Com. v. Mickelson, W.

J-A24015-14

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

WILLIAM MICKELSON

Appellant No. 1487 EDA 2013

Appeal from the Judgment of Sentence April 8, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002107-2012;

CP-51-CR-0002108-2012

BEFORE: GANTMAN, P.J., BENDER, P.J.E., and PLATT, J.*

MEMORANDUM BY GANTMAN, P.J.: FILED OCTOBER 10, 2014

Appellant, William Mickelson, appeals from the judgment of sentence

entered in the Philadelphia County Court of Common Pleas, following his jury

trial convictions for attempted rape, attempted sexual assault, burglary,

criminal trespass, false imprisonment, and simple assault.1 We affirm.

The trial court opinion sets forth the relevant facts of this appeal as

follows:

On June 24, 2009, Annette West [(“Victim”)] was walking

home from a Chinese food store at approximately 3:00

a.m. when Appellant grabbed her from behind, punched

her and told her he was going to “fuck her really good”

while ripping her shirt and scratching her neck. [Victim’s]

____________________________________________

1

18 Pa.C.S.A. §§ 901; 901; 3502; 3503; 2903; 2701 respectively.

_____________________________

*Retired Senior Judge assigned to the Superior Court.

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neighbor, Kristal Bellinger, heard [Victim] screaming

outside her home and came to her front door to see if

[Victim] was [all right]. In response, Appellant took

[Victim] by the arm and told her “you better say you’re

having an asthma attack.” [Victim] complied.

As Appellant began to walk [Victim] up Bellinger’s steps,

Bellinger went back inside and shut the door. Appellant

then kicked in Bellinger’s door and entered her home.

Appellant and Bellinger started to fight, at which point

Bellinger’s sister, Sandra, came downstairs, grabbed a bike

and told Appellant to leave. Following that altercation,

Appellant walked out the front door. Meanwhile, [Victim],

who had broken away from Appellant, ran to her home and

told her brother, Westfield, to call the police.[2]

Police Officers Zagursky and Wright were on duty that

night when they responded to two radio calls about a rape

in progress at 60th and Catharine Streets. The officers

were driving southbound on 60th Street when they

approached several people flagging them down between

Catharine and Webster Streets. They next encountered

[Victim], who looked disheveled and was crying that a man

had just attempted to rape her.

The officers also spoke with Westfield West, who told them

that the attacker was a black male with a short, stocky

build, dark complexion and no shirt. He told the officers

the perpetrator had gone towards the 5900 block of

Webster Street. Zagursky saw Appellant on that block,

which was illuminated by street lights, ducking in and out

of the sidewalk and yelling gibberish. As Wright

approached Appellant, he saw him run onto a porch, where

he was subsequently arrested. Wright testified that he had

seen Appellant earlier that night because he remembered

he did not have a shirt on.

[Victim] met with Detectives Taylor and Organ in the

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2

This 911 call forms the basis for Appellant’s first issue. During this call,

Westfield West told the operator that his sister was crying and upset, and

that he could see “the man” who had “no shirt.”

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Special Victims Unit that night. She had fresh scratches

and her gray sweatshirt was ripped. Because there was no

penetration and there were no bodily fluids exchanged

between Appellant and [Victim], a DNA test on her

sweatshirt was not warranted.

Kristal Bellinger testified she had only a brief opportunity

to see Appellant’s face in her home and that Appellant did

“not look like the man.” However, Appellant was identified

by both [Victim] and Sandra Bellinger at the scene and at

trial. While [Victim] testified that she could not remember

if Appellant had a shirt on, she could remember his face

and his muscles. She further testified she had no doubt

that Appellant was the man who attacked her.

Dr. Barbara Ziv testified at a Megan’s Law hearing that

Appellant is a sexually violent predator [(“SVP”)].1 She

reached this conclusion because of his mental

abnormalities and his [recidivism] risk. Appellant’s mental

abnormalities include antisocial orientation, antisocial

personality disorder, and impulsivity. She further stated

that Appellant’s pattern of bad behavior as a result of his

mental abnormalities has been consistent from the age of

ten, when he attempted to burn his stepfather, to the

present. Appellant’s history of misconduct includes

indecent exposure in prison as well as prostitution.

