Com. v. Morgan, R.

J-A27036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
RONALD MORGAN
Appellant No. 996 WDA 2014
Appeal from the Judgment of Sentence entered February 19, 2014
In the Court of Common Pleas of Butler County
Criminal Division at No: CP-10-CR-0000991-2011
BEFORE: BOWES, OLSON, and STABILE, JJ.
MEMORANDUM BY STABILE, J.: FILED DECEMBER 17, 2015
Appellant, Ronald Morgan, appeals from the judgment of sentence
entered in the Court of Common Pleas of Butler County on February 19,
2014 following his conviction of various sexual offenses and designation as a
sexually violent predator (SVP). Appellant asserts lack of jurisdiction,
insufficiency of evidence, and evidentiary error. Following review, we
affirm.1
____________________________________________
1
On December 14, 2015, Assistant District Attorney William T. Fullerton of
the Butler County District Attorney’s Office filed a motion to withdraw in light
of his impending departure from the District Attorney’s Office effective
January 4, 2016. The motion is denied in light of our contemporaneous
disposition of this matter.
J-A27036-15
Following a three-day jury trial in May 2013, Appellant was convicted
of two counts of involuntary deviate sexual intercourse (IDSI), one count
each of statutory sexual assault, aggravated indecent assault, and indecent
assault, 104 counts of sexual abuse of children
(photographing/videotaping/depicting on computer or filming sexual acts),
104 counts of sexual abuse of children (viewing/possessing child
pornography), one count each of endangering the welfare of children and
corruption of minors, and two counts of misdemeanor possessory drug
offenses. With the exception of the drug convictions, all convictions involved
offenses committed against the daughter (victim) of one of Appellant’s
friends, beginning when the victim was approximately eleven or twelve and
continuing until she was fifteen.
Appellant was sentenced to an aggregate term of not less than 182
months and not more than 364 months in prison. He also was determined
to be an SVP. Following denial of his amended post-sentence motion,
Appellant filed a timely appeal in which he asks this Court to consider the
following five issues, which we have reordered for ease of discussion:
1. Whether the trial court had jurisdiction over this case when
none of the crimes or any overt act relating to any of the
crimes charged in this case occurred in Butler County?
2. Whether the evidence adduced at trial was insufficient to
convict Appellant [] of Count 1 and Count 2, both of which
charged [IDSI], because the evidence was legally insufficient
to prove penetration, however slight?
-2-
J-A27036-15
3. Whether the evidence was insufficient to prove Counts 6-213
because the trial evidence was insufficient to prove that a
child was depicted in the photographs and videos and
because there was no testimony at trial that correlated the
admitted Commonwealth exhibits, the photographs and
videos, to specific counts of the Information?
4. Whether the trial court erred in failing to rule on the Motion to
Offer Evidence of Victim’s Sexual Conduct Pursuant to 18
Pa.C.S.A. § 3104 thereby wrongfully denying [Appellant] the
opportunity to confront and effectively cross-examine the
alleged victim in this case?
5. Whether the Commonwealth failed to prove that [Appellant]
was a sexually violent predator because the evidence was
insufficient to prove that he possessed a mental abnormality
and it ignored other factors that did not support such a
determination?
Appellant’s Brief at 6-7.
Appellant’s first issue appears to assert a challenge to the Butler
County trial court’s jurisdiction over the case based on the fact none of the
crimes or overt acts for which Appellant was convicted took place within
Butler County. Although phrased as a jurisdictional challenge, Appellant’s
concise statement pursuant to Pa.R.A.P. 1925(b) frames this issue as a
challenge to venue. The trial court found that Appellant never challenged
venue prior to raising it in his 1925(b) statement, resulting in waiver. Trial
Court Opinion (T.C.O.), 5/23/14, at 5 (citing Commonwealth v. Kelley,
-3-
J-A27036-15
664 A.2d 123, 126 (Pa. Super. 1995)).2 Even if not waived, Appellant is not
entitled to relief on either jurisdictional or venue grounds.
This Court has recognized that “[a]ll courts of common pleas have
statewide subject matter jurisdiction in cases arising under the Crimes
Code.” Commonwealth v. Miskovitch, 64 A.3d 672, 688 (Pa. Super.
