Com. v. Williams, D. ( 2023 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DYLAN THOMAS WILLIAMS :
:
Appellant : No. 1252 MDA 2022
Appeal from the Judgment of Sentence Entered April 18, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000534-2020
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DYLAN THOMAS WILLIAMS :
:
Appellant : No. 1253 MDA 2022
Appeal from the Judgment of Sentence Entered April 18, 2022
In the Court of Common Pleas of Luzerne County Criminal Division at
No(s): CP-40-CR-0000535-2020
BEFORE: BOWES, J., NICHOLS, J., and PELLEGRINI, J.*
MEMORANDUM BY BOWES, J.: FILED: AUGUST 23, 2023
Dylan Thomas Williams appeals from the aggregate judgment of
sentence of thirteen years and seven months to twenty-seven years and two
months of incarceration, followed by three years of probation, imposed as to
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
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his jury convictions for various sexual offenses at docket number 534 of 2020
(“Docket 534”) and docket number 535 of 2020 (“Docket 535”). We affirm.
Appellant was charged at Docket 534 for sexually assaulting C.B. when
she was fourteen and fifteen years old, and at Docket 535 for sexually
assaulting M.B. when she was twelve and thirteen years old.1 At the time of
the incidents, Appellant was between twenty and twenty-one years old, and
was dating and living with A.B., the older sister of C.B. and M.B. Appellant
and A.B. first lived in an apartment in Kingston, Pennsylvania and then moved
to an apartment in nearby Plymouth. See N.T. Jury Trial, 4/21/22, at 30-31,
34, 117. Both girls were very close with A.B. and Appellant. C.B. visited them
at their Kingston apartment nearly every day. Appellant would pick her up
from school and the two would watch movies or play video games until A.B.
came home from work. Id. at 33-35. M.B. would also visit them at their
apartment and watch movies or play video games with Appellant, A.B., and
C.B. Id. at 116-19.
When M.B. was twelve or thirteen, she was changing her shirt in a room
at her father’s house when Appellant walked in. Although he did not say
anything at the time, he later messaged her that he “wouldn’t mind being
there next time.” Id. at 122-23. At some point after, Appellant fondled M.B.’s
breasts while he, M.B., A.B., and C.B. were watching a movie together on the
bed at the Kingston apartment. Id. at 119-21. During that incident, Appellant
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1 We note that the trial court did not set forth the facts of the underlying cases
in its Rule 1925(a) opinion to this Court.
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also rubbed his exposed penis against M.B.’s bare, lower back. Id. at 128-
29. Around the same time, Appellant began commenting that in four years
C.B., who was fourteen at the time, could run away with Appellant. Not long
after, his comments, which C.B. had initially interpreted as jokes, turned into
unwanted touching of C.B.’s breasts and buttocks while watching movies in
bed in Kingston. Id. at 37-44.
In late August of 2019, Appellant and A.B., who was pregnant with
Appellant’s child, moved to the Plymouth apartment. From the move until
September 6, 2019, Appellant’s sexual contact with M.B., then thirteen, and
C.B., then fifteen, continued and, in fact, escalated. During an overnight stay
in September, Appellant once again touched M.B.’s breasts, this time
underneath her shirt. Id. at 124-25, 140. When she asked him why he was
doing that, he said “I don’t know. Just don’t tell anybody.” Id. at 125.
In late August or early September, C.B. and Appellant were watching a
movie in the bedroom of the Plymouth apartment, waiting for A.B. to come
home. As C.B. began to fall asleep on her side, Appellant reached over, rolled
C.B. onto her back, held her hands above her head, removed her pants and
his pants, and inserted his penis into her vagina. Id. at 53, 70. The next
contact occurred when Appellant was watching a movie with C.B. and M.B.
C.B. was lying on the couch with a blanket over her. Appellant lifted her legs
up and sat down beneath her. He then removed his and C.B.’s pants, held
her legs down, and touched her with his penis. Id. at 46, 54-55. Finally, on
September 6, 2019, C.B. was at the apartment to help prepare for A.B.’s baby
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shower the following day. After A.B. went upstairs to sleep at Appellant’s
suggestion, Appellant called C.B. over to the couch to look at a ring he was
considering buying to propose to A.B. C.B. sat on the couch to look at the
ring and then moved to the opposite end of the couch. Appellant followed
her, held her hand down by her side, put his hand down her pants, and placed
his finger inside her vagina. When C.B. protested, he told her to be quiet so
as not to wake A.B. Appellant then removed his pants and C.B.’s pants and
inserted his penis into her vagina. Id. at 49-51.
