Com. v. Ennis, D. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
DARREN EDWARD ENNIS, :
:
Appellant : No. 2210 EDA 2014
Appeal from the Judgment of Sentence January 6, 2014
In the Court of Common Pleas of Monroe County
Criminal Division No(s).: CP-45-CR-0001020-2012
CP-45-CR-0001315-2012
BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 15, 2016
Appellant, Darren Edward Ennis, appeals from the judgment of
sentence entered in the Monroe County Court of Common Pleas after a jury
found him guilty of four counts of aggravated indecent assault and two
counts of corruption of minors.1 He claims (1) the evidence was insufficient
to support the convictions; (2) the verdicts were against the weight of the
evidence; (3) the trial court erred in admitting hearsay and prior bad acts
evidence at trial; (4) the mandatory minimum sentences under 42 Pa.C.S. §
9718(a)(3) are unconstitutional in light of Alleyne v. United States, 133 S.
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 3125(a)(7) (complainant under thirteen years old), 3125(b)
complainant a child), 6301(a)(1).
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Ct. 2151 (2013); (5) the court abused its discretion in ordering some of his
sentences to run consecutively; (6) the court erred and abused its discretion
when it found he was a sexually violent predator (“SVP”); and (7) the court
erred in denying his motion for the presiding judge to recuse.2 We affirm
2
We have reordered and reorganized Appellant’s questions presented on
appeal, which read:
1. WHETHER THE TRIAL COURT ERRED AS A MATTER OF
LAW AND ABUSED ITS DISCRETION IN FAILING TO
SENTENCING [Appellant] TO A CONCURRENT TERM
RATHER THAN CONSECUTIVE TERM OF INCARCERATION
BASED UPON THE FACTS OF THE CASE AND THE JUR[Y’s]
VERDICT WHICH FAILED TO MAKE SPECIFIC FINDINGS.
2. WHETHER THE TRIAL COURT ERRED AS A MATTER OF
LAW AND ABUSED ITS DISCRETION IN THAT THE
SENTENCE IMPOSED UPON [Appellant] PURSUANT TO 42
PA.C.S.[ ] § 9718(A)(3) CONSTITUTES AN ILLEGAL
SENTENCE BECAUSE THE FACTS NECESSARY FOR THE
IMPOSITION OF THE MANDATORY MINIMUM WERE NOT
ESTABLISHED BEYOND A REASONABLE DOUBT OR FOUND
BY THE JURY?
3. WHETHER THE COMMONWEALTH FAILED TO ESTABLISH
BY CLEAR AND CONVINCING EVIDENCE THAT THE
APPELLANT WAS A SEXUALLY VIOLENT PERSON.
4. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
IN ADMITTING HEARSAY AND AN EXPERT OPINION INTO
EVIDENCE BY ALLOWING THE REPRESENTATIVE OF THE
SEXUAL OFFENDERS ASSESSMENT BOARD TO TESTIFY TO
ALLEGATIONS OF ABUSE IN WRITTEN RECORDS,
INCLUDING POLICE REPORTS AND THE AFFIDAVIT OF
PROBABLE CAUSE, WHEN SUCH ALLEGATIONS HAD NOT
BEEN ESTABLISHED BY TESTIMONY AT THE SVP HEARING,
NOR BY ADMISSION OF [Appellant], TO BE FACTS OF THE
CASE.
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the conviction, but are constrained to vacate the sentence and remand this
case for resentencing.
We summarize the procedural history of this appeal.3 On April 27,
2012, Appellant was charged with numerous counts of aggravated indecent
assault, corruption of minors, indecent assault, and endangering the welfare
of children. The Commonwealth alleged that Appellant sexually abused two
of his children, B.E. and A.E. (collectively “Complainants”), at their residence
5. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
OR ERRED AS A MATTER OF LAW IN FAILING TO GRANT
RECONSIDERATION OF ITS FINDING THAT [Appellant] IS
A SEXUALLY VIOLENT PREDATOR.
6. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
OR ERRED AS A MATTER OF LAW IN PERMITTING
HEARSAY EVIDENCE AND PRIOR ALLEGED BAD ACTS INTO
EVIDENCE.
7. WHETHER THE TRIAL COURT ERRED AS A MATTER OF
LAW AND ABUSED ITS DISCRETION IN FAILING TO
APPOINT A PSYCHOTHERAPIST FOR [Appellant’s]
EVALUATION.
8. WHETHER THE TRIAL COURT ERRED AS A MATTER OF
LAW AND ABUSED ITS DISCRETION IN FAILING TO GRANT
[Appellant’s] MOTION FOR RECUSAL.
9. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION
AND ERRED AS A MATTER OF LAW IN FAILING TO GRANT
THE MOTION FOR AN ARREST OF JUDGMENT, JUDGMENT
FOR ACQUITTAL, AND/OR MOTION FOR A NEW TRIAL AS
THE VERDICTS WERE CONTRARY TO THE WEIGHT OF THE
EVIDENCE AND SUFFICIENCY OF THE EVIDENCE.
Appellant’s Brief at 3-5.
3
We review the evidence in this case in detail below.
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in Pennsylvania (“Incident 1”) and in a car near a grocery store (“Incident
2”), after moving from Idaho to Pennsylvania in November or December
2009.
On December 11, 2012, the Commonwealth filed a notice to admit
evidence under the “Tender Years Statute.” See 42 Pa.C.S. § 5985.1(b).
On April 16, 2013, Appellant filed a motion to recuse the trial judge,
alleging, inter alia, the judge had presided over his family court matters,
including a proceeding to terminate his parental rights to Complainants, and
had exhibited bias in its decision in that matter. On May 6 and 7, 2013,
respectively, the Commonwealth filed a Pa.R.E. 404 notice of intent to admit
“prior bad acts” and an amended Tender Years Statute notice. On May 14,
2013, the trial court denied Appellant’s request for recusal. The court
reserved its rulings on the Commonwealth’s pretrial motions.
Appellant and Codefendant proceeded to a joint jury trial beginning on
July 11, 2013.4 At trial, Complainants testified from a remote location.5
Immediately after Complainants’ testimony, Codefendant’s counsel sought
an offer of proof. The Commonwealth requested rulings to permit
Complainants’ foster mother (“Foster Mother”) and a county Children and
Youth Services (“CYS”) caseworker, Sherry Bradshaw, to testify about B.E.’s
4
Appellant was represented by privately-retained counsel.
5
At the time of trial, B.E. and A.E. were twelve and ten years old,
respectively.
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prior reports of abuse by Appellant. The trial court excused the jury for the
day, conducted hearing on the proffer, and ruled the witnesses’ testimony
was admissible under the Tender Years Statute.
On July 23, 2013, the jury found Appellant guilty of four counts of
aggravated indecent assault and two counts of corruption of minors for
Incident 2.6 The jury acquitted Appellant of all charges related to the
alleged abuse in Incident 1 and the indecent assault and endangering the
welfare of children charges related to Incident 2.
The trial court ordered the preparation of a presentence report and an
assessment by the Sexual Offenders Assessment Board (“SOAB”). Two days
later, on July 25, 2013, the Commonwealth filed a notice of its intent to seek
mandatory minimum sentences for “offenses against infant persons.” See
42 Pa.C.S. § 9718(a)(3). On December 5, 2013, after receiving a copy of
the SOAB assessment, Appellant filed a motion requesting the appointment
of a psychotherapist.
