J-A06039-19

                                2019 PA Super 105

 COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                            :        PENNSYLVANIA
                                            :
              v.                            :
                                            :
                                            :
 RICHARD MICHAEL ELDRED                     :
                                            :
                    Appellant               :   No. 799 MDA 2018

           Appeal from the Judgment of Sentence March 12, 2018
    In the Court of Common Pleas of Clinton County Criminal Division at
                      No(s): CP-18-CR-0000108-2017


BEFORE:    OTT, J., NICHOLS, J., and PELLEGRINI*, J.

OPINION BY PELLEGRINI, J.:                            FILED APRIL 02, 2019

      Richard Michael Eldred (Eldred) appeals from an order of the Court of

Common Pleas of Clinton County (trial court) denying his motion to modify his

sentence. After he pleaded guilty to several sex crimes against a minor victim,

Eldred received an aggregate term of four to ten years, which fell within the

applicable guidelines. He moved both to modify the sentence and to subject

the victim to examination at the hearing on that motion.      The trial court’s

denial of that relief is now the subject of our review. We affirm.

                                       I.

      When Eldred and the minor victim began their romantic relationship, he

was 23 years old and she was 14.        After a long period of physically and

emotionally abusing the victim, Eldred pleaded guilty to Aggravated Indecent

Assault; Photographing, Filming, Depicting on a Computer a Sex Act Involving

a Minor; and Criminal Attempt-Statutory Sexual Assault.        When imposing

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* Retired Senior Judge assigned to the Superior Court.
J-A06039-19


sentence, the trial court considered the victim’s impact statement that was

included in the presentence investigation report.

       Eldred timely filed a motion to modify his sentence asserting that the

trial court should not have found the victim’s impact statement to be credible.

In her victim impact statement, she stated that she had been so emotionally

affected by Eldred’s crimes that she no longer had the ability to form romantic

attachments.1 Eldred claimed that after he was sentenced, he discovered that

the victim was pregnant with her boyfriend’s child when she made her

statement. He asserted that this pregnancy was proof that the victim had

exaggerated her emotional distress and that his sentence should be reduced

accordingly. He issued a subpoena to the victim so that he could discredit her

impact statement at the hearing on his motion.

       The trial court denied the motion and quashed the subpoena.       After

Eldred filed a notice of appeal, the trial court ordered him to file a Concise

Statement of the Matters Complained Of and to serve it on the trial judge and

the official court reporter. The order was entered on May 16, 2018, and it

specified that Eldred was required to file and serve the Statement within 21

days. See Pa.R.A.P. 1925(b)(1). The order included a warning that failure to

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1 Five months before the sentence, the victim stated that the impact of the
offenses against here were: “I no longer like men”; “I push everyone away”;
“I can’t date”; “I can’t love”; and “I can’t try.” Victim Impact Statement,
11/14/2017, at 3.




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comply would result in a waiver of all appellate issues.2            Although the

Statement was filed, it was not timely served on the trial judge.

        The trial court filed an opinion pursuant to Rule 1925(a) noting that

Eldred’s claims were both frivolous and waived due to his non-compliance with

the service requirements of Rule 1925(b)(1). In his brief, Eldred asserts that

the trial court erred in precluding him from calling the victim to testify at the

modification hearing and in declining to modify his sentence.              Brief of

Appellant, at 2.

                                               II.

        Non-compliance with Rule 1925(b)(1), including lack of service, shall

result in automatic waiver of all appellate issues. See Commonwealth v.

Schofield, 888 A.2d 771, 774 (Pa. 2005) (“[F]ailure to comply with the


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2   The order reads in pertinent part as follows:

        AND NOW, THIS 16TH DAY OF MAY, 2018, pursuant to Rule
        1925(b) . . . Appellant is directed to file of record in the Lower
        Court and to serve on the Trial Judge and the Official Court
        Reporter, pursuant to Paragraph (b)(1) of Rule 1925, the
        following, no later than twenty-one (21) days after the entry of
        this Order: (a) A Concise Statement of the Matters Complained
        Of with respect to the appeal to the Super Court filed in this
        matter; and (b) A Statement identifying any transcript which may
        be necessary for Appellate purposes.

        Any issue not properly included in the Statement timely filed and
        served pursuant to Subdivision (b) shall be deemed waived.

