Com. v. Baer, W.

J-S61025-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WADE CHARLES BAER
Appellant No. 1982 WDA 2015
Appeal from the Judgment of Sentence November 24, 2015
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000281-2014
BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.
MEMORANDUM BY LAZARUS, J.: FILED AUGUST 09, 2016
Wade Charles Baer appeals from his judgment of sentence, entered in
the Court of Common Pleas of Bedford County, after pleading guilty to one
count each of rape of child,1 statutory sexual assault (11 years older),2
involuntary deviate sexual intercourse (less than 16 years of age),3 unlawful
contact with a minor (sexual offenses),4 and sexual abuse of children
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1
18 Pa.C.S. § 3121(c).
2
18 Pa.C.S. § 3122.1(b).
3
18 Pa.C.S. § 3123(a)(7).
4
18 Pa.C.S. § 6318(a)(1).
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(possession of child pornography).5 Baer was sentenced to an aggregate
term of 7 to 14 years’ imprisonment.6 After careful review, we affirm.
Baer had a sexual relationship with his ex-girlfriend’s daughter
beginning in 2007, when the victim was eleven years old, and continuing
until she was fourteen years old. At the inception of their relationship, Baer
was 24 years old. The victim related to law enforcement that Baer touched,
kissed, digitally penetrated, performed oral sex on and had sexual
intercourse with her. Baer also had the victim take naked pictures7 and
videos of herself while she was performing oral sex on him, simulating
sexual acts, and in provocative poses. Baer and the victim had sexual
relations at least on a weekly basis from 2007 to 2010, at which point the
victim ended the relationship so that she could date boys her own age.
After Baer entered his plea, he filed a motion for a Frye8 hearing on
expert testimony proffered by a Sexual Offender Assessment Board (SOAB)
____________________________________________
5
18 Pa.C.S. § 6312.
6
Each of the sentences on counts two through five were ordered to run
concurrently to Baer’s rape sentence. All of the instant offenses were
ordered to run concurrently to and conterminously with an unrelated
sentence he was already serving in federal court.
7
The victim identified 29 photographs obtained from Baer’s computer as
being her. Fifteen of those photos depicted her either naked, in a simulated
sexual act, or in a sexual or provocative nature.
8
Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923) (standard requiring that
opinions or inferences are of a type reasonably relied upon by experts in the
particular field).
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member about his disorder, hebephilia, and whether it is a diagnosable
mental condition based upon legitimate scientific principles and methods.
The court denied Baer’s motion and, after a hearing, the court determined
that Baer should be classified as a sexually violent predator (SVP) subject to
lifetime registration under our Commonwealth’s version of Megan’s Law. 9 In
this timely filed appeal, Baer raises the following issues for our
consideration:
(1) Whether or not the Defendant’s issues are waived
pursuant to Pa.R.A.P. 1925 and, if so, what is the proper
remedy?
(2) Whether the trial court erred and/or abused its discretion
when it found the evidence sufficient to support the mental
abnormality prong of the statute to support a finding that
the Appellant was a sexually violent predator.10
(3) Whether the trial court erred and/or abused its discretion
when it denied a Frye hearing in this matter on the matter
____________________________________________
9
42 Pa.C.S. § 9799.14.
10
Our standard review of a trial court’s SVP designation is as follows:
[T]o affirm an SVP designation, we, as a reviewing court, must
be able to conclude that the fact-finder found clear and
convincing evidence that the individual is a[n] [SVP]. As with
any sufficiency of the evidence claim, we view all evidence and
reasonable inferences therefrom in the light most favorable to
the Commonwealth. We will reverse a trial court’s determination
of SVP status only if the Commonwealth has not presented clear
and convincing evidence that each element of the statute has
been satisfied.
Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015)
(internal citation omitted).
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of the mental abnormality and the diagnosis of hebephiliac
paraphilia not otherwise specified.
With regard to whether Baer has waived his issues on appeal under
Pa.R.A.P. 1925(b), we note the following relevant procedural history. On
December 17, 2015, after Baer filed a timely notice of appeal, the trial court
ordered Baer to file a Rule 1295(b) statement of errors complained of on
appeal within 21 days. On April 7, 2016, the trial court issued its Rule
1925(a) opinion indicating that:
On December 17, 2015, we entered an Order directing
Defendant to file a statement of matters complained of on
appeal within 21 days. To date, Defendant has failed to file such
a statement. As such, we believe Defendant has waived all
issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii). To the extent
the appellate court would find Defendant has not waived
all issues, we believe our discussion on the record would
adequately address any issues preserved. See Sent. Tr.,
pp. 65-74.
Trial Court Opinion, 4/7/16, at 2 (emphasis added). On April 8, 2016, Baer
filed his Rule 1925(b) statement of errors complained of on appeal indicating
that his attorney had not received a copy of the trial court’s 1925(b) order11
and that once counsel received a copy of the trial court’s opinion deeming all
of his client’s issues waived, he immediately filed the instant statement.