2013) (quoting Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa.
2003)). The Court of Common Pleas of Butler County unquestionably had
jurisdiction over Appellant’s case. Therefore, as in Miskovitch, “Appellant's
claim only challenges the procedural aspect of venue, as it is clear that [the
county where the charges were brought] would have subject matter
jurisdiction even over violations of the Crimes Code committed exclusively
and/or entirely within [another county].” Id.
Concerning venue, Appellant argues his convictions should be reversed
because the criminal conduct for which he was convicted “occurred in
counties other than Butler County or [occurred] out of state.” Appellant’s
Brief at 19. “Venue is predominately a procedural matter that ‘relates to the
right of a party to have the controversy brought and heard in a particular
judicial district.’” Miskovitch, 64 A.3d at 688 (quoting Bethea, 828 A.2d at
1074). While it is true that the majority of acts of sexual abuse took place in
____________________________________________
2
Our review of the record reveals that Appellant also raised the issue of
venue in his amended post-sentence motion. Amended Post-Sentencing
Motion at 4, ¶ 7.
-4-
J-A27036-15
Allegheny County, with others taking place in Warren County, New York City
and Atlanta, it is also true, as the trial court recognized, that “Butler County
[was] the location from which [Appellant] would often transport the minor
victim prior to abusing her, [and] the testimony of Trooper Birckbichler
revealed that certain photographs of the minor victim were likely taken in
Butler County.” T.C.O., 5/23/14, at 5.
In Miskovitch, this Court stated:
Because Appellant's venue claim is exclusively procedural in
nature, we look to Pa.R.Crim.P. 109 for guidance. Rule 109
provides that:
A defendant shall not be discharged nor shall a case be
dismissed because of a defect in the form or content of a
complaint, citation, summons, or warrant, or a defect in
the procedures of these rules, unless the defendant raises
the defect before the conclusion of the trial in a summary
case or before the conclusion of the preliminary hearing in
a court case, and the defect is prejudicial to the rights of
the defendant.
Pa.R.Crim.P. 109 (emphasis added).
Thus, even assuming that venue was improper, Appellant must
demonstrate prejudice in order to be entitled to relief, at least
where, as was true in this case, the choice of venue is purely
procedural, and not jurisdictional in nature. Indeed, the purpose
of venue, apart from the manner in which it relates to subject
matter jurisdiction, is a matter of convenience to the litigants.
See Bethea, 828 A.2d at 1074–75 (“[V]enue pertains to the
locality most convenient to the proper disposition of a matter[.]”.
Id. at 689.
Appellant has not demonstrated—or even suggested—that any
procedural defect was prejudicial to his rights. Nor did Appellant raise a
-5-
J-A27036-15
“defect” prior to the conclusion of the preliminary hearing, as required by
Pa.R.Crim.P. 109.3 Appellant is not entitled to relief on his first issue.
In his second and third issues, Appellant contends the evidence was
insufficient to support his convictions on Counts 1 and 2 (IDSI) and on
Counts 6 through 213 (sexual abuse of children). In Commonwealth v.
Segida, 985 A.2d 871 (Pa. 2009), our Supreme Court explained:
When reviewing a challenge to the sufficiency of the evidence,
we must determine if the Commonwealth established beyond a
reasonable doubt each of the elements of the offense,
considering the entire trial record and all of the evidence
received, and drawing all reasonable inferences from the
evidence in favor of the Commonwealth as the verdict-winner.
Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307, 313
(2008). The Commonwealth may sustain its burden of proof by
wholly circumstantial evidence. Commonwealth v. Kennedy,
598 Pa. 621, 959 A.2d 916, 921 (2008), cert. denied, [556 U.S.
1258], 129 S. Ct. 2433, 174 L. Ed. 2d 229 (2009).
Id. at 880. Further, “we may not substitute our judgment for that of the
fact finder; thus, so long as the evidence adduced, accepted in the light
most favorable to the Commonwealth, demonstrates the respective elements
of a defendant’s crimes beyond a reasonable doubt, the appellant’s
convictions will be upheld.” Commonwealth v. Rahman, 75 A.3d 497, 501
____________________________________________
3
Had Appellant timely challenged venue, the Commonwealth would have
borne the burden of proof—by a preponderance of the evidence—to
demonstrate venue was proper in Butler County. See Commonwealth v.
