Com. v. Davis, E. ( 2023 )

J-S39014-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWIN DAVIS :
:
Appellant : No. 230 MDA 2022
Appeal from the Judgment of Sentence Entered December 13, 2021
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0004855-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWIN DAVIS :
:
Appellant : No. 231 MDA 2022
Appeal from the Judgment of Sentence Entered December 13, 2021
In the Court of Common Pleas of Lancaster County
Criminal Division at No(s): CP-36-CR-0002873-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY PANELLA, P.J.: FILED: FEBRUARY 14, 2023
Edwin Davis brings these consolidated appeals seeking to overcome his
designation as a Sexually Violent Predator (“SVP”) and to obtain resentencing
for a judgment of sentence that he claims to be excessive. We affirm.
For purposes of this appeal, the facts underlying Davis’s convictions are
uncontested. On March 30, 2018, victims B.O., age thirteen, and V.O., age
J-S39014-22
twelve, were at their home when Davis, age 43, approached them and struck
up a conversation. Davis managed to exchanged phone numbers with both
girls and left the area. However, he immediately started texting B.O. and
asked her to meet him. B.O. refused the invitation because she was going to
go for a walk with her friend that evening. As B.O. was returning home from
the walk, she came across Davis in an alley. Davis proceeded to physically
attack B.O. and then penetrated her vagina with his fingers and then his penis.
Davis also forced his penis into B.O.’s mouth. B.O. managed to get off the
ground and run out of the alleyway.
As she left the area, B.O. came across Megan Bigler standing outside of
her home. B.O. told Bigler that she had just been assaulted, and Bigler
directed B.O. to run home while Bigler contacted the police.1 When B.O. got
home, she reported the incident to her mother. B.O.’s mother and father
immediately took B.O. to the hospital.
Meanwhile, Davis had also been texting V.O. from the time the two
exchanged numbers earlier in the day. After B.O. and her parents left for the
hospital, V.O. texted Davis asking why he had raped her sister. Davis
responded by asking V.O. to send him pictures of her body. He also made
repeated references to his penis and invited V.O. to have sexual contact with
____________________________________________
1 Bigler came across Davis in the alley and remained on the 911 call until
police arrived. Although police confirmed Davis’s identity and phone number,
Davis was permitted to leave because the police did not know the identity of
the victim.
-2-
J-S39014-22
him. V.O. sent multiple texts to Davis refusing his requests and reminding him
that she was twelve-years old. Undeterred, Davis appeared at V.O.’s home,
tried to gain entry, and began throwing rocks at the window. V.O. called the
police and Davis was arrested.
Regarding his contact with B.O., Davis was charged at trial court docket
number 2873-2018 with rape, involuntary deviate sexual intercourse,
unlawful contact with a minor-sexual offenses, aggravated indecent assault of
a person less than 16 years old, corruption of minors, indecent assault, and
sexual assault. For his contact with V.O., at trial court docket number 4855-
2018, Davis was charged with unlawful contact with a minor-sexual offenses,
criminal solicitation-rape of a child, criminal solicitation-involuntary deviate
sexual intercourse with a child, and criminal solicitation-child pornography.
The cases were consolidated for trial. On June 23, 2021, a jury convicted
Davis on all counts. The trial court ordered the preparation of a presentence
investigative report and an assessment by the Pennsylvania Sexual Offenders
Assessment Board (“SOAB”) for a determination of whether Davis fits the
criteria of an SVP.
On December 13, 2021, the trial court conducted an SVP hearing and a
sentencing hearing. At the SVP portion of the hearing the Commonwealth
presented the report and detailed testimony of Robert Martin Stein, Ph.D.
(“Dr. Stein”), a licensed clinical psychologist and member of the SOAB. At the
conclusion of the SVP hearing, the court determined that the Commonwealth
-3-
J-S39014-22
had met its burden of proving, by clear and convincing evidence, that Davis
should be classified as an SVP. Immediately after the trial court reached its
SVP conclusion, the court sentenced Davis to serve an aggregate term of
incarceration of thirteen to forty years for the crimes against B.O. For the
crimes against V.O., the trial court sentenced Davis to serve an aggregate
term of incarceration of six and one-half to twenty years. Further, the trial
court directed that the sentences for each victim were to run consecutively to
each other, which resulted in a total aggregate sentence of nineteen and one-
half to sixty years of incarceration.
