Com. v. Smith, K. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
KERRY CHARLES SMITH,
Appellant No. 410 WDA 2013
Appeal from the Judgment of Sentence November 29, 2012
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000303-2011
BEFORE: BENDER, P.J.E., LAZARUS, J., and OTT, J.
MEMORANDUM BY BENDER, P.J.E.: FILED SEPTEMBER 12, 2014
Kerry Charles Smith appeals from the judgment of sentence of 80 to
195 years’ incarceration, imposed on November 29, 2012, following a jury
trial resulting in his conviction for rape of a child, involuntary deviate sexual
intercourse with a child, aggravated indecent assault on a child, indecent
assault on a child, indecent exposure, corruption of minors, and attempted
indecent assault on a child.1 We affirm.
We adopt the following statement of facts:
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1
Respectively, 18 Pa.C.S. §§ 3121(c) (5 counts), 3123(b) (5 counts),
3125(a)(7) (10 counts), 3126(a)(7) (15 counts), 3127(a) (31 counts),
6301(a) (1 count), and 901(a) (2 counts).
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The charges arose when [Ch.J.],[2] an eleven-year-old girl, told
her family that [Appellant] had attempted to kiss her and
touched her chest. Upon hearing this complaint, [Ch.J.’s] older
sister, [Ca.J.], came forward with allegations that she too had []
been assaulted by [Appellant] numerous times when she was
seven[-] to ten[-]years[-]old, several years before. During their
investigation, the Pennsylvania State Police conducted a
consensual intercepted phone call between [Appellant] and
[Ca.J.], in which [Appellant] made several incriminating
statements.
…
[Ca.J.] testified that [Appellant] babysat her from the time she
was seven years of age to ten years of age. [Ca.J.] narrowed
the babysitting periods to times when both of her parents were
working for the night or her father would go out on a fire call.
She testified that [Appellant] would make her watch
pornographic movies with him while she sat on [Appellant’s] lap.
[Appellant] then progressed to maturbating in front of the child,
and then had [Ca.J.] masturbate him. [Appellant] ejaculated in
both scenarios. [Ca.J.] testified that [Appellant] had her
masturbate him over thirty times. [Ca.J.] testified that the
masturbation incidents occurred near radio towers close to
[Appellant’s] home, inside [Appellant’s] home, and on
motorcycle trips with [Appellant]. [Ca.J.] also testified that
[Appellant] digitally penetrated her genitals … over ten times.
[Ca.J.] testified that these incidents occurred in her parents’
bedroom, on her couch, at [Appellant’s] home, and sometimes
her bedroom. As she got closer to ten years of age, [Appellant]
had [Ca.J.] perform oral sex on him and [Appellant] would
sometimes ejaculate in her mouth. [Ca.J.] testified that the
incidents of oral sex occurred in her bedroom while [Appellant]
sat at her desk, and happened at least five times.
…
[Ch.J.], who was eleven years of age at the time of trial, testified
that she visited [Appellant] during the summer of 2011.
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2
Due to the age of the victims and the nature of the offenses against them,
we will refer to the victims only by their initials.
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[Appellant] took her to an antenna tower on a nearby mountain
and attempted to kiss her in what she described as a “boyfriend”
or “girlfriend” kiss. [Ch.J.] also testified that when she was
seven[-]years[-]old, [Appellant] came to her home and
attempted to touch her chest.
…
[Ch.J.] testified that while [Appellant] was working on computers
at her home he tried to make her watch “strange videos” with
“boys and girls.” She described the videos as “disgusting” and
“inappropriate.”
Trial Court’s Pa.R.A.P. 1925(a) Opinion, 09/16/2013, at 1-5 (internal
footnotes and citations to record omitted).
A jury convicted Appellant of all charges brought against him.
Thereafter, the trial court held a hearing to determine whether Appellant
should be classified as a sexually violent predator (“SVP”). The court
concluded that he was and sentenced him as indicated above. Appellant
timely filed post-sentence motions, including a challenge to the weight of the
evidence and a claim that the sentence imposed “was totally uncalled for.”
See Appellant’s Post-Trial Motion, at 9. His motions were denied by the trial
court without a hearing. Appellant’s counsel failed to file timely a notice of
appeal. Appellant obtained new counsel who successfully sought
reinstatement of Appellant’s appellate rights. Thereafter, Appellant timely
appealed and filed a court-ordered Pa.R.A.P. 1925(b) statement. The trial
court issued a responsive opinion.
