Com. v. Engdahl, A. ( 2023 )

J-S33026-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellee :
:
v. :
:
ANDREW ENGDAHL :
:
Appellant : No. 1058 EDA 2022
Appeal from the Judgment of Sentence Entered March 11, 2022
In the Court of Common Pleas of Bucks County
Criminal Division at No(s): CP-09-CR-0003018-2019
BEFORE: KUNSELMAN, J., KING, J., and SULLIVAN, J.
MEMORANDUM BY KING, J.: FILED JANUARY 31, 2023
Appellant, Andrew Engdahl, appeals from the judgment of sentence
entered in the Bucks County Court of Common Pleas, following his open guilty
pleas to sexual abuse of children and related offenses.1 We affirm.
The trial court opinion set forth the relevant facts of this appeal as
follows:
On October 4, 2019, [Appellant] pled guilty to one count of
sexual abuse of children—manufacturing of child
pornography, six counts of sexual abuse of children—
possession of child pornography, one count of unlawful
contact with a minor—relating to manufacturing of child
pornography, and one count of obscene and other sexual
materials and performances—dissemination to minors. The
charges arose from a complaint filed with the Federal
Bureau of Investigation (the “FBI”) in May 2017. The
complaint detailed that a mother had become concerned
about the nature of Facebook conversations between an
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1 18 Pa.C.S.A. § 6312.
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unknown individual and her seven-year-old daughter. This
unknown individual was ultimately identified as Appellant.
FBI agents later interviewed Appellant at his home in
Quakertown, Bucks County, Pennsylvania, where he
consented to a search of his cell phone. This search
revealed explicit photographs of a minor female, who
Appellant identified as being between 14 and 16 years old.
A subsequent search of Appellant’s phone, pursuant to a
warrant, revealed additional images of child pornography.
The FBI referred the matter to the Pennsylvania Office of
the Attorney General for further investigation. In 2019, the
Attorney General’s Office charged Appellant with 14 criminal
counts related to the images found on his phone by both the
FBI and the Attorney General’s Office.
(Trial Court Opinion, filed 6/17/22, at 1-2) (internal footnotes and some
capitalization omitted).
Following the entry of Appellant’s guilty pleas, the court deferred
sentencing and ordered a presentence investigation (“PSI”) report. The court
also ordered that Appellant submit to an evaluation by the Sexual Offenders
Assessment Board (“SOAB”). On January 3, 2020, the Commonwealth filed a
praecipe to schedule a hearing to determine Appellant’s sexually violent
predator (“SVP”) status. Ultimately, the court conducted a sentencing hearing
on February 10, 2020. At that time, the court denied the Commonwealth’s
request for an SVP hearing.2 The court also sentenced Appellant to an
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2 “At the time of the Sentencing Hearing, the Bucks County Court of Common
Pleas had issued a moratorium on all SVP hearings as a result of the
Pennsylvania Superior Court’s holding in Commonwealth v. Butler, 173
A.3d 1212 (Pa.Super. 2017), which found SVP hearings and SVP designations
to be unconstitutional.” (Trial Court Opinion at 7).
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aggregate term of four (4) to twelve (12) years’ imprisonment, followed by
four (4) years of probation.
Appellant timely filed a post-sentence motion on February 20, 2020. In
it, Appellant claimed that the court imposed a manifestly excessive sentence
“given the nature and circumstances of the offense and the history,
characteristics, and rehabilitative needs of [Appellant].” (Post-Sentence
Motion, filed 2/20/20, at ¶10).3 On August 6, 2020, the court conducted a
hearing on the post-sentence motion. At the conclusion of the hearing, the
court granted relief in part and reduced the minimum term of incarceration
for the sexual abuse of children and unlawful contact convictions. Thus, the
court imposed a new aggregate sentence of forty-four (44) months to twelve
(12) years’ imprisonment, followed by four (4) years of probation.
On October 25, 2021, the Commonwealth filed a motion requesting the
scheduling of an SVP hearing. The court conducted the SVP hearing on
January 19, 2022. At the hearing, the court received testimony from Kristen
Dudley, Psy.D., the SOAB member who conducted Appellant’s 2019
assessment. At the conclusion of the hearing, the court deferred making a
decision and ordered the parties to submit briefs on the matter. Following the
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3 On March 10, 2020, the Commonwealth filed a notice of appeal to our
Supreme Court challenging the trial court’s refusal to conduct an SVP hearing.
