Com. v. Martinez, N.

J. S55027/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
:
v. :
:
NELSON MARTINEZ :
Appellant :
: No. 1337 EDA 2015
Appeal from the Judgment of Sentence Entered April 8, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0002416-2013
BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*
MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 10, 2016
Appellant seeks review of the Judgment of Sentence entered by the
Court of Common Pleas of Lehigh County after a jury convicted him of Rape
of a Child and related offenses. He challenges the discretionary aspect of his
sentence, the sufficiency of the evidence supporting his designation as a
sexually violent predator, and certain evidentiary rulings. The Hon. Kelly L.
Banach has provided a thorough, well-reasoned Pa.R.A.P. 1925(a) Opinion
that properly addresses the issues presented. We adopt that Opinion as our
own, and affirm the Judgment of Sentence.
The trial court has set forth the facts in detail and we need not fully
restate them here. See Trial Court Opinion, dated October 20, 2015, at 2-8.
*
Former Justice specially assigned to the Superior Court.
J. S55027/16
In sum, in the fall of 2012, on at least four occasions, Appellant sexually
abused his 11-year-old step-daughter. Appellant, who was married but
estranged from the victim’s mother at the time of the abuse, had known the
victim since she was four or five years old. The victim referred to Appellant
as “Daddy.”
After a three-day trial at which both the victim and Appellant testified,
the jury found Appellant guilty of one count each of Rape of a Child,
Involuntary Deviate Sexual Intercourse with a Child (“IDSI”), Aggravated
Indecent Assault of a Child, Sexual Assault, Corruption of Minors, and
Indecent Assault of a Child.1 Appellant underwent a Sexual Offender
Assessment Board Evaluation (“SOAB”), and obtained his own independent
pre-sentence psychological evaluation. The court requested a pre-sentence
investigation (“PSI”).
At sentencing, Appellant did not present the results of his independent
psychological evaluation. The court stated on the record that it had
reviewed, inter alia, the PSI report, which included numerous prior drug
offenses, the sentencing guidelines, victim impact statements from the
victim and her mother, the SOAB assessment, and a copy of a memo from
the jail that indicated that Appellant had not misbehaved or participated in
1
18 Pa.C.S. § 3121(c); 18 Pa.C.S. 3123(b); 18 Pa.C.S. § 3125(b);18
Pa.C.S. § 3124.1; 18 Pa.C.S. § 6301(a)(1)(ii); and 18 Pa.C.S. § 3126(a)(7),
respectively.
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any programs, activities or employment. See N.T. Sentencing, 4/8/15, at 5.
The court found Appellant to be a sexually violent predator and sentenced
him to consecutive statutory maximum sentences, for an aggregate term of
incarceration of 43½ years to 87 years.2 See N.T. Sentencing, 4/8/15, at
52-61.
After the denial of his Post-sentence Motion, Appellant timely appealed
to this Court. Appellant and the trial court complied with Pa.R.A.P. 1925(a).
Appellant raises the following issues for our review:
1. Whether the aggregate sentence of forty-three and one-half (43.5)
to eighty[-]seven (87) years was excessive, unreasonable[,] and
unduly harsh, and was an abuse of discretion?
2. Whether the trial court erred in prohibiting the testimony of juvenile
witnesses, Noah and Moses Martinez, who would have offered
potentially exculpatory material evidence in contradiction of the
victim’s testimony, which prohibition was highly prejudicial to the
Defendant?
3. Whether the trial court erred in denying the Defendant’s motion in
limine to exclude testimony of Deputy Sheriff, James E. Bonner,
pursuant to Pennsylvania Rules of Evidence 401 and 403, as such
testimony was irrelevant, speculative, conjectural, unsupported by
scientific or expert opinion and was far more prejudicial to
Defendant that it was probative?
2
Specifically, the court sentenced Appellant to the following terms of
incarceration: 20 to 40 years’ incarceration on the rape conviction (count
1); a consecutive term of 20 to 40 years on the IDSI conviction (count 2);
two concurrent 5 to 10 year terms for the aggravated indecent assault and
sexual assault convictions (to be served concurrently with counts 1 and 2);
3½ to 7 years for the corruption of minors conviction (consecutive to counts
1 and 2); and 2½ to 5 years for indecent assault of a child (concurrent with
corruption of minors sentences).
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4. Whether the trial court erred in ruling that the Defendant was a
sexually violent predator?
Appellant’s Brief at 3.
In his first issue, Appellant argues that the sentencing court’s
imposition of “consecutive statutory maximum sentences of twenty to forty
years … is excessive and indicative of the Court’s ill-will against the
Defendant[.]” Id. at 16. He contends that “the court failed to explicitly
state adequate reasons on the record or directly address the enumerated
sentencing factors.” Id. For the following reasons, we conclude there is no
merit to this sentencing challenge.
The individual sentences imposed on Appellant are within the
permissible statutory maximums and, therefore, clearly are legal sentences.
Appellant’s appeal asks us to review the discretionary aspects of his
sentence. See, e.g., Commonwealth v. Gonzalez, 994 A.2d 595, 597
(Pa. Super. 2010) (acknowledging that a claim that an aggregate sentence
was excessive after court imposed consecutive sentences challenges the
discretionary aspects of a sentence).
An appeal from the discretionary aspects of a sentence is not
guaranteed as a matter of right. Commonwealth v. Mastromarino, 2
A.3d 581, 585 (Pa. Super. 2010). Rather, where, as here, the appellant has
preserved the sentencing challenge for appellate review by raising it at
sentencing or in a timely post-sentence motion, the appellant must (1)
“include in his brief a concise statement of the reasons relied upon for
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allowance of appeal with respect to the discretionary aspects of a
sentence[,]” pursuant to Pa.R.A.P. 2119(f); and (2) “show that there is a
substantial question that the sentence imposed is not appropriate under the
Sentencing Code.” Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa.
Super. 2013).
In the instant case, Appellant filed a timely Notice of Appeal and a
timely Post-Sentence Motion. He also included a Pa.R.A.P. 2119(f)
Statement in his appellate brief. Although a court's exercise of discretion in
imposing a sentence concurrently or consecutively does not ordinarily raise a
substantial question, where an appellant avers an excessive sentence due to
the court’s reliance on impermissible factors, the appellant has presented a
substantial question for our review. Commonwealth v. McNabb, 819 A.2d
54, 56-57 (Pa. Super. 2003). See, e.g., Commonwealth v. Dodge, 77
A.3d 1263, 1273 (Pa. Super. 2013) (holding that a defendant’s challenge to
the consecutive nature of his sentence raised a substantial question where
the defendant articulated particular reasons why consecutive sentences were
unreasonable); Commonwealth v. Spencer, 496 A.2d 1156, 1164 (Pa.
Super. 1985) (vacating and remanding where sentencing judge in a robbery
case showed bias in repeatedly referring to sixteen-year-old defendant as an
“animal” and stating that it wished it could impose the death penalty
because it “would gladly pull the switch on you, Chief.”).
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Having determined that Appellant’s issue on appeal raises a substantial
question for review, we turn to the merits of Appellant’s sentencing
challenge, mindful of our standard of review:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation
omitted).
“In reviewing a challenge to the discretionary aspects of sentencing,
we evaluate the court's decision under an abuse of discretion standard.”
