Com. v. Perez, B.

J-S54006-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BENEDICTO PEREZ :
:
Appellant : No. 841 WDA 2016
Appeal from the Judgment of Sentence May 17, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014260-2014
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
BENEDICTO PEREZ :
:
Appellant : No. 1377 WDA 2016
Appeal from the Judgment of Sentence August 19, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0014260-2014
BEFORE: OTT, J., MOULTON, J., and FITZGERALD, J.*
MEMORANDUM BY OTT, J.: FILED DECEMBER 13, 2017
In this consolidated appeal, Benedicto Perez appeals from the judgment
of sentence, entered May 17, 2016, in the Court of Common Pleas of Allegheny
County. Perez filed another appeal from the judgment of sentence, following
____________________________________________
* Former Justice specially assigned to the Superior Court.
J-S54006-17
the trial court’s August 19, 2016, determination that he is a sexually violent
predator (SVP).1 A jury found Perez guilty of three counts of indecent assault,2
one count of unlawful contact with minors,3 one count of endangering welfare
of children (EWOC),4 and two counts of corruption of minors.5 The trial court
sentenced Perez to an aggregate term of four to 12 years’ imprisonment,
followed by six years’ probation. The trial court also imposed lifetime
registration requirements at Counts 1 and 2 (indecent assault – person less
than 13 years of age), Count 5 (EWOC), and Count 6 (corruption of minors),
pursuant to SORNA.6 On August 19, 2016, the trial court conducted a hearing
and found Perez to be an SVP. Perez raises five issues on appeal, namely, (1)
the trial court erred in denying his motion for discovery, (2) the trial court
abused its discretion by imposing a manifestly excessive and unreasonable
____________________________________________
1 On November 17, 2016, this Court consolidated these appeals sua sponte.
2 18 Pa.C.S. § 3126(a)(7) (victim under age of 13, course of conduct), 18
Pa.C.S. § 3126(a)(7) (victim under age of 13), and 18 Pa.C.S. § 3126(a)(8)
(defendant 4 or more years older than victim, not married to victim).
3 18 Pa.C.S. § 6318(a)(1).
4 18 Pa.C.S. 4304(a), (b)(ii).
5 18 Pa.C.S. § 6301(a)(1)(ii) (sexual conduct, course of conduct) and 18
Pa.C.S. § 6301(a)(1) (sexual conduct).
6 Sexual Offenders Registration and Notification Act (SORNA), 42 Pa.C.S. §
9799.10 et seq. See 42 Pa.C.S. § 9799.13(1) (SORNA applies to a person
convicted of a “sexually violent offense” on or after the effective date of the
section, which was December 20, 2012).
-2-
J-S54006-17
sentence, (3) there was insufficient evidence to support the SVP determination
because the Commonwealth’s SVP expert lacked a proper basis to form an
opinion, (4) there was insufficient evidence to support the SVP determination
because he did not meet certain enumerated criteria in 42 Pa.C.S. §
9799.24(b), and (5) the trial court erred in imposing a lifetime registration
under SORNA on Counts 4, 5, and 6. For the reasons set forth below, we
vacate the judgment of sentence as to Perez’s SVP designation, as well as the
lifetime registration requirement at Count 5, and the lifetime registration
requirement at Count 6 is amended to the proper registration requirement of
15 years; we affirm the judgment of sentence in all other respects and we
remand this case to the trial court for the sole purpose of issuing the
appropriate notice under 42 Pa.C.S. § 9799.23 as to Perez’s registration
obligation at Count 6 for a period of 15 years.
The parties are well acquainted with the facts of this case, which are
fully set out in the trial court’s opinion and, therefore, we need not restate
them here. See Trial Court Opinion, 1/17/2017, at 3–5. Briefly, Perez’s
convictions arose from his sexual abuse of his minor stepdaughter. The jury
found Perez guilty, as discussed above, and the trial court sentenced Perez
and found him to be an SVP. This consolidated appeal followed.7
____________________________________________
7 Perez timely complied with the orders of the trial court to file Pa.R.A.P.
1925(b) concise statements.
