Com. v. D.D. ( 2017 )

J-S52006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
D.D., :
:
Appellant : No. 2032 MDA 2016
Appeal from the Judgments of Sentence December 9, 2016
in the Court of Common Pleas of York County,
Criminal Division, No(s): CP-67-CR-0000085-2015;
CP-67-CR-0000086-2015
BEFORE: GANTMAN, P.J., LAZARUS and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED OCTOBER 18, 2017
D.D. (hereinafter “Appellant”) appeals from the judgments of sentence
imposed after he was convicted of three counts of indecent assault (without
consent); two counts each of incest, statutory sexual assault, and corruption
of minors; and one count each of rape of a child and indecent assault of a
person less than 13 years of age.1 We affirm.
The trial court summarized the relevant factual history, from evidence
adduced at the jury trial in the case docketed at 86-2015 (hereinafter “the
B.D. case”), as follows:
B.D.[, Appellant’s biological daughter,] testified that when she
was 11 years[] old and in her bed at night, [Appellant] … came
into her bedroom, stared at her, lay on top of her and had
vaginal intercourse with her[,] and then told her not to say
anything. Then, when B.D. was 12 or 13 years[] old, [Appellant]
1 See 18 Pa.C.S.A. §§ 3126(a)(1), 4302, 3122.1, 6301(a)(1), 3121(c),
3126(a)(7).
J-S52006-17
went to her room at night and again had vaginal intercourse with
her and told her not to say anything.
Among the witnesses [at the trial in the B.D. case] were M.E.
and A.S. During the trial, M.E., who is [Appellant’s] step-
daughter, testified that when she was 13 years[] old, she was
lying in her parents’ bed when [Appellant] touched her and had
vaginal intercourse with her, which she testified happened more
than once. According to M.E., after the intercourse, [Appellant]
told her not to tell her mother.
During the [] trial involving B.D., there was a stipulation that on
November 29, 2012[, Appellant had] pled guilty to statutory
sexual assault, aggravated indecent assault, indecent assault
and corruption of minors in a case related to M.E.
A.S., who is [Appellant’s minor] niece, testified that while she
was living with him, and sleeping in her bed, she woke up to the
[Appellant] having vaginal intercourse with her, and [Appellant]
told her to not tell her mother. At the time, A.S. was six or
seven years old.
Trial Court Opinion (docket no. 86-2015), 3/13/17, at 3-4 (footnote citations
to record omitted).
In February 2015, the Commonwealth filed various charges against
Appellant for the sexual assaults that he perpetrated against B.D. and A.S.,
which were listed at two separate docket numbers. The B.D. case was
initially consolidated with the case concerning Appellant’s crimes against A.S.,
docketed at 85-2015 (hereinafter “the A.S. case”).
In May 2015, Appellant filed a Motion seeking severance of the A.S.
case and the B.D. case for the purposes of trial (hereinafter “the Motion to
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sever”).2 Following a hearing in June 2015 (hereinafter “the severance
hearing”), the Honorable Thomas H. Kelley (“Judge Kelley”) entered an Order
granting the Motion to sever.3 Judge Kelley subsequently retired, and the
cases were transferred to the Honorable Harry Ness (“Judge Ness”).
On January 28, 2016, the Commonwealth filed a Motion for Introduction
2 Pennsylvania Rule of Criminal Procedure 582 provides that offenses charged
in separate informations can be tried jointly where “(a) the evidence of each
of the offenses would be admissible in a separate trial for the other and is
capable of separation by the jury so that there is no danger of confusion; or
(b) the offenses charged are based on the same act or transaction.”
Pa.R.Crim.P. 582(A)(1) (paragraph break omitted). Relatedly, Pa.R.Crim.P.
583 provides that “[t]he court may order separate trials of offenses or
defendants, or provide other appropriate relief, if it appears that any party
may be prejudiced by offenses or defendants being tried together.” Id.
3 Judge Kelley’s Order granted severance without explanation. However, on
appeal, Appellant emphasizes Judge Kelley’s following remark, made on the
record following the severance hearing:
[M]y inclination, I reviewed it again, is that I am going to grant the
[M]otion to se[]ver. Under the circumstance[s], I want [the A.S.
case and the B.D. case] tried separately. So, I’ll look at it a little bit
further, but based upon the offer of the Commonwealth, I think that
the two situations are not sufficiently similar to go forward jointly.
That’s my inclination. I’ll issue an Order after I complete[] my full
analysis of the cases.
N.T., 6/15/15, at 2 (emphasis added; paragraph breaks omitted).
-3-
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of Prior Bad Acts Pursuant to Pennsylvania Rule of Evidence 404(b)4
(hereinafter the “Rule 404(b) Motion”). Therein, the Commonwealth sought
to introduce, at the separate trials on the B.D. case and the A.S. case,
testimony from A.S., B.D. and M.E., concerning the crimes that Appellant
perpetrated against all three girls (hereinafter referred to as “the proposed
404(b) evidence”). The Commonwealth asserted that such evidence was
relevant and admissible under Rule 404(b) to show a common scheme or
design by Appellant, and that its probative value outweighed its potential for
unfair prejudice.
Appellant filed an “Answer” in response to the Rule 404(b) Motion,
challenging the admissibility of the proposed 404(b) evidence. He
emphasized therein that Judge Kelley had previously severed the B.D. case
4 Rule 404(b) provides, in relevant part, as follows:
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not
admissible to prove a person’s character in order to show that[,] on a
particular occasion[,] the person acted in accordance with the
character.
(2) Permitted Uses. This evidence may be admissible for another
purpose, such as proving motive, opportunity, intent, preparation, plan,
knowledge, identity, absence of mistake, or lack of accident. In a
criminal case[,] this evidence is admissible only if the probative value of
the evidence outweighs its potential for unfair prejudice.
Pa.R.E. 404(b); see also Commonwealth v. Dillon, 925 A.2d 131, 141 (Pa.
2007) (stating that “[e]vidence will not be prohibited merely because it is
harmful to the defendant. This Court has stated that it is not required to
sanitize the trial to eliminate all unpleasant facts from the jury’s consideration
where those facts are relevant to the issues at hand and form part of the
history and natural development of the events and offenses for which the
defendant is charged.” (citation and quotation marks omitted)).
-4-
J-S52006-17
and the A.S. case, finding that the cases were not sufficiently similar to be
tried jointly. According to Appellant, the Commonwealth’s Rule 404(b) Motion
improperly sought to circumvent Judge Kelley’s prior ruling, in violation of the
“coordinate jurisdiction rule.”5 Appellant further urged that the B.D. case and
the A.S. case were too factually different to establish a common scheme or
design under Rule 404(b).
