J-S27040-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee v. JOSEPH M. TRIFIRO, Appellant No. 1763 WDA 2013

Appeal from the Judgment of Sentence entered August 29, 2013, in the Court of Common Pleas of Fayette County, Criminal Division, at No(s): CP-26-CR-0000466-2012

BEFORE: GANTMAN, P.J., ALLEN, and STABILE, JJ.

MEMORANDUM BY ALLEN, J.*: FILED OCTOBER 10, 2014

Joseph M. Trifiro (“Appellant”) appeals from the judgment of sentence imposed after a jury convicted him of two counts of aggravated indecent

assault of a person under 13 years old, and two counts of indecent assault of a person less than 13 years old.1 The trial court sentenced Appellant to concurrent terms of 25 - 50 years on the aggravated indecent assault counts. The trial court did not impose any further penalties on Appellant’s indecent assault convictions.

The trial court expressed the factual background as follows:

The incidents which gave rise to this case occurred on or about September 21, 2011. [Appellant] was acquainted with the [victims’] family, which included two [girls, M.D.S. and ____________________________________________

1 18 Pa.C.S.A. §§ 3125(a)(7) and 3126(a)(7), respectively.

*This case was assigned to Judge Allen on August 6, 2014.

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C.R.W.S.] The girls’ father, Patrick [S.,] contacted Pennsylvania State Police to report two incidents of sexual assault o[f] his daughters. The then-four-year-old victim, M.D.S., told Pennsylvania State Police Trooper Heather Clem that [Appellant] had touched her vaginal area with his fingers during an overnight stay at [Appellant’s] home. The then-six-year-old victim, C.R.W.S., told Trooper Clem that [Appellant] also touched her vaginal area with his fingers and that “it hurt.” C.R.W.S.’s mother testified that when [C.R.W.S.] said what [Appellant] did to her, she took her into the bathroom to examine her vaginal area and found the area to be “red and swollen.” Both girls told their mother that [Appellant] touched their “kitt[ies],” and “it hurt.”

Forensic Interviewer Sarah Louik Gluzman testified that she interviewed both girls after the assaults were reported to police. M.D.S. told Ms. Gluzman that [Appellant] “stuck his fingers up [her] butt.” Dr. Mary Carrasco, the physician who examined the girls, testified that she did not find any evidence of sexual abuse on either of them; however, she said that “in at least 95 percent of cases,” there is no physical evidence. She emphasized that it did not eliminate the possibility that abuse occurred.

The final witness who testified on behalf of the Commonwealth was David Serrano, an inmate who first met [Appellant] when they were both housed in the State Correctional Institution in Brownsville, Fayette County. Serrano was known as a “jailhouse lawyer[,]” and it was common for inmates to approach him with legal questions. [Appellant] and Serrano were reacquainted while housed in the Fayette County Prison, and that is when [Appellant] asked Serrano about this case. Serrano testified that [Appellant] asked him to help “manipulate the system to get out of a case.” Serrano knew the names and ages of the victims, and he testified that [Appellant] penetrated the girls’ vaginas with his fingers, tongue, and penis. After receiving this information, Serrano contacted the District Attorney’s Office and offered to testify about what [Appellant] told him. In exchange for this information, Serrano was permitted to plead guilty to a lesser offense.

Trial Court Opinion and Order, 10/10/13, at 2-3 (internal record citations omitted).

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The trial court explained the procedural posture as follows: On April 8, 2013, [Appellant] was convicted by a jury of two counts each of Aggravated Indecent Assault, Complainant Less Than 13 Years Old; and Indecent Assault, Person Less Than 13 Years Old. On August 29, 2013, [Appellant] was declared a sexually violent predator upon the recommendation and testimony from the Pennsylvania Sexual Offenders Assessment Board, and he was sentenced to a mandatory twenty-five (25) to fifty (50) year [concurrent] term of incarceration [regarding the aggravated indecent assault counts, without any further penalties for the indecent assault convictions]. [Appellant] filed a timely Post-Sentence Motion, which was denied by this Court on October 10, 2013. Trial Court Statement in Lieu of Opinion, 12/27/13, at 1. Appellant filed a timely notice of appeal, and complied with the trial court’s order to file a Pa.R.A.P. 1925(b) concise statement of errors complained of on appeal. On December 27, 2013, the trial court filed its Statement in Lieu of Opinion. Appellant presents the following issues for our review: 1. Whether the [trial] [c]ourt erred in denying [Appellant’s] Motion for Modification of Sentence? 2. Whether the [t]rial court erred by permitting the admission of other crimes evidence against [Appellant] pursuant to Pennsylvania Rule of Evidence 404(b), where the Commonwealth's Motion In Limine was granted for the [Appellant’s] State of Ohio conviction for Gross Sexual Imposition? 3. Whether [t]he [t]rial [c]ourt erred by permitting the testimony of Heather Clem, Dianna Dawn Stewart, Sarah Louik Gluzman and Patrick Ryan Stewart under the 42 Pa.C.S.A. § 5985.1 exception, because the evidence was cumulative and improperly bolstered the complainants' testimony?

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4. Whether the evidence was insufficient to support the Appellant's convictions for aggravated indecent assault?

5. Whether the trial court erred in not finding that the weight of the Commonwealth's evidence was so inconsistent, contradictory, and inherently unreliable that the guilty verdicts for indecent aggravated assault cannot stand and the Appellant is entitled to be discharged?

Appellant’s Brief at 5.

Appellant’s first issue challenges the trial court’s denial of Appellant’s motion to modify his sentence. Our Court has explained:

Sentencing is a matter vested in the sound discretion of the sentencing judge, and a sentence will not be disturbed on appeal absent a manifest abuse of discretion. In this context, an abuse of discretion is not shown merely by an error in judgment. Rather, the Appellant must establish, by reference to the record, that the sentencing court ignored or misapplied the law, exercised its judgment for reasons of partiality, prejudice, bias, ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Toland, 995 A.2d 1242, 1248 (Pa. Super. 2010).

Appellant argues:

[Appellant’s] sentence was grossly disproportionate because (1) the evidence was very weak to support the aggravated indecent assault convictions; (2) the most serious offenses for which he was convicted of were only a felony of the 2nd degree; (3) the predicate offense from Ohio was not properly admitted; and (4) the sentences are an aggregate of 100 years effectively making this case a life sentence.

The acts of indecent assault of two children over the course of a short time frame committed by Appellant, does not constitute offenses of sufficient gravity as to permit a severe sentence. Furthermore, even absent the application of the mandatory in this case, had the trial court sentenced Appellant to the statutory maximum for each offense, and run those sentences consecutively, Appellant could have been sentenced to a maximum possible penalty of 20 years - 40 years of

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incarceration. As such, the sentence applied in the instant case is substantially higher than the maximum possible penalty available to the sentencing court had the Commonwealth chosen not to invoke the mandatory. The Appellant's age and the temporal displacement between the predicate and current offenses demonstrate a degree of gross disproportionality. The Appellant has satisfied the threshold question, thereby rendering his mandatory sentences as cruel and unusual punishment.

Appellant’s Brief at 10-11.

In rebutting this challenge, the trial court clarified:

First, [Appellant] averred that he is entitled to a modification of the twenty [five] (25) to fifty (50) year jail term both because it is grossly disproportionate to the crimes he committed, it is in violation of the Eighth Amendment of the United States Constitution, it is also in violation of Article I, Section 13 of the Pennsylvania Constitution, and because it was decided in reliance upon his prior conviction in Ohio. []

[Appellant’s] sentence was ordered pursuant to the mandatory minimum stated in 42 Pa.C.S.A. §9718.2(a). The Commonwealth presented a certified copy of his prior sexual offense conviction in Ohio[.] []

In addition to the Ohio conviction, [Appellant] entered a guilty plea in Fayette County for failing to register as a sex offender under Megan’s Law. Furthermore, he was deemed a sexually violent predator during sentencing proceedings in this case.

Sexually violent predators need to be isolated from the general public, and the sentence, which was mandated by law, fits the crimes for which he was convicted; more particularly, where [Appellant] failed to follow the law requiring registration as a result of his first conviction for having sex with a child. As a result, this Court believes the sentence is properly proportionate to [Appellant’s] crimes and accordingly not in violation of either his federal or state constitutional rights.

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Trial Court Opinion and Order, 10/10/13, at 4. A review of the record and applicable sentencing provisions comports with the trial court’s rationale for denying Appellant’s motion to modify his sentence. 42 Pa.C.S.A. § 9718.2 governs sentences for sexual offenders and provides in pertinent part: § 9718.2. Sentences for sexual offenders (a) Mandatory sentence.-- (1) Any person who is convicted in any court of this Commonwealth of an offense set forth in section 9799.14 (relating to sexual offenses and tier system) shall, if at the time of the commission of the current offense the person had previously been convicted of an offense set forth in section 9799.14 or an equivalent crime under the laws of this Commonwealth in effect at the time of the commission of that offense or an equivalent crime in another jurisdiction, be sentenced to a minimum sentence of at least 25 years of total confinement, notwithstanding any other provision of this title or other statute to the contrary. Upon such conviction, the court shall give the person oral and written notice of the penalties under paragraph (2) for a third conviction. Failure to provide such notice shall not render the offender ineligible to be sentenced under paragraph (2). 42 Pa.C.S.A. § 9718.2(a)(1). On April 11, 2013, pursuant to statutory mandate, the Commonwealth notified Appellant that “due to [Appellant’s] conviction on April 8, 2013, on the charges of Aggravated Indecent Assault, Complainant Less than 13 Years Old (Count 1 and Count 2) and Indecent Assault, Person Less than 13 Years Old (Count 3 and Count 4), you are subject to the mandatory sentencing provisions of 42 Pa.C.S.A. § 9718.2(a)(1). Since you have a previous

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conviction in the State of Ohio for Gross Sexual Imposition, under 42 Pa.C.S.A. § 9718.2(a)(1), the mandatory sentence is twenty-five (25) to fifty (50) years.” Notice of Commonwealth’s Intention to Seek Mandatory Sentence Under 42 Pa.C.S.A. §9718.2, 4/11/13, at 1. Moreover, Appellant discounts that 42 Pa.C.S.A. § 9718.2 further provides: (b) Mandatory maximum.--An offender sentenced to a mandatory minimum sentence under this section shall be sentenced to a maximum sentence equal to twice the mandatory minimum sentence, notwithstanding 18 Pa.C.S. § 1103 (relating to sentence of imprisonment for felony) or any other provision of this title or other statute to the contrary. *** (d) Authority of court in sentencing.--There shall be no authority in any court to impose on an offender to which this section is applicable any lesser sentence than provided for in subsections (a) and (b) or to place the offender on probation or to suspend sentence. Nothing in this section shall prevent the sentencing court from imposing a sentence greater than that provided in this section. Sentencing guidelines promulgated by the Pennsylvania Commission on Sentencing shall not supersede the mandatory sentences provided in this section. 42 Pa.C.S.A. § 9718.2(b) and (d) (emphasis supplied). Additionally, the trial court observed: It should be noted that the Court sentenced [Appellant] to the mandatory minimum and ordered counts one and two to run concurrent with one another. There were two victims, and it would have been within the Court’s discretion to order counts one and two to run consecutive to one another, which would have resulted in a substantially longer aggregate sentence.

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Trial Court Opinion and Order, 10/10/13, at 5. Accordingly, Appellant’s sentencing challenge is without merit. Appellant’s second issue contends that the trial court erred in admitting evidence of his Ohio conviction for gross sexual imposition. Appellate courts typically examine a trial court’s decision concerning the admissibility of evidence for abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Typically, all relevant evidence, i.e., evidence which tends to make the existence or non-existence of a material fact more or less probable, is admissible, subject to the prejudice/probative value weighing which attends all decisions upon admissibility. See Pa.R.E. 401; Pa.R.E. 402[.] Commonwealth v. Dillon, 925 A.2d 131, 136-37 (Pa. 2007). With regard to the admission of prior bad acts, our Rules of Evidence provide: (a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: *** (b) Other crimes, wrongs, or acts. (1) Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. (2) Evidence of other crimes, wrongs, or acts may be admitted for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident.

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(3) Evidence of other crimes, wrongs, or acts proffered under subsection (b)(2) of this rule may be admitted in a criminal case only upon a showing that the probative value of the evidence outweighs its potential for prejudice.

Pa.R.E. 404(a); (b)(1)-(3).

Instantly, the Commonwealth’s motion in limine moved to admit

“[Appellant’s] prior guilty plea to the crime of gross sexual imposition for the purposes permitted by [the] Pennsylvania Rules of Evidence.”

Commonwealth’s Motion in limine to introduce [Appellant’s] Prior Bad Acts, 2/28/13, at 2. The Commonwealth noted “Pennsylvania Rule of Evidence

404(b) permits evidence of other crimes, wrongs, or acts of the Defendant

for purposes such as proof of motive, opportunity, intent, preparation, plan, etc.” Id. During argument at trial regarding the admission of this evidence, the Commonwealth cited cases supporting admission of prior bad act evidence meeting “the common plan exception[.]” N.T., 4/8/13, at 228.

The trial court admitted Appellant’s Ohio conviction as evidence of his motive to commit the charged crimes against M.D.S. and C.R.W.S. Id. at

230. The record does not set forth a developed basis for this determination.

However, the record does support the admission of Appellant’s Ohio

conviction as prior bad act evidence of Appellant’s common scheme and plan, as set forth in the Commonwealth’s motion in limine, as well as during J-S27040-14 the Commonwealth’s arguments at trial.^[2] See Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. 2010).

Appellant’s Ohio conviction had an offense date of October 6, 2001, a similar time of year as the instant offense dates of September 20-22, 2011.

N.T., 4/8/13, at 221. Moreover, Appellant’s Ohio conviction involved a

prepubescent eight-year-old child, not much older than M.D.S. and C.R.W.S., who were 4 and 6 years old, respectively, when they were assaulted. Id. at 218. Additionally, Appellant’s Ohio conviction involved 3 elements: (1) sexual contact; (2) with a person not the offender’s spouse;

(3) which was compelled by force or threat of force. Id. at 221-222. Here, Appellant had sexual contact with the children, neither of whom was his spouse, and the sexual contact involved Appellant’s exertion of power over

M.D.S. and C.R.W.S. Significantly, Serrano testified that Appellant engaged assaulted M.D.S. and C.R.W.S. because “[Appellant] said he liked the feeling of power over them[.]” N.T., 4/5/13, at 180.

The trial court specifically instructed the jury that “[y]ou must not regard this evidence [concerning Appellant’s Ohio conviction for gross sexual imposition] as showing that [Appellant] is a person of bad character or ____________________________________________