Com. v. Rugg, P.

J-S01011-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

PATRICK LEROY RUGG, :

:

Appellant : No. 458 WDA 2014

Appeal from the Judgment of Sentence entered on July 30, 2013

in the Court of Common Pleas of Cambria County,

Criminal Division, No. CP-11-CR-0001342-2010

BEFORE: GANTMAN, P.J., JENKINS and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED FEBRUARY 19, 2015

Patrick Leroy Rugg (“Rugg”) appeals from the judgment of sentence

imposed after a jury convicted him of four counts of involuntary deviate

sexual intercourse with a child (“IDSI”), and one count each of trafficking of

persons, indecent assault, endangering the welfare of a child, and corruption

of minors.1 We affirm the convictions, vacate the judgment of sentence, and

remand for resentencing.

1

See 18 Pa.C.S.A. §§ 3123(b), 3002(a), 3126(a)(7), 4304(a)(1),

6301(a)(1). Regarding Rugg’s conviction of trafficking of persons in June

2012, effective on September 2, 2014, the former Chapter of the Crimes

Code concerning this offense was repealed and replaced with a new Chapter.

See id. § 3001 et seq.; see also id. § 3011(b) (codifying the new offense of

trafficking in minors).

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The trial court has set forth the relevant history underlying this appeal

in its Pa.R.A.P. 1925(a) Opinion, which we incorporate herein by reference.

See Trial Court Opinion, 5/20/14, at 1-2.2

On appeal, Rugg presents the following issues for our review:

1. Whether the trial court abused its discretion by

conducting the competency hearing of the child

victim-witness in the presence of the jury[,] and by

summarily precluding the production of evidence to

expand such competency hearing to investigate taint?

2. Whether the trial court abused its discretion in

denying [Rugg’s] Motion for a new trial based on the

weight of the evidence inasmuch as the trial court

deprived [Rugg] of full and effective cross-

examination of the victim[,] whose evidence had been

shaped?

3. Whether the trial court erred by denying [Rugg’s

Motion for] judgment of acquittal on the count … of

trafficking of persons inasmuch as the evidence did

not suffice to prove all of the elements of the offense?

4. Whether the trial court erred by the “sexually violent

predator” [hereinafter “SVP”] determination inasmuch

as the evidence presented by the Commonwealth did

not suffice to prove all of the elements of [SVP] status

by clear and convincing evidence?

5. Whether the sentencing court erred by imposing 10-

year mandatory minimum terms[,] pursuant to 42

Pa.C.S. § 9718(a)(1)[,] for every conviction of [IDSI,]

in contravention of the constitutionally-protected right

to a jury trial and due process, resulting in an illegal

sentence?

2

Following the trial court’s reinstatement of Rugg’s appeal rights, nunc pro

tunc, on March 11, 2014, Rugg timely filed his Notice of Appeal.

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6. Whether the sentencing court abused its discretion in

imposing sentence by running all of the terms for

[IDSI] consecutively, resulting in a non-individualized,

de facto life sentence[,] contrary to the Sentencing

Code?

Brief for Appellant at 10-11 (emphasis and capitalization omitted, issues re-

numbered for ease of disposition).

Rugg first argues that the trial court erred and deprived him of a fair

trial by conducting the competency hearing of “the thirteen-year-old victim

… in the jury’s presence[,3] and [by] preclud[ing] [] Rugg from meeting the

threshold to expand the competency hearing to investigate taint[,]” i.e.,

whether the victim’s testimony was unduly influenced by third parties who

interviewed the victim during the investigation. Id. at 22 (footnote added).

Rugg points out that the trial court concedes in its Pa.R.A.P. 1925(a) Opinion

that it should have conducted the competency hearing of the minor victim

outside of the presence of the jury. Brief for Appellant at 23; see also Trial

Court Opinion, 5/20/14, at 9; Commonwealth v. Moore, 980 A.2d 647,

653 (Pa. Super. 2009) (holding that because the victim “was only thirteen

years old when she testified at trial[,”] “the trial court should have held a

competency hearing outside of the presence of the jury.”). Rugg further

argues that the trial court erred, and violated the dictates of the

Pennsylvania Supreme Court in Commonwealth v. Delbridge, 855 A.2d 27

(Pa. 2003), “by [] ruling[,] prior to the competency hearing[,] that [] Rugg

3

Prior to the victim’s testimony at trial, the trial court asked him questions

pertaining to whether he understood the difference between a truth and a

lie, and his obligation to tell the truth. See N.T., 6/25/12, at 82-83.