1

Dr. Ziv explained that she did not interview

Appellant because people undergoing these types of

assessments often lie.

Dr. Ziv testified that Appellant is likely to reoffend. While

she could not assign a specific percentage number to his

recidivism risk, she believed he would probably recidivate

because of his antisocial traits and the fact that he had

victimized a stranger. She also stated that while his

previous sexual behaviors only made this link stronger, the

combination of antisocial traits and a stranger victim would

still have fulfilled the requirements under the statute for

[an SVP] even absent the previous sexual activity.

(Trial Court Opinion, filed October 28, 2013, at 1-2).

A jury convicted Appellant on December 12, 2012. On April 8, 2013,

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the court sentenced Appellant to twenty-seven (27) to fifty-four (54) years’

incarceration and bifurcated the SVP portion of the hearing.3 On April 12,

2013, the court found Appellant qualified for SVP status. Appellant timely

filed a motion for modification of sentence and/or arrest of judgment on April

22, 2013, which the court denied. Appellant timely filed a notice of appeal

on May 21, 2013. On May 31, 2013, the court ordered Appellant to file a

concise statement of errors complained of on appeal, pursuant to Pa.R.A.P.

1925(b), which Appellant filed on June 21, 2013.

Appellant raises the following issues for our review:

DID THE TRIAL COURT ERR OR ABUSE ITS DISCRETION IN

ADMITTING THE 911 RECORDING OF THE NON-

TESTIFYING DECLARANT WHERE AN OTHERWISE

AVAILABLE DECLARANT FAILED TO APPEAR AND THE

ATTORNEY FOR THE COMMONWEALTH PLAYED THE 911

RECORDING OVER THE OBJECTION OF ATTORNEY FOR

[APPELLANT] DENYING APPELLANT THE RIGHT TO

CONFRONTATION[?]

WAS THE JURY’S VERDICT OF GUILT AGAINST THE

WEIGHT OF THE EVIDENCE WHERE ASSIGNED POLICE

OFFICERS CONTRADICTED EACH OTHER’S TESTIMONY

____________________________________________

3

The statutory language of 42 Pa.C.S.A. § 9795.4(a) indicates the SVP

assessment is to be conducted after conviction but before sentencing.

Commonwealth v. Whanger, 30 A.3d 1212 (Pa.Super. 2011). In

Whanger, this Court determined a defendant can waive this statutory

requirement. Additionally, our Supreme Court held 42 Pa.C.S.A. §

9795.4(a) was unconstitutional, in Commonwealth v. Neiman, ____ Pa.

____, 84 A.3d 603 (2013). Here, Appellant consented to the bifurcation of

the sentencing and SVP hearings, which the court permitted at the

sentencing hearing on April 8, 2013. Further, Appellant was advised of his

post-sentencing rights at the conclusion of the SVP hearing, such that his

post sentence motions were timely filed.

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REGARDING APPELLANT’S ARREST, A COMPLAINANT

STATED DEFINITELY THAT APPELLANT WAS NOT THE

PERPETRATOR OF THE ALLEGED CRIME AND POLICE

FAILED TO ANALYZE DNA EVIDENCE ON THE SHIRT OF

THE COMPLAINANT FOLLOWING AN ALLEGED PHYSICAL

AND SEXUAL ASSAULT?

WAS THE TRIAL COURT’S DETERMINATION OF

APPELLANT’S SEXUALLY VIOLENT PREDATOR

DESIGNATION IN ERROR WHERE THE COMMONWEALTH

FAILED TO MEET ITS BURDEN OF “CLEAR AND

CONVINCING EVIDENCE” THAT APPELLANT IS A SEXUALLY

VIOLENT PREDATOR?

(Appellant’s Brief at 7-8).