-3-
J-S54006-17
Perez first argues that “[t]he trial court erred when it denied [his]
motion for discovery seeking to have the Commonwealth provide copies of
DVD records of the victim’s interview by detectives/police officers with the
Mesa Police Department.” Perez’s Brief at 18.
Perez argues because the Commonwealth merely provided transcripts
of interviews of the victim and her siblings, trial counsel filed a motion to
obtain a copy of the DVDs, but the trial court only ordered the DVDs be made
available for viewing at the District Attorney’s Office. Id. Perez argues that
since he was incarcerated, it was impossible for trial counsel and Perez to sit
together to watch the interviews. Id.
At issue in this appeal is only the DVD of the victim’s interview. Perez
claims “[s]uch discovery material was pivotal for impeachment purposes.”
Perez’s Brief at 20. Perez maintains:
Given that the DVDs were the original evidence, it would have help
[sic] establish prior inconsistent statements, statements reflecting
the victim’s statement variations, other known conditions that
could affect the victim’s bias such as animosity toward [Perez] or
other issues that could affect the victim’s ability to perceive and
recall events.
____________________________________________
On June 13, 2016, following the May 17, 2016, sentencing hearing,
Perez filed a notice of appeal from the judgment of sentence, and filed his
concise statement on August 11, 2016. The trial court issued its opinion on
January 17, 2017.
On September 12, 2016, following the trial court’s August 19, 2016, SVP
determination, Perez filed a notice of appeal from the judgment of sentence,
and filed his concise statement on March 31, 2017. The trial court issued its
opinion on April 12, 2017.
-4-
J-S54006-17
Id.
The trial court has broad discretion in choosing a discovery remedy.
Commonwealth v. Maldonodo, ___ A.3d ___, ___ [2017 Pa. Super. LEXIS
698] (Pa. Super. September 12, 2017) (en banc), petition for allowance of
appeal pending at 470 EAL 2017 (Pa. 2017). Here, the trial court reasoned:
[Perez] first alleges that this Court erred in denying the pretrial
discovery motion request for DVD copies of the victim’s interview
with the police. [Perez] sought copies of interviews with the victim
and her siblings which were conducted by police detectives. The
Commonwealth indicated that their policy was to not turn over
copies of these interviews. This Court permitted [Perez] and
counsel to view the DVD in the Office of the District Attorney and
to transcribe the statements on the DVD for use at trial.
“The Commonwealth has no duty to provide evidence in a form
that the defendant demands for the convenience of the defense.”
Commonwealth v. Robinson, 2015 PA Super 165, 122 A.3d
367, 373, reargument denied (Oct. 9, 2015), appeal denied sub
nom. Commonwealth v. Green, 130 A.3d 1287 (Pa. 2015), and
appeal denied, 130 A.3d 1289 (Pa. 2015). “Appellant requested
tape recordings of conversations between decedent and William
Livezey. Typewritten transcripts were provided. We find that to
be sufficient. There was no abuse of discretion in any of the trial
court’s discovery rulings.” Commonwealth v. Colson, 490 A.2d
811, 823 (Pa. 1985). Since this Court gave [Perez] the
opportunity to review the DVD with counsel at the District
Attorney’s office and to have the statements transcribed for use
at trial, circumstances substantially similar to Colson, this Court
properly held that [Perez] suffered no prejudice by not also
receiving a DVD of the interviews.
Trial Court Opinion, 1/17/2017, at 5–6.
