Com. v. Lewis, T. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
TIMOTHY WAYNE LEWIS
Appellant No. 1361 MDA 2015
Appeal from the Judgment of Sentence April 16, 2015
In the Court of Common Pleas of Montour County
Criminal Division at No(s): CP-47-CR-0000241-2012
BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED MARCH 14, 2016
Timothy Wayne Lewis brings this appeal from the judgment of
sentence imposed on April 16, 2015, in the Court of Common Pleas of
Montour County. The trial court found Lewis guilty of unlawful contact with
a minor, corruption of minors, and open lewdness.1 Thereafter, the trial
court determined that Lewis was a Sexually Violent Predator (SVP) and
sentenced him to an aggregate term of 58 months to 144 months’
incarceration.2 Lewis presents three questions: (1) “Where the definition of
____________________________________________
*
Former Justice specially assigned to the Superior Court.
1
18 Pa.C.S. §§ 6318(a)(2), 6301(a)(1)(i), and 5901, respectively.
2
The court imposed the following sentences of imprisonment: (1) Count 3 —
unlawful contact with a minor, 33 to 84 months, (2) Count 1 — corruption of
minors, 25 to 60 months, to run consecutively to the sentence imposed for
unlawful contact with a minor, and (3) Count 2 — open lewdness, 3 to 12
(Footnote Continued Next Page)
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Unlawful Contact With Minor, 18 Pa.C.S. § 6318(a)(2) includes ‘Open
Lewdness as defined in § 5901’, should these counts have merged for
sentencing purposes?”, (2) “Where the basis of the Court’s imposition of
consecutive sentences was not factually supported, should the Court have
imposed concurrent sentences?”, and (3) “Should a court make a[n] [SVP]
finding where there is no scientifically based risk assessment [] of [Lewis]?”.
Lewis’s Brief at 3.3 Based upon the following, we affirm.
This case arose on October 24, 2012, at a Salvation Army store in
Danville, Pennsylvania. The seven year old victim was with her
grandmother, who was shopping in the store. At trial, the victim described
Lewis’s actions of raising a Barbie doll, holding it up to the victim, and
manipulating the area on the doll between its legs, and smiling at the victim.
The trial court convicted and sentenced Lewis, as set forth above.
Thereafter, Lewis filed a motion for reconsideration of sentence, which was
denied by the trial court. This appeal followed.4
The first issue raised by Lewis is whether the trial court erred in failing
to merge the counts of unlawful contact with a minor and open lewdness, for
_______________________
(Footnote Continued)
months, to run concurrently with the sentence imposed for corruption of
minors.
3
We have reordered Lewis’s questions for purposes of this discussion.
4
Lewis timely complied with the order of the trial court to file a statement of
errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).
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purposes of sentencing. Lewis argues that “the exact same criminal act
constituted the basis of all three charged offenses,” and that “all of the
elements of [open lewdness, 18 Pa.C.S.] § 5901 are included within the
statutory elements of [u]nlawful [c]ontact with a [m]inor, 18 Pa.C.S. §
6318(a)(2).” Lewis’s Brief at 8. Lewis maintains that “[Subsection (a)(2)]
of the Unlawful Contact with Minor statute is by definition merely Open
Lewdness directed toward a minor. It is essentially a lesser included
offense.” Lewis’s Brief at 7.
“A claim that crimes should have merged for sentencing purposes
raises a challenge to the legality of the sentence. Therefore, our standard of
review is de novo and our scope of review is plenary.” Commonwealth v.
Nero, 58 A.3d 802, 806 (Pa. Super. 2012) (quotations and citation omitted).
Section 9765 of the Judicial Code provides:
No crimes shall merge for sentencing purposes unless the crimes
arise from a single criminal act and all of the statutory elements
of one offense are included in the statutory elements of the
other offense. Where crimes merge for sentencing purposes, the
court may sentence the defendant only on the higher graded
offense.
42 Pa.C.S. § 9765. This Court has explained:
[The Pennsylvania Supreme Court] held the plain language of
Section 9765 reveals a legislative intent “to preclude the courts
of this Commonwealth from merging sentences for two offenses
that are based on a single criminal act unless all of the statutory
elements of one of the offenses are included in the statutory
elements of the other.”
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Commonwealth v. Quintua, 56 A.3d 399, 401 (Pa. Super. 2012), citing
Commonwealth v. Baldwin, 985 A.2d 830, 837 (Pa. 2009).
