J-S10034-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

ROBERT ENDRIKAT

                            Appellant               No. 1839 EDA 2014


            Appeal from the Judgment of Sentence March 14, 2014
               In the Court of Common Pleas of Monroe County
             Criminal Division at No(s): CP-45-CR-0000505-2012


BEFORE: GANTMAN, P.J., STABILE, J., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.:                            FILED MAY 05, 2015

       Appellant, Robert Endrikat, appeals from the judgment of sentence

entered in the Monroe County Court of Common Pleas, following Appellant’s

jury trial convictions of involuntary deviate sexual intercourse (“IDSI”)—

forcible compulsion, unlawful contact with a minor, corruption of minors,

sexual assault, indecent assault—without consent, and indecent assault—

forcible compulsion.1 We affirm.

       The trial court’s opinion sets forth the relevant facts and procedural

history of this case as follows:


____________________________________________


1
  18 Pa.C.S.A. §§ 3123(a)(1), 6318(a)(1),           6301(a)(1)(ii),   3124.1,
3126(a)(1), and 3126(a)(2), respectively.


_________________________

*Retired Senior Judge assigned to the Superior Court.
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          On May 21, 2012, the Commonwealth filed the Information
          charging [Appellant] with Rape by Forcible Compulsion,
          [IDSI], Unlawful Contact with a Minor, Sexual Assault,
          Corruption of Minors and Indecent Assault.

          On January 15, 2013, [Appellant] filed an Omnibus Motion
          challenging the prima facie case. On March 21, 2013, [the
          court] held a hearing on the Omnibus Motion. On June 6,
          2013, [the court] issued an opinion and order denying
          [Appellant’s] Omnibus Motion.

          On August 20, 2013, after a trial by jury, [Appellant] was
          convicted of all charges with the exception of Rape by
          Forcible Compulsion. Trial counsel, an attorney with the
          Public Defender’s Office, then filed a petition for withdrawal
          after stating that relations with [Appellant] had broken
          down.    On November 6, 2013, [the] [c]ourt allowed
          counsel to withdraw and appointed [new counsel] to act as
          counsel for [Appellant].

          On December 9, 2013, [the court] granted [Appellant’s]
          Motion for Transcripts.

          On March 14, 2014, [the court] sentenced [Appellant] to a
          term of six years to twelve years on each of the charges of
          [IDSI], Unlawful Contact, and Corruption of Minors. All
          sentences were to run concurrently. [The court] also
          found that the charges of Sexual Assault, Indecent Assault
          without Consent and Indecent Assault by Forcible
          Compulsion merged with [IDSI] for sentencing purposes.
          Therefore, [the court] imposed no additional sentence on
          those charges.

          On March 24, 2014, [Appellant] filed the Post-Sentence
          Motions. The Commonwealth also filed its own Motion for
          Reconsideration of sentence.[2]


____________________________________________


2
  The Commonwealth complained Appellant’s sentence was too lenient and
sought imposition of consecutive terms of incarceration in the aggravated
range of the sentencing guidelines.



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         On May 23, 2014, [the court] held a hearing on the [post-
         sentence] motions and the parties filed briefs. …

(Post-Sentence Motion Opinion, filed June 4, 2014, at 1-2).      The court

subsequently denied both Appellant’s and the Commonwealth’s post-

sentence motions on June 4, 2014. On June 24, 2014, Appellant timely filed

a notice of appeal. The court ordered Appellant on July 10, 2014, to file a

concise statement of errors complained of on appeal pursuant to Pa.R.A.P.

1925(b), and Appellant timely complied on July 31, 2014.

      Appellant raises the following issues for our review:

         WHETHER IT WAS AN ABUSE OF DISCRETION TO DENY
         [APPELLANT’S] MOTION FOR MISTRIAL AFTER THE
         ALLEGED VICTIM’S OUTBURST?