Based on our review, we discern no abuse of discretion. The trial court
correctly applied the holding in Robinson that “[t]he Commonwealth has no
duty to provide evidence in a form that the defendant demands for the
-5-
J-S54006-17
convenience of the defense.” 122 A.3d at 373. Perez does not reference any
portion of the transcript to suggest there is favorable evidence or credibility
revelations that would be more apparent in the DVD than in the written
statement. Therefore, because Perez was provided with the victim’s
statements, the DVD was made available for viewing, and Perez does not point
to anything in the transcript that would be more thoroughly disclosed in the
DVD, we conclude his discovery claim is unavailing.
In his second issue, Perez argues the trial court abused its discretion by
imposing a manifestly excessive and unreasonable sentence of an aggregate
sentence of four to 12 years’ incarceration followed by six years’ probation.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. Hoch, 936 A.2d 515, 518 (Pa.
Super. 2007) (citation omitted). In order to reach the merits of such a claim,
this Court must determine:
(1) whether appellant has filed a timely notice of appeal; (2)
whether the issue was properly preserved at sentencing or in a
motion to reconsider and modify sentence; (3) whether
appellant's brief has a fatal defect; and (4) whether there is a
substantial question that the sentence appealed from is not
appropriate under the Sentencing Code.
Commonwealth v. Dunphy, 20 A.3d 1215, 1220 (Pa. Super. 2011)
(footnotes omitted).
Here, Perez failed to challenge the discretionary aspects of his sentence
either during the sentencing hearing, or in a timely filed motion for
-6-
J-S54006-17
reconsideration of sentence. “Absent such efforts, an objection to a
discretionary aspect of a sentence is waived.” Commonwealth v. Cartrette,
83 A.3d 1030, 1042 (Pa. Super. 2013) (en banc). Accordingly, Perez is
entitled to no relief on his sentencing claim.
In the third and fourth issues, Perez challenges the sufficiency of his
SVP designation. In the fifth issue, Perez challenges the lifetime registration
requirements imposed at Counts 4, 5 and 6 under SORNA. These issues are
interrelated, and we discuss them together.
By way of background, on April 22, 2016, prior to sentencing, the
Commonwealth received the Sexual Offenders Assessment Board (SOAB)
report finding Perez to be an SVP, and praeciped for a hearing. However, at
the time of the May 19, 2016, sentencing hearing, trial counsel indicated he
had only become aware of the report a week before the hearing, that Perez
was contesting the report, and that he intended to confer with his office about
obtaining a defense expert. N.T., 5/19/2016, at 22. The trial court sentenced
Perez and scheduled a post-sentence SVP hearing.
On the record at the sentencing hearing, the trial court stated that Perez
was “a lifetime registrant.” N.T., 5/17/2017, at 27. The sentencing order
reflects lifetime registration requirements were imposed on Counts 1, 2, 5 and
6, which were specified as “Tier 3” offenses. See Sentencing Order, May 17,
2017. Thereafter, on August 19, 2016, the trial court conducted an SVP
hearing and determined Perez to be an SVP.
-7-
J-S54006-17
Under SORNA, sexual offenses are classified in a three-tiered system
composed of Tier I, Tier II, and Tier III sexual offenses. 42 Pa.C.S. § 9799.14.
Generally, a person convicted of a Tier I sexual offense must register for a
period of 15 years. 42 Pa.C.S. § 9799.15(a)(1). A person convicted of a Tier
II sexual offense must register for 25 years, and a conviction of a Tier III
sexual offense carries a mandatory lifetime registration requirement. 42
Pa.C.S. § 9799.15(a)(2) and (3).
In this case, pursuant to Section 9799.14, Counts 1 and 2 (indecent
assault – 18 Pa.C.S. § 3126(a)(7)), are Tier III offenses. See 42 Pa.C.S. §
9799.14(d)(8). Count 3 (indecent assault – 18 Pa.C.S. § 3126(a)(8)) and
Count 4 (unlawful contact with a minor – 18 Pa.C.S. § 6318) are Tier II
offenses. See 42 Pa.C.S. § 9799.14(c)(1.3), (5). Count 5 (EWOC – 18
Pa.C.S. § 4304) is not an offense subject to registration. Count 6 (corruption
of minors – 18 Pa.C.S. § 6301(a)(1)(ii)) is a Tier I offense. See 42 Pa.C.S. §
9799.14(b)(8).