During each encounter, C.B. told Appellant not to touch her and, every
time, his response was the same: “Don’t tell anybody, I’m not going to do it
again. Calm down. Be quiet.” Id. at 53-54. C.B. told her boyfriend after
Appellant began touching her and, after the first time Appellant had sexual
intercourse with C.B., she told her grandmother and asked for advice. Her
grandmother told her to tell Appellant not to do it again or she would tell
somebody. Id. at 60-62, 65. Around September 12 or 13, 2019, M.B. told a
school counselor. Id at 126. When nothing immediately happened, M.B.
disclosed Appellant’s touching to a friend and C.B. on September 14, 2019.
C.B. called their grandmother and the friend told her parents, who called the
police. Later that day, Appellant and A.B. picked up C.B. and M.B. from their
father’s house for a pre-arranged stay at the Plymouth apartment for the
weekend. Not long after, the police retrieved C.B. and M.B. from the
apartment. Id. at 63-65, 126-28. As C.B. left, Appellant asked her if she had
told anybody. Id. at 65.
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After the police removed M.B. and C.B., Appellant called his work friend,
Michael Siley. During a subsequent conversation, Appellant admitted to
sleeping with C.B. twice and accidentally touching M.B.’s breasts. Id. at 155-
58. When confronted, Appellant also admitted to A.B. that he had sex with
C.B. twice. Id. at 176. Within days, both M.B. and C.B. were taken to the
Child Advocacy Center (“CAC”) for forensic interviews. Later, M.B. reported
to a school nurse, Michelle Binker, that she had been raped by Appellant and
requested a pregnancy test. Id. at 129-30, 219-20. Upon questioning by
Detective Stephen Gibson, M.B. clarified that Appellant had not raped her and
that she made the statement to obtain a pregnancy test in order to disprove
an unrelated school rumor. Id. at 129-31, 208-09.
As a result of the foregoing, Appellant was charged at Docket 534 with
aggravated indecent assault, two counts of statutory assault, corruption of
minors, indecent assault, and rape, all of which related to conduct against C.B.
At Docket 535, pertaining to M.B., Appellant was charged with two counts of
corruption of minors and two counts of indecent assault. Appellant proceeded
to a consolidated jury trial on April 21, 2021. The Commonwealth presented
testimony from C.B., M.B., A.B., their grandmother, Mr. Siley, and Detective
Gibson. Appellant played the girls’ CAC videos and presented testimony from
Ms. Binker.
At the conclusion of the trial, the jury convicted Appellant at Docket 534
of one count each of aggravated indecent assault, corruption of minors,
indecent assault, and rape, and two counts of statutory sexual assault. At
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Docket 535, Appellant was found guilty of one count of corruption of minors
and two counts of indecent assault. The trial court sentenced Appellant to an
aggregate term of incarceration of fifteen to thirty years, followed by three
years of probation. That sentence included a mandatory minimum sentence
of ten to twenty years for the rape conviction. Having determined that
Appellant was a sexually violent predator (“SVP”), Appellant was also
subjected to lifetime sexual offender registration.
Appellant filed a post-sentence motion and the Commonwealth
responded. Following a hearing, the trial court denied in part and granted in
part Appellant’s motion. The court denied Appellant’s challenges to the
sufficiency of the evidence to sustain his rape conviction and the weight of the
evidence, and reserved Appellant’s ineffective-assistance-of-counsel claim for
collateral review. However, the court found the mandatory sentence did not
apply to Appellant’s rape conviction because the conduct occurred before the
effective date of the relevant statute. See Order, 3/8/22, at unnumbered 1-
3. Therefore, it vacated the rape sentence and granted Appellant’s motion for
resentencing. The court also granted resentencing at Docket 535 because
Appellant was mistakenly sentenced on two counts of corruption of minors
and only one count of indecent assault. Id. at unnumbered 3.
On March 31, 2022, the trial court resentenced Appellant to a shortened
aggregate sentence of thirteen years and seven months to twenty-seven years
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and two months of incarceration, followed by three years of probation.2
Appellant timely filed post-sentence motions. On April 18, 2022, the trial court
entered an order correcting the sentencing order to reflect the agreement of
the parties that the maximum sentence for rape should have been 132
months, not 122, in accordance with the aggregate sentence imposed. On
August 9, 2022, the trial court entered an order denying Appellant’s post-
sentence motions.