On January 6, 2014, the trial court convened a joint SVP and
sentencing hearing. It reserved ruling on Appellant’s motion for
appointment of a psychotherapist and heard the SOAB assessor’s testimony.
The court then denied Appellant’s motion for the appointment of an expert.
N.T., SVP/Sentencing Hr’g, 1/6/14, at 45-46. At the conclusion of the
6
The jury also found Codefendant guilty of two counts of endangering the
welfare of children.
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hearing, the court found Appellant to be an SVP and ordered an aggregate
term of twenty-to-forty years’ imprisonment, which consisted of (1) two
mandatory ten-to twenty-year sentences to run consecutively, and (2) two
one-half-to-one year sentences for corruption of minors, ordered to run
concurrently.
Appellant, on January 16, 2014, filed timely post-sentence motions,
which the trial court denied on January 21, 2014.7 Appellant’s counsel, on
February 10, 2014, filed a motion to withdraw his appearance, asserting
Appellant wished to appeal, but could not afford his services. Mot. to
Withdraw Appearance, 2/10/14, at ¶ 4. On February 19th, the court
granted Appellant’s counsel leave to withdraw and appointed new counsel.
On March 14, 2014, the court vacated the prior appointment and appointed
present counsel to represent Appellant. The court’s March 14th order
stated, “Appointed counsel is given ninety (90) days leave nunc pro tunc in
which to file a Notice of Appeal in this matter.” Order, 3/14/14. Appellant,
though present counsel, filed a notice of appeal on June 9, 2014, within
ninety days of the court’s March 14th order,8 and subsequently complied
with the court’s order to submit a Pa.R.A.P. 1925(b) statement.
7
The trial court filed a corrected sentencing orders on January 31, 2014, to
indicate it found Appellant to be an SVP.
8
We acknowledge that this appeal is, on its face untimely. See Pa.R.A.P.
903(a); Pa.R.Crim.P. 720(A)(2)(a). However, we find that the complications
in the appointment of present counsel and present counsel’s reliance on the
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Appellant directs his first two claims to the sufficiency and weight of
the evidence at trial. See Appellant’s Brief at 28-29. Our review reveals
these claims are waived for the failure to develop meaningful appellate
arguments, but are meritless in light of the record.9
“The Pennsylvania Rules of Appellate Procedure require that each
question an appellant raises be supported by discussion and analysis of
pertinent authority, and failure to do so constitutes waiver of the claim.”
Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super.) (en
banc), appeal denied, 104 A.3d 1 (Pa. 2014) (citing, inter alia, Pa.R.A.P.
2119(a)). “‘[T]his Court will not act as counsel and will not develop
arguments on behalf of [an appellant].’” Id. (citations omitted).
Instantly, Appellant’s sufficiency and weight of the evidence
arguments lack any discussion. See Appellant’s Brief at 28-29. Further, his
bare assertion that his sufficiency and weight of the evidence arguments are
“intertwined” with his prior claims is misleading,10 and, in any event,
trial court’s setting of a ninety-day period to take an appeal constitute
breakdowns in the operation of the court that excuses the untimeliness of
the notice of appeal. See Commonwealth v. Coolbaugh, 770 A.2d 788,
791 (Pa. Super. 2001).
9
Our review of the record was necessitated, in part, by Appellant’s
argument that the trial court was biased and abused its discretion when
denying his motion for recusal.
10
For example, the majority of Appellant’s brief focuses on the trial court’s
SVP and sentencing determinations, as well as the alleged bias of the trial
court. See Appellant’s Brief at 10-21, 23-28. Appellant discusses the trial
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misapprehend the relevant standards of review.11 Appellant’s Brief at 29.
Under these circumstances, waiver is appropriate. See Buterbaugh, 91
A.3d at 1262.
evidence presented at trial in one argument challenging the admission of
hearsay and prior bad acts evidence. Id. at 21-23.
11
Our standards for reviewing challenges to the sufficiency and weight of
the evidence are well settled.
A claim challenging the sufficiency of the evidence is a
question of law. Evidence will be deemed sufficient to
support the verdict when it establishes each material
element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Where the
evidence offered to support the verdict is in contradiction
to the physical facts, in contravention to human experience
and the laws of nature, then the evidence is insufficient as
a matter of law. When reviewing a sufficiency claim the
court is required to view the evidence in the light most
favorable to the verdict winner giving the prosecution the
benefit of all reasonable inferences to be drawn from the
evidence.
A motion for new trial on the grounds that the verdict is
contrary to the weight of the evidence, concedes that there
is sufficient evidence to sustain the verdict. Thus, the trial
court is under no obligation to view the evidence in the
light most favorable to the verdict winner. An allegation
that the verdict is against the weight of the evidence is
addressed to the discretion of the trial court. A new trial
should not be granted because of a mere conflict in the
testimony or because the judge on the same facts would
have arrived at a different conclusion. A trial judge must
do more than reassess the credibility of the witnesses and
allege that he would not have assented to the verdict if he
were a juror. Trial judges, in reviewing a claim that the
verdict is against the weight of the evidence do not sit as
the thirteenth juror. Rather, the role of the trial judge is
to determine that “notwithstanding all the facts, certain
facts are so clearly of greater weight that to ignore them
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A review of the record nonetheless reveals no basis to disturb the
verdicts. The Commonwealth’s trial evidence established the following. In
November of 2009, Appellant, Codefendant, Complainants, and
Complainant’s siblings were living in Idaho. N.T. Trial, 7/12/13, at 12-13.
or to give them equal weight with all the facts is to deny
justice.”
Commonwealth v. Widmer, 744 A.2d 751-52 (Pa. 2000) (citations and
footnote omitted). “Appellate review of a weight claim is a review of the
exercise of discretion, not of the underlying question of whether the verdict
is against the weight of the evidence.” Id. at 753 (citation omitted).
Aggravated indecent assault is defined as follows:
(a) Offenses defined.— . . . a person who engages in
penetration, however slight, of the genitals 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;
* * *
(7) the complainant is less than 13 years of age; or
(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)
and the complainant is less than 13 years of age.
18 Pa.C.S. § 3125(a)(1), (7), (b).
Corruption of minors is defined, in relevant part, as: “whoever, being
of the age of 18 years and upwards, by any act corrupts or tends to corrupt
the morals of any minor less than 18 years of age . . . commits a
misdemeanor of the first degree.” 18 Pa.C.S. § 6301(a)(1).
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On November 12, 2009, Officer Tosha Williams responded to their Idaho
residence for a report of “child abuse,” and Codefendant informed the officer
that Appellant sexually abused Complainants.12 Id. at 15-16. Detective
Angela Munson testified she personally interviewed Appellant in Idaho, while
Complainants were interviewed by social workers and medical personnel.13
Id. at 34, 40.
Detective Munson testified Appellant denied the sexual abuse
allegations, but observed “very obvious sweating around his hairline and his
appearance was flushed” after she confronted him with the allegation. Id. A
recording of Detective Munson’s interview was played to the jury during the
Commonwealth’s rebuttal case. N.T. Trial, 7/22/13, at 40.
12
Appellant’s counsel requested an offer of proof regarding the relevance of
Officer Williams’s testimony. N.T. Trial, 7/12/13, at 10. The Commonwealth
asserted that it intended to elicit evidence regarding the allegations against
Appellant in Idaho to establish Codefendant’s “state of mind” for the charges
of endangering the welfare of children. Id. at 11.