In his first issue, Appellant argues the 911 radio call of Westfield West,

a declarant who did not testify at trial, was offered for the truth of the

matter asserted. Appellant contends the statement did not qualify as an

exception to the rule against hearsay. Further, Appellant claims the

admission of the radio call as evidence denied Appellant his Sixth

Amendment right to confrontation. Appellant submits the radio call elicited a

statement in favor of the Commonwealth’s case that was a deciding factor

for the jury in its determination of Appellant’s guilt. Appellant concludes the

admission of this hearsay was an error of law and Appellant is entitled to a

new trial. We disagree.

The standard of review for admission of evidence is as follows:

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. Admissibility depends on relevance and

probative value. Evidence is relevant if it logically

tends to establish a material fact in the case, tends

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to make a fact at issue more or less probable or

supports a reasonable inference or presumption

regarding a material fact.

Commonwealth v. Drumheller, 570 Pa. 117, 135, 808

A.2d 893, 904 (2002), certiorari denied, 539 U.S. 919, 123

S.Ct. 2284, 156 L.Ed.2d 137 (2003). See also

Commonwealth v. Lewis, 885 A.2d 51, 54 (Pa.Super.

2005).

Judicial discretion requires action in conformity with

law, upon facts and circumstances judicially before

the court, after hearing and due consideration. An

abuse of discretion is not merely an error of

judgment, but if in reaching a conclusion the law is

overridden or misapplied or the judgment exercised

is manifestly unreasonable, or the result of partiality,

prejudice, bias, or ill will, as shown by the evidence

or the record, discretion is abused.

Commonwealth v. Hunt, 858 A.2d 1234, 1238

(Pa.Super. 2004) (en banc), appeal denied, 583 Pa. 659,

875 A.2d 1073 (2005) (internal citations and quotation

marks omitted).

Pennsylvania Rule of Evidence 801 defines hearsay as

follows:

Rule 801. Definitions

(a) Statement. A “statement” is

(1) an oral or written assertion or

(2) nonverbal conduct of a person, if it is intended

by the person as an assertion.

(b) Declarant. A “declarant” is a person who

makes a statement.

(c) Hearsay. “Hearsay” is a statement, other

than one made by the declarant while testifying at

the trial or hearing, offered in evidence to prove the

truth of the matter asserted.

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Pa.R.E. 801.[4] Pennsylvania Rule of Evidence 803

provides exceptions to the hearsay rule and states, in

pertinent part:

Rule 803. Hearsay exceptions; availability of

declarant immaterial

The following statements, …, are not excluded by the

hearsay rule, even though the declarant is available

as a witness:

(1) Present sense impression. A statement

describing or explaining an event or condition made

while the declarant was perceiving the event or

condition, or immediately thereafter.

(2) Excited utterance. A statement relating to a

startling event or condition made while the declarant

was under the stress of excitement caused by the

event or condition.

(3) Then existing mental, emotional, or

physical condition. A statement of the declarant’s

then existing state of mind, emotion, sensation, or

physical condition, such as intent, plan, motive,

design, mental feeling, pain, and bodily health. A

statement of memory or belief offered to prove the

fact remembered or believed is included in this

exception only if it relates to the execution,

revocation, identification, or terms of declarant’s will.

Pa.R.E. 803.[5] See Commonwealth v. Gray, 867 A.2d

560 (Pa.Super. 2005), appeal denied, 583 Pa. 694, 879

____________________________________________

4

Rule 801 was recently rescinded and replaced by a revised version,

effective March 18, 2013. The relevant language in the new rule is

substantially the same as in the former rule.

5

Rule 803 was also rescinded and replaced by a revised version, effective

March 18, 2013. The relevant language in the new rule is substantially the

same as in the former rule.

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A.2d 781 (2005) (applying “present sense impression”

exception to hearsay rule only if declarant had no

opportunity to form purpose of misstating observation).

See Commonwealth v. Hood, 872 A.2d 175, 181

(Pa.Super. 2005), appeal denied, 585 Pa. 695, 889 A.2d

88 (2005) (stating “excited utterance” exception to

hearsay rule admits statements made while declarant was

under stress of excitement caused by event or condition

related to startling event); Commonwealth v. Carmody,

799 A.2d 143 (Pa.Super. 2002) (describing excited

utterance as “a spontaneous declaration by a person

whose mind has been suddenly made subject to an

overpowering emotion caused by some unexpected and

shocking occurrence, which that person had just

participated in or closely witnessed, and made in reference

to some phase of that occurrence which he perceived, and

this declaration must be made so near the occurrence both

in time and place as to exclude the likelihood of its being

emanated in whole or in part from his reflective faculties”).