Gross, 101 A.3d 28, 33 (Pa. 2014). Even if Appellant successfully
challenged venue, the remedy would have been to transfer venue, not
dismiss the case. Id. at 36.
-6-
J-A27036-15
(Pa. Super. 2013) (quoting Commonwealth v. Pettyjohn, 64 A.3d 1072,
1075 (Pa. Super. 2013) (additional citations omitted)).
Appellant’s first sufficiency challenge is to Counts 1 and 2, both of
which involved claims of IDSI. IDSI is defined, inter alia, as follows:
A person commits a felony of the first degree when the person
engages in deviate sexual intercourse with a complainant:
***
(7) who is less than 16 years of age and the person is four or
more years older than the complainant and the complainant and
person are not married to each other.
18 Pa.C.S.A. § 3123(a)(7).4 “Deviate sexual intercourse” is defined as
follows:
Sexual intercourse per os or per anus between human beings
and any form of sexual intercourse with an animal. The term
also includes penetration, however slight, of the genitals or anus
of another person with a foreign object for any purpose other
than good faith medical, hygienic or law enforcement
procedures.
18 Pa.C.S.A. § 3101.
Appellant argues the evidence was insufficient to establish penetration
with a foreign object warranting a conviction under Count 1 or to establish
that Appellant engaged in deviate sexual intercourse per os warranting a
____________________________________________
4
Appellant does not contest that the victim was under the age of sixteen,
that he is four or more years older than she, or that they were not married
to each other.
-7-
J-A27036-15
conviction under Count 2. The record belies his assertions. As the trial
court accurately summarized:
The victim [], who was seventeen years old at the time of
trial, testified that, beginning when she was eleven or twelve
years old, she suffered an escalating course of sexual abuse at
the hands of [Appellant] that continued until she was fifteen
years old. Her testimony was that, at the beginning of the time
during which the abuse occurred, [Appellant] would [lie] in bed
with her while he was naked. She testified that [Appellant]
would rub her “butt” and her “vagina” with his hand and or with
“vibrators.” During many of the sexual encounters, the victim
testified, [Appellant] would use his camera to take pictures of
her. [Appellant] went from using adult toys and objects on the
victim to, as the victim testified, using his mouth and his penis
on her vagina. The abuse occurred on numerous occasions and
at various locations, including [Appellant’s] home in Allegheny
County, [Appellant’s] camp in Tidioute, Pennsylvania, and at
various hotels. She testified that [Appellant] engaged in sexual
intercourse with her, beginning at approximately age thirteen or
fourteen. When asked by counsel for [Appellant] to describe
what the victim meant by the term “sexual intercourse,” the
victim replied by stating: “Touch me inappropriately to have sex
with me whenever I didn’t want to. Rape.” The victim described
that, on one particular occasion, [Appellant] “put himself on
me[.] . . . He put himself on me and had sex.” When asked
“How so[?] . . . Well, did he use his fingers? His mouth? His
lips? His penis?,” the victim testified, “All of the above.” She
testified that [Appellant], on that occasion, penetrated her
vagina with his penis. On the many occasions where sexual
abuse took place, [Appellant] was acting as a person supervising
the welfare of the victim. In addition to the testimony of the
victim, the Commonwealth introduced numerous explicit
photographs and videos of the victim that were seized from
[Appellant’s] home. The images and videos, at the minimum,
corroborate the victim’s testimony.
The testimony of the minor victim provides sufficient evidence
that [Appellant], an adult, penetrated her vagina orally and with
a foreign object at a time when she was under the age of
sixteen. The victim’s testimony also established that [Appellant]
penetrated her vagina digitally and with his penis. Coupled with
the photographic and video evidence that was admitted at trial,
-8-
J-A27036-15
it cannot be maintained that the verdicts, relating to [IDSI] . . .,
were against the weight of the evidence because the victim’s
testimony was “incredible, vague and unworthy of belief.” In
any case, the jury was free to believe or disbelieve the testimony
of the victim. The jury chose to believe her testimony.
T.C.O., 5/23/14, at 2-4 (citations to Notes of Testimony omitted).
