Com. v. Leone, P. ( 2018 )

J-S26037-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
PHIL LEONE, :
:
Appellant : No. 3307 EDA 2017
Appeal from the Judgment of Sentence June 5, 2017
In the Court of Common Pleas of Northampton County Criminal Division
at No(s): CP-48-CR-0000626-2016
BEFORE: BENDER, P.J.E., BOWES, J., and STEVENS*, P.J.E.
MEMORANUDM BY STEVENS, P.J.E.: FILED NOVEMBER 06, 2018
Appellant Phil Leone appeals from the judgment of sentence entered in
the Court of Common Pleas of Northampton County on June 5, 2017, following
his convictions of Involuntary Deviate Sexual Intercourse with a child (IDSI)
and related offenses.1 After review, we vacate the portion of Appellant's
sentence requiring him to comply with SORNA,2 affirm in all other respects,
and remand for further proceedings.
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1 Appellant was convicted of IDSI, 18 Pa.C.S.A. § 3123(b); Aggravated
Indecent Assault(Complainant less than 13 years), 18 Pa.C.S.A. § 3125(a)(7);
Indecent Assault: course of conduct, 18 Pa.C.S.A. § 3126(a)(7); Endangering
the Welfare of a Child: course of conduct, 18 Pa.C.S.A. § 4304(b); Corruption
of Minors: sexual nature, 18 Pa.C.S.A. § 6301(a)(1)(ii); Sexual Abuse of
Children: photographing, videotaping, depicting on computer or filming sexual
acts, 18 Pa.C.S.A. § 6312(b)(2); and Sexual Abuse of Children: child
pornography, 18 Pa.C.S.A. § 6312(d)(1).
2 The Sex Offender Registration and Notification Act, 42 Pa.C.S.A. §§ 9799.10-
9799.41.
____________________________________
* Former Justice specially assigned to the Superior Court.
J-S26037-18
Appellant’s convictions arose following his repeated sexual abuse of the
victim, C.S., from 2005-2011, when she was between the ages of five and
twelve years old. N.T., 2/27/17, at 106-08. Appellant is the paramour of
C.S.’s grandmother and served as a caretaker for C.S. Id. at 55-57. The
evidence presented at trial revealed that when Appellant and C.S. were alone
in Appellant’s bedroom or in the basement of the grandmother’s home,
Appellant would force C.S.’s hand to touch his penis, instruct her to perform
fellatio upon him, show her movies containing sex scenes, and require her to
view images of child pornography. Appellant would fondle C.S.’s breasts,
manually touch her vagina and buttocks, penetrate her vagina and anus with
his finger, photograph her genitals, and bathe her. Id. at 62-85, 94.
Appellant repeatedly told C.S. not to tell anyone about these encounters
because she “would get in trouble,” and she believed him because she “knew
it was the wrong thing to do.” Id. at 74, 79, 89. Appellant would buy C.S.
toys or give her money “when [she] would do his things for him.” Id. at 92-
93.
As she got older, C.S. was afraid her younger sister would become the
target of Appellant’s abuse were C.S. to try to resist him. Id. at 95, 100.
However, when she was twelve or thirteen years old, C.S. refused Appellant’s
advances and revealed the abuse to a friend, E.L. at school. Id. at 92, 101-
04. When C.S. started to resist Appellant, he told her that she was worthless
and was “part boy and part girl” and called her a “Hermaphrodite.” Id. at 99.
When she was about fifteen years old, C.S. revealed the abuse to her mother
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who informed the Easton Police Department police. N.T., 2/28/17, at 267-
71.3 C.S. detailed for the police the abuse and the rooms in which it occurred
and identified the computers and other electronic devices on which Appellant
stored pornographic images. N.T., 2/27/17, at 62-68, 87-92; N.T., 2/28/17,
at 167-75. As a result, C.S.’s grandmother no longer speaks to C.S. which
C.S. stated is very difficult for her, because she loves her grandmother very
much. Id. at 75.
Based upon the information C.S. provided, the police executed a search
warrant at Appellant’s residence on March 17, 2014, at which time numerous
electronic devices were seized and sent for forensic analysis. N.T., 2/28/17,
at 283-95. Images of child pornography that had been downloaded between
2012 and 2013 were found on the devices. N.T., 3/1/17, at 383-401. A single
laptop could not be analyzed because it was password-protected, and
attempts to bypass the code were not successful. Id. at 401-02.
Appellant testified in his own defense at which time he unequivocally
denied ever having touched C.S. in an inappropriate way or taking sexual or
inappropriate photographs of her. Id. at 441, 467. He explained that “from
the first time [C.S] was dropped off at [his] apartment, [he] assumed the role
of caretaker” and bought C.S. and her brother food, toys and clothing. Id. at
445-47, 450-51. He stated “everybody in the family” had the use of his
computers and informed police that at one point he had found pictures of a
____________________________________________
3C.S. was born in April of 1999, and initially reported the abuse in February
of 2014.
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Russian nudist camp on his computer that he could not delete despite repeated
attempts to do so. Id. at 460-61, 473. Appellant also related that he took
C.S. “bra shopping,” and felt he was particularly suited to do so as he had
experience dressing women as a result of his work as a certified nurse’s
assistant. He claimed he was careful not to look at her changing into the
garments. Id. at 465.
Following his jury trial convictions, the trial court held a hearing in
accordance with section 9799.24(e) of SORNA on June 5, 2017, and at the
conclusion of said hearing, found Appellant to be an SVP and informed him of
his registration requirements. N.T., 6/5/17, at 44-48. Also on June 5, 2017,
Appellant was sentenced to an aggregate term of 337 months to 1,056 months
(28 years to 88 years) in prison. N.T., 6/5/17, at 42-44.4 Appellant received
an extension of time in which to file a post-sentence motion, and he filed the
same on July 5, 2017. Following its review of Appellant’s motion and the
parties’ submitted briefs, the trial court denied Appellant’s post-sentence
motion in its October 5, 2017, Order and Statement of Reasons.
Appellant filed a timely notice of appeal on October 11, 2017. On
October 13, 2017, the trial court issued its order pursuant to Pa.R.A.P.
1925(b) directing Appellant to file a concise statement of the errors
complained of on appeal, and Appellant filed the same on October 17, 2017.