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had not presented some evidence of taint to allow an expanded inquiry into

taint ….” Brief for Appellant at 24 (citing Delbridge, 855 A.2d at 40 (stating

that “[d]uring the hearing[,] the party alleging taint bears the burden of

production of evidence of taint and the burden of persuasion to show taint

by clear and convincing evidence.”) (emphasis supplied by Rugg)).

The determination of a witness’s competency rests within

the sound discretion of the trial court. The decision of the trial

court will not be disturbed absent a clear abuse of that

discretion; consequently[,] our standard of review of rulings on

the competency of witnesses is very limited indeed.

In Pennsylvania, the general rule is that every witness is

presumed to be competent to be a witness. However, young

children must be examined for competency pursuant to the

following test: (1) The witness must be capable of expressing

intelligent answers to questions; (2) The witness must have

been capable of observing the event to be testified about and

have the ability to remember it; and, (3) An awareness of the

duty to tell the truth. An allegation of taint centers on the

second element of the above test. Where an allegation of taint

is made before trial[,] the appropriate venue for investigation

into such a claim is a competency hearing. A competency

hearing is centered on the inquiry into the minimal capacity of

the witness to communicate, to observe an event and accurately

recall that observation, and to understand the necessity to speak

the truth.

Commonwealth v. Davis, 939 A.2d 905, 906-07 (Pa. Super. 2007)

(citations, quotation marks and ellipses omitted); see also Delbridge, 855

A.2d at 39-40.

“In order to trigger an investigation of competency on the issue of

taint, the moving party must show some evidence of taint. Once some

evidence of taint is presented, the competency hearing must be expanded to

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explore this specific question.” Delbridge, 855 A.2d at 40. This Court has

explained that

[w]hen determining whether a defendant has presented “some

evidence” of taint, the court must consider the totality of the

circumstances surrounding the child’s allegations. Some of the

factors that courts have deemed relevant in this analysis include

the age of the child, whether the child has been subject to

repeated interviews by adults in positions of authority, and the

existence of independent evidence regarding the interview

techniques utilized.

Moore, 980 A.2d at 652 (citations and some quotation marks omitted).

In its Pa.R.A.P. 1925(a) Opinion, the trial court thoroughly addressed

Rugg’s claim and explained its reasons for determining that it does not

entitle him to relief. See Trial Court Opinion, 5/20/14, at 8-11. The trial

court’s analysis is supported by the law and the record; therefore, we affirm

on this basis with regard to Rugg’s first issue. See id.4

Next, Rugg contends that the trial court abused its discretion by

denying his Motion for a new trial based on the weight of the evidence. See

4

As an addendum, we observe that there is no merit to Rugg’s claim that

the trial court “precluded [him] from meeting the threshold to expand the

competency hearing to investigate taint[.]” Brief for Appellant at 22.

Rather, the trial court found, and the record supports that Rugg had failed to

meet his burden of production under Delbridge to overcome the

presumption of the victim’s competency, so as to trigger an expanded

competency hearing on the issue of taint. See Trial Court Opinion, 5/20/14,

at 10-11; see also Commonwealth v. Cesar, 911 A.2d 978, 985-86 (Pa.

Super. 2006) (holding that the appellant did not present evidence of taint,

as the minor witness continually stated that she remembered the critical

events independently). Additionally, we determine that the trial court’s

minor procedural error in conducting the competency hearing in the

presence of the jury does not constitute reversible error, as there is no

indication that same prejudiced Rugg or deprived him of a fair trial. See

Moore, 980 A.2d at 658.

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J-S01011-15

Brief for Appellant at 19-22. Specifically, Rugg asserts, he “was deprived of

full and effective cross-examination of the child-victim, [] whose testimony

had been shaped by the police, social workers and other professionals who

interviewed him after [] Rugg’s arrest” (hereinafter collectively referred to as

“the interviewing professionals”). Id. at 19; see also id. at 21-22 (listing

the interviewing professionals who allegedly “shaped” the victim’s

testimony).

Our standard in reviewing a weight of the evidence claim is well-

settled:

Appellate review of a weight claim is a review of the exercise of

discretion, not of the underlying question of whether the verdict

is against the weight of the evidence. Because the trial judge

has had the opportunity to hear and see the evidence presented,

an appellate court will give the gravest consideration to the

findings and reasons advanced by the trial judge when reviewing

a trial court’s determination that the verdict is against the weight

of the evidence. One of the least assailable reasons for granting

or denying a new trial is the lower court’s conviction that the

verdict was or was not against the weight of the evidence and

that a new trial should be granted in the interest of justice.

Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and

citations omitted); see also Commonwealth v. Sanchez, 36 A.3d 24, 27

(Pa. 2011) (stating that “[r]elief on a weight of the evidence claim is

reserved for extraordinary circumstances, when the jury’s verdict is so

contrary to the evidence as to shock one’s sense of justice and the award of

a new trial is imperative so that right may be given another opportunity to

prevail.” (citation omitted)).

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Initially, as addressed above concerning Rugg’s first issue, Rugg failed

to demonstrate that the victim’s testimony was unduly tainted by the

interviewing professionals. Further, Rugg’s defense counsel did, in fact,

cross-examine the victim concerning matters that allegedly showed that the

interviewing professionals had “shaped” the victim’s testimony, including,

inter alia, (a) the victim’s use of the word “defendant” when referring to

Rugg; (b) the victim’s psychological and behavioral issues; (c) the victim’s

truthfulness; and (d) the discussion between the victim and the prosecutor

prior to trial. See N.T., 6/25/12, at 104-09, 114, 117.

In connection with his weight claim, Rugg also challenges the trial

court’s pretrial ruling that the defense was precluded from discovery of the

following information because it was privileged: (1) the Assistant District

Attorney’s interview notes prepared while speaking with one of the

interviewing professionals; and (2) the victim’s medical/psychiatric records.

See Brief for Appellant at 20-21. This distinct claim is not a challenge to the

weight of the evidence, and Rugg has waived it by failing to preserve it in his

Rule 1925(b) Concise Statement. See Commonwealth v. Lord, 719 A.2d

306, 309 (Pa. 1998) (holding that “[a]ny issues not raised in a 1925(b)

statement will be deemed waived.”); see also Pa.R.A.P. 1925(b)(4)(vii)

(providing that “[i]ssues not included in the Statement … are waived.”).

Based upon the foregoing, the jury’s verdict is not so contrary to the

evidence as to shock our sense of justice, and we discern no abuse of

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discretion by the trial court in rejecting Rugg’s challenge to the weight of the

evidence.

In his third issue, Rugg asserts that the trial court erred by failing to

grant his Motion for judgment of acquittal on the charge of trafficking of

persons because the evidence did not establish that he “did traffic or

knowingly attempt to traffic another person (as the term ‘traffics’ is defined

by [former Crimes Code section] 3001)[,] and that he knew that the other

person would be subjected to forced labor or services (as the term ‘forced

labor or services’ is defined by [former section] 3001).” Brief for Appellant

at 25. Rugg points out that the victim testified that he was “uncomfortable”

and scared” during Rugg’s repeated sexual assaults. Id. at 26 (quoting

N.T., 6/25/14, at 96, 99). According to Rugg, “[f]eelings of discomfort and

fear do not … suffice to prove subjection to forced labor or services for

purposes of a conviction of 18 Pa.C.S. § 3002(a).” Brief for Appellant at 26.

In its Pa.R.A.P. 1925(a) Opinion, the trial court set forth the standard

of review and statutory provisions, and determined that the Commonwealth

had established all of the elements of trafficking of persons beyond a

reasonable doubt. See Trial Court Opinion, 5/20/14, at 5-7. We affirm

based on the trial court’s sound rationale with regard to this issue. See id.

Next, Rugg argues that the trial court erred in determining that he is

an SVP, since the Commonwealth had failed to present sufficient evidence to

support this designation. See Brief for Appellant at 27-33.

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In reviewing a claim that the evidence was insufficient to support an

SVP designation, we utilize the following standard of review:

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 [SVP] hearing[,] … the court shall determine

whether the Commonwealth has proved by clear and convincing

evidence that the individual is a [SVP]. 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. Brooks, 7 A.3d 852, 860 (Pa. Super. 2010) (citation

omitted).

Rugg argues as follows:

Paramount among the indicia of clear and convincing

evidence[, to support an SVP classification,] is that it be direct.

See Commonwealth v. Plucinski, 868 A.2d 20, 25 (Pa. Super.

2005) [(overruled on other grounds by Commonwealth v.

Morgan, 16 A.3d 1165, 1173 (Pa. Super. 2011)).]