Appellant cites Commonwealth v. Hawkins, 614 A.2d 1198 (Pa.
Super. 1992), in support of his contention that “mere kissing of the vagina
does not constitute penetration” under Pennsylvania law. Appellant’s Brief
at 25. In Hawkins, this Court considered the sufficiency of evidence
supporting Appellant’s conviction for attempted IDSI and stated:
The crime of involuntary deviate sexual intercourse requires
“some penetration however slight.” 18 Pa.C.S. §§ 3101, 3123.
Here, Hawkins argues that the evidence only established that he
kissed the complainant’s vagina. As such, Hawkins contends
that the evidence was insufficient to prove that he intended to
orally penetrate the complainant’s vagina.
....
The complainant testified that Hawkins kissed her vagina. From
this evidence, the jury could certainly infer Hawkins’s intent to
penetrate her vagina with his tongue, or to force the act of
cunnilingus upon her. See Commonwealth v. Vanderlin, 398
Pa. Super. 21, 35–37, 580 A.2d 820, 828–829 (1990) (the jury
could conclude that defendant attempted involuntary deviate
sexual intercourse from the evidence establishing that the
defendant touched the victim’s mouth with his penis); see also
Commonwealth v. Westcott, 362 Pa. Super. 176, 523 A.2d
1140 (1987) (cunnilingus is one of the acts proscribed by section
3123 of the Crimes Code). We conclude, therefore, that the
evidence was sufficient to support Hawkins’s conviction for
attempted involuntary deviate sexual intercourse.
[Commonwealth v. Fromal, 572 A.2d 711 (Pa. Super. 1990)],
supra.
Id. at 1199-1200 (footnote omitted). This Court has since clarified that:
-9-
J-A27036-15
[I]n order to sustain a conviction for involuntary deviate sexual
intercourse, the Commonwealth must establish the perpetrator
engaged in acts of oral or anal intercourse, which involved
penetration however slight. Commonwealth v. Poindexter,
435 Pa. Super. 509, 646 A.2d 1211, 1215 (1994), appeal
denied, 540 Pa. 580, 655 A.2d 512 (1995). In order to establish
penetration, some oral contact is required. See
Commonwealth v. Trimble, 419 Pa. Super. 108, 615 A.2d 48
(1992) (finding actual penetration of the vagina is not
necessary; some form of oral contact with the genitalia is all that
is required). Moreover, a person can penetrate by use of the
mouth or the tongue. See In the Interest of J.R., 436 Pa.
Super. 416, 648 A.2d 28 (1994), appeal denied, 540 Pa. 584,
655 A.2d 515 (1995) (stating “Deviate sexual intercourse is
considered to have occurred if one's mouth or tongue penetrates
the vaginal area of another”).
Commonwealth v. Wilson, 825 A.2d 710 (Pa. Super. 2003) (quoting
Commonwealth v. L.N., 787 A.2d 1064, 1070 (Pa. Super. 2001)). While
Wilson and the cases cited therein address penetration with respect to
intercourse per os, the same principles of contact with genitalia should apply
as well to “penetration, however slight” with a foreign object, such as the
vibrators described by the victim here.
Viewing the evidence and reasonable inferences in a light most
favorable to the Commonwealth as verdict-winner, we find the trial court
correctly determined that the Commonwealth established the elements of
IDSI beyond a reasonable doubt, warranting convictions on Counts 1 and 2.
Appellant’s second issue fails for lack of merit.
In his third issue, Appellant argues the evidence was insufficient to
support his convictions under Counts 6 through 213, i.e., 104 counts of
sexual abuse of children under 18 Pa.C.S.A. § 6312(b)(2)
- 10 -
J-A27036-15
(photographing/videotaping/depicting on computer or filming sexual acts)
and 104 counts of sexual abuse of children under 18 Pa.C.S.A. § 6312(d)
(viewing/possessing child pornography).
Pursuant to Section 6312(b)(2), “Any person who knowingly
photographs, videotapes, depicts on computer or films a child under the age
of 18 years engaging in a prohibited sexual act or in the simulation of such
an act commits an offense.” Further, pursuant to Section 6312(d), “Any
person who intentionally views or knowingly possesses or controls any book,
magazine, pamphlet, slide, photograph, film, videotape, computer depiction
or other material depicting a child under the age of 18 years engaging in a
prohibited sexual act or in the simulation of such act commits an offense.”