Dodge, 77 A.3d at 1274 (citation omitted). Additionally, “this Court's
review of the discretionary aspects of a sentence is confined by the statutory
mandates of 42 Pa.C.S. § 9781(c) and (d).” Id. Section 9781(c) provides,
in relevant part, that “[t]he appellate court shall vacate the sentence and
remand the case to the sentencing court with instructions if it finds … (3) the
sentencing court sentenced outside the sentencing guidelines and the
sentence is unreasonable. In all other cases the appellate court shall affirm
the sentence imposed by the sentencing court.” 42 Pa.C.S. § 9781(c).
In reviewing the record, we consider:
(1) The nature and circumstances of the offense and the
history and characteristics of the defendant.
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(2) The opportunity of the sentencing court to observe the
defendant, including any presentence investigation.
(3) The findings upon which the sentence was based.
(4) The guidelines promulgated by the commission.
42 Pa.C.S. § 9781(d).
With respect to reviewing a sentence alleged to be “unreasonable,” the
Pennsylvania Supreme Court has recognized that
Generally speaking, “unreasonable” commonly connotes a
decision that is “irrational” or “not guided by sound judgment.”
The Random House Dictionary of the English Language, 2084
(2nd ed.1987); see 1 Pa.C.S. § 1903 (words to be construed
according to their common and approved usage). While a
general understanding of unreasonableness is helpful, in this
context, it is apparent that the General Assembly has intended
the concept of unreasonableness to be a fluid one, as
exemplified by the four factors set forth in Section 9781(d) to be
considered in making this determination. Indeed, based upon the
very factors set out in Section 9781(d), it is clear that the
General Assembly intended the concept of unreasonableness to
be inherently a circumstance-dependent concept that is flexible
in understanding and lacking precise definition.
Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007)
We are mindful that where, as here, the trial court has the benefit of a
PSI, “it is presumed that the court is aware of all appropriate sentencing
factors and considerations, and that where the court has been so informed,
its discretion should not be disturbed.” Commonwealth v. Ventura, 975
A.2d 1128, 1135 (Pa. Super. 2009) (discussing Commonwealth v. Devers,
546 A.2d 12, 18-19 (Pa. 1988)). Thus, if the sentencing court states that it
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considered the PSI, the court has properly explained the basis for the
sentence that it imposed. Ventura, supra at 1135 (citation omitted).
Here, Appellant concludes that his sentence is “excessive and
indicative of the Court’s ill-will against [him].” Appellant’s Brief at 16. In
support, he quotes from the sentencing court’s colloquy, throughout which
Appellant repeatedly interrupted to state his innocence and to argue with the
judge. In particular, Appellant emphasizes the judge’s statements that (1)
she was “offended … at the vile way in which you [Appellant] speak about
[the victim’s] mother, about the mother of your other children;” (2) “[y]ou
are a vile, heinous, aggressive, dangerous man;” (3) “you are a scary scary,
man. You have no regard for anyone other than yourself … [a]nd I would
not want to meet you under other circumstances; and (4) “But you are really
climbing to the top of my list of truly despicable human beings.” Appellant’s
Brief at 10-14 (quoting N.T. Sentencing, 4/8/15, at 51-59).
Based on our review of the entire record, the briefs of the parties, the
applicable law, and the comprehensive and well-reasoned opinion of the trial
court, we conclude that there is no merit to Appellant’s claim that his
sentence was unreasonable or the result of the court’s bias. Moreover,
contrary to Appellant’s contention, the court stated adequate reasons on the
record for imposing the sentence it did after acknowledging that it had read
the PSI report. While some of the court’s language during sentencing may
be perceived as harsh, it was not unduly so and did not manifest such “ill-
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will” so as to render Appellant’s consecutive sentences unreasonable. As the
jury determined, Appellant sexually abused his step-daughter and one of her
friends; with respect to his step-daughter, he raped her anally several times,
fondled and licked her breasts and genitals, and forced her to give him oral
sex under threat of her “getting in trouble,” all while acting in the role of her
father. See Trial Ct. Op., dated 10/20/15, at 9-13 (reviewing case law and
the record before concluding that the “lengthy sentence was justified by the
heinous and physical and emotionally damaging acts that [ ] Appellant was
found to have committed, the need to protect the public from [ ] Appellant, [
]Appellant’s serious criminal history, and the [c]ourt’s opinion that total
confinement was necessary and proper.”).
In light of the nature and circumstances of the offense, the history and
characteristics of Appellant, the opportunity of the sentencing court to
observe and interact with Appellant, the presentence investigation, and the
jury’s verdict, we cannot conclude the aggregate sentence was unreasonable
or, as Appellant contends, the result of “ill-will.” Accordingly, we affirm.
Appellant next avers that the trial court should have allowed his two
minor sons to testify at trial to present “potentially exculpatory material
evidence to contradict[ ] the victim’s testimony” regarding when and where
the abuse occurred. Appellant’s Brief at 16. He contends that by quashing
the subpoenas issued to compel the boys’ testimony, the court violated his
“[c]onstitutional right to exercise compulsory process, thereby depriving the
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Defense of material witness testimony in the presentation of a defense to
the charges.” Id. at 18-19.
As Appellant notes, the Pennsylvania Constitution guarantees an
accused the right “to have compulsory process for obtaining witnesses in his
favor.” Pa. Const. art. I, § 9. Our Supreme Court has addressed the right
to obtain witness testimony as follows:
The right to compulsory process encompasses the right to meet
the prosecution's case with the aid of witnesses, and the right to
elicit the aid of the Commonwealth in securing those witnesses
at trial, both of which are fundamental to a fair trial. This
constitutional right, though fundamental, is not, however,
absolute. Evidentiary rules based on legitimate state interests
which exclude certain witnesses or certain testimony are not
inconsistent nor incompatible with the right to compulsory
process.[ ] Accordingly, where certain witnesses' testimony
would not be admissible at trial, the Constitution does not
require that a defendant be given the right to secure the
attendance of witnesses which he has no right to use.
Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d
1019 (1967). Our inquiry is thus directed to the question of the
admissibility of the testimony which would have been given by
the two witnesses whom appellant requested to be subpoenaed.
Commonwealth v. Jackson, 324 A.2d 350, 354–55 (Pa. 1974) (internal
footnote omitted).
It is well-settled that “[q]uestions regarding the admission of evidence
are left to the sound discretion of the trial court, and we, as an appellate
court, will not disturb the trial court's rulings regarding the admissibility of
evidence absent an abuse of that discretion.” Commonwealth v. Russell,
938 A.2d 1082, 1091 (Pa. Super. 2007) (citation omitted). An abuse of
discretion is more than a mere error of judgment; rather, an abuse of
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discretion will be found when “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.”
Commonwealth v. Busanet, 817 A.2d 1060, 1076 (Pa. 2002) (citation and
quotation omitted).
In the instant case, prior to trial, the court ordered that Appellant’s
counsel be allowed to interview the boys. The guardian ad litem conducted
the interview by posing questions prepared by Appellant’s attorney.
Appellant’s attorney, the children’s caseworker from Children and Youth
Services, and Allentown Police Department detectives observed the
interviews. Appellant’s attorney then informed the court that he still wished
to subpoena the boys to testify at trial for Appellant, despite the guardian ad
litem’s opposition to the subpoena.
