Com. v. Beecher, G. ( 2014 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GARY J. BEECHER, II
Appellant No. 2196 EDA 2013
Appeal from the Judgment of Sentence August 31, 2012
In the Court of Common Pleas of Chester County
Criminal Division at No(s): CP-15-CR-0001663-2011
CP-15-CR-0001507-2011
BEFORE: BOWES, J., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED OCTOBER 10, 2014
Gary J. Beecher, II, appeals from the judgment of sentence imposed
on August 31, 2012, in the Chester County Court of Common Pleas.
Beecher was sentenced to an aggregate term of four to eight years’
imprisonment with a consecutive 15 years of probation, following his nolo
contendere pleas to the following offenses: (1) at Docket No. 1507-2011,
one count of unlawful contact with a minor, two counts of indecent assault,
one count of corruption of minors, and one count of endangering welfare of
children (“EWOC”);1 and (2) at Docket No. 1663-2011, one count each of
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1
18 Pa.C.S. §§ 6318(a)(1), 3126(a)(7), 6301(a)(1) and 4304(a)(1),
respectively.
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indecent assault, indecent exposure, corruption of minors, and EWOC. 2 On
appeal, Beecher raises two issues with respect to his classification as a
sexually violent predator (“SVP”) pursuant to “Megan’s Law III.”3 For the
reasons set forth below, we affirm.
The relevant factual and procedural history of this case, as gleaned
from the certified record, may be summarized as follows. Beecher’s
convictions stem from allegations made by Beecher’s own 15-year-old
daughter and the six-year-old daughter of Beecher’s then girlfriend that he
indecently assaulted them.4 On January 17, 2012, Beecher entered a plea of
nolo contendere with an agreed upon sentence that was approved by the
trial court pending an SVP assessment and hearing. Beecher then pled to
the charges as stated above. In conjunction with his plea, Beecher executed
a colloquy form, including his understanding of the consequences of pleading
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2
18 Pa.C.S. §§ 3126(a)(7), 3127(a), 6301(a)(1) and 4304(a)(1),
respectively.
3
See 42 Pa.C.S. § 9791 -9799.9. We note that after Beecher’s judgment
of sentence was imposed, a new version of Megan’s Law went into effect on
December 20, 2012. See 42 Pa.C.S. §§ 9799.10-9799.41 (as amended
2011, Dec. 20, P.L. 446, No. 111, § 12). The Pennsylvania Legislature
amended Megan’s Law to comply with the federal Sex Offender Registration
and Notification Act (“SORNA”). See 42 U.S.C. § 16901.
4
Allegations were also made by three friends of Beecher’s daughter that he
had inappropriate sexual contact with them. These charges were withdrawn
as part of the nolo contendre plea agreement.
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guilty to a Megan’s Law Offense and the consequences of being classified as
an SVP. At the conclusion of the plea hearing, the court entered an order
directing the State Sexual Offender Assessment Board (“SOAB”) to perform
an assessment of Beecher to determine if he is an SVP. The assessment
was performed and on April 3, 2012, the SOAB sent notice that Beecher met
the criteria of an SVP.
On May 2, 2012, Beecher filed a petition seeking funds to hire an
expert in the field of Sexual Offenders Assessment. A hearing was held and
on June 5, 2012, the court granted the petition. On August 31, 2012, an
SVP evidentiary hearing and sentencing proceeding was held. Bruce Mapes,
Ph.D., testified for the Commonwealth and Stephen Mechanick, M.D.,
testified for the defense. Following the testimony, the trial court determined
Beecher was an SVP pursuant to 42 Pa.C.S. § 9795.4(e).
That same day, the trial court sentenced Beecher to the following: (1)
at Docket No. 1507-2011, two to four years of incarceration for unlawful
contact with a minor, a consecutive term of one to two years’ imprisonment
for indecent assault of a person less than 16 years of age, two concurrent
terms of one to three years’ incarceration for corruption of minors and
EWOC, and a concurrent term of one to two years’ imprisonment for the
second indecent assault crime; and (2) at Docket No. 1663-2011, a term of
one to two years’ imprisonment for indecent assault of a person less than 13
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years of age, to be imposed consecutively to Docket No. 1507-2011 with a
consecutive term of 3 years’ probation, and three consecutive terms of 4
years’ probation for indecent exposure, corruption of minors, and EWOC.