The trial court rejected Appellant’s claims of insufficiency to support
his convictions of child sexual abuse and accurately noted that “[t]he victim
was clearly depicted in numerous photographs and videos that were
introduced into evidence. The victim also testified to [Appellant’s] habits
regarding the taking and downloading of pictures at or near the times the
sexual abuse took place.” T.C.O., 5/23/14, at 4. Our review of the record
leads us to conclude that the trial court correctly determined the evidence
was sufficient to support the convictions.5
____________________________________________
5
The trial court also considered the possibility that some of the 104 images
might not have depicted the victim or might not have been taken or filmed
by Appellant, commenting:
(Footnote Continued Next Page)
- 11 -
J-A27036-15
In his fourth issue, Appellant asserts the trial court erred by failing to
conduct an in camera hearing or rule on his motion to offer evidence of the
victim’s sexual conduct under the Rape Shield Law, 18 Pa.C.S.A. § 3104. In
his brief, Appellant explains:
At trial, the alleged victim testified that her sexual activity with
[Appellant] began when she was approximately 11 or 12 years
old. Defense counsel was in possession of evidence that the
alleged victim had bragged publicly on a social media site that
she lost her virginity when she was in the 9th grade to another
person, not [Appellant], and that she had only had sex one time.
This claims sexual activity occurred after the time she claims
that she had sex with [Appellant.]
Appellant’s Brief at 42 (citations to Notes of Testimony omitted). Appellant
contends the trial court’s inaction deprived him of the right to confront his
victim, requiring a new trial.
In Commonwealth v. K.S.F., 102 A.3d 480 (Pa. Super. 2014), a case
on which Appellant heavily relies, this Court explained:
Our standard of review for admission of evidence of a victim's
prior sexual conduct is as follows:
_______________________
(Footnote Continued)
In any case, it is certain that there was sufficient evidence
relating to sexual abuse of children with respect to at least some
of the photographs and videos, and with respect to some of the
photographs and videos, it is plain that the verdicts were not
against the weight of the evidence. We note this because the
sentences at Counts six through 109 were imposed concurrently
with each other.
T.C.O., 5/23/14, at 4.
- 12 -
J-A27036-15
A trial court’s ruling on the admissibility of evidence of the
sexual history of a sexual abuse complainant will be
reversed only where there has been a clear abuse of
discretion. An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is
overridden or misapplied or the judgment exercised is
manifestly unreasonable, or the result of partiality,
prejudice, bias, or ill will, as shown by the evidence or the
record, discretion is abused.
Id. at 483 (quoting Commonwealth v. Holder, 815 A.2d 1115, 1118 (Pa.
Super. 2003) (additional citations omitted)).
The Rape Shield Law provides as follows:
(a) General rule.--Evidence of specific instances of the
alleged victim's past sexual conduct, opinion evidence of
the alleged victim's past sexual conduct, and reputation
evidence of the alleged victim's past sexual conduct shall
not be admissible in prosecutions under this chapter
except evidence of the alleged victim's past sexual
conduct with the defendant where consent of the alleged
victim is at issue and such evidence is otherwise
admissible pursuant to the rules of evidence.
(b) Evidentiary proceedings.--A defendant who proposes to
offer evidence of the alleged victim's past sexual conduct
pursuant to subsection (a) shall file a written motion and
offer of proof at the time of trial. If, at the time of trial,
the court determines that the motion and offer of
proof are sufficient on their faces, the court shall
order an in camera hearing and shall make findings
on the record as to the relevance and admissibility
of the proposed evidence pursuant to the standards
set forth in subsection (a).
- 13 -
J-A27036-15
18 Pa.C.S.A. § 3104 (emphasis added).6
“Although the literal language of the Rape Shield Law would appear to
bar a wide range of evidence, courts have interpreted the statute to yield to
certain constitutional considerations implicating the rights of the accused.”
K.S.F., 102 A.3d at 483 (citing Commonwealth v. Riley, 643 A.2d 1090,
1093 (Pa. Super. 1994) (right to cross-examine witnesses)). This Court
further explained:
Evidence that tends to impeach a witness’ credibility is not
necessarily inadmissible because of the Rape Shield Law.
