Com. v. Shoemaker, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
JESSE VANCE SHOEMAKER
Appellant No. 582 MDA 2014
Appeal from the Judgment of Sentence February 11, 2014
In the Court of Common Pleas of Cumberland County
Criminal Division at No(s): CP-21-CR-0001415-2012
BEFORE: ALLEN, J., OTT, J., and STRASSBURGER, J.*
MEMORANDUM BY OTT, J.: FILED AUGUST 19, 2015
Jesse Vance Shoemaker (“Shoemaker”) appeals from the judgment of
sentence imposed on February 11, 2014, in the Court of Cumberland
County. A jury found him guilty of involuntary deviate sexual intercourse
(IDSI) with a child, corruption of minors, and indecent assault. 1 The trial
court determined Shoemaker was a sexually violent predator (SVP) and
sentenced him to an aggregate term of 10 to 20 years’ imprisonment. 2 On
appeal, Shoemaker challenges (1) the sufficiency of the evidence, (2) the
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. §§ 3123(b), 6301(a)(1)(i), and 3126(a)(7), respectively.
2
The trial court sentenced Shoemaker to 10-to-20 years’ imprisonment on
the IDSI charge. On the corruption of minors charge and indecent assault
charge, the court sentenced Shoemaker to sentences of 1-to-5 years, to run
concurrently with one another and with the IDSI sentence.
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weight of the evidence, (3) the SVP determination, and (4) the legality of his
sentence. For the following reasons, we affirm.
The trial court has set forth the facts underlying Shoemaker’s
conviction, as presented at the September 9–10, 2013, jury trial, as follows:
The offenses at this docket occurred on or about April 22,
2006, when [Shoemaker] lived with [his paramour at the time,
H.T.], his sons Z.S. and B.S. and the victim, J.M., H.T.’s
daughter from another relationship, in Carlisle, Cumberland
County. At the time of the offenses, [Shoemaker] was 29 years
old and J.M. was 6 years old. By the time of trial, J.M. was a 14-
year-old ninth grader who had been living almost exclusively
with her father since shortly after the events in question. When
asked how she could remember something that occurred when
she was six, J.M. related “Because it was, like, bad. It was — I
don’t know.” J.M. proceeded to relate her account, which the
jury obviously accepted as true.
The only time J.M. recalled being alone with [Shoemaker],
was in April 2006, when [Shoemaker] took her home from the
babysitter’s because [H.T.] was working. When they arrived, he
told her to go to her room. [Shoemaker] told J.M. to sit on her
bed and placed her “stash of lollipops” next to her. [Shoemaker]
then blindfolded J.M. with a black, silky nightgown and told her
they were going to play a game where she would guess the
flavors of the lollipops as he placed them in her mouth. After
guessing 6 or 7 lollipop flavors, [Shoemaker] placed something
“big and warm and hairy” into her mouth. Although J.M. tried to
stop him because she was “chok[ing] on the hairs … he just
kept going … pushing me forward ... holding my head, the back
of my head ... moving my head forward.”
When he had finished, because J.M. could not guess the
flavor “[Shoemaker] finally just said it was my thumb” and left
the room before J.M. took off the blindfold, assuming the game
was over. Later, J.M. knew that when [Shoemaker] told her not
to say anything to anyone that “it was like the wrong thing,” and
so she told her mother “a couple days after … when he was
gone.” Although J.M. may not have fully appreciated
[Shoemaker’s] actions when she was six, she testified
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unmistakably, that [Shoemaker] had placed his penis and not his
thumb in her mouth.
[Shoemaker’s] account of the incident differed
substantially - not only did the tasting game involve several
children, but it also took place while [Shoemaker’s] mother and
step-father were at the house. Interestingly, even in this setting,
he went beyond the rules of the game and placed his “thumb”
into J.M.’s mouth. Finally, [Shoemaker] explained that his “don't
tell anybody” admonition was out of concern that [H.T.] would
be upset that he had fed the kids candy before dinner, not that
anything morally improper had occurred.
Trial Court Opinion, 9/30/2014, at 4–6 (footnotes omitted). Shoemaker was
convicted and sentenced as stated above. Following the denial of his motion
to reconsider/modify sentence, Shoemaker filed this timely appeal.