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4 The trial court indicated that each of the sentences were at the high end of
the standard range, though it believed sentences in the aggravated range for
each crime would have been justifiable. Id. at 43.
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The trial court filed its Statement Pursuant to Pennsylvania Rule of Appellate
Procedure 1925(a) wherein it indicated that each of the errors Appellant raised
on appeal echoed those that he had presented in his post-trial motion. The
trial court indicated that it had thoroughly discussed each of those claims in
its Opinion and Order of October 5, 2017, and indicated that for the reasons
it expressed therein, Appellant’s post-trial motion properly was denied in its
entirety.
In his brief, Appellant presents the following Statement of Questions
Involved:
A. Appellant’s conviction under 18 Pa.C.S.A. § 6312(b) was
against the weight of the evidence[.]
B. The [t]rial [c]ourt erred in admitting the photographs
marked as Commonwealth Exhibits 1 and 36-38 because they
were irrelevant or unduly prejudicial.
C. The [t]rial [c]ourt erred in refusing to give the prompt
complaint jury instruction.
D. The [t]rial [c]ourt erred in failing to sustain Appellant’s
objection to the Commonwealth’s closing argument that Appellant
had a propensity to engage in future violence.
E. The [t]rial court erred in overruling objections to hearsay
statements of C.S.
F. The [t]rial [c]ourt erred in denying Appellant’s motion to
sever the 18 Pa.C.S.A. § 6312(d)(1) offense.
G. The [t]rial [c]ourt erred in refusing to modify its sentence
where the sentence was manifestly excessive.
H. The [t]rial [c]ourt erred in refusing to vacate Appellant’s SVP
designation.
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I. The [t]rial [c]ourt erred in refusing to classify Appellant as
a Tier I sex offender only.
Brief for Appellant at 6-7. We will consider these issues in turn.
Appellant first challenges the weight of the evidence to sustain his
conviction of sexual abuse of children under 18 Pa.C.S.A. § 6312(b)(2) which
reads as follows:
(b) Photographing, videotaping, depicting on computer or
filming sexual acts.—
***
(2) Any person who knowingly photographs, videotapes, depicts
on computer or films a child under the age of 18 years engaging
in a prohibited sexual act or in the simulation of such an act
commits an offense.
18 Pa.C.S.A. § 6312(b)(2). Appellant maintains that the conviction and
sentence on this charge should be vacated because the police never recovered
any photographs taken by Appellant of C.S., Appellant testified that he never
took such photographs of the child, and the only evidence offered by the
Commonwealth in support of that charge was C.S.’s testimony. Appellant
reasons that “the facts supporting the conclusion that these photographs were
never taken so clearly outweighs the evidence to the contrary that
[Appellant’]s conviction on this charge constitutes a denial of justice.” Brief
of Appellant at 17-18.
Our Supreme Court has articulated the standard applied to a weight of
the evidence claim as follows:
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The decision to grant or deny a motion for a new trial based upon
a claim that the verdict is against the weight of the evidence is
within the sound discretion of the trial court. Thus, “the function
of an appellate court on appeal is to review the trial court's
exercise of discretion based upon a review of the record, rather
than to consider de novo the underlying question of the weight of
the evidence.” An appellate court may not overturn the trial
court's decision unless the trial court “palpably abused its
discretion in ruling on the weight claim.” Further, in reviewing a
challenge to the weight of the evidence, a verdict will be
overturned only if it is “so contrary to the evidence as to shock
one's sense of justice.”
Commonwealth v. Cash, 635 Pa. 451, 466-67, 137 A.3d 1262, 1270 (2016)
(internal citations omitted). A trial court's determination that a verdict was
not against the weight of the evidence is “[o]ne of the least assailable reasons”
for denying a new trial. Commonwealth v. Colon-Plaza, 136 A.3d 521, 529
(Pa.Super. 2016) (quoting Commonwealth v. Clay, 64 A.3d 1049, 1055
(2013)). A verdict is against the weight of the evidence where “certain facts
are so clearly of greater weight that to ignore them or to give them equal
weight with all the facts is to deny justice.” Commonwealth v. Lyons, 833
A.2d 245, 258 (Pa.Super. 2003) (quotation omitted). “[W]e do not reach the
underlying question of whether the verdict was, in fact, against the weight of
the evidence. ... Instead, this Court determines whether the trial court abused
its discretion in reaching whatever decision it made on the motion[.]”
Commonwealth v. Ferguson, 107 A.3d 206, 213 (Pa.Super. 2015) (citation
omitted).
In addition, a challenge to the weight of the evidence must first be raised
at the trial court level “(1) orally, on the record, at any time before sentencing;
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(2) by written motion at any time before sentencing; or (3) in a post-sentence
motion.” Commonwealth v. Akrie, 159 A.3d 982, 989 (Pa.Super. 2017)
(citation omitted). Herein, Appellant preserved this challenge by raising it in
his post-sentence motion filed on July 5, 2017. In its October 5, 2017, Order,
the trial court made an explicit determination on the weight of the evidence
as follows:
In order for a defendant to be convicted of the crime at
issue, the Commonwealth must prove, beyond a reasonable
doubt, that a defendant "knowingly photograph[ed],
videotap[ed], depict[ed], or film[ed] a child under the age of 18
years engaging in a prohibited sexual act or in the simulation of
such such[.]" Id. For purposes of this statute, the term "prohibited
sexual act" is defined as "[s]exual intercourse[,] masturbation,
sadism, masochism, bestiality, fellatio, cunnilingus, lewd
exhibition of the genitals or nudity if such nudity is depicted for
the purpose of sexual stimulation or gratification of any person
who might view such depiction," 18 Pa.C.S. § 6312. Specifically
as it relates to this case, [Appellant] was charged with
photographing the naked genitals of victim C.S., on multiple
occasions.
At trial, the Commonwealth presented the testimony of C.S.,
who described the circumstances under which [Appellant]
photographed her naked genitals on multiple occasions, including
in his vehicle and on the floor of her grandmother's bedroom.
(N.T. 2/27/17, pp. 82, 87-90). She testified that he stored these
images by some electronic means, and would show them to her
at times. Id. at 90-91. At all pertinent times, C.S. was a minor.