Appellant raises the following issues:
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[1.] The trial court erred when neglecting to rule [Ch.J.]
competent to testify as well as not permitting [] Appellant to
challenge competency of [Ch.J.] and allowing her to be
questioned on competency in the presence of the jury.
[2.] The trial court erred when limiting the cross[-]examination
and testimony of [Ca.J.] regarding past sexual offenses
committed against her.
[3.] The trial court erred when disallowing cross[-]examination
and testimony of [Ch.J.] regarding potential taint.
[4.] The trial court erred in refusing to exclude the recorded
phone call due to lack of consent of [Ca.J.] and refusing to hold
a hearing on the admissibility of the recorded phone call
pursuant to the best evidence rule.
[5.] The trial court erred when “specially” instructing the jury
relative to [] Appellant’s expert as well as when using the terms
“without a restraint” rather than “without hesitation” regarding
instructions on reasonable doubt and in refusing Appellant’s
request for a re-instruction on instructions regarding the burden
of proof.
[6.] The trial court erred by not finding that the weight of the
evidence was against the verdicts of guilty.
[7.] The trial court erred when finding [] Appellant was not
indigent as well as finding [] Appellant a sexually violent
predator.
[8.] The trial court erred when sentencing [Appellant].
Appellant’s Brief, at 34.
In his first issue, Appellant raises several challenges to the
competency of Ch.J. to testify. Appellant claims: (1) the court failed to rule
expressly that Ch.J. was competent; (2) the court failed to afford Appellant
an opportunity to cross-examine Ch.J. for competency; and (3) such limited
competency questioning as the court did allow improperly occurred in front
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of the jury. We review a trial court’s competency ruling for an abuse of
discretion. See Rosche v. McCoy, 156 A.2d 307, 310 (Pa. 1959).
The competency to testify is presumed where the witness is more than
fourteen years of age. See Rosche, 156 A.2d at 310; see also Pa.R.E.
601(a). However, the presumption does not arise where a child witness is
under age fourteen. Rosche, 156 A.2d at 310. “Under 14 there must be
judicial inquiry as to mental capacity, which must be more searching in
proportion to chronological immaturity.” Id.
Here, Ch.J. was eleven years of age when she testified to Appellant’s
crimes. Thus, her competency was not presumed. Id. Nevertheless,
Appellant cites no authority obviating his well-settled obligation to object to
“allegedly improper testimony at the proper stage in the questioning of the
witness.” Commonwealth v. Redel, 484 A.2d 171, 175 (Pa. Super. 1984)
(citing Commonwealth v. Berrios, 434 A.2d 1173, 1179 (Pa. 1981)).
Appellant did not seek an express ruling from the trial court, did not seek to
cross-examine Ch.J. on the question of her competency, and, most
importantly, failed to object to her testimony. Accordingly, we find his
appellate claims regarding her competency waived.3 Id.
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3
Absent waiver, and in consideration of the discretion afforded the trial
court, we note that the Commonwealth elicited sufficient testimony from
Ch.J. to establish her competency. See Notes of Testimony (N.T.),
07/26/2012, at 104-06; Rosche, 156 A.2d at 310.
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In his second issue, Appellant asserts the trial court erred when
limiting the cross-examination of Ca.J. regarding past sexual offenses
committed against her. This claim is without merit.
Evidence of the sexual history of a sexual abuse complainant is
generally excluded by the rape shield law. See 18 Pa.C.S. § 3104.
However, such evidence may be admissible subject to one or more
exceptions. See Commonwealth v. Burns, 988 A.2d 684, 690 (Pa. Super.
2009). We review a trial court’s ruling on the admissibility of such evidence
for “a clear abuse of discretion.” Id. at 689.
Here, the Commonwealth introduced evidence of a prior sexual assault
committed against Ca.J. See, e.g., N.T., 07/26/2012, at 181-82. All
parties agreed that the Commonwealth had “opened the door” to cross-
examination of Ca.J. regarding this evidence. See N.T., 07/26/2012, at
205-16; see also Commonwealth v. Riley, 643 A.2d 1090, 1093 (Pa.