Turning to the statutes at issue, the statute prohibiting open lewdness
provides:
A person commits a misdemeanor of the third degree if he does
any lewd act which he knows is likely to be observed by others
who would be affronted or alarmed.
18 Pa.C.S. § 5901. “Lewd” acts involve “sexuality or nudity in public.”
Commonwealth v. Fenton, 750 A.2d 863, 866 (Pa. Super. 2000). Section
5901 pertains to conduct that: “1) involves public nudity or public sexuality,
and 2) represents such a gross departure from accepted community
standards as to rise to the level of criminal liability.” Commonwealth v.
Tiffany, 926 A.2d 503, 511 (Pa. Super. 2007) (quotations and citation
omitted).
Regarding the crime of unlawful contact with minors, the Crimes Code
provides:
A person commits an offense if he is intentionally in contact with
a minor, or a law enforcement officer acting in the performance
of his duties who has assumed the identity of a minor, for the
purpose of engaging in an activity prohibited under any of the
following, and either the person initiating the contact or the
person being contacted is within this Commonwealth: ...
(2) Open lewdness as defined in section 5901 (relating to
open lewdness).
18 Pa.C.S. § 6318(a)(2). A defendant need not be successful in completing
the purpose of his communication with a minor in order to be found guilty of
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Section 6318(a). “Once Appellant contacts or communicates with the minor
for the purpose of engaging in the prohibited activity, the crime of
unlawful contact with a minor has been completed.” Commonwealth v.
Evans, 901 A.2d 528, 537 (Pa. Super. 2006) (emphasis in original).
Here, the unlawful contact occurred when Lewis intentionally attracted
the minor victim’s attention. The contact was clearly initiated for the
purpose effectuating the crime of open lewdness. Lewis’s argument that the
open lewdness offense is a lesser included offense of unlawful contact with a
minor is premised upon his erroneous assertion that “[Subsection (a)(2)] of
the Unlawful Contact with Minor statute is by definition merely Open
Lewdness directed toward a minor.” Lewis’s Brief at 7, supra.
While the crimes occurred contemporaneously, we must also look at
the statutorily-required elements of each offense to see if the greater
offense necessarily includes the lesser offense. See 42 Pa.C.S. 9765. Even
though Lewis did engage in open lewdness, which is enumerated in 18
Pa.C.S. § 6318, the crime of open lewdness need not have been carried out
to commit unlawful contact of a minor pursuant to Section 6318(a)(2). See
Evans, supra. As the trial court correctly explained:
Open Lewdness requires the elements of a lewd act and that it
would likely affront or alarm another, elements which are not
required of Unlawful Contact with a Minor. Conversely, Unlawful
Contact with a Minor requires contact with a minor, which is not
required by Open Lewdness.
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Trial Court Opinion, 7/21/2015, at 2 (unnumbered). Because each offense
requires proof of at least one element that the other does not, the offenses
do not merge. See Baldwin, supra at 837. Therefore, we conclude Lewis’s
sentence is not illegal, and reject Lewis’s argument that the court erred in
failing to merge the two charges for purposes of sentencing.
Next, Lewis contends the evidence was insufficient to support the trial
court’s determination that he was an SVP. The principles that guide our
review are as follows:
In order to affirm an SVP designation, we, as a reviewing
court, must be able to conclude that the fact-finder found
clear and convincing evidence that the individual is a[n
SVP]. As with any sufficiency of the evidence claim, we
view all evidence and reasonable inferences therefrom in
the light most favorable to the Commonwealth. We will
reverse a trial court’s determination of SVP status only if
the Commonwealth has not presented clear and
convincing evidence that each element of the statute has
been satisfied.
Commonwealth v. Baker, 2011 Pa. Super. 131, 24 A.3d 1006,
1033 (Pa. Super. 2011), aff’d, 621 Pa. 401, 78 A.3d 1044 (Pa.
2013) (citation omitted).
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
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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. Stephens, 2013 Pa. Super. 181, 74 A.3d
1034, 1038-1039 (Pa. Super. 2013) (internal quotation marks,
ellipsis, and citations omitted).
When performing an SVP assessment, a mental health
professional must consider the following 15 factors: whether the
instant offense involved multiple victims; whether the defendant
exceeded the means necessary to achieve the offense; the
nature of the sexual contact with the victim(s); the defendant’s
relationship with the victim(s); the victim(s)' age(s); whether
the instant offense included a display of unusual cruelty by the
defendant during the commission of the offense; the victim(s)’
mental capacity(ies); the defendant’s prior criminal record;
whether the defendant completed any prior sentence(s);
whether the defendant participated in available programs for
sexual offenders; the defendant’s age; the defendant’s use of
illegal drugs; whether the defendant suffers from a mental
illness, mental disability, or mental abnormality; behavioral
characteristics that contribute to the defendant’s conduct; and
any other factor reasonably related to the defendant's risk of
reoffending. See 42 Pa.C.S.A. § 9799.24(b).