No physical evidence, such as photographs, was presented at trial.
Testimonial evidence was presented that the Commonwealth
seized various electronic equipment, including computers, flash
drives, and a camera, from [Appellant’s] home. One of the
computers could not be unlocked by law enforcement. No images
of C.S. were recovered from the computers or camera. [Appellant]
denied taking any inappropriate photographs of C.S.
Despite these evidentiary conflicts, we found that the jury
properly concluded, on the basis of the testimony of C.S., that
[Appellant] committed the crime at issue. The testimony of C.S.
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was sufficient to sustain a conviction for this charge, and the
absence of any photographic evidence does not defeat her
testimony. Such images are transient and easily deleted.
Moreover, the detailed testimony of C.S. was highly credible.
Accordingly, we find that the conviction for Sexual Abuse of
Children -photographing, videotaping, depicting on computer or
filming sexual acts in no way shocks the conscience. [Appellant]
is not entitled to a new trial on this ground.
Trial Court Order, filed 10/5/17, at 3-4.
Appellant essentially asks this Court to reassess the credibility of the
witnesses and reweigh the testimony and evidence presented at trial. We
cannot, and will not, do so. It was for the jury, as the fact-finder, to determine
the credibility of the witnesses and the weight to be accorded thereto.
Commonwealth v. Simmons, 541 Pa. 211, 229, 662 A.2d 621, 630 (1995).
Accordingly, this claim fails.
Appellant next asserts certain photographs admitted into evidence were
unduly prejudicial. Appellant argues that the sole purpose of the admission
of a photograph of C.S. at the age of five was to inflame the jury and that any
probative value of the image was outweighed by its prejudicial effect. Brief
for Appellant at 19-20. Appellant further states several photographs of an
adult male sleeping shirtless with several little girls were not of a pornographic
nature, irrelevant, and unduly prejudicial and, in fact, depicted Appellant’s
deceased brother, shirtless and sleeping with his grandchildren in bed. Id. at
20.
When considering the admission of evidence it is axiomatic that:
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[q]uestions regarding the admission of evidence are left to the
sound discretion of the trial court, and we, as an appellate court,
will not disturb the trial court's rulings regarding the admissibility
of evidence absent an abuse of that discretion. An abuse of
discretion is not merely an error of judgment; rather, discretion is
abused when “the law is overridden or misapplied, or the
judgment exercised is manifestly unreasonable, or the result of
partiality, prejudice, bias, or ill-will, as shown by the evidence or
the record.”
Commonwealth v. Trinidad, 96 A.3d 1031, 1036 (Pa.Super. 2014)
(citations and quotation marks omitted), appeal denied, 627 Pa. 758, 99 A.3d
925 (2014).
Evidence is relevant if it has “any tendency to make the existence
of any fact that is of consequence to the determination of the
action more probable or less probable than it would be without the
evidence.” Pa.R.E. 401. “All relevant evidence is admissible,
except as otherwise provided by law.” Pa.R.E. 402. “Although
relevant, evidence may be excluded if its probative value is
outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue
delay, waste of time, or needless presentation of cumulative
evidence.” Pa.R.E. 403.
Jacobs v. Chatwani, 922 A.2d 950, 963 (Pa.Super. 2007), appeal denied,
595 Pa. 708, 938 A.2d 1053 (2007). With regard to photographic evidence, it
is well-established that:
[a] determination of whether photographic evidence alleged to be
inflammatory is admissible involves a two-step analysis. First, the
court must decide whether a photograph is inflammatory by its
very nature. If the photograph is deemed inflammatory, the court
must determine whether the essential evidentiary value of the
photograph outweighs the likelihood that the photograph will
improperly inflame the minds and passions of the jury. The
availability of alternative testimonial evidence does not preclude
the admission of allegedly inflammatory evidence.
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Commonwealth v. Sanchez, 614 Pa. 1, 42, 36 A.3d 24, 49 (2011) (citations
and quotation marks omitted). In addition, “[t]he law presumes that the jury
will follow the instructions of the court.” Commonwealth v. Chmiel, 612 Pa.
333, 457, 30 A.3d 1111, 1184 (2011) (citations omitted).
The trial court explained the basis for its evidentiary ruling as follows:
Prior to trial, the Commonwealth requested a ruling
permitting the admission of four photographs. The Court ordered
that the photographs were admissible, provided that a proper
foundation was laid at trial. The Commonwealth did lay a proper
foundation and presented the photos at trial. Those photos were
labeled as Exhibits 1, 36, 37, and 38. Exhibit 1 was a photograph
of C.S. at the age she was when the abuse began. Exhibits 36-38
were photographs recovered from [Appellant’s] electronic devices,
depicting an adult male and several little girls asleep together.
The Commonwealth offered Exhibit 1, the photo of C.S. at
the age of five, during the direct testimony of C.S. The photo was
offered for the purpose of showing how C.S. looked when
[Appellant] began to sexually abuse her. The Commonwealth
contended that the photograph was relevant to the credibility of
C.S., insofar as it depicted her as a small and vulnerable young
person who would have been easily overborne by [Appellant] into
complying with his sexual demands, in contrast to the physically
strong young adult woman that she was at the time of trial. We
found the photograph to be relevant for that purpose, and, finding
that there was nothing inflammatory or prejudicial about the
photo, admitted it for that purpose.
The Commonwealth offered Exhibits 36-38, the photos of an
adult male and several children asleep together, during the
testimony of Leon Korejwo, a digital forensic examiner with the
Pennsylvania State Police, who analyzed the electronic devices
that were seized from [Appellant]. He testified that those images
were retrieved from a computer hard drive belonging to
[Appellant]. Again, those photos depicted a shirtless adult male
sleeping with several little girls. While there was nothing
pornographic about what was depicted in those photographs, and
while neither [Appellant] nor C.S. was depicted in those photos,
they were offered by the Commonwealth to support the testimony
of C.S. to the effect that [Appellant] would often come to her while
she was asleep to either (a) bring her into her grandmother's
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basement to perform sex acts, or (b) photograph her genitals.