Subsequently, on July 12, 2016, the Commonwealth filed a Motion in
Limine (hereinafter the “Motion in Limine”) wherein it sought, inter alia, to
introduce certain testimony from M.E., at the trial in the B.D. case, in order to
explain to the jury why B.D. had delayed in reporting the sexual assaults to
the authorities (hereinafter “the delayed reporting matter”).6
On July 15, 2016, the trial court conducted a hearing on the Rule
404(b) Motion and Motion in Limine (hereinafter “the Rule 404(b) hearing”),
wherein B.D., A.S., and M.E. testified. At the conclusion of the Rule 404(b)
hearing, the trial court stated, inter alia, that it did not believe that Judge
5 “Generally, the coordinate jurisdiction rule commands that upon transfer of
a matter between trial judges of coordinate jurisdiction, a transferee trial
judge may not alter resolution of a legal question previously decided by a
transferor trial judge.” Zane v. Friends Hosp., 836 A.2d 25, 29 (Pa. 2003);
see also Commonwealth v. Starr, 664 A.2d 1326, 1332 (Pa. 1995) (stating
that “only in exceptional circumstances[,] such as where there has been an
intervening change in the controlling law, a substantial change in the facts or
evidence giving rise to the dispute in the matter, or where the prior holding
was clearly erroneous and would create a manifest injustice if followed,” may
the coordinate jurisdiction rule be disregarded).
6 B.D. reported the sexual assaults to the authorities in 2014, several years
after they had occurred. M.E. reported Appellant’s sexual assaults against her
in 2012.
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J-S52006-17
Kelley’s prior severance of the B.D. case and the A.S. case was dispositive of
whether the Commonwealth could introduce, at the separate trials, the
proposed 404(b) evidence. See N.T., 7/15/16, at 43, 46 (stating that the
court “agree[s] that the fact that you sever them doesn’t mean they can
never be blended for the purposes of [Rule] 404.”). Accordingly, on the same
date, the trial court entered separate Orders granting the Rule 404(b) Motion
and the Motion in Limine (insofar as it related to the B.D. case).7
The matter proceeded to a jury trial on the B.D. case on July 18, 2016,
wherein B.D., A.S., and M.E. all testified concerning the crimes that Appellant
had perpetrated against them. Relevant to the instant appeal, prior to
sending the jury out for deliberations, Judge Ness issued the following
instructions concerning the delayed reporting matter and the admission of the
proposed 404(b) evidence:
There have been some indications here that [B.D.] did not
make a prompt complaint. Before you find [Appellant] guilty of
the crime[s] charged in this case, you must be convinced beyond
a reasonable doubt that the act, in fact, did occur. The evidence
of [B.D.’s] delay in making a complaint does not necessarily make
her testimony unreliable[,] but may remove from it the assurance
of reliability accompanying the prompt complaint or outcry that a
victim of a crime such as this would ordinarily be expected to
make. Therefore, the delay in making this complaint should be
considered in evaluating her testimony and deciding whether the
act occurred at all. You may[,] as well[,] consider [B.D.’s] age
and the fact that [Appellant] is her father, the alleged perpetrator
of this offense, as well as her explanation for the delay in whether
or not you decide delay has any impact whatsoever on whether or
not this act may or may not have occurred.
7 These Orders, though entered on the trial court’s docket, are not contained
in the electronic certified record submitted to this Court.
-6-
J-S52006-17
You have heard evidence tending to prove that [Appellant]
was guilty of an offense for which he is not on trial. In this case,
you have heard testimony to the effect that [Appellant] pled
guilty to sexually assaulting his stepdaughter, [M.E.], and
allegedly sexually assaulted his niece, [A.S.] This evidence is
before you for a limited purpose, and that is for the purpose of
showing that the likelihood of [Appellant] committing this offense
is supported, that is, [B.D.’s] credibility is enhanced by the other
offenses[, i.e., against A.S. and M.E.,] in that they would
constitute[,] in your eyes, if you believed the facts, a common
plan, scheme or design, a motive, [or] a signature[,] in [] that if
you observed the other two offenses, they were similar to the
extent that[,] if you believe [B.D.,] and you believe [A.S. and
M.E.], this could support and corroborate the statements of [B.D.]
regarding these allegations. It must not be considered by you in
any way other than for the purpose that I just stated. You may
not regard this evidence as showing that [Appellant] is a person
of bad character or criminal tendencies from which you might be
inclined to infer guilt.
N.T., 7/18-19/16, at 255-57 (some paragraph breaks omitted). On July 19,
2016, the jury returned verdicts of guilty on all of the charges against
Appellant in the B.D. case. On the same date, Appellant entered a nolo
contendere plea to one count of indecent assault concerning the A.S. case.
The trial court deferred sentencing so that a member of the Sexual
Offender Assessment Board (“SOAB”) could assess Appellant, and issue a
recommendation as to whether he met the criteria of a sexually violent
predator (“SVP”). After the completion of the SOAB report, the trial court
scheduled sentencing on the B.D. case and the A.S. case to occur
simultaneously. At the SVP/sentencing hearing on December 9, 2016, the
trial court determined that Appellant met the requirements for SVP
classification. On the B.D. case, the trial court sentenced Appellant to an
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aggregate term of 25-50 years in prison. On the A.S. case, the trial court
imposed a concurrent term of two years of probation.
On December 13, 2016, Appellant timely filed a Notice of Appeal.8 In
response, the trial court ordered Appellant to file concise statements of errors
complained of on appeal, pursuant to Pa.R.A.P. 1925(b). Appellant timely
filed separate Concise Statements for the B.D. case and the A.S. case. 9 The
trial court thereafter issued Pa.R.A.P. 1925(a) Opinions for the respective
cases.
Appellant now presents the following issue for our review:
Whether the trial court erred in admitting prejudicial evidence of
other complainants’ allegations of sexual abuse: (A) in violation
of the coordinate jurisdiction rule in light of [Judge Kelley’s] prior
severance ruling; and in violation of Pennsylvania Rule of
Evidence 404(b) because: (B) the allegations were not so similar
as to show a common scheme or design; and (C) one
complainant’s report of abuse was not probative of another
complainant’s delay in reporting abuse[?]
Brief for Appellant at 4.
Our standard of review concerning a challenge to the admissibility of
evidence is as follows:
8 Appellant listed on his Notice of Appeal the docket numbers for both the
B.D. case and the A.S. case (the respective judgments of sentence were
entered on the same date).
9 Only the claims that Appellant preserved in his Concise Statement
pertaining to the B.D. case are relevant to the instant appeal. See Brief for
Appellant at 4 n.1 (wherein Appellant’s counsel states that Appellant is
proceeding only on the issues preserved in the Concise Statement filed in the
B.D. case, and not the A.S. case).
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The admissibility of evidence is a matter for the discretion of the
trial court and a ruling thereon will be reversed on appeal only
upon a showing that the trial court committed an abuse of
discretion. An abuse of discretion may not be found merely
because an appellate court might have reached a different
conclusion, but requires a result of manifest unreasonableness, or
partiality, prejudice, bias, or ill-will, or such lack of support so as
to be clearly erroneous.
Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and
quotation marks omitted).
As a claim alleging a violation of the coordinate jurisdiction rule
presents a question of law, our standard of review is de novo and our scope
of review is plenary. Zane, 836 A.2d at 30 n.8.