We first address Shoemaker’s sufficiency claim. Our standard of
review of sufficiency claims is well settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test, we
may not weigh the evidence and substitute our judgment for the
fact-finder. In addition, we note that the facts and circumstances
established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant’s guilt
may be resolved by the fact-finder unless the evidence is so
weak and inconclusive that as a matter of law no probability of
fact may be drawn from the combined circumstances. The
Commonwealth may sustain its burden of proving every element
of the crime beyond a reasonable doubt by means of wholly
circumstantial evidence. Moreover, in applying the above test,
the entire record must be evaluated and all evidence actually
received must be considered. Finally, the [finder] of fact while
passing upon the credibility of witnesses and the weight of the
evidence produced, is free to believe all, part or none of the
evidence.
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Commonwealth v. Brooks, 7 A.3d 852, 856–857 (Pa. Super. 2010).
The offenses of involuntary deviate sexual intercourse, corruption of
minors, and indecent assault that are at issue in this sufficiency challenge,
are defined in the Crimes Code, as follows:
 Involuntary deviate sexual intercourse with a child.
A person commits involuntary deviate sexual intercourse with a
child, a felony of the first degree, when the person engages in
deviate sexual intercourse with a complainant who is less than
13 years of age.
18 Pa.C.S. § 3123(b). Deviate sexual intercourse is defined as “[s]exual
intercourse per os or per anus between human beings[.]” 18 Pa.C.S. §
3101.
 Corruption of minors.
Except as provided in subparagraph (ii), 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, or
who aids, abets, entices or encourages any such minor in the
commission of any crime, or who knowingly assists or
encourages such minor in violating his or her parole or any order
of court, commits a misdemeanor of the first degree.
18 Pa.C.S. § 6301(a)(1)(i).
 Indecent assault
A person is guilty of indecent assault if the person has indecent
contact with the complainant, causes the complainant to have
indecent contact with the person or intentionally causes the
complainant to come into contact with seminal fluid, urine or
feces for the purpose of arousing sexual desire in the person or
the complainant and … the complainant is less than 13 years of
age[.]
18 Pa.C.S. § 3126(a)(7).
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Shoemaker claims the Commonwealth produced insufficient evidence
to show inappropriate contact occurred between him and J.M for conviction
of IDSI and indecent assault. Shoemaker further asserts without sufficient
evidence to prove IDSI and indecent assault, the Commonwealth failed to
establish the corruption of minors charge. See Shoemaker’s Brief at 16–19.
Shoemaker contends the Commonwealth failed to prove all the
elements of IDSI and indecent assault beyond a reasonable doubt because
the only evidence the Commonwealth offered was the testimony of J.M., and
there were no eyewitnesses, and no corroborating medical or physical
evidence. Shoemaker argues the doctor who examined J.M. found no
physical evidence of harm or abuse. Shoemaker also argues that J.M.’s
testimony from the 2006 preliminary hearing wherein she described the
rough edge of a thumbnail in her mouth changed at the 2013 trial when she
stated she believed Shoemaker had put his penis in her mouth. In addition,
Shoemaker points out J.M. admitted on cross examination that she had
played the lollipop game with her step-sister, after she testified on direct
examination she had never played the game before. See Shoemaker’s
Brief, id. Shoemaker’s argument is meritless.
Section 3106 of the Crimes Code provides that testimony of a sex
offense victim need not be corroborated. 18 Pa.C.S. § 3106. See also
Commonwealth v. McDonough, 96 A.3d 1067, 1069 (Pa. Super. 2014),
citing Commonwealth v. Charlton, 902 A.2d 554, 562 (Pa. Super. 2006)
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(“The uncorroborated testimony of a sexual assault victim, if believed by the
trier of fact, is sufficient to convict a defendant.”), appeal denied, 108 A.3d
34 (Pa. 2015); Commonwealth v. Castelhun, 889 A.2d 1228, 1232 (Pa.
Super. 2005) (same); Commonwealth v. Poindexter, 646 A.2d 1211,
1214 (Pa. Super. 1994) (“no medical testimony is needed to corroborate the
victim’s testimony”). Here, J.M. testified at trial that when she was six years
old, Shoemaker put an object in her mouth that was “big, and warm and
hairy.” N.T., 9/9–10/2013, at 40. When she tried to stop the game,
Shoemaker “kept going” and was “holding” and “moving” her head forward.
Id. at 40–41. She testified that now that she was 14 years of age, she
believed Shoemaker had inserted his penis in her mouth. Id. at 42. Her
testimony, which the jury was free to believe and did believe, described
Shoemaker playing a game to trick J.M. into performing oral sex on him. To
the extent that Shoemaker argues and relies upon inconsistencies in J.M.’s
testimony, Shoemaker is requesting that this Court view the evidence in the
light most favorable to him. However, our standard of review requires us to
view the evidence in the light most favorable to the Commonwealth as
verdict winner. See Brooks, supra. As such, there was sufficient evidence
to convict Shoemaker of the charged offenses. See 18 Pa.C.S. §§ 3123(b),
6301(a)(1)(i), and 3126(a)(7), supra. Therefore, Shoemaker’s sufficiency
challenge fails.