Super. 1994). Thereafter, Appellant was permitted to do so. See N.T.,
07/26/2012, at 220-23. Accordingly, we discern no abuse of the trial court’s
discretion.4
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4
To the extent Appellant now claims he should have been permitted to
cross-examine Ca.J. regarding her relationship with another person, J.J., we
observe that during trial, counsel for Appellant specifically disavowed any
intention of doing so. See N.T., 07/26/2012, at 215 (“Mr. Crawford: I have
no intention to ask her about [J.J.]”). Accordingly, we deem this issue
waived. See, e.g., Commonwealth v. Nunn, 947 A.2d 756, 762 (Pa.
Super. 2008); Pa.R.A.P. 302(a).
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In his third issue, Appellant asserts the trial court erred by disallowing
cross-examination of Ch.J. regarding potential taint. See Commonwealth
v. Delbridge, 855 A.2d 27, 39-40 (Pa. 2003). Appellant did not raise this
issue before the trial court. We deem it waived.5 See Pa.R.A.P. 302(a).
In his fourth issue, Appellant asserts the trial court erred in refusing to
exclude from evidence the recorded phone conversation between Appellant
and Ca.J. At trial, Appellant objected to the recording on two grounds.
First, according to Appellant, the recording violated the best evidence
rule.6 See Pa.R.E. 1002. Appellant does not develop this argument on
appeal and, thus, risks waiver. See Commonwealth v. Rhodes, 54 A.3d
908, 915 (Pa. Super. 2012); Pa.R.A.P. 2119. Nevertheless, Appellant’s
contention is without merit.
The “best evidence” rule, now established in Pa.R.E. 1002, limits
the method of proving the terms of a writing to the presentation
of the original writing, where the terms of the instrument are
material to the issue at hand, unless the original is shown to be
unavailable through no fault of the proponent. The rule applies
to the proof of the contents of documents when the contents of
those documents are material to, rather than mere evidence of,
the issues at bar. … The rule is not implicated just because
evidence is relevant; the rule applies where the writing itself is
necessary to that which must be proved. The best evidence rule
is controlling only if the terms of a writing must be proved to
make a case or provide a defense.
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5
Moreover, Appellant cites no evidence in support of his contention on
appeal that Ch.J.’s memory of her abuse has been tainted. See Delbridge,
855 A.2d at 39. Thus, absent waiver, this issue is devoid of merit.
6
We address Appellant’s contentions in reverse order for ease of analysis.
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Commonwealth v. Townsend, 747 A.2d 376, 380-81 (Pa. Super. 2000)
(internal citations omitted).
In Townsend, a police officer secured the written confession of an
assault suspect. Id. at 378. At trial, the officer read the confession into
evidence. Id. at 379. The suspect was convicted and appealed, claiming
that because the Commonwealth neglected to introduce the written
confession into evidence, the officer’s testimony violated the best evidence
rule. Id. A panel of this Court rejected the appellant’s claim:
While the contents of appellant's confession makes compelling
evidence for the Commonwealth's case, the Commonwealth did
not need to prove those contents in order to establish the
elements of its case. The contents were not an element of the
crime; they were part of the evidence the Commonwealth chose
to present to prove appellant did what was alleged in the
charging documents.
This is not a contract, the terms of which are determinative of
the rights or obligations of the parties. There is no element of a
writing in the proofs the Commonwealth was obliged to present.
The statement was a relevant part of the evidence, but it is not a
necessary part of the proof. It was not necessary for conviction.
If the crime were forgery, or a written threat, the terms of a
writing may be necessary proof, but the crimes here are burglary
and assault. The prosecution had to show entry and the causing
of the requisite bodily injury with the requisite intent; it did not
have to prove a confession or any other writing.
Id.
Similarly here, the contents of the recorded phone conversation
provided compelling evidence of Appellant’s guilt. See, e.g., N.T.,
07/26/2012, at 182-85. However, as in Townsend, the recording “was a
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relevant part of the evidence, but it [was] not a necessary part of the proof.”
Id. Thus, the best evidence rule does not apply.
Appellant also contends that the phone conversation was inadmissible
against him because it was recorded in violation of the Wiretapping and
Electronic Surveillance Control Act (Wiretap Act), 18 Pa.C.S.A. § 5701 et
seq.
To the extent we interpret the Wiretap Act, our review is de novo.
Commonwealth v. Deck, 954 A.2d 603, 606 (Pa. Super. 2008) (citing
Commonwealth v. Bavusa, 832 A.2d 1042, 1052 (Pa. 2003)). However,
Appellant’s objection on this ground is essentially a motion to suppress.