We will address Appellant’s first two sub-issues together, as they are
related and both challenge the trial court’s admission of the proposed 404(b)
evidence in the B.D. case. See Brief for Appellant at 23-42. Appellant first
argues that Judge Ness’s
[a]llowing the allegations of A.S. in the B.D. case violated the
coordinate jurisdiction rule due to Judge Kelley’s [prior]
severance of the two cases. The severance -- including Judge
Kelley’s statement that the cases were “not sufficiently similar to
go forward jointly[,” see FN 2, supra] -- operated as a finding
that the allegations were not so similar as to comprise a
common scheme or design. Judge Ness was bound by that
finding upon taking over the [B.D.] case, and admitting A.S.’[s]
allegations was therefore erroneous and prejudicial.
Brief for Appellant at 23. Further, Appellant asserts that none of the
exceptions to the coordinate jurisdiction rule apply to the instant case. See
id. at 24-28; see also id. at 27 (asserting that “the [M]otions at issue[, i.e.,
the Motion to sever and Rule 404(b) Motion,] did not ‘differ in kind’ in such a
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way as to permit relaxation of the coordinate jurisdiction rule[,]” and
asserting that these Motions “implicate the same legal issue, concern the
exact same facts, and do not call for different standards[.]”).
Appellant next urges that the trial court erred in ruling that the
proposed 404(b) evidence was admissible at the trial in the B.D. case to show
a common scheme or design by Appellant, where “A.S.’[s] and M.E.’s
allegations were not sufficiently similar to B.D.’s as to warrant admission on
this basis.” Id. at 34-35. Appellant contends that the similarities between
his sexual assaults of all three victims were insignificant because such details
are common to many sexual assault crimes. Id. at 36-38; see also id. at 37
(asserting that although “[e]ach [victim] had a familial relation to [Appellant],
[had] alleged penis-to-vagina penetration occurring in bed, and claimed [that
Appellant] told them not to say anything afterward[,]” such facts are
“extremely common” in many sexual assault prosecutions). According to
Appellant, there were also “key” dissimilarities between the crimes, including
(1) the varying ages of the victims at the time of the assaults; (2) the
number of occasions that Appellant had assaulted each victim; (3) the
respective rooms in Appellant’s home in which the assaults occurred; and (4)
“though B.D. and A.S. alleged only vaginal penetration, M.E. said [Appellant]
also rubbed her breasts.” Id. at 39-40.
Appellant further contends that “[t]he erroneous admission of the
[proposed 404(b)] evidence was prejudicial in light of the weakness of the
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Commonwealth’s case. Viewed without the assistance of the offending
evidence, B.D.’s testimony was thoroughly unconvincing.” Id. at 28; see
also id. at 28-31 (explaining why B.D.’s testimony was independently
“unconvincing”). Appellant avers that, “taken together, the testimony of A.S.
and M.E. covers 33 pages [of the trial] transcript. … These allegations, for
which [Appellant] was not on trial, therefore represented enormous and
prejudicial portions of a short trial that, from opening statement through
closing argument, only lasted 171 pages.” Id. at 40-41. Finally, Appellant
urges that Judge Ness’s above-mentioned cautionary instruction as to the
admission of the proposed 404(b) evidence was insufficient to overcome the
unduly prejudicial nature of this evidence. Id. at 32-34, 41.
In its Opinion, the trial court thoroughly discussed these claims, set
forth the relevant law, and determined that
(A) the court did not err in admitting the proposed 404(b)
evidence, where (i) its probative value outweighed its
potential prejudicial impact, and (ii) the sufficiently similar
nature of Appellant’s assaults of the three victims
demonstrated a common scheme or design; and
(B) there was no violation of the coordinate jurisdiction rule,
where (i) Judge Kelley had never explicitly ruled that
evidence from the A.S. case and the B.D. case was
inadmissible in the trial of either case for purposes of Rule
404(b), and (ii) the jury in the B.D. case was not asked to
decide whether Appellant was guilty of the crimes against
A.S.
See Trial Court Opinion (docket no. 86-2015), 3/13/17, at 5-12. The trial
court’s sound analysis is supported by the record and the law, and we agree
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with its determination. Accordingly, we affirm on this basis as to Appellant’s
first two sub-issues, see id., with the following addendum.
As mentioned above, Judge Ness issued a comprehensive jury
instruction concerning the admission of the proposed 404(b) evidence, and
clarified the limited purpose for which the jury could consider it. See N.T.,
7/18-19/16, at 256-57. It is well established that a jury is presumed to
follow a trial court’s instructions. Commonwealth v. Williams, 936 A.2d
12, 21, 33 (Pa. 2007). Moreover, “when weighing the potential for prejudice
[concerning Rule 404(b) evidence], a trial court may consider how a
cautionary jury instruction might ameliorate the prejudicial effect of the
proffered evidence.” Dillon, 925 A.2d at 141 (citing Pa.R.E. 404(b) cmt.)).
Thus, where a cautionary instruction is provided to the jury, the likelihood of
undue prejudice is substantially minimized. See Commonwealth v.
Hairston, 84 A.3d 657, 666-67 (Pa. 2014) (holding that an extraneous
offense of arson was admissible under Rule 404(b) as res gestae evidence in
defendant’s prosecution for murder, and the trial court’s limiting instruction
on how the arson evidence should be considered minimized the likelihood that
such evidence would inflame the jury or cause it to convict defendant on an
improper basis); see also Commonwealth v. Jones, 668 A.2d 491, 504
(Pa. 1995) (stating that an appellant’s failure to object to a cautionary
instruction indicates his satisfaction with the instruction).
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Moreover, we reject Appellant’s challenge that B.D.’s testimony was
independently unconvincing to support the convictions. By statute, the
uncorroborated testimony of a sexual assault victim, if believed, alone is
sufficient to support a sexual assault conviction. 18 Pa.C.S.A. § 3106; see
also Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006)
(noting that, in a prosecution for, inter alia, incest and corruption of minors,
this Court has long held that a victim’s uncorroborated testimony is sufficient
to convict).
In his final sub-issue, Appellant contends that the trial court rendered a
legally improper ruling concerning the delayed reporting matter (i.e., to the
extent that the trial court admitted M.E.’s testimony on the separate basis
that it tended to explain B.D.’s delay in reporting the sexual assaults). See
Brief for Appellant at 42-45. According to Appellant, “this evidence was not
at all probative of the reasons for B.D.’s delay.” Id. at 42. Specifically,
Appellant asserts that
[a]t the Rule 404(b) hearing … [B.D.] did say she delayed in
reporting the abuse for several years because she “was in shock
when [she] found out that it had happened to [M.E.], and [B.D.]
didn’t want to believe it.” (N.T., 7/15/16, at 9). But this makes
little sense, and the remainder of B.D.’s testimony undermined
the notion that her delay had anything to do with M.E.’s
allegations.
Brief for Appellant at 43.
The trial court addressed this claim in its Opinion, applied a controlling
case, see Dillon, supra, and determined that the court did not err in
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admitting the evidence in question. See Trial Court Opinion (docket no. 86-
2015), 3/13/17, at 12-14. We agree with the trial court’s analysis and
determination, and therefore affirm on this basis as to Appellant’s final sub-
issue. See id.10
Based on the foregoing, we discern no abuse of discretion or error of
law by the trial court in its rulings on the admissibility of evidence, and
conclude that Appellant was afforded a fair trial.