13
Appellant’s counsel objected before Detective Munson testified, asserting
her testimony would be “irrelevant,” “immaterial,” and “prejudicial.” N.T.
Trial, 7/12/13, at 26. The Commonwealth responded that Detective
Munson’s testimony regarding Codefendant’s statements to her was
admissible hearsay under the “party opponent” exception and would also
establish Codefendant’s awareness of the investigation into Appellant. Id.
The Commonwealth further stated that Detective Munson would testify about
her interview of Appellant and his denial of the allegations. Id. at 28. The
trial court overruled Appellant’s initial objections, but later sustained
Appellant’s counsel’s hearsay objection to the Detective’s testimony that B.E.
reported being sexually abused in Idaho. Id. at 28, 34.
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Appellant, Codefendant, Complainants, and Complainants’ siblings
moved to Pennsylvania in November or December 2009. N.T. Trial,
7/15/13, at 15-16. They initially lived at a family member’s residence
(“Residence 1”), but in May 2010, they moved to their own home
(“Residence 2”). Id.
A Pennsylvania investigation of the sexual abuse of Complainants
began on October 29, 2010. At 3:21 a.m. that morning, Police Officer
Charles Brown received a report of a domestic disturbance at Residence 2.
N.T., 7/12/13, at 64. The officer went to the residence, talked to Appellant
on the back porch, and went inside the home to talk with Codefendant. The
officer testified at trial that Codefendant stated she and Appellant had a
verbal dispute. Id. Codefendant told the officer that Appellant had
molested B.E. in Idaho, there was a case pending, and “that’s why the two
were in Pennsylvania now.” Id. at 65.
Shortly before 2 p.m. that afternoon, Officer Richard Gehring received
a 911 dispatch to Residence 1 for a suicide attempt. 14 Id. at 75-77, 83.
The officer found Appellant inside that home. Id. at 77. The officer testified
at trial that Appellant was banging his head, asked the officer to shoot him,
and stated he did not want to live. Id. at 78-79. The officer took Appellant
14
Codefendant and B.E. were outside in a car near Residence 1.
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into custody, transported him to a hospital for a mental evaluation, and filed
an involuntary commitment form against him. Id. at 79, 81.
That evening, Dawn Walker, a CYS supervisor, and Sherry Bradshaw,
a CYS caseworker, went to Residence 2 to talk with Codefendant. Id. at 87,
89, 129-30. They informed Codefendant of the referral for sexual abuse.
Id. at 89, 131. Walker and Bradshaw testified that Codefendant admitted
Appellant was the subject of a sexual abuse charge in Idaho. Id. Walker
and Bradshaw discussed a safety plan for Codefendant to have no contact
with Appellant, to contact law enforcement upon his discharge from the
hospital, and to file a protection from abuse order against him. Id. at 90,
133-34.
On November 2, 2010, four days after the initial events, CYS received
another referral15 and placed Complainants and their siblings in foster care.
Id. at 97-99. One day later, on November 3, 2010, Appellant wrote a note
stating he “molested [B.E.]” in Idaho, but he “never ever molested [her] at
any other time or place ever again which the state of Pennsylvania claims I
did.” Id. at 225. He stated that the allegations of abuse were “coerced.”
Id. Appellant also wrote that Codefendant was unaware of the abuse and
requested that she be allowed to keep custody of Complainants and the
15
The circumstances and content of the November 2, 2010 referral is not
apparent from the record because the trial court sustained Appellant’s
counsel’s objection to hearsay. N.T. Trial, 7/12/13, at 99.
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other children. Id. That same day, Appellant, who was still hospitalized,
“took a pencil and shoved it up his right nostril until he heard a ‘pop[.’]” Id.
at 217. He was transferred for medical treatment.
Meanwhile, on November 3, 2010, the Children’s Advocacy Center
(“CAC”) conducted initial interviews of Complainants, at which Complainants
denied the sexual abuse allegations. Id. at 123. The November 3, 2010
interviews were recorded and played to the jury.16 N.T. Trial, 7/22/13, at
5-6.
Foster Mother testified at trial that approximately one week after the
initial CAC interview, A.E. “told [her] some things,” which prompted Foster
Mother to contact CYS. N.T. Trial, 7/12/13, at 123. CYS arranged for CAC
to conduct a second interview of A.E. Id. While A.E. was interviewed by
CAC, B.E. asked where A.E. was. Id. Foster Mother “told [her] and then
that’s when [B.E.] started to tell [Foster Mother] about things that happened
to her.” Id. When A.E. came home from the interview, she told B.E. she
“had to go to that place because they were asking [her] questions about
[Appellant].” Id. at 124. A.E. “told [B.E.] in length where she went and
then that’s when they started talking about what happened with
[Appellant].” Id. at 123.
16
The trial transcript reveals that the jury heard or viewed recorded CAC
interviews from November 3, 2010, and April 17, 2012. The record does not
include those recordings.
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Foster Mother also testified that B.E. disclosed an incident to her.17
B.E. told her she “was in her bedroom at home[,]” Appellant “was drunk[,]”
and he “pulled her out of bed.” Id. at 117. Appellant “dragged her into the
bedroom and he pulled down his pants and he made her rub his private
part.” Id. at 118. Foster Mother also testified that B.E. disclosed Incident
2. B.E. told her that they “had gone to either Wal-mart or Giant . . . near a
highway.” Id. at 121. When Codefendant went inside to go shopping,
Appellant “stuck his finger inside of [B.E.] and then did it to A.E. . . . .” Id.
On December 14, 2010, Sherry Bradshaw conducted a CYS visit with
Complainants at the foster home.18 Bradshaw testified B.E. told her about
Incident 2. Specifically, B.E. stated she and A.E. “were behind the Giant by
the highway [and Appellant] stuck his fingers in her and [A.E.].” Id. at 101.
B.E. told Bradshaw the abuse occurred in the “family van.” Id.
On April 17, 2012, eight days before the instant charges were filed
against Appellant, CYS arranged for additional CAC interviews of
Complainants. The April 17, 2012 interviews were recorded and played to
17
As discussed above, Appellant’s counsel objected to Foster Mother’s
testimony regarding B.E.’s reports of abuse, which the trial court overruled
after an in-camera hearing. N.T. Trial, 7/11/13, at 124; N.T., In Camera
Proceeding, 7/11/13 at 15.
18
As discussed above, Appellant’s counsel’ objected to Bradshaw’s testimony
regarding B.E.’s reports of abuse, which the trial court overruled after an in-
camera hearing. N.T. Trial, 7/11/13, at 124; N.T. In-Camera Proceeding,
7/11/13, at 35.
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the jury during the Commonwealth’s case in rebuttal. N.T. Trial, 7/22/13,
at 41.
Complainant’s trial testimony regarding Incident 1 and 2 was as
follows.19 B.E. described Incident 1, testifying that “one time[,]” she was on
the top of a bunk bed when Appellant tried to pull off her pants. N.T. Trial,
7/11/13, at 40. He then “pulled [her] out of [her] bed and . . . brought her
like through the hallway to his room and then . . . started like asking me to
like rub his private part.” Id. at 40. She refused and “he just like put my
hand on his private part.” Id. He then took her to the bathroom, “used a
rag to wipe his private part,” “tried to make [her] rub it again[,]” and told
her that “now it was clean.” Id. at 46. When asked whether this incident
occurred in Pennsylvania, B.E. initially answered, “I’m not sure[,]” 20 but later
testified, “No.” Id. at 47-48.