Appellant simultaneously filed the instant, timely appeal and a concise
statement pursuant to Pa.R.A.P. 1925(b). The trial court issued a responsive
Rule 1925(a) opinion. In this Court, Appellant presents the following issues:
1. Whether the imposition of longer, consecutive sentences
after a successful challenge to the imposition of a mandatory
sentence resulted in an excessive, unreasonable and
vindictive sentence?
2. Whether the evidence at trial was sufficient to establish the
forcible compulsion element of rape?
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2 To achieve this reduced aggregate sentence, the court shortened the rape
sentence, extended the terms of incarceration for statutory sexual assault at
Docket 534, and shortened the term of incarceration for the indecent assault
conviction at Docket 535 that was incorrectly imposed as if for a charge of
corruption of minors originally. Additionally, instead of running some
sentences concurrently as in the original sentencing order, the court ran all
sentences consecutively upon resentencing.
As discussed infra, the resentencing order contained a mathematical error that
was corrected by an amended sentencing order. Specifically, the individual
sentences imposed add up only to 316 months because the trial court
mistakenly imposed a maximum term of 122 months, instead of 132 months,
for the rape conviction.
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3. Whether the jury unanimously found [Appellant] guilty of
rape by forcible compulsion due to the lack of specificity in
the Information and jury instructions?
4. Whether the evidence at trial was so weak and inconclusive
that the court abused its discretion in denying a new trial?
5. Whether the court erred in denying a post sentence hearing
on ineffectiveness of counsel, given that [Appellant] had
new counsel, there was error apparent of record at trial, and
the refusal to conduct such a hearing has created an undue
delay in considering these issues?
6. Whether the SVP finding should be reversed or remanded
for a new hearing because the report improperly relied on
unproven and inaccurate allegations?
Appellant’s brief at 5 (cleaned up).
Appellant first alleges that the trial court’s imposition of consecutive and
increased individual sentences “was vindictive and not based on principles of
the Sentencing Code, but rather to mathematically come as close to the
previously imposed sentence as possible while remaining within the standard
range of sentencing guidelines.” Appellant’s brief at 19. Appellant argues
that because no new information was introduced, other than the inapplicability
of the mandatory sentence, “an increase in the sentences was not warranted.”
Id. at 21.
The Commonwealth contends that this issue implicates the discretionary
aspects of sentencing as it challenges the court’s decision to impose
consecutive sentences. See Commonwealth’s brief at 15. Since Appellant
failed to include a statement pursuant to Pa.R.A.P. 2119(f) in his brief, the
Commonwealth asks this Court to find the issue unreviewable. Id. Appellant,
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on the other hand, maintains that this issue, which asserts a claim of
vindictiveness, implicates the legality of his sentence and is reviewable despite
the lack of a Rule 2119(f) statement. See Appellant’s reply brief at 3 (citing
Commonwealth v. Prinkey, 277 A.3d 554 (Pa. 2022). Assuming for the
sake of argument that Appellant’s challenge implicates the legality of his
sentence and therefore is not waived by failing to include a Rule 2119(f)
statement, we find his vindictiveness claim infirm.
As detailed above, Appellant’s aggregate sentence following
resentencing was reduced from fifteen to thirty years of incarceration, to
thirteen years and seven months to twenty-seven years and two months.
Despite receiving a shorter aggregate sentence upon resentencing, Appellant
claims that the trial court was vindictive in increasing some of his individual
sentences and running them consecutively in what he purports is an
impermissible attempt to maintain the original aggregate sentence. See
Appellant’s brief at 19. However, “[w]e have held that preserving the integrity
of a prior sentencing scheme is a legitimate sentencing concern [and] a trial
court properly may resentence a defendant to the same aggregate sentence
to preserve its original sentencing scheme.” Commonwealth v. Barnes, 167
A.3d 110, 124 (Pa.Super. 2017) (en banc) (cleaned up). Stated simply, given
that Appellant received a lesser aggregate sentence upon resentencing, he
“was not the victim of a vindictive sentence on the part of the trial court[.]”
Id. at 125 (finding no vindictiveness where the defendant’s aggregate
sentence remained the same following remand); see also Commonwealth
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v. Rosario, 2023 WL 4104055 (Pa.Super. filed June 21, 2023) (non-
precedential decision) (applying Barnes, holding that the presumption of
vindictiveness was rebutted by the trial court’s explanation that it intended to
preserve the original sentencing scheme and Rosario benefited on
resentencing by receiving a shorter aggregate sentence, despite two of the
individual sentences being increased). Thus, regardless of how we review
Appellant’s sentencing issue, his claim warrants no relief.