Judgments of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/2017
10 Moreover, Judge Ness also issued a cautionary jury instruction concerning
the delayed reporting matter. See N.T., 7/18-19/16, at 256, supra. This
instruction tended to minimize any undue prejudice that M.E.’s testimony
might have had upon Appellant. See Hairston, supra; see also Williams,
supra (stating that a jury is presumed to follow the trial court’s instructions).
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Circulated 09/20/2017 03:20 PM
IN THE COURT OF COMMON PLEAS OF YORK COUNTY,
PENNSYLVANIA
'.
COMMONWEALTH OF NO. CP-67-CR-86-2015
PENNSYLVANIA
D-D-,
v.
Appellant
Appellant, D. D. by
and through his attorney Brian McNeil,
Esquire, appeals to the Superior Court of Pennsylvania. On January 30, 2017, 1
the Appellant filed the Statement of Matters Complained of on Appeal. The
statement was then amended and filed on February 15, 2017. This Court now
issues this 1925(a) Opinion.
PROCEDURAL HISTORY
On July 19, 2015, CP-67-CR-85-2015 and CP-67-CR-86-2015 were
severed. In the instant case, this Court granted Commonwealth's Motion for
1
Appellant had been granted several requests for extension of time to file the Statement of
Matters Complained of on Appeal.
1
Introduction of Prior Bad Acts Pursuant to Rule 404(b) following a hearing that
same day where A.S., B.D. and M.E. testified on July 15, 2016.
Appellant was found guilty in ajury trial on July 19, 2016. Appellant was
sentenced to a total of 25 to 50 years in prison following the linking of
sentences.
MATTERS COMPLAINED OF ON APPEAL
The Appellant raises the following grounds for error on appeal:2
1. Whether the trial court "violated the coordinate jurisdiction
rule [when it] . . . allow[ed] evidence from the A.S. case
during trial of the instant case?"
2. Whether the trial court erred in allowing evidence from the
A.S. case and M.E. case? , ·
3. Whether the Court erred when the Court allowed the
Commonwealth's motion to admit evidence of M.E. 's report of
abuse for the purposes of explaining B.D.'s delay in reporting
abuse?
4. Whether the trial court erred when it allowed the
Commonwealth to amend the timeframe in the information?
5. Whether the Court erred when it found the Commonwealth had
2
These arguments have been paraphrased or quoted where necessary for clarity.
2
carried its burden of proving by clear and convincing evidence
that [Appellant] meets the criteria to be designated as an SVP
("Sexually Violent Predator")?
6. Whether the indecent assault conviction should have merged
with the rape of a child conviction for sentencing purposes?
Factual Background
A jury trial was held on July 19, 2016.The victim in this case was B.D.,
who testified that when she was 11 years-old and in her bed at night, Appellant,
who is her father, came into her bedroom, stared at her, lay on top of her and
had vaginal intercourse with her and then told her not to say anything.3 Then,
when B.D. was 12 or 13 years-old, Appellant went to her room at night and
again had vaginal intercourse with her and told her not to say anything.4
Among the witnesses were M.E. and A.S. During the trial, M.E., who is
Appellant's step-daughter, testified that when she was 13 years-old, she was
lying in her parents' bed when Appellant touched her and had vaginal
intercourse with her, which she testified happened more than once. 5 According
3
N.T., Jury Trial, July 18, 2016-July 19, 2016, pg. 75-80.
4
Id. at 81-82.
5
Id. at 137-139.
3
, Ir
·µ,.
to M.E., after the intercourse, the Appellant told her not to tell her mother.6
During the instant trial involving B.D., there was a stipulation that on
November 29, 2012 the defendant pled guilty to statutory sexual assault,
aggravated indecent assault, indecent assault and corruption of minors in a case
related to M.E.7
A.S., who is Appellant's niece, testified that while she was living with
him, and sleeping in her bed, she woke up to the Appellant having vaginal
intercourse with her, and Appellant told her to not tell her mother.8 At the time,
A.S. was six or seven years old.9
Several officers also testified that Appellant had told them that after he
was arrested for the instant case, he told the officers that of the three, the only
one he had sexual relations with was M.E.10
6
Id. at 147. ,):
7
Id. at 148.
8
Id. at 177-179.
9
Id. at 180.
10
Id. at 174, 199.
4
DISCUSSION
This court will now address each ground raised for the appeal in the
following sections. The first and second ground for the appeal will be addressed
together.
1. Whether the trial court violated the coordinate jurisdiction rule
when it allowed evidence from the A.S. case during trial of the
instant case, and whether the trial court erred in allowing evidence
from the A.S. case and M.E. case?
The Commonwealth had made a Motion for Introduction of Prior Bad
Acts Pursuant to Rule 404(b), where the Commonwealth sought to introduce
M.E. 'sand A.S. 's testimonies in order to establish a common scheme or design.
A hearing was held to determine whether Appellant's Prior Bad Acts were
admissible pursuant to Rule 404(b). Duririg· the hearing, B.D., M.E., and A.S.
testified about incidents involving Appellant.
There were a number of similarities between the testimonies of B.D.,
A.S., and M.E .. Specifically, all three testified that they had vaginal intercourse
with the Appellant. 11 When this intercourse occurred, they were at home, lying
in a bed on their backs while their mother was away from the home. 12 Further,
11
Transcript (Hearing), Commonwealth v. Diii at pg. 6, 7, 20, 25, 30 (July 15, 2016).
12
Id. at 5,7,19,20,22,28, 29.
5
,.,r ,
Appellant was a father figure to all three, where B .D. was his daughter; M.E.
was his step-daughter, and A.S. was his biological niece.13 However, Appellant
had raised A.S. as a daughter since she was one and half years-old.14 During the
incidents involving B.D. and the first incident involving M.E., Appellant told
them not to say anything about the incident." Further, all three were relatively
l,
young girls when the incidents happened. B.D. was approximately eleven years-
old.16 M.E. was approximately thirteen years-old, and A.S. was approximately
six to seven years-old.17
The Court granted the Commonwealth's motion pursuant to
Commonwealth v. G.D.M, Sr., 926 A.2d 984 (Pa. Super. 2007) and
Commonwealth v. 0 'Brien, 836 A.2d 966 (Pa. Super. 2003). In the order, this
court stated the following:
the Court finds the testimonies of M.E. and A.[S]. are not too
remote in time to eliminate their probative value. Finally, after
balancing the potential prejudicial impact of the common scheme
evidence with such factors as the degree of similarity established
between the incidents of criminal conduct, the Commonwealth's
need to present evidence under the common plan exception, and
13
Id. at 4, 18, 27.
14
Id. at 4, 18, 27.
15
Id. at 6, 7, 20.
16
Id. at 4.
17
Id. at 19, 20, 32.
