J-S20001-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                           IN THE SUPERIOR COURT OF
                                                             PENNSYLVANIA


                       v.

RALPH SKUNDRICH

                              Appellant                    No. 1433 WDA 2014


              Appeal from the Judgment of Sentence April 17, 2014
                In the Court of Common Pleas of Allegheny County
               Criminal Division at No(s): CP-02-CR-0012621-2010


BEFORE: PANELLA, J., OLSON, J., and PLATT, J.*

MEMORANDUM BY PANELLA, J.:                             FILED SEPTEMBER 09, 2016

        Appellant, Ralph Skundrich, appeals from the judgment of sentence

entered in the Court of Common Pleas of Allegheny County after a jury

convicted him of five counts of involuntary deviate sexual intercourse and

other related offenses. After careful review, we affirm.

        The   relevant      facts   and   procedural   history   are   as   follows.   At

approximately 2:30 a.m. on July 25, 2002, D.W. awoke on her living room

couch to find an intruder standing above her. D.W. described him as a

Caucasian male with salt and pepper hair, between five foot six and five foot

eight inches tall, with a medium to stocky muscular build. Further, she

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
J-S20001-16


indicated that the intruder wore a mask during the entire incident. Once the

intruder noted D.W. was awake, he pointed a gun at her, demanded she

give him money, and threatened to kill her if she screamed. He ordered

D.W. into her bedroom. When she attempted to scream, he punched her in

the face and stomach and removed her clothing.

      The intruder proceeded to perform oral sex on D.W., penetrate D.W.

anally with his penis, and force her to perform oral sex on him. He led D.W.

into the bathroom and forced her to urinate while he watched. While in the

bathroom, he again forced D.W. to perform oral sex on him and ejaculated

onto her face and chest. The intruder used a towel to clean D.W. off before

anally penetrating her for the second time. He led D.W. back into her

bedroom, demanded to know the location of her money, and instructed D.W.

to wait for five minutes before leaving the room. Upon leaving D.W.’s

residence, the intruder disconnected her phone and removed her phone

handset.

      After ten minutes, D.W. contacted the police and was transported to a

hospital where DNA evidence was collected. In 2010, police obtained a

search warrant to collect DNA evidence from Skundrich to test against the

DNA evidence taken in relation to D.W.’s assault. Subsequent testing

confirmed a match and Skundrich was arrested and charged with D.W.’s

sexual assault.




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          On January 13, 2014, a jury convicted Skundrich of burglary,1 five

counts of involuntary deviate sexual intercourse,2 two counts of sexual

assault,3 indecent assault,4 terroristic threats,5 simple assault, and false

imprisonment.6 Thereafter, the trial court sentenced Skundrich to an

aggregate          term    of   65   ½   to   131   years’   imprisonment.   Skundrich

subsequently filed a post-sentence motion, which the trial court denied. This

timely appeal follows.

          On appeal, Skundrich raises two issues for review. In his first issue,

Skundrich argues that the trial court abused its discretion by admitting

evidence of a sexual assault committed by Skundrich seven weeks prior to

D.W.’s sexual assault. Specifically, Skundrich contends that the prior sexual

assault was not sufficiently similar to D.W.’s sexual assault to constitute a

common plan or scheme, and therefore was unduly prejudicial and

improperly admitted under the common plan or scheme exception to

Pennsylvania Rule of Evidence 404(b). We disagree.

          “[T]he admission of evidence is within the sound discretion of the trial

court and will only be reversed upon a showing that the trial court clearly

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1
    18   Pa.C.S.   §   3502(c)(1).
2
    18   Pa.C.S.   §   3123.
3
    18   Pa.C.S.   §   3124.1.
4
    18   Pa.C.S.   §   2706.
5
    19   Pa.C.S.   §   2701(a)(1).
6
    18   Pa.C.S.   §   2903(a).



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abused its discretion.” Commonwealth v. Fransen, 42 A.3d 1100, 1106

(Pa. Super. 2012). Evidence of other crimes is inadmissible at a trial when

that proof is introduced solely to show the defendant’s bad character or

criminal propensities. See Commonwealth v. Keaton, 729 A.2d 529, 537

(Pa. 1999); see also Pa.R.E. 404(b)(1). However, evidence of other crimes

is admissible in certain circumstances, such as when offered to prove

motive, opportunity, intent, preparation, plan, knowledge, identity, and

absence of mistake or accident. See Pa.R.E. 404(b)(2). Additionally, such

evidence is admissible “to show a common plan, scheme, or design

embracing commission of multiple crimes, or to establish the identity of the

perpetrator, so long as proof of one crime tends to prove the others.”