The court quashed the subpoenas after concluding that (1) the boys
were unable to determine any dates at all; (2) no solid dates were provided
either by the victim or the victim’s friend; and (3) the victim’s mother
testified that she and the victim had been staying at Appellant’s residence
off and on until November 7, 2012, when they moved out permanently and
the victim did not return to Appellant’s apartment. Trial Ct. Op. at 15.
Our review of the record indicates that the court’s decision to prohibit
the boys’ testimony was not based on partiality, prejudice, bias, or ill-will.
The trial court has provided a thorough review of the relevant evidence and
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case law, and we affirm based on the trial court’s opinion. See Trial Ct. Op.
at 14-17 (concluding, inter alia, (1) “the Court was not persuaded that the
boys would be able to establish a timeframe either disputing the one
testified to by the victim [] or [her mother] due to the fact that they could
not recall specific dates or even descriptions of the residence in question;”
and (2) “testimony by the boys, which would be speculative at best, would
present a risk of harm to the boys, given the representation from their
guardian ad litem that their therapist(s) believed that contact with the
Appellant would cause additional trauma.”).
Appellant next argues that the court erred in denying his motion in
limine to exclude testimony from Deputy Sheriff James E. Bonner. The
testimony at issue pertained to Appellant’s behavior during the preliminary
hearing, i.e., that while the victim was testifying about the abuse, Appellant
was “fondling himself” with his pinkies while his hands were shackled at his
waist. Appellant’s Brief at 22-23, quoting N.T. Trial. Appellant avers that
the testimony was “highly and unfairly prejudicial[.]” Appellant’s Brief at 21.
The trial court has accurately and thoroughly addressed this issue and
we affirm on the basis of its opinion. See Trial Ct. Op. at 17-19 ((1) noting,
inter alia, the Commonwealth’s argument that the testimony was relevant
because it tended to show that Appellant was sexually aroused by the
victim, which was the motive behind the alleged abuse, and (2) concluding
the prejudice here did not outweigh the probative value of the testimony.).
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In his final issue, Appellant challenges the sufficiency of the evidence
supporting his designation as a SVP.
This Court will review a claim that the trial court relied upon
insufficient evidence when designating a defendant as an SVP under the
following standard:
A challenge to the sufficiency of the evidence is a question of law
requiring a plenary scope of review. The appropriate standard of
review regarding the sufficiency of the evidence is whether the
evidence admitted at trial and all reasonable inferences drawn
therefrom, when viewed in the light most favorable to the
Commonwealth as the verdict winner, is sufficient to support all
the elements of the offenses. As a reviewing court, we may not
weigh the evidence and substitute our judgment for that of the
fact-finder. Furthermore, a fact-finder is free to believe all, part
or none of the evidence presented.
At the hearing prior to sentencing the court shall determine
whether the Commonwealth has proved by clear and convincing
evidence that the individual is a sexually violent predator.
Accordingly, in reviewing the sufficiency of the evidence
regarding the determination of SVP status, we will reverse the
trial court only if the Commonwealth has not presented clear and
convincing evidence sufficient to enable the trial court to
determine that each element required by the statute has been
satisfied.
Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003)
(citations and quotations omitted).
As our Supreme Court has made clear, this Court is limited to “simply
assessing the legal sufficiency” of the evidence presented; we may neither
reweigh the evidence nor require greater proof than is required by the
statute. Commonwealth v. Meals, 912 A.2d 213, 214 (Pa. 2005). In
assessing the legal sufficiency, this Court must consider the “expert opinion
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that, to a reasonable degree of professional certainty, [Appellant] was a
pedophile.” Id. at 223. Our role as an appellate court does not permit us to
pick apart, on appeal, the merits of that diagnosis. Id. The diagnosis itself
is evidence, and any attack on the underlying merits of the opinion goes to
“the weight, and not the sufficiency, of the expert’s evidence.” Id. at 224.
In the instant case, Judge Banach has authored a comprehensive,
thorough, and well-reasoned Opinion, citing to the record and relevant case
law, and discussing each of the factors considered in an SVP determination.
After a careful review of Appellant’s argument and the record, we affirm the
trial court’s determination that Appellant is an SVP on the basis of that
Opinion. See Trial Court Op. at 19-24.
The parties are instructed to append a copy of the trial court’s October
20, 2015 Opinion to all future filings.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/10/2016
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Circulated 10/28/2016 11:34 AM
IN THE COURT OF COMMON PLEAS OF LEfilGH COUNTY, PENNSYLVANIA
CRIMINAL DMSION
COMMONWEALTH OF PENNSYLVANIA I
I
vs. I No, 2416/ 2013
I 1337 EDA 2015
NELSON MARTINEZ, I
Appellant I
OPINION
KELLY L, BANACH, J.:
On July 7, 2013, the Appellant was arraigned on one count of Rape of a Child.!
graded as a Felony ofthe First Degree; one count oflnvoluntary Deviate Sexual
Intercourse with a Child.s graded as a Felony of the First Degree; one count of
Aggravated Indecent Assault of a Child,3 graded as a Felony of the First Degree; one
count of Sexual Assault, 4 graded as a Felony of the Second Degree; one count of
Corruption ofMinors,s graded as a Felony of the Third Degree, and one count of
Indecent Assault of a Child,s graded as a Misdemeanor of the First Degree. Ajury trial
began on August 4, 2014 and on August 7, 2014, the jury found the Appellant guilty
of all counts of the Information. O~ April 8, 2015, after a Hearing held before the
undersigned, the Appellant was deemed a Sexually Violent Predator and was
sentenced to serve an aggregate sentence of not less than 43 l/2 years nor more than
87 years of incarceration. I""'
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1 18 Pa.Con.Stat.Ann. §3121 §§C
2 18 Pa.Con.Stat.Ann, §3123 §§B
s 18 Pa.Con.Stat.Ann, §3125 §§B
4 18 Pa.Con.Stat.Arui.§3124.1
s 18 Pa.Con.Stat.Ann. §6301 §§Alii
6 18 Pa.Con.Stat.Ann §3 l-"26 §§A7
2
On April 17, 2015, the Appellant filed a Post-Sentence Motion. On April 28,
2015, the Court denied the Post-Sentence Motion.
On May 71 2015, the Appellant filed a Notice of Appeal in this matter. The
Appellant filed a Concise Statement of Reasons Complained of on Appeal on August 51
2015. This Opinion follows.
SUMMARY OF THE FACTS
Iris Martinez, the mother of the victim in this matter, had been in a relationship
with the Appellant since June of 2006. At that time, the victim, E.B., was four or five
years old. After about a year of their relationship, E.B. began to refer to the Appellant
as "Dad." In the fall of 2012, Ms. Martinez and the Appellant were spending time both
in the same household as well as apart. As of mid-October, 2012, the Appellant was
residing at 830 Walnut Street, Allentown, Lehigh County, Pennsylvania, with his 14
year old son. E.B. and two additional siblings resided with Ms. Martinez. E.B. would
visit the Appellant at his home on the weekends.
On one particular weekend in mid-October, 2012, E.B. came to visit the
Appellant. E.B. referred to the Appellant as "Dad." During her visit and while they
were alone, the Appellant asked E.B. if she liked boys and knew how to kiss. She said
yes and he demonstrated by kissing her hand. The Appellant laugh~d and then a.sked
if E.B. wanted to learn how to "real" kiss. The Appellant took E.B. to the playroom
downstairs where he proceeded to kiss her on the lip~ and attempted to "French" kiss
her by sticking his tongue in her mouth .. E.B. stopped him by refusing to open her
mouth. At that point, the Appellant pulled down his pants and underwear, telling her
that that was what a boy's penis looks like. E.B. left the room and went upstairs to
the bathroom on the second floor.