[Commonwealth v. Black, 487 A.2d 396, 401 (Pa. Super.
1985)]. When determining the admissibility of evidence that the
Rape Shield Law may bar, trial courts hold an in camera hearing
and conduct a balancing test consisting of the following factors:
“(1) whether the proposed evidence is relevant to show bias or
motive or to attack credibility; (2) whether the probative value
of the evidence outweighs its prejudicial effect; and (3) whether
there are alternative means of proving bias or motive or to
challenge credibility.” Id.
Id. at 483-84.7
In K.S.F., the appellant was convicted of IDSI and other sexual
offenses against his stepdaughter, some occurring before she was sixteen
and some before she was thirteen. Prior to trial, the appellant filed a motion
to access his stepdaughter’s profiles on Facebook, which he could not
____________________________________________
6
We have highlighted the second sentence of subsection (b) to underscore
the fact a hearing is required only if the trial court determines the motion
and offer of proof are sufficient on their faces.
7
See note 5.
- 14 -
J-A27036-15
otherwise access because of privacy settings. The appellant alleged one of
the profiles contained impeachable material: specifically, that the
stepdaughter described herself as a virgin. The trial court denied the
motion, finding the evidence inadmissible under the Rape Shield Law.
On appeal, this Court vacated the judgment of sentence and remanded
with instruction to conduct an in camera hearing applying the three-prong
balancing test outlined in Black, after which the trial court could either grant
a new trial or reinstate the appellant’s judgment of sentence. The trial court
complied. At the hearing, the “[s]tepdaughter testified that when she wrote
on Facebook that she had never had sex before, she meant she had never
had consensual sex.” Id. at 482. The trial court determined the probative
value of the evidence did not outweigh its prejudicial effect and reinstated
the judgment of sentence. On return to this Court, we reversed the trial
court’s determination, finding “the trial court erred as a matter of law in
weighing the probative value of the evidence against the prejudice of its
admission.” Id. at 484. The panel looked to our Supreme Court’s ruling in
Commonwealth v. Spiewak, 617 A.2d 696 (Pa. 1992), in which the Court
held that “rules excluding evidence cannot be mechanistically applied to
abridge a defendant’s right of confrontation by denying admission of highly
reliable and relevant evidence critical to his defense.” Id. (quoting
Spiewak, 617 A.2d at 701).
- 15 -
J-A27036-15
In Spiewak, the victim accused her stepfather of engaging in sexual
activity prior to her sixteenth birthday. The appellant acknowledged having
sexual relations with his stepdaughter after she turned sixteen—after he and
his stepdaughter’s mother had separated, but denied any sexual contact
before she turned sixteen. The trial court did not allow the appellant to
cross-examine the stepdaughter about a statement she made to a friend,
admitting she had one sexual relationship prior to turning sixteen that
involved an older man who was a friend of her stepfather. The Supreme
Court reversed the appellant’s judgment of sentence, finding that applying
the Rape Shield Law violated the appellant’s constitutional rights of
confrontation and cross-examination.
The Court recognized that the victim’s credibility was the critical issue,
id. at 698, and held:
The statute cannot be both shield and sword. Here a statute is
so designed to protect the witness’s interest in preventing
prejudicial disclosure of the witness's past behavior. It cannot at
the same time preclude a defendant from offering evidence
which is so highly probative of the witness’s credibility that such
evidence is necessary to allow/permit a jury to make a fair
determination of the defendant's guilt or innocence. The statute
must yield to a defendant's basic constitutional right.
Id. at 702.
We find both K.S.F. and Spiewak factually distinguishable from the
case before us. In K.S.F. and Spiewak, credibility of the complaining minor
was the central issue in what can be described as “he said-she said” cases.