Beecher filed a notice of appeal on September 27, 2012. This Court
originally dismissed the appeal for failure to file a docketing statement
pursuant to Pa.R.A.P. 3517. Beecher filed a Post-Conviction Relief Act
(“PCRA”)5 petition on June 11, 2013. On July 17, 2013, the PCRA court
granted the petition and reinstated Beecher’s rights to appeal to this Court.
A second notice of appeal was filed on July 31, 2013.6
In Beecher’s first argument, he claims the court erred by relying on
Dr. Mapes’s report, which was based in part on an incorrect belief that
Beecher had entered a guilty plea to the underlying charges, rather than a
nolo contendere plea. Beecher’s Brief at 10. Beecher states, “Although
there is no doubt that [his] plea of nolo contendere is considered a
conviction, it is distinct from a plea of guilty. Dr. Mapes incorrectly
incorporated into his report his belief that [Beecher] had admitted to the
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5
42 Pa.C.S. §§ 9541-9546.
6
On August 6, 2013, the trial court ordered Beecher to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Beecher complied with the trial court’s directive and filed a concise
statement on August 23, 2013. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on November 6, 2013.
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underlying offenses by pleading guilty.” Id. at 12. Beecher contends the
trial court, “in turn, relied on Dr. Mapes’[s] report which incorporated that
mistaken belief. By accepting Dr. Mapes’[s] conclusions, the court was
adopting the mistaken views as its own.” Id. at 12-13. He concludes that
when the court relied on incorrect testimony, it could not find clear and
convincing evidence that he qualified as an SVP. Id.
The trial court rejected Beecher’s argument, stating:
[Beecher]’s allegation that this Court erred in relying on the
Commonwealth’s expert testimony which was based on an
incorrect report that [Beecher] pled guilty to the underlying
criminal charges, is without merit. It is true that [Beecher] had
entered a nolo contendre plea and the Board Member stated in
the report that [Beecher] entered a plea of guilty. However, it
must be noted that during his interview with Dr. Mapes,
[Beecher] alleged that “he entered a plea of guilty in order to
protect another party from prosecution.” (Exhibit C-1, p.9).
“It is well established that a plea of nolo contendere is
treated as a guilty plea in terms of its effect upon a given case.”
Commonwealth v. V.G., 9 A.3d 222, 226 ([P]a. Super. 2010),
citing Commonwealth v. Leidig, 850 A.2d 743, 745 (Pa. Super.
2004). “As the United States Supreme Court has held, a plea of
nolo contendere is ‘a plea by which a defendant does not
expressly admit his guilt, but nonetheless waives his right to a
trial and authorizes the court for purposes of sentencing to treat
him as if he were guilty.’” (emphasis deleted). V.G., 9 A.3d at
226, quoting North Carolina v. Alford, 400 U.S. 25, 36, 91 S.Ct.,
160, 167 (1970) and citing Commonwealth v. Lewis, 791 A.2d
1227, 1234 (Pa. Super. 2002).
This court did not err in “relying on the Commonwealth’s
expert testimony which was based on an incorrect report.” The
legal distinction of the type of plea [Beecher] entered was of no
consequence to the SVP assessment and this court was well
aware that [Beecher] entered a nolo contendre plea.
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Trial Court Opinion, 11/6/2013, at 4-5.
We agree with the trial court’s rationale. The trial court, sitting at the
plea hearing and the SVP proceeding, was aware that Beecher had entered a
nolo contendere plea instead of a guilty plea. Therefore, we can assume
that it did not rely on the incorrect testimony in making its determination.
Moreover, a review of the record reveals that on cross-examination, Dr.
Mapes testified to the following:
Q Now, are you aware of the fact that on the information and in
the investigative reports Mr. Beecher did not plead guilty to any
of those charges, are you aware of that?