Commonwealth v. Levanduski, 907 A.2d 3, 13-15 (Pa.Super. 2006) (en

banc), appeal denied, 591 Pa. 711, 919 A.2d 955 (2007).

Statements not excluded by the hearsay rule remain inadmissible as

evidence if the statements violate the Sixth Amendment to the United States

Constitution. See Commonwealth v. Allshouse, 614 Pa. 229, 36 A.3d

163 (2012). We observe:

The Sixth Amendment to the United States Constitution

guarantees that “[i]n all criminal prosecutions, the accused

shall enjoy the right…to be confronted with the witnesses

against him.” U.S. Const., amend. VI. This constitutional

protection is known as the Confrontation Clause. In 1980,

the United States Supreme Court, in Ohio v. Roberts,

448 U.S. 56 [100 S.Ct. 2531, 65 L.Ed.2d 597] (1980) held

that the Confrontation Clause did not bar admission of an

unavailable witness's statement against a criminal

defendant, provided the statement was surrounded by

“adequate indicia of reliability.” 448 U.S. at 66, 100 S.Ct.

2531. Such indicia existed when the testimony being

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considered either fit within a “firmly rooted hearsay

exception,” or contained “particularized guarantees of

trustworthiness.” Id.

* * *

[The Court in Crawford v. Washington, 541 U.S. 36, 124

S.Ct. 1354, 158 L.Ed.2d 177 (2004)] held the

Confrontation Clause prohibits out-of-court testimonial

statements by a witness, regardless of whether the

statements are deemed reliable by the trial court, unless

(1) the witness is unavailable, and (2) the defendant had a

prior opportunity to cross-examine the witness:

Where nontestimonial hearsay is at issue, it is wholly

consistent with the Framers’ design to afford the

States flexibility in their development of hearsay

law—as does Roberts, and as would an approach

that exempted such statements from Confrontation

Clause scrutiny altogether. Where testimonial

evidence is at issue, however, the Sixth Amendment

demands what the common law required:

unavailability and a prior opportunity for cross-

examination. Id. (emphasis added).

The Crawford Court expressly declined, however, to

explain the distinction between testimonial and

nontestimonial statements, stating “[w]e leave for another

day any effort to spell out a comprehensive definition of

‘testimonial.’ Whatever else the term covers, it applies at a

minimum to prior testimony at a preliminary hearing,

before a grand jury, or at a former trial; and to police

interrogations.” Id. (footnote omitted).

Two years after the Supreme Court’s Crawford decision,

the Court had the opportunity to clarify the difference

between testimonial and nontestimonial hearsay in Davis

v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165

L.Ed.2d 224 (2006). At issue in the consolidated appeal in

Davis were two separate statements. The first was a

statement made by a victim of spousal abuse to a 911

operator; the second was a wife’s statement to police

officers dispatched to investigate a domestic disturbance,

set forth in a battery complaint. In finding the statement

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to the 911 operator nontestimonial, but the wife’s

statement to the police officers testimonial, the Davis

Court set forth the following test for determining whether

statements are testimonial or nontestimonial:

Statements are nontestimonial when made in the

course of police interrogation under circumstances

objectively indicating that the primary purpose of the

interrogation is to enable police assistance to meet

an ongoing emergency. They are testimonial when

the circumstances objectively indicate that there is

no such ongoing emergency, and that the primary

purpose of the interrogation is to establish or prove

past events potentially relevant to later criminal

prosecution. Id. at 822, 126 S.Ct. at 2266.

Allshouse, supra at 241-44, 36 A.3d at 170-72.

Instantly, Westfield West’s statement to the 911 operator was an out-

of-court statement offered for the truth of the matter asserted. The

statement, however, described events and conditions while Mr. West

perceived them. Specifically, Mr. West made the statements to the 911

Operator to assist in an ongoing emergency involving an attack on his sister.