There was no physical evidence to support or defeat the complainants’
- 16 -
J-A27036-15
claims of sexual misconduct. By contrast, here there was physical evidence
in the form of scores of photographs and videos portraying the victim
engaging in sexual activity—photographs and videos found in Appellant’s
possession. Appellant was not prevented from cross-examining the victim
as to when the photographs or videos were taken, by whom, whether she
and/or Appellant were portrayed in them, etc. His ability to cross-examine
the victim effectively was not thwarted by precluding him from asking
Appellant about an online post that was outweighed by overwhelming
physical evidence introduced at trial. Allowing Appellant to introduce
evidence of the victim’s online posts indicating she lost her virginity to
someone other than Appellant would not serve the same critical purpose as
allowing testimony of inconsistent statements in K.S.F. or Spiewak. The
proposed evidence was not “so highly probative of the witness’s credibility
that such evidence [was] necessary to allow/permit a jury to make a fair
determination of the defendant's guilt or innocence.” Spiewak, 617 A.2d at
702.
We find no abuse of discretion on the part of the trial court for
reserving its ruling on Appellant’s Rape Shield Motion until time of trial or for
its ruling during trial to the extent it precluded Appellant from impeaching
the victim or challenging her credibility by presenting evidence of sexual
- 17 -
J-A27036-15
conduct between the victim and anyone other than Appellant.8 Under the
facts of the case, an in camera hearing was unnecessary, and the trial court
properly sustained the Commonwealth’s objection. Appellant is not entitled
to relief based on the Rape Shield Law.
In his fifth and final issue, Appellant claims the trial court based
Appellant’s SVP designation on “uncharged, unfounded and incredible
evidence. Specifically, the trial court relied on false, unreliable evidence that
[Appellant] had engaged in improper conduct with another victim. That
evidence was hearsay and patently unreliable.” Appellant’s Brief at 49.
The trial court rejected Appellant’s claim, stating:
[Appellant] asserts that the “factual basis for his designation as
a sexually violent predator was based on uncharged, unfounded
____________________________________________
8
On direct examination, the victim recalled the circumstances under which
she admitted to her adoptive father that Appellant had been abusing her.
Her adoptive father called the victim’s mother, who was out of town
attending school, and told her she should return home immediately. When
the mother returned, the victim told her about the abuse. Notes of
Testimony (N.T.), Trial, 5/20/13, at 81-82.
On cross-examination, Appellant’s counsel asked the victim why she did not
confide in her mother about Appellant’s actions and then asked if she ever
confided in her mother on other occasions about issues involving sexual
activity. Counsel for the Commonwealth objected, arguing at sidebar there
was no notice given as required under the Rape Shield Law and noting he
objected to any further questioning about the victim’s sexual activity with
anyone other than Appellant. Appellant’s counsel replied, “I’m going to
impeachment and credibility issue, Your Honor.” The trial judge responded,
“It’s not admissible.” and instructed the jury that the witness’s response was
stricken from the record. No further questioning was conducted along those
lines and Appellant’s counsel did not raise the issue of the pre-trial motion
on which the trial court reserved its ruling. N.T. Trial, 5/20/13, at 88-89.
- 18 -
J-A27036-15
and incredible evidence.” That is not the case. While the
uncharged conduct was considered by the [Sexual Offenders
Assessment Board (SOAB)] evaluator, her testimony was that
the uncharged conduct played little part in her determining that
the [Appellant] was a sexually violent predator. She testified
that absent the uncharged conduct, her conclusion would have
been the same. The [c]ourt, in any event, did not rely on any
uncharged conduct in finding the Commonwealth met its burden
of demonstrating by clear and convincing evidence that
[Appellant] met the criteria to be classified as a sexually violent
predator.
T.C.O., 5/23/14, at 7.
As this Court recognized in Commonwealth v. Prendes, 97 A.3d 337
(Pa. Super. 2014):
A challenge to a determination of SVP status requires us to view
the evidence:
[i]n the light most favorable to the Commonwealth. The
reviewing court may not weigh the evidence or substitute
its judgment for that of the trial court. The clear and
convincing standard requires evidence that is so clear,
direct, weighty and convincing as to enable [the trier of
fact] to come to a clear conviction, without hesitancy, of
the truth of the precise facts [at] issue.