Davis filed a timely post-sentence motion that the trial court denied on
December 28, 2021. This timely appeal followed. Both Davis and the trial court
have complied with Pa.R.A.P. 1925. Davis now presents issues questioning
whether the Commonwealth properly established that he is an SVP and
whether the trial court abused its discretion in fashioning his judgment of
sentence.
Davis first argues that the trial court erred in finding that he is an SVP.
See Appellant’s Brief at 17-21. Davis contends the Commonwealth failed to
present clear and convincing evidence to support the finding. Davis claims the
trial court ignored the fact that his underlying struggle with alcoholism was
present throughout his criminal history and contributed to his prior criminal
offenses. He further alleges that his prior sexual offenses should be discounted
-4-
J-S39014-22
from consideration because, as indecent exposure convictions, they did not
involve any physical touching. We disagree.
When considering the sufficiency of the evidence to support an SVP
designation, we apply the following standard of review:
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 an 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)
(citation and brackets omitted).
SORNA2 defines an SVP as an individual who has been convicted of one
of the enumerated offenses, and “who is determined to be a[n SVP] under
section 9799.24 (relating to assessments) due to a mental abnormality or
personality disorder that makes the individual likely to engage in predatory
sexually violent offenses.” 42 Pa.C.S.A. § 9799.12. Further, an act is
considered “predatory” under SORNA if it is “directed at a stranger or at a
person with whom a relationship has been initiated, established, maintained
or promoted, in whole or in part, in order to facilitate or support victimization.”
Id.
____________________________________________
2SORNA stands for Pennsylvania’s Sex Offender Registration and Notification
Act, 42 Pa.C.S.A. §§ 9799.10-9799.41.
-5-
J-S39014-22
Section 9799.24(a) of SORNA provides that “a court shall order an
individual convicted of a sexually violent offense to be assessed by the
[SOAB].” 42 Pa.C.S.A. § 9799.24(a); see also id. § 9799.12 (defining
sexually violent offense). Following the entry of such an order, the SOAB is
responsible for conducting an assessment to determine whether the individual
should be classified as an SVP. Id. § 9799.24(b). The assessment must
consider the following factors:
whether the instant offense involved multiple victims; whether the
defendant exceeded the means necessary to achieve the offense;
the nature of the sexual contact with the victim(s); the
defendant’s relationship with the victim(s); the victim(s)’ age(s);
whether the instant offense included a display of unusual cruelty
by the defendant during the commission of the offense; the
victim(s)’ mental capacity(ies); the defendant’s prior criminal
record; whether the defendant completed any prior sentence(s);
whether the defendant participated in available programs for
sexual offenders; the defendant’s age; the defendant’s use of
illegal drugs; whether the defendant suffers from a mental illness,
mental disability, or mental abnormality; behavioral
characteristics that contribute to the defendant’s conduct; and any
other factor reasonably related to the defendant’s risk of
reoffending.
Hollingshead, 111 A.3d at 190 (citation omitted); see also 42 Pa.C.S.A. §
9799.24(b)(1)-(4). After the SOAB completes its assessment, the trial court
holds a hearing to “determine whether the Commonwealth has proved by clear
and convincing evidence that the individual is a[n SVP].” Id. § 9799.24€(3).
Here, the trial court observed that the record “demonstrates that Dr.
Stein carefully considered each required statutory factor and each element of
the definition of [SVP]. The record also demonstrates that [the trial judge]
-6-
J-S39014-22
carefully considered the evidence presented, including the role that [Davis’s]
prior sexual offenses played in Dr. Stein’s opinion that [Davis] should be
classified as a[n SVP].” Trial Court Opinion, 4/3/22, at 14. Our review of the
record is in concord with these observations.
During the SVP hearing, Dr. Stein offered detailed testimony regarding
his assessment of Davis. Addressing the initial seven factors, Dr. Stein noted
that this matter involved multiple victims, Davis used physical and verbal
force, the sexual contact was oral, vaginal and anal, there was no relationship
between Davis and the victims, as they were strangers, and the victims were
12 and 13 years old. See N.T., 12/13/21, at 10-11. These five assessment
factors suggest an SVP classification. The remaining two factors offer some
mitigation as Dr. Stein noted there was no unusual cruelty involved in the
crimes and the victims were of normal mental capacity. See id. at 11.