The Commonwealth asked B.E. whether Appellant touched her in
Pennsylvania, and B.E. testified as follows about Incident 2. Appellant,
Codefendant, and Complainants, went to the grocery store. Id. at 50.
Codefendant exited the car and went inside. Id. Appellant drove around to
“the back” and came around to the back of the car. Id. He tried to pull
19
Complainants were the Commonwealth’s first witnesses at trial.
20
B.E. was unable to provide circumstantial evidence to determine whether
Incident 1 occurred in Idaho or Pennsylvania, such as her age or grade at
the time. N.T. Trial, 7/11/13, at 48. She also testified she had bunk beds
in Idaho and in Residence 2 in Pennsylvania. Id. at 47-48.
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down their pants and “stick his finger inside of like [their] private part . . . .”
Id. He told them “he was just trying to help [them] and check [them].” Id.
Additionally, the Commonwealth asked whether Appellant “touch[ed]
her like that other times after [she] moved to Pennsylvania,” and she
responded, “No.” Id. at 51. The Commonwealth, over Appellant’s
counsel’s objections, asked B.E. whether Appellant “touched [her] in
Idaho.”21 Id. at 55. She responded, “I don’t remember.” Id. When asked
by the Commonwealth if “anything else like that” happened in Idaho, she
answered, “No.” Id. at 54. She also did not remember talking to the police
in Idaho. Id. at 55.
A.E. testified that Appellant “stuck his finger in our private part” and
witnessed Appellant doing so to B.E., and to two other siblings when
changing their diapers. Id. at 100. She testified that the abuse occurred
at Residence 1, Residence 2, and “once at the store.” Id. at 100-01. She
described Incident 2 as follows: “[W]e let [Codefendant] get out of the car
and then [Appellant] drove to the back of the lot and then he just came to
the back of the car and he pulled our pants down and he put his finger in our
private part.” Id. at 101.
21
Appellant’s counsel objected to the Commonwealth questioning of B.E.
regarding Idaho, asserting that such evidence was irrelevant and did not
“qualify as 404(b) material.” N.T., Trial 7/11/13, at 51-52. In support, he
argued B.E. denied the abuse occurred in Idaho. Id. at 52.
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Appellant testified on his own behalf and denied abusing Complainants.
N.T., 7/15/13, at 139-40. He stated the initial argument with Codefendant
on October 29, 2010, involved a “discussion about financial problems.” Id.
at 141. He stated the latter incident on that day occurred after he relapsed
on alcohol. Id. at 142. He also stated he wrote the note admitting that
abuse occurred in Idaho because Codefendant told him he needed to
“confess” for Codefendant could retain custody. Id. at 178-79.
In light of the foregoing record, and mindful of our standards of
review, we discern no merit to Appellant’s arguments that the evidence was
insufficient to sustain his convictions for Incident 2, or that the trial court
abused its discretion when denying his request for a new trial. We reiterate
that a victim’s testimony alone may establish each element of the offense.
See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160-61 (Pa. Super.
2007); Commonwealth v. Filer, 846 A.2d 139, 141-42 (Pa. Super. 2004).
Moreover, we agree with the trial court that the jury was entitled to resolve
the issues of fact and credibility before it and that its guilty verdicts as to
Incident 2 did not “shock the conscience.” See Widmer, 744 A.2d at 751-
52. Thus, Appellant’s sufficiency and weight of the evidence claims warrant
no relief.
Appellant’s third claim focuses on the trial court’s evidentiary rulings at
trial. Specifically, he argues that the testimony regarding B.E.’s prior
reports of abuse did not qualify for a hearsay exception because the
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statements “lacked detail, spontaneity, consisten[cy, and] repetition . . .” as
well as “time, etc.” Appellant’s Brief at 22. According to Appellant, “[t]he
statements were at most cumulative and [introduced] for the sole issue of
corroboration.” Id. Appellant also argues the allegations of sexual abuse in
Idaho constituted “prior bad acts,” “testified through hearsay,” and “could be
nothing more than prejudicial.” Id. at 22-23. He suggests B.E. testified
“these alleged acts never occurred” in Idaho. Id. at 23.
The trial court did not address a Tender Years Statute argument in its
Pa.R.A.P. 1925(a) opinion. See Trial Ct. Op., 9/5/14, at 13. It observed
Appellant’s Pa.R.A.P. 1925(b) statement raised the following claim: “[T]he
Trial Court abused its discretion or erred as a matter of law in permitting
hearsay evidence.” Id. (quoting Appellant’s Pa.R.A.P. 1925(b) statement,
6/30/14, at ¶ 5). The court declined to speculate regarding the basis of
Appellant’s hearsay claim and found any subsidiary argument waived. Id.
The trial court also found Appellant’s Rule 1925(b) statement challenging the
admission of prior bad acts vague, but asserted its rulings were proper. Id.
at 31; see also Appellant’s Pa.R.A.P. 1925(b) Statement at ¶ 13 (“The Trial
Court erred as a matter of law and abused its discretion in permitting prior
alleged bad acts in evidence.”).
Pennsylvania Rule of Appellate Procedure 1925(b)(4)(ii) states, “The
Statement shall concisely identify each ruling or error that the appellant
intends to challenge with sufficient detail to identify all pertinent issues for
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the judge.” Pa.R.A.P. 1925(b)(4)(ii). Rule 1925(b)(4)(vii) provides “Issues
not included in the Statement and/or not raised in accordance with the
provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii).
Instantly, we are constrained to agree with the trial court that
Appellant’s Pa.R.A.P. 1925(b) lacked adequate specificity to discern his
intended challenge to the admission of “hearsay” evidence under the Tender
Years Statute. Appellant’s present counsel had the opportunity to review the
trial transcripts before filing a Rule 1925(b) statement, and the bases of the
trial court’s various hearsay ruling were evident in the record. Nonetheless,
the Rule 1925(b) statement did not identify the Tender Years Statute or any
factor related to that statute. Thus, we are compelled to conclude that this
claim has been waived. See Pa.R.A.P. 1925(b)(4)(ii), (vii).
As to Appellant’s claim regarding “prior bad acts,” we agree with the
trial court that the Pa.R.A.P. 1925(b) statement was also vague. However,
our review of the record reveals it provides adequate context for the trial
court to identify Appellant’s intended arguments vis-à-vis the alleged sexual
abuse in Idaho.22 Therefore, we decline to find waiver and will address this
issue.
Pennsylvania Rule of Evidence 404 provides, in relevant part:
22
Specifically, Appellant objected to two major areas involving his alleged
prior bad acts: the sexual abuse allegations in Idaho and references to his
abuse of Complainants’ siblings. The references to the alleged abuse of
Complainants’ siblings was fleeting.
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(b) Crimes, Wrongs or Other Acts.
(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.
(3) Notice in a Criminal Case. In a criminal case the
prosecutor must provide reasonable notice in advance
of trial, or during trial if the court excuses pretrial notice
on good cause shown, of the general nature of any such
evidence the prosecutor intends to introduce at trial.
Pa.R.E. 404(b)(1)-(3).