3
Later the same day, the Appellant and E.B. were alone when he asked if she
knew about masturbation and "cum." E.B. did not tell anyone, including her mother,
about the incidents because she was scared of being punished. by her mother and the
Appellant and that the Appellant would hit her.
The next time E.B. visited the Appellant, E.B. came downstairs where the
Appellant was sitting on the couch, watching television with. his laptop on his lap.
E.B.'s mother was in the home, but not in the room. The Appellant whispered to E.B.
that he wanted to show her something. E.B. went over to the Appellant where he
showed her pictures and videos pf naked girls and boys kissing and touching each
other. The Appellant asked if anyone had licked E.B.1s genitals. When she replied no,
he instructed E.B. to pull down her pants, and let him try so she could experience how
it feels. E.B. complied and the Appellant started to lick E.B. 's vagina, making E.B. feel
disgusting. E.B. did not report this incident either, scared that her mother would
think she was dirty.
When E.B. returned to the Appellant's house at a later date, the Appellant
showed her a sex toy and lotion. E.B. asked what it was and the Appellant told her
that it was a .sex toy. The Appellant told E.B. to take the sex toy and see if it would fit
inside her vagina. E.B. complied but the sex toy did not fit inside of her vagina. Later
the same evening, while alone with the Appellant in his bedroom, the Appellant started
talking to E.B .. about masturbating and encouraged ~er to use the toy on herself. E.B.
obeyed him because she was afraid 'he would tell her mother. The Appellant engaged
the vibration function on the sex toy and moved E.B. 's hand and fingers in circles on
her vagina. The Appellant masturbated as he watched E.B. touch herself. The
Appellant put the lotion on E.B.'s vagina and told her how beautiful and nice she
looked. The Appellant had ejaculated and showed E.B. the semen, telling her "this is
4
how a boy cums." Trial Tr. Vol. 1, 65:13~17 Aug. 5, 2014. Further, the Appellant
discussed with E.B the intimacies of his relationship with E.B. 's mother. The
Appellant also put his fingers inside of E.B. 's vagina.
On another occasion, E.B's best friend, K.R., and E.B. were spending time at
the Appellant's home. The girls were in the living room when E.B. left to go into the
kitchen. There, the Appellant asked E.B. if she thought that K.R liked sex toys. E.B.
told him that he was not to touch K.R., but did agree to ask K.R. if she liked sex toys.
K.R said no. Later, after the girls went upstairs, the Appellant commented to K.R. how
much she had grown and how her breasts were developing. The Appellant lifted K.R. 's
shirt up and touched her breast. The Appellant then did the same to E.B. The
Appellant commented about E.B. 's nipples and put his mouth on her breast, stating
that he was helping them grow. E.B. did not share this information with anyone
because she was scared and ashamed. K.R did not immediately tell anyone because
she was scared.
On another evening, E.B. cried to the Appellant that she did not want to
continue having sexual contact with him. The Appellant agreed, saying that they
would go to Hell if they continued. E.B. then fell asleep and when she woke up, her
pants and underwear were down. The Appellant told her, "you cazne five times." Id. at
68:24.
At some point in time, the Appellant took E.B. to two sex stores, Cupid's
Treasures in Bethlehem, Pennsylvania and another establishment in Allentown,
Pennsylvania between the hours of midnight and one in the morning. At Cupid's
Treasure, the Appellant instructed E.B. to wait in the car. When the Appellant
returned, he had a box of chocolate, strawberry, and vanilla packets and a dildo. The
Appellant then took E.B. to the store in Allentown.
5
On yet another occasion, the Appellant placed his penis inside of E.B. 's anus.
Though she complained that it hurt, the Appellant told her that she would get used to
it. This happened two or three times.
Another time, E.B. asked the Appellant if she could have a play piece to the
game Minecraft. He replied that she had to earn it by keeping his penis in her mouth
for one minute and thirty seconds. E.B. initially said no, but ultimately did this three
or four times.
E.B. 's mother, Iris Martinez, had been in a relationship with the Appellant since
June of 2006, when E.B. was four or five years old. After about a year of their
relationship, E.B. began to refer to the Appellant as "Dad." In the fall of 2012, Ms.
Martinez and the Appellant were spending time both in the same household as well as
apart. In November of 2012, Ms. Martinez began to notice that E.B. was not as social
as she was before.
On January 29, 2013, E.B. w.as helping the Appellant wrap a present for her
younger brother's birthday at E.B. 's residence. At that time, the Appellant remarked
that E.B. 's breasts were developingand E.B. became angry. The birthday party
continued until the Appellant left the residence in the evening. Noticing that E.B. had
been crying, Ms. Martinez asked her what was wrong. E.B. finally told ·h~r mother
that the Appellant had been touching her. Shortly thereafter, Ms. Martinez called the
Appellant and summoned him back to her apartment. The Appellant denied having
ever touched E,.B. inappropriately..
At that time, Ms. Martinez recalled finding a pink sex toy in the Appellant's
bedroom closet while putting laundry away during the last week of October, 2012.
Believing that the Appellant was using it in a relationship with another woman, Ms.
Martinez took the sex toy and brought it back to her apartment. Ms. Martinez washed
6
the sex toy, and at some point later in time, used the sex toy herself and then hid it in
her closet. She did not take it back out of the closet again until detectives came to
interview E.B.
On February 14, 2013, Ms. Martinez contacted the authorities to report the
abuse. Ms. Martinez also arranged for E.B. to spend time with a family friend,
Kristine Hernandez, to see ifE.B. would reveal details of the abuse to Ms. Hernandez.
Ms. Hernandez met with E.B. at Ms. Hernandez's apartment to speak to her a
few days after E.B. disclosed the abuse to her mother. E.B; was extremely upset, and
related the abuse while crying uncontrollably. Ms. Hernandez surreptitiously had
called Ms. Martinez on the telephone so that she could hear what E.B. was describing.
E.B. detailed the abuse for Ms. Hernandez.
Ms. Hernandez acknowledged that she also used the sex toy on one occasion,
prior to E.B. telling her about what had occurred with the Appellant.
On March 5, 2013, E.B. reported to the Child Advocacy Center and underwent
a medical examination by Megan Fairchild, a pediatric nurse practitioner. The
medical examination included a physical examination and a medical interview, as well
as taking photographs. Ms. Fairchild authored a report, which was reviewed by Dr.
John Van Brakle, an expert in the area of pediatric medicine. On March 14, 2013, Dr,
Van Brakle performed a physical examination of E.B's vaginal and rectal areas. He
determined there were two lacerations in the rectal area, which would be consistent
with anal penetration by a penis having taken place in late October or early November
2012. Regarding the vaginal exam, Dr. Van Brakle determined that E.B.'s exam was
normal, which would have been consistent with the time period of abuse outlined by
E.B.
7
The Appellant denied ever touching E.B. inappropriately. He stated that he
treated E.B. as his own daughter, having raised her since she was 4 years old.
