Commonwealth v. Shenk

1

COMMONWEALTH OF PENNSYLVANIA v. THEODORE ERVIN SHENK, SR. Appellant COMMONWEALTH OF PENNSYLVANIA v. THEODORE ERVIN SHENK, SR. Appellant

Nos. 1210 MDA 2022. 1299 MDA 2022

Nos. J-S15005-23, J-S15006-23

Superior Court of Pennsylvania

May 23, 2023

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

Appeal from the Judgment of Sentence Entered May 4, 2022 In the Court of Common Pleas of Perry County Criminal Division at No(s): CP-50-CR-0000116-2017, CP-50-CR-0000024-2017

Joseph D. Seletyn, Esq.

BEFORE: BOWES, J., STABILE, J., and SULLIVAN, J.

MEMORANDUM

BOWES J.

Theodore Ervin Shenk, Sr. appeals from the aggregate judgment of sentence of 142 months to 37 years of incarceration imposed in the above-captioned cases after a jury convicted him of multiple counts of rape of a child indecent assault, and other crimes related to the sexual abuse of his grandchildren, K.L.S. and A.L.S.^[1] We affirm.

[Appellant] was charged with and convicted of the above-enumerated sex-related crimes after a two-day jury trial. The crimes were committed by [Appellant] against two of his granddaughters, A.L.S. and K.L.S., during two separate time periods. From January 1, 2012 through August 31, 2016 [Appellant] committed crimes against A.L.S. when she was age five through age nine. From December 22, 2003 through December 22, 2004, [Appellant] committed crimes against K.L.S. while she was five years of age.

Prior to trial, on November 30, 2018, after review, Senior Judge Robert B. Sacavage granted the Commonwealth's request for consolidation of the matters. Then, on November 15, 2019, after hearing, review, and meeting with the minor victims, then-President Judge Kathy A. Morrow directed that an alternative method of testimony for the minor victims was required.

A[fter changes of judge and counsel and multiple continuances occasioned by, inter alia, the COVID-19 pandemic and Appellant's requests for additional time to obtain an expert report, a] pre-trial conference was held by [the trial court] on November 10, 2021, to plan the logistics for carrying out Judge Morrow's order for the contemporaneous alternative testimony of minor A.L.S. This pre-trial conference was attended by the Commonwealth and [Appellant]'s counsel (and, in fact, was rescheduled once at the request of [Appellant]'s counsel).

[Appellant] was found guilty of all charges against him following his two-day jury trial which concluded on November 16, 2021. On May 4, 2022, he was sentenced to a combined total period of incarceration of 142 months to 37 years[.]

Trial Court Opinion, 7/29/22, at 2-3 (cleaned up).

Appellant filed a timely post-sentence motion in both cases which the trial court denied by opinion and order of July 29, 2022, also captioned in both cases. Appellant filed a timely notice of appeal on Monday, August 29, 2022, captioned only at docket number 116-2017, but attaching the July 29, 2022 order captioned in both cases. On September 1, 2022, the trial court filed an order at docket number 116-2017 directing Appellant to file a concise statement of errors complained of on appeal in accordance with Pa.R.A.P. 1925(b). The following day, Appellant filed a corrected notice of appeal in each case that included both docket numbers at which Appellant was sentenced. Appellant thereafter timely filed his Rule 1925(b) statement in both cases and the trial court entered an order in both cases indicating that it relied upon its July 29, 2022 opinion to explain its rulings.

In the appeal pertaining to docket number 24-2017, this Court issued a rule to show cause why the September 2, 2022 appeal should not be quashed as untimely. Appellant responded that the second notice of appeal was merely filed to correct the record to reflect that the initial, timely appeal implicated both of the consolidated cases. This Court discharged the rule and referred the issue to the merits panel for resolution.