“However, on July 9, 2020, the Commonwealth filed a Praecipe for
Discontinuance … as a result of the Supreme Court’s holding in
Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020), which overruled the
2017 Superior Court Opinion in Butler.” (Trial Court Opinion at 7 n.19).
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submission of briefs, the court entered an order classifying Appellant as an
SVP on March 11, 2022.
Appellant timely filed a notice of appeal on April 8, 2022.4 On April 12,
2022, the court ordered Appellant to file a Pa.R.A.P. 1925(b) concise
statement of errors complained of on appeal. Following an extension,
Appellant filed his Rule 1925(b) statement on May 18, 2022.
Appellant now raises the following issues on appeal:
Whether an aggregate sentence of forty-four months to one
hundred forty-four months was manifestly excessive and
unreasonable pursuant to 42 Pa.C.S.A. § 9781?
Whether an aggregate sentence of forty-four months to one
hundred forty-four months was manifestly excessive,
unreasonable and not in accordance with the sentencing
norms set forth in 42 Pa.C.S.A. § 9721 or under [the]
Pennsylvania Sentencing Code?
Whether the sentencing court erred in imposing an
aggregate sentence of forty-four to one hundred forty-four
months given the nature and circumstances of the offense
and the history, characteristics, and rehabilitative needs of
[Appellant]?
Whether the sentencing court erred in designating Appellant
as a “sexually violent predator” where the Commonwealth
presented insufficient evidence to establish by clear and
convincing evidence that Appellant met the requirements to
be classified as a sexually violent predator established by
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4 Regarding the timeliness of the notice of appeal, “where a defendant pleads
guilty and waives a pre-sentence SVP determination, the judgment of
sentence is not final until that determination is rendered.” Commonwealth
v. Schrader, 141 A.3d 558, 561 (Pa.Super. 2016). Here, Appellant’s
judgment of sentence did not become final until the trial court entered the
March 11, 2022 SVP order. Consequently, Appellant timely filed a notice of
appeal within thirty (30) days of that order.
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the Pennsylvania Sexual Offender Registration and
Notification Act.
(Appellant’s Brief at 4-5).
In his first three issues,5 Appellant asserts that he informed the
sentencing court that he had been sexually abused by a family member, and
it was difficult for him to work through this trauma. Appellant also emphasizes
that he expressed remorse for his criminal conduct, took responsibility for his
actions, and cooperated with law enforcement throughout the investigation.
Despite these circumstances, Appellant contends that the court imposed an
unduly harsh aggregate sentence without adequately considering his personal
history, characteristics, and rehabilitative needs.
Appellant acknowledges that the court provided an on-the-record
statement of reasons in support of the sentence imposed, wherein the court
noted Appellant’s need for treatment “to ensure the public would be
protected.” (Id. at 16). Appellant insists, however, that “the record provides
no evidence or guarantee such treatment would be provided in a state
correctional institute.” (Id.) Absent more, Appellant argues that the court
failed “to address Appellant’s rehabilitative needs or any rehabilitation
Appellant may achieve while in prison.” (Id. at 17). Appellant concludes that
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5 Although Appellant presented three distinct issues in his statement of
questions presented, he combined the analysis for these issues in the
“argument” section of his brief. (See Appellant’s Brief at 10-17).
Consequently, we elect to address these issues together.
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the court abused its discretion in fashioning his sentence, and this Court must
vacate and remand for resentencing. We disagree.
As presented, Appellant’s claim challenges the discretionary aspects of
his sentence. See Commonwealth v. Caldwell, 117 A.3d 763, 768
(Pa.Super. 2015) (en banc), appeal denied, 633 Pa. 774, 126 A.3d 1282(2015) (stating that challenge to imposition of consecutive sentences as
unduly excessive, together with claim that court failed to consider
rehabilitative needs, constitutes challenge to discretionary aspects of
sentencing). “Challenges to the discretionary aspects of sentencing do not
entitle an appellant to an appeal as of right.” Commonwealth v. Phillips,
946 A.2d 103, 112 (Pa.Super. 2008), cert. denied, 556 U.S. 1264, 129 S. Ct.
2450, 174 L.Ed.2d 240 (2009). Prior to reaching the merits of a discretionary
aspects of sentencing issue:
[W]e conduct a four part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P.
902 and 903; (2) whether the issue was properly preserved
at sentencing or in a motion to reconsider and modify
sentence, see Pa.R.Crim.P. 1410 [now Rule 720]; (3)
whether appellant’s brief has a fatal defect, Pa.R.A.P.
2119(f); and (4) whether there is a substantial question that
the sentence appealed from is not appropriate under the
Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Commonwealth v. Evans, 901 A.2d 528, 533 (Pa.Super. 2006), appeal
denied, 589 Pa. 727, 909 A.2d 303 (2006) (quoting Commonwealth v.
