J-S13005-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

LARRY EDWARD SHOWALTER, 2ND

                            Appellant                 No. 2089 WDA 2014


          Appeal from the Judgment of Sentence September 24, 2014
               In the Court of Common Pleas of Bedford County
             Criminal Division at No(s): CP-05-CR-0000132-2013


BEFORE: LAZARUS, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY LAZARUS, J.:                              FILED APRIL 1, 2016

        Larry E. Showalter, 2nd, appeals from the judgment of sentence

entered in the Court of Common Pleas of Bedford County following a jury

trial in which he was convicted of two counts of rape of a child, 1 two counts

of involuntary deviate sexual intercourse (IDSI),2 two counts of aggravated

indecent assault,3 two counts of incest,4 endangering the welfare of


____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. § 3121(c).
2
    18 Pa.C.S. § 3123(b).
3
    18 Pa.C.S. § 3125(a)(7).
4
    18 Pa.C.S. § 4302.
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children,5 corruption of minors,6 and three counts of indecent exposure.7

After careful review, we affirm the convictions, vacate the judgment of

sentence, and remand for resentencing.

        Showalter’s convictions stem from allegations made by his biological

daughter that Showalter raped her on multiple occasions when she was

between the ages of 8 and 11.

        The victim first reported the incidents approximately five years after

the last such incident had occurred, during the fall of 2012, when the victim

disclosed the incidents to her school guidance counselor, Stephen Brian

Waltman. The victim came to Waltman’s office, immediately after she was

involved in an altercation with another student, to request that Waltman

adjust her class schedule so that she could avoid future contact with that

student. At trial on June 19, 2014, Waltman testified that when the victim

entered his office, she appeared to be “extremely upset” over the argument

with the other student.          N.T. Trial, 6/19/14, at 130.   The victim told

Waltman that the other student did not understand what she had been

through and then “began listing all of [the] things that hadn’t gone right in

her life.” Id. at 134. Waltman testified that, at this time, the victim “more
____________________________________________


5
    18 Pa.C.S. § 4304(a)(1).
6
    18 Pa.C.S. § 6301(a)(1)(i).
7
    18 Pa.C.S. § 3127(a).




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or less blurt[ed] out that her father raped her.” Id. at 135. When Waltman

asked what she meant, she told him that she was “repeatedly raped” by her

father when she was “eight, nine, ten-years-old.”      Id.   Waltman testified

that he then spent the next thirty or forty minutes “just trying to calm [the

victim] down.” Id.

      Defense counsel objected to Waltman’s testimony regarding the

victim’s statements on several grounds.        Defense counsel argued that

Waltman’s testimony about the victim’s statements was inadmissible

hearsay and that the testimony was cumulative because the victim had

already testified about the substance of her conversation in Waltman’s

office.   The trial court overruled defense counsel’s objection and admitted

the testimony, ruling that it fell within the excited utterance exception to the

hearsay rule. Id. at 133.

      At the conclusion of the one-day trial, the jury convicted Showalter on

thirteen of twenty-seven counts charged against him. Prior to sentencing,

the Commonwealth filed notice of intent to seek mandatory minimum

sentences for Showalter’s rape of a child, IDSI, and aggravated indecent

assault convictions, pursuant to 42 Pa.C.S. § 9718 (stating persons

convicted of rape of a child or IDSI involving a child shall be sentenced to at

least ten years’ imprisonment and that persons convicted of aggravated

indecent assault of a child shall be sentenced to at least five years’

imprisonment).     See Notice of Intention to Seek Mandatory Sentence

Pursuant to 42 Pa.C.S. § 9718, 7/25/14, at 1-2.

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      On September 24, 2014, after a hearing, the trial court found that

Showalter fit the classification of a sexually violent predator and sentenced

him to ten to twenty years’ imprisonment for each of two counts of rape of a

child and two counts of IDSI, and five to ten years’ imprisonment for each of

two aggravated indecent assault counts. Showalter received the mandatory

minimum sentence pursuant to 42 Pa.C.S. § 9718 for each of these counts.