Keaton, 729 A.2d at 537 (citation omitted).

     When ruling upon the admissibility of evidence under the
     common plan exception, the trial court must first examine the
     details and surrounding circumstances of each criminal incident
     to assure that the evidence reveals criminal conduct which is so
     distinctive and so nearly identical as to become the signature of
     the same perpetrator. Relevant to such a finding will be the
     habits or patterns of action or conduct undertaken by the
     perpetrator to commit crime, as well as the time, place, and
     types of victims typically chosen by the perpetrator. Given this
     initial determination, the court is bound to engage in a careful
     balancing test to assure that the common plan evidence is not
     too remote in time to be probative. If the evidence reveals that
     the details of each criminal incident are nearly identical, the fact
     that the incidents are separated by a lapse of time will not likely
     prevent the offer of the evidence unless the time lapse is
     excessive. Finally, the trial court must assure that the probative
     value of the evidence is not outweighed by its potential
     prejudicial impact of the evidence with such factors as the
     degree of similarity established between the incidents of criminal
     conduct, the Commonwealth’s need to present evidence under

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      the common plan exception, and the ability of the trial court to
      caution the jury concerning the proper use of such evidence by
      them in their deliberations.

Commonwealth v. Tyson, 119 A.3d 353, 389-39 (Pa. Super. 2015)

(quoting Commonwealth v. G.D.M., Sr., 926 A.2d 984, 987 (Pa. Super.

2007).

      Upon review of the facts surrounding the previous sexual assault

admitted under the common plan or scheme exception, it is clear that there

are striking similarities between the two sexual assaults. The assaults

occurred in neighboring counties, seven weeks apart. Both victims, who

were female, awoke at approximately 2:30 in the morning to find a masked

man standing over them as they slept. In both cases the intruder forced the

victim to undress and perform various sex acts. Both of the victims complied

with the intruder’s commands because he brandished a deadly weapon

throughout the assault. The intruder alternated between sexual acts that he

forced the victim to perform. At some point during both assaults, the

intruder ejaculated on the victim’s face and upper body, and proceeded to

use a towel or cloth to wipe the victim’s face. Finally, in both cases, before

he left, the intruder disconnected the victim’s telephone access and

instructed her to wait a specified period of time before leaving the room.

      We find that the relevant details and circumstances surrounding each

of the sexual assaults indicate criminal conduct that is sufficiently distinctive

as to constitute a common plan or scheme. While Skundrich highlights


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differences between the two cases, i.e., different masks in each case,

different deadly weapons used, and different descriptions of the intruder’s

hair color, we find that these differences are insignificant compared to the

evidence of “criminal conduct which is so distinctive and so nearly identical

as to become the signature of the same perpetrator.” Tyson, 119 A.3d at

389-39. Contrary to Skundrich’s arguments, there is no requirement that

crimes have to be carried out in an identical fashion to be considered an

exception   under    the   common      plan   or   scheme     doctrine.   See

Commonwealth v. Patterson, 399 A.2d 123, 126, n.6 (Pa. 1976) (noting

that the requirement of an “identical modus operandi is not required under

the common plan or scheme exception”). Additionally, we do not find that

the trial court abused its discretion in determining that the probative value

of Skundrich’s prior sexual assault outweighed its potential for undue

prejudice. Given the substantial similarities between the two sexual assaults,

it was reasonable to find the previous assault highly probative in determining

the identity of D.W.’s intruder and that the description of Skundrich’s prior

assault alone did not render it unduly prejudicial. See Tyson, 119 A.3d at

361. Accordingly, Skundrich’s challenge to the admission of P.J.’s testimony

is without merit.

      In his final issue, Skundrich argues that the sentence imposed by the

trial court was manifestly excessive and clearly unreasonable. Skundrich

relies upon two arguments to support this contention. First, Skundrich


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argues that the trial court abused its discretion by sentencing him outside

the guidelines to the statutory maximum on every count and running the

sentences consecutively, essentially creating a life sentence for a non-

homicide offense. See Appellant’s Brief, at 12, 22. Second, Skundrich argues

that the sentence imposed was improper because the trial court imposed a

sentence outside the guidelines without “meaningful consideration of the

statutory factors.” Appellant’s Brief, at 18. Skundrich concedes that both

arguments constitute challenges to the discretionary aspects of his sentence.

See Appellant’s Brief, at 11.

      We find that Skundrich preserved his arguments concerning the

discretionary aspects of his sentence through a post-sentence motion. Thus,

he is in technical compliance with the requirements to challenge the

discretionary aspects of his sentence. “A challenge to the discretionary

aspects of a sentence must be considered a petition for permission to

appeal,   as   the   right   to   pursue   such   a   claim   is   not   absolute.”

Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa. Super. 2004) (citation

omitted). “Two requirements must be met before we will review this

challenge on its merits.” Id. (citation omitted).

      “First, an appellant must set forth in his brief a concise statement of

the reasons relief upon for allowance of appeal with respect to the

discretionary aspects of a sentence.” Id. (citation omitted). “Second, the

appellant must show that there is a substantial question that the sentence


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imposed is not appropriate under the Sentencing Code.” Id. (citation

omitted). That is, “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.” Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005) (citation omitted).

     We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f). In the present

case, Skundrich’s appellate brief contains the requisite Rule 2119(f) concise

statement.

     First, Skundrich argues in his Rule 2119(f) statement that the trial

court abused its discretion by sentencing him outside the guidelines and to

the statutory maximum on every count and running the sentences

consecutively, essentially creating a life sentence for a non-homicide

offense. Essentially, through this argument, Skundrich is objecting to the

consecutive nature of his sentence.

     “Although Pennsylvania’s system stands for individualized sentencing,

the court is not required to impose the ‘minimum possible’ confinement.”

Commonwealth v. Moury, 992 A.2d 162, 171 (Pa. Super. 2010) (citation

omitted). The sentencing court “has the discretion to impose sentences


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consecutively or concurrently and, ordinarily, a challenge to this exercise of

discretion does not raise a substantial question.” Id. (citation omitted); see

also 42 Pa.C.S.A. § 9721(a). “The imposition of consecutive, rather than

concurrent, sentences may raise a substantial question in only the most

extreme circumstances, such as where the aggregate sentence is unduly

harsh, considering the nature of the crimes and the length of imprisonment.”

Moury, 992 A.2d at 171-72 (citation omitted).

      Skundrich argues that the length of his sentence indicates that

“extreme circumstances” are present here, and therefore the trial court’s

imposition of consecutive, rather than concurrent, sentences raises a

substantial question. Skundrich bases this contention solely upon our holding

in Commonwealth v. Coulverson, 34 A.3d 135 (Pa. Super. 2011). In

Coulverson, we found that the trial court abused its discretion by

sentencing a sex offender to the statutory maximum on each count and

imposing the individual sentences consecutively, creating a virtual life

sentence. See id. at 148. Based upon the similarities of this case to the

facts in Coulverson, Skundrich argues that the mere fact that the trial court

imposed a life sentence renders the trial court’s aggregate sentence

unreasonable. See Appellant’s Brief, at 23.

      Coulverson is plainly distinguishable. Our finding that the trial court

in Coulverson abused its discretion was based upon the trial court’s failure to

adequately explain its reasons for imposing its sentence. See Coulverson,


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34 A.3d at 143. Here, as discussed below, we find that the trial court

provided a lengthy and comprehensive explanation of Skundrich’s aggregate

sentence, and demonstrated that it fully considered the requirements of the

Sentencing Code.

       We do not find that an “extreme circumstance” is present here. The

trial court acted within its discretion in imposing consecutive sentences.

Although the aggregate sentence is lengthy, it is nonetheless a legal

sentence. Given the egregious nature of the sexual abuse in this case, and

the resultant emotional harm that Skundrich inflicted on D.W., we agree

with the trial court’s conclusion that a sentence of 65 ½ years to 131 years

imprisonment is reasonable under the circumstances and not excessive.

Therefore, Skundrich’s first challenge to the discretionary aspects of his

sentence is without merit; it does not even raise a substantial question for

our review.

       Finally, Skundrich argues in his Rule 2119(f) statement that the trial

court abused its discretion by imposing a sentence outside of the sentencing

guidelines without a meaningful consideration of the statutory factors.7

Specifically, Skundrich alleges that the trial court’s sentence was improper

because     his   sentence    only    reflected    the   seriousness   of   the   crime,
____________________________________________


7
  We note that while Skundrich’s sentences for burglary and terroristic
threats fall outside of the statutory guidelines, his sentences for involuntary
deviate sexual intercourse, indecent assault, false imprisonment or simple
assault are guideline range sentences.



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Skundrich’s criminal history, and the impact on the victim. A claim that a

sentencing court imposed a sentence outside of the guidelines without

specifying sufficient reasons presents a substantial question for review. See

Commonwealth v. Holiday, 954 A.2d 6, 10 (Pa. Super. 2008). Therefore,

we will review Skundrich’s arguments on the merits.

