J-S25019-14


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

RUSSELL EARL LATTIMER

                       Appellant                No. 1473 MDA 2013


       Appeal from the Judgment of Sentence entered April 2, 2013
           In the Court of Common Pleas of Bradford County
            Criminal Division at No: CP-08-CR-0000546-2012


COMMONWEALTH OF PENNSYLVANIA                IN THE SUPERIOR COURT OF
                                                  PENNSYLVANIA
                       Appellee

                  v.

RUSSELL EARL LATTIMER

                       Appellant                No. 1474 MDA 2013


       Appeal from the Judgment of Sentence entered April 2, 2013
           In the Court of Common Pleas of Bradford County
            Criminal Division at No: CP-08-CR-0000549-2012


BEFORE: OTT, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                     FILED AUGUST 01, 2014

     Appellant, Russell Earl Lattimer, appeals from the April 2, 2013

judgment of sentence. We affirm.

     At docket number CP-08-CR-0000546-2012, a jury found Appellant

guilty of rape, aggravated indecent assault, intimidation of witnesses,
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statutory sexual assault, and indecent assault.1             At docket number CP-08-

CR-0000549-2012, a jury convicted Appellant of rape, aggravated indecent

assault, three counts of indecent assault, and sexual assault.2

       The    Commonwealth          charged      Appellant    with   committing   the

aforementioned sexual offenses against five female victims, including his

biological daughter and four daughters of his paramour.                The rape and



victimization of S.T. and T.O., two daughters of Appell

       S.T., 26 years old at the time of trial, testified that she was twelve

years old the first time Appellant had sex with her. N.T. Trial, 11/15/12 at

25, 37-

when she was 20 or 21.            Id. at 27, 30.      In describing her first sexual



him a question. Id. at 34. S.T. was home sick from school at the time, and

her mother was at work.           Id. at 36.     As she was leaving the bedroom,

Appellant asked S.T. to sit on the bed and talk to him, so she did. Id. at 34-

35. Appellant started touching her vagina and chest. Id. at 35. When S.T.

asked Appellant why he was touching her, he told her she would like it. Id.

a

____________________________________________


1
    18 Pa.C.S.A. §§ 3121(2), 3125, 4952, 3122.1, and 3126, respectively.
2
    Sexual assault is codified at 18 Pa.C.S.A. § 3124.1.



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her. Id.                                            Id. S.T. told Appellant to

stop and that he was hurting her. Id. at 37.

     Appellant continued having sex with S.T. two or three times per week

until after her high school graduation.       Id. at 45.   S.T. testified that

Appellant used condoms at first, but stopped using because S.T. had an

allergic reaction to them. Id. at 42. Appellant would occasionally ejaculate

outside of her after that.   Id.   If S.T. refused to submit to the sexual



with her or do anything for her. Id. at 40. When she submitted, Appellant

would buy her things such as clothes, a cell phone, and a computer for her

room. Id. at 40-41. Appellant would allow S.T. to visit her boyfriend only if

she submitted to sex with Appellant.    Id.

graduation, Appellant m

kept having sex with him. Id. at 45-46. She was 19 years of age at that

time. Id. at 57.

     T.O. was 24 years old at the time of trial. Id. at 101. She lived in

                                       Id. at 102, 105. Appellant acted as a

father and was in charge of the household. Id. at 106. When she was 12

years old, Appellant began touching her breasts and vagina. Id. at 107-08.

                                                                        I told

anyone, that our whole family would be broken apart, we would be put in

foster care, and that my mom could go to jail.      He also told me that my


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                                 Id. at 109.   She testified that Appellant had

sexual intercourse with her for the first time on her 13th birthday.       Id. at

110.   After that, Appellant continued to have sexual intercourse with T.O.

several times per week until T.O. was 19.        Id. at 111-12, 117.     On each

occasion, he withdrew and ejaculated outside of her in order to avoid

pregnancy. Id. at 113. T.O. allowed the conduct to continue because she

was afraid her family would break up if she told anyone. Id. at 119.