For two incest counts, Showalter received a sentence of five to ten years’

imprisonment. This sentence is beyond the aggravated guidelines range for

incest. The trial court ordered that all eight of the above sentences were to

run consecutively, resulting in an aggregate sentence of sixty to one-

hundred-and-twenty years. Showalter filed a timely post-sentence motion,

which the court denied on October 10, 2014. This timely appeal followed.

      Showalter raises the following issues for our review:

      I.    Whether the trial court erred in allowing witness Stephen
            Brian Waltman to testify to hearsay statements made by
            the alleged victim, ruling that said statements fell within
            the excited utterance exception to the hearsay rule?

      II.   Whether the trial court committed an abuse of discretion in
            sentencing [Showalter] consecutively on several counts
            and whether the sentence imposed was excessive?

Brief for Appellant, at 3.

      First, we address whether the trial court erred in allowing Waltman’s

testimony    regarding       the   victim’s   statements   in   his   office.   The

Commonwealth argues that the statements in question were properly

admitted at trial under the excited utterance exception to the hearsay rule.



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Pennsylvania Rule of Evidence 803(2) provides an exception to the hearsay

rule for any “statement relating to a startling event or condition, made while

the declarant is under the stress of excitement that it caused.”      Pa.R.E.

803(2). Our Supreme Court has further defined an excited utterance as:

      [A] spontaneous declaration by a person whose mind has been
      suddenly made subject to an overpowering emotion caused by
      some unexpected and shocking occurrence, which that person
      had just participated in or closely witnessed, and made in
      reference to some phase of that occurrence which he perceived,
      and this declaration must be made so near the occurrence both
      in time and place as to exclude the likelihood of its having
      emanated in whole or in part from his reflective faculties.

Commonwealth v. Wholaver, 989 A.2d 883, 906 (Pa. 2010) (citations

omitted). While the courts of this Commonwealth have not set a time limit

within which the statement must be made after the precipitating event, the

Supreme Court has explained that “[t]he crucial question . . . is whether, at

the time the statement is made, the nervous excitement continues to

dominate while the reflective processes remain in abeyance.”      Id. at 907

(citations omitted).    Accordingly, “the determination is factually driven,

made on a case-by-case basis.” Id.

      Showalter argues that the excited utterance exception does not apply

because the victim’s statements to Waltman were too far removed in time

and space from the occurrence that caused the victim’s excited state. Brief

for Appellant, at 11.    Showalter acknowledges that the victim may have

been upset when she made the statements to Waltman, but contends that

she was upset from being harassed by another student, not from being


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sexually abused by her father.        Furthermore, Showalter argues that the

excited utterance exception does not apply because the sexual abuse and

the victim’s statements about the abuse occurred at different locations; all of

the alleged incidents of abuse occurred at the Showalter residence, while the

victim made the contested statements to Waltman in the school guidance

counselor’s office.

        Here, the startling event for the victim was a verbal altercation with

another student, in which the other student called the victim “cellulite

infested” and “nothing but trailer trash.”       N.T. Trial, 6/19/14, at 72.   The

victim made the statement about her father raping her without any

prompting by Waltman and while still extremely upset over the fight.

        The trial court found that the statement was admissible under the

excited utterance exception and offered the following analysis:

        [A]lthough [the victim] was not under the stress of having been
        just recently sexually abused, her statement nonetheless was
        “made in reference to some phase of that occurrence.” That is,
        her primary reason for being so upset from the bullying was that
        the other student had no appreciation for the past sexual abuse
        she suffered from [Showalter]. Additionally, while the lapse in
        time between the actual sexual assault and the statement was
        great, the statement was elicited shortly after the victim
        experienced the emotional response to the bullying. In sum, we
        found the statement admissible since there was a sufficient
        nexus between the statement and the emotional reaction, and
        the statement was made while still under the stress of the
        related emotional event.

Trial   Court   Opinion,   5/29/15,    at    5   (quoting   Commonwealth        v.

Chamberlain, 731 A.2d 593, 596 (Pa. 1999)).



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      We disagree with the trial court’s analysis and find that the victim’s

statements to Waltman are inadmissible hearsay and do not fall under the

excited utterance exception.     First, the statements are simply too far

removed from the sexually abusive acts to which they refer. The evidence

shows that Showalter’s abuse of the victim ceased completely more than five

years before the victim’s statements in Waltman’s office.      Although the

victim may have been upset over her fight with another student, the special

conditions to which the excited utterance exception is meant to apply simply

were not present.   At the time that she made the statements to Waltman

about her father’s past sexual abuse, the victim had had over five years to

reflect on the events to which the statements pertained.     In light of this

large gap in time, the fact that the victim was upset does very little “to

exclude the likelihood of [the statements] having emanated in whole or in

part from [her] reflective faculties.”   Wholaver, supra.   Indeed, the fact

that the victim was able to recognize her childhood abuse as “rape”

evidences that she had had at least some opportunity to reflect upon the

events.   Furthermore, the victim has not alleged that her classmate said

anything that could be construed as “shocking,” so as to make her “subject

to an overpowering emotion.”      Wholaver, supra.     The record does not

establish that the victim was so upset by the bullying of her classmate that

her faculty for reflection was overpowered.    Accordingly, we hold that the

trial court abused its discretion in admitting Waltman’s testimony regarding




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the content of the victim’s statements in his office under the excited

utterance exception to the hearsay rule.

          Having concluded that the trial court erred in admitting Waltman’s

testimony, we must determine whether the admission of that evidence

amounted to harmless error. “Not all errors at trial . . . entitle an appellant

to    a    new   trial,   and   [t]he   harmless   error   doctrine,   as   adopted    in

Pennsylvania, reflects the reality that the accused is entitled to a fair trial,

not a perfect trial.”        Commonwealth v. West, 834 A.2d 625, 634 (Pa.

Super. 2003).        The Commonwealth bears the burden of establishing the

harmlessness of the error. Commonwealth v. Passmore, 857 A.2d 697,

711 (Pa. Super. 2004). In order to establish that an error was harmless, the

Commonwealth must show that:

          (1) the error did not prejudice the defendant or the prejudice
          was de minimis; or (2) the erroneously admitted evidence was
          merely cumulative of other untainted evidence which was
          substantially similar to the erroneously admitted evidence; or (3)
          the properly admitted and uncontradicted evidence of guilt was
          so overwhelming and the prejudicial effect of the error so
          insignificant by comparison that the error could not have
          contributed to the verdict.

Id.

          We find that the trial court’s admission of Waltman’s testimony was

harmless error.           The victim’s statements to Waltman had already been

properly admitted through the victim’s own testimony on the stand.                    The

victim’s testimony about her statements to Waltman was substantially

similar to Waltman’s barred hearsay testimony.                 Furthermore, defense


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counsel did not object to the victim’s testimony at trial.        Therefore,

Waltman’s erroneously-admitted testimony was merely cumulative of the

victim’s own testimony, which had already been admitted.          Given the

cumulative nature of the erroneously-admitted testimony, we find that any

prejudice to Showalter was de minimis. Passmore, supra.

      Having determined that Showalter’s convictions are valid, we address

whether the sentencing court abused its discretion in sentencing him to sixty

to one-hundred-and-twenty years’ incarceration.      Showalter contends that

the trial court abused its discretion by imposing consecutive sentences and

by imposing a sentence above the aggravated guidelines range on each of

two incest counts. While Showalter does not raise the issue, we note that he

was sentenced pursuant to the mandatory minimum scheme as set forth in

42 Pa.C.S. § 9718, which has been held to be unconstitutional.           See

Commonwealth v. Wolfe, 106 A.3d 800, 805 (Pa. Super. 2014).

Consequently, we elect sua sponte to review the legality of Showalter’s

sentences for rape of a child, IDSI, and aggravated indecent assault. See

Commonwealth v. Edrington, 780 A.2d 721 (Pa. Super. 2001) (assuming

proper jurisdiction, application of mandatory minimum sentence involves

legality of sentence, which this Court can raise sua sponte).

      Prior to our decision in Wolfe, section 9718(a)(3) set forth mandatory

minimum sentences of ten years’ imprisonment where a defendant is

convicted of rape of a child or IDSI involving a child and five years’

imprisonment where a defendant is convicted of aggravated indecent assault

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of a child.     42 Pa.C.S. § 9718(a)(3).           In Wolfe, a jury convicted the

defendant of sex crimes committed against a minor victim, including two

counts of IDSI.8 The court imposed ten-year mandatory minimum sentences

for each IDSI conviction, pursuant to section 9718(a)(1).         On appeal, this

Court emphasized that section 9718 “contains the same format” as other

statutes recently held to be facially unconstitutional by this Court in light the

United States Supreme Court’s decision in Alleyne v. United States, 133

S.Ct. 2151 (2013).9 Id. at 805. Consequently, this Court held section 9718

is also facially unconstitutional. Moreover, this Court noted:


____________________________________________


8
    The relevant portion of the IDSI statute provides:

        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.C.S. § 3123(a)(7).
9
  In Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc),
this Court held that section 9712.1 can no longer pass constitutional muster
as it “permits the trial court, as opposed to the jury, to increase a
defendant’s minimum sentence based upon a preponderance of the
evidence.” Newman, supra at 98. Thus, this Court vacated Newman’s
PWID sentence and remanded for resentencing without imposition of the
mandatory minimum under section 9712.1. See also Commonwealth v.
Valentine, 101 A.3d 801 (Pa. Super. 2014) (involving appeal of sentence
arising from jury trial; extending logic of Alleyne and Newman to 42
Pa.C.S. §§ 9712, 9713 and holding those sections are likewise
unconstitutional insofar as they permit automatic increase of defendant’s
sentence based on preponderance of evidence standard).



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      We recognize that this specific case is unique insofar that the
      additional fact triggering the mandatory sentence is also
      contained as an element within the subsection of the IDSI
      statute under which [the defendant] was convicted. Therefore,
      in order to convict [the defendant] of IDSI, the Commonwealth
      was already required to prove beyond a reasonable doubt that
      the victim was less than 16 years old.

      However, we are not concerned with [the defendant’s] conviction
      in this appeal, only the imposition of the mandatory minimum
      sentence.

                                       ***

      [I]n this case, although the jury was required to find that the
      victim was less than 16 years of age in order to convict [the
      defendant], we cannot ignore the binding precedent from an en
      banc decision of this Court. Newman stands for the proposition
      that mandatory minimum sentence statutes in Pennsylvania of
      this format are void in their entirety.      As section 9718 is
      indistinguishable from the statutes struck down in Newman and
      Valentine, we are constrained to conclude that section 9718 is
      also facially void. As a result, we conclude the trial court erred
      in imposing the ten-year mandatory minimum.

Id. at 5-6 (internal citations omitted).

      Instantly, the court conducted a jury trial and convicted Showalter of

multiple sex offenses. At the sentencing hearing, the court applied Section

9718 to Showalter’s rape of a child, IDSI, and aggravated indecent assault

convictions.    Given this Court’s decisions in Newman, Valentine, and

Wolfe,   however,     we   must      vacate    and   remand    for   resentencing.

Accordingly, we affirm Showalter’s convictions, but we vacate the judgment

of   sentence   and   remand   for    resentencing    in   accordance   with   this

memorandum.




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      Judgment of sentence vacated; case remanded for resentencing.

Jurisdiction relinquished.
Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/01/16




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