Specifically, the Appellant denied raping E.B,, touching her genitals, forcing E.B. to
use a sex toy, and showing E.B. his genitals. Further, he denied having touched
E.B. 's friend, K.R. The Appellant opined that the accusations made by E.B. and K.R.
were the result of a "woman scorned," referring to his tumultuous relationship with
E.B.'s mother.
Upon conviction, the Appellant underwent a Sexual Offender Assessment
Evaluation, which determined that he does meet the criteria for Sexually Violent
Predator. Thereafter, the Commonwealth did file a praecipe to classify the defendant
as a Sexually Violent Predator. The Appellant, after requesting and being provided
funds, had an independent psychological evaluation performed by Dr. Frank Dattilio.
The results of the independent evaluation were not presented at the time of ·
sentencing. At the conclusion of the Sentencing Hearing on April 8, 2015, the
Appellant was found to meet the criteria for a Sexually Violent Predator and was
sentenced to an aggregate sentence of not less than 43 and a· half years nor more than
87 years of incarceration.
DISCUSSION AND CONCLUSIONS OF LAW
The Appellant avers the following on Appeal:
1) That the aggregate sentence issued by this Court of
43 and% years to 87 years was "excessive, unreasonable
and unduly harsh, and was an abuse of discretion."
2) That the Court erred by prohibiting the testimony of
juvenile witnesses, Noah and Moses Martinez, who would
have offered potentially exculpatory material evidence;
3) That the Court erred in denying the Appellant's
Motion in Limine to Exclude Testimony of Deputy Sheriff
James E. Bonner pursuant to Pa.R'Evid, 401 and 403, "as
such testimony was irrelevant, speculative, conjectural,
unsupported by scientific or expert opinion and was far
more prejudicial to Defendant than it was probative;" and,
8
4) That the classification of the Appellant as a Sexually
Violent Predator was in error.
App. Concise Stmt., 11-4.
Harsh and Excessive Sentence
As a preliminary matter, there is no absolute right to appeal the discretionary
aspects of a sentence. See Commonwealth v. Mouzon, 571 Pa. 419, 425, 812 A.2d 617,
621 (2002). A prerequisite to a challenge of the discretionary aspects of sentencing
requires that an Appellant first raise specific issues of error either during the
sentencing proceeding or in a post-sentence motion to modify sentence. See
Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001}. The Appellant satisfied
this requirement by filing a Post-Sentence Motion on April 17, 2015, which was denied
by the Court on April 28, 2015.
"Sentencing is a matter vested in the sound discretion of the sentencing judge,
and a sentence will not be disturbed on appeal absent a manifest abuse of that
discretion." Commonwealth v. Minott, 395 Pa. Super. 552, SSS, 577 A.2d 928, 929
(1990), citing Commonwealth v. Fries, 362 Pa. Super. 163, 523 A.2d 1134 (1987). To
constitute an abuse of discretion, the sentence imposed must either exceed the
statutory limits or be manifestly excessive. Mouzon, 571 Pa. at 419, 812 A.2d at 617(2002). '1An abuse of discretion is more than just an error in judgm.ent and, on appeal,
the trial court will not be found to have abused its discretion unless the record
discloses that the judgment exercised was manifestly unreasonable, or the result of
partiality, prejudice, bias or ill-will.." Commsmioealih u. Smith, 673 A.2d 893, 895 (Pa.
l 996)(internal citations omitted).
Unless a minimum period of confinement is statutorily required, "the trial court
is authorized to choose one or more of five options as an appropriate sentence - guilt
without penalty, probation, fine, partial confinement, and total confinement."
9
Commonwealth v. Tuladziecki, 522 A.2d 17, 20 {Pa. l987)(citing 42 Pa.Cons.Stat.
§972l(a)}. In general, the sentence "should call for confinement that is consistent with
the protection of the public, the gravity of the offense as it relates· to the impact on the
Iife of the victim and the community, and the rehabilitative needs of the [Appellant]." ·
42 Pa.Cons.Stat. §972l(b). See Commonwealth v. Walls, 926 A.2d 957, 962 (Pa.
2007). However, these factors are in no way exclusive, and a sentencing court is
entitled to consider the totality of circumstances when making its decision. "The court
shall also consider any guidelines for sentencing adopted by the Pennsylvania
Commission on Sentencing and taking effect pursuant to section 2155 (relating to
publication of guidelines for sentencing)." Walls at 963 (italics added).
"Along with these general standards . . . the court is given more specific criteria
to consider with respect to each of the alternatives. Thus, total confinement should be
imposed if the court is of the opinion that it is necessary because of a risk that the
[Appellant] will commit another crime, because institutionalization would provide the
most effective correctional treatment, or because anything less would depreciate the·
seriousness of the. crime. Further, the court's opinion is to be guided by considering
'the nature and circumstances of the crime and the history, character and condition of
the [Appellant]. "'42 Pa.Cons.Stat. §9725. Tuladssiecki at 20. Given the geriered outline
of considerations provided in 42 Pa.Cons.Stat. §9721 and §9725, it is clear that the
Pennsylvania legislature has vested broad discretion in the trial court to fashion a
sentence that is appropriate given the particular set of facts and circumstances for the
individual case at bar.
Sentencing guidelines are considered to be non-binding and advisory in nature,
.although they must be considered by the sentencing court. See Commonwealth v.
Walls} 926 A.2d 957> 964 (Pa. 2007). Therefore> an appellant court will "vacate a
10
sentence and remand to the sentencing court if 'the sentencing court sentenced
outside the sentencing guidelines and the sentence is unreasonable.' Smith at 895,
citing 42 Pa.C.S. § 978l(c)(3} (emphasis added). However, •[i}n all other cases the
appellate court shall affirm the sentence imposed by the sentencing court. n Smith at
895; 42 Pa.c.s·. § 978l(c).
In the case at bar, the Appellant was found guilty by Jury of each count of the
Information. In anticipation of sentencing, the Court reviewed the Pre-Sentence
Report prepared by the Lehigh County Office of Probation and Parole. Attached
thereto were sentencing guidelines, the affidavit of probable cause, the victim impact
statement, a copy of a memo from the jail which indicated that the Appellant had no
misconducts and. did not participate in any programs, activities or employment, and a
victim impact statement from the victim's mother." Counsel for the Appellant made
objections to certain statements contained within the PSI and brought the Court's
attention to those objections at the time of the Sentencing Hearing.
In addition, the Court received a copy of the Sexual Offender Evaluation
conducted by Paula Brust of the Sexual Offender Assessment Board, which contained
the conclusion that the Appellant was a Sexually Violent Predator (hereinafter "SVP").
Counsel for the Commonwealth and for the Appellant stipulated to the ~dmissibility of
the report, but not to the content or conclusions contained therein. Defense counsel
argued that the Appellant should not be classified as a SVP based on the fact that the
Appellant's medical and criminal history did not indicate that he had a mental health
abnormality or condition. He had not undergone any treatment for any mental
abnormality or conditions either and that essentially, the conclusion reached by Ms.
7 The Appellant and his counsel received all of the same attachments, absent the victim impact
statements of the victim and her mother. The Appellant was provided an opportunity to review
those statements at the time of the Sentencing Hearing.