       A jury found Appellant guilty of the aforementioned offenses at the

conclusion of the November 15, 2012 trial. Prior to sentencing, the Sexual

Offenders Assessment Board concluded Appellant was a sexually violent

predator. The trial court imposed an aggregate sentence of 35 years and 7

months to 81 years of incarceration on April 2, 2013.           Appellant filed a

timely post-sentence motion on April 10, 2013, in which he challenged the

weight of the evidence and the discretionary aspects of his sentence. The

trial court denied that motion on July 29, 2013 and this timely appeal

followed.

       Appellant raises four assertions of error:

       I.     Whether the Commonwealth presented sufficient evidence
              of penetration to sustain verdicts of guilty on rape and
              aggravated indecent assault?

       II.    Whether the Commonwealth presented sufficient evidence
              of threat of forcible compulsion to sustain verdicts of guilty
              of rape?

       III.   Whether the trial court abused its discretion in denying the
              motion in arrest of judgment?


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      IV.   Whether the sentence is unduly harsh and excessive?




evidence. We will address the first these arguments together, pursuant to

the well-settled standard of review:

            The standard of review for a challenge to the sufficiency of
      the evidence is to determine whether, when viewed in a light
      most favorable to the verdict winner, the evidence at trial and all
      reasonable inferences therefrom is sufficient for the trier of fact
      to find that each element of the crimes charged is established
      beyond a reasonable doubt. The Commonwealth may sustain its
      burden of proving every element beyond a reasonable doubt by
      means of wholly circumstantial evidence.

          The facts and circumstances established by the
      Commonwealth need not preclude every possibility of innocence.

      the fact-finder.   As an appellate court, we do not assess
      credibility nor do we assign weight to any of the testimony of
      record. Therefore, we will not disturb the verdict unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances.

Commonwealth v. Vogelsong, 90 A.3d 717, 719 (Pa. Super. 2014)

(citations and quotation marks omitted).      As sufficiency of the evidence

poses a question of law, or standard of review is de novo and our scope of

review is plenary.    Commonwealth v. Staton, 38 A.3d 785, 789 (Pa.

2012).

                                                            3121(a)(2), which

defines rape as follows:

      § 3121. Rape.


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              (a) Offense defined. --A person commits a felony of the
       first degree when the person engages in sexual intercourse with
       a complainant:



             (2) By threat of forcible compulsion that would prevent
       resistance by a person of reasonable resolution.

18 Pa.C.S.A. §

ordinary meaning, [. . .] intercourse per os or per anus, with some

penetration however slight; emission is not required. 18 Pa.C.S.A. § 3101.

Forcible compulsion includes:

                                                                   Id.3
____________________________________________


3
    The Pennsylvania Crimes Code defines aggravated indecent assault as
follows:

             (a) Offenses defined. --Except as provided in sections
       3121 (relating to rape), 3122.1 (relating to statutory sexual
       assault), 3123 (relating to involuntary deviate sexual
       intercourse) and 3124.1 (relating to sexual assault), a person
       who engages in penetration, however slight, of the genitals or

       purpose other than good faith medical, hygienic or law
       enforcement procedures commits aggravated indecent assault if:



              (2) the person does so by forcible compulsion;

             (3) the person does so by threat of forcible compulsion
       that would prevent resistance by a person of reasonable
       resolution;



              (7) the complainant is less than 13 years of age;
(Footnote Continued Next Page)


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      Appellant first argues the Commonwealth failed to produce sufficient

evidence of penetration to support the rape and aggravated assault

convictions.   As noted above, S.T. and T.O. both testified that Appellant

repeatedly had sexual intercourse with them several times per week

throughout their teenage years. Appellant argues that testimony indicating



argument strains credulity, in that S.T. and T.O. were in their mid-twenties

at the time of trial and clearly understood their testimony. In addition, both

victims testified that Appellant would withdraw and ejaculate outside of them

to avoid pregnancy.           The record contains overwhelming evidence that

Appellant engaged in sexual intercourse, as that term is defined in § 3101,

with both S.T. and T.O.

      Appellant also asserts his conviction for aggravated assault of a victim

less than thirteen years of age with respect to T.O. cannot stand because

T.O. testified that she first had intercourse with Appellant on her thirteenth



                       _______________________
(Footnote Continued)




            (b) Aggravated indecent assault of a child. --A person
      commits aggravated indecent assault of a child when the person
      violates subsection (a)(1), (2), (3), (4), (5) or (6) and the
      complainant is less than 13 years of age.

18 Pa.C.S.A. § 3125.




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birthday.4    Appellant concedes that he failed to include this issue in his

Pa.R.A.P.    1925(b)      statement,     which   results   in   waiver.   Pa.R.A.P.

1925(b)(4)(vii).5

       Next, Appellant argues the record does not contain sufficient evidence

that his intercourse with S.T. and T.O. took place under threat of forcible

compulsion. In Commonwealth v. Rhodes, 510 A.2d 1217 (Pa. 1986), the
____________________________________________


4
    S.T. testified that she and Appellant began having sex prior to her
thirteenth birthday.
5



vagina.    This Court has held similar conduct sufficient to establish
penetration:

             [T]he definition of
       Pa.C.S.A. §

       entrance in the labia is sufficient[.] We therefore will not hold
       that a finding of penetration of the vagina is necessary for the

       since penetration of the vagina, in essence the farther reaches of
       the female genitalia, is not necessary to find penetration under


Commonwealth v. Ortiz, 457 A.2d 559, 560-61 (Pa. Super. 1983); see
also, Commonwealth v. Zeigler, 550 A.2d 567, 569-70 (Pa. Super. 1988)

establish penetration), overruled in part on other grounds, Commonwealth
v. Goggins, 748 A.2d 721 (Pa. Super. 2000) (en banc), appeal denied, 759


     We further observe that aggravated indecent assault occurs when the
perpetrator penetrates genitals or anus of the victim with a part of his or her
body. 18 Pa.C.S.A. § 3125(a). Digital penetration is therefore sufficient.
Commonwealth v. Bishop, 742 A.2d 178, 189-90 (Pa. Super. 1999),
appeal denied, 758 A.2d 1194 (Pa. 2000).



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20-year-old perpetrator raped his 8-year-old neighbor. Id. at 1218. They

had been neighbors for three years. Id. The perpetrator sexually assaulted

the victim after he led her to an upstairs room in an abandoned building and

instructed her to lie down on the floor and pull her legs up.        Id.    The

Supreme Court set forth the following guidelines for ascertaining the

existence of forcible compulsion or threat thereof:

            The determination of whether there is sufficient evidence
      to demonstrate beyond a reasonable doubt that an accused
      engaged in sexual intercourse by forcible compulsion (which we
      have defined to include not only physical force or violence, but
      also moral, psychological or intellectual force used to compel a

      will,[]), or by the threat of such forcible compulsion that would
      prevent resistance by a person of reasonable resolution is, of
      course, a determination that will be made in each case based
      upon the totality of the circumstances that have been presented
      to the fact finder. Significant factors to be weighed in that
      determination would include the respective ages of the victim
      and the accused, the respective mental and physical conditions
      of the victim and the accused, the atmosphere and physical
      setting in which the incident was alleged to have taken place,
      the extent to which the accused may have been in a position of
      authority, domination or custodial control over the victim, and
      whether the victim was under duress. This list of possible
      factors is by no means exclusive.

Id. at 1226.

      In ruling that the record contained sufficient evidence in support of a

conviction for rape by threat of forcible compulsion, the Court wrote:

             There is an element of forcible compulsion, or the threat of
      forcible compulsion that would prevent resistance by a person of
      reasonable resolution, inherent in the situation in which an adult
      who is with a child who is younger, smaller, less psychologically
      and emotionally mature, and less sophisticated than the adult,
      instructs the child to submit to the performance of sexual acts.

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      This is especially so where the child knows and trusts the adult.
      In such cases, forcible compulsion or the threat of forcible
      compulsion derives from the respective capacities of the child
      and the adult sufficient to induce the child to submit to the

      physical force or violence or the explicit threat of physical force
      or violence.

Id. at 1227.   Thus, the 20-year-old perpetrator who knew the 8-year-old

victim for three years and lured her into an abandoned building committed

rape by threat of forcible compulsion.    Id.   The Supreme Court therefore

                                                      the illicit commands of

this twenty year old [man] in an isolated and abandoned room were . . . an

imperative which gave the [eight year old] child victim no alternative but



physically and emotionally helpless to resist the commands of her twenty

                       Id. (quoting Commonwealth v. Rhodes, 481 A.2d

610, 614 (Pa. Super. 1984) (Cavanaugh, J. dissenting),             , 510 A.2d

1217 (Pa. 1986)).

      Appellant relies primarily on Commonwealth v. Titus, 556 A.2d 425

(Pa. Super. 1989), in which this Court found insufficient evidence of threat of

forcible compulsion where the defendant was convicted of raping his 13-

year-old daughter. Id. at 426. The defendant came home from a night of

drinking, got in bed with his daughter, and had sex with her after she

awoke.   Id.   The victim pushed the defendant away after the intercourse

was over. Id. In reversing the rape conviction, this Court reasoned that a



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parent-child relationship, in and of itself, is not sufficient to support a finding

of forcible compulsion. Id. at 429. Since no fact of record, other than the

father/daughter relationship, supported a finding of forcible compulsion, this

Court vacated the judgment of sentence.          Id. at 430.    In distinguishing

Rhodes, the trial court noted additional factors contributing to the finding of

forcible compulsion in that case, such as directing the victim to a remote

location where she could not get help. Id. at 429.

      Indeed, in many cases where a familial relationship exists between the

perpetrator, the courts rely on additional factors to support a finding of

forcible compulsion.    See Commonwealth v. Ables, 590 A.2d 334, 338

(Pa. Super. 1991) (finding sufficient evidence of forcible compulsion where

the defendant repeatedly victimized his thirteen-year-old niece and told her

if she told anyone she would get into trouble), appeal denied, 597 A.2d 1150

(Pa. 1991); Commonwealth v. Ruppert, 579 A.2d 966, 969 (Pa. Super.

1990) (finding sufficient evidence of forcible compulsion where the father,

who repeatedly sexually victimized his nine-year-old daughter over the

course of three months, showed her sexually explicit magazines to

encourage her to imitate what she saw), appeal denied, 588 A.2d 914 (Pa.

1991).

      Instantly, the parties do not dispute that Appellant served as a father

figure to both S.T. and T.O.      In addition to this relationship, the record

contains evidence that Appellant would withhold favorable treatment from


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S.T. if she did not submit to sexual intercourse.   Likewise, Appellant told

                                                                  ehavior to

                                                                            -

teen years until they reached the age of majority. In other words, Appellant

used psychological and emotional force to gain submission from S.T. and

T.O., who clearly were unwilling victims.     As such, the record contains

evidence, in addition to the familial relationship, indicating that Appellant

                                                                          See

Commonwealth v. Poindexter, 539 A.2d 1341, 1344-45 (Pa. Super.

1988) (finding sufficient evidence of forcible compulsion where the sexual

assaults commenced when the victims were young and the perpetrator used



their family would break up if they told anyone), appeal denied, 549 A.2d

134 (Pa. 1988).     This case is easily distinguishable from Titus, which

involved a single incident of sexual intercourse not precipitated by any

                                                             lacks merit.



support of his rape convictions.

            A verdict is not contrary to the weight of the evidence
      because of a conflict in testimony or because the reviewing court
      on the same facts might have arrived at a different conclusion
      than the factfinder. Rather, a new trial is warranted only when


      so that righ
      Where, as here, the judge who presided at trial ruled on the

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      the underlying question of whether the verdict is against the
      weight of the evidence. Rather, appellate review is limited to
      whether the trial court palpably abused its discretion in ruling on
      the weight claim.

Commonwealth v. Tharp, 830 A.2d 519, 528 (Pa. 2003) (citations

omitted), cert. denied, 541 U.S. 1045 (2004).        Appellant preserved this

issue in a timely post-sentence motion in accordance with Pa.R.Crim.P.




      Appellant argues the victims were not able to give dates, days of the




testimony was inconsistent with a prior statement she made to a social

worker. Id. Appellant also argues the jury failed to give sufficient weight to



them allowed the sexual relationship with Appellant to continue into

adulthood. Id.

      None of these assertions warrants a new trial.     Given that Appellant

committed numerous sexual assaults over many years, it is not surprising

the victims could not recite dates and times. Further, the jury was free to

assess the



of her prior inconsistent statement.    Finally, the ongoing sexual conduct



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between the victims and




Commonwealth v. Blakeney                                             Assessing

the credibility of witnesses at trial is within the sole discretion of the fact-

            cert. denied, 555 U.S. 1177 (2009).     The trial court acted well



                                  of error is that the trial court abused its

discretion in imposing a sentence of 35 years and 7 months to 81 years of

incarceration. Appellant was 58 years old at the time of sentencing, and he

argues the trial court abused its discretion in imposing a virtual life

sentence.

      Appellant preserved this issue in a timely post-sentence motion, and

his brief includes a Pa.R.A.P. 2119(f) statement asserting that a substantial

question exists. The 2119(f) statement notes that the trial court arrived at

its sentence by imposing sentence at the top of the aggravated range for

each offense and running the sentences consecutively. Appellant argues the



were not atypical of the crimes for which Appellant was convicted.         This

argument raises a substantial question.       Commonwealth v. Fullin, 892

A.2d 843, 848 (Pa. Super. 2006).      We will therefore review the merits of




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                                                           use   of   discretion.

Commonwealth v. Walls, 926 A.2d 957 (Pa. 2007). The sentencing court



the gravity of the offense as it relates to the impact on the life of the victim

and on                                                                       Id.

at 962 (quoting 42 Pa.C.S.A. §

sentence falls within the sentencing guidelines, the reviewing court may

reverse only if the sentencing court applied the guidelines improperly or if

                                           42 Pa.C.S.A. § 9781(c)(1), (2).

      In conducting our review of the record, we must consider:

            (1) The nature and circumstances of the offense and the
      history and characteristics of the defendant.

           (2) The opportunity of the sentencing court to observe the
      defendant, including any presentence investigation.

            (3) The findings upon which the sentence was based.

            (4) The guidelines promulgated by the commission.

42 Pa.C.S.A. § 9781(d).

      Appellant repeatedly sexually abused five young women, to whom he

was a father and father figure over a period of years. The trial court noted

the victims were young women Appellant should have been protecting rather

than exploiting. Trial Court Opinion, 11/6/13, at 4-5. He was in the home

when his paramour was working and took advantage of the victims when no

one was there to protect them.       Id.   As such, the trial court concluded

aggravated range sentences were appropriate. Id. at 5. Based on all of the

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evidence of record, as summarized above, we conclude the trial court acted

within its permissible discretion in imposing sentences at the top of the

aggravated range.

      Appellant also argues the trial court abused its discretion in imposing

the sentences consecutively. He cites Commonwealth v. Dodge, 957 A.2d

                           Dodge II         appeal denied, 980 A.2d 605 (Pa.

2009) for the proposition that a trial court can abuse its discretion in

creating a de facto life sentence by imposing numerous consecutive

sentences.    In Dodge II, the trial court imposed 52½ to 111 years of

incarceration for numerous thefts of personal property of little monetary

value. Id. at 1199, 1201. Given the absence of injured victims or violent

crime, we concluded the trial court abused its discretion imposing a de facto

life sentence.   Id. at 1202.   The rationale of Dodge II plainly has no

application here, where Appellant repeatedly engaged in the sexual abuse of

five young women who lived in his home with him. Appellant has failed to

offer a meritorious argument that the trial court abused its discretion in

imposing consecutive sentences.

      Finally, Appellant asserts the trial court improperly disregarded his

                                              tative needs are relevant under

the Sentencing Code, but they must be weighed alongside protection of the

public, the gravity of the offense, and the impact on the victims.        42

Pa.C.S.A. § 9721(b). Here, the trial court was well aware of the gravity of


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Ap

court was aware the conduct continued for years until Appellant was

arrested. After Appellant was arrested and jailed, he wrote a letter to S.T.

asking her not to say anything if she could avoid it. N.T. Trial, 11/15/12, at

47, 49-51.:

              Q.

      If they ever ask. Do you see that paragraph?

              A.   Yes.

              Q.   Can you read that to us?

             A.   If they ever ask if I did anything to you, too, and you
      really have to, tell them yes it was when you lived where [name
      deleted] lives

      phone calls [sic] are monitored.

Id. at 51 (emphasis added).      Thus, when Appellant was facing criminal

charges he asked S.T. to say nothing or maintain that she was a willing

victim.

      In light of the foregoing, the trial court acted within its permissible

discretion in weighing the § 9721(b) factors and discounting the prospect of




of them meritorious, we affirm the judgment of sentence.

      Judgment of sentence affirmed.



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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/1/2014




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