6
~
,•'
the ability of the trial court to caution the jury concerning the
proper use of such evidence by them in their deliberations, the
Court finds the probative value of such evidence is not outweighed
by its potential prejudicial impact upon the trier of fact."
The similarities listed above demonstrate a common scheme or plan between
M.E., A.S., and B.D.
Appellant's first two arguments will be addressed together since the core
issue is whether the testimony about acts concerning A.S. and M.E. should have
been admissible. In his Amended Statement of Matters Complained of on
Appeal, Appellant argues that evidence from the A.S. case violates the
coordinate jurisdiction rule and that evidence and testimony from the A.S. and
M.E. cases should not have been admissible. Specifically, the Appellant argues
that the prejudicial effect significantly outweighed the probative value.
The coordinate jurisdiction rule states that "upon transfer of a matter
between trial judges of coordinate jurisdiction, a transferee trial judge may not
alter resolution of a legal question previously decided by a transferor trial
e.
18
Order Allowing Commonwealth's Motion for Introduction of Prior Bad Acts Pursuant to
Rule 404(b) of the Pennsylvania Rules of Evidence, Commonwealth v. Dtl D.(July
15, 2016).
7
judge."19 However, this prohibition is not absolute.i" Here, a previous judge had
severed the A.S. case and B.D .. However, the previous judge had not ruled that
-~-- .
testimony about these prior bad acts was Inadmissible."
The general rule about prior bad acts is as follows: "Evidence of distinct
crimes are not admissible against a defendant being prosecuted for another
crime solely to show his bad character and his propensity for committing
criminal acts."22 However, there are exceptions to this general rule. The
exceptions are described as follows:
"[T]he general rule prohibiting the admission of evidence of prior crimes
nevertheless allows evidence of other crimes to be introduced to prove
(1) motive; (2) intent; (3) absence of mistake or accident; (4) a common
scheme, plan or design embracing commission of two or more crimes so
related to each other that proof of one tends to prove the others; or ( 5) to
establish the identity of the person charged with the commission of the
crime on trial, in other words, where there is such a logical connection
between the crimes that proof of one will naturally tend to show that the
accused is the person who committed the other."23
19
Zane v. Friends Hosp., 575 Pa. 236, 243, 836 A.2d 25, 29 (2003).
20 Id.21
22
Transcript (Motion/ Petition Hearing), Commonwealth v. DIIIDII (June 2, 2015).
Commonwealth v. Lark, 543 A.2d 491, 496-97 (Pa. 1988) (internal citation omitted)
( emphasis in original).
23
Id. at 497 (internal citation omitted).
8
The "standard of review for the admission of evidence looks to whether the trial
court abused its discretion. "24
In Commonwealth v. G.D.M, Sr., the Appellant alleged that the court
erred when it allowed a probation officer to testify about a prior offense of
indecent assault and endangering the welfari' of children.25 The Pennsylvania
Superior Court held that there was no abuse of discretion. The court reasoned
the following:
"We find that the testimony regarding appellant's crimes against his other
child was proper as it evinced a common plan. The time frames of the
abuse of the other child and of the victim were very close. Appellant
abused his daughter from July 21, 1996 until March 21, 1997. He then
began abusing the victim in September 1997, shortly after the abuse of
the daughter ended. Both molestations occurred in the family home and
both involved appellant's own children. Moreover, the nature of both
molestations involved manipulation of the genitals by hand only; there
were no allegations of any other type of sexual activity. The earlier
offense was quite similar to the latter.iand we find no abuse of discretion
in the trial court's finding the probative value of the evidence outweighed
the prejudice incurred in admitting the evidence.?"
24
Commonwealth v. G.D.M, Sr., 926 A.2d 984, 986 (Pa. Super. Ct. 2007).
25
Id. at 986-987.
26
Id. at 987-988.
9
,· .
Similarly, in Commonwealth v. 0 'Brien, the court held that the trial court
abused its discretion when it denied the commonwealth's motion to admit
evidence of similar indecent assault crimes. The court reasoned the following:
Here, the Commonwealth was required to prove that a non-consensual
touching occurred, the purpose of which was sexual gratification. [The
defendant] denies that the touching occurred, and since the
uncorroborated testimony of the alleged victim in this case might
reasonably lead a jury to determine that there was a reasonable doubt as
to whether [The defendant] committed the crime charged, it is fair to
conclude that the other crimes evidence is necessary for the prosecution
of the case. 27 .;.
The court in that case acknowledged that although the other crimes were
prejudicial, it was not unduly prejudicial. Further the court concluded that the
prior crime evidence and the instant charge fell under the "common scheme,
plan or design exception to the general rule that evidence of one crime is
inadmissible against a defendant being tried for another crime, (2) that the
crimes are not too remote in time,28 and (3) that the probative value of the
evidence outweighs the prejudicial effect."29
27
Commonwealth v. O'Brien, 836 A.2d 966, 972 (Pa. Super. Ct. 2003) (The Pennsylvania
Superior Court was discussing the Gordon case (Commonwealth v. Gordon, 673 A.2d 866,
870 (Pa. 1996)).
28
In O'Brien, the relevant time period that the prior bad acts and instant crime were 5 years.
29
0 'Brien, 836 A.2d at 972.
10
As stated previously, the similarities between the crimes demonstrated a
common scheme like the crimes in G.D.M. Like the crimes in G.D.M., the
crimes here occurred during a similar time frame and were very similar forms
of sexual activity, including the nature of the sexual intercourse, the similar
ages between the three victims, the location where the incidents occurred, the
relationship of the Appellant to the three victims, and the fact that the mother
was not home at the time. Although the nature of the crimes other than the one
at issue were prejudicial, they were not unduly prejudicial and fell under the
common plan or scheme exception.
Further, the coordinate jurisdiction rule was not violated since Appellant
was not being tried for the crimes described by A;S. and because the jury was
not asked to decide whether Appellant was guilty for the crimes involving A.S.
Further, the judge who had severed the cases did not rule that evidence from the
two different cases could not be presented as evidence of a common plan,
scheme or design the other trial. Rather, the judge severed so that the two cases
would not be tried together or decided by a jury together.
For the reasons listed above, this Court respectfully requests that the
Superior Court find that the trial court did IJpt abuse its discretion or violate the
11
coordinate jurisdiction rule.
2. Whether the Court erred when the Court allowed the
Commonwealth's motion to admit evidence of M.E. 's report of
abuse for the purposes of explaining B.D. 's delay in reporting
abuse?
This Court did not err when it allowed Commonwealth's motion to admit
evidence of M.E. 's report of abuse for the purposes of explaining B.D. 's delay
in reporting the abuse, despite Appellant's argument to the contrary. In fact, the
Pennsylvania Supreme Court has directly addressed this issue. According to the
Pennsylvania Supreme Court, "this Court has separately recognized the reality
that a sexual assault prosecution oftentimes depends predominately on the
victim's credibility, which is obviously affected by any delay in reporting the
abuse."30 The events around the sexual abuse and any reasons for the delay in
reporting the sexual abuse "enables the factfinder to more accurately assess the
victim's credibility.Y'
Further, the Pennsylvania Supreme Court stated in Dillon that during
sexual assault cases, "juries ... expect to hear certain kinds of evidence and,
° Commonwealth v. Dillon, 925 A.2d 131, 138-39 (Pa. 2007).