Commonwealth v. Hollingshead, 111 A.3d 186, 189–190 (Pa. Super.
2015), appeal denied, 125 A.3d 1199 (Pa. 2015).
Here, Lewis argues that his expert, Dr. Timothy P. Foley, “applied one
of these scientifically based actuarial risk assessment instruments, the
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Static-99R, to determine that Mr. Lewis has a low risk of repetition of his
behavior.” Lewis’s Brief at 11. Lewis maintains “the trial court’s reluctance
to consider the scientific evidence of the Static-99R was unreasonable, and
[Commonwealth expert] Dr. [Joseph B.] Sheris’s conclusion, which was
accepted by the Court, to find that Mr. Lewis is a sexually violent predator
was based upon gut feelings and supposition, rather than any scientifically
based instruments of prediction.” Id.
At the SVP hearing, Dr. Foley explained that the Static-99R tool “was
developed based upon an analysis of more than 25,000 convicted
offenders,” and that it is a tool that “assists in assigning a level of
dangerousness or risk for sex offense recidivism, which is measured as new
charges or convictions.” N.T., 4/16/2014, at 44. With regard to the Static-
99R, he stated Lewis scored a “Plus 2,” which represented a “relatively low
risk for recidivism.” Id. at 45. On cross-examination, Dr. Foley admitted
Lewis’s score “would have been five which is relatively high …. With the age
correction for over 60, because he is going to be confined beyond the age of
60, he gets a two.” Id. at 50.
The trial court, after hearing the testimony presented at the SVP
hearing, noted that in using the Static-99R assessment tool to assess risk
recidivism, Dr. Foley factored in Lewis’s age as of the time he presumably
would be released from prison. The trial court reasoned: “[Dr. Foley]
admitted it was not part of the protocols of Static 99 to impute some kind of
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advanced age. So, that casts credibility issues with respect to this case.”
N.T., 4/16/2015, at 61.
In its opinion, the trial court addressed its SVP determination, as
follows:
The Commonwealth presented the testimony of Joseph B.
Sheris, Ph.D., SCC, CCMHC, an eminently qualified expert
retained by the Pennsylvania Sexual Offenders Assessment
Board. Dr. Sheris testified that [] he evaluated and considered
the facts of the current offense, the prior offense history,
[Lewis’s] characteristics, and factors that are supported in a
sexual offender assessment field as criteria reasonably related to
the risk of reoffense, consistent with the requirements of 42
Pa.C.S. § 9799.24(b). Dr. Sheris concluded that [Lewis] suffers
from the diagnosis of Antisocial Personality Disorder and that
[Lewis] engaged in Predatory Behavior in the present case and in
prior cases and was likely to engage in predatory sexually violent
offenses. Even [Lewis] admitted in a signed written statement
that he makes lewd gestures to children to, in his mind, keep
from “touching or acting out,” and [Lewis] admitted that he does
derive “satisfaction out of it.” (NT 18). In this written statement,
[Lewis] admitted to two (2) separate incidents (the present
incident and one in the recent past in 2012) involving his
approach of children in the local Salvation Army store. He also
has a 1999 conviction for Corruption of Minors. The sentencing
court accepted Dr. Sheris’s testimony and opinions as entirely
credible, and rejected the testimony of Dr. Foley, [Lewis’s]
expert witness. The sentencing court had substantial evidence
upon which it properly found that [Lewis] is an SVP.
Trial Court Opinion, 7/21/2015, at 3–4 (unnumbered).
Based on our review, we find that the Commonwealth did provide clear
and convincing evidence that Lewis is an SVP. The report of the
Commonwealth’s expert, Dr. Sheris, and his testimony at the SVP
assessment hearing, indicate that he conducted a detailed evaluation of
Lewis with regard to the statutory factors and his mental abnormality, in
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accordance with 42 Pa.C.S. § 9799.24(b). N.T., 4/16/2015 at 6–23; Sexual
Offender Assessment Board SVP Assessment, 7/20/2014, at 6–9. In this
regard, we note that Section 9799.24(b) does not call for the use of the
Static-99. See 42 Pa.C.S. § 9799.24(b).