The scope of review is plenary. “[A]n expert's opinion, which is
rendered to a reasonable degree of professional certainty, is
itself evidence.” Commonwealth v. Fuentes, 991 A.2d 935,
944 (Pa. Super. 2010) (en banc), appeal denied, 608 Pa. 645,
12 A.3d 370 (2010) (emphasis in original).
Id. at 355-56 (some citations omitted). Further, “[a]s a general rule, [the]
standard of review of a trial court’s evidentiary ruling . . . is limited to
determining whether the trial court abused its discretion.” Id. at 356
(quoting Commonwealth v. Dengler, 890 A.2d 372, 279 (Pa. 2005)).
- 19 -
J-A27036-15
In accordance with 42 Pa.C.S.A § 9799.24(b), an SOAB member
conducts an SVP assessment upon receipt of a court order for an
assessment. The assessment is to include, but not be limited to, an
examination of various factors that include, inter alia, the facts of the
offenses, prior offense history, characteristics of the offender—including any
mental abnormality, and factors relating to the risk of re-offense. Id. “The
SOAB merely assesses the defendant, it does not perform an adjudicative
function.” Prendes, 97 A.3d at 357.
To deem an individual a sexually violent predator, the
Commonwealth must first show the individual has been
convicted of a sexually violent offense as set forth in section
9799.14. Secondly, the Commonwealth must show that the
individual has a mental abnormality or personality disorder that
makes him likely to engage in predatory sexually violent
offenses. When the Commonwealth meets this burden, the trial
court then makes the final determination on the defendant’s
status as an SVP.
Id. at 357-58 (quotations, citations and brackets omitted).
An SVP assessment is not a trial or a separate criminal
proceeding that subjects the defendant to additional
punishment. SVP status, therefore, does not require proof
beyond a reasonable doubt; the court decides SVP status upon a
show of clear and convincing evidence that the offender is, in
fact, an SVP.
Id. at 358 (citations omitted).
The record reveals that the trial court conducted an SVP hearing on
February 19, 2014, during which SOAB member Julia Lindemuth testified
that her review of the provided materials led her to conclude Appellant
- 20 -
J-A27036-15
suffered from a mental abnormality, i.e., paraphilia not otherwise specified
(NOS). N.T. SVP Hearing, 2/19/14, at 10. She explained that paraphilia
NOS “very similarly mirrors pedophilia but that is a sexual attraction to
prepubescent children.” Id. at 10. Because the offenses for which Appellant
was convicted occurred when the victim was approximately twelve to fifteen
years old, she classified it as paraphilia NOS. Id. at 10-11. She stated that
her conclusion was based on “the ongoing pattern [] of sexual abuse with
the children for several years which included fondling, oral sex, penetration,
intercourse, and pornography.” Id. at 11.9 She testified that paraphilias are
lifetime disorders, id. at 11-12, and “the likelihood over time is that he
would likely reoffend because it’s a sexual deviant disorder that does not
have a cure [] per se. Id. at 13. Finally, she explained her opinion, to a
reasonable degree of professional certainty, that Appellant met the statutory
definition of predatory, noting:
He was a life-long trusted family friend. He had known the
victim since birth and used that trust and status within the
family to gain access to the victim. He spent many times alone
with her, took her on trips, and because of that trusting family
____________________________________________
9
Ms. Lindemuth’s reference to “children” is likely based on her review of
allegations involving “CC.” Ms. Lindemuth acknowledged that allegations
involving CC were not involved in Appellant’s trial and she was unaware of
any charges filed against Appellant by any individual other than the victim.
N.T. SVP Hearing, 2/19/14, at 21-22. In its opinion, the trial court
confirmed that uncharged conduct was not considered in its SVP ruling.
T.C.O., 5/23/14, at 7.
- 21 -
J-A27036-15
relationship he was able to offend, and it is my opinion that that
is predatory.
Id.10
At the conclusion of the hearing, the trial court found “by clear and
convincing evidence that [Appellant] meets the criteria to be classified as a
sexually violent predator.” Id. at 34. Our review of the record leads us to
conclude the trial court did not abuse its discretion in designating Appellant
an SVP. Therefore, Appellant is not entitled to relief on his fifth issue.
Each of Appellant’s issues fails for lack of merit. Therefore, we affirm
his judgment of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/17/2015
____________________________________________
10
Ms. Lindemuth testified that all of her opinions were held to a reasonable
degree of professional certainty. N.T. SVP Hearing, 2/19/14, at 13.
- 22 -