         WHETHER THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN
         THE VERDICT WHERE THERE WAS NO EVIDENCE OF
         FORCIBLE   COMPULSION,   THREAT    OF   FORCIBLE
         COMPULSION, OR THAT THE ALLEGED VICTIM WAS
         UNCONSCIOUS OR MENTALLY DEFICIENT AND INCAPABLE
         OF CONSENT.

         WHETHER THE VERDICT WAS AGAINST THE WEIGHT OF
         THE EVIDENCE BASED ON THE CONFLICTING TESTIMONY
         OF THE ALLEGED VICTIM, AND THE LACK OF EVIDENCE OF
         FORCIBLE COMPULSION OR LACK OF CONSENT.

         WHETHER THE TRIAL COURT ABUSED ITS DISCRETION BY
         RELYING ON AGGRAVATING CIRCUMSTANCES THAT ARE
         ENCOMPASSED IN THE ELEMENTS OF THE OFFENSES AND
         TAKEN INTO CONSIDERATION BY THE OFFENSE GRAVITY
         AND STATUTORY CLASSIFICATIONS OF THE CRIME.

(Appellant’s Brief at 7).

      After a thorough review of the record, the briefs of the parties, the

applicable law, and the well-reasoned opinion of the Honorable Stephen M.

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Higgins, we conclude Appellant’s issues one through three merit no relief.

The trial court’s opinion comprehensively discusses and properly disposes of

the questions presented.      (See Post-Sentence Motion Opinion at 7-15)

(finding: (1) court issued curative instruction to jury to disregard victim’s

outbursts and conduct concerning anger towards Appellant; court reiterated

curative instruction after closing arguments and told jury not to allow

emotion to prejudice determination of facts; presumption exists that jury

followed court’s instructions; outburst did not unfairly prejudice Appellant,

because jury already knew victim was angry with Appellant; likewise,

Appellant made no effort to explain how victim’s outburst unduly prejudiced

Appellant; Appellant’s failure to raise at trial or in post-sentence motion

challenge to victim’s characterization of Appellant’s behavior prevented court

from considering prejudice in this circumstance as basis for mistrial; (2)

victim’s initial statement that “Billy” raped victim does not indicate mistaken

identity because Commonwealth’s DNA expert testified that swabs of victim’s

penis revealed twenty-three-trillion-to-one chance that Appellant’s DNA was

present in form of saliva, victim identified Appellant as rapist, victim’s first

meeting of Appellant on day of incident could explain why victim used wrong

name to identify Appellant as “Billy” instead of “Bob”; Appellant’s claim that

another individual named “Billy” raped victim lacks any support; jury could

reasonably believe victim’s representations and determine Appellant was

properly identified as rapist; Appellant cites no authority to support claim


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that expert testimony was necessary, nor does he specify what required

expert testimony; Appellant did not raise objection at trial regarding lack of

expert testimony; evidence of victim’s “mental deficiency” was not present

in case, as Commonwealth did not proceed under theory that victim was

intellectually disabled; evidence of victim’s “emotional deficiency” was

relevant factor in considering whether victim suffered psychological forcible

compulsion;      expert   evidence   of    victim’s    “emotional   deficiency”   was

unnecessary because jury learned victim was adjudicated delinquent, victim

testified   to   emotional   instability    due   to   anger   issues,   and   victim

demonstrated emotional difficulties at trial by breaking down on stand,

refusing to testify, and yelling at Appellant; several factors supported jury’s

guilty verdict, including: Appellant was in his fifties and victim was only

sixteen years old, Appellant was larger than victim, Appellant deceived

victim by representing to his mother that Appellant mentored youth and was

trained in therapeutic methods, Appellant isolated victim by bringing him to

Appellant’s home at night in rural setting with which victim was unfamiliar,

Appellant purported to have authority by telling victim that Appellant knew

of therapy for dealing with anger, Appellant used his legs to pin victim’s

arms during one of massages, Appellant grabbed victim’s penis without

informing victim or asking for his consent, Appellant continued with charade

that massages were medical treatment even after Appellant asked victim if

he wanted more and victim replied “no,” victim looked for opportunity to


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escape and ran to neighbor’s home without shoes, victim began crying when