In Commonwealth v. Knowles, 637 A.2d 331 (Pa. Super. 1994),
which was decided before the promulgation of the Rules of Evidence, 23 the
defendant was convicted of sexually abusing the complainant. The
defendant appealed claiming that the admission of the complainant’s
testimony that the defendant abused her five years earlier in Texas was
improper. This Court affirmed, reasoning:
In general, evidence of other wrongful conduct not
charged in the information on which the defendant is being
23
Although Knowles predates the Pennsylvania Rules of Evidence, Rule
404(b) “embodies the common scheme or plan exception to the prohibition
against use of prior crimes evidence.” See Commonwealth v. Aikens, 990
A.2d 1181, 1181 n.2 (Pa. Super. 2010). Therefore, we may rely such cases
even though they were filed before enactment of those rules. Id.- 20 -
J. S27041/15
tried is inadmissible at trial except in certain limited
circumstances.
* * *
. . . Remoteness . . . is only one factor to be considered
when determining the admissibility of the evidence.
Whether evidence is too remote in time to be probative,
moreover, is largely within the discretion of the trial court.
[The defendant’s] conduct in Texas was not a single,
isolated act. He and [the complainant] were alone every
night for a week, and the sexual assaults continued over a
six day period. They were committed by one who normally
did not have the opportunity to become intimate with [the
complainant]. The acts stopped when [the complainant]
returned to her parents and, of course, after she moved
with her parents to Pennsylvania. After [the defendant]
also moved to Pennsylvania, however, the sexual abuse
was resumed when [the defendant] had an opportunity to
be alone with [her]. We conclude, therefore, that the
evidence was relevant to show that [the defendant] had a
continuing passion for illicit sexual contact with [the
complainant] and acted on that passion when the
opportunity arose.
Knowles, 637 A.2d at 578-79 (citations omitted).
In Aikens, 990 A.2d at 1181, the defendant was convicted of sexually
assaulting the complainant after watching a pornographic movie with her.
At trial, the defendant’s daughter testified the defendant engaged in similar
conduct with her seventeen years earlier, when she was a similar age as the
complainant. After this Court affirmed the judgment of sentence, the
defendant claimed in a PCRA petition that his appellate counsel was
ineffective for failing to preserve a direct appeal challenge to the admission
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of the prior bad acts testimony. This Court affirmed the denial of PCRA
relief, reasoning, in relevant part:
Generally, evidence of prior bad acts or unrelated
criminal activity is inadmissible to show that a
defendant acted in conformity with those past acts or
to show criminal propensity. However, evidence of
prior bad acts may be admissible when offered to
prove some other relevant fact, such as motive,
opportunity, intent, preparation, plan, knowledge,
identity, and absence of mistake or accident. In
determining whether evidence of other prior bad acts
is admissible, the trial court is obliged to balance the
probative value of such evidence against its
prejudicial impact.
In the present case, we conclude that the evidence in
question was admissible under the common scheme design
or plan exception. . . . In [Commonwealth v. Lukitsch,
680 A.2d 877 (Pa. Super. 1996), a pre-Rules of Evidence
case], the defendant was convicted of sexually molesting
his stepdaughter. At trial, the court had permitted the
defendant’s biological daughter to testify about sexual
abuse that the defendant had perpetrated on her when she
was a child, even though that abuse ended nineteen years
before trial and began twenty-four years before trial. The
defendant claimed that the prior assaults were too remote.
We held that the prior incidents were not too distant since
there was only a six-year lapse between the previous
assaults and the inception of the defendant’s abuse of the
victim in that case.
We held that “while remoteness in time is a factor to be
considered in determining the probative value of other
crimes evidence under the theory of common scheme, plan
or design, the importance of the time period is inversely
proportional to the similarity of the crimes in question.”
After analyzing the facts relating to the defendant’s abuse
of his daughter and the victim in question, we concluded in
Luktisch that the two incidents were factually similar and
that the defendant’s prior conduct was admissible under
the common scheme or plan exception to the prohibition
against introduction of prior bad acts.
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In the case at bar, we believe that the fact pattern
involved in the two incidents was markedly similar. In
both cases, the victims were of like ages . . . fourteen
years old . . . and . . . fifteen years old. Both victims
were [the defendant’s] biological daughters. [The
defendant] initiated the contact during an overnight visit in
his apartment. He began the sexual abuse by showing the
girls pornographic movies. The assaults occurred in bed at
night. While [the defendant] raped [his daughter] and
indecently assaulted [the complainant], [the complainant]
stopped [the defendant] from disrobing her and
committing the more serious sexual assault. In addition,
[the defendant] mimicked the grinding movements of
sexual intercourse on [the complainant] in order to
sexually gratify himself. These matching characteristics
elevate the incidents into a unique pattern that
distinguishes them from a typical or routine child-abuse
factual pattern. Hence, we reject [the defendant’s]
position that we are pigeonholing sexual abuse cases to
such an extent that any prior instance of child abuse would
be admissible in a subsequent child abuse prosecution. . .
. [T]he similarities at issue herein were “not confined to
insignificant details that would likely be common elements
regardless of who committed the crimes.”
Aikens, 990 A.2d at 1185-86 (citations omitted).
In light of the foregoing principles, we discern no merit to Appellant’s
argument that the trial court erred in admitting references to the allegations
of abuse in Idaho as evidence of identity and motive. We further note that
the evidence was also necessary to establish whether the alleged abuse in
Incident 1 occurred in Pennsylvania or Idaho in light of B.E.’s testimony.
Thus, Appellant’s suggestion that the admission of the evidence “could be
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nothing more than prejudicial” lacks merit.24 Moreover, Appellant’s selective
reading of a single passage from B.E.’s testimony to assert that abuse did
not occur in Idaho did not affect the admissibility of the evidence under Rule
404(b)(2), but rather raised a matter for the jury’s determination.
Appellant next challenges the legality of the court’s aggregate twenty-
to-forty year sentence. He claims Section 9718(a)(3) is unconstitutional in
24
The trial court charged the jury with the appropriate use of the evidence
from Idaho. See N.T. Trial, 7/23/13, at 110-11.
You heard evidence tending to prove that [Appellant] is
guilty of an offense that occurred in Idaho for which he is
not on trial. I am speaking about the testimony that you
heard regarding the incidents that occurred in the State of
Idaho.
This evidence is before you for a limited purpose, that is
for the purpose of tending to show motive, intent, plan,
knowledge, identity, absence of mistake. This evidence
must not be considered by you in any way other than the
purposes I just stated.
You must not regard this evidence as showing that the
defendant is a person of bad character or criminal
tendencies from which you might be inclined to infer guilt
for the things that are alleged to have occurred here in
Monroe County.
The evidence is not admissible to show action and
conformity with what is alleged to have occurred in the
State of Idaho.
Id. We note Appellant refers to the court’s statement regarding “evidence
tending to prove that [Appellant] is guilty of an offense that occurred in
Idaho” as evidence of bias.
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light of Alleyne and its Pennsylvania progeny. Appellant’s Brief at 10-12.
Relief is due.
Our standards of review are as follows:
“A challenge to the legality of a sentence . . . may be
entertained as long as the reviewing court has
jurisdiction.” It is also well-established that “[i]f no
statutory authorization exists for a particular sentence,
that sentence is illegal and subject to correction.” “An
illegal sentence must be vacated.” “Issues relating to the
legality of a sentence are questions of law[.] . . . Our
standard of review over such questions is de novo and our
scope of review is plenary.”