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Shoemaker next argues that he is entitled to a new trial as the guilty
verdicts against him were contrary to the weight of the evidence. However,
Shoemaker did not raise a weight of the evidence claim in the trial court
until he filed his Pa.R.A.P. 1925(b) statement and, therefore, it is waived.
As this Court has reiterated:
“[A] weight of the evidence claim must be preserved
either in a post-sentence motion, by a written motion
before sentencing, or orally prior to sentencing.
Pa.R.Crim.P. 607; Commonwealth v. Priest, 2011 PA
Super 85, 18 A.3d 1235, 1239 (Pa. Super. 2011). Failure
to properly preserve the claim will result in waiver, even
if the trial court addresses the issue in its opinion.
Commonwealth v. Sherwood, 603 Pa. 92, 982 A.2d 483, 494
(2009).
Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012). See
also Commonwealth v. Gillard, 850 A.2d 1273, 1277 (Pa. Super. 2004)
(finding waiver where defendant first raised weight of the evidence claim in
Pa.R.A.P. 1925(b) statement). Therefore, we do not address this claim.
Next, Shoemaker challenges the sufficiency of the evidence to sustain
the SVP determination. Our standard of review is well settled:
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.
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This Court has explained the SVP determination process as
follows:
After a person has been convicted of an offense listed in
[42 Pa.C.S.A. § 9799.14], the trial [court] then orders an
assessment to be done by the [SOAB] to help determine
if that person should be classified as a[n SVP. An SVP] is
defined as a person who has been convicted of a sexually
violent offense … and who [has] 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 .... 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. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015)
(citations omitted).
Here, Shoemaker claims that the evidence introduced to suggest his
behavior was predatory was insufficient. Specifically, Shoemaker argues:
Dr. Stein[3] testified he believed Mr. Shoemaker engaged in
predatory behavior by the single act of a penetrative sexual
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3
At the SVP hearing, the Commonwealth presented Robert Stein, Ph.D., a
licensed psychologist and a member of the Pennsylvania Sexual Offender
(Footnote Continued Next Page)
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assault. N.T. at 10-11. This Honorable Court should find this
interpretation of the definition of predatory behavior by Dr.
Stein, wherein a single sexual act suffices that a defendant
initiated, established, maintained, or promoted a relationship
with in order to facilitate victimization, insufficient because it
would greatly expand the statute to include any sexual crime
that had a single occurrence.
Shoemaker’s Brief at 25. We find no merit in this argument.
The term “predatory” is defined by statute as follows:
“Predatory.” An act 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.
42 Pa.C.S § 9799.12. Further, the term “sexually violent predator” is
defined to include an individual convicted of IDSI (see § 9799.14(d)), and
who “is determined to be a sexually violent predator 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. § 9799.12.
At the January 17, 2014 SVP hearing, Dr. Stein, after analyzing the
statutory factors, explained his SVP assessment of Shoemaker during his
direct examination:
The first step is whether or not there is a condition which
is the impetus to sexual offending. The condition in this case is
pedophilia. When [Shoemaker] was 16, he engaged in a number
_______________________
(Footnote Continued)
Assessment Board (“SOAB” or “the Board”), who was qualified by the court
as an expert in sexual offender assessments.
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of sexual assaults on young children, three prepubescent
victims, and he would have met criteria at that time of
pedophilia.
Many years past and he has now engaged, well, as of
2006, in another offense against another prepubescent child.
There is sufficient evidence to state that [Shoemaker] has
harbored sexual interest in prepubescent children for a period
greater than six months which allows him to meet the criteria for
pedophilia.
This is not a curable condition. The condition overrode his
control in that he would have had an urge to molest a young
child that he either could not or would not control, and in terms
of likelihood, if the defendant is an unsupervised contact with
children in the future, there is likelihood of re-offense.
So based on all of that, it is my opinion that he suffers
from mental abnormality as the Act defines it. That’s the first
issue of mental abnormality.
The second is whether or not the act of predatory sexually
assaulting the child in this manner involving oral sex served to
promote a sexually victimizing relationship and therefore meets
the definition of predatory behavior in the promotion of sexual
victimization as the statute defines it.
Q. And it’s your opinion, to a reasonable degree of
professional certainty, that the predatory behavior in this case …
meets that?
