Com. v. Hudak, M. (memorandum)

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J. S01004/14 NON-PRECEDENTIAL DECISION COMMONWEALTH OF PENNSYLVANIA v. MICHAEL JOHN HUDAK, Appellant SEE SUPERIOR COURT I.O.P. 65.37 : : : : : : : IN THE SUPERIOR COURT OF PENNSYLVANIA No. 1544 WDA 2012 Appeal from the Judgment of Sentence, May 17, 2012, in the Court of Common Pleas of Allegheny County Criminal Division at No. CP-02-CR-0004843-2011 BEFORE: FORD ELLIOTT, P.J.E., BOWES AND WECHT, JJ. MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 09, 2014 Michael John Hudak appeals, nunc pro tunc, from the judgment of sentence entered on May 17, 2012, following his conviction of rape of a child, aggravated indecent assault of a child, involuntary deviate sexual intercourse with a child, indecent assault of a person less than 13 years of age, and endangering the welfare of a child. Following careful review, we affirm. The facts of this case are as follows. M.M., the six-year-old victim, Michael Huda 63 years old at the time the crimes occurred. Appellant lived in the Penn Hills neighborhood of Pittsburgh and first met M.M. two weeks before J. S01004/14 Thanksgiving 2010. By his own estimation, appellant v approximately six weekends from mid-November 2010 until January 2011. On January 17, 2011, appellant had an 11:15 a.m. doctor appointment home and had to leave Akron around 8:30 a.m. to make his appointment in time. Despite the fact that appellant had only met M.M. a handful of times, he asked Mother if he could take M.M. to Pittsburgh with him, as M.M. had the day off from school due to the Martin Luther King Day holiday. Mother gave appellant permission. M.M. testified at trial regarding the day she spent with appellant and the sexual abuse that occurred. She explained that on January 17, 2011, she traveled with appellant to the Pittsburgh area. They first stopped at 2/13-15/12 at 56played with toys in the dining room. At some point, appellant asked M.M. to remove her clothing. She complied, with the exception of taking off her panties. (Id. at 62-63.) M.M. testified that appellant then inserted his penis, which she referred to as his Id. at 65-67.) He put his mouth and tongue on her vagina and inserted his fingers into her vagina. (Id. at 66- -2- J. S01004/14 her mouth. (Id. at 68.) M.M. testified that these acts took place in the Id. at 58, 61-68.) At the end of the day, appellant bought M.M. a stuffed animal and drove her back to Ohio.1 attending daycare after school, M.M. told her teacher what appellant had done to her. (Id. at 83.) On January 27, 2011, a social worker at the Care M.M., during which she recounted Id. at 86.) Numerous professionals watched on a closed circuit television. 87-88.) (Id. at Diane Abbott, a pediatric nurse, examined M.M. and found her exam to be normal, as there was neither damage nor abnormalities to her hymen or bruising. (Id. have a misconception that the first time there is some sort of penetration, Id. at 100.) 1 M.M. could not recall when the two events happened during the day and gave inconsistent answers about how many events happened, when, and where, noting that the event in the bedroom happened either before or after the doctor appointment. (Id. at 76-78.) M.M. was unable to recall what clothing she wore, what clothing appellant had on, when she arrived home, her hospital examination, or her prior testimony at hearings. M.M. admitted that she tells lies and that she tells lies more than she tells the truth. (Id. at 70-71.) -3- J. S01004/14 Based on the video interview, the case was referred to the Penn Hills Police Department. (Id. at 88.) Detective Ben Westwood recorded an interview of M.M., an arrest warrant was issued for appellant, and a search warrant was issued for his home. On February 25, 2011, appellant was arrested and transported to the Penn Hills police station. Appellant agreed to speak with the police and denied sexually abusing M.M. Appellant, however, told Detective Westwood that he assumed M.M. had been sexually assaulted in the past, as M.M. had told him that some guy had hurt her and he assumed she meant sexually. (Id. at 108-109.) Appellant was charged with one count of rape of a child, one count of aggravated indecent assault of a child, two counts of involuntary deviate sexual intercourse with a child, one count of indecent assault with a person less than 13 years of age, and one count of endangering the welfare of a child. On October 18, 2011, appellant filed a motion for pre-trial taint hearing related to a government witness and to determine the competency of the child witness. A hearing was held before the Honorable Donna Jo McDaniel on February 13, 2012, and M.M. was found competent to testify and that her testimony had not been tainted. A jury trial began on February 14, 2012. own behalf and denied the allegations. Appellant testified on his He claimed that M.M. had a Id. at 130.) He stated that she accompanied him to his doctor appointment, and they -4- J. S01004/14 arrived at 11:25 a.m. and had to wait for a few hours, during which time M.M. misbehaved. (Id. at 