Distinguishing the expert testimony of [the defense’s witness,]

Scott J. Scotilla, Ph.D. [“Dr. Scotilla”], the psychologist who

examined [] Rugg and testified for him at the SVP determination

hearing, from that of [the Sexual Offender Assessment Board

(“SOAB”) member who evaluated Rugg, Herbert E. Hays

(“Hays”)], is that Dr. Scotilla employed recognized, objective

psychological testing, such as the [Minnesota Multiphasic

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Personality Inventory (“MMPI”)5], in rendering his conclusions[,]

which would qualify as direct. In contrast, [] Hays relied on the

conviction[s], which, because [Hays] was not present [at trial]

and had no transcripts, was the opposite of direct.

The SVP court’s determination that [] Rugg was an SVP

was not supported by clear and convincing evidence. [] Hays …

offered only conclusions based on the conviction[s], not the

examination, of [] Rugg[,] while … Dr. Scotilla offered an expert

opinion based on testing and examination.

Brief for Appellant at 32-33 (footnote added, some citations omitted).

The trial court issued a separate Opinion on the matter of Rugg’s SVP

classification, thoroughly set forth the applicable law, and determined that

the evidence, including Hays’s testimony and assessment, established that

Rugg met the requirements of an SVP. See Trial Court Opinion, 6/21/13, at

7-11. Our review confirms that the trial court’s rationale is supported by the

record and the law. We additionally observe that the trial court stated as

follows in a separate part of its Opinion concerning his challenge to Hays’s

SVP assessment:

[Rugg] cites no case law or statutory authority for the

assertion that a [SOAB] member performing an SVP assessment

is required to rely on transcripts. The SVP assessment at bar

sets forth that [] Hays relied on, inter alia, an interview with

[Rugg], Pennsylvania Childline Records, the [criminal]

information, the verdicts, the affidavit of probable cause, the

incident investigation report, and a transcript of witness

testimony. Accordingly, the [trial c]ourt finds that [] Hays relied

on sufficient facts and data … in preparing his SVP assessment.

… [Regarding Rugg’s] claim that [Hays’s] SVP assessment

was improper because [Rugg] was determined to be an [SVP]

based solely on his conviction of a crime fitting the definition of

5

The MMPI is the most widely used standardized psychometric test of adult

personality and psychopathology.

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pedophilia[,] … th[e trial c]ourt determined that the SVP

assessment was supported by sufficient foundation. … []

Hays’[s] SVP assessment clearly considers the fourteen factors

outlined by the [Megan’s Law] statute. 42 Pa.C.S.A. § 9795.4(b)

(current version 42 Pa.C.S.A. § 9799.24(b)).

Id. at 4-5 (citations to record omitted). Because we determine that the trial

court’s rationale is sound, and the court properly found that the

Commonwealth had proved by clear and convincing evidence that Rugg

meets the requirements of an SVP, we affirm on this basis. See id. at 4-5,

7-11.

In his fifth issue, Rugg argues that the sentencing court imposed an

illegal sentence when it sentenced him to a mandatory minimum prison term

of ten years, pursuant to 42 Pa.C.S.A. § 9718(a)(1),6 on each of his four

IDSI convictions. See Brief for Appellant at 34-35. Specifically, Rugg

argues as follows:

The application of section 9718(a)(1)’s 10-year mandatory

minimum term to each of [Rugg’s IDSI convictions] … implicated

Alleyne v. United States, 133 S. Ct. 2151 ([] 2013), requiring

submission of the fact triggering a mandate[, i.e., in the instant

case, whether the victim was under 16 years of age,] to the jury

as an element of “a new, aggravated crime[.]” Id. at 2161. …

Because [] Rugg’s sentence imposed a mandatory minimum

term as a sentencing factor[,] rather than as an element of the

crime proved to the jury beyond a reasonable doubt, such

sentence was illegal, as set forth in Alleyne.

6

Section 9718(a)(1) provides, in relevant part, as follows: “(1) A person

convicted of the following offenses when the victim is less than 16 years of

age shall be sentenced to a mandatory term of imprisonment as follows: …

18 Pa.C.S. 3123 (relating to involuntary deviate sexual intercourse) -- not

less than ten years.” 42 Pa.C.S.A. § 9718(a)(1).

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Brief for Appellant at 34-35 (ellipses, capitalization and paragraph break

omitted). Upon review of recent case law, we must agree that the

sentencing court imposed an illegal sentence.