A You mean in the current offense?
Q Yes.
A Let me find the Court order that was sent to us. According to
the order we received, he entered a plea of guilty to one count of
unlawful contact and one count of indecent assault.
Q And those are the offenses that he pled nolo contendere to; is
that correct?
A We received that. He entered a plea of guilty to those.
Q Well, that would be incorrect, doctor. Would that make a
difference?
A No.
Q It wouldn’t make a difference if he did not plead guilty?
A No.
Q In your report?
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A No.
Q So your report would still be the same?
A Yes.
…
Q Whether or not the defendant pled guilty or nolo contendere,
would it make a difference?
A In this particular case, no, it would not because of all the
other information that was available.
N.T., 8/31/2012, at 46-48. As such, Dr. Mapes’s conclusion would not have
changed regardless of the nature of Beecher’s plea due to the other evidence
contained in his report.7 Accordingly, we conclude Beecher’s first argument
fails.
Next, Beecher contends the court erred in finding clear and convincing
evidence that he qualified as an SVP based on the statutory factors and
differing diagnoses from the two expert witnesses. Beecher’s Brief at 13.
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7
Furthermore, a review of the record reveals that Beecher’s counsel did not
object to the admissibility of Dr. Mapes’s report, which included the incorrect
information regarding his plea, and therefore, Beecher waived any challenge
to the admission of the report on appellate review. See Pa.R.A.P. 302
(“[i]ssues not raised in the lower court are waived and cannot be raised for
the first time on appeal”). Moreover, Beecher does not seek a new Megan’s
Law hearing, which would have been the proper remedy for an improper
admission of evidence. See Commonwealth v. Sanford, 863 A.2d 428(Pa. 2004)
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Our standard of review of a challenge to an SVP determination is well-
settled:
Questions of evidentiary sufficiency present questions of law;
thus, “our standard of review is de novo and our scope of review
is plenary.” In conducting sufficiency review, we must consider
the evidence in the light most favorable to the Commonwealth,
which prevailed upon the issue at trial.
Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006) (citations
omitted). SVP classification is a statutory question, and not a question of
pure science. See Commonwealth v. Dengler, 890 A.2d 372, 383 (Pa.
2005). An SVP is defined as a person who (1) has been convicted of a
sexually violent offense as set forth in Section 9795.1 (relating to
registration),8 and (2) is determined to be a sexually violent predator under
Section 9795.4 (relating to assessments) due to a mental abnormality or
personality disorder that makes the person likely to engage in predatory
sexually violent offenses. See 42 Pa.C.S. § 9792. The statute defines a
“mental abnormality” as “[a] congenital or acquired condition of a person
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
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8
Here, we note there is no dispute Beecher was convicted of sexually
violent offenses as pursuant to 42 Pa.C.S. § 9795.1. He entered a nolo
contendere plea to unlawful contact with a minor, and indecent assault –
both crimes are listed in Section 9795.1.
-8-
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degree that makes the person a menace to the health and safety of other
persons.” 42 Pa.C.S. § 9792.
In conducting an SVP assessment, the statute requires, at a minimum,
an examination of the factors listed in Section 9795.4(b).9 In this regard,
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9
The factors set forth in Section 9795.4(b) are as follows:
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means
necessary to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of
unusual cruelty by the individual during the
commission of the crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual’s prior criminal record.
(ii) Whether the individual completed any prior
sentences.
(iii) Whether the individual participated in available
programs for sexual offenders.
(Footnote Continued Next Page)
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[t]he [statutory] factors are not a check list with each one
weighing in some necessary fashion for or against an SVP
determination. Rather, the presence or absence of one or more
factors might simply suggest the presence or absence of one or
more particular types of mental abnormalities.
Thus, while the Board is to examine all the factors listed
under Section 9795.4, the Commonwealth does not have to
show that any certain factor is present or absent in a particular
case. Rather, the question for the SVP court is whether the
Commonwealth’s evidence, including the Board’s assessment,
shows that the person convicted of a sexually violent offense has
a mental abnormality or disorder making that person likely to
engage in predatory sexually violent offenses.
Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. Super. 2008) (citations
omitted), appeal denied, 963 A.2d 467 (Pa. 2008).
_______________________
(Footnote Continued)
(3) Characteristics of the individual, including:
(i) Age of the individual.
(ii) Use of illegal drugs by the individual.
(iii) Any mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to the
individual's conduct.
(4) Factors that are supported in a sexual offender
assessment field as criteria reasonably related to the risk
of reoffense.
42 Pa.C.S. 9795.4(b).
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Here, the main point of contention in Beecher’s argument is the
differing expert opinions regarding whether Beecher had a mental
abnormality or personality disorder that made him likely to engage in
predatory sexually violent offenses. The Commonwealth’s expert, Dr.
Mapes, found Beecher suffered from personality disorder not otherwise
specified (“NOS”) with “very strong antisocial features[.]” N.T., 8/31/2012,
at 33. The defense expert, Dr. Mechanick, opined that Dr. Mapes was
incorrect in stating that he could not rule out an antisocial personality
disorder because Beecher’s history did not indicate a conduct disorder prior
to the age of 15, and any isolated incidents of Beecher’s past did not exhibit
a pattern of behavior which could establish a conduct disorder. Beecher’s
Brief at 18. Beecher points out Dr. Mechanick found Beecher suffered only
from an adult antisocial personality disorder, which is “not necessarily
considered to be an enduring pattern of behavior.” Beecher’s Brief at 20,
quoting N.T., 8/31/2012, at 94. Moreover, Beecher claims that the court did
not address Dr. Mechanick’s opinion that Beecher did acknowledge
responsibility for some of his past criminal convictions, and joint
responsibility for others. Beecher’s Brief at 25-26. Likewise, Beecher
indicates Dr. Mechanick also stated that because Dr. Mapes incorrectly
believed Beecher pled guilty, his conclusion was based on inaccurate
information, and if Beecher had not actually committed these acts, as he
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claimed, he would not have met the criteria for classification as an SVP. Id.
at 19.
Lastly, relying on Commonwealth v. Plucinski, 868 A.2d 20 (Pa.
Super. 2005), Beecher claims that even taking Dr. Mapes’s report into
account, there was insufficient evidence to support the SVP classification
based on the following: (1) there were no allegations of excessive force or
unusual cruelty, (2) there was no evidence of a specific deficit in the victims’
mental capacity beyond age and the inability to give consent, (3) Beecher
had never been ordered to participate in a sex offender program; (4) there
was no evidence of drug or alcohol use at the time of the offenses; (5)
Beecher was statistically less likely to reoffend because of his age at the
time the sex offenses were committed; and (6) the nature of his sexual
behavior was less serious than other cases where courts have found there
was insufficient evidence to support the SVP finding. Beecher’s Brief at 27-
29.
A review of the record reveals the following. At the August 31, 2012,
hearing, Dr. Mapes, an SOAB member, testified regarding Beecher’s conduct
and behavior with respect to the enumerated statutory criteria contained in
42 Pa.C.S. § 9795.4(b). In addition to his testimony, Dr. Mapes assessed
Beecher and addressed all of the statutory issues of Section 9795.4(b) in his
eleven-page report, which was admitted into evidence and reviewed by the
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trial court.10 See generally N.T., 8/31/2012, at 4-70. Dr. Mechanick also
testified regarding his personal interview and assessment of Beecher that
was reflected in his one-and-a-half page report. Id. at 70-116.11
Based on all of the testimony, the trial court thoroughly discussed Dr.
Mapes’s testimony and made findings with respect to Beecher’s SVP
classification, which complies with Section 9795.4. See N.T. 8/31/2012, at
121-134.