132.) According to appellant, they left the Id. at 132.) However, Detective Westwood, who had interviewed the office receptionist, offered that they left closer to 12:30 p.m. (Id. at 110-111.) Appellant testified that they went to McDonalds and ate lunch in the car; they also picked up his prescriptions at Walmart. (Id. at 133-134.) Appellant took M.M. on a sight-seeing tour of his old neighborhood, went to the gas station, then M.M. also watched him lift weights at a spa before he made a quick trip to a tanning salon. (Id. at 135.) He detailed that M.M. stayed in the car with the doors locked, which frightened him as he had accidently left the car running. (Id.) Appellant stated that they arrived home around 6:05 p.m., and he made noodles while M.M. played upstairs. (Id. at 136.) They arrived back in Akron around 9:15 p.m. During the ride, appellant told her that she could not come back to Pittsburgh anymore as she had misbehaved at his doctor appointment. (Id. at 139.) M.M. threw a tantrum and yelled and kicked the Id. at 138-139.) five children. (Id. at 119.) She explained that she moved from Pittsburgh -5- J. S01004/14 to Ohio and lived just 15 minutes from M.M. granddaughter and often babysat for M.M. Combs viewed M.M. as a She explained that appellant would visit Akron to visit her and their children. She testified to his good reputation within the community for being a truthful person. (Id. at 124.) The jury found appellant guilty of all counts. On May 17, 2012, appellant was sentenced to four mandatory minimum terms of 10 to 20 served consecutively. There were no further penalties imposed for the remaining crimes. The aggregate sentence was a period of imprisonment of 40 to 80 years. New counsel was appointed and appellant filed a post-sentence motion on June 15, 2012. Judge McDaniel denied the motion on June 28, 2012. Counsel filed a motion for leave to withdraw, which was granted; and new counsel, Christine M. Sheldon, Esq., was appointed on July 23, 2012. Following the filing of a petition under the Post Conviction Relief Act, by order dat rights to file a direct appeal. On October 5, 2012, Carrie L. Allman, Esq., ement of errors complained of on appeal within 21 days pursuant to Pa.R.A.P., Rule 1925(b), 42 Pa.C.S.A., and the trial court has filed an opinion. Herein, the following issues have been presented for our review: -6- J. S01004/14 I. WAS IT ERROR TO DENY DEFENSE QUESTIONING REGARDING BIAS AND MOTIVE TO LIE OF THE MAIN WITNESS, AND IS THE REPUTATION FOR TRUTHFULNESS PROPER EVIDENCE INCORRECT? IS NOT II. WAS THE VERDICT RENDERED CONTRARY TO THE WEIGHT OF THE EVIDENCE PRESENTED AND SHOULD A NEW TRIAL BE AWARDED? III. WAS THE IMPOSITION OF A SENTENCE OF 40-80 YEARS OF INCARCERATION, IMPOSED ON A 60 YEAR OLD MAN, MANIFESTLY EXCESSIVE, UNREASONABLE, AND AN ABUSE OF DISCRETION? 2 Appellant first argues that the trial court erred in restricting his threats of false allegations. No relief is due. The admission of evidence is within the sound discretion of the trial court and will not be overturned absent an abuse of discretion. Commonwealth v. Delbridge abuse of discretion is not merely an error of judgment; rather, discretion is is manifestly unreasonable, or the result of partiality, prejudice, bias, or ill- Commonwealth v. Busanet, 817 A.2d 1060, 1076 (Pa. 2002). 2 We note that appellant has abandoned other claims raised in his Rule 1925(b) statement. -7- J. S01004/14 Appellant claims that the court erred in precluding him from question specific instance in which M.M. allegedly told Combs that if she did not give brief at 20.) Pennsylvania Rule of Evidence 608 provides in pertinent part: (a) Reputation Evidence. may be attacked or supported by testimony character for truthfulness or untruthfulness. But evidence of truthful character is admissible truthfulness truthfulness admissible. (b) has or been attacked. untruthfulness Opinion is not Specific Instances of Conduct. Except as provided in Rule 609 (relating to evidence of conviction of crime), (1) the character of a witness for truthfulness may not be attacked or supported by cross-examination or extrinsic evidence concerning conduct; however, (2) in the discretion of the court, the credibility of a witness who testifies as to the reputation of another witness for truthfulness or untruthfulness may be attacked by cross-examination concerning specific instances of conduct (not including arrests) of the other witness, if they are probative of truthfulness or untruthfulness; but -8- J. S01004/14 extrinsic evidence thereof is not admissible. ty, to evidence of the Commonwealth v. Minich, 4 A.3d 1063, 1069 (Pa.Super. 2010) (citations omitted). In Commonwealth v. Butler, 621 A.2d 630 (Pa.Super. 1993), this court reversed the j conviction for indecent assault and related offenses, and remanded for a new trial. At trial, the defendant attempted to elicit testimony from a witness that the complainant had a reputation for being untruthful. The trial court refused to allow the testimony. This court analyzed the issue as follows: The ruling of the trial court was incorrect. In deference to the trial court, there may have been some misunderstanding that the defense was attempting t testimony would properly be excluded. See Commonwealth v. Smith, 389 Pa.Super. 