Appellant next argues that the evidence was insufficient to prove the
element of forcible compulsion as to his rape conviction. According to
Appellant, there was insufficient evidence of a threat through physical force
or psychological coercion during either instance of sexual intercourse. See
Appellant’s brief at 22-23. He maintains that C.B.’s description of the events
varied and that she “did not voice any objection that could be heard by others
who were in the room or in close proximity while she claimed she was being
forcibly raped” and “suffered no injuries[.]” Id. at 23-24.
We consider this claim pursuant to the following principles.
In reviewing sufficiency of evidence claims, we must determine
whether the evidence admitted at trial, and all reasonable
inferences drawn therefrom, when viewed in the light most
favorable to the verdict winner, are sufficient to support all the
elements of the offense. Additionally, to sustain a conviction, the
facts and circumstances which the Commonwealth must prove
must be such that every essential element of the crime is
established beyond a reasonable doubt. Admittedly, guilt must be
based on facts and conditions proved, and not on suspicion or
surmise. However, entirely circumstantial evidence is sufficient
so long as the combination of the evidence links the accused to
the crime beyond a reasonable doubt.
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Any doubts regarding a defendant’s guilt may be resolved by the
factfinder unless the evidence is so weak and inconclusive that as
a matter of law no probability of fact may be drawn from the
combined circumstances. The fact finder is free to believe all,
part, or none of the evidence presented at trial.
Commonwealth v. Eckrote, 12 A.3d 383, 385–86 (Pa.Super. 2010)
(cleaned up).
It is well-established that in order to prove the forcible compulsion
component, the Commonwealth must establish, beyond a
reasonable doubt, that the defendant used either physical force,
a threat of physical force, or psychological coercion, since the
mere showing of a lack of consent does not support a conviction
for rape by forcible compulsion. . . . [F]orcible compulsion
includes not only physical force or violence, but also moral,
psychological or intellectual force used to compel a person to
engage in sexual intercourse against that person’s will. Further,
the degree of force required to constitute rape is relative and
depends on the facts and particular circumstances of a given case.
Id. at 387 (cleaned up).
Here, C.B. testified that during the first incident, which began as she
was falling asleep, Appellant held both of her hands above her head as he
removed their pants and inserted his penis into her vagina. See N.T. Jury
Trial, 4/21/22, at 53, 70. During the second incident, he held her hand down
as he inserted his finger into her vagina and when she protested, he told her
to be quiet and then once again removed their pants and inserted his penis
into her vagina. Id. at 49-51. Thus, Appellant physically restrained her.
Moreover, these acts occurred within the context of an escalating pattern of
unwanted sexual advances from someone C.B. considered like a brother and
who always responded to her protests in the same way: “Don’t tell anybody,
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I’m not going to do it again. Calm down. Be quiet.” Id. at 53-54. Based on
the foregoing, we conclude that the evidence viewed in the light most
favorable to the Commonwealth established that an act of sexual intercourse
was performed by forcible compulsion.
Appellant next contends that the jury’s verdict as to rape was not
unanimous. See Appellant’s brief at 25-26. According to Appellant, the
criminal information averred that the rape occurred sometime between
September 2018 and September 2019, and the jury was not instructed “that
they had to find unanimously that he committed the same act on the same
date and that act constituted forcible compulsion.” Id. at 25. Thus, assailing
the jury instruction, he argues that “it is impossible to know which encounter
or encounters each juror was basing his or her verdict upon. However, to be
unanimous, the jurors would have to agree that the elements of the offense
had been proven beyond a reasonable doubt with respect to one of the
incidents.” Id. at 26. Given the purportedly inadequate instructions,
Appellant posits that the verdict cannot be considered unanimous.
The Commonwealth counters that Appellant waived this claim by failing
to timely and specifically object to the jury instruction at trial. See
Commonwealth’s brief at 21. We agree. It is axiomatic that “[i]n order to
preserve a claim that a jury charge was erroneously given, the Appellant must
have objected to the charge at trial.” Commonwealth v. Lake, 281 A.3d
341, 347–48 (Pa.Super. 2022) (cleaned up).
