of the Commonwealth's motion to amend the information to include the phrase, “County of Chester.” See Appellant's brief at 24–29.
We address the venue position first and employ this standard of review:
Venue merely concerns the judicial district in which the prosecution is to be conducted; it is not an essential element of the crime, nor does it relate to guilt or innocence. Because venue is not part of a crime, it need not be proven beyond a reasonable doubt as...
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