3
31 Id.12
without any reference to such evidence during the trial, a jury is likely to
unfairly penalize the Commonwealth .... "32
Applying this rationale to the case in Dillon, the Pennsylvania Supreme
Court stated that "there is no doubt that evidence of appellant's physical abuse
of (the victim's] mother and brother was relevant for purposes other than to
show his bad character and criminal propensity.Y' However, the court
concluded that evidence of those acts of physical abuse was probative and
·.
relative.34
Specifically, the Pennsylvania Supreme Court stated first that "the
evidence [from the abuse involving the victim's mother and brother] was
probative of the reasons for [the victim]'s significant delay in reporting the
alleged sexual assaults-i.e., the evidence tends to show that her experiences
with appellant, including those assaults on family members, caused her to fear
making a prompt report."35 Second, the court stated that this evidence "was also
relevant for res gestae purposes, i.e., to explain the events surrounding the
-)~1 ;'
32 Id.33 Id.34 Id.35 Id.13
sexual assaults, and resulting prosecution sothat the case presented to the jury
'"':'ll
did not appear in a vacuum.?"
Here, there was a delay in B .D. 's reporting of the sexual abuse. During a
hearing, it was determined whether evidence from M.E. 's disclosure would be
admissible to explain the delay in B.D. 's disclosure. As Dillon shows, this
evidence is relevant for res gestae purposes such as explaining the events
surrounding the sexual abuse and to explain why the reporting of the sexual
abuse was delayed. As Dillon indicates, juries in sexual abuse cases expect to
hear why the reporting of sexual abuse was delayed as well as the events
surrounding the sexual assault. For these reasons and for the rationale in Dillon
and other case law, this court respectfully requests that the Superior Court find
this error raised on appeal meritless and find that the court did not abuse its
discretion when deciding to admit this evidence to explain the delay in B.D. 's
disclosure.
36 Id.14
3. Whether the trial court erred when it allowed the Commonwealth to
amend the timeframe in the information?
The trial court did not err when it allowed the Commonwealth to amend
the timeframe in the information, despite Appellant's argument to the contrary.
(:
The Commonwealth requested that that the information be amended such that
the end date was February 2012 based on the victim's testimony and because
the second count of rape, statutory assault would have happened outside the
dates that are written on the current information.37 Defense counsel mentioned
that they had filed a Bill of Particulars, and the information read June 28, 2009
and June 28, 2010, which is what the defense was prepared to defend.38
However, defense counsel admitted that he knew that one of the alleged
incidences occurred outside of the time frame that was on the information and
(i'\
had notice.39 This Court acknowledged that the alleged incidents remained the
same despite the change." The Commonwealth then pointed out that the
crimes involving B.D., A.S., and M.E. involved the same house, same
37
N.T., Jury Trial at 10.
38
Id. at 10.
39
Id. at 11.
40 Id.
15
r-:
{1 -,
circumstances, a similar time frame, similar ages, and that Defendant was still
around at the time the alleged incidents occurred.41
The Court concluded that "it is one event in '10 and one event in '12
theoretically. You haven't changed anything ... All the facts stay the same, all
the locations stay the same, the underlying criminal charges stay the same,
right, but he was present and around."42 Althbugh the Commonwealth pointed
out that it may work in Defendant's favor since they had to have dropped the
second rape of a child charge since B.D. could have possibly been thirteen
years-old during the second incident.43
This Court then carefully researched and examined case law and then
permitted the Commonwealth to amend the information to February 2012.44
This Court found no prejudice to the defense because:
Appellant's denial ... is not date dependent, does not create a
problem because now he has an, alibi that he can deny. He is
certainly aware of what his conduct was within that time period
because within that expanded time period he has already pled
41
Id. at 11-12.
42
Id. at 13.
43
Id. at 14.
44
Id. at 15-16.
16
,.i ..
')
guilty to similar conduct involving another one of this children or a
child. So I see no prejudice to the Defense .... 45
The trial court did not err when it allowed the Commonwealth to amend
the timeframe in the information, despite Appellant's argument to the contrary.
A court may allow the Commonwealth to amend the information "when there is
a defect in form, the description of the offense(s), the description of any person
or any property, or the date charged, provided the information as amended does
not charge an additional or different offense. Upon amendment, the court may
grant such postponement of trial or other relief as is necessary in the interests of
-:,
justice.?"
The purpose of the information is to give the defendant notice of the
charges against him "so that he may have a fair opportunity to prepare a
defense.?" The Pennsylvania Superior Court has stated that relief is warranted
in regard to an amendment "only when the variance between the original and
the new charges prejudices an appellant by, for example, rendering defenses
which might have been raised against the original charges ineffective with
45
Id. at 16.
46
Pa. R. Crim. P. 564.
47
Commonwealth v, Sinclair, 897 A.2d 1218, 1223 (Pa. Super. Ct. 2006).
17
respect to the substituted charges.t'" The factors used to determine if an
amendment prejudiced the defendant include the following:
( 1) whether the amendment changes the factual scenario
supporting the charges; (2) whether the amendment adds new facts
previously unknown to the defendant; (3) whether the entire
factual scenario was developed during a preliminary hearing; ( 4)
whether the description of the charges changed with the
amendment; ( 5) whether a change in defense strategy was
necessitated by the amendment; and (6) whether the timing of the
Commonwealth's request for amendment allowed for ample notice
and preparation. 49
In Commonwealth v. Sinclair, the Pennsylvania Superior Court found
that the trial court did not err and that the defendant was not prejudiced when
the trial court allowed amendment to the information because the facts in the
information compared to the new information were identical, the facts in the
~-
"amended complaint were known to [the defendant] from the time charges were
brought against him[, and] [t]here was no substantive changes to the elements
of the crimes charge[d]."50
48
Id. (Citing Commonwealth v. Brown, 556 Pa. 131, 135, 727 A.2d 541, 543 (1999)).
49
Id. (Citing Commonwealth v. Grekis, 601 A.2d 1284, 1292 (Pa. Super. Ct. 1992)).
so Id. (Citing Commonwealth v. Gray, 478 A.2d 822, 825 (Pa. Super. Ct. 1984)).5
18
.,
T'.
Similarly, in Commonwealth v. Thomas, the Court concluded that the
Appellant did not suffer prejudice when the date on the information was
amended. The Court reasoned that:
The use of the incorrect date on the information by the
Commonwealth was inadvertent. Through the information, the
appellant was on notice of the charges filed against him, and
because of the preliminary hearing, he was on notice of the factual
basis for those charges. We refuse to allow him to take advantage
of a clerical error for which he could not have suffered any
prejudice.51
Similar to Thomas and Sinclair, here, the Commonwealth needed to
amend the dates on the information to conform to the victim's testimony at a
prior hearing. The factual scenario of each count did not change in any way.
Appellant was on notice what the facts of these charges were prior to the
amendment. There were no substantive changes, and the Appellant was on
notice of the factual basis for the charges already. It did not render any defenses
that Appellant would have ineffective. Ther~fore, this Court respectively
requests that the Superior court find that the trial court did not err when it
allowed the Commonwealth to amend the timeframe on the information.
51
Commonwealth v. Thomas, 477 A.2d 501, 507 (Pa. Super. Ct. 1984).
19
4. Whether the Court erred when it found the Commonwealth had carried
its burden of proving by clear and convincing evidence that [Appellant)
meets the criteria to be designated as an SVP ("Sexually Violent
Predator'')?
i. Factual Background on hearing regarding whether
Appellant was to be classified as a Sexually Violent
Predator.
A hearing was held on December 9, 2016 to determine whether Appellant
should be classified as a Sexually Violent Predator ("SVP") based on CP-67-
CR-86-2015 and CP-67-CR-85-2015. Dr. Robert Stein, who is a member of the
i:'
Pennsylvania Sexual Offender Assessment Board provided a report where he
determined whether the Appellant should have been classified as an SVP.52 To
make his determination, Dr. Stein used the court order for the assessment,
defense counsel's response, police reports and other documents, which are
described in his report. 53
Dr. Stein discussed fifteen different factors which are taken into account
and provided in his report.54 The fifteen factors from Doctor Stein's report55 and
52
Transcript (Sentencing), Commonwealth v. nll at 2 (Dated December 9, 2016 and filed
December 27, 2016).
53
Id.; see also Robert M. Stein & Sexual Offenders Assessment Board, Sexual Offender
Assessment 2 (2016).
54
Transcript (Sentencing) at 2.
20
Dr. Stein's findings (which are paraphrased and quoted from his testimony) are
as follows:
1. "Whether the offense involved multiple victims. 1156 Here, there were
multiple victims, and Dr. Stein concluded that multiple victims shows a
greater risk of recidivism than if there was only one victim.57
2. "Whether the individual exceeded the means necessary to achieve the
offense. "58 Here, Appellant had not exceeded the means necessary. 59
3. "The nature of the sexual contact with the victims. 1160 Dr. Stein stated
that "this was relevant. The acts involved sexual intercourse with young
children, and that is consistent with pedophilic disorder.?"
4. "The relationship of the individual to the victims. "62 The victims in CP-
67-CR-85-2015 and CP-67-CR-86-201'5were Appellant's biological
daughter and niece.63
55
These factors are quoted from his report and he had also testified about these factors. In
this opinion, the factors are italicized for clarity.
56
Robert M. Stein & Sexual Offenders Assessment Board, Sexual Offender Assessment 2
(2016).
57
Transcript (Sentencing), Commonwealth v. D.at 3 (Dated December 9, 2016 and filed
December 27, 2016).
58
Stein at 4.
59
Transcript (Sentencing) at 3.
60
Stein at 4.
61
Transcript (Sentencing) at 3.
62
Stein at 4.
63
Transcript (Sentencing) at 3. (The victim in 67-CR-85-2015 refers to A.S. and CP-67-CR-
86-2015 refers to B.D.)
21
5. "Age of the victims. "64 The victim in one of the cases was six to seven
years-old, and the other victim in the other case was eleven years-old;
therefore, the doctor concluded that this is associated with pedophilic
disorder. 65
6. "Whether the offense included a display of unusual cruelty by the
individual during the commission of the crime. " 66 The doctor concluded
"\
that there was some level of cruelty since the sexual assault was
penetrative and painful to A.S., and B.D. cried during the lengthy assault,
although Dr. Stein did not know if it arose to the level of unusual
cruelty.67
7. "The mental capacity of the victim. "68 The victims had a normal mental
capacity.69
8. "The individual's prior criminal record (sexual and nonsexual). "70 The
acts in the prior sexual conviction occurred after the acts in 85-2016 and
86-2016, which would not be considered sexual offense recidivism.71
9. "Whether the individual completed any prior sentences. "72 He had not
completed any prior sentences.73
.
~:· .
\'
64
Stein at 4.
65
Transcript (Sentencing) at 3.
66
Stein at 4.
67
Transcript (Sentencing) at 3.
68
Stein at 4.
69
Transcript (Sentencing) at 4.
70
Stein at 4.
71
Transcript (Sentencing) at 4.
72
Stein at 4.
73
Transcript (Sentencing) at 4.
22
10. "Whether the individual participated in available programs for sexual
offenders.T" Dr. Stein testified "I had no information on involvement in
sex offender treatment. When I walked into court today, [Defense
Counsel] did show me some evidence that [Appellant] was involved in
sex offender treatment in the prison setting.?"
11. "Age of the individual. "76 Appellant was 45 to 46 years-old at the time
the acts occurred."
12. "Use of illegal drugs by the individual. "78 Here, there was no history of
illegal drugs.79
t •
13. "Any mental illness, mental disability, or mental abnormality. "80
Appellant reported a history of post-traumatic stress disorder and
depression. 81
14. "Behavioral characteristics that contribute to the individual's
conduct. "82
15. "Any additional behavioral characteristics "83 Dr. Stein stated that there
was nothing else to report. 84
74
Stein at 4.
75
Transcript (Sentencing) at 4.
76
Stein at 5.
77
Transcript (Sentencing) at 4.
78
Stein at 5.
79
Transcript (Sentencing) at 4.
80
Stein at 5.
81
Transcript (Sentencing) at 4.
82
Stein at 5.
83
Transcript (Sentencing) at 4.
84 Id.23
Dr. Stein also added that "[h]aving a sustained sexual interest in young children
is associated with increased risk" according to statistical factors. These are all
factors under Megan's Law.85
The Commonwealth asked Dr. Stein ifhe had concluded whether there
was a minimum number of factors that were needed to conclude that a person
was a Sexually violent predator, and Dr. Stein answered that "no, there's not.
The factors are not weighted" and that just one factor could be a basis for
concluding that a person is an SVP.86
Based on the factors, Dr. Stein determined that Appellant met the criteria
to be a Sexually Violent Predator.87 Dr. Stein specified the following:
This offense involved the rape of two young girls over a period of
greater than six months. There is sufficient evidence for pedophilic
disorder. [Appellant] demonstrated sexual interest and behaviors in
young children over a period of six months or more. There is also
the matter of the prior sex conviction which involved a young
teenager and non-consenting sexual acts that took place over
several years. There was also evidence for other specified
paraphilic disorder of non-consent. These two conditions,
pedophilic disorder and a non-consent paraphilic disorder, provide
85
Id. at 5.
86 Id.
s1 Id.
24
sufficient evidence for a condition that is the impetus to sexual
offending. 88
In a previous case, Appellant had been found to not be an SVP.89 When
asked about what effect treatment in state prison had on the risk of recidivism,
the doctor stated that "[t]he research generally shows that successful completion
of sexual offender treatment shows a slight reduction in recidivism ... And the
parole board looks ... at successful completion. They look at notes that the
prison counselors might write about his participation.t''" This Court found that
the Commonwealth had met its burden and that the Defendant met the sexually
violent predator criteria and classified hirri as an SVP.91
ii. Discussion regarding whether the court erred when it
found Appellant to be a sexually violent predator.