Commonwealth v. Wolfe, 106 A.3d 800, 801-02 (Pa. Super. 2014)
(citations omitted), appeal granted, 121 A.3d 433 (Pa. 2015).25
In Wolfe, this Court vacated a sentence imposed under Section
9718(a)(1). In that case, the defendant was convicted of involuntary
deviate sexual intercourse—complainant under sixteen years of age, 18
Pa.C.S. § 3123(a)(7), and sentenced under the mandatory minimum
provisions in Section 9718(a)(1) and (c), which stated:
25
The Pennsylvania Supreme Court granted allowance of appeal on the
following question:
Whether the Superior Court of Pennsylvania’s sua sponte
determination that the ten year mandatory minimum
sentence for involuntary deviate sexual intercourse
(Person less than 16 years) imposed pursuant to 42
Pa.C.S.[ ] § 9718(a)(1) is facially unconstitutional is
erroneous as a matter of law?
Wolfe, 121 A.3d 433 (Pa. 2015).
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(a) Mandatory sentence.—
(1) A person convicted of the following offenses when
the victim is less than 16 years of age shall be
sentenced to a mandatory term of imprisonment as
follows:
...
18 Pa.C.S. § 3123 (relating to involuntary deviate
sexual intercourse)—not less than ten years.
...
(c) Proof at sentencing.—The provisions of this section
shall not be an element of the crime, and notice of the
provisions of this section to the defendant shall not be
required prior to conviction, but reasonable notice of the
Commonwealth's intention to proceed under this section
shall be provided after conviction and before sentencing.
The applicability of this section shall be determined at
sentencing. The court shall consider any evidence
presented at trial and shall afford the Commonwealth and
the defendant an opportunity to present any necessary
additional evidence and shall determine, by a
preponderance of the evidence, if this section is applicable.
Id. at 801-02 (quoting 42 Pa.C.S. § 9718(a)(1), (c)) (emphasis added).
The Wolfe Court summarized the legal principles applicable to an
Alleyne challenge:
In Alleyne, the Supreme Court held that “facts that
increase mandatory minimum sentences must be
submitted to the jury” and must be found beyond a
reasonable doubt. Alleyne is an extension of the
Supreme Court’s line of cases beginning with Apprendi
v. New Jersey, 530 U.S. 466 . . . (2000)[ and held:]
It is impossible to dissociate the floor of a
sentencing range from the penalty affixed to the
crime. Indeed, criminal statutes have long
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specified both the floor and ceiling of sentence
ranges, which is evidence that both define the
legally prescribed penalty. This historical practice
allowed those who violated the law to know, ex
ante, the contours of the penalty that the
legislature affixed to the crime—and comports
with the obvious truth that the floor of a
mandatory range is as relevant to wrongdoers as
the ceiling. A fact that increases a sentencing
floor, thus, forms an essential ingredient of the
offense.
Moreover, it is impossible to dispute that facts
increasing the legally prescribed floor aggravate
the punishment. Elevating the low-end of a
sentencing range heightens the loss of liberty
associated with the crime: the defendant’s
expected punishment has increased as a result of
the narrowed range and the prosecution is
empowered, by invoking the mandatory
minimum, to require the judge to impose a higher
punishment than he might wish. Why else would
Congress link an increased mandatory minimum
to a particular aggravating fact other than to
heighten the consequences for that behavior?
This reality demonstrates that the core crime and
the fact triggering the mandatory minimum
sentence together constitute a new, aggravated
crime, each element of which must be submitted
to the jury.
In Commonwealth v. Newman, 99 A.3d 86 (Pa.
Super. 2014) (en banc), this Court confronted the same
type of challenge to the mandatory minimum sentence
found at Section 9712.1, regarding the proximity between
drugs and guns. Section 9712.1 had the same format as
Section 9718 insofar that one subsection contains the
additional fact that triggers the mandatory penalty, and
another subsection states that this fact shall be found by
the trial court by a preponderance of the evidence at
sentencing.
The Newman Court first concluded that the defendant’s
sentence was illegal in light of Alleyne and required this
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Court to vacate and remand for resentencing. However,
this Court further noted that Alleyne issues are subject to
harmless error analysis but that the Alleyne issue in
Newman was not harmless. Finally, this Court rejected
the Commonwealth’s argument that, if the error was not
harmless, the appropriate remedy would be to remand to
the trial court to empanel a second sentencing jury.
Specifically, in rejecting this argument, the Newman
Court concluded that Section 9712.1 in its entirety must be
struck down as unconstitutional in light of Alleyne,
concluding that its subsections were not severable.
The Commonwealth’s suggestion that we remand for
a sentencing jury would require this court to
manufacture whole cloth a replacement enforcement
mechanism for Section 9712.1; in other words, the
Commonwealth is asking us to legislate. We
recognize that in the prosecution of capital cases in
Pennsylvania, there is a similar, bifurcated process
where the jury first determines guilt in the trial
proceeding (the guilt phase) and then weighs
aggravating and mitigating factors in the sentencing
proceeding (the penalty phase). However, this
mechanism was created by the General Assembly
and is enshrined in our statutes at 42 Pa.C.S.[ ] §
9711. We find that it is manifestly the province of
the General Assembly to determine what new
procedures must be created in order to impose
mandatory minimum sentences in Pennsylvania
following Alleyne. We cannot do so.
* * *
As noted above, the mandatory minimum statute in this
case contains the same format as the statutes struck down
as facially unconstitutional in Newman . . . . Following
Newman’s instructions, we are required to conclude
that Section 9718 is also facially unconstitutional.
We recognize that this specific case is unique insofar
that the additional fact triggering the mandatory sentence
is also contained as an element within the subsection of
[a] statute under which [the defendant] was convicted.
Therefore, in order to convict [the defendant] . . . , the
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Commonwealth was already required to prove beyond a
reasonable doubt that the victim was less than 16 years
old.
However, we are not concerned with [the defendant’s]
conviction in this appeal, only the imposition of the
mandatory minimum sentence.
Wolfe, 106 A.3d at 802-03, 805 (citations and footnotes omitted) (emphasis
added). Thus, although the Wolfe Court considered a sentence under
Section 9718(a)(1), it concluded that Section 9718, in its entirety, offended
the constitutional principles set forth in Alleyne and Newman. Id.
Instantly, Appellant, in relevant part, was convicted under 18 Pa.C.S.
§ 3125(b). The mandatory minimum provision is set forth in Section
9718(a)(3), and states:
(3) A person convicted of the following offenses shall be
sentenced to a mandatory term of imprisonment as
follows:
18 Pa.C.S. § 3121(c) and (d)--not less than ten years.
18 Pa.C.S. § 3125(a)(7)--not less than five years.
18 Pa.C.S. § 3125(b)--not less than ten years.
42 Pa.C.S. § 9718(a)(3) (emphasis added).
That Section 9718(a)(3) requires only a conviction for a predicate
offense without requiring the finding of an additional fact at sentencing
appears to distinguish it from Subsection (a)(1). Further, Section
9718(a)(3) was enacted in its current form in 2004, two years before the
now-unconstitutional fact-finding provision in Section 9718(c).
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Nevertheless, the practice of our Court has been to apply Alleyne broadly.