Thus, the following standard also applies:
In reviewing an order denying a motion to suppress evidence,
we must determine whether the factual findings of the lower
court are supported by the evidence of record. In making this
determination, we may only consider the evidence of the
Commonwealth witnesses and so much of the witnesses for the
defendant, as fairly read in the context of the record as a whole,
which remains uncontradicted. If the evidence supports the
findings of the lower court, we are bound by such findings and
may reverse only if the legal conclusions drawn therefrom are in
error.
Commonwealth v. Donahue, 630 A.2d 1238, 1247 (Pa. Super. 1993)
(identifying this standard in the context of an appellant’s claim that
incriminating evidence should be suppressed based upon violations of the
Wiretap Act) (internal citations omitted).
Section 5703 of the Wiretap Act prohibits the intentional interception,
recording and disclosure of any wire, electronic or oral communication. See
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18 Pa.C.S. § 5703; Commonwealth v. Deck, 954 A.2d 603, 607 (Pa.
Super. 2008). However, there are exceptions to these prohibitions. See 18
Pa.C.S. § 5704. One such exception occurs where law enforcement suspects
criminal activity, one of the parties to the communication has given prior
consent to an interception, and the local district attorney is satisfied that
consent is voluntary and has given prior approval for the interception. See
18 Pa.C.S. § 5704(2)(ii). This “consent exception” was relied upon by the
Commonwealth in this case.
The Wiretap Act also provides a statutory exclusionary rule:
(b) Motion to exclude.--Any aggrieved person who is a party
to any proceeding in any court, board or agency of this
Commonwealth may move to exclude the contents of any wire,
electronic or oral communication, or evidence derived therefrom,
on any of the following grounds:
(1) Unless intercepted pursuant to an exception set forth in
section 5704 (relating to exceptions to prohibition of interception
and disclosure of communications), the interception was made
without prior procurement of an order of authorization under
section 5712 (relating to issuance of order and effect) or an
order of approval under section 5713(a) (relating to emergency
situations) or 5713.1(b) (relating to emergency hostage and
barricade situations).
…
(5) With respect to interceptions pursuant to section 5704(2),
the consent to the interception was coerced by the
Commonwealth.
18 Pa.C.S. § 5721.1(b). The remedies described in Section 5721.1 are the
exclusive judicial remedies available for “nonconstitutional violations” of the
Wiretap Act. 18 Pa.C.S. § 5721.1(e).
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Initially, we observe that the Commonwealth argues that Appellant
does not have standing to pursue relief. We disagree. Section 5721.1(b)
provides relief to “any aggrieved person.” The Wiretap Act defines an
aggrieved person to be: “[a] person who was a party to any intercepted
wire, electronic or oral communication or a person against whom the
interception was directed.” 18 Pa.C.S. § 5702. Here, Appellant was a party
to an intercepted phone call. Accordingly, Appellant has standing to pursue
relief based upon the grounds set forth in Section 5721.1.
Appellant’s argument implicitly invokes subsection (1), which provides
that in the absence of an applicable exception set forth in Section 5704,
such as the consent exception, an interception may be excluded unless
authorized by prior order of court.7 No order of court authorized the
interception in this case. Thus, according to Appellant, if Ca.J. were
incapable of consent, the terms of the consent exception could not have
been met, and the interception should be subject to exclusion.8
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7
An application for an order of court may be submitted by law enforcement
within 48 hours after an interception has occurred in certain emergency
situations not relevant here. See 18 Pa.C.S. § 5713.1(b).
8
The Commonwealth and the trial court suggest that subsection (5) is the
only possible ground upon which Appellant could base his motion to exclude
the recording. Subsection (5) requires, at a minimum, an allegation that the
Commonwealth coerced a participant’s consent. There is no such allegation
here, and no evidence to support such an allegation. Thus, it does not
apply.
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At the time of the recording, Ca.J. was not yet eighteen years of age.
According to Appellant, she was not competent to contract, citing in support
In re O’Leary’s Estate, 42 A.2d 624, 625 (Pa. 1945). Thus, Appellant
concludes, her consent to the recording was a nullity, and the recording
should have been excluded.