                                                     BY THE COURT:
                                                     /s/ [Trial Court Judge]


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minimal requirements of Pa.R.A.P. 1925(b)(3) will result in automatic waiver

of the issues raised.”). Rule 1925(c) permits us to remand an appeal in a

criminal case if counsel failed to satisfy the filing requirements of Rule

1925(b)(1). Here, however, remand would be inappropriate because there is

no procedural mechanism to correct the defective service of a concise

statement. See Pa.R.A.P. 1925(c) (allowing remand to correct a filing defect

only). The lack of service of the Statement is fatal to this appeal.

                                        III.

         Even if Eldred’s claims were preserved for review, their lack of merit

would preclude relief. The crux of Eldred’s argument is that the trial court

erred in precluding the minor victim from taking the stand at his post-sentence

modification hearing.      Eldred had planned to discredit the victim’s impact

statement by establishing that she made it while pregnant with her boyfriend’s

child.    According to Eldred, the victim’s relationship and pregnancy were

inconsistent with the earlier claim in the impact statement that she was no

longer able to form romantic bonds with men.

         Although the law is not entirely clear as to the precise scope of rights a

defendant has to rebut an impact statement, there is no constitutional or

evidentiary basis for relief under the circumstances of this case. The purpose

of a victim impact statement is to allow victims to inform the court, prior to

sentencing, how a crime impacted their lives. To that end, a victim may

         offer prior comment on the sentencing of a defendant or the
         disposition of a delinquent child, to include the submission of a

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        written and oral victim impact statement detailing the physical,
        psychological and economic effects of the crime on the victim and
        the victim’s family. The written statement shall be included in any
        predisposition or presentence report submitted to the court.
        Victim-impact statements shall be considered by a court when
        determining the disposition of a juvenile or sentence of an adult.

Commonwealth v. King, 182 A.3d 449, 455 (Pa. 2018) (quoting 18 P.S. §

11.201(5)) (emphasis omitted). Eldred has conceded that there is no rule,

case or statute that specifically contemplates that by submitting an impact

statement, a victim is subject to questioning at a sentencing hearing.

        This is not to say that a defendant has no right to dispute evidence at

sentencing.     It is well established that due process applies even if “the

sentencing court is neither bound by the same rules of evidence nor criminal

procedure as it is in a criminal trial.” King, 182 A.3d at 455; Commonwealth

v. Downing, 990 A.2d 788, 793 (Pa. Super. 2010).               Since an impact

statement “shall” be considered by a court, a defendant has a due process

right to challenge such evidence or obtain relief when its admission was

fundamentally unfair. See Payne v. Tennessee, 501 U.S. 808, 825 (1991)

(“In the event that [victim impact] evidence is introduced that is so unduly

prejudicial that it renders the trial fundamentally unfair, the Due Process

Clause of the Fourteenth Amendment provides a mechanism for relief.”).3

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3   The standard of review for procedural due process claims is as follows:

        A due process inquiry, in its most general form, entails an
        assessment as to whether the challenged proceeding or conduct



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       “During a sentencing proceeding, due process allows a court to consider

any information, even if it would not be admissible under the evidentiary rules,

‘provided that the evidence has sufficient indicia of reliability, the court makes

explicit findings of fact as to credibility, and the defendant has an

opportunity to rebut the evidence.’” United States v. DeAngelis, 243

F. App’x 471, 474 (11th Cir. 2007) (quoting United States v. Baker, 432

F.3d 1189, 1253 (11th Cir. 2005)) (emphasis added).           In this state, due

process does not include the ability to cross-examine adverse witnesses post-

trial because the Sixth Amendment to the United States Constitution “does

not apply in sentencing hearings.” Commonwealth v. Wantz, 84 A.3d 324,

337 (Pa. Super. 2014) (quoting United States v. Stone, 432 F.3d 651, 654

(6th Cir. 2005)).4

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       offends some principle of justice so rooted in the traditions and
       conscience of our people as to be ranked as fundamental and that
       define[s] the community’s sense of fair play and decency. While
       not capable of an exact definition, basic elements of procedural
       due process are adequate notice, the opportunity to be heard, and
       the chance to defend oneself before a fair and impartial tribunal
       having jurisdiction over the case.

Commonwealth v. Wright, 961 A.2d 119, 132 (Pa. 2008) (brackets in
original; internal citations and quotation marks omitted).

4  Other jurisdictions have held in similar situations that a defendant has no
constitutional right to cross-examine the author of a victim impact statement.
See Crandall v. State, 281 P.3d 1165 (Nev. 2009) (due process requires
that author of victim impact statement must be subject to cross-examination
if the statement refers to defendant’s prior bad acts rather than just the facts
of the charged crimes and their impact on the victim); State v. Guerrero,



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       Based on the above law, the question before us is whether the trial court

afforded Eldred a chance to rebut the victim’s impact statement and whether

the statement’s admission was fundamentally unfair.