11
Brust was based on the findings of fact made by the Jury. The Commonwealth argued
that the analysis which led to the Appellant's classification as an SVP was more than
an examination of the facts found to be true by the Jury. Rather, the evaluator
considered the fact that over a period of at least six months, the Appellant had
recurrent, intense sexually arousing fantasies, sexual urges or behaviors involving
sexual activity with a prepubescent child or children generally age 13 or younger, that
the Appellant acted on these sexual urges or fantasies, and that the age of the
Appellant and his victims were consistent with the criteria for Pedophilic Disorder,
which "will cause him to experience an internal drive towards sexual offending and his
disorder predisposes him towards committing sexual crimes in the future." See
Exhibit C-1, p.9. The evaluator also noted that the presence of multiple victims (E.B.
and K:R.} is sufficient but not necessary for the diagnosis. The evaluator highlighted
that the Appellant groomed and bribed E.B. and attempted to normalize the sexual
activity. E.B. indicated that she was afraid of the Appellant.
At the conclusion of the Sentencing Hearing, the Court sentenced the Appellant·
to serve an aggregate sentence of no less than 43¥2 years nor more than 87 years of
incarceration. The Appellant is unable to show that the sentence constituted an
abuse of discretion. The sentence did not exceed the statutory limits and was not
"manifestly unreasonable or the result of partiality, prejudice, bias or ill will." Smith at
895. Rather, the Court carefully weighed the sentencing factors, including the ·
protection of the public, the gravity of the offense on the victim and the community,
and the rehabilitative needs of the Appellant. Without question, the crimes the
Appellant was convicted of were among the most heinous and despicable. He acted on
his own sexual urges and desires, consistent with an individual suffering from
Pedophilic Disorder, without regard to the short and long term effect he was having on
12
E,B. and transitively, on the lives of his other children. Anything short of total
confinement, for a substantial amount of time, would depreciate the seriousness of the
crimes committed on the most vulnerable of victims.
While the Appellant has no prior sexual assaults as part of his criminal history,
this is most certainly not his first brush with serious criminal actions. Among his
convictions are attempted burglary, conspiracy to possession with intent to deliver,
· and possession with intent to deliver. His crimes in the past were serious and
significant. The Court was also able to get a sense of the Appellant's character and
condition at the time of trial and during the sentencing hearing. Although he is
entitled to maintain his innocence even in the face of overwhelming testimonial
evidence to the contrary, the Appellant treated the Court and the entire judicial
process with disdain and disrespect, constantly speaking over his attorney, the
attorney for the Commonwealth, and the Court. He spoke disparagingly of the victim's
mother, his wife, calling her a liar. He accused the District Attorney's Office and the
investigating agencies of fabricating evidence in order to establish high conviction
rates. H~ took absolutely no responsibility for what happened to the 12 year old
victim.
The Court's lengthy sentence was justified by the heinous and physically and
emotionally damaging acts that the Appellant was found to have committed, the need
to protect the public from the Appellant, the Appellant's serious criminal history, and
the Court's opinion that total confinement was necessary and proper. Without
evidence of an abuse of discretion, the Appellant's claim of an excessive and harsh
sentence ought to fail.
13
Testimony of Juvenile Witnesses
The Appellant next avers that the Court erred in prohibiting the testimony of
the Appellant's two minor children, N.M. and M.M. It is his belief that their testimony
would have been exculpatory in nature.
Byway of background, the Appellant's attorney, Glenn Goodge, Esquire, issued
subpoenas to the juveniles, care of their guardian ad litem Catherine Kollet, Esquire.
Attorney Kollet became guardian ad litern for the two boys after they were placed into
the custody of the Lehigh County Office of Children and Youth Services on March 12,
2013. Prior to that date, the boys were living with the Appellant, who had sole legal
and physical custody. On March 12, 2013, it was determined that the Appellant had
left the area in the wake of charges being filed in the instant matter.
Attorney Goodge had requested to speak with the boys via Attorney Kollet, who
denied him access, stating that she did not believe it would be iri the boys' best
interest. As they were therefore "unavailable" to the defense, Attorney Goodge
appealed to this Court to determine ifhe ought to be permitted to speak to the boys as
material witnesses. At the time, Attorney Goodge believed that the boys would testify
that on the dates alleged, E.B. did not visit the Appellant at the apartment at 830
Walnut Street.
Attorney Kollet, during a Hearing on August 4, 2014, on the eve of Trial, argued
that she objected to the boys being interviewed because she believed it was not in their
best interest. She cited the concept of "trauma bond," wherein the child;ren had
experienced "such trauma that they are overly attached and it would do harm to them
to make contact." Notes of Testimony, Aug. 4, 2014, p.10. At the conclusion of the
hearing, the Court ordered that Attorney Goodge be provided an opportunity to
interview the boys.
14
On August 6, 2014, the boys participated in an interview whereby Attorney
Kollet posed questions prepared by Attorney Goodge. Attorney Goodge observed the
interview, as well as a Children andYouth Caseworker and Detectives John
Buckwalter and Melissa Gogel of the Allentown Police Department, the affiants in this
case. After making his observations, Attorney Goodge informed the Court that he still
wished to subpoena the boys to testify at trial for the Appellant. He further
represented to the Court that Attorney Kollet, as guardian ad litem for the boys,
opposed the subpoena.
While the jury was in recess, the Court heard from Attorneys Kollet and Goodge
regarding the subpoena for the boys' testimony. Attorney Goodge represented that
during the Interview, both of the boys stated that E.B. did not visit the Appellant at
830 Walnut Street after she and her mother moved out of the residence and further
stated that K.R. had never visited .the apartment after E.B. and her mother left.
Neither of the boys could remember specific dates nor could either describe the house
that they lived in at the time. Attorney Goodge asserted that the boys' belief that. no
visits had. taken place after E.B. and her mother moved out was material and relevant
to the Appellant's case.
The Court was able to recall from the previous days' te&tirnony that E.B. and
K.R. were unable to testify regarding concrete dates of the incidents with the
Appellant. · Further testimony from E.B. 's mother, Iris Martinez, indicated that
although she had secured another residence, she and E.B. had been staying at the
Appellant's residence off and on until November 7, 2012, when they moved out and
E.B. did not return to the Appellant's apartment. Therefore, because the boys were
unable to determine any dates at all, and no solid dates were provided either by E.B.
or by K.R., the Court was not persuaded that a clear time frame had been established
15
regarding when the boys stopped seeing E.B. and/or K.R. at the apartment on Walnut
Street. In the Court's belief, to compel the boys to testify to facts that were speculative
at best presented too great a risk of additional trauma. Hence, the subpoena for the
boys to testify was quashed.
Under both the Pennsylvania and Federal Constitutions, "a criminal defendant
has a right of compulsory process to obtain witnesses in his favor." Commonwealth u.
McKenzie, 581 A.2d 655, 657 (Pa. 1990)(citing Commonwealth v. Lahoud, 488 A.2d
307, 310 (Pa.Super. 1985) {allocatur denied}, quoting Commonwealth v. Allen, 462
A.2d 624, 627 (Pa. 1983)). See also Commonwealth v. Jackson, 324 A.2d 350, 354~355
(1974. A criminal defendant "'has the right to present his own witnesses to establish a
defense. This right is a fundamental element of due process of law."' McKenzie at 657,
citing Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019,
1023 (1967). "[The] constitutional right, though fundamental, is not, however,
absolute." Commonwealth v. Jackson at 355. "In order to compel the attendance ofa
witness at trial, it must be shown that the information possessed by the witness is
material, Le., capable of affecting the outcome of the trial, and that it is favorable to
the defense." McKenzie at 657, citing United States v. Valenzuela--Bemal, 458 U.S. 858,
(1982).