Although we agree with the premise of Appellant’s argument, the facts
of record do not support his claim. The testimony of Ca.J. established that
she lived on her own, was employed, and paid her own bills. See N.T.,
07/26/2012, at 166-70. Moreover, she testified that she knowingly and
voluntarily consented to the recording of her phone conversation. Id. at
167-68. Finally, Ca.J. was over the age of sixteen when she consented. Id.
at 153. Based upon these facts, the trial court overruled Appellant’s
objection. Id. at 170. In our view, the record supports the court’s implicit
finding that Ca.J. was capable of consenting.9 We discern no error.
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9
As noted by the trial court in its Pa.R.A.P. 1925(a) opinion, for public
welfare purposes, an emancipated child is:
A minor who is aged 16 or over, who has left the parental household
and has established himself as a separate entity free to act upon his
own responsibility, and who is capable of acting independently of
parental control. If the minor again lives with his parents he will no
longer be considered emancipated unless he remains independent of
his parents' control.
55 Pa. Code § 145.62; see also Trosky v. Mann, 581 A.2d 177, 181 (Pa.
Super. 1990) (noting that “emancipation” in the context of a support issue is
(Footnote Continued Next Page)
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In his fifth issue, Appellant raises several challenges to the trial court’s
jury instructions. Each is devoid of merit.
When reviewing a challenge to part of a jury instruction, we
must review the jury charge as a whole to determine if it is fair
and complete. A trial court has wide discretion in phrasing its
jury instructions, and can choose its own words as long as the
law is clearly, adequately, and accurately presented to the jury
for its consideration. The trial court commits an abuse of
discretion only when there is an inaccurate statement of the law.
Commonwealth v. Baker, 963 A.2d 495, 507 (Pa. Super. 2008) (quoting
Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa. Super. 2008)).
According to Appellant, the trial court erred in prepending the words,
“[n]ow I will specially instruct you,” to its cautionary instruction to the jury
regarding the testimony of Appellant’s expert, Dennis Walsh. N.T.,
07/30/2012, at 173.10 Appellant cites no legal authority in support of his
contention that the trial court’s transitionary language was prejudicial to
Appellant. Moreover, Appellant acknowledges that the court’s cautionary
instruction was proper. See Appellant’s Brief, at 51-52. We discern no
abuse of discretion.
According to Appellant, the court erred when it used the words,
“without restraint,” in its definition of reasonable doubt, rather than “without
_______________________
(Footnote Continued)
a “question of fact to be determined by the circumstances present in each
case”).
10
The trial court cautioned the jury to “examine closely” the testimony of
Mr. Walsh. Id. at 173. During his testimony, Mr. Walsh admitted to having
previously lied under oath at another trial. N.T., 07/27/2012, at 82.
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hesitation,” as preferred by Appellant. N.T., 07/30/2012, at 175, 187.
Appellant cites no authority in support of his contention and acknowledges
that the instruction comports with long-standing precedent. See
Commonwealth v. Moore, 414 A.2d 362, 364 (Pa. Super. 1979) (citing
Commonwealth v. Young, 317 A.2d 258 (Pa. 1974) (endorsing both the
“restraint” and “hesitation” formulations)); see also Appellant’s Brief, at 53.
We discern no abuse of discretion.
Appellant also complains that the court failed to instruct adequately
that the reasonable doubt standard applies to “each and every element of
each and every offense.” See Appellant’s Brief, at 53. Again, Appellant
cites no authority in support of his contention. We have reviewed the trial
court’s instructions thoroughly and conclude that its instructions on
reasonable doubt were clear, adequate, and accurate. See Baker, 963 A.2d
at 507; see, e.g., N.T., 07/30/2012, at 175 (“[The Commonwealth must
prove] each element of the offenses … beyond a reasonable doubt.”)
(emphasis added). Again, we discern no abuse of its discretion.
In his sixth issue, Appellant renews his challenge to the weight of the
evidence against him. He makes two arguments: (1) the testimony of Ca.J.
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lacked sufficient temporal specificity; and (2) the testimony of Ch.J. did not
establish criminal activity.11
A trial court’s decision to deny a post-sentence motion challenging the
weight of the evidence is “the least assailable of its rulings.”
Commonwealth v. Nypaver, 69 A.3d 708, 717 (Pa. Super. 2013) (internal
quotation omitted).
[W]e may only reverse the lower court's verdict if it is so
contrary to the evidence as to shock one's sense of justice.
Moreover, where the trial court has ruled on the weight claim
below, an appellate court's role is not to consider the underlying
question of whether the verdict is against the weight of the
evidence. Rather, appellate review is limited to whether the trial
court palpably abused its discretion in ruling on the weight claim.