,; .
Prior case law has determined that this the type of issue raised by
Appellant in his appeal concerns sufficiency of the evidence, and, therefore, the
following standard is used:
A challenge to the sufficiency of the evidence is a question
of law requiring a plenary scope of review. The appropriate
88
Id.at 5-6.
89
Id.at 7.
90
Id.at 8.
91
Id. at 9.
25
l,·
standard of review regarding the sufficiency of the evidence is
whether the evidence admitted at trial and all reasonable inferences
drawn therefrom, when viewed in the light most favorable to the
Commonwealth as the verdict winner, is sufficient to support all
the elements of the offenses. As a reviewing court, we may not
weigh the evidence and substitute our judgment for that of the fact-
finder. Furthermore, a fact-finder is free to believe all, part or none
of the evidence presented.
At the hearing prior to sentencing the court shall determine
whether the Commonwealth has proved by clear and convincing
evidence that the individual is a sexually violent predator.
Accordingly, in reviewing the sufficiency of the evidence
regarding the determination of SVP status, we will reverse the trial
court only if the Commonwealth has not presented clear and
convincing evidence sufficient to enable the trial court to
determine that each element required by the statute has been
satisfied. 92
Under Pennsylvania law, when a court orders an assessment of whether a
defendant meets the sexually violent predator criteria, "a member of the board
as designated by the administrative officer of the board shall conduct an
assessment of the individual to determine if the individual should be classified
as a sexually violent predator.t''" According to that same law "An assessment
.}
shall include, but not be limited to, an examination of the following:
"(1) Facts of the current offense, including:
92
Commonwealth v. Brooks, 7 A.3d 852, 860 (Pa. Super. Ct. 2010).
93
42 Pa.C.S. § 9799.24.
26
~
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means
necessary to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of unusual
cruelty by the individual during the commission of the
cnme.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual's prior criminal record.
(ii) Whether the individual completed any prior
sentences.
(iii) Whether the individual participated in available
programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age.
(ii) Use of illegal drugs.
(iii) Any mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to the
individual's conduct.
( 4) Factors that are supported in a sexual offender assessment field
as criteria reasonably related to the risk of reoffense.T"
Then, prior to sentencing, the Court is to determine if the Commonwealth has
proven that a defendant is a sexually violent predator by clear and convincing
evidence.95
),;
IJi
94 Id.
ss Id.
27
A sexually violent predator is defined as follows: "[a]n individual
determined to be a sexually violent predator under section 9795.4 ... prior to
the effective date of this subchapter or an individual convicted of an offense
·;~ :
specified in" certain subsections of section 9799.14 and they are "determined to
be a sexually violent predator under section 9799.24 ... due to a mental
abnormality or personality disorder that makes the individual likely to engage in
predatory sexually violent offenses."96
In Commonwealth v. Brooks, the appellant argued that the trial court
erred when it classified him as an SVP because the majority of the statutory
criteria were not met.97 The Superior Court held that the trial court did not err.
The Superior Court reasoned that "[i]n discussing the absence of certain
statutory factors and discussing the facts of other cases, Appellant is essentially
asking this Court to reweigh them. This we cannot do."98 Similarly, in
Commonwealth v. Feucht, the court held that "the Commonwealth does not
have to show that any certain factor is present or absent in a particular case."99
96
42 Pa.C.S.A. § 9799.12.
97
Brooks, .7 A.3d at 862.
98
Id. at 863.
99
Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. Super. Ct. 2008).
28
,.,~·'·
When viewed in the light most favorable to the Commonwealth as the
verdict winner, here, there was sufficient evidence for the trial court to conclude
that Appellant was a Sexually Violent Predator. This case is similar to the
Brooks case, where some of the factors but not all of the factors favored finding
the Appellant a Sexually Violent Predator. Specifically Appellant points out
that the doctor did not know at the time of his assessment that Appellant wanted
to seek treatment. This does not render the doctor's opinion as unreliable since
the doctor discussed that having completed treatment would slightly reduce risk
of recidivism.
Further, although Appellant notes that in a previous case the doctor had
found the Appellant was not an SVP, there was no prior sexual conviction in the
previous case either, unlike the case here. As the doctor and prior case law have
demonstrated, there is no one factor that is required to conclude that a defendant
is an SVP, and, as Dr. Stein had stated, one factor could possibly be
determinative. Here, this Court had determined that Appellant was a sexually
violent predator based on Dr. Stein's report and testimony. The Commonwealth
had proven by clear and convincing evidence that Appellant was a Sexually
Violent Predator. Therefore, this Court respectfully requests that the Superior
29
Court find that this Court did not err when it found the Commonwealth had
carried its burden of proving by clear and convincing evidence that [Appellant]
met the criteria to be designated as an SVP.
5. Whether the sentences for indecent assault and rape of a child should
have merged for sentencing purposes?
Whether or not sentences should merge "is a question of law and, as
such, [the] scope of review is plenary and [the] standard of review is de
.r
nova. "100
Appellant is correct that rape of a child and indecent assault-person less than
13 years of age do merge for sentencing purposes when they arise out of the "a
single criminal act and all of the statutory elements of one offense are included
in the statutory elements of the other offense."101
However, Appellant has not addressed which count of Indecent Assault
that he's alleging should have been merged in his Amendment Statement of
Matters Complained of on Appeal. In the relevant section in the Amended
Statement, the appellant states that "These convictions include one for rape of a
° Commonwealth v.
10
Williams, 920 A.2d 887, 889 (Pa.Super.2007) (citation omitted)."
101
Commonwealth v. Lomax, 2010 PA Super 210, 8 A.3d 1264, 1265 (2010); Commonwealth
v. Williams, 920 A.2d at 889.
30
child and two for indecent assault under 18 Pa. C.S.A. 3126(a)(7). Because at
least one indecent assault conviction is based on the same act of penetration as
~f I
the rape of a child conviction, one indecent assault conviction merges for
sentencing purposes." The subsection that the appellant identifies for this is
section 3126(a)(7) which pertains to indecent assault -persons less than 13
years of age. Appellant, however, was convicted of only one count indecent
assault-persons less than 13 years of age. Appellant was convicted of two
counts of indecent assault -without consent, however. Either Appellant has
incorrectly stated the number of counts or incorrectly stated the relevant
subsection. Without proper identification of which indecent assault Count or
-·
. ~l i
subsection that Appellant is referring to, this court is unable to address this
ground for appeal. This Court notes that upon review of the record, Appellant
had not requested or motioned this court for reconsideration of sentence.
However, this Court would gladly correct the sentence such that the proper
count should have merged with rape of a child, per the Superior Court's
decision and upon proper identification of which count the Appellant is
referring to.
·.1,
31
CONCLUSION
Therefore, for all the reasons above, this Court respectfully requests that
the Superior Court find Appellant's arguments meritless.
BY THE COURT:
Dated: March 9, 2017 ~RR~EsS.JUDGE
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32