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Here, after the trial court instructed the jury, the court asked whether
either attorney had any objections. Appellant’s counsel responded, “No, Your
Honor.” See N.T. Jury Trial, 4/21/22, at 285. Moreover, as to any challenge
to the unanimity of the verdict, Appellant asked that the jury be polled and
each juror indicated that he or she agreed with the verdict. See id. at 289-
90. Based on the foregoing, Appellant has failed to preserve a challenge to
the court’s instruction. Even if Appellant had preserved this claim of error,
the record establishes that the jury’s verdict was unanimous. Accordingly, he
is not entitled to relief.
Next, Appellant alleges that the trial court erred in denying his motion
for a new trial based upon the claim that the verdicts were against the weight
of the evidence. See Appellant’s brief at 26-27. In Appellant’s view, “[t]he
jury failed to give adequate weight to the lack of corroboration, the lack of
medical evidence, the lack of a prompt complaint, and the inconsistent
statements, therefore the trial court abused its discretion in denying the
motion for a new trial.” Id. at 27-28.
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge has
had the opportunity to hear and see the evidence presented, an
appellate court will give the gravest consideration to the findings
and reasons advanced by the trial judge when reviewing a trial
court’s determination that the verdict is against the weight of the
evidence. One of the least assailable reasons for granting or
denying a new trial is the lower court’s conviction that the verdict
was or was not against the weight of the evidence and that a new
trial should be granted in the interest of justice.
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Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (cleaned up).
The trial court found that “[n]othing in the record leads to the conclusion
that the verdict was against the weight of the evidence. After having had an
opportunity to view the exhibits and observe the witnesses at trial and listen
to their testimony, this court was not at all shocked by the jury’s verdict.”
Trial Court Opinion, 11/3/22, at unnumbered 11. Rather, the court concluded
that “[t]he weight of the evidence overwhelmingly established [Appellant’s]
guilt beyond a reasonable doubt.” Id. Upon review, Appellant points to
nothing in the certified record to evince that the trial court's decision was
manifestly unreasonable, a result of misapplication of the law, or based upon
"partiality, prejudice, bias, or ill-will.” Clay, supra at 1055 (cleaned up). As
we discern no abuse of discretion on the trial court’s part, no relief is due.
In his penultimate issue, Appellant argues that the trial court erred in
depriving Appellant of a hearing on his claim of ineffective assistance of
counsel and instead deferring the issue to a future collateral appeal through
the PCRA. See Appellant’s brief at 28. We review this claim with the following
principles in mind:
Generally, a criminal defendant may not assert claims of
ineffective assistance of counsel on direct appeal. See
Commonwealth v. Holmes, 79 A.3d 562, 577-80 (Pa. 2013).
Instead, such claims are to be deferred to PCRA review. However,
our Supreme Court has recognized three exceptions to the general
rule. In Holmes, the Court held that a trial court has discretion
to address ineffectiveness claims on direct review in cases where
(1) there are extraordinary circumstances in which trial counsel’s
ineffectiveness is apparent from the record and “meritorious to
the extent that immediate consideration best serves the interests
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of justice;” or (2) “there is good cause shown,” and the defendant
knowingly and expressly waives his entitlement to seek
subsequent PCRA review of his conviction and sentence. Id. at
563-64. More recently, our Supreme Court adopted a third
exception, which requires “trial courts to address claims
challenging trial counsel’s performance where the defendant is
statutorily precluded from obtaining subsequent PCRA review.”
Commonwealth v. James, ___ A.3d. ___, 2023 WL 3939576, at *3
(Pa.Super. June 12, 2023) (cleaned up).
Here, Appellant raised fourteen claims of ineffectiveness by trial counsel,
plus an additional allegation of cumulative prejudice. See Post-Sentence
Motion, 4/11/22, at 6-12. Appellant contends that some of his allegations of
ineffectiveness are apparent on the record. Moreover, he posits that
extraordinary circumstances exist justifying consideration of all his
ineffectiveness claims on direct appeal because he already has new counsel
and “[i]t will soon be two years since the guilty verdict in this case and
Appellant will not have had the chance to argue the ineffectiveness of his trial
counsel.” See Appellant’s brief at 28-29.
At the outset, we reject Appellant’s invocation of a time-restriction
reason supporting review because he still has more than adequate time to
seek collateral review before his PCRA eligibility will expire. In declining to
hold a hearing, the trial court found that he had not raised any “meritorious
and apparent claims” and that this was “not an extraordinary case” warranting
review of such claims on direct appeal. Trial Court Opinion, 11/3/22, at
unnumbered 11. After reviewing the certified record, we conclude that the
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trial court did not abuse its discretion in determining that Appellant’s prolix
ineffectiveness claims were best deferred until collateral review.