See, e.g., Commonwealth v. Young, 1653 EDA 2014 (unpublished
memorandum) (Pa. Super. Mar. 18, 2015), appeal denied, 123 A.3d 1062(Pa. 2015). But see Young, 123 A.3d at 1063 (Eakin, J., dissenting)
(suggesting “the Superior Court’s decision [in Young] affirming the
unconstitutionality of § 9718(a)(3) cannot be based on Commonwealth v.
Hopkins, ––– Pa. ––––, 117 A.3d 247 (2015), which deals with statutes
requiring proof of additional facts.”). Although reasonable minds may
disagree over whether Alleyne, Hopkins, Newman, and Wolfe apply with
equal force to Section 9718(a)(3), we are constrained to follow Wolfe’s
broad mandate and thus conclude the instant sentences imposed under are
illegal. Accordingly, we vacate the sentences and remand this matter for
resentencing.
Appellant’s fifth claim focuses on the trial court’s decision to impose
consecutive sentences was an abuse of discretion because it involved a
single criminal episode. We acknowledge Appellant also suggests that the
sentence was the result of the trial court’s bias. However, we are
constrained to conclude that no relief is due.
The procedures for determining whether to address the merits of
discretionary aspects of sentencing claim are well settled:
The right to appellate review of the discretionary aspects
of a sentence is not absolute, and must be considered a
petition for permission to appeal. An appellant must
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satisfy a four-part test to invoke this Court’s jurisdiction
when challenging the discretionary aspects of a sentence.
[W]e conduct a four-part analysis to determine: (1)
whether appellant has filed a timely notice of appeal;
(2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify
sentence; (3) whether appellant’s brief has a fatal
defect; and (4) whether there is a substantial
question that the sentence appealed from is not
appropriate under the Sentencing Code.
* * *
A substantial question will be found where an appellant
advances a colorable argument that the sentence imposed
is either inconsistent with a specific provision of the
Sentencing Code or is contrary to the fundamental norms
which underlie the sentencing process. At a minimum, the
Rule 2119(f) statement must articulate what particular
provision of the code is violated, what fundamental norms
the sentence violates, and the manner in which it violates
that norm.
* * *
We have stated that the imposition of consecutive
rather than concurrent sentences lies within the
sound discretion of the sentencing court. Long
standing precedent of this Court recognizes that 42
Pa.C.S.[ ] § 9721 affords the sentencing court
discretion to impose its sentence concurrently or
consecutively to other sentences being imposed at
the same time or to sentences already imposed. A
challenge to the imposition of consecutive rather
than concurrent sentences does not present a
substantial question regarding the discretionary
aspects of sentence. “We see no reason why [a
defendant] should be afforded a ‘volume discount’
for his crimes by having all sentences run
concurrently.”
Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014).
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Instantly, Appellant’s Rule 2119(f) statement suggests that the
consecutive nature of the mandatory minimum sentence rendered the
aggregate sentence “excessive.” Appellant’s Brief at 6. He does not allege
bias. See id. Accordingly, given the narrow claim set forth in his Rule
2119(f), we discern no substantial question warranting review. See Zirkle,
107 A.3d at 132. In any event, were we to address this issue, we would
note that although Appellant was found guilty of Incident 2, during which he
assault two victims. Thus, we discern no basis to conclude that the trial
court acted unreasonably when imposing consecutive sentences and
declining Appellant’s invitation to permit a “volume discount” on his crimes.
Cf. id.
Appellant next claims that the trial court erred in designating him SVP.
He argues the trial court erred in denying his motion for appointment of an
expert and violated on his right to present evidence. Appellant’s Brief at 20-
21. In support, he cites Commonwealth v. Curnutte, 871 A.2d 839 (Pa.
Super. 2005). He also argues “the SOAB expert[, Dr. Mary Muscari,] was
permitted to consider and testify to evidence that should have been
inadmissible at an SVP hearing.” Id. at 18-19. In support, he suggests Dr.
Muscari referred to conduct in Incident 1, for which Appellant was acquitted.
Id. at 19. Further, Appellant suggests Dr. Muscari impermissibly relied on
hearsay statements from Idaho that referenced his prior bad acts. Id. He
emphasizes Dr. Muscari would not have found Appellant to be a SVP were it
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not for her reliance on the reports of the Idaho incident. Id. He further
argues the Commonwealth failed to establish one of the diagnostic criteria
for pedophilia, namely, that the conduct occur over a span of at least six
months. Id. No relief is due
As to the appointment of an expert for an SVP proceeding, we
reiterate: “The provision of public funds to hire experts to assist in the
defense against criminal charges is a decision vested in the sound discretion
of the court and a denial thereof will not be reversed absent an abuse of that
discretion.” Commonwealth v. Cannon, 954 A.2d 1222, 1226 (Pa. Super.
2008) (citation omitted).
In Curnutte, this Court recognized an indigent defendant’s right to
have an expert appointed and remanded for the appointment of an expert.
Curnutte, 871 A.2d at 842, 844. However, the Curnutte Court recognized
that “the Commonwealth is not obligated to pay for the services of an expert
simply because a defendant requests one.” Id. at 842. Our case law
recognizes at least two considerations that must be addressed when seeking
the appointment of an expert for the purposes of an SVP proceeding. First,
“[t]here must be some showing as to the content and relevancy of the
proposed expert testimony before such a request will be granted.” Id. at
842. Second, there must be finding of indigence. See Cannon, 954 A.2d at
1226.
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Instantly, the trial court found that (1) Appellant failed to establish
indigence; (2) Appellant’s written motion did not state an expert was
required to rebut the SOAB report; and (3) an independent mental health
assessment was unnecessary for sentencing in light of the mandatory
provisions. Trial Ct. Op. at 23-24; N.T. SVP/Sentencing Hr’g, at 9-13, 46.
Appellant fails to address any one of the trial court’s reasons for denying the
motion to appoint an expert. Significantly, Appellant does not address the
trial court’s finding that Appellant intentionally distanced himself from family
funding, on which he had relied throughout trial. Therefore, this argument is
waived. See Pa.R.A.P. 2119(a); Buterbaugh, 91 A.3d at 1262.
As to the SVP determination, we emphasize that the Pennsylvania
Supreme Court has cautioned this Court not to reassess the credibility of an
expert presented at an SVP hearing. See Commonwealth v. Meals, 912
A.2d 213, 224 (Pa. 2006).
A challenge to the sufficiency of the evidence to support
an SVP designation requires the reviewing court to accept
the undiminished record of the case in the light most
favorable to the Commonwealth. The reviewing court
must examine all of the Commonwealth’s evidence without
consideration of its admissibility. A successful sufficiency
challenge can lead to an outright grant of relief such as a
reversal of the SVP designation, whereas a challenge to
the admissibility of the expert’s opinion and testimony is
an evidentiary question which, if successful, can lead to a
new SVP hearing.
* * *
Our task in either scenario is one of review, not one of
reweighing or assessing the evidence in the first instance.
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Commonwealth v. Prendes, 97 A.3d 337, 356 (Pa. Super.) (citations
omitted), appeal denied, 105 A.3d 738 (Pa. 2014).