Dr. Stein also addressed the three factors pertaining to Davis’s prior
offense history. In doing so, he reiterated the details of Davis’s sexual and
nonsexual criminal history, which dates back approximately twenty years and
began as noncontact crimes and escalated to the crimes that involved physical
contact with a minor. See id. at 11. Regarding completion of prior sentences,
Dr. Stein observed that Davis has a history of probation violation. See id. at
11-12. The doctor further observed that, in relation to a sexual offense in
2014, Davis was admitted into and unsuccessfully discharged from sex
offender treatment. See id. at 12.
-7-
J-S39014-22
The next four factors concern the characteristics of the individual being
assessed. Dr. Stein offered testimony reflecting upon Davis’s age in relation
to that of the victims, evincing a difference of thirty years. See id. Also, Davis
has reported the use of marijuana in the past. See id. Further, Dr. Stein
discussed the fact that Davis had previously been prescribed anti-depressants
that suggests a degree of depression. At this junction, Dr. Stein noted that on
a prior occasion Davis remarked that he had a history of difficulty with alcohol.
See id. Dr. Stein offered the following testimony addressing the behavioral
characteristics contributing to Davis’s conduct:
The course of conduct since 1996 is consistent with sustained
sexual deviance, including sexual misconduct that victimized
others, which would be the indecent exposure offenses in 1996
and 2014. The 2015 evaluation noted deception as a primary
defense mechanism. He was repeatedly deceptive with the victims
in this case and with authorities in the instance offense, also
consistent with antisocial traits.
Id. at 12-13.
Finally, Dr. Stein listed the following factors associated with a greater
risk of Davis reoffending: “having four or more sentencing dates in the past,
having a prior sex offense, having a prior noncontact sex offense, having
unrelated victims, and having stranger victims.” Id. at 13.
Dr. Stein summarized his analysis of the factors with the conclusion that
“[t]here is sufficient evidence for the diagnosis of Other Specified Paraphilic
Disorder, nonconsent, based on a pattern.” Id. As such, Dr. Stein opined that
Davis “meets the criteria to be classified as a[n SVP].” Id. at 15.
-8-
J-S39014-22
Regarding Davis’s allegation that the trial court ignored the fact that his
underlying struggle with alcoholism was present throughout his criminal
history, we note that on multiple occasions Dr. Stein offered testimony about
the general use of alcohol and Davis’s specific use of alcohol. See N.T.,
12/13/21, at 13, 18-20, 25, 26-27. In addition, defense counsel also argued
that “alcohol seems to be the consistent trigger” throughout Davis’s history.
Id. at 30. Accordingly, the trial court was quite aware of Davis’s history with
alcohol when it made its conclusion concerning Davis’s SVP status.
Concerning Davis’s claim that his prior sexual offenses should be
discounted from consideration because, as indecent exposure convictions,
they did not involve any physical touching, Dr. Stein disagreed: “[t]he two
prior indecent exposures, and the fact that this case represented two
additional victims and an escalation of offending, compared to the previous
offense.” N.T., 12/13/21, at 23. Dr. Stein reiterated that all the criminal acts
involved nonconsenting sexual behavior, and the pursuit of females without
their consent. See id. at 23. Also, the crimes escalated in nature over the
course of time. See id. at 23-24. Again, the trial court was well-aware of the
nature of the crimes committed over the course of Davis’s criminal history and
knew that the severity escalated, and the age of the victims decreased. To the
extent Davis contends his prior criminal acts should not have been considered
in assessing his status as an SVP, this argument is not compelling as it would
require an incomplete assessment of the statutory factors.
-9-
J-S39014-22
In summary, the trial court credited Dr. Stein’s testimony and his
opinions regarding the criteria necessary for designating Davis as an SVP. See
Trial Court Opinion, 4/4/22, at 13. The court stated, “[t]hroughout his
testimony reviewing the required statutory factors, Dr. Stein clearly and
convincingly addressed all of the elements required to show that [Davis]
meets the definition of [an SVP].” Id. We may not disturb the trial court’s
credibility determinations on appeal. See Commonwealth v. Blackham, 909
A.2d 315, 320 (Pa. Super. 2006) (stating that “[i]t is not for this Court to
overturn the credibility determinations of the fact-finder.”).