While Perez presents a challenge to lifetime registration requirements
imposed at Counts 4,8 5 and 6 at sentencing, Perez was subsequently
classified as an SVP. As such, he is subject to lifetime registration
requirements for Tier I, II, and III sexual offense convictions. See 42 Pa.C.S.
§ 9799.15(a)(6) (“A sexually violent predator shall register for the life of an
____________________________________________
8Contrary to Perez’s claim, no registration requirement was imposed at Count
4.
-8-
J-S54006-17
individual.”); 42 Pa.C.S. § 9799.15(d) (“An individual convicted of a Tier I
sexual offense, a Tier II sexual offense or a Tier III sexual offense who is
determined to be a sexually violent predator under section 9799.24 (relating
to assessments) shall register for the life of the individual.”). Therefore, Perez
has lifetime registration requirements at Counts 1 and 2 (Tier III), 3 and 4
(Tier II), and 6 (Tier I).
However, while this case was pending on appeal, a panel of this Court
decided Commonwealth v. Butler, ___ A.3d ___, ___ [2017 Pa. Super.
LEXIS 873] (Pa. Super. 2017), which was issued on October 31, 2017. In
Butler, the panel considered sua sponte the legality of sentencing issue
presented by the SVP designation mechanism, which increased Butler’s
minimum registration requirement. The Butler majority found the SVP
provisions at 42 Pa.C.S. § 9799.24(e)(3) (“Assessments”) unconstitutional,
based upon our Supreme Court’s decision in Commonwealth v. Muniz, 164
A.3d 1189 (Pa. 2017) (concluding SORNA’s registration provisions constitute
punishment and, therefore, that retroactive application of SORNA’s
registration provisions violates the ex post facto clauses of the federal and
Pennsylvania constitutions).
Butler reasoned that since SORNA requirements are now deemed to be
punishment under Muniz, the present SVP statutory mechanism that allows
a trial court to designate a convicted defendant as an SVP based upon clear
and convincing evidence is constitutionally flawed. In this regard, Butler
-9-
J-S54006-17
found the United States Supreme Court decisions in Alleyne v. United
States, 133 S. Ct. 2151 (2013), and Apprendi v. New Jersey, 530 U.S. 466(2000), require a factual finding that increases the length of registration
(punishment) to be made by the fact-finder beyond reasonable doubt.
Butler concluded:
In sum, we are constrained to hold that section 9799.24(e)(3) of
SORNA violates the federal and state constitutions because it
increases the criminal penalty to which a defendant is exposed
without the chosen fact-finder making the necessary factual
findings beyond a reasonable doubt. Moreover, we are constrained
to hold trial courts cannot designate convicted defendants SVPs
(nor may they hold SVP hearings) until our General Assembly
enacts a constitutional designation mechanism. Instead, trial
courts must notify a defendant that he or she is required to
register for 15 years if he or she is convicted of a Tier I sexual
offense, 25 years if he or she is convicted of a Tier II sexual
offense, or life if he or she is convicted of a Tier III sexual offense.
Butler, supra, ___ A.3d at ___ [2017 Pa. Super. LEXIS 873 at *13].
In light of the Butler holding, we conclude we must vacate the judgment
of sentence with respect to the trial court’s SVP determination. Accordingly,
we need not address the third and fourth issues Perez raises on appeal, which
challenge the sufficiency of the evidence to support his SVP designation.
This brings us to Perez’s fifth issue in which we consider, without regard
to Perez’s classification as an SVP, whether Perez’s lifetime registration
requirements were properly imposed under SORNA.