Hyland, 875 A.2d 1175, 1183 (Pa.Super. 2005)).
When appealing the discretionary aspects of a sentence, an appellant
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must invoke this Court’s jurisdiction by including in his brief a separate concise
statement demonstrating a substantial question as to the appropriateness of
the sentence under the Sentencing Code. Commonwealth v. Mouzon, 571
Pa. 419, 812 A.2d 617 (2002); Pa.R.A.P. 2119(f). “The requirement that an
appellant separately set forth the reasons relied upon for allowance of appeal
furthers the purpose evident in the Sentencing Code as a whole of limiting any
challenges to the trial court’s evaluation of the multitude of factors impinging
on the sentencing decision to exceptional cases.” Phillips, supra at 112
(emphasis in original) (internal quotation marks omitted).
“The determination of what constitutes a substantial question must be
evaluated on a case-by-case basis.” Commonwealth v. Anderson, 830
A.2d 1013, 1018 (Pa.Super. 2003). “A substantial question exists only when
the appellant advances a colorable argument that the sentencing judge’s
actions were either: (1) inconsistent with a specific provision of the Sentencing
Code; or (2) contrary to the fundamental norms which underlie the sentencing
process.” Caldwell, supra at 768 (quoting Commonwealth v. Prisk, 13
A.3d 526, 533 (Pa.Super. 2011)). An appellant’s “challenge to the imposition
of his consecutive sentences as unduly excessive, together with his claim that
the court failed to consider his rehabilitative needs upon fashioning its
sentence, presents a substantial question.” Caldwell, supra at 770.
Here, Appellant timely filed his notice of appeal, he preserved his issue
by including it in his post-sentence motion, and his appellate brief includes a
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Rule 2119(f) statement. Appellant’s claim also raises a substantial question
as to the appropriateness of the sentence imposed. See id. Accordingly, we
proceed to address the merits of Appellant’s issue.
This Court reviews discretionary sentencing challenges based on the
following standard:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on
appeal absent a manifest abuse of discretion. An abuse of
discretion is more than just an error in judgment and, on
appeal, the trial court will not be found to have abused its
discretion unless the record discloses that the judgment
exercised was manifestly unreasonable, or the result of
partiality, bias or ill-will.
Commonwealth v. McNabb, 819 A.2d 54, 55 (Pa.Super. 2003) (quoting
Commonwealth v. Hess, 745 A.2d 29, 30-31 (Pa.Super. 2000)).
“When imposing sentence, a court is required to consider the particular
circumstances of the offense and the character of the defendant.”
Commonwealth v. Griffin, 804 A.2d 1, 10 (Pa.Super. 2002), cert. denied,
545 U.S. 1148, 125 S. Ct. 2984, 162 L.Ed.2d 902 (2005). “In particular, the
court should refer to the defendant’s prior criminal record, his age, personal
characteristics and his potential for rehabilitation.” Id. “Where [PSI] reports
exist, we shall continue to presume that the sentencing judge was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors.” Commonwealth v.
Watson, 228 A.3d 928, 936 (Pa.Super. 2020) (quoting Commonwealth v.
Devers, 519 Pa. 88, 101-02, 546 A.2d 12, 18 (1988)).
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Instantly, the trial court initially sentenced Appellant, with the benefit of
a PSI report, on February 10, 2020. Prior to imposing the sentence, the court
provided an on-the-record statement of reasons to support the sentence.
Contrary to Appellant’s assertions, the court considered Appellant’s
rehabilitative needs and personal characteristics:
All right. So it’s the [c]ourt’s job in sentencing to consider
all the factors that are relevant for this purpose.
So I have done that. As I mentioned, I’ve studied the PSI
in detail. I’ve also heard everything that was said today by
both sides, including [Appellant’s] statement himself.
So, obviously, a primary concern of the [c]ourt is the …
degree of remorse of [Appellant]. And, frankly, I’m not
certain about your degree of remorse. You said the right
things in court today. You didn’t really say the right things
not too long ago to the probation officer. You made excuses
and you minimized. So what you really feel in your heart,
[Appellant], only you know.
* * *
So I’ve also looked at your criminal history and, certainly, I
understand there’s been no prior arrests and no prior
convictions with regard to this.
Your age, which you’re 30 years old right now….
* * *
Your physical health and your emotional health, I certainly
heard a lot about today, and I heard—or I read in the PSI
about your chaotic childhood, and you had substantial
trauma in your childhood. That’s got to be addressed in
treatment. The trauma has got to be addressed.