Upon review, we conclude that the evidence presented at the SVP
hearing, viewed in the light most favorable to the Commonwealth, supports
the trial court’s finding that Davis should be classified as an SVP. See
Hollingshead, 111 A.3d at 189. As the trial court observed, “Dr. Stein went
to great lengths to explain why [Davis’s] conduct was predatory and discussed
why [Davis] is likely to reoffend.” Trial Court Opinion, 4/4/22, at 13. Our
review confirms that Dr. Stein’s testimony, which was credited by the trial
court, was sufficient to support his conclusion. Accordingly, we cannot grant
Davis relief on this issue.
Davis last argues that the trial court erred in fashioning his sentence.
See Appellant’s Brief at 21-30. Davis claims that his consecutive sentences,
the aggregate of which resulted in a sentence of nineteen and one-half to sixty
years, is so manifestly excessive as to constitute an abuse of discretion. He
- 10 -
J-S39014-22
further claims that the sentence ignores his rehabilitative needs precipitated
by his apparent addiction to alcohol. Therefore, he contends the trial court
failed to consider pertinent factors in creating his sentence.
Our standard of review is one of abuse of discretion. 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. See
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006).
It is well settled there is no absolute right to appeal the discretionary
aspects of a sentence. See Commonwealth v. Hartle, 894 A.2d 800, 805
(Pa. Super. 2006). Rather, where an appellant challenges the discretionary
aspects of a sentence, the appeal should be considered a petition for allowance
of appeal. See Commonwealth v. W.H.M., 932 A.2d 155, 163 (Pa. Super.
2007).
As we observed in Commonwealth v. Moury, 992 A.2d 162 (Pa.
Super. 2010):
An appellant challenging the discretionary aspects of his sentence
must invoke this Court’s jurisdiction by satisfying a four-part test:
We 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.
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).
- 11 -
J-S39014-22
Moury, 992 A.2d at 170 (citation and brackets omitted).
Here, the first three requirements of the four-part test are met. Davis
brought an appropriate appeal, filed a post-sentence motion, and included in
his appellate brief the necessary concise statement of the reasons relied upon
for allowance of appeal pursuant to Pa.R.A.P. 2119(f). We next determine
whether he has raised a substantial question requiring us to review the
discretionary aspects of the sentence imposed.
Whether a particular issue constitutes a substantial question about the
appropriateness of sentence is a question to be evaluated on a case-by-case
basis. See Commonwealth v. Kenner, 784 A.2d 808, 811 (Pa. Super.
2001). As to what constitutes a substantial question, this Court does not
accept bald assertions of sentencing errors. See Commonwealth v.
Malovich, 903 A.2d 1247, 1252 (Pa. Super. 2006). Rather, an appellant must
show actions by the trial court inconsistent with the Sentencing Code or
contrary to the fundamental norms underlying the sentencing process. See
Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006).
In his Rule 2119(f) statement, Davis argues the trial court abused its
discretion by failing to consider certain mitigating factors, including Davis’s
rehabilitative needs, when it imposed consecutive sentences that resulted in
an unduly excessive sentence. See Appellant’s Brief at 13-16. This Court has
held that an assertion that a sentence was excessive and that the trial court
- 12 -
J-S39014-22
failed to properly consider the factors set forth in 42 Pa.C.S.A. § 9721(b)3
raises a substantial question. See Commonwealth v. Caldwell, 117 A.3d
763, 770 (Pa. Super. 2015) (en banc). See also Commonwealth v. Raven,
97 A.3d 1244, 1253 (Pa. Super. 2014) (stating that “an excessive sentence
claim—in conjunction with an assertion that the court failed to consider
mitigating factors—raises a substantial question”) (internal citation omitted).
We therefore grant permission to appeal and proceed to review the merits of
this issue of Davis’s sentencing claim.