       Here, the trial court precluded the victim from testifying as if on cross-

examination and prohibited any evidence regarding the victim’s sexual

conduct. However, Eldred was otherwise free to present evidence that the

victim exaggerated her impact statement. In fact, the court allowed Eldred

to elicit the testimony of his mother, who testified to Facebook posts by the

victim regarding the due date of her pregnancy. Aside from claiming that the

victim had a boyfriend and became pregnant at the time of her statement,

Eldred made no further claims or proffers of evidence in his effort to

undermine the victim’s credibility.

       It is significant that the sentencing court agreed to the Commonwealth’s

stipulation that the victim was pregnant on the date of the sentence

modification hearing. The remaining fact which Eldred sought to establish at



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940 P.2d 419 (Idaho Ct. App. 1997) (explaining that since the Sixth
Amendment does not apply to sentencing hearings, it did not violate the
defendant’s right to confrontation when impact statements were entered
without the author being subject to cross examination); People v.
Birmingham, 217 Cal. App. 3d 180, 185 (Cal. Ct. App. 1990) (same);
People v. Wallace, 524 N.E.2d 677 (Ill. App. Ct. 1988) (same); but see
State v. Asbury, 701 P.2d 1189, 1194-95 (Ariz. Ct. App. 1984) (defendants
have a due process right to cross-examine author of victim impact statement
at an aggravation and mitigation hearing in order to bring out mitigating
circumstances).


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J-A06039-19


the modification hearing was that the victim was pregnant with her boyfriend’s

child at the time she wrote her impact statement. The trial court correctly

reasoned that, even if true, those additional facts would have been irrelevant

for the purposes of sentencing:

       All of the things that she advised the Court of how her life was
       affected by this crime, by this sex crime against a minor, does not
       necessarily mean that any of that was untrue because she’s now
       pregnant. One doesn’t equal the other.

Trial Transcript, 04/16/18, at 7.

       In light of the leeway Eldred received and the dubious import of the

evidence he sought to elicit, Eldred had sufficient opportunity to rebut the

victim’s impact statement, meaning that his due process rights were not

violated.5 See Commonwealth v. Skibicki, 586 A.2d 446 (Pa. Super. 1991)

(finding no merit to claim court erred in refusing to allow victim to be cross-

examined, especially “when the defendant is not ultimately precluded from

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5 As to the issue of whether Eldred received an excessive prison term, we
agree with the Commonwealth that Eldred’s brief does not contain a concise
statement which raises a substantial question as to this discretionary aspect
of the sentence as is mandated by Pennsylvania Rule of Appellate Procedure
Rule 2119(f). To the extent Eldred raises this ground as an independent basis
for relief, we would be precluded from considering the merits of that issue
under both that rule and, as discussed above, Rule 1925(b)(1). See
Commonwealth v. Tielsch, 934 A.2d 81, 93 (Pa. Super. 2007) (holding that
vague, undeveloped claims are not preserved on appeal); Commonwealth
v. Kiesel, 854 A.2d 530, 533 (Pa. Super. 2004) (“Because the Appellant failed
to comply with Pa.R.A.P. 2119(f) and the Commonwealth objected to the
omission, this Court may not review the merits of the claim, and we deny
allowance of appeal.”).




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presenting the relevant testimony at some other point during the course of

the trial.”). The trial court afforded Eldred a chance to introduce evidence,

call witnesses and present argument with respect to his sentencing and the

victim impact statement. The prohibition on having the minor victim testify

did not render the proceedings fundamentally unfair.              Eldred had no

constitutional confrontation right and the additional evidence he sought to

elicit through the victim’s testimony would have been immaterial.6 Even if

Eldred had preserved his present claim for review (which he did not), the

denial of his motion to modify and the judgment of sentence would still be

upheld.

       Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 04/02/2019


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6  Eldred does not clarify whether he seeks relief on evidentiary or
constitutional grounds, but even if preserved, his claim(s) would be denied on
the merits under either respective standard of review. See Wright, 961 A.2d
at 132 (outlining standard of review as to due process claims); Whyte v.
Robinson, 617 A.2d 380, 383 (Pa. Super. 1992) (“Questions regarding the
admissibility or exclusion of evidence are . . . subject to the abuse of discretion
standard of review.”).

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