he reached neighbor’s home and indicated he had been raped, Appellant was

observed near neighbor’s home looking for victim with flashlight, Appellant

left in his car and was stopped by state police, Appellant’s DNA was found on

victim’s penis corroborating victim’s account of events, and victim’s mother

called Appellant three times to speak with victim, but each time Appellant

represented that victim was unavailable for various reasons; victim’s age,

lack of judgment, and emotional vulnerability made him prime target for

Appellant and allowed Appellant to manipulate victim; evidence at trial was

sufficient to find forcible compulsion; (3) verdict was not against weight of

evidence; evidence that forcible compulsion was largely non-physical, victim

did not fight Appellant, and victim voluntarily complied with Appellant’s

instructions were explained by surrounding circumstances, which allowed

jury to determine reasonably that victim was forcibly compelled; all evidence

in support of sufficiency indicates Appellant is not entitled to relief).   The

record supports the trial court’s decision to deny relief on these issues.

Therefore, we see no reason to disturb it. Accordingly, we affirm Appellant’s

issues one through three on the basis of the trial court’s opinion.

      In his final issue, Appellant argues the aggravating circumstances of

Appellant being in a position of trust, his seeking to take advantage of the

young victim to assault him sexually, and the victim’s suffering after the

sexual assault occurred, were improperly considered in the imposition of


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Appellant’s sentence. Appellant contends the court already considered these

circumstances in the elements of the offenses, the offense gravity score, and

the statutory classifications of the crimes. Specifically, Appellant maintains

his position of trust was considered in determining the sufficiency of the

evidence for forcible compulsion, the victim’s youth was encompassed in the

examination of the evidence for unlawful contact with a minor and corruption

of a minor, and the victim’s suffering was accounted for when the court took

the effect of the crime on the victim into consideration for the classification

of Appellant’s offenses and his offense gravity score.    Appellant concludes

this Court should vacate the judgment of sentence and remand for further

proceedings. Appellant challenges the discretionary aspects of his sentence.

Commonwealth v. Anderson, 830 A.2d 1013 (Pa.Super. 2003) (stating

claim that court considered improper factors at sentencing refers to

discretionary aspects of sentencing).

      Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right.     Commonwealth v. Sierra, 752 A.2d

910 (Pa.Super. 2000).      Prior to reaching the merits of a discretionary

sentencing issue:

         [W]e conduct a four-part analysis to determine: (1)
         whether appellant has filed a timely notice of appeal, See
         Pa.R.A.P. 902 and 903; (2) whether the issue was properly
         preserved at sentencing or in a motion to reconsider and
         modify sentence, See Pa.R.Crim.P. 720; (3) whether
         appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and
         (4) whether there is a substantial question that the
         sentence appealed from is not appropriate under the

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           Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal

denied, 589 Pa. 727, 909 A.2d 303 (2006) (internal citations omitted).

      When appealing the discretionary aspects of a sentence, an appellant

must invoke the appellate court’s jurisdiction by including in his brief a

separate concise statement demonstrating a substantial question as to the

appropriateness     of   the   sentence    under      the   Sentencing   Code.

Commonwealth v. Mouzon, 571 Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P.

2119(f). The concise statement must indicate “where the sentence falls in

relation to the sentencing guidelines and what particular provision of the

code it violates.” Commonwealth v. Kiesel, 854 A.2d 530, 532 (Pa.Super.

2004) (quoting Commonwealth v. Goggins, 748 A.2d 721, 727 (Pa.Super.