Finally, Appellant argues that his SVP designation should be reversed or
remanded for a new SVP hearing because the report relied on unproven
allegations and inaccuracies. See Appellant’s brief at 30-31. The only
inconsistency espoused in his brief is that the report referenced the offenses
taking place over one year, which is consistent with the criminal information,
whereas the trial testimony indicated a period of less than six months. Id. at
30. The Commonwealth contends that Appellant waived this claim by
stipulating to the admission of the report at the time of sentencing and failing
to develop the claim within his brief. See Commonwealth’s brief at 27-28.
Indeed, instead of specifying the inaccuracies or unproven allegations in his
brief, Appellant rather hinges the resolution of his claim on this Court’s then-
pending decision in Commonwealth v. Aumick, ___ A.3d ___, 2023 WL
3939850 (Pa.Super. 2023) (en banc), in which we ruled on this precise issue.
In Aumick, we held that the Sexual Offender Assessment Board
(“SOAB”) member “was permitted to consider the affidavit of probable cause,
criminal information, criminal complaint, preliminary hearing transcript, and
the investigative reports prepared by Child Protective Services when assessing
Aumick.” Aumick, supra at *8.
Pursuant to revised Subchapter H, the SOAB must undertake a
comprehensive assessment of a defendant convicted of a sexually
violent offense by considering the fifteen factors set forth in
section 9799.24(b)(1)-(4). Section 9799.24(c) expressly requires
that “[a]ll State, county and local agencies, offices and entities in
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this Commonwealth, including juvenile probation officers, shall
cooperate by providing copies of records and information
as requested by the board in connection with the court-
ordered assessment . . . .” 42 Pa.C.S. § 9799.24(c) (emphasis
added). Moreover, within ninety days of a defendant’s qualifying
conviction, the SOAB must prepare a written report regarding its
assessment which includes, at a minimum, the following
information: (1) a concise narrative of the individual’s conduct;
(2) whether the victim was a minor; (3) the manner of weapon or
physical force used or threatened; (4) if the offense involved
unauthorized entry into a room or vehicle occupied by the victim;
(5) if the offense was part of a course or pattern of conduct
involving multiple incidents or victims; and (6) previous instances
in which the individual was determined guilty of an offense subject
to this subchapter or of a crime of violence as defined in section
9714(g) (relating to sentences for second and subsequent
offenses).
Given these statutory mandates, it is clear that the legislature
intended that the SOAB member consider . . . the information
contained in records provided by state, county and local agencies,
offices and entities in this Commonwealth when making an SVP
assessment and preparing a statutorily compliant written report.
To be sure, it would be the rare occasion on which the SOAB
member would be able to fulfill its statutory obligations if its SVP
assessments and written reports were limited to facts contained
in a plea colloquy, admitted into evidence, or determined by the
trier of fact.
Id. (emphases in original, cleaned up).
Moreover, this Court emphasized the significance of the context of an
SVP hearing, where “the judge is not tasked with evaluating the veracity of
the facts underlying the expert’s testimony.” Id. (citation omitted). Rather,
the information “presented at an SVP hearing [is] not being offered for the
truth of the matter asserted,” but rather “to supply the basis for the expert’s
opinion in accordance with our Rules of Evidence.” Id. (citations omitted).
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Here, Appellant stated he had no objection to the admission of the SOAB
evaluator’s report other than a general objection to the proceeding itself. See
N.T. SVP Hearing, 1/6/22, at 3-4. In argument, he highlighted the
discrepancy in one year versus six months mentioned above, disagreed with
the finding of “other specific Paraphilic Disorder[,]” and challenged the
reference to petitions filed against Appellant for protection from abuse. Id.
at 5-6. Based on the foregoing, Appellant waived any challenge to the
admission of the SVP report. See id. at *9 n.14 (finding challenge to the
admissibility of the report waived for failing to object to its admission during
the SVP hearing). As for Appellant’s challenge to the SVP report’s reliance on
allegedly unproven allegations or inconsistencies with the trial testimony,
Aumick controls and this issue fails.
Since Appellant has failed to raise any challenge compelling us to disturb
his convictions or judgments of sentence, we affirm the judgments of
sentence.
Judgments of sentence affirmed.
Judge Pellegrini joins this Memorandum.
Judge Nichols concurs in the result.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/03/2023
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