Commonwealth v. Sanders, 42 A.3d 325, 331 (Pa. Super. 2012) (quoting
Commonwealth v. Champney, 832 A.2d 403, 408 (Pa. 2003)).
We have reviewed the evidence and the trial court’s opinion
addressing Appellant’s arguments. Regarding the testimony of Ca.J., the
trial court noted the following:
[Ca.J.] testified about conduct that occurred more than ten years
ago, when she would have been seven[-] to ten[-]years[-]old.
While she could not specify the days, weeks, or months of the
incidents, she did constrain them to when [Appellant] was
babysitting her. In addition, she testified that the masturbatory
acts occurred in the beginning with the oral sex occurring closer
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11
We note that Appellant conflates the weight and sufficiency of the
evidence. See Appellant’s Brief, at 54-55 (setting forth the standard of
review applicable to a sufficiency argument), 55-57 (suggesting that Ch.J.’s
testimony was insufficient to establish a crime). Appellant did not preserve
a sufficiency challenge. Accordingly, we will not review such a claim.
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in time to when she was ten[-]years[-]old. Moreover, the victim
gave specific locations of where the different types of acts
occurred. We believe that such testimony affixes the time
periods and locations of the offenses with the reasonable
certainty of the perceptive abilities of a normal seven[-] or ten[-
]year-old child.
Trial Court’s Pa.R.A.P. 1925(a) Opinion, 09/16/2013, at 4 (citing in support
Commonwealth v. Groff, 548 A.2d 1237, 1240-41 (Pa. Super. 1988)
(discussing the “reasonable measure of flexibility [afforded the
Commonwealth] when faced with the special difficulties involved in
ascertaining the date of an assault upon a young child”)). Regarding the
testimony of Ch.J., the court concluded:
[Ch.J. testified that in the summer of 2011] [Appellant] took her
to an antenna tower on a nearby mountain and attempted to
kiss her in what she described as a “boyfriend” or “girlfriend”
kiss. The victim also testified that when she was seven[-
]years[-]old, [Appellant] came to her home and attempted to
touch her chest. … [Ch.J.] testified that while [Appellant] was
working on computers at her home he tried to make her watch
“strange videos” with “boys and girls.” She described the videos
as “disgusting” and “inappropriate.” While a person’s intentions
in kissing a seven-year-old child or touching her chest could be
innocent, the jury’s finding of guilty … given the entirety of the
testimony considered by the jury cannot be said to shock one’s
sense of justice.
Id. at 5 (internal citations to the record omitted).
We agree with the trial court’s analysis. The jury’s verdict does not
shock one’s sense of justice, and we discern no abuse of the court’s
discretion in rejecting Appellant’s weight claim.
In his seventh issue, Appellant raises two challenges related to his SVP
hearing. First, Appellant argues that the court erred in declining to find him
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indigent and, thus, refusing to appoint him an expert. We review a trial
court’s indigency ruling for an abuse of discretion. See Commonwealth v.
Rhodes, 54 A.3d 908, 915 (Pa. Super. 2012) (citing Commonwealth v.
Cannon, 954 A.2d 1222, 1226 (Pa. Super. 2008)).
In [Commonwealth v.] Curnutte[, 71 A.2d 839 (Pa. Super.
2005)], this Court ruled that 42 Pa.C.S.A. § 9795.4(e)(2)
provides all defendants with the right to call expert witnesses
and to an expert assessment other than that conducted by the
Sexual Offenders Assessment Board. Id. at 842. In so ruling,
we concluded that it would be fundamentally unfair to afford a
defendant those rights but then preclude him from exercising
them simply because he is indigent. Likewise, it would be unfair
to allow a wealthy defendant those rights but to deny them to
one who is indigent. In Curnutte, there was no dispute that the
defendant was indigent, and we further noted that ‘[i]t is true
that the Commonwealth is not obligated to pay for the services
of an expert simply because a defendant requests one.’ Id. at
842.
Rhodes, 54 A.3d at 914 (quoting Cannon, 954 A.2d at 1225).
In Rhodes, we affirmed the trial court’s finding that the appellant was
not indigent, where the appellant had approximately $1,000.00 dollars in a
checking account, owned a station wagon, and received social security
disability payments. Id. at 915. Moreover, we noted with approval the trial
court’s conclusion that “it was Appellant's choice not to utilize his assets to
obtain an expert, and to instead utilize his assets for other purposes.” Id. at
915.