As an appellate court, we must view the evidence in the light most
favorable to the Commonwealth when reviewing the sufficiency of the
evidence for an SVP determination, and we may not disturb the trial court’s
credibility determinations. See Hollingshead, supra, 111 A.3d at 194.
Because we have found that the Commonwealth has presented clear and
convincing evidence that Lewis met the SVP criteria, we conclude that the
trial court did not err in designating him an SVP.
Finally, Lewis claims that the trial court erred in imposing consecutive
sentences on the corruption of a minor and unlawful contact with a minor
charges. Lewis contends the trial court “ignored the findings and authorities
cited by Dr. Foley for his conclusion that there was no measurable
predictable, scientific evidence or support for a finding that an anti-social
personality disorder renders an individual more likely to repeat sexually
violent conduct.” Lewis’s Brief, at 9.
As Lewis’s argument is a discretionary sentencing claim, we must
conduct the following examination:
A challenge to the discretionary aspects of a sentence is not
appealable as of right; instead, an appellant must petition for
permission to appeal. Commonwealth v. Colon, 2014 PA
Super 242, 102 A.3d 1033, 1042 (Pa. Super. 2014), appeal
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denied, 109 A.3d 678 (Pa. 2015). We evaluate the following
factors to determine whether to grant permission to appeal a
discretionary aspect of sentencing.
Before we reach the merits of this issue, we must engage
in a four part analysis to determine: (1) whether the
appeal is timely; (2) whether Appellant preserved his
issue [at sentencing or in a motion to reconsider and
modify sentence]; (3) whether Appellant’s brief includes a
concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence [as required by Pennsylvania Rule of
Appellate Procedure 2119(f)]; and (4) whether the
concise statement raises a substantial question that the
sentence is appropriate under the sentencing code. The
third and fourth of these requirements arise because
Appellant’s attack on his sentence is not an appeal as of
right. Rather, he must petition this Court, in his [Rule
2119(f)] concise statement of reasons, to grant
consideration of his appeal on the grounds that there is a
substantial question. [I]f the appeal satisfies each of
these four requirements, we will then proceed to decide
the substantive merits of the case.
Commonwealth v. Edwards, 2013 Pa. Super. 142, 71 A.3d 323,
329-330 (Pa. Super. 2013) (citations omitted), appeal denied,
622 Pa. 765, 81 A.3d 75 (Pa. 2013). Further, “[i]f a defendant
fails to include an issue in his Rule 2119(f) statement, and the
Commonwealth objects, then the issue is waived and this Court
may not review the claim.” Commonwealth v. Karns, 2012 PA
Super 154, 50 A.3d 158, 166 (Pa. Super. 2012), appeal denied,
619 Pa. 721, 65 A.3d 413 (Pa. 2013).
Commonwealth v. Batts, 125 A.3d 33, 43 (Pa. Super. 2015).
Here, although Lewis filed a timely notice of appeal and preserved his
claim in a timely motion for reconsideration of sentence, his brief does not
contain a Rule 2119(f) concise statement of the reasons relied upon for
allowance of appeal. The Commonwealth, in its brief, has objected to Lewis’s
omission. See Commonwealth’s Brief at 6. Therefore, we are precluded
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from addressing the discretionary aspects claim. Batts, supra. See also
Commonwealth v. Dawson, ___ A. 3d ___ [2015 Pa. Super. 256] (Pa.
Super. 2015) (denying appellant’s petition for permission to appeal the
discretionary aspects of her sentence, where Commonwealth lodged
objection to appellant’s failure to include a Rule 2119(f) statement in her
brief).5
Having reviewed Lewis’s arguments, and having found them to be
meritless or waived, we affirm the judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/14/2016
____________________________________________
5
Even if we considered Lewis’s claim, no relief would be due. We note the
imposition of consecutive rather than concurrent sentences generally lies
within the discretionary power of the sentencing court. Commonwealth v.
Johnson, 961 A.2d 877, 880 (Pa. Super. 2008) (“Long standing precedent
of this Court recognizes that 42 Pa.C.S. § 9721 affords sentencing court
discretion to impose sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already
imposed.”). Here, the trial court found there were no mitigating factors and
imposed standard range sentences, and ordered that the sentences run
consecutively. N.T., 4/16/2015, at 85. The trial court made a credibility
determination concerning Dr. Foley’s testimony. We would find no abuse of
discretion in sentence imposed by the trial court.
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