Baer’s statement includes the same issues he raises and argues in his
____________________________________________
11
We note that pursuant to Pa.R.C.P. 236, “[t]he prothonotary shall
immediately give written notice of the entry of . . . any . . . order to each
party’s attorney of record[.]” Pa.R.C.P. 236(a)(2). In the instant case there
is no documentation in the docket that Rule 236 notice of the court’s Rule
1925(b) order was provided to Baer’s attorney of record.
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appellate brief. We, therefore, must determine whether case law
interpreting Rule 1925 deems Baer’s issues waived on appeal.
It is well established that generally the failure to file a timely Rule
1925(b) statement would constitute waiver of all issues. See
Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998). However, in
Commonwealth v. Thompson, 39 A.3d 335 (Pa. Super. 2011), our Court
clarified the effect of counsel’s untimely filing of a Rule 1925(b) statement in
light of the 2007 amendments to Rule 1925. In Thompson, we noted that
by drafting Rule 1925(c)(3), the Supreme Court added a new procedure for
appellate courts to remedy a criminal appellant’s failure to file a Rule
1925(b) statement. Id. at 338. Just as in the present case, in Thompson
the defendant filed her 1925(b) statement after the court-ordered deadline.
Thus, at the time the trial court prepared its opinion, it did not have the
benefit of the issues defendant wished to raise on appeal, and, as a result,
the court found all issues waived on appeal. Id. at 340. Accordingly, the
Court held:12
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12
Subsection 1925(c)(3) provides:
(3) If an appellant in a criminal case was ordered to file a
Statement and failed to do so, such that the appellate court is
convinced that counsel has been per se ineffective, the appellate
court shall remand for the filing of a Statement nunc pro tunc
and for the preparation and filing of an opinion by the judge.
Pa.R.A.P. 1925(c)(3).
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[Because] the trial court’s 1925(a) opinion in the present case
did not address [the defendant’s] issues, as [defendant] had not
yet filed a 1925(b) statement[,] . . . we remand for the trial
court to file a Rule 1925(a) opinion addressing the issues raised
in [defendant’s] untimely Rule 1925(b) statement within 30 days
of the date of this Opinion.
Id. at 340.
Instantly, the trial court specified in its Rule 1925(a) opinion where it
explained its rationale for its SVP and Frye rulings in the record. See
Pa.R.A.P. 1925(a) (“judge . . . shall specify in writing the place in the record
where such reasons [for the judgment of sentence] may be found.”).
Accordingly, we have guidance for the court’s reasoning on the issues raised
on appeal and do not need to remand the matter further for an opinion. Cf.
Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en
banc) (“Thus, if there has been an untimely filing, this Court may decide the
appeal on the merits if the trial court had adequate opportunity to prepare
an opinion addressing the issues being raised on appeal. If the trial court
did not have an adequate opportunity to do so, remand is proper.”);
Thompson, supra. Thus, we decline to find the issues waived and can
review them on the instant record.
Baer first asserts that the trial court erred when it found that there
was sufficient evidence to support the “mental abnormality” prong of section
9792 in order to conclude that he was an SVP.
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To deem an individual a sexually violent predator, the Commonwealth
must first show that the individual has been convicted of an offense as set
forth in section 9799.14(b), (c) or (d).13 See 42 Pa.C.S.A. § 9799.12. The
Commonwealth must also show that the individual has “a mental
abnormality or personality disorder that makes [him] likely to engage in
predatory sexually violent offenses.” 42 Pa.C.S. § 9792. When the
Commonwealth meets this burden, the trial court then makes the final
determination on the defendant’s SVP status. Commonwealth v. Kopicz,
840 A.2d 342, 351 (Pa. Super. 2003).
Instantly, SOAB member Herbert E. Hays, M.A.,14 assessed that Baer’s
condition, which was the impetus for his sexual offending, is a lifetime
disorder that involves “recurrent and intense sexual arousal involving a
prepubescent child between the ages of 11 and 14 years of age that has
been present for at least 6 months and causes marked distress or
impairment in social, occupational, or other important areas of functioning.”
Sexually Violent Predator Assessment, 1/5/15, at 6. Ultimately, Hays
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13
Baer’s offenses are all considered sexually violent offenses under section
9799.14. 42 Pa.C.S. § 9799.14(a). Under Megan’s Law, sexual offenses
shall be classified in a three-tiered system composed of Tier I, Tier II, and
Tier III sexual offenses. Id. at § 9799.14(a). All of Baer’s offenses, except
his unlawful contact with minor charge (“Tier II sexual offense”), are
classified as “Tier III sexual offenses” under section 9799.14(d). Id. at §
9799.14(c), (d).