A. Yes.
Q. And when you say defined by the statute, are you
referring to Title 42 Section 9792?[4]
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4
We note that the applicable definitional section is 42 Pa.C.S. § 9799.12, as
stated in the Commonwealth’s Praecipe Pursuant to 42 Pa.C.S. §
9799.24(e), filed November 15, 2013, requesting an SVP hearing for
Shoemaker For purposes of this appeal, we note the definition of “sexually
violent predator” is essentially the same in both sections, and the definition
of “predatory” is identical in both sections.
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A. Yes.
Q. And referring back to the first definition, it’s your
opinion that [Shoemaker] is likely to re-offend again?
A. Yes.
Q. Based on your training and experience, do you have an
opinion to a reasonable degree of professional certainty as to
whether or not [Shoemaker] meets the statutory criteria and
should be classified as a sexually violent predator?
A. Yes. I do believe he should be classified as a sexually
violent predator.
N.T., 1/17/2014, at 10–11. The trial court, after hearing the testimony of
Dr. Stein and Shoemaker, found the testimony of Dr. Stein to be credible,
and determined the evidence was sufficient to prove by clear and convincing
evidence that Shoemaker was an SVP. We agree.
The question before the court in an SVP hearing is whether the
person’s mental abnormality makes the person likely to engage in predatory
behavior. Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. Super.
2008) (citation omitted). Here, Dr. Stein concluded Shoemaker suffers from
pedophilia and opined Shoemaker should be classified as an SVP as defined
by statute. In advance of expressing his opinion, Dr. Stein testified
regarding Shoemaker’s predatory sexual assault of J.M., and also detailed
his consideration of the statutory assessment factors in Section 9799.24,
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which included Shoemaker’s prior sexual assaults and the risk of re-offense.5
Having reviewed Dr. Stein’s report and his testimony, we find no error in the
trial court's conclusion there was clear and convincing evidence to sustain
Shoemaker’s designation as an SVP. Accordingly, no relief is due on this
claim.
Finally, Shoemaker challenges the imposition of a 10-to-20 year
sentence for IDSI. Shoemaker argues “the imposition of the 10 year
mandatory minimum to 20 year statutory maximum sentence for
Involuntary Deviate Sexual Intercourse with a minor was manifestly
excessive and an abuse of discretion.” Shoemaker’s Brief at 26.
By way of background, the applicable mandatory minimum sentence
for IDSI at the time of Shoemaker’s offense was 5 years, pursuant to 42
Pa.C.S. § 9718. Thereafter, the Legislature raised the mandatory minimum
sentence for IDSI to 10 years. Recently, in Commonwealth v. Wolfe, 106
A.3d 800, 805–806 (Pa. Super. 2014), this Court held that section 9718 is
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5
Regarding the factor of re-offense, Dr. Stein testified:
Having any criminal history, having a prior sexual criminal
history, having a history of greater than four sentencing dates
for any criminal activity, having a prior violent offense, sex
offense following treatment and having a history of male victims,
that would have been the prior sex offense, and having an
unrelated victim, all of these are associated statistically with
increased risk.
N.T., 1/17/2014, at 9.
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void in its entirety and facially unconstitutional based upon the United States
Supreme Court’s decision in Alleyne v. U.S., 133 S. Ct. 2151 (2013)
(holding that any “fact” that increases a mandatory minimum sentence must
be treated as an element of the crime that must be submitted to a jury, not
a sentencing court, and found beyond a reasonable doubt).
In light of Alleyne and Wolfe, Shoemaker argues, “The court … relied
on the increased mandatory minimum to sentence [Shoemaker] to 10-to-20
years incarceration. The Court’s reliance on an unconstitutional mandatory
minimum when imposing sentence is improper, [and] an abuse of
discretion[.]” Shoemaker’s Brief at 28.
The standard of review that governs the applicability of a mandatory
sentencing provision is as follows:
Generally, a challenge to the application of a mandatory
minimum sentence is a non-waiveable challenge to the legality
of the sentence. Issues relating to the legality of a sentence are
questions of law, as are claims raising a court’s interpretation of
a statute. Our standard of review over such questions is de novo
and our scope of review is plenary.
Commonwealth v. Pennybaker, ___ A.3d ___, ___ [2015 PA Super 161]
(Pa. Super. 2015).
The record reveals that the Commonwealth provided notice to
Shoemaker that it was seeking a five year mandatory minimum sentence
pursuant to 42 Pa.C.S. § 9718(a)(1). The applicable, five year mandatory
minimum, as well as the more recent 10 year mandatory minimum, were
discussed at the sentencing hearing. See N.T., 2/11/2014, at 12–13. Also
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discussed were the sentencing guidelines, which in this case called for a
standard range minimum sentence of 72 months (6 years) to 120 months
(10 years), although the top of the standard range was misstated to the
court as 240 months. 6, 7
The court, in imposing the 10-to-20 year sentence, which it
mischaracterized as an aggravated range sentence, explained that the
previous 5 year “mandatory minimum is quite frankly insufficient, and under
the circumstances it is, as I say, imperative that you receive the maximum
sentence available.” Id. at 14–15. At the hearing on Shoemaker’s motion
for reconsideration of sentence, the court clarified that the IDSI 10-to-20
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6
The sentencing guideline standard range for Shoemaker’s offense is 72
months to the statutory limit. The “statutory limit” is one-half of the
statutory maximum, which in this case is 10 years, as IDSI with a child is
graded as a first degree felony with a 20 year maximum sentence. See §
303.9(g), Sentencing Guidelines Implementation Manual 6th ed., 6/3/2005
(“For purposes of the guidelines, the statutory limit is the longest legal
minimum sentence, which is one-half the maximum allowed by law.”).
Despite the misstatement that the top of the standard range was 240
months, the court was obviously aware that the longest minimum sentence
that could be imposed for Shoemaker’s IDSI conviction was 10 years. See
N.T., 2/11/2014, at 15 (imposing 10-20 year sentence as “maximum
sentence possible”).
7
Since the guidelines are longer than the 5-year applicable mandatory
minimum sentence, the court must consider the guideline sentence
recommendation. See id. at § 303.9(h) (“When the sentence
recommendation is higher than that required by a mandatory sentencing
statute, the court shall consider the guideline sentencing
recommendation.”).
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year sentence “is within the standard range”8 of the sentencing guidelines.
N.T., 3/27/2014, at 21.
Recently, in Commonwealth v. Zeigler, 112 A.3d 656 (Pa. Super.
2015), this Court explicitly held that — where a mandatory minimum
sentencing statute exists for a crime, but where the sentencing court
exceeds the mandatory minimum term by applying a standard guideline
range sentence — the trial court has not “sentence[d] the defendant based
on the mandatory statute, and [the defendant’s] sentence is not illegal on
that ground.” Id. at 662. Specifically, in Zeigler, this Court stated:
[W]e are aware that a mandatory minimum statute exists for
[the defendant's] aggravated assault crime since he admitted to
visibly possessing a firearm during its commission. 42 Pa.C.S.A.
§ 9712. Based on decisions from this Court, imposing such a
mandatory is illegal. However, the sentencing court
exceeded the mandatory minimum sentence when it
applied the standard guideline range sentence where a
deadly weapon was used. Hence, the court did not
sentence the defendant based on the mandatory statute,
and his sentence is not illegal on that ground.
Id. (emphasis added).
Here, the record makes clear that the trial court did not apply either
the applicable five year mandatory minimum or the more recent 10 year
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8
We note the Pennsylvania Sentencing Guideline form contained in the
certified record shows the mandatory minimum statute — Section 9718, the
mandatory minimum of “60 months,” the mitigated guideline range of “60
Months,” and the standard guideline range of “72 – 240” (sic) months. The
guideline form also reflects the sentence imposed as “standard/mandatory.”
The guideline form, however, is only for record-keeping purposes.
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mandatory minimum. Rather, the trial court exceeded the mandatory
minimum, and based the 10-to-20 year sentence upon the sentencing
guideline recommendations. As such, we conclude Shoemaker’s claim that
his sentence is illegal is baseless and warrants no relief.
As discussed above, we have treated Shoemaker’s claim as an illegal
sentencing claim based upon Alleyne and Wolfe. To the extent Shoemaker
also argues his sentence is excessive and the court abused its discretion,
this claim would be a challenge to the discretionary aspects of the sentence,
although Shoemaker has not specifically framed his argument as such.
In any event, even had Shoemaker properly presented a discretionary
aspects of sentencing challenge, we would find no abuse of discretion. The
record of the sentencing hearing reflects the trial court fully justified its
sentence, explaining its consideration of all relevant sentencing factors,
including “the protection of the public, the gravity of the offense as it relates
to the impact on the life of the victim and on the community, and the
rehabilitative needs of the defendant,” in accordance with 42 Pa.C.S. §
9721. See N.T., 2/11/2014, at 14. Therefore, we would conclude no relief
is due.
Accordingly, we affirm the judgment of sentence.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/2015
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