Thus, the 911 tape fell under the present sense impression exception to the

rule against hearsay and was admissible as a non-testimonial statement

under Crawford.

In his second issue, Appellant argues the Commonwealth’s key

witnesses’ testimony at trial was full of discrepancies and inconstancies

which raised substantial questions regarding Appellant’s guilt. Appellant

contends the failure of the detectives to conduct DNA tests on the victim’s

clothing did not support the jury’s finding that Appellant was guilty beyond a

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reasonable doubt. Appellant submits the verdict was against the weight of

the evidence. Appellant concludes the court erred when it denied relief on

this claim, and Appellant is entitled to a new trial. We disagree.

We observe:

The weight of the evidence is exclusively for the

finder of fact who is free to believe all, part, or none

of the evidence and to determine the credibility of

the witnesses. An appellate court cannot substitute

its judgment for that of the finder of fact. Thus, we

may only reverse the…verdict if it is so contrary to

the evidence as to shock one's sense of justice.

Commonwealth v. Small, 559 Pa. 423, [435,] 741 A.2d

666, 672–73 (1999). Moreover, where the trial court has

ruled on the weight claim below, an appellate court’s role

is not to consider the underlying question of whether the

verdict is against the weight of the evidence. Rather,

appellate review is limited to whether the trial court

palpably abused its discretion in ruling on the weight

claim.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011), appeal

denied, 615 Pa. 783, 42 A.3d 1059 (2012).

Instantly, the Commonwealth presented testimony from Victim,

witnesses, police officers, and detectives. The jury had the opportunity to

assess the credibility of the witnesses and consider all the evidence

presented. Specifically, the jury was presented with the testimony of two

witnesses who identified Appellant as the perpetrator of the crimes. Further,

the jury heard the detectives testify why they saw no reason to conduct DNA

testing on Victim’s shirt. Given the evidence at trial, we see no reason to

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disturb the court’s decision to deny relief on Appellant’s weight claim. See

Devine, supra.

In his third issue, Appellant argues Dr. Ziv’s testimony did not provide

sufficient evidence that Appellant is an SVP. Appellant avers his offense did

not involve multiple victims, unnecessary means, or unusual cruelty.

Appellant contends he had no prior convictions for sexual offenses, and

Victim’s age did not demonstrate pedophilia. Appellant submits the

Commonwealth’s evidence was legally insufficient to show Appellant is an

SVP. Appellant concludes he is entitled to revocation of his status as an

SVP. We disagree.

In Commonwealth v. Prendes, 97 A.3d 337 (Pa.Super. 2014), this

Court observed:

“To deem an individual [an SVP], the Commonwealth must

first show [the individual] ‘has been convicted of a sexually

violent offense as set forth in [section 9799.14]….’”

Commonwealth v. Askew, 907 A.2d 624, 629 (Pa.Super.

2006), appeal denied, 591 Pa. 709, 919 A.2d 954 (2007).

See also 42 Pa.C.S.A. § 9799.12. “Secondly, the

Commonwealth must show that the individual has ‘a

mental abnormality or personality disorder that makes

[him] likely to engage in predatory sexually violent

offenses.’” Askew, supra. When the Commonwealth

meets this burden, the trial court then makes the final

determination on the defendant's status as an SVP.

Commonwealth v. Kopicz, 840 A.2d 342, 351 (Pa.Super.

2003).

An SVP assessment is not a trial or a separate criminal

proceeding that subjects the defendant to additional

punishment. Commonwealth v. Howe, 842 A.2d 436,

445–46 (Pa.Super. 2004). SVP status, therefore, does not

require proof beyond a reasonable doubt; the court

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decides SVP status upon a show of clear and convincing

evidence that the offender is, in fact, an SVP.

Commonwealth v. Killinger, 585 Pa. 92, 104, 888 A.2d

592, 600 (2005).

Rule 702 of the Pennsylvania Rules of Evidence provides:

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by

knowledge, skill, experience, training, or education

may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other

specialized knowledge is beyond that possessed by

the average layperson;

(b) the expert’s scientific, technical, or other

specialized knowledge will help the trier of fact to

understand the evidence or to determine a fact in

issue; and

(c) the expert’s methodology is generally accepted

in the relevant field.

Comment:

Pa.R.E. 702 states that an expert may testify in the

form of an “opinion or otherwise.” Much of the

literature assumes that experts testify only in the

form of an opinion. The language “or otherwise”

reflects the fact that experts frequently are called

upon to educate the trier of fact about the scientific

or technical principles relevant to the case.

Pa.R.E. 702. “An expert may base an opinion on facts or

data in the case that the expert has been made aware of

or personally observed. If experts in the particular field

would reasonably rely on those kinds of facts or data in

forming an opinion on the subject, they need not be

admissible for the opinion to be admitted.” Pa.R.E. 703;

In re D.Y., 34 A.3d 177, 182–83 (Pa.Super. 2011), appeal

denied, 616 Pa. 638, 47 A.3d 848 (2012). “If the expert

states an opinion the expert must state the facts or data

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on which the opinion is based.” Pa.R.E. 705 and Comment

(explaining otherwise inadmissible facts and data

supporting expert opinion are considered only to explain

basis for expert's opinion, not as substantive evidence).

“Once expert testimony has been admitted, the rules of

evidence then place the full burden of exploration of facts

and assumptions underlying the testimony of an expert

witness squarely on the shoulders of opposing counsel’s

cross-examination.” In re D.Y., supra at 183. Opposing

counsel bears the burden of exposing and exploring “any

weaknesses in the underpinnings of the expert’s opinion.”

Id.

“With regard to the various assessment factors…, 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. The factors are not a checklist with

each one weighing in some necessary fashion for or

against SVP designation.” Commonwealth v. Brooks, 7

A.3d 852, 863 (Pa.Super. 2010), appeal denied, 610 Pa.

614, 21 A.3d 1189 (2011). Thus, “[t]he Commonwealth

does not have to show that any certain factor is present or

absent in a particular case.” Id. Moreover, “the absence

of an interview does not preclude the ability to evaluate

the offender's behavior through available history for

characteristics similar or dissimilar to the criteria set forth

in the law for defining a sexually violent predator.”

Commonwealth v. Woods, 909 A.2d 372, 381

(Pa.Super. 2006), appeal denied, 591 Pa. 714, 919 A.2d

957 (2007). Likewise, “to carry its burden of proving that

an offender is an SVP, the Commonwealth is not obliged to

provide a clinical diagnosis by a licensed psychiatrist or

psychologist…” Commonwealth v. Conklin, 587 Pa. 140,

158, 897 A.2d 1168, 1178 (2006). Additionally, the

statute requires all state, county, and local agencies,

offices or entities to provide copies of records and

information as requested by the SOAB [Sexual Offenders

Assessment Board] in connection with an SVP assessment.

42 Pa.C.S.A. § 9799.24(c). Importantly, the primary

purpose of the registration requirements is to help ensure

the safety of the public, not to punish the offender.

Commonwealth v. Carter, 821 A.2d 601, 606 (Pa.Super.

2003) (holding SOAB expert can review confidential

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psychiatric examinations performed when defendant was

juvenile to make SVP assessment).

Prendes, supra at 358-59.

Instantly, Appellant stipulated Dr. Barbara Ziv, a Board certified

psychiatrist working with the SOAB, was qualified to do the SVP evaluation.

Dr. Ziv testified that Appellant’s antisocial traits in combination with his

victimization of a stranger are associated with recidivism. Utilizing the

statutory factors, Dr. Ziv assessed Appellant and determined he exhibited

behaviors, characteristics, and a personality disorder, which made him likely

to reoffend. Dr. Ziv opined Appellant qualified as an SVP. After hearing the

testimony of a qualified expert, who stated the grounds for her opinions, the

court resolved Appellant’s SVP status. We see no reason to disturb this

decision. Accordingly, we affirm the judgment of sentence.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 10/10/2014

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