Hence, before we consider the substance of these appeals, we determine whether we have jurisdiction to entertain them. In Commonwealth v. Walker, 185 A.3d 969 (Pa. 2018), our Supreme Court ruled that the Pennsylvania Rules of Appellate Procedure "require that when a single order resolves issues arising on more than one lower court docket, separate notices of appeal must be filed." Walker, supra at 977. It further instructed that "[t]he failure to do so will result in quashal of the appeal." Id. However, in Commonwealth v. Young, 265 A.3d 462 (Pa. 2021), the Court opted to "largely blunt the bright-line rule the Walker Court sought to impose." Young, supra at 477. Specifically, the Young Court held that, when a timely notice of appeal is filed at only one docket number, Pa.R.A.P. 902 permits the correction of the error. Id. at 477-78. See also Pa.R.A.P. 902 ("Failure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but it is subject to such action as the appellate court deems appropriate, which may include, but is not limited to, remand of the matter to the lower court so that the omitted procedural step may be taken."). This Court subsequently ruled that "[i]n the absence of a showing of actual prejudice to an appellee resulting from the lack of separate notices of appeal at each docket, bad faith by an appellant, or other circumstances that render clemency inappropriate, a party filing an appeal as of right will as a matter of course be permitted to correct a Walker violation pursuant to Rule 902." Commonwealth v. Young ("Young II"), 280 A.3d 1049, 1057 (Pa.Super. 2022).

The Commonwealth argues that these appeals should be quashed because Appellant had the opportunity to timely file the requisite number of notices of appeal but did not, and that he failed to invoke Rule 902 in either his response to this Court's rule to show cause or in his brief. See Commonwealth's brief at 3-7. Consequently, the Commonwealth maintains that Appellant waived his right to perfect this appeal pursuant to Young. We disagree.

The Commonwealth fails to account for our Young II holding that correction of a Walker error will be permitted unless the appellee shows good cause why it should not. It has not alleged that Appellant's failure to file two separate notices of appeal has prejudiced it or was done in bad faith. Further, we are not convinced that counsel's lack of understanding about how to appeal a judgment of sentence imposed at two docket numbers constitutes a circumstance that renders clemency inappropriate.^[2] See Young II, supra at 1057. Therefore, had counsel not filed the second notice of appeal, we would have applied Young II and remanded for Appellant to correct the procedural misstep, and then addressed Appellant's issues.

By filing the September 2, 2022 notice of appeal at docket number 24-2017, counsel already did what we would have ordered. Consequently, we need not remand and instead proceed to review Appellant's claims of error, which he states as follows:

A. Whether the court erred in permitting the consolidation of the criminal actions for trial when the actions involved questions of law or fact not common to the other actions and did not all arise out of the same transaction or occurrence pursuant to Pa.R.Crim.P. 582.

B. Whether the court erred in permitting the minor victim A.L.S. to testify by alternative means when the victim was a teenager, not a child, whose ability to communicate would not have been substantially impaired pursuant to 42 Pa.C.S. [§] 5885.

C. Whether the court erred in permitting the testimony of Trp. Mark Fisher when the testimony was based on an interview where [Appellant] was in custodial interrogation and was not Mirandized, in violation of [his] rights pursuant to the Fifth Amendment to the United States Constitution and Article 1, [§] 9 of the Pennsylvania Constitution.

Appellant's brief at 6 (cleaned up).

Appellant first contends that the trial court erred in granting the Commonwealth's motion to consolidate the two cases. The following principles govern our review:

[T]he decision of whether to join or sever offenses for trial is within the discretion of the trial court, and such decision will not be reversed on appeal absent a manifest abuse of that discretion or a showing of prejudice and clear injustice to the defendant. The Pennsylvania Rules of Criminal Procedure provide that distinct offenses which do not arise out of the same act or transaction may be tried together if the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion.

Commonwealth v. Stiles, 143 A.3d 968, 975-76 (Pa.Super. 2016) (cleaned up). See also Pa.R.Crim.P. 582(A)(1) ("Offenses charged in separate indictments or informations may be tried together if: (a) the evidence of each of the offenses would be admissible in a separate trial for the other and is capable of separation by the jury so that there is no danger of confusion[.]").

It is well settled that "evidence concerning distinct crimes is inadmissible solely to demonstrate a defendant's bad character or his propensity to commit crimes[.]" Id. at 975-76. However, such evidence is properly admitted as proof of the following:

(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common scheme, plan or design embracing commission of two or more crimes so related to each other that proof of one tends to prove the others; or (5) to establish the identity of the person charged with the commission of the crime on trial, in other words, where there is such a logical connection between the crimes that proof of one will naturally tend to show that the accused is the person who committed the other.

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