Insofar as the photographs tended to support a conclusion that
[Appellant] had a prurient interest in sleeping young girls, which
would support the testimony of C.S., we found that they were
relevant to the issue of her credibility. Moreover, we found there
to be nothing about the photographs that was [i]nflammatory or
unduly prejudicial to [Appellant], and thus they were admitted.
Trial Court Order, filed 10/5/17, at 4-6.
We have reviewed the trial transcripts and the photographs at issue and
find that the photographs are not inflammatory by their very nature and agree
with the trial court’s analysis as to their relevance. Indeed, as C.S. testified,
Exhibit 1 is simply a portrait of her taken when she was about five years old.
N.T., 2/27/17, at 107. Exhibits 36-38 are depictions of sleeping children, and
as the trial court noted, were relevant in light of C.S.’s testimony that
Appellant took pictures of her while she slept and routinely woke her in order
to perpetrate his abuse. N.T., 2/27/17, at 87-90; N.T., 3/1/17, at 400.
Moreover, the trial court properly instructed the jury as to the elements and
burden of proof for a conviction of sexual abuse of children-child pornography,
and it was within their purview to determine the pornographic nature, if any,
of those images. N.T., 3/1/17, at 577-78. Thus, no relief is due.
Thirdly, Appellant avers the trial court erred in declining to provide the
jury with the prompt complaint instruction. In doing so Appellant relies upon
this Court’s decision in Commonwealth v. Sandusky, 77 A.3d 663
(Pa.Super. 2013), wherein we held that the application of the prompt
complaint instruction must be determined on a case-by-case basis, even
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where the victim is a child. We find Appellant waived this claim for appellate
review.
During the charging conference, counsel for Appellant asked the trial
court to instruct the jury as to Pennsylvania Suggested Standard Criminal Jury
Instruction 4.13A which concerns the failure of a sexual assault victim to make
a prompt complaint. Noting that C.S. was an “incredibly young child when
this started and we are certainly talking about a man who was an authority
figure with her[,]” the trial court indicated it would not give the instruction.
N.T., 3/1/17, at 507. At this juncture, defense counsel stated, “note my
exception” and argued that the conduct concluded when C.S. was twelve years
old, yet the disclosure was not until some years later. Id. at 507-08. In
response, the trial court informed counsel that it “would not preclude [counsel]
from making that argument[.]” Id. at 508. Notwithstanding, following the
jury charge, the trial court questioned whether counsel had “[a]ny objections
or any corrections[]” to which defense counsel responded, “I have nothing.”
Id. at 579.
A specific and timely objection must be made to preserve a
challenge to a particular jury instruction. Failure to do so results
in waiver. Generally, a defendant waives subsequent challenges
to the propriety of the jury charge on appeal if he responds in the
negative when the court asks whether additions or corrections to
a jury charge are necessary.
Commonwealth v. Moury, 992 A.2d 162, 178 (Pa.Super. 2010) (citations
omitted). Because trial counsel failed to lodge any objection to the court's
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instructions at the conclusion of the jury charge, any claim related to the form
or content of the charge is waived. Id.
In his fourth claim, Appellant posits the prosecutor made improper
statements in her closing argument. Specifically, Appellant highlights the
following comments: “This [Appellant] is an individual that will stop at
nothing, who will continue to manipulate and lie at every turn. . . . Tonight
you can give [C.S] the first sound night’s sleep she’s had in over a decade.
You can tell her, you are safe. You can tell her, this is over.” N.T., 3/1/17,
at 554. Counsel objected at the conclusion of the Commonwealth’s closing
argument, and during the ensuing sidebar discussion argued the statements
“suggested to the jury improperly that they had to convict [Appellant] in this
case so he wouldn’t do this again in the future. That’s an improper argument
to make.” Id. at 555. The trial court responded as follows:
I was –I actually thought that that’s where she was headed and I
was waiting for it, but I don’t think she went there. Again, I know
exactly what you’re talking about, but she immediately turned it
to what he had done in the past, not whether he would do it in the
future.
Id.
In his brief, Appellant argues he was entitled to a mistrial because these
remarks constituted a clear attempt by the Commonwealth to persuade the
jury to convict Appellant based upon his future dangerousness in violation of
this Court’s decision in Commonwealth v Butler, 647 A.2d 928, 935
(Pa.Super. 1994), appeal denied, 540 Pa. 593, 655 A.2d 983 (1994) (stating
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a prosecutor’s reference to future dangerousness in closing argument is
improper).5 Id. at 25.
We review the trial court's denial of a motion for mistrial for an abuse
of discretion. Commonwealth v. Brown, 134 A.3d 1097, 1106 (Pa.Super.
2016) (citation omitted), appeal denied, 636 Pa. 657, 145 A.3d 161 (2016).
When considering the ramifications of a prosecutor's improper remark during
closing arguments, the Pennsylvania Supreme Court has stated:
In reviewing an assertion of prosecutorial misconduct, our inquiry
center[s] on whether the defendant was deprived of a fair trial,
not deprived of a perfect trial. It is well-settled that a prosecutor
must be free to present his or her arguments with logical force
and vigor. Comments grounded upon the evidence or reasonable
inferences therefrom are not objectionable, nor are comments
that constitute “oratorical flair.” Furthermore, the prosecution
must be permitted to respond to defense counsel's arguments.
Consequently, this Court has permitted vigorous prosecutorial
advocacy provided that there is a reasonable basis in the record
for the [prosecutor's] comments. A prosecutor's remarks do not
constitute reversible error unless their unavoidable effect would
prejudice the jurors, forming in their minds fixed bias and hostility
toward the defendant so that they could not weigh the evidence
objectively and render a true verdict. Finally, we review the
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5 It is noteworthy that the Butler Court ultimately found that the prosecutor’s
remark, “Wow! Let's acquit this man and have him gun down somebody and
have him shoot them 15 times in cold blood[]” could not be viewed in isolation
to characterize it “as an appeal to convict, lest by acquitting, the defendant
be loosed upon society to commit more murders.” Id. To the contrary, we
held that when considered in context, the remark was not meant to be taken
as a prediction of future dangerousness and fell short of the standard for
prosecutorial misconduct. Id.
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allegedly improper remarks in the context of the closing argument
as a whole.