626, 567 A.2d 1080 (1989), allocatur denied, 527 Pa. 623, 592 A.2d 44 (1990). Nevertheless, it seems obvious to us that the defense was trying to introduce general reputation evidence for truth and veracity, and that is a valid line of attack. Commonwealth v. Smith, supra. See also Commonwealth v. Hansell, 185 Pa.Super. 443, 137 A.2d 816 (1958). Therefore, we must reverse the judgment of sentence and remand for a new trial. Butler, 621 A.2d at 632. -9- J. S01004/14 We agree with the Commonwealth that based upon the proffer made by defense counsel at trial, which was limited only to a specific instance of was properly precluded. Appellant presented the testimony of Combs, as a character witness. During direct examination, defense counsel sought to introduce evidence of the v truthfulness or untruthfulness through Combs. Appellant established that attended school with the victim, and her oldest son lived with the victim and her mother. (Notes of testimony, 2/13-15/12 at 121-123.) M.M. lived in Akron, Ohio, and Combs lived in Barberton, Ohio, which Combs averred was about 15 minutes away. (Id. at 120.) ned that appellant wished to attack the character of the victim for truthfulness with a specific instance in which she had allegedly threatened to lie. (Id. at 122.) The trial court specifically disallowed the defense to have a witness testify as to the six-yearbeing honest. (Id. at 123-124.) We find no error as all of the information provided to the trial court was based on a specific instance of conduct and a personal opinion and, thus, inadmissible. The defense was attempting to Butler, supra. As - 10 - J. S01004/14 the trial court noted, the defense was permitted to cross-examine M.M. regarding her admission that she has lied. (See trial court opinion, 5/13/13 at 10.) erred in refusing to allow Combs to testify as to a specific instance in which M.M. allegedly told Combs that if she did not give her ice cream, M.M. would tell people that Combs had hurt her. Again, we find no relief is due. We agree with the Commonwealth that Minich, supra, is dispositive. In Minich, the defendant was charged with multiple crimes related to his sexual abuse of two minor boys. The defendant sought to use evidence of specific instances of dishonest conduct by one of the victims to impeach his evidence for purposes of attacking or supporting the credibility of a victim who testifies, the Pa.R.E. 608[3] and admissibility proof of of such specific cross- evidence incidents of is governed conduct by by either Id. at 1072. The Minich panel found that the trial court erred in permitting the defense to introduce evidence of particular instances in which the minor victim had lied 3 Rule 608 codifies the long-established rule limiting the type of evidence general reputation for truthfulness or untruthfulness. Pa.R.E. 608(a). The courts recognize that evidence of bad conduct has limited probative value and injects collateral issues into the trial. Commonwealth v. Taylor, 381 A.2d 418 (Pa. 1977). - 11 - J. S01004/14 Id. at 1072-1073. instance in which M.M. had allegedly threatened to lie. Pursuant to Minich and Rule 608(b)(1), the introduction of such evidence is to be specifically precluded. The defense was permitted to cross-examine M.M. regarding her admission that she lies, but the defense may not use a character witness to offer negative testimony about the victim about matters not specifically inion, 5/13/13 at of the evidence.4 Appellate review of a weight claim is a review of the exercise of discretion, not of the underlying question of whether the verdict is against the weight of the evidence. Because the trial judge has had the opportunity to hear and see the evidence presented, an appellate court will give the gravest consideration to the findings and reasons advanced by the trial that the verdict is against the weight of the evidence. One of the least assailable reasons for conviction that the verdict was or was not against the weight of the evidence and that a new trial should be granted in the interest of justice. This does not mean that the exercise of discretion by the trial court in granting or denying a motion for a new trial based on a challenge to the weight of the 4 Appellant properly preserved this claim in his post-sentence motion. - 12 - J. S01004/14 evidence is unfettered. In describing the limits of a wisdom and skill so as to reach a dispassionate conclusion within the framework of the law, and is not exercised for the purpose of giving effect to the will of the judge. Discretion must be exercised on the foundation of reason, as opposed to prejudice, personal motivations, caprice or arbitrary actions. Discretion is abused where the course pursued represents not merely an error of judgment, but where the judgment is manifestly unreasonable or where the law is not applied or where the record shows that the action is a result of partiality, prejudice, bias or ill-will. Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis omitted) (citations omitted). We cannot find that Judge McDaniel abused her discretion in denying age at the time of trial, was found to be a competent witness. She claimed that on January 17, 2011, appellant drove her to his home and asked her to remove her clothing. mouth. He inserted his penis in her vagina and also in her M.M. testified that appellant put his mouth and tongue on her vagina and inserted his fingers into her vagina. Appellant ejaculated into her mouth during oral sex. M.M. also recounted the specifics of this abuse ital ten days after the incident. Appellant testified at trial and denied the allegations claiming that the victim was lying. - 13 - J. S01004/14 testimony had some minor inconsistencies due in all likelihood to her very unreliable and/or contradictory as to make any verdict based thereon pure the ju Id. at 12.) Nothing indicates the trial court acted manifestly unreasonably, failed to apply the law, or ruled out of partiality, prejudice, bias, or illchallenge to the weight of the evidence. Additionally, it was within the province of the jury as fact-finder to reconcile inconsistent testimony, and to believe all, part, or none of the evidence, assigning to it whatever weight it deemed appropriate. Commonwealth v. Manchas, 633 A.2d 618, 624 (Pa.Super. 1993), appeal denied, 651 A.2d 535 (Pa. 1994). No relief is due. -settled that, with regard to the discretionary aspects of Commonwealth v. Austin, 66 A.3d 798, 807-808 (Pa.Super. 2013). Before [this Court may] reach the merits of [a challenge to the discretionary aspects of a sentence], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence [see - 14 - J. S01004/14 Pa.R.A.P. 2119(f)]; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code . . . . [I]f the appeal satisfies each of these four requirements we will then proceed to decide the substantive merits of the case. Id. (brackets in original). Instantly, appellant filed a timely notice of appeal and preserved his claim that his sentence was excessive in a post-sentence motion. (Docket #17, 28.) Appellant has also included a Rule 2119(f) statement in his brief. -33.) Consequently, we will determine whether appellant has presented a substantial question that his sentence is inappropriate under the Sentencing Code. See Austin, 66 A.3d at 808. The determination of what constitutes a substantial question must be evaluated on a case-by-case basis. Id. A substantial question exi[s]ts only when the appellant advances a colorable argument that the (1) inconsistent with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms which underlie the sentencing process. Id., citing Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013). Appellant argues that the sentence imposed was manifestly unreasonable as the court imposed a de facto life sentence without considering all the relevant sentencing factors, including his rehabilitative - 15 - J. S01004/14 unreasonable and inconsistent with the norms underlying the sentencing Appellant has not specified which fundamental norm the sentence violates. Nor has he explained the guideline ranges applicable to this case. Appellant has also failed to cite a case supporting his conclusory statement that a substantial question has been raised. Rather, he merely made a bald assertion that, because of his age, the aggregate sentence is the functional equivalent of a life sentence and, therefore, must be deemed excessive. In sum, appellant has not explained why his age at the time he sexually assaulted a six-year-old girl entitles him to a more lenient sentence under the Sentencing Code. Bald allegations of excessiveness do not present a substantial question for purposes of Rule 2119(f). Reynolds, 835 A.2d 720, 733 (Pa.Super. Commonwealth v. 2003). See also Commonwealth v. Hanson, 856 A.2d 1254, 1257-1258 (Pa.Super. 2004) (an argument that the sentencing court failed to adequately consider mitigating factors in favor of a lesser sentence does not present a substantial question appropriate for review). Thus, we find that appellant has failed to present a substantial question for our review. In any event, while the sentences were imposed consecutively, we the trial judge may determine whether, given the facts of a particular case, a sentence should run consecutive to or Commonwealth v. - 16 - J. S01004/14 Wright, 832 A.2d 1104, 1107 (Pa.Super. 2003). We also note that Judge McDaniel did not sentence appellant on two of the six counts. Furthermore, the trial court had the benefit of a pre-sentence investigation report and was certainly aware of all relevant information and alleged that where pre-sentence reports exist, the presumption will stand that the sentencing judge was both aware of and appropriately weighed all relevant Commonwealth v. Griffin, 804 A.2d 1, 8 (Pa.Super. 2002), appeal denied, 868 A.2d 1198 (Pa. 2005), cert. denied, 545 U.S. 1148 (2005). Judgment of sentence affirmed. Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 7/9/2014 - 17 -

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