So I’ve also reviewed the sentencing guidelines and
determined that among the mitigated, standard, and
aggravated guidelines, that the standard guidelines are
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most appropriate here in their applicability.
And I do want to reiterate what’s been said. This is not a
victimless crime. A 14-year-old girl has experienced
something that no 14-year-old girl should experience. I am
certain that it has made her distrustful of men and maybe
people in general. I’m certain that it’s going to affect her
ability to enter into healthy, normal relationships throughout
much of her life. And I certainly recognize the pain that the
father expressed in his victim impact statement.
So there are also other victims, as the attorney general
articulated, with regard to the children who are abused and
their pictures are taken and they have a marketplace, so to
speak, for folks to review their photographs. So they are
victims as well.
(N.T. Sentencing Hearing, 2/10/20, at 39-41). Thus, the court considered the
relevant sentencing factors and felt the need to balance any mitigating
circumstances against the necessity of punishing Appellant for the impact of
his crimes on the victims.
Even though the court provided thoughtful consideration of the relevant
sentencing factors at the original sentencing hearing, the court opted to revisit
these circumstances at the hearing on Appellant’s post-sentence motion.
Again, the court provided a well-reasoned, on-the-record statement
demonstrating its awareness of Appellant’s rehabilitative needs:
I certainly gave your sentence a great deal of thought prior
to February 10th, and I believe I did my best to balance the
rehabilitative needs that you have and assessing your
childhood and all the trauma and chaos that you have gone
through, but also looking at the safety of the community. I
continue to do that today.
I have re-read the transcript from the February 10th hearing.
I have heard all the testimony today, but what I want to do
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is give you some further incentive to get the treatment you
need so you can become a productive member of society
once you’re on the street. And that means getting
treatment not only in prison but once you’re on the street.
And, certainly, it should be … an absolute condition of your
parole and a condition of your probation, which is
consecutive to your parole.
(N.T. Hearing, 8/6/20, at 76-77). Thereafter, the court granted Appellant’s
post-sentence motion in part by reducing his minimum term of incarceration.
(See id. at 77).
On this record, the court did not commit an abuse of discretion. See
McNabb, supra. The court’s reliance on the PSI report, combined with its
on-the-record statements in support of the sentences, demonstrate that it was
aware of the relevant sentencing considerations. See Watson, supra. We
conclude that the court appropriately weighed those considerations.
Therefore, Appellant is not entitled to relief on his challenge to the
discretionary aspects of sentencing.
In his final issue, Appellant contends that he never had physical contact
with the victim, N.N. Rather, Appellant merely “requested N.N. send him
pictures of her vagina and he sent her pictures of his penis.” (Appellant’s Brief
at 23). Appellant also emphasizes that he did not have physical contact with
any of the other children depicted in the images of child pornography that law
enforcement recovered from his phone. Appellant argues that: 1) he never
committed a crime before the instant offenses; 2) he did not re-offend during
the two-year period while he remained at liberty; and 3) his risk of re-offense
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is low, because N.N. was an acquaintance rather than a stranger. Based upon
his analysis of the relevant statutory factors and the facts of this case,
Appellant concludes that the Commonwealth did not present clear and
convincing evidence to support his classification as an SVP. We disagree.
Challenges to the sufficiency of the evidence supporting a trial court’s
SVP designation are governed by the following principles:
In order to affirm an SVP designation, we, as a reviewing
court, must be able to conclude that the fact-finder found
clear and convincing evidence that the individual is a[n
SVP]. As with any sufficiency of the evidence claim, we view
all evidence and reasonable inferences therefrom in the light
most favorable to the Commonwealth. We will reverse a
trial court’s determination of SVP status only if the
Commonwealth has not presented clear and convincing
evidence that each element of the statute has been
satisfied.
Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa.Super. 2015),
appeal denied, 633 Pa. 763, 125 A.3d 1199 (2015) (quoting Commonwealth
v. Baker, 24 A.3d 1006, 1033 (Pa.Super. 2011)). “SVP” is defined as:
A person who has been convicted of a sexually violent
offense … and who is determined to be a sexually violent
predator … due to a mental abnormality or personality
disorder that makes the person likely to engage in predatory
sexually violent offenses. In order to show that the offender
suffers from a mental abnormality or personality disorder,
the evidence must show that the defendant suffers from a
congenital or acquired condition … that affects the emotional
or volitional capacity of the person in a manner that
predisposes that person to the commission of criminal
sexual acts to a degree that makes the person a menace to
the health and safety of other persons. Moreover, there
must be a showing that the defendant’s conduct was
predatory. Predatory conduct is defined as an act directed
at a stranger or at a person with whom a relationship has
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been instituted, established, maintained, or promoted, in
whole or in part, in order to facilitate or support
victimization. Furthermore, in reaching a determination, we
must examine the driving force behind the commission of
these acts, as well as looking at the offender’s propensity to
re-offend, an opinion about which the Commonwealth’s
expert is required to opine. However, the risk of re-
offending is but one factor to be considered when making
an assessment; it is not an “independent element.”