Commonwealth v. Sneed, 616 Pa. 1, 24, 45 A.3d 1096, 1109–10 (2012)
(citations and some quotation marks omitted).
Herein, C.S. testified she participated in therapy which helped her to
realize that the abuse was not her fault and she was not to blame. N.T.
2/28/17, at 105. The therapy also helped her to deal with her recurrent
nightmares which she described as follows:
I had nightmares, frequent nightmares that I had over and
over again. I was in a room and I was sitting sown on like a stool,
and there was a glass and my mother was behind it and she—I
remember her crying, and I wanted to go to my mom, but I
couldn’t move. And [Appellant] was right behind me and I
remember I wanted to go to my mom. I wanted to go to my mom,
but I couldn’t move and I couldn’t speak.
Id. at 105-06.
With this backdrop, the trial court concluded the prosecutor’s comments
did not delve into what would happen in the future, but rather harkened back
to the lasting effect of Appellant’s abuse upon C.S. Following our review of
the Commonwealth’s closing argument in its entirety, we agree that the
Commonwealth was not asking the jury to render a verdict based upon
Appellant’s future dangerousness. Rather, the prosecutor’s claims
summarized and commented upon the evidence admitted at trial with
permissible oratorical flair that did not have the unavoidable effect of
prejudicing the jurors. We discern no basis on which to conclude that the
Commonwealth's arguments prejudiced the ability of the jury to weigh the
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evidence objectively and render a fair verdict. Sneed, 45 A.3d at 1110. Thus,
Appellant's claim of prosecutorial misconduct warrants no relief. See Butler,
supra.
Appellant’s fifth issue challenges the trial court’s allowing of numerous
witnesses to testify as to prior out-of-court statements C.S. made pertaining
to Appellant’s sexual abuse of her. See Brief for Appellant at 26. Specifically,
Appellant challenges statements made by C.S.’s mother, her friend, and
Detective Rush of the Easton Police Department and claims that as their
testimony served to “strongly corroborate that of C.S.” it was clearly
prejudicial and resulted in Appellant’s convictions. Id. at 28-29.
In reviewing a trial court's ruling on the admissibility of evidence,
our standard of review is one of deference. It is firmly established
that “[q]uestions concerning the admissibility of evidence lie
within the sound discretion of the trial court, and [a reviewing
court] will not reverse the court's decision on such a question
absent a clear abuse of discretion.” Commonwealth v. Chmiel,
558 Pa. 478, 738 A.2d 406, 414 (1999). An abuse of discretion
requires:
not merely an error of judgment, but where the
judgment is manifestly unreasonable or where the law is
not applied or where the record shows that the action is
a result of partiality, prejudice, bias or ill will.
Chmiel, 738 A.2d at 510, citing Commonwealth v. Widmer,
560 Pa. 308, 744 A.2d 745, 753 (2000) (citation omitted).
Commonwealth v. Giles, 182 A.3d 460, 461-62 (Pa.Super. 2018). In Giles,
this Court determined that a grandmother's testimony concerning an interview
between the victim and a police officer was admissible as a prior consistent
statement in response to cross-examination which inferred fabrication and
improper motive on the part of the grandmother. We held the trial court
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properly had allowed the Commonwealth to rehabilitate the witness by
eliciting prior consistent statements that the victim had made. Id. See also
Pa.R.E. 613(c).6
We find the trial court did not abuse its discretion in disposing of this
claim. In its October 5, 2017, Order, the court set forth the following
explanation of its reasons for determining the statements were admitted
properly at trial:
At trial, the Court admitted testimony from three witnesses
who testified that C.S. had disclosed [Appellant’s] abuse of her to
them on various occasions prior to trial, though those disclosures
lacked most of the details regarding [Appellant’s] specific conduct
to which C.S. testified at trial. These witnesses were (1) a
childhood friend of C.S., named E.L.; (2) C.S.'s mother; and (3)
Detective Matthew Rush. E.L. testified that C.S. disclosed the
abuse to him when C.S. was 12 or 13 years old, in seventh grade.
C.S. was almost 18 years old at the time of trial. C.S.'s mother
testified that C.S. disclosed the abuse to her in February 2014
____________________________________________
6Entitled “(c) Witness's Prior Consistent Statement to Rehabilitate” this
subsection of Pennsylvania Rule of Evidence 613 provides:
Evidence of a witness's prior consistent statement is admissible to
rehabilitate the witness's credibility if the opposing party is given
an opportunity to cross-examine the witness about the statement
and the statement is offered to rebut an express or implied charge
of:
(1) fabrication, bias, improper influence or motive, or faulty
memory and the statement was made before that which has
been charged existed or arose; or
(2) having made a prior inconsistent statement, which the witness
has denied or explained, and the consistent statement supports
the witness's denial or explanation.
Pa.R.E. 613(c).
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when C.S. was almost 15 years old, Detective Rush testified to
statements that C.S. made to him in connection with the
investigation of the crimes charged, days after the disclosure to
C.S's mother.
Prior consistent statements are admissible at trial pursuant
to Pa.R.E. 613(c), which provides, in pertinent part: "Evidence of
a witness's prior consistent statement is admissible to rehabilitate
the witness's credibility if the opposing party is given an
opportunity to cross-examine the witness about the statement
and the statement is offered to rebut an express or implied charge
of fabrication, bias, improper influence or motive, or faulty
memory and the statement was made before that which has been
charged existed or arose." "It is not necessary that the
impeachment be direct; it may be implied, inferred, or insinuated
either by cross-examination, presentation of conflicting evidence,
or a combination of the two.” Commonwealth v. Willis, 552
A.2d 682, 692 (Pa.Super. 1988). Moreover, "where the defense is
centered upon attacking a witness's credibility consistent with a
basis that would permit introduction of a prior consistent
statement to rehabilitate, the trial court is afforded discretion to
allow anticipatory admission of the prior statement."
Commonwealth v. Wilson, 861 A.2d 919, 930 (Pa. 2004).
[Appellant] does not contend that he did not have an
opportunity to cross-examine C.S. about the hearsay statements,
that he did not make an express or implied charge impeaching
C.S,'s testimony, or that the statements were improperly admitted
because they were admitted in an anticipatory fashion prior to his
own testimony denying the veracity of C.S.'s statements.