"When reviewing a court's disposition of a motion to quash a subpoena, [an
appellate court will} grant great deference to the factual findings of the trial court. [It]
will affirm the court's decision unless [it findsJ that the court abused its discretion or
committed an error of law." Commonwealth u. Simmons, 719 A.2d 336, 340 {Pa. Super.
1998). "An abuse of discretion is more than just an error in judgment and, on appeal,
the trial court will not be found to have abused its discretion unless the record
discloses that the judgment exercised was manifestly unreasonable, or the result of
16
partiality, prejudice, bias, or ill-will." Common1:°ealth u. Jackson, 785 A.2d 117, 118
(Pa.Super.2001).
Here, the Court did not abuse its discretion. As stated above>the Court was
not persuaded that the boys would be able to establish a timeframe either disputing
the one testified to by E.B.> K.R., or Ms. Martinez due to the fact that they could not
recall specific dates or even descriptions of the residence in question. Further, the
Court believed testimony by the boys, which would be speculative at best, would
present a risk of harm to the boys, given the representation from their guardian ad
litem that their therapist(s) believed that contact with the Appellant would cause
additional trauma. The decision was not based on partiality, prejudice, bias, or ill-will
and was not manifestly unreasonable. Therefore, this portion of the Appeal ought to be
dismissed.
Testimony of Deputy Sheriff
Next, the Appellant argues that the Court erred in denying the Appellant's
Motion in Limine to Exclude Testimony of Deputy Sheriff James E. Bonner pursuant
to Pa.R.Eyid. 401 and 403, in that the testimony was irrelevant, speculative,
conjectural, unsupported by scientific or expert opinion and was far more prejudicial
to Appellant than it was probative. The testimony in question refers to Deputy
Bonner's observations of the Appellant at his preliminary hearing. Specifically,
Deputy Bohner, while standing at a 45 degree angle and an arm's length away from ·
. .
the Appellant, observed that while ~.B. was testifying, the Appellant reached down to
.
his crotch area and used his two small fingers to rub himself in the crotch area>
numerous times with each time lasting under a minute. The deputy described the
actions of the Appellant as "fondling himself," At the time, the Appellant's hands were
17
shackled to his front waist area. It continued until the deputy motioned to the
Appellant to stop.
"[T'[he admission of evidence is within the sound discretion of the trial court and
will be reversed only upon a showing that the trial court clearly abused its discretion."
Commonwealth v. Stutler, 966 A.2d 594, 599 (Pa.Super.2009), citing Commonwealth v.
Treiber, 874 A.2d 26, 31 (Pa. 2005). "Admissibility depends on relevance and probative
value," Id. "Evidence is relevant if it logically tends to establish a material fact in the
case or tends to support. a reasonable inference regarding a material fact."
Commonwealth v. Foley, 38 A.3d 882, 891 (Pa.Super. 2012). "Evidence, even if
relevant, may be excluded if its probative value is outweighed by the potential
prejudice." Commonwealth v. Franzen, 42 A.3d 1100, 1106 (PaSuper. 2012)(citing
Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa.Super.2.009)).
"Determinations about the admissibility of evidence are entrusted to the sound
discretion of the trial court and will be reversed only upon a showing that the trial
court clearly abused its discretion." Commonwealth u. Parker, 882 A.2d 488, 492
[Pa.Super, 200S)(citation omitted). "Discretion is abused when the course pursued
represents not merely an error of judgment, but where the judgment is manifestly
unreasonable or where the law is not applied or where the record shows that the
action is a result of partiality, prejudice, bias or ill will." Commonwealth v~ Widmer,
744 A.2d 745, 753 (Pa. 2000}(citing Coker v. S.M. Flickinger Company, Inc., 625 A.2d
1181, 1185 (Pa. 1993).
The Appellant is unable to show an abuse of discretion. At the Motion in
Li.mine Hearing, held on August 4, 2014, counsel for the Appellant argued that Deputy
Bonner's testimony was irrelevant and highly prejudicial. He asserted that the
preliminary hearing was held over a year after the alleged incidents were to have taken
18
place, that there was no expert opinion regarding whether the Appellant was actually
engaged in sexual arousal at the time he was observed by the deputy, or if he was
merely uncomfortable. The Commonwealth argued that the testimony was relevant in
that it tended to show that the Appellant was sexually aroused by the victim, E.B.,
which was the motive behind the alleged abuse. Further, the Commonwealth
suggested that the deputy would only be testifying about his observations of the
Appellant at the preliminary hearing and that other reasons behind the Appellant's
behavior could be ferreted out on cross-examination.
The Court determined that the testimony of the deputy was relevant to show
that the Appellant reacted to E.B.'s testimony at the preliminary hearing by; in the
deputy's observation and analysis, fondling himself. Defense counsel was able to
cross examine Deputy Bonner regarding his observation of 'the Appellant and to make
argument that the deputy's observation was erroneous. While every piece of evidence
tending to show a defendant's guilt is prejudicial by its very nature, the prejudice here
did not outweigh the probative value of the testimony of the deputy. The record cannot
support the Appellant's argument that the Court's decision was based on partiality,
bias, prejudice or ill will. Therefore, the Appellant's argument fails and this portion of
the Appeal ought to be dismissed.
Classification as a Sexually Violent Predator
"[Ijn' reviewing the sufficiency of the evidence regarding the determination of
SVP status, we will reverse the trial court only if the Commonwealth has not presented
clear and convincing evidence sufficient to enable the trial court to determine that
each element required by the statute has been satisfied." Commonwealth u. Plucinski,
868 A.2d 20, 25 (Pa.Super. 2005){citations omitted). "The clear and convincing
standard requires evidence that is 'so clear, direct, weighty and convincing as to
19
\
enable [the trier of fact] to come to a clear conviction, without hesitancy, of the truth of
the precise facts {in] issue." Plucinski at 25, citing Commonwealth v. Maldonado> 838
A.2d 710, 71~ (2003)(intemal citation omitted).
"Pennsylvania's version of Megan's Law defines an SVP as 'a person who has
been convicted of a sexually violent offense as set forth in section 9795.1 (relating to
registration) and who is determined to be a sexually violent predator under section
9795.4 (relating to assessments) due to a mental abnormality or personality disorder
that makes the person likely to engage in predatory sexually violent offenses."
Commonwealth v. Geiier, 929 A.2d 648, 649-650 (Pa.Super. 2007)(citing 42 Pa.
·Cons.Stat.Ann.§ 9792). "The process of determining SVP status is statutorily-
mandated and well-defined. The triggering event is a conviction for one or more
offenses specified in 42 Pa.C.S.A. § 9795.1, which, in turn, prompts the trial court to
order an SVP assessment by the {Sexual Offenders Assessment Board)."
Commonwealth u. Dixon, 907 A.2d 533, 535 (Pa.Super 2006)(citations omitted). "At
the core of the expert's assessment is a detailed list of factors, which are mandatory
and are designed as "criteria by which ... [the] likelihood [of reoffense] may be gauged."
Id. at 535-536 (citing Commonwealth v. Bey, 841 A.2d 562, 566 (Pa.Super.2004)).