In Prendes, 97 A.3d 337 (Pa. Super. 2014), this Court observed:
“An expert may base an opinion on facts or data in the
case that the expert has been made aware of or personally
observed. If experts in the particular field would
reasonably rely on those kinds of facts or data in forming
an opinion on the subject, they need not be admissible for
the opinion to be admitted.” “If the expert states an
opinion the expert must state the facts or data on which
the opinion is based.” “Once expert testimony has been
admitted, the rules of evidence then place the full burden
of exploration of facts and assumptions underlying the
testimony of an expert witness squarely on the shoulders
of opposing counsel’s cross-examination.” Opposing
counsel bears the burden of exposing and exploring “any
weaknesses in the underpinnings of the expert's opinion.”
Prendes, 97 A.3d at 358 (citations omitted). Further, “[a]n SVP
assessment is not a trial or a separate criminal proceeding that subjects the
defendant to additional punishment.” Id. (citation omitted).
Instantly, our review reveals that Dr. Muscari misstated the facts of
the underlying case as “[t]wo victims, multiple incident” and “penetration of
the victims[’] vagina[s] and one of the victims had touched his penis.” N.T.
SVP/Sentencing Hr’g at 17-18. These misstatements of fact are problematic
because they appear to refer to offenses for which Appellant was acquitted,
i.e., all of the charges related to Incident 1, as well as B.E.’s testimony that
Appellant had her touch his penis at Residence 2. Cf. Commonwealth v.
Smithton, 631 A.2d 1053, 1058 (Pa. Super. 1993) (vacating sentence
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where court relied upon “irrelevant” testimony that “bore directly on crimes
for which the defendant had been acquitted”). But see Commonwealth v.
Stokes, 38 A.3d 846, 863 (Pa. Super. 2011) (discussing use of “acquitted
conduct” at sentencing).
However, a further review of the transcript reveals that Dr. Muscari
based her ultimate opinion on reports from Idaho that Appellant placed
B.E.’s hand “on his private area” during an incident at “Sally’s Beauty Supply
Store on November 1, 2009” and the incident in Pennsylvania. See id. at
28, 30. She further related that she found the Idaho allegations credible in
light of Appellant’s admission to sexual abuse of B.E. in Idaho. Id. at 21,
30. Further, the court inquired independently as to Dr. Muscari’s reasons for
crediting Appellant’s admissions and the allegations of abuse and the
decisive weight she placed on the Idaho allegations. Id. at 30. Indeed, Dr.
Muscari explained she would not have found Appellant to be an SVP were it
not for the Idaho allegations.
In light of the narrow review called for by the Pennsylvania Supreme
Court, we conclude that Appellant’s claims go to the weight and not the
admissibility of Dr. Muscari’s opinions. Moreover, despite her reliance on
allegations that did not result in a conviction in Idaho, as well as her possible
misstatement of the record, the court had at least some basis for adopting
her opinion as dispositive of its SVP determination. In short, we are
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constrained to conclude that while Appellant’s arguments reveal possible
defects in the basis for Dr. Muscari’s opinions, we must affirm.
We now address Appellant’s claim that the trial court erred in denying
his motion for recusal of the presiding judge. He observes the presiding
judge also considered Appellant’s and Codefendant’s “lengthy [CYS] matter,”
including a dependency proceeding and the termination of their parental
rights. Appellant’s Brief at 24.
As examples of bias, Appellant observes that the trial court, in its
opinion in support of termination asserted that termination was appropriate
even if he received treatment and was not deemed to be a threat to children
and that Appellant failed to “take ownership of the serious allegations.” Id.
at 25 (quoting Trial Ct. Op., 4/12/12, at 20-21). He also cites to the
court’s colloquy on his right to testify, during which the court stated either
Appellant or Codefendant “knowingly lied” at a prior family court proceeding,
which could be used to impeach him if that party elected to testify. Id. at
26-27. He also refers to the court’s cautionary instruction regarding prior
bad acts evidence, and notes the court told the jury it heard “evidence
tending to prove that [Appellant] is guilty of an offense that occurred in
Idaho for which he is not on trial.” Id. at 28 (quoting N.T. Trial, 7/23/13, at
110). Lastly, Appellant cites to the court’s statements at sentencing during
which the court found the case disturbing due, in part, to “the level of
deception” exhibited by Appellant and Codefendant. Id. at 27; see also
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N.T. SVP/Sentencing Hr’g at 50). Appellant notes the court referred to
Appellant’s alleged testimony that he did not want Codefendant to become
pregnant again, as well as Codefendant’s pregnancy during trial and their
attempts to conceal the pregnancy. Appellant’s Brief at 27. He emphasizes
that the record contains no indication that he did not want Codefendant to
become pregnant again.26 Id. In sum, Appellant asserts the court revealed
a personal, unsubstantiated animus against him and burdened his
presumption of innocence in the underlying criminal matter.
The following principles govern our review:
If a party questions the impartiality of a judge, the
proper recourse is a motion for recusal, requesting that the
judge make an independent, self-analysis of the ability to
be impartial. If content with that inner examination, the
judge must then decide “whether his or her continued
involvement in the case creates an appearance of
impropriety and/or would tend to undermine public
confidence in the judiciary.” This assessment is a
“personal and unreviewable decision that only the jurist
can make.” “Once the decision is made, it is final. . . .”
[An appellate court] presumes judges of this
Commonwealth are “honorable, fair and competent,” and,
when confronted with a recusal demand, have the ability
to determine whether they can rule impartially and without
prejudice. The party who asserts a trial judge must be
disqualified bears the burden of producing evidence
establishing bias, prejudice, or unfairness necessitating
recusal, and the “decision by a judge against whom a plea
of prejudice is made will not be disturbed except for an
abuse of discretion.”
26
We note that Appellant’s counsel did not object to any of the trial court’s
statements at trial or sentencing in this matter. Moreover, Appellant did not
renew his request for recusal at or after trial.
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Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004).
[T]he mere participation by the trial judge in an earlier
stage of the proceedings does not provide a per se basis
for requiring recusal of the trial judge.
The determination of whether a trial judge should
recuse himself depends upon the following: the type
of evidence that the judge hears; if the evidence is
inadmissible and is of a highly prejudicial nature, the
judge should recuse himself or declare a mistrial if it
is too late for recusal. The judge should also recuse
himself whenever there is substantial doubt as to his
ability to preside impartially. The burden to show
prejudice, however, is on the party seeking recusal.
If the evidence is admissible, or not of a highly
prejudicial nature, recusal is not required, and while
it may be the better practice to have a different
judge preside over trial than preside over pre-trial
proceedings, such a practice is not constitutionally
required and has not been made the basis for setting
aside a verdict reached in an otherwise proper trial.
This principle appears to be based on the prevailing
view that judicial fact-finders are capable of
disregarding prejudicial evidence.
Commonwealth v. Postie, 110 A.3d 1034, 1038 (Pa. Super. 2015)
(citation omitted).
The trial court, in its Pa.R.A.P. 1925(a) opinion in this matter, asserted
it had “no interest whatsoever in or personal knowledge of the case at bar,
and we did not have any bias or prejudice towards [Appellant] based on his
previous [CYS] matter or otherwise. We were fully capable of distinguishing
between [Appellant’s] criminal case and his [CYS] case.” Trial Ct. Op. at 15.
We have reviewed the entire record, and although the trial court may have
made statements that appear negative or prejudicial when read in isolation,
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we conclude that the trial court did not abuse its discretion when refusing to
recuse. See Postie, 110 A.3d at 1038.
Judgment of sentence vacated. Case remanded for resentencing.
Jusidiction reliquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/15/2016
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