However, [Appellant] contends in his post-sentence motion that
the hearsay statements were not "prior consistent statements"
within the meaning of Pa.R.E. 613(c), insofar as they were not
made prior to the time at which the improper influence was
alleged by him to have arisen. More specifically, [Appellant]
contends now that C.S. fabricated her testimony as a result of the
influence of her mother, who harbored animosity towards
[Appellant] from at least the time when [Appellant] took C.S.
shopping for bras at Wal-Mart, when C.S. was 10 years old. While
C.S.'s mother may have felt this way, as we noted during the trial
there was not [sic] evidence presented that was sufficient to
effectively charge that she had expressed these feelings such that
C.S. had been influenced to fabricate allegations of sexual abuse.
The evidence presented did show that C.S. was aware, prior
to her first disclosure to E.L., that her mother did not like
[Appellant], who was the paramour of C.S.'s maternal
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grandmother. (N.T. 2/28/17, p.134). This was based at least in
part upon the shopping trip to purchase bras for C.S. In her
testimony, C.S. testified that when she was approximately 10
years old, [Appellant] took her to Wal-Mart to buy her bras. C.S.
testified that she "thought it was weird," and that she "didn't want
to be around him," (N.T. 2/27/17, pp. 96, 97). C.S. further
testified that she did not voluntarily disclose the purchase to her
mother because of those feelings, and that when her mother found
out about [Appellant] buying her bras, "she got really, really
angry." Id. at 97. The testimony of C.S.'s mother is consistent
with that of C.S. The mother testified that when she found out
that [Appellant] had taken her daughter bra shopping, she argued
about it with her own mother, [Appellant’s] paramour, and that
she demanded to the grandmother that [Appellant] no longer be
left alone with C.S. (N.T. 2/28/17, p.230). There was no indication
that C.S. was aware of this argument. While the mother testified
that she had asked C.S., on an unknown number of occasions prior
to the disclosure, whether [Appellant] had been inappropriate with
her, there was no evidence that C.S.'s mother had thereby
influenced C.S. to make a false disclosure of abuse. Moreover, the
timing of those inquiries is unknown. Accordingly, the point in time
at which C.S. was effectively charged with fabrication or being
subjected to improper influence was the period between the report
to police and trial. Therefore, the hearsay statements at issue
were properly considered "prior consistent statements" within the
meaning of the Rule, and, all of the other requirements for
admission having been satisfied, were properly admitted.
Trial Court Order, 10/5/15, at 8-11. Accordingly, we affirm on the
aforementioned basis in finding no merit to this claim of error.
Appellant also challenges the denial of his motion for severance, wherein
he had sought to have two child pornography charges severed from the
remainder of the charges. Appellant states that the offense of child
pornography under Pa.C.S.A. § 6312(d)(1) involved an entirely distinct set of
facts from those that pertained to the allegations of abuse of C.S. Appellant
reasons that none of C.S’s allegations of sexual abuse would have been
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admissible in a separate trial on the child pornography charges, especially in
light of the fact that the alleged abuse would have ceased, at the latest, in
2011, and the pornographic images were not downloaded until 2012, at the
earliest. Brief for Appellant at 31.
When considering challenges to a trial court's denial of a motion to
sever, this Court has stated:
[a] motion for severance is addressed to the sound discretion of
the trial court, and its decision will not be disturbed absent a
manifest abuse of discretion. The critical consideration is whether
the appellant was prejudiced by the trial court's decision not to
sever. The appellant bears the burden of establishing such
prejudice.
Commonwealth v. Dozzo, 991 A.2d 898, 901 (Pa.Super. 2010) (citation,
ellipses and brackets omitted), appeal denied, 607 Pa. 709, 5 A.3d 818
(2010). Two Pennsylvania Rules of Criminal Procedure govern severance.
Rule 582 provides, in relevant part:
(A) Standards
(1) Offenses charged in separate indictments or
informations may be tried together if:
(a) the evidence of each of the offenses would be
admissible in a separate trial for the other and is capable
of separation by the jury so that there is no danger of
confusion; or
(b) the offenses charged are based on the same act or
transaction.
Pa.R.Crim.P. 582(A)(1). In addition, Rule 583 provides as follows: “The court
may order separate trials of offenses or defendants, or provide other
appropriate relief, if it appears that any party may be prejudiced by offenses
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or defendants being tried together.” Pa.R.Crim.P. 583; see also Dozzo, 991
A.2d at 902 (stating that “[u]nder Rule 583, the prejudice the defendant
suffers due to the joinder must be greater than the general prejudice any
defendant suffers when the Commonwealth's evidence links him to a crime.”).
In its Order, the trial court addressed Appellant’s challenges to the
denial of his motion to sever and explained its reasons for determining
Appellant was not entitled to relief. Specifically, the trial court found the
crimes were easily distinguishable such that the jury would have no trouble
separating the evidence in support of the assault charges and the evidence
supporting the pornography charges. The trial court stressed all parties
referenced the charges as the “child pornography charges” and the “assault
charges.” Trial Court Order, 10/5/15, at 12. In addition, the court reasoned
that:
[g]iven that the evidence supporting the child pornography
charges was discovered as a result of a search warrant obtained
by police during their investigation of the assault charges, we
found that the res gestae exception would permit the admission
of the assault evidence in a separate trial for the child
pornography charges, in order to provide for the jury a complete
story as to how the child pornography was discovered. To exclude
the evidence regarding how the child pornography was discovered
would leave the jury to speculate improperly about how the police
came to search [Appellant’s] computers. Moreover, we found that
the evidence of the child pornography would be admissible in a
separate trial for the assault charges, in order to corroborate the
testimony of C.S. in which she described [Appellant] showing her
images of child pornography as a grooming technique.
Id.
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The charges against Appellant were the result of a single investigation
by the Easton Police Department. The set of facts is not complex and the
number of individuals involved is limited; therefore, there was no danger of
jury confusion as a result of the consolidation. Conversely, had the charges
been severed, numerous witnesses would have been required to testify in
separate trials at which much of the evidence would have been duplicative.
Once again, we agree with the trial court's analysis and determination, and
discern no abuse of its discretion.