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Here, the trial court conducted a hearing on Appellant’s purported
indigency just prior to his SVP hearing.12 Appellant testified. See N.T.,
11/08/2012, at 14-45. Following his testimony, the court found Appellant
retained multiple assets, including (1) a prison commissary account with as
much as $600 in it, (2) a checking account with an unknown balance, (3)
two motorcycles, and (4) two vehicles. Id. at 46-47. Based upon these
assets, the court concluded that Appellant was not indigent and, therefore,
denied his motion for the appointment of a psychological expert. Id. We
discern no abuse of the court’s discretion in this regard.
Appellant also argues that the court improperly determined that he is
an SVP. Essentially, Appellant challenges the sufficiency of the evidence
against him. “Questions of evidentiary sufficiency present questions of law;
thus, our standard of review is de novo and our scope of review is plenary.”
Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006). Nevertheless,
our review of the court’s determination is constrained in the following
manner:
The appellate task requires construing the evidence in the light
most favorable to the party which prevailed before the
factfinder[.] … The task of the Superior Court is one of review,
and not of weighing and assessing evidence in the first instance.
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12
The late timing of the court’s inquiry was the result of Appellant’s last
minute motion to appoint an expert to testify on his behalf at the SVP
hearing. On October 19, 2012, the trial court issued an order scheduling
Appellant’s SVP hearing for November 8, 2012, at 9 a.m. Appellant filed his
motion to appoint a psychological expert on November 8, 2012, at 9 a.m.
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Id. at 222-23.
In order to find a defendant to be an SVP, the trial court must find, by
clear and convincing evidence, that (1) the person suffers from mental
abnormality or personality disorder that (2) makes him or her more likely to
engage in predatory sexually violent offenses. See Commonwealth v.
Morgan, 16 A.3d 1165, 1168-69 (Pa. Super. 2011) (citing Commonwealth
v. Fuentes, 991 A.2d 935, 941–43 (Pa. Super. 2010) (en banc)).
Here, the Commonwealth presented expert testimony that Appellant
suffers from pedophilia. See N.T., 11/08/2012, at 69-73. The
Commonwealth also presented expert testimony that Appellant exhibited
predatory behavior. Id. at 73, 77. Viewing this evidence in the light most
favorable to the Commonwealth, we discern no error in the trial court’s
determination that Appellant is an SVP.13
Finally, in his eighth issue, Appellant challenges the sentence imposed
by the trial court. We do not reach the merits of his claim. It appears that
he seeks to challenge discretionary aspects of his sentence. However, such
appeals “are not guaranteed by right.” Commonwealth v. Grimes, 982
A.2d 559, 565 (Pa. Super. 2009).
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13
To the extent Appellant challenges the credibility of the Commonwealth’s
expert witness, we note that the fact-finder, here the trial court, resolves
questions of credibility and “is free to believe all, part, or none of the
evidence.” Commonwealth v. Ramtahal, 33 A.3d 602, 607 (Pa. 2011)
(citing Commonwealth v. Laird, 988 A.2d 618, 624 (Pa. 2010)).
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Appellant’s preservation of a discretionary sentencing issue is
deficient. First, Appellant failed to identify any discretionary sentencing
issue in his post-trial motion, claiming only that his sentence “was totally
uncalled for.” See Grimes, 982 A.2d at 566; see also Appellant’s Post-Trial
Motion, at 9. Second, Appellant’s question presented fails to identify any
issue relating to discretionary aspects of his sentence, in violation of
Pa.R.A.P. 2116(b) (mandating waiver). See Appellant’s Brief, at 34 (“[8.]
The trial court erred when sentencing [Appellant].”). Third, Appellant’s brief
does not include a statement of the reasons relied upon for an allowance of
appeal regarding discretionary aspects of his sentence, in violation of
Pa.R.A.P. 2119(f). See, generally, Appellant’s Brief.
Adherence to these procedural rules is mandatory. See
Commonwealth v. Tuladziecki, 522 A.2d 17, 19 (Pa. 1987) (concluding
that appellate review despite the failure to meet these requirements would
afford an appellant “an appeal as of right from the discretionary aspects of a
sentence”); Grimes, 982 A.2d at 566. As Appellant has failed to preserve
properly a challenge to discretionary aspects of his sentence, we decline to
review his claim.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/12/2014
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