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HomeMy WebLinkAbout01-2503 CRIMINALCOMMONWEALTH IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA HARRY M. POUST 01-2503 CRIMINAL TERM IN RE: OPINION PURSUANT TO PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925 Bayley, J., June 12, 2002:-- On March 4, 2002, defendant, Harry M. Poust, was found guilty by a jury of statutory sexual assault. The Crimes Code at 18 Pa.C.S. Section 3122.1, provides: Except as provided in section 3121 (relating to rape), a person commits a felony of the second degree when that person engages in sexual intercourse with a complainant under the age of 16 years and that person is four or more years older than the complainant and the complainant and the person are not married to each other. After receipt of a pre-sentence investigation report, defendant was sentenced on April 16, 2002, to: [p]ay the costs of prosecution, a $500.00 fine, and undergo imprisonment in the Cumberland County Prison for time served (seven days) to 12 months. You are paroled immediately on supervision on condition that you be and remain on good behavior and comply with all written instructions of your probation officer, have no contact, direct or indirect, with Rebecca Hartman, and forthwith submit to DNA testing as required by Act 14. The Commonwealth filed a motion to modify the sentence, which was denied. It then filed an appeal to the Superior Court of Pennsylvania. The Commonwealth complains that: 01-2503 CRIMINAL TERM The two and a half month departure from the sentencing guidelines while within this courts discretion was unreasonable. The evidence in a light most favorable to the Commonwealth was as follows. The date of the offense was July 29, 2001. The complainant, Rebecca Hartman, born January 21, 1986, was 15 years old on July 29, 2001. Defendant was born on February 27, 1978. On July 29, 2001, he was 22, almost eight years older than the complainant. The complainant has known defendant for about ten years. During the summer of July, 2001, she "hung-out" with him. She thought he was 23. She did not tell him how old she was, but she knew that her mother had told him her age. The complainant testified that she was seeing defendant almost everyday, as she had a "big crush on him." On July 28, 2001, she made arrangements to go to defendant's apartment after work. When there, she told him how much she liked him. He told her that he would "like to get with her sometime." They "made-out," and she went home at about 11:00 p.m. The next day, she again made arrangements to go to defendant's apartment and "hang-out." She told her mother where she was going. She also told her that defendant's girlfriend was going to be at his apartment. That was a lie. The complainant testified that when she got to the apartment, she decided to have sex with him. She testified that defendant then told her, "many times, that if she did not want to do it, they did not have to." She told him that, "she really wanted to do it," and she got out one of two condoms she brought with her. She and defendant then had sexual intercourse. She told defendant that "she was so happy he took her virginity." She -2- 01-2503 CRIMINAL TERM testified that he said that "they could do it again sometime, and she agreed." She told defendant that it had been "really great." The complainant later told a number of people that she had sexual intercourse with defendant. The word got back to her mother who confronted her, and she admitted that she had had sexual intercourse with defendant. Her mother contacted the police, after which these charges were filed. Statutory Sexual Assault, a felony in the second degree, is punishable by a maximum penalty of seven years imprisonment. 18 Pa.C.S. § 1103(3). Under Pennsylvania sentencing guidelines, defendant's offense gravity score was "7," and his prior record score was "1 .,,1 The minimum sentencing ranges were: Mitigated range: 3-9. Standard range: 9-16. Aggravated range: 16-22. The minimum sentence of seven days imprisonment was outside of the sentencing guidelines. At sentencing, the court noted, (1) that defendant was 22 at the time of the offense, (2) if the complainant had been five months older there would have been no crime committed, and (3) the complainant initiated the sexual contact with defendant, including bringing condoms to defendant's apartment where the sexual intercourse occurred. The pre-sentence investigation revealed that defendant held a good full-time job as a forklift operator since February 21, 2001. The complainant 1 Defendant was convicted in South Carolina in 1997 of possession of marijuana and unlawfully carrying a fishing knife, and in Pennsylvania in 1999 of theft and criminal mischief. -3- 01-2503 CRIMINAL TERM stated that the defendant needs to see that what he did was wrong, and that "he made me feel like I was a slut, and I am not." She stated that her concentration level has decreased in that she has become a less trusting person. A discretionary sentence outside of the sentencing guidelines must be reasonable. 42 Pa.C.S. § 9781(c)(3). Under Section 9781(d) of the Judicial Code, the factors for determining whether a sentence is reasonable include: (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 pre-sentence investigation. (3) The findings upon which the sentence was based. (4) The guidelines promulgated by the commission. See Commonwealth v. Mattis, 352 Pa. Super. 144 (1986). Here, while defendant's criminal conduct was subject to sanction, the complainant's age, his young age, the circumstances of his involvement with complainant who was his Iongtime friend, and his stable employment, warranted our discretion of imposing a minimum sentence of seven days, which was below the lowest minimum range of three months, coupled with a period of supervised probation for the remaining year. (Date) Edgar B. Bayley, J. -4- 01-2503 CRIMINAL TERM Jaime Keating, Esquire For the Commonwealth Linda Hollinger, Esquire For Defendant :sss -5-