Appellant, a sixty-seven year old man, further argues his sentence is
manifestly excessive as it is effectively a “death sentence” and fails to give
credence to his prior record score of zero, his lengthy employment history and
his community service. Brief of Appellant at 14-15, 32. This claim implicates
the discretionary aspects of his sentence. See Commonwealth v. Hoag, 665
A.2d 1212, 1213 (Pa.Super. 1995). We consider this issue mindful of the
following:
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. In this context, an abuse
of discretion is not shown merely by an error in judgment. Rather,
the 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.
***
When imposing sentence, a court is required to consider the
particular circumstances of the offense and the character of the
defendant. In considering these factors, the court should refer to
the defendant's prior criminal record, age, personal characteristics
and potential for rehabilitation.
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Commonwealth v. Antidormi, 84 A.3d 736, 760–61 (Pa.Super. 2014)
(internal citations and quotation marks omitted), appeal denied, 626 Pa. 681,
95 A.3d 275 (2014).
An appellant is not entitled to the review of challenges to the
discretionary aspects of a sentence as of right; rather, an appellant
challenging the discretionary aspects of his or her sentence must invoke this
Court's jurisdiction. We determine whether the appellant has invoked our
jurisdiction by considering the following four factors:
(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. [ ] § 9781(b).
Commonwealth v. Samuel, 102 A.3d 1001, 1006–07 (Pa.Super. 2014)
(some citations omitted), appeal denied, 635 Pa. 742, 134 A.3d 56 (2016).
Here, Appellant filed a notice of appeal after preserving the issue by
filing a motion to modify sentence, and his brief contains a statement pursuant
to Pa.R.A.P. 2119(f). Thus, we consider whether Appellant has raised a
substantial question that his sentence is inappropriate, and such a
consideration must be evaluated on a case-by-case basis. Commonwealth
v. Anderson, 830 A.2d 1013, 1018 (Pa.Super. 2003).
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A substantial question exists only where an appellant advances a
colorable argument that the sentencing judge's actions were either
inconsistent with a specific provision of the Sentencing Code or contrary to
the fundamental norms which underlie the sentencing process.
Commonwealth v. Sierra, 752 A.2d 910, 913 (Pa.Super. 2000). A claim
that a sentence is manifestly excessive may raise a substantial question if the
appellant's Pa.R.A.P. 2119(f) statement sufficiently articulates the manner in
which the sentence was inconsistent with the Code or contrary to its norms.
Commonwealth v. Mouzon, 571 Pa. 419, 435, 812 A.2d 617, 627–28
(2002). “The imposition of consecutive, rather than concurrent, sentences
may raise a substantial question in only the most extreme circumstances, such
as where the aggregate sentence is unduly harsh, considering the nature of
the crimes and the length of the imprisonment.” Commonwealth v. Moury,
992 A.2d 162, 171-72 (Pa.Super. 2010) (citation omitted). Indeed, a
defendant is not entitled to a “volume discount” for his crimes by having his
sentences run concurrently. Commonwealth v. Austin, 66 A.3d. 798, 808
(Pa.Super. 2013), appeal denied, 621 Pa. 692, 77 A.3d 1258 (2013).
Here, Appellant asserts in his Rule 2119(f) statement that:
The [t]rial [c]ourt’s consecutive high-end standard range
sentencing of [Appellant], a 67 year old man, is effectively a death
sentence and is manifestly excessive. Such a sentence is contrary
to the fundamental norms which underlie the sentencing process
and, therefore, presents a substantial question for review. It is
also excessive in relation to [Appellant’s] rehabilitative needs and
the protection of the public.
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Brief of Appellant at 15. We find Appellant’s Pa.R.A.P. 2119(f) statement fails
to raise a substantial question. While Appellant contends his sentence is
excessive, he has failed to “set forth the specific provision of the Sentencing
Code or the fundamental norm underlying the sentencing process that the trial
court violated in imposing the sentence.” Commonwealth v. Trippett, 932
A.2d 188, 202 (Pa.Super. 2007). His claim essentially is premised on his
argument that the trial court’s aggregate sentence is excessive in light of his
age and his bald allegations it fails to consider his rehabilitative needs and the
public’s protection. As this Court recently reiterated, this Court does not
accept general assertions of sentencing errors and:
[w]e consistently have recognized that excessiveness claims
premised on imposition of consecutive sentences do not raise a
substantial question for our review. See Commonwealth v.
Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en banc)
(stating, “[a] court's exercise of discretion in imposing a sentence
concurrently or consecutively does not ordinarily raise a
substantial question[.]”), appeal denied, 633 Pa. 774, 126 A.3d
1282 (2015); see also Commonwealth v. Ahmad, 961 A.2d
884, 887 n.7 (Pa. Super. 2008); Commonwealth v. Pass, 914
A.2d 442, 446–47 (Pa. Super. 2006). Additionally, Appellant
claims that the trial court failed to consider his mitigating
circumstances, specifically his “advanced” age of over seventy
years. Appellant's Brief at 50. In Commonwealth v. Eline, 940
A.2d 421 (Pa. Super. 2007), we concluded that an appellant's
argument that “the trial court failed to give adequate
consideration to [his] poor health and advanced age” in fashioning
his sentence does not raise a substantial question. Eline, 940 A.2d
at 435. In so concluding, we explained that “[t]his court has held
on numerous occasions that a claim of inadequate consideration
of mitigating factors does not raise a substantial question for our
review.” Id. (citation omitted); see Commonwealth v. Disalvo,
70 A.3d 900 (Pa. Super. 2013) (citations omitted) (“This Court
has held on numerous occasions that a claim of inadequate
consideration of mitigating factors does not raise a substantial
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question for our review.”); see also Commonwealth v. Berry,
785 A.2d 994 (Pa. Super. 2001) (explaining allegation that
sentencing court failed to consider certain mitigating factor
generally does not raise a substantial question); Commonwealth
v. Cruz–Centeno, 447 Pa.Super. 98, 668 A.2d 536, 545 (1995)
(“[a]n allegation that a sentencing [judge] ‘failed to consider’ or
‘did not adequately consider’ certain factors does not raise a
substantial question that the sentence was inappropriate,”),
appeal denied, 544 Pa. 653, 676 A.2d 1195 (1996);
Commonwealth v. Bershad, 693 A.2d 1303, 1309 (Pa. Super.