      In imposing a sentence, the sentencing court must consider relevant

statutory factors, including “the protection of the public, gravity of an

offense in relation to impact on victim and community, and rehabilitative

needs of the defendant.” 42 Pa.C.S.A. § 9721(b).       A sentencing court has

broad discretion in fashioning its sentence. See Commonwealth v. Walls,

926 A.2d 957, 962-63 (Pa. 2007). A sentencing court is required to consider

the sentence ranges set forth in the sentencing guidelines, but it is not

bound by them.     See Commonwealth v. Yuhasz, 923 A.2d 1111, 1118

(Pa. 2007). Moreover, a sentencing court may depart from the guidelines,

“if necessary, to fashion a sentence which takes into account the protection

of the public, the rehabilitative needs of the defendant, and the gravity of

the particular offense as it related to the impact on the life of the victim and

the community.” Commonwealth v. Eby, 784 A.2d 204, 206 (Pa. Super.

2001).

      Initially we note that the trial court reviewed the pre-sentence

investigation report. See N.T., Sentencing, 4/17/14 at 11. Where the trial




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court had the benefit of reviewing a pre-sentence investigation report, we

must

       presume that the sentencing judge was aware of relevant
       information regarding the defendant’s character and weighed
       those considerations along with mitigating statutory factors. A
       pre-sentence report constitutes the record and speaks for itself.
       In order to dispel any lingering doubt as to our intention of
       engaging in an effort of legal publication, we state clearly that
       sentencers are under no compulsion to employ checklists or any
       extended or systematic definitions of their punishment
       procedure. Having been fully informed by the pre-sentence
       report, the sentencing court’s discretion should not be disturbed.
       This is particularly true, we repeat, in those circumstances where
       it can be demonstrated that the judge had any degree of
       awareness of the sentencing considerations, and there we will
       presume also that the weighing process took place in a
       meaningful fashion. It would be foolish, indeed, to take the
       position that if a court is in possession of the facts, it will fail to
       apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citing

Commonwealth v. Devers, 546 A.2d 12, 18 (Pa. 1988)). As the trial court

in this case had the benefit of a pre-sentence report, we must presume that

it considered all relevant sentencing factors and did not impose an

unreasonable sentence based solely on a limited number of factors.

       Further, after review of the trial court’s statements at sentencing, we

are satisfied that the trial court adequately stated its reasons for imposing

the sentence as follows.

             We have to determine how to sentence you. Do we
       sentence you to [a] single sentence for each count, or do we
       sentence you on each count, to run them concurrent or
       consecutive; and we make that determination by looking at all of
       the factors that are involved in this particular case, the facts in


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     this brutal assault, your despicable conduct, and the damage you
     have done to any innocent victim.

           We look at the Guidelines; and, fortunately, the Guidelines
     are advisory. They’re not mandatory. I don’t have to stick to
     those guidelines. I can deviate from those Guidelines. There is
     no question that this is a criminal that requires total
     confinement, since you are a risk to society should you be free.

           That, also, demonstrated that any sentence that I would
     give you other than the one I am now would defalcate [sic] the
     nature of the offenses that have been committed in this
     particular violent act.

           I’ve reviewed the Pre-sentence Report. I’ve reviewed the
     Sexual Offender’s Report. I’ve reviewed the transcript; and I
     remember this case vividly for the terror that you inflicted on
     that particular victim; and in going further through the Pre-
     Sentence Report, I note that your criminal activity started in
     1987.
                                  .....

            You’re also, awaiting trial in Broward County Florida, 2012,
     for kidnapping and sexual battery. Not a very good history, is it?
     All of these factors make it clear that the sentence that I’m going
     to impose upon you is correct, because you are needed [sic] to
     be removed from society, and you are incapable of being
     rehabilitated.

             You have had the opportunity to be supervised by County
     facilities and State facilities; and none of that has done anything
     to curb your criminal behavior.

           In light of all of these factors, I’m going to advise you that
     your days of torturing women have now come to an end, as your
     decades of incarceration are about to begin.

N.T., Sentencing, 4/17/14 at 10-14.

     While it is clear that the trial court noted the seriousness of the crime,

Skundrich’s criminal history, and the impact on the victim in fashioning a

sentence, this is far from definitive proof that the court relied exclusively

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upon such findings in imposing sentence. In fact, we note that the court

remarked that it considered Skundrich’s rehabilitative needs and the

protection of the public in fashioning a sentence. Similarily, it is clear that

the court did not rely upon one reason for the departure from the sentencing

guidelines, but rather relied upon the seriousness of the crime, Skundrich’s

low probability of rehabilitation, Skundrich’s criminal history, and the impact

upon the victim and the community. These factors are permissible reasons

for deviating from the guideline ranges. See Eby, 784 A.2d at 206.

Therefore, we find that Skundrich’s final challenge to the discretionary

aspects of his sentence merits no relief.

      Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/9/2016




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