14
All SOAB members are experts in the field of the behavior and treatment
of sexual offenders. See 42 Pa.C.S. § 9799.3(a).
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concluded that Baer is “likely to re-offend given the opportunity,” that he
initiated the relationship with the victim, coerced her into a sexual
relationship where she created child pornography at his direction, begged
the victim not to disclose the relationship for risk of him going to jail, and
that his relationship with the victim was in whole or in part to facilitate
sexual victimization – all indicia of predatory behavior. Id. at 7. Under
these circumstances, Hays opined that Baer meets the criteria to be
classified as an SVP. See Commonwealth v. Haberman, 134 A.3d 101
(Pa. Super. 2015) (finding expert witness’s testimony that hebephilia is
mental disorder for purposes of SVP classification was sufficient where
record did not contain evidence of other motivation for defendant’s sexual
abuse of stepdaughter for six years when she was twelve through eighteen
of age; where record supported hebephilia diagnosis; where defendant used
threats to achieve offense; where defendant was victim’s stepfather; and
based on nature of defendant’s sexual contact with victim).
By contrast, licensed psychologist Timothy P. Foley, Ph.D., opined that
hebephilia is not generally accepted by mental health professionals as it is
“not defined in any authoritative text and has no consistent, clearly defined
criteria, rendering is application unreliable.” Opinion of Timothy P. Foley,
Ph.D, 6/28/15, at 5. He further opined that there was no known recidivism
data linking the condition to sexually violent acts and that any such
conclusion to the contrary from Hay’s assessment is not based on clinical
methods or assessments. Id. at 6-7.
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In Commonwealth v. Hollingshead, 111 A.2d 186 (Pa. Super.
2015), our Court was faced with the same issue on appeal – whether the
defendant’s diagnosis of hebephilia was considered a mental abnormality for
purposes of an SOAB assessment and classifying him as an SVP. In that
case, our Court held that hebephilia, combined with expert testimony and
the facts of the case, can satisfy mental abnormality requirement for
purposes of SVP determination. In Hollingshead, the defendant, a female
assistant coach of a girl’s high school soccer team, had a romantic
relationship with a 15-year-old player. Two years later the defendant
initiated a romantic relationship with a 16-year-old on the team. Both
relationships led to sexual contact (oral sex) with the defendant. Defendant
was ultimately determined to be an SVP by the court, after hearing the
testimony of an SOAB member and an expert on behalf of the defendant.
On appeal, the defendant argued that while she conceded her conduct
was predatory, her diagnosis, hebephilia, was not a mental abnormality or
personality disorder which is a prerequisite for an SVP determination. On
appeal, our Court acknowledged that hebephilia is not a listed disorder in the
Diagnostic and Statistical Manual of Mental Disorders (“DSM”). The court,
however, was persuaded by case law from sister states in coming to its
decision that “the debate surrounding hebephiliac diagnoses, and their use in
SVP proceedings, goes to the weight of the expert witness’ testimony.” Id.
at 193. Where the trial court credited the SOAB member’s testimony
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regarding hebephilia, our Court affirmed the finding that the defendant
suffered from a mental abnormality was supported in the record. Id.
The trial court’s conclusion that hebephilia satisfies the mental
abnormality requirement under section 9792 are clearly stated in the record.
See N.T. Sentencing Hearing, 11/24/15, 64-68. We find that Dr. Hays’
expert testimony, which was credited by the trial judge, provided clear and
convincing evidence to support the trial court’s SVP determination.
Hollingshead, supra; Commonwealth v. Meals, 842 A.2d 448, 450 (Pa.
Super. 2004) (reviewing court may not weigh evidence or substitute its
judgment for that of trial court).15 Thus, we find no merit to this claim.
In his final issue, Baer contends that the court erred in denying his
request for a Frye hearing on the issue of whether his diagnosis, hebephilia,
is considered a mental abnormality for purposes of an SVP designation.
Specifically, he asserts that because hebephilia is not generally accepted by
the psychology or psychiatry communities, and, therefore, is novel scientific
evidence, it should have been subjected to the Frye test.
In Commonwealth v. Dengler, 843 A.2d 1241, 1245 (Pa. Super.
2004), our Court held that the psychological or psychiatric testimony of an
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15
We note that any challenge to Hays’ SVP determination is a challenge to
the weight, not the sufficiency, of the evidence. See Commonwealth v.
Feucht, 955 A.2d 377 (Pa. Super. 2008).
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expert at an SVP proceeding is not novel scientific evidence subject to Frye.
Specifically, our Court found that because there is nothing new or novel
about expert testimony based on the application of the statutory SVP
criteria, such testimony is not subject to the Frye rule. Moreover, while Dr.
Hays’ opinion testimony on hebephilia was scientifically founded, his
methodologies used to evaluate Baer were not in any sense new or novel.
Dengler, at 1246. Therefore, this claim has no merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/9/2016
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