In his appellate brief, Davis argues that the trial court “glossed over
[his] history with alcohol, failing to recognize that alcohol played a major role
in [his] offense history, including the current offenses.” Appellant’s Brief at
27. Specifically, Davis offers the following concerning his history with alcohol:
The Presentence Investigation revealed that Mr. Davis likely has
had a significant problem with alcohol. He self-reported that he
began drinking at age 21. By age 31, he increased his usage so
much that he was consuming a 6[-]pack of beer every few days.
He was also frequently drinking liquor at that time. Although Mr.
Davis reported his drinking decreased around age 38, he very
likely still had a significant alcohol problem.
Id.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
____________________________________________
3 The factors to be considered under 42 Pa.C.S.A. § 9721(b) include: the
protection of the public, gravity of offense in relation to impact on victim and
community, and rehabilitative needs of the defendant. See 42 Pa.C.S.A. §
9721(b).
- 13 -
J-S39014-22
of discretion. See Fullin, 892 A.2d at 847. In this context, an abuse of
discretion is not shown merely by an error in judgment. See id. Rather, an
appellant must establish by reference to the record that the sentencing court
ignored or misapplied the law, exercised its judgment for reasons of partiality,
prejudice, bias, or ill will, or arrived at a manifestly unreasonable decision.
See id.
The sentencing judge has broad discretion in determining the proper
penalty, and this Court accords the sentencing court great deference, as it is
the sentencing court that is in the best position to view a defendant’s
character, displays of remorse, defiance, or indifference and the overall effect
and nature of the crime. See Commonwealth v. Walls, 926 A.2d 957, 961
(Pa. 2007) (quotations and citations omitted). As we have stated, “[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) (citation omitted). “In particular, the court should refer to the
defendant’s prior criminal record, his age, personal characteristics and his
potential for rehabilitation.” Id. (citation omitted).
In addition, “[o]ur Supreme Court has determined that where the trial
court is informed by a pre-sentence report, it is presumed that the court is
aware of all appropriate sentencing factors and considerations, and that where
the court has been so informed, its discretion should not be disturbed.”
- 14 -
J-S39014-22
Commonwealth v. Ventura, 975 A.2d 1128, 1133 (Pa. Super. 2009) (citing
Commonwealth v. Devers, 546 A.2d 12 (Pa. 1988)).
Our review of the record reflects that, at Davis’s sentencing, the trial
court received and reviewed a presentence report, and no corrections were
requested. N.T.,12/13/21, at 33-34. The trial court also heard argument from
defense counsel. See id. at 35-37. Defense counsel observed that: Davis has
been a model prison while in the county jail; Davis has a strong work history;
and Davis has had an education beyond the high school level. See id. In
addition, defense counsel discussed that the presentence report reflects a
struggle with alcohol. Id. at 37.
Immediately prior to announcing the judgment of sentence, the trial
court meticulously detailed its reasoning for imposing the sentence, which
included a thorough discussion of all the relevant sentencing factors. See id.
at 44-51. At the outset of its discussion, the trial court indicated that it had
taken into consideration all of the information in the presentence report, which
“would include [Davis’s] history of substance abuse.” Id. at 44. After noting
Davis’s alcohol usage over the course of time, the trial court observed that
“[Davis] denies ever using illegal substances and has never participated in
treatment.” Id. The trial court also stated that it “believes a sentence of total
confinement is necessary because [Davis] is in need of correctional treatment
that can be best provided most effectively by his commitment to an
institution.” Id. at 51.
- 15 -
J-S39014-22
In addition, the trial court noted the following in addressing the
sentencing issue in Davis’s post-sentence motion: “[Davis] states the court
failed to properly consider his rehabilitative needs and alcohol history. [Davis]
is mistaken as the court specifically referenced [Davis’s] history of alcohol
consumption and noted he has never participated in any treatment.” Order,
12/28/21, at 1 n.1.
We conclude the reasons the trial court offered for the sentence imposed
were more than sufficient to conclude that the court properly considered all
relevant factors in fashioning Davis’s sentence, including Davis’s history of
alcohol usage. Also, because the trial court had been fully informed and relied
upon the presentence report, we conclude the trial court did not abuse its
discretion in creating the instant sentence. Ventura, 975 A.2d at 1133.
Accordingly, Davis’s claim that the trial court failed to consider the appropriate
factors in imposing the sentence lacks merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/14/2023
- 16 -