Commonwealth v. Leatherby, 116 A.3d 73, 84-85 (Pa.Super. 2015)
(quoting Commonwealth v. Stephens, 74 A.3d 1034, 1038-39 (Pa.Super.
2013)).
SOAB evaluators must consider the following factors when performing
SVP assessments:
(1) Facts of the current offense, including:
(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 crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual’s prior criminal record.
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(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 of the individual.
(ii) Use of illegal drugs by the individual.
(iii) A mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to
the individual’s conduct.
(4) Factors that are supported in sexual offender
assessment field as criteria reasonably related to the risk of
reoffense.
42 Pa.C.S.A. § 9799.58(b).
Instantly, Appellant pled guilty to sexually violent offenses. See 42
Pa.C.S.A. §§ 9799.12, 9799.14. In her report, Dr. Dudley, a SOAB member,
addressed all factors set forth in Section 9799.58(b). (See SVP Assessment,
dated 12/19/19, at 5-8). Regarding Appellant’s mental abnormality, Dr.
Dudley indicated that Appellant met the diagnostic criteria for Paraphilic
Disorder Specified, Hebephilic Disorder:
Based on his behavior and his statements to law
enforcement he has a sexual attraction to adolescent
children. He has also acted on this attraction by initiating
and then sexualizing conversations with N.N., a 14-year-old
girl. He searched the Internet for websites showing naked
adolescents and/or adolescents having sex with men.
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(Id. at 7). This disorder “is considered a lifetime ‘condition’ which may wax
and wane over time,” and Appellant “has a higher likelihood of re-offending
unless or until he receives specialized treatment….” (Id. at 8). Dr. Dudley
also opined that Appellant engaged in predatory behavior:
[Appellant] initiated and maintained a private relationship
with 14-year-old [N.N.] During the course of online
conversations with her he sent her pictures of his erect penis
and received pictures of [her] vagina, which he then used
as masturbatory stimulus. This behavior does meet criteria,
under the statute, to be deemed PREDATORY.
(Id. at 9) (emphasis in original). At the SVP hearing, Dr. Dudley provided
testimony that was consistent with the findings announced in her report. (See
N.T. SVP Hearing, 1/19/22, at 17-85).
The trial court analyzed Dr. Dudley’s report, as well as her testimony
from the SVP hearing, and determined that the Commonwealth provided clear
and convincing evidence to support the SVP classification:
[The trial court] finds that Dr. Dudley thoroughly considered
the requisite statutory factors … as they relate to the
circumstances surrounding the instant case. She assessed
and pointed to several statutory factors that increased
Appellant’s likelihood of reoffending, such as the fact that
Appellant’s offenses involved multiple victims, the nature of
Appellant’s contact with the Victim, his repeated requests
for nude photos from her, the age of the Victim, as well as
the age of the children in the photographs who were being
sexually abused by adults. Dr. Dudley also determined that
Appellant’s statements as to why he chose to work the night
shift and when children should be permitted to engage in
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sexual relationships to be significant.[6] We find, then, that
while Appellant does not have a prior criminal record and he
did not use overt force or coercion in the commission of his
crimes, Dr. Dudley gave due weight and consideration to the
requisite statutory factors as they relate to the
circumstances of the instant case.
(Trial Court Opinion at 27-28) (internal record citations omitted).
Here, Dr. Dudley’s report and testimony confirmed that Appellant suffers
from a mental abnormality that makes him likely to re-offend. See
Leatherbury, supra. Viewing this evidence in the light most favorable to the
Commonwealth, the trial court correctly determined that the Commonwealth
presented clear and convincing evidence to support Appellant’s classification
as an SVP. See Hollingshead, supra. Accordingly, we affirm the judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/31/2023
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6Specifically, Dr. Dudley testified about certain statements Appellant made to
police during their investigation. Appellant “stated to the police that he liked
working the night shift because there were no children around.” (N.T. SVP
Hearing at 43). Appellant “also made statements about how he believes that
children should be allowed to have sexual relationships when they are ready
versus waiting for a prescribed age.” (Id. at 46).
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