With regard to SVP assessments, it is well-settled that “[t]he task of
the Superior Court is one of review, and not of weighing and assessing
evidence in the first instance.” Commonwealth v. Meals, 912 A.2d 213,
223 (Pa. 2006). Moreover, with respect to the expert opinions, “it is a
proper exercise of the trial court’s discretion to accept one expert witness’s
opinion over that of a conflicting opinion where the record adequately
supports such a resolution.” Commonwealth v. Pruitt, 951 A.2d 307, 316
(Pa. 2008) (addressing conflicting experts reports in a murder case
regarding competency). Therefore, contrary to Beecher’s argument, the trial
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10
In his report and testimony, Mapes noted he personally interviewed
Beecher.
11
We note neither report was made part of the certified record. This does
not impede our review as both experts testified to the contents of their
report and, as analyzed above, the testimony supports the criteria for an
SVP status.
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court, here, was permitted to accept Dr. Mapes’s opinion that Beecher
suffered from personality disorder NOS with antisocial features and that he
did not acknowledge responsibility for some of his past criminal convictions,
as opposed to Dr. Mechanick’s determination that Beecher suffered only
from an adult antisocial personality disorder and that he did acknowledge
responsibility for past crimes.
Based on the testimony, we conclude the trial court’s findings are
supported by the record and our review of this matter finds no error in the
trial court’s determination. The Commonwealth presented clear and
convincing evidence, via Dr. Mapes’s testimony, which established Beecher
possessed a mental abnormality, personality disorder NOS with antisocial
features, that made him likely to engage in predatory sexually violent
offenses. See Feucht, 955 A.2d at 863. As evidenced in his testimony and
report, Dr. Mapes accounted for all of the statutory factors as set forth in
Section 9795.4(b), including the facts of the offenses at issue, Beecher’s
prior criminal history, and his behavioral characteristics that contributed to
his conduct. Based on these factors, he then rendered an opinion,
explaining his determination that Beecher met the criteria for classification
as an SVP.
Moreover, while Beecher may have benefitted from the absence of
several Section 9795.4(b) factors, he is essentially asking this Court to
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reweigh all of the factors, which we are not permitted to do. See Meals,
912 A.2d at 222-223 (held that the reviewing court “stepped beyond its
authority when it reweighed the [SVP] evidence, giving more weight to
‘absent’ factors than to those found and relied upon by the trial court, and
ignoring the Commonwealth’s expert’s explanation of the relevance of the
absent factors”). Therefore, based upon the totality of circumstances and
information available to the trial court, we conclude there was sufficient
evidence to designate Beecher as an SVP.12 Accordingly, his second
arguments fails, and we affirm the judgment of sentence.
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12
We note that Beecher’s reliance on Commonwealth v. Plucinski, 868
A.2d 20 (Pa. Super. 2005), is misplaced. In that case, the defendant was
the stepfather of the minor victim, and lived with her six years before he
began sexually assaulting her. Id. at 21-22. In Plucinski, the SOAB’s
diagnosis of a mental disorder was called into question both by the
defendant’s expert witness, and this Court on appeal. Furthermore, the
defendant’s expert disagreed with the SOAB expert’s conclusion that the
defendant engaged in predatory behavior. On appeal, a panel of this Court
reversed the defendant’s classification as an SVP, finding that “numerous
statutory factors necessary to support a SVP classification were absent;
significantly absent is a showing of the likelihood of re-offense.” Id. at 27.
However, the Pennsylvania Supreme Court in Meals, supra, specifically
disapproved of this type of weighing the statutory factors. Meals, 912 A.2d
at 222-223. Here, on the other hand, Dr. Mechanick was not in great
dispute with Dr. Mapes because he opined that if Beecher did the acts to
which he has pled nolo contendere, he would have met the criteria in for
classification as an SVP. N.T., 8/31/2012, at 114 (“Q[:] So provided that
[Beecher] were, you don’t agree with the personality disorder by doctor – if
[Beecher] met the personality disorder, mental abnormality of personality
disorder NOS, and based upon the conduct that is alleged, showing
predatory behavior, you would agree [he] should be classified as a sexual
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/10/2014
_______________________
(Footnote Continued)
violent predator; is that correct? A[:] That is correct.”). Therefore, in
addition to the factual differences with respect to this case, the holding in
Plucinski was called into question by the Supreme Court in Meals.
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