Initially, we point out that Perez does not challenge the registration
requirements imposed at Counts 1 and 2, which, as discussed above, are Tier
III offenses that require lifetime registration.
- 10 -
J-S54006-17
With respect to Counts 5 and 6, the trial court concluded these offenses
were Tier III offenses that required lifetime registration by relying Section
9799.14(d)(16), which provides:
The following shall be classified as Tier III sexual offenses: … Two
or more convictions of offenses listed as Tier I or Tier II sexual
offenses.
42 Pa.C.S. § 9799.14(d)(16).
The trial court reasoned that Count 3, indecent assault, and Count 4,
unlawful contact with minor, are Tier II offenses, and Count 6, corruption of
minors, is a Tier I offense, and concluded “any combination of Counts 3, 4
and/or 6 would trigger the cumulative provision under subsection(d)(16).”
Trial Court Opinion, 1/17/2017, at 9.
Perez, however, maintains the trial court’s conclusion is invalid in light
of the Pennsylvania Supreme Court’s recent decisions in Commonwealth v.
Lutz-Morrison, 143 A.3d 891 (Pa. August 15, 2016), and A.S. v.
Pennsylvania State Police, 143 A.3d 896 (Pa. August 15, 2016). In Lutz-
Morrison, the Supreme Court clarified that Section 9799.14(d)(16) “requires
an act, a conviction, and a subsequent act to trigger lifetime registration for
multiple offenses otherwise subject to a fifteen- or twenty-five-year period of
registration.” Lutz-Morrison, supra, 143 A.3d at 895 (emphasis supplied).
Accord A.S., supra, 143 A.3d at 908 (applying registration requirements of
Megan’s Law II). Perez’s argument is compelling.
- 11 -
J-S54006-17
Here, the trial court imposed the lifetime registration requirement on
Counts 5 and 6 based solely on the multiple Tier I and II offenses included in
the same information. Notably, the Commonwealth concedes Lutz-Morrison
and A.S. “held that 42 Pa.C.S. 9799.14(d)(16) embodied a recidivist
philosophy, such that multiple offenses presented in the same information do
not serve to trigger a lifetime registration” and, in this case, “it is therefore
necessary that the registration requirement imposed on count 5 be vacated
and the registration requirement imposed on count 6 be corrected to reflect a
registration period of fifteen years, 42 Pa.C.S.A. § 9799.15(a)(1)[.]”
Commonwealth’s Brief at 32–33.9
We agree with Perez’s argument and the Commonwealth’s analysis.
With respect to Count 5, we find that EWOC, 18 Pa.C.S. § 4304(a), is not an
offense subject to registration under any of the provisions of 42 Pa.C.S. §
9799.14. With respect to Count 6, we find that corruption of minors, 18
Pa.C.S. § 6301(a)(1)(ii), is a Tier I offense that is subject to a 15-year
registration requirement.
Therefore, based on the foregoing, we vacate the judgment of sentence
as to the SVP designation, as well as the lifetime registration requirement at
Count 5, and the lifetime registration requirement at Count 6 is amended to
____________________________________________
9 The Commonwealth notes that Perez “will remain a lifetime registrant due
to his convictions of Tier III offenses at counts 1 and 2, where that registration
requirement was correctly imposed.” Commonwealth’s Brief at 33.
- 12 -
J-S54006-17
the proper registration requirement of 15 years. We remand this case to the
trial court for the sole purpose of issuing the appropriate notice under 42
Pa.C.S. § 9799.23 as to Perez’s registration obligation at Count 6 for a period
of 15 years. See Butler, supra, __ A.3d at ___ [2017 Pa. Super. LEXIS 873at *13].
Judgment of sentence vacated as to SVP designation, as well as lifetime
registration requirement at Count 5, and lifetime registration requirement at
Count 6 is amended to the proper registration requirement of 15 years;
judgment of sentence affirmed in all other respects. Case remanded.
Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2017
- 13 -