2000), appeal denied, 563 Pa. 672, 759 A.2d 920 (2000)).                  “The

requirement that an appellant separately set forth the reasons relied upon

for allowance of appeal ‘furthers the purpose evident in the Sentencing Code

as a whole of limiting any challenges to the trial court’s evaluation of the

multitude of factors impinging on the sentencing decision to exceptional

cases.’”   Commonwealth v. Williams, 562 A.2d 1385, 1387 (Pa.Super.

1989) (en banc).

           [O]nly where the appellant’s Rule 2119(f) statement
           sufficiently articulates the manner in which the sentence
           violates either a specific provision of the sentencing
           scheme set forth in the Sentencing Code or a particular
           fundamental norm underlying the sentencing process, will
           such a statement be deemed adequate to raise a

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         substantial question so as to permit a grant of allowance of
         appeal of the discretionary aspects of the sentence. See
         [Commonwealth v. Koehler, 558 Pa. 334, 370, 737 A.2d
         225, 244 (1999)] (party must articulate why sentence
         raises doubts that sentence was improper under the
         Sentencing Code).

Mouzon, supra at 435, 812 A.2d at 627.

     The determination of what constitutes a substantial question must be

evaluated on a case-by-case basis.      Commonwealth v. Anderson, 830

A.2d 1013 (Pa.Super. 2003). A substantial question exists “only when the

appellant advances a colorable argument that the sentencing judge’s actions

were either: (1) inconsistent with a specific provision of the Sentencing

Code; or (2) contrary to the fundamental norms which underlie the

sentencing process.”    Sierra, supra at 912-13.       An appellant raises a

substantial question where he alleges an excessive sentence due to the

court’s reliance on impermissible factors. Commonwealth v. McNabb, 819

A.2d 54 (Pa.Super. 2003).

     Instantly, Appellant preserved his discretionary aspects of sentencing

claim in his post-sentence motion and Rule 2119(f) statement. See Evans,

supra.   Moreover, Appellant’s claim raises a substantial question.      See

McNabb, supra. Nevertheless, the court determined:

         First, that [Appellant] was in a position of trust.
         [Appellant] was given supervision of the victim by the
         victim’s mother, allegedly to employ the victim and to
         engage in mentoring. The trial record supports this. Being
         in a position of trust is clearly not an element of the crime
         and we believed it to be an appropriate aggravating factor
         in considering [Appellant’s] sentence.

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        Second, that [Appellant] sought to take advantage of a
        youthful victim to sexually assault him.            This is
        approximately the wording employed in the Pre-Sentence
        Investigation and the way the aggravator was discussed at
        the sentencing hearing.     We did not understand this
        wording to mean that [Appellant] engaged in conduct[,]
        which constituted some form of sexual assault.           By
        definition, that is the offense itself and is necessarily
        considered in the sentencing guidelines. As such, we do
        not believe it could constitute a legitimate aggravator.
        Rather, we viewed this aggravator as having to do with
        [Appellant’s] planning to commit this crime and the
        predatory nature of what he planned to do, i.e. the
        targeting of a vulnerable youth. This is not an element of
        the crime and not all rapes necessarily include this type of
        behavior. This conduct certainly worsens [Appellant’s]
        offense and we properly considered it as an aggravator in
        sentencing.

        Third, and finally, we considered the victim’s suffering
        after being raped by [Appellant]. This particular victim
        was already a “troubled youth” prior to being raped by
        [Appellant] and his subsequent suffering from this
        encounter has done him more harm. Every victim suffers
        and is harmed, in a near permanent way, from such a
        violating and severe betrayal by a fellow human being.
        However, we viewed the inherent seriousness of rape
        alongside the particular suffering of this victim in
        considering how this should aggravate [Appellant’s]
        sentence.

        In sum, we properly considered these aggravators in
        determining [Appellant’s] sentence.

(Post-Sentence Motion Opinion at 16-17) (internal citations and footnotes

omitted). We accept the court’s conclusions. Thus, Appellant’s discretionary

aspects of sentencing claim merits no relief.   Accordingly, we affirm the

judgment of sentence.

     Judgment of sentence affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/5/2015




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