"The specific question for the SOAB expert. as well as any other expert who
testifies at an SVP hearing, is whether the defendant satisfied the definition of sexually
violent predator set out in the statute, that is, whether he or she suffers from 'a
mental abnormality or personality disorder that makes {him or her} likely to engage in
predatory sexually violent offenses." Dixon at 536, citing 42 Pa.C.S.A. § 9792.
Therefore, "the salient inquiry ... in determining SVP status is identification of the
impetus behind commission of the offense, that is, whether it proceeds from a mental
defect/personality disorder or another motivating factor. The answer to that question
20
\
determines, at least theoretically, the extent to which the offender is likely to reoffend."
Bey at 566. The assessment conducted by the SOAB Evaluator shall include, but not
be limited to, an examination of the .following:
( 1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means necessary to
achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of unusual
cruelty by the individual during the commission of the·
crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual's prior criminal record.
(ii) Whether the individual completed any prior sentences.
(iii) Whether the individual participated in available
programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age of the individual.
(ii) Use of illegal drugs by the individual.
(iii) Any mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to the
individual's conduct.
(4) Factors that are supported in a sexual offender assessment
field as criteria reasonably related to the risk of reoffense. .
Commonwealth v. vVhite, 2014 WL 63910881*4-5 (Pa.Com.Pl. 2014)) citing 42 Pa.C.S. §
9 799. 24(b) (1)-(~).
"[WJith regard to the various assessment factors listed in Section 9795.4, there is no
statutory requirement that all of them or any particular number of them be present or
absent in order to support an SVP designation. Meals, 912 A.2d at 220-23. The factors
are not a checklist with each one weighing in some necessary fashion for or against
SVP designation." Commonwealth u. Feucht, 955 A.2d 377, 381 [Pa.Super, 2008)(citing
Commonwealth . v. Meals, 912 A.2d 213, 220-223 (2006)).
Upon conviction, the Appellant underwent a Sexual Offender Assessment
Evaluation, which determined that he does meet the criteria for Sexually Violent
21
Predator (hereinafter "SVP"). The Evaluation was performed by Paula Brust of the
Sexual Offender Assessment Board and both counsel stipulated to the admissibility of
the Report for consideration by the Court. 8
~fa. Brust's report identified the specific factors leading to her determination
that the Appellant is. indeed, an SVP. Ms. Brust acknowledged that the instant
crimes did not involve multiple victims, but did note the duration and multiple types
of sexual acts and their progression from kissing to raping on repeated occasions. She
also noted that the Appellant was able to groom. the victim, bribe her, and intimidate
her to comply. Medical evidence of blunt penetrating trauma existed as well. Ms.
Brust noted that the victim was 10 years old at the time the offenses started and the
Appellant was her stepfather, a "relationship of trust and dependency and he twisted
that relationship in order to satisfy his sexual deviancies." Exhibit C-1, p.6. The
evaluator found that the victim was vulnerable due to her age and was not capable of
consenting to the sexual acts forced upon her. Id.The Appellant has suffered five adult convictions, none of which were sexual
crimes. Ms. Brust determined that the Appellant was a technical parole violator and
had violated probationary and parole sentences due to compliance issues. Id. at 7.
Ms. Brust considered that the Appellant was 44 years old at the tune he
offended against his 10 year old stepdaughter and that in addition to selling illegal
narcotics in the past, he has abused marijuana since the age of 12 and cocaine since
the age of 19. It was unknown if the Appellant was using illegal narcotics at the time
of the offenses. The Appellant's Department of Corrections (hereinafter 1'DOC")
records indicated that he has exhibited a LowAverage Range oflntelligence and that
8 The Appellant, after requesting and being provided funds, had an independent
psychological evaluation performed by Dr. Frank Dattilio. The results of the independent
evaluation were not presented at the time of sentencing.
22
he exhibited narcissistic and delusional qualities. The DOC records found the
Appellant to have little or no respect for social standards and that he is often in direct
conflict with social values. Aft.erevaluating the available records, the Appellant was
found to meet the diagnostic criteria for Pedophilic Disorder.
Specifically, Ms. Brust considered the fact that over a period of at least six
months, the Appellant had recurrent, intense sexually arousing fantasies, sexual
urges or behaviors involving sexual activity with a prepubescent child or children
generally age 13 or younger, that the Appellant acted on these sexual urges or
fantasies, and that the age of the Appellant and his victims were consistent with the
criteria for Pedophilic Disorder, which "will cause him to experience an internal drive
towards sexual offending and his disorder predisposes him towards committing sexual
crimes in the future." See Exhibit C-1 at 9. The evaluator also noted that the presence
of multiple victims (E.B. and K.R.) is sufficient but not necessary for the diagnosis.
The evaluator highlighted that the Appellant groomed and bribed E.B. and attempted
to normalize the sexual activity. E.B. indicated that she was afraid of the Appellant.
M~. Brust ultimately concluded that the Appellant met the "full criteria for
Pedophilic Disorder, which is considered to be a congenital and/ or acquired
condition." Exhibit C- 1 at 9. Such disorder is considered to be a lifetime disorder. In
offending against the victim, and being aware of the potential consequences, the
Appellant repeatedly sexually offended a child. The diagnosis of Pedophilic Disorder
will cause the Appellant "to have ai:i internal drive toward sexual offending and
predisposes him towards committing sexual crimes in the future." Id.
The Appellant's actions were predatory in nature in that they were "directed at a
stranger or at a person with whom a relationship has been initiated, established,
maintained or promoted, in whole or in part, in order to facilitate or support
23
victimization." Feucht at 381, citing 42 Pa.C.S.A. § 9792. The offenses demonstrated
planning and intent and showed a "definite progression over time and a sustained
interest in this child. He even bought a sex 'toy' for her and forced her to use it inside
her anus and vagina at the same time:" Exhibit C-1 at 10. Further, he used grooming
techniques to intimidate her and ensure secrecy. Id. In Ms. Brust's opinion, the
Appellant would not have stopped his offending behavior had the offenses not come to
light.
Case law establishes that "every Commonwealth expert who testifies that an
individual is an SVP must examine, and render an opinion on, whether the individual
is likely to re-offend. (However], the precise manner of meeting this burden is not
analyzed in terms of a strict, three-prong test." Dixon, 907 A.2d at 539 [referring to
Commonwealth v. Krouse, 799 A.2d 835, 837 (Pa.Super.2002)). "[W]hile the Board is
to examine all the factors listed under Section 97954.4, the Commonwealth does not
have to show that any certain factor is present or absent in a particular case."
Commonwealth v. Brooks, 7 A.3d 852, 863 (Pa.Super. 2010)(citing Feucht at 381).
After careful review of the report submitted by Ms. Brust, the. Court concluded,
by clear and convincing evidence, that the Appellant met the criteria set forth in the
statute to be classified as a se..xually violent predator. In the report, sh~ discussed
nearly all of the factors identified in the Megan's Law Statute and explained how the
Appellant fit into each category. Ms. Brust was able diagnose the Appellant with ·
Pedophilic Disorder and that the offenses committed were motivated by the disorder.
Further, Pedophilic Disorder will make the Appellant likely to reoffend. Given the
evidence presented at the time of Sentencing, the Court did not err in designating the
Appellant an SVP.
24
CONCLUSION
For all of the foregoing reasons, the Court would urge the Superior Court to
dismiss the instant Appeal.
By the Court:
~f:ru.@M
KeliyL.Bach,
J,
25
v: