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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF PENNSYLVANIA Appellee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

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- 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

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- CR -0000549-2012
BEFORE: OTT, STABILE, and MUSMANNO, JJ. MEMORANDUM BY STABILE, J.: FILED AUGUST 01, 2014 Appellant, Russell Earl Lattimer, appeals from the Apr il 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, intimida tion of witnesses,J-S25019- 14

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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, ag gravated indecent assault, three counts of indecent assault, and sexual assa ult. 2 The Commonwealth charged Appellant with committing th e aforementioned sexual offenses against five female vict ims, including his biological daughter and four daughters of his paramou r. The rape and aggravated indecent assault convictions resulted from App ellant’s victimization of S.T. and T.O., two daughters of Appe ll ant’s paramour. S.T., 26 years old at the time of trial, testified th at she was twelve years old the first time Appellant had sex with her. N.T. Trial, 11/15/12 at 25, 37- 40. She began living in Appellant’s home at age 11 and moved out when she was 20 or 21. Id. at 27, 30. In describing her first sexual encounter with Appellant, S.T. said she went into Appe llant’s bedroom to ask 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 hi m, 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 sh e would like it. Id.

a t 35. Appellant proceeded to take S.T.’s clothes off a nd “have sex” with

____________________________________________ 1 18 Pa.C.S.A. §§ 3121(2), 3125, 4952, 3122.1, and 31 26, respectively.

2 Sexual assault is codified at 18 Pa.C.S.A. § 3124.1.J-S25019- 14

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her. Id. at 36. He stopped “when he was done.” 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 encounter, Appellant would treat her “like crap,” refusi ng to communicate 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. at 44. After S.T.’s high school graduation, Appellant m ade payments on S.T.’s car for her as long as she 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 Appellant’s home from age 11 to 19. 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 va gina. Id. at 107-08. T.O. did not report Appellant’s behavior “[b]ecause he told me that if 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 myJ-S25019- 14

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mom wouldn’t believe me.” Id. at 109. She testified that Appellant had sexual intercourse with her for the first time on her 1 3 th 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 sh e was afraid her family would break up if she told anyo ne. Id. at 119. A jury found Appellant guilty of the aforementioned offenses at the conclusion of the November 15, 2012 trial. Prior to se ntencing, the Sexual Offenders Assessment Board concluded Appellant was a sexuall y violent predator. The trial court imposed an aggregate senten ce 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 wh ich he challenged the weight of the evidence and the discretionary aspects of h is 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 an d 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?J-S25019- 14

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IV. Whether the sentence is unduly harsh and excessive? Appellant’s Brief at 11. Appellant’s first two arguments challenge the sufficiency of the evidence. We will address the first these arguments toge ther, pursuant to the well-settled standard of review:

The standard of review for a challenge to the sufficie ncy 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 tri er of fact to find that each element of the crimes charged is establ ished beyond a reasonable doubt. The Commonwealth may sust ain 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 in nocence. Any doubt raised as to the accused’s guilt is to be resol ved by the fact-finder. As an appellate court, we do not asse ss credibility nor do we assign weight to any of the test imony of record. Therefore, we will not disturb the verdict u nless 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). Appellant’s arguments arise under 18 Pa.C.S.A. § 3121(a)(2), which defines rape as follows: § 3121. Rape.J-S25019- 14

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-- A person commits a felony of the first degree when the person engages in sexual intercour se with a complainant: [...] (2) By threat of forcible compulsion that would preve nt resistance by a person of reasonable resolutio n. 18 Pa.C.S.A. § 3121(a)(2). Sexual intercourse includes, “[i]n additio n to its ordinary meaning, [. . .] intercourse per os or per an us, with some penetration however slight; emission is not required. 18 Pa.C.S.A. § 3101. Forcible compulsion includes: “Compulsion by use of physical, intellectual, moral, emotional or psychological force, either express o r implied.” Id. 3

____________________________________________ 3 The Pennsylvania Crimes Code defines aggravated indecen t assault as follows: (a) Offenses defined.

-- Except as provided in sections 3121 (relating to rape), 3122.1 (relating to statuto ry sexual assault), 3123 (relating to involuntary deviate sexua l in tercourse) and 3124.1 (relating to sexual assault), a p erson who engages in penetration, however slight, of the ge nitals or anus of a complainant with a part of the person’s body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if: (1) the person does so without the complainant’s consent; (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)J-S25019- 14

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Appellant first argues the Commonwealth failed to pr oduce sufficient evidence of penetration to support the rape and aggra vated assault convictions. As noted above, S.T. and T.O. both testifi ed that Appellant repeatedly had sexual intercourse with them several tim es per week throughout their teenage years. Appellant argues th at testimony indicating he and the victims “had sex” is ambiguous. Appellant’s B rief at 18. This argument strains credulity, in that S.T. and T.O. we re in their mid-twenties at the time of trial and clearly understood their test imony. In addition, both victims testified that Appellant would withdraw and e jaculate outside of them to avoid pregnancy. The record contains overwhelming evidence that Appellant engaged in sexual intercourse, as that term i s defined in § 3101, with both S.T. and T.O. Appellant also asserts his conviction for aggravated assau lt of a victim less than thirteen years of age with respect to T.O. cann ot stand because T.O. testified that she first had intercourse with App ellant 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) a nd the complainant is less than 13 years of age. 18 Pa.C.S.A. § 3125.J-S25019- 14

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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 suff icient evidence that his intercourse with S.T. and T.O. took place unde r 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 Regardless of Appellant’s waiver of this issue, we explai ned above that prior to T.O.’s thirteenth birthday, Appellant used h is fingers to touch her vagina. This Court has held similar conduct sufficient to establish penetration:

[T]he definition of ‘sexual intercourse’ found at [18 Pa.C.S.A. § 3101] does not specify ‘penetration of the vagina,’ but instead specifies ‘some penetration however slight’ [...] entrance in the labia is sufficient[.] We therefore w ill not hold that a finding of penetration of the vagina is necessar y for the jury to find ‘penetration however slight’ under Secti on 3101, [...] since penetration of the vagina, in essence the farther reaches of the female genitalia, is not necessary to find penetra tion under Section 3101[.]” 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) (victim’s testimony that the defendant licked her vag ina sufficient to establish penetration), overruled in part on other grou nds , Commonwealth v. Goggins , 748 A.2d 721 (Pa. Super. 2000) ( en banc ), appeal denied , 759 A.2d 120 (Pa. 2000). Appellant’s first argument lacks merit. We further observe that aggravated indecent assault occu rs 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).J-S25019- 14

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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 evid ence to demonstrate beyond a reasonable doubt that an accu sed engaged in sexual intercourse by forcible compulsion (wh ich we have defined to include not only physical force or vi olence, but also moral, psychological or intellectual force used to com pel a person to engage in sexual intercourse against that per son’s will,[]), or by the threat of such forcible compulsion t hat would prevent resistance by a person of reasonable resolution i s, of course, a determination that will be made in each case based upon the totality of the circumstances that have been pr esented 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 condi tions of the victim and the accused, the atmosphere and phys ical setting in which the incident was alleged to have take n place, the extent to which the accused may have been in a posi tion of authority, domination or custodial control over the vi ctim, and whether the victim was under duress. This list of possibl e 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 thr eat of forcible compulsion that would prevent resistance by a p erson of reasonable resolution, inherent in the situation in wh ich an adult who is with a child who is younger, smaller, less psychol ogically and emotionally mature, and less sophisticated than the adult, instructs the child to submit to the performance of sexua l acts.J-S25019- 14

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This is especially so where the child knows and trusts the a dult. In such cases, forcible compulsion or the threat of forcibl e compulsion derives from the respective capacities of the child and the adult sufficient to induce the child to submit to the wishes of the adult (‘prevent resistance’), without th e use of physical force or violence or the explicit threat of p hysical force or violence. Id. at 1227. Thus, the 20-year-old perpetrator who kne w the 8-year-old victim for three years and lured her into an abandone d building committed rape by threat of forcible compulsion. Id. The Supreme Court therefore reversed this Court’s conclusion to the contrary: “ the illicit commands of this twenty year old [man] in an isolated and abandon ed room were . . . an imperative which gave the [eight year old] child vict im no alternative but submission to appellant’s corrupt scheme. This eight year old child was physically and emotionally helpless to resist the command s of her twenty year old neighbor[.]” Id. (quoting Commonwealth v. Rhodes , 481 A.2d 610, 614 (Pa. Super. 1984) (Cavanaugh, J. dissenting) , rev’d , 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 insufficie nt 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 w ith her after she awoke. Id. The victim pushed the defendant away after the interco urse

was over. Id. In reversing the rape conviction, this Court reasoned th at aJ-S25019- 14

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parent-child relationship, in and of itself, is not suff icient 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 contributi ng to the finding of forcible compulsion in that case, such as directing the vi ctim to a remote location where she could not get help. Id. at 429. Indeed, in many cases where a familial relationship exi sts 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 for cible compulsion where the defendant repeatedly victimized his thirteen-yea r-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 th e course of three months, showed her sexually explicit mag azines to encourage her to imitate what she saw), appeal denied , 588 A.2d 914 (Pa. 1991). Instantly, the parties do not dispute that Appellant se rved as a father figure to both S.T. and T.O. In addition to this re lationship, the record contains evidence that Appellant would withhold favor able treatment fromJ-S25019- 14

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S.T. if she did not submit to sexual intercourse. Likew ise, Appellant told T.O. that her family would break up if she divulged Appellant’s b ehavior to anyone. Appellant continued this course of conduct from the victims’ pre

teen years until they reached the age of majority. I n 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, i ndicating that Appellant engaged in behavior calculated to overcome the victims’ resistance. See Commonwealth v. Poindexter , 539 A.2d 1341, 1344-45 (Pa. Super. 1988) (finding sufficient evidence of forcible compulsio n where the sexual assaults commenced when the victims were young and the p erpetrator used “subtle and psychological” force to gain submission, includin g threats that 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 pre cipitated by any physical or psychological force. Appellant’s second argu ment lacks merit. Appellant’s third argument challenges the weight of t he evidence in 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 reviewi ng court on the same facts might have arrived at a different co nclusion than the factfinder. Rather, a new trial is warrante d only when the jury’s verdict is ‘so contrary to the evidence that it shocks one’s sense of justice and the award of a new trial is im perative so that righ t may be given another opportunity to prevail.’ Where, as here, the judge who presided at trial ruled on theJ-S25019- 14

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weight claim below, an appellate court’s role is not t o consider the underlying question of whether the verdict is agai nst the weight of the evidence. Rather, appellate review is limited to whether the trial court palpably abused its discretion i n 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. 607(A)(3). We therefore proceed to assess the trial c ourt’s discretion in denying Appellant’s motion for a new trial. Appellant argues the victims were not able to give da tes, days of the week, or times of day that many of the sexual assaults occurred. Appellant’s Brief at 28. Appellant also argues his biological dau ghter T.L.’s trial testimony was inconsistent with a prior statement she made to a social worker. Id. Appellant also argues the jury failed to give sufficie nt weight to the victims’ failure to report the assaults in timely fashion and that some of them allowed the sexual relationship with Appellant t o continue into adulthood. Id. None of these assertions warrants a new trial. Given t hat 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 victims’ credibility in light of the level of detail in their testimony. Similarly, the jury could assess the credibility of T.L. ’s trial testimony in light of her prior inconsistent statement. Finally, the ong oing sexual conductJ-S25019- 14

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between the victims and Appellant and the delay in the victims’ decision to report Appellant’s conduct was relevant to the victim’s cr edibility. A reviewing court will not disturb the jury’s credibilit y findings. Commonwealth v. Blakeney , 946 A.2d 645, 653 (Pa. 2006) (“ Assessi ng the credibility of witnesses at trial is within the sole discretion of the factfinder.”), ce rt. denied , 555 U.S. 1177 (2009). The trial court acted well within its discretion in denying Appellant’s motion for a new trial. Appellant’s final assertion of error is that the trial court abused its discretion in imposing a sentence of 35 years and 7 month s 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 assert ing that a substantial question exists. The 2119(f) statement notes that the t rial court arrived at its sentence by imposing sentence at the top of the aggra vated range for each offense and running the sentences consecutively. App ellant argues the aggravated range sentences were inappropriate because Ap pellant’s offenses 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 Appellant’s sentencing challenges.J-S25019- 14

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We review the trial court’s sentence for ab use of discretion. Commonwealth v. Walls , 926 A.2d 957 (Pa. 2007). The sentencing court must “impose a sentence that is ‘consistent with the protec tion of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the de fendant.’” Id. at 962 (quoting 42 Pa.C.S.A. § 9721(b)). Where, as here, the trial court’s sentence falls within the sentencing guidelines, the revi ewing court may reverse only if the sentencing court applied the guide lines improperly or if the sentence is “clearly unreasonable.” 42 Pa.C.S.A. § 9781(c)(1), (2). In conducting our review of the record, we must consi der: (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 year s. 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 t he 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 theJ-S25019- 14

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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 discretio n in imposing the sentences consecutively. He cites Commonwealth v. Dodge , 957 A.2d 1198 (Pa. Super. 2008) (“ 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 521⁄2 to 111 years of incarceration for numerous thefts of personal property o f 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. Ap pellant has failed to offer a meritorious argument that the trial court ab used its discretion in imposing consecutive sentences. Finally, Appellant asserts the trial court improperly disregarded his rehabilitative needs. A defendant’s rehabili tative needs are relevant under the Sentencing Code, but they must be weighed alongsid e 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 ofJ-S25019- 14

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Ap pellant’s offenses and their impact on the victims. Mo reover, the trial court was aware the conduct continued for years until App ellant 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. I’m gonna refer you to paragraph four of the letter – or excuse me, page four. And there’s a paragraph tha t begins: 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 w here [name deleted] lives and you wanted me. But don’t say anything if you don’t have to. And don’t say anything about this on the pho ne calls [sic] are monitored. Id. at 51 (emphasis added). Thus, when Appellant was faci ng criminal charges he asked S.T. to say nothing or maintain that sh e was a willing
victim. In light of the foregoing, the trial court acted with in its permissible discretion in weighing the § 9721(b) factors and discount ing the prospect of Appellant’s prospects of rehabilitation. Appellant’s ch allenge to the trial court’s exercise of its sentencing discretion does not merit relief. Since we have reviewed each of Appellant’s arguments an d found none of them meritorious, we affirm the judgment of sent ence. Judgment of sentence affirmed.J-S25019- 14

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Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 8/1/2014