Commonwealth v. Sexton

222 A.3d 405

COMMONWEALTH of Pennsylvania

v.Sean SEXTON, Appellant

No. 75 EDA 2018

Superior Court of Pennsylvania.

Argued August 7, 2019

Filed October 28, 2019

Samuel C. Stretton, West Chester, for appellant.

Robert F. Petrone, Assistant District Attorney, Philadelphia, for Commonwealth, appellee.

BEFORE: PANELLA, P.J., KUNSELMAN, J., and STEVENS^* , P.J.E.

OPINION BY STEVENS, P.J.E.:

Appellant Sean Sexton appeals from the judgment of sentence entered in the Court of Common Pleas of Philadelphia County on December 14, 2017, following his convictions of Intimidation of Witnesses or Victims, Terroristic Threats with Intent to Terrorize Another and Stalking.¹ We affirm.

The trial court aptly set forth the relevant procedural history and facts herein as follows:

PROCEDURAL HISTORY

Between May of 2015 and May of 2016, [Appellant] was arrested and charged with various offenses under four separate Bills of Information. At CP-51-CR-0005229- 2015, [Appellant] was arrested on May 4, 2015, and charged with, inter-alia, Rape by Forcible Compulsion¹ and numerous other related offenses. At CP-51-CR-0011605-2015, [Appellant] was arrested on August 5, 2015, and charged with Simple Possession.² At CP-51-CR-0000751-2015, [Appellant] was arrested on November 17, 2015, and charged with 1) Intimidation of Witnesses or Victims,³ 2) Terroristic Threats with Intent to Terrorize Another⁴, and 3) Stalking.⁵ At CP-51-CR-0010608-2016, [Appellant] was arrested on May 16, 2016, and charged with Forgery.⁶

On May 18, 2017, by agreement of counsel,⁷ [Appellant] proceeded to trial only on the two bills of information relating to the charges of rape and witness intimidation.⁸ At the conclusion of his waiver trial, on May 19, 2017, [Appellant] was found guilty on the charges of witness intimidation, terroristic threats and stalking. [Appellant] was found not guilty on all rape related charges.

Prior to the commencement of his sentencing hearing on September 21, 2017, [Appellant] entered into non-negotiated pleas of guilty on the remaining open charges of simple possession and forgery.⁹ At the conclusion of his sentencing hearing, [Appellant] was sentenced to a period of confinement in a state correctional facility of 7 to 15 years on the charge of witness intimidation followed by five years['] probation. On charges of terroristic threats, stalking, simple possession and forgery [Appellant] was sentenced to concurrent periods of probation of 5 years each, to be served consecutively to his period of confinement, for an aggregate period of confinement of 7 to 15 years followed by 5 years['] probation.

On September 25, 2017, [Appellant] timely filed a Motion for Post Sentence Relief pursuant to the Pennsylvania Rules of Criminal Procedure, Pa.R.Crim.P. 720(A)(1), seeking an arrest of judgement, [sic] a new trial, or, in the alternative, a reconsideration of his sentence pursuant to Pa.R.Crim.P. 720(B)(1)(a)(ii), (iv) and (v). The [c]ourt, after a hearing held on December 14, 2017, denied [Appellant's] motions seeking a new trial. However, on considering [Appellant's] argument, the [c]ourt modified [Appellant's] sentence, imposing an aggregate sentence of 6 ½ to 13 years['] incarceration followed by 5 years['] probation.

On January 2, 2018, [Appellant] timely filed the instant appeal to the Superior Court of Pennsylvania.¹⁰ On January 8, 2018, this [c]ourt filed and served on [Appellant] an Order pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate Procedure, directing [Appellant] to file and serve a Statement of Errors Complained of on Appeal, within twenty-one days of the [c]ourt's Order. On January 15, 2018, [Appellant] timely filed his statement of "Matters Complained of on Appeal."

* * *

EVIDENCE AT TRIAL

The complaining witness, [A.Y.],² testified that she had been best friends with [A.L.] since 2013, when they were both in the ninth grade. Eventually, beginning in April of 2015, they drifted apart when [A.L.] went to live with her aunt. During their friendship, she frequently visited [A.L.] at her home on Reed Street in the City of Philadelphia, which she shared with [Appellant]. (N.T., 5/19/17, pgs. 13-17, 25)

[A.Y.] testified that, during their friendship, [A.L.] confided in her stories of being sexually molested by [Appellant]. (N.T., 5/19/17, pgs. 14-18) After [A.L.] eventually reported the assaults, [A.Y.] became a witness involving charges of rape and sexual assault against [Appellant].¹¹ On April 28, 2015, as part of their investigation into the sexual assault charges, she gave a formal statement to the Special Victims Unit of the Philadelphia Police Department, with regard to their conversations. (N.T., 5/19/17, pgs. 13, 14, 18, 40)

Subsequently, in October of 2015, [A.Y.] testified that, as she approached her normal bus stop on her way to school, she encountered "Graffiti" reading; "[A.L.] is lying about rape." (N.T., 5/19/17, pgs. 21, 24, 46) After this incident, a school friend texted her a picture of "Graffiti" written on the bench at her bus stop, again reading: "[A.L.] is lying about rape." In addition to these two pieces of "Graffiti," she encountered a third piece, written on a trashcan at the bus stop, reading; "Kill Squill." She testified that "Squill" is a "nickname me and [A.L.] had that we called each other. It's in SpongeBob" and that [Appellant] was aware of this. (N.T., 5/19/17, pgs. 21-23, 43, 44, 47, 48)

She also testified that this stop was known to [Appellant], as he "did see me at the 25 bus stop before. He was walking past. He said some of his friends lived near there." (N.T., 5/19/17, pg. 42) She also testified that, being scared by the "Graffiti," she told her mother, who then called the police to report it. (N.T., 5/19/17, pgs. 46, 49, 50)

[A.L.], testified that, after her father's death in 2010, [Appellant] was appointed as a co-guardian and moved into the family home to care for her and her brother. (N.T., 5/18/17, pgs. 49-52, 96) She continued to live in the home with [Appellant] until April of 2015, when she eventually told her aunt that she had been sexually abused by [Appellant]. (N.T., 5/18/17, pgs. 62, 65)

[A.L.] testified that, commencing in 2013, she began confiding the details of this abuse, in [A.Y.]. (N.T., 5/18/17, pgs. 61, 62) She also testified that [A.Y.] had been to her house multiple times and was well known to [Appellant] (N.T., 5/18/17, pg. 77)

Although she did not personally see the "Graffiti," she testified that [Appellant] "was big into graffiti," they had "spray painted my walls" and that she was familiar with and knew [Appellant's] handwriting. Comparing the photographs of the "graffiti" to a note previously written to her by [Appellant], she identified the writing in the "Graffiti" as that of [Appellant]. (N.T., 5/18/17, pg. 72, 73, 75, 78, 135-137, 139)

She also testified that she did not use the bus stop where the "Graffiti" was found, stating that it is used by [A.Y.] every day to go to school. She also identified "Squill" as "a term of endearment. It's a nickname me and my friend had come up [with] for each other. It's actually silly. We were really young, it was freshman year. It's from SpongeBob, Squilliam." It was a nickname she used frequently in her home, in referring to [A.Y.]. (N.T., 5/18/17, pg. 72, 73, 75, 78)

¹ 18 Pa.C.S.A. § 3121(a)(1)

² 35 Pa.C.S.A. § 780-113(a)(16)

³ 18 Pa.C.S.A. § 4952

⁴ 18 Pa C.S.A. § 2706(a)(1)

⁵ 18 Pa.C.S.A. § 2709.1

⁶ 18 Pa.C.S.A. § 4101

⁷ (N.T., 5/18/17, pgs. 9-12)

⁸ CP-51-CR-0005229-2015 and CP-51-CR-0000751-2015

⁹ CP-51-CR-0011605-2015 and CP-51-CR-0010608-2016

¹⁰ [Appellant] is only appealing his conviction at 51-CR-0000751-2015 on the charges of witness intimidation, terroristic threats and stalking.

¹¹ The [c]ourt found [Appellant] not guilty of these charges at CP-51-CR-0005229-2015

Trial Court Opinion, filed 1/23/18, at 1-6.

In his appellate brief, Appellant raises the following Statement of the Questions Presented:

1. Were the verdicts for Intimidation of a Witness [ 18 Pa.C.S.A. 4952 ], Terroristic Threats [ 18 Pa.C.S.A. 2706 ] and Stalking [ 18 Pa.C.S.A. 2709.1 ] against the weight of the evidence? Did the evidence not support the conclusion that [Appellant] wrote the supposed threats? Was the verdict based on highly speculative and contradictory evidence and not supported by the evidence? Did the verdict violate fundamental due process because the evidence was highly speculative and contradictory and did not support the verdict, thus violating the Due Process Clause of the Fourteenth Amendment of the United States Constitution? - - - Judge Cunningham affirmed his judgment of sentence.

2. Were the verdicts for Intimidation of a Witness [ 18 Pa.C.S.A. 4952 ], Terroristic Threats [ 18 Pa.C.S.A. 2706 ] and Stalking [ 18 Pa.C.S.A. 2709.1 ] not supported by sufficient evidence? Was the evidence too speculative? Did the evidence fail to show who wrote the signs? Did the evidence fail to show who was referred to by "Squill"? Did the verdict violate fundamental due process because the evidence was highly speculative and contradictory and did not support the verdict, thus violating the Due Process Clause of the Fourteenth Amendment of the United States Constitution? - - - Judge Cunningham affirmed the judgment of sentence.

3. Was the sentence of Judge Cunningham of 6 ½ to 13 years of incarceration, plus 5 years of probation excessive and an abuse of discretion? Did this excessive sentence present a substantial issue since it far exceeded the Sentencing Guidelines? Was the sentence extremely harsh under the circumstances and an abuse of the Sentencing Guidelines when there was an offense gravity score of 11 and a prior record score of 0 with a guideline sentencing range of 36 to 54 months of incarceration, plus or minus 12? Was this an abuse of discretion since the sentence of 6 ½ years [to] 23 months was far above the outer limits of the Sentencing Guidelines? Was the sentence abusive since the Assistant District Attorney only asked for 4 to 8 years of

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