1997) (finding absence of substantial question where appellant
argued the trial court failed to adequately consider mitigating
factors and to impose an individualized sentence). Consistent with
the foregoing cases, we conclude that Appellant failed to raise a
substantial question with respect to his excessiveness claim
premised on the imposition of consecutive sentences and
inadequate consideration of mitigating factors.
Commonwealth v. Radecki, 180 A.3d 441, 468–69 (Pa.Super. 2018).
Accordingly, we conclude that Appellant has failed to raise a substantial
question with respect to his excessiveness claim.
Appellant’s final two issues pertain to SORNA. First, Appellant asserts
his designation as an SVP under SORNA was rendered illegal under the
Pennsylvania Supreme Court’s recent decision in Commonwealth v. Muniz,
___ Pa. ____, 164 A.3d 1189 (2017) and Commonwealth v. Butler, 173
A.3d 1212, 1215 (Pa.Super. 2017).7 In addition, Appellant maintains SORNA
____________________________________________
7In Muniz, our Supreme Court held that the registration requirements under
SORNA constitute criminal punishment. Id. at 1218. In light of Muniz, this
Court has determined: “[U]nder Apprendi [v. New Jersey, 530 U.S. 466,
120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000)] and Alleyne [v. United States,
570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013)] a factual finding, such
as whether a defendant has a mental abnormality or personality disorder that
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is applicable only to his conviction for sexual abuse of children, possession of
child pornography under 18 Pa.C.S.A. § 6312(d)(1) as that was the sole
offense of which he was convicted that occurred after December 20, 2012, the
effective date of SORNA.8 Brief for Appellant at 35. While Appellant “concedes
____________________________________________
makes him ... likely to engage in predatory sexually violent offenses, that
increases the length of registration must be found beyond a reasonable doubt
by the chosen fact-finder.” Commonwealth v. Butler, 173 A.3d 1212, 1217
(Pa.Super. 2017) (internal quotations and citations omitted). This Court
further held “section 9799.24(e)(3) of SORNA violates the federal and state
constitutions because it increases the criminal penalty to which a defendant is
exposed without the chosen fact-finder making the necessary factual findings
beyond a reasonable doubt.” Id. at 1218. We therefore concluded that trial
courts can no longer designate convicted defendants as SVPs or hold SVP
hearings “until our General Assembly enacts a constitutional designation
mechanism.” Id.
8SORNA, at 42 Pa.C.S.A. §§ 9799.10-9799.41, was enacted on December 20,
2011, and became effective on December 20, 2012. SORNA was recently
amended on February 21, 2018, by H.B. 631, 202 Gen. Assem., Reg. Sess.
(Pa. 2018), Act 10 of 2018. In doing so, the Legislature added Section
9799.55 which states:
(b) Lifetime registration.—The following individuals shall
be subject to lifetime registration:
***
(2) Individuals convicted:
(i)(A) in this Commonwealth of the following offenses, if
committed on or after April 22, 1996, but before December
20, 2012:
18 Pa.C.S. § 3121 (relating to rape);
18 Pa.C.S. § 3123 (relating to involuntary deviate sexual
intercourse);
18 Pa.C.S. § 3124.1 (relating to sexual assault);
18 Pa.C.S. § 3125 (relating to aggravated indecent assault);
or
18 Pa.C.S. § 4302 (relating to incest) when the victim is
under 12 years of age; ...
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that SORNA’s Tier l registration requirement should apply to his conviction for
possession of child pornography, thereby requiring a 15-year registration
period[,]” he reasons that he could not have had fair warning of SORNA’s
penalties at the time he committed the other offenses which occurred between
2005 and 2011. Id. at 35-36.
In this case, the trial court held a sentencing and an SVP hearing in
accordance with Section 9799.24(e) of SORNA on June 5, 2017.9 At the
conclusion of the hearing, the trial court found Appellant to be an SVP and
sentenced him as previously stated. Following the denial of his post-sentence
motion, Appellant filed a notice of appeal on October 11, 2017. While
Appellant's appeal was pending, this Court decided Butler on October 31,
2017, which deemed unconstitutional the current mechanism for imposition
of SVP status used in the present case. In finding that Appellant is not entitled
to the removal of his designation as an SVP or the removal of his registration
requirements under SORNA, the trial court stressed that it followed the
procedure for declaring an individual to be an SVP set forth in 42 Pa.C.S.A. §
____________________________________________
***
42 Pa.C.S.A. § 9799.55(b)(2)(i)(A).
9At the outset of the hearing, the trial court stated its purpose as “sentencing
and for a hearing to determine whether or not [Appellant] [ ], will be
designated as a sexually violent predator under Megan’s Law.” N.T., 6/5/17,
at 3.
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9799.24, the then-current state if the law.10 Trial Court Order, filed 10/5/17,
at 17.
However, this Court held in Butler that Subsection 9799.24(e)(3) of
SORNA, regarding the procedure for determining whether a defendant is a
sexually violent predator, violates the federal and state constitutions “because
it increases the criminal penalty to which he is exposed without the chosen
fact-finder making the necessary factual findings beyond a reasonable doubt.”
Butler, 173 A.3d at 1218. Appellant specifically was designated a sexually
violent predator under 42 Pa.C.S.A. § 9799.24; thus in light of Muniz and
Butler, Appellant's SVP designation constitutes an illegal sentence. Therefore,
we are constrained to vacate that portion of Appellant’s sentence finding him
to be an SVP.
In light of the foregoing, we vacate that portion of Appellant's sentence
finding him to be an SVP. We affirm the judgment of sentence in all other
respects. We remand for the trial court to determine what, if any, registration
requirements apply to Appellant.
Judgment of sentence affirmed in part and vacated in part. Case
remanded. Jurisdiction relinquished.
____________________________________________
10This statute stated that at a hearing, prior to sentencing, the trial court
should determine, based on clear and convincing evidence, whether the
defendant was an SVP. See 42 Pa.C.S.A. § 9799.24(e)(3).
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Judge Bowes files a Concurring Memorandum to which P.J.E. Bender
concurs in the result.
P.J.E. Bender concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/6/18
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