In Commonwealth v. Wolfe, 2014 PA Super 288 (Pa. Super. 2014),

a panel of this Court held that the same IDSI statutory subsection under

which Rugg was sentenced, 42 Pa.C.S.A. § 9718(a)(1), is unconstitutional

under Alleyne and its progeny. Wolfe, 2014 PA Super 288 at **12, 16

(collecting cases and holding that although “the additional fact triggering the

mandatory sentence[, i.e., the victim being less than 16 years of age,] is

also contained as an element within [] subsection [3123(b),] the IDSI

statute under which Appellant was convicted[,]” the panel was bound to

conclude that subsection 9718(a)(1) is void based on the prior decision of

the en banc Court in Commonwealth v. Newman, 2014 PA Super 178 (Pa.

Super. 2014), and observing that “Newman stands for the proposition that

mandatory minimum sentence statutes in Pennsylvania of this format are

void in their entirety.”). Accordingly, we must vacate Rugg’s illegal

judgment of sentence and remand for resentencing.

Concerning Rugg’s final issue, wherein he raises a challenge to the

discretionary aspects of his sentence, we will not address this issue, since

we are remanding for resentencing.

Convictions affirmed. Judgment of sentence vacated. Case remanded

for resentencing consistent with this Memorandum. Superior Court

jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 2/19/2015

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APPEARANCES:

For the Commonwealth: TAMARA R. BERNSTEIN, ESQUIRE

Assistant District Attorney

For the Defendant: THOMAS W. DICKEY, ESQUIRE

**************

STATEMENT IN SUPPORT OF ORDERS PURSUANT TO

PENNSYLVANIA RULE OF APPELLATE PROCEDURE 1925(a)

FLEMING, J., May 19, 2014. Pursuant to Pennsylvania Rule of Appellate Procedure

1925(a), the trial court submits the following Statement in Support of Orders dated June 25,

2012; June 21, 2013; and December 27,2013.

BACKGROUND

The Commonwealth charged Defendant Patrick L. Rugg with the following eight counts

by Amended Information dated June 20, 2012: (1) through (4) Involuntary Deviate Sexual

Intercourse with a Child under the age of 13, a felony of the first degree (18 PA.C.S.A. §

3123(b)); (5) Trafficking of Persons, a felony of the first degree (18 PA.C.S.A. § 3002(a)); (6)

Indecent Assault, a felony of the third degree (18 PA.C.S.A. § 3126(a)(7)); (7) Endangering the

Welfare of a Child, a felony of the third degree (18 PA.C.S.A. § 4304(a)(1)); and (8) Corruption

of Minors, a misdemeanor of the first degree (18 PA.C.S.A. § 6301 (a)(1)). This Court

conducted a jury trial from June 25 to June 27, 2012. At trial, the Commonwealth presented

testimony from numerous witnesses, including an eyewitness and the minor victim, Z.B. N.T.

Circulated 01/27/2015 11 :43 AM

(

(June 25, 2012), pp. 43-75 (testimony of the eyewitness); pp. 85-121 (testimony of Z.B.). The

jury unanimously found Defendant guilty of all eight counts. See N.T. (June 27, 2012), pp.

231-234.

Defendant's convictions on four counts of Involuntary Deviate Sexual Intercourse with

a Child triggered obligations under Pennsylvania's Megan's Law Statute. 42 Pa.C.S.A. §§

9799.10, et. seq. On February 26, 2013, the Court conducted a Hearing pursuant to Section

9799.24(e) to determine if Defendant met the definition of a sexually violent predator as set

forth in Section 9799.12. By Order dated June 21, 2013, the Court found the Commonwealth

met its burden of proving by clear and convincing evidence that Defendant is a sexually violent

predator. ORDER DATED JUNE 21, 2013, ~ 3. On July 30,2013, the Court sentenced Defendant

as follows: Counts One through Four (Involuntary Deviate Sexual Intercourse with a Child),

consecutive sentences of ten to twenty years imprisonment; Count Five (Trafficking of

Persons), twenty-four to forty-eight months imprisonment, concurrent to Count One; Count Six

(Indecent Assault), twelve to twenty-four months imprisonment, concurrent to Count One;

Count Seven, (Endangering the Welfare of a Child), twelve to twenty-four months

imprisonment, concurrent to Count One; and Count Eight (Corruption of Minors), six to twelve

months imprisonment, concurrent to Count One. SENTENCE DATED JULY 30, 2013.

Defendant filed an Optional Post-Sentence Motion on August 9, 2013. The Court

entertained oral argument on August 27, 2013 and requested the parties to submit briefs. The

Court denied Defendant's Motion by Order dated December 27,2013. ORDER DATED DEC. 27,

2013, ~~ 1-6. ON MARCH 19,2014, Defendant filed a Notice of Appeal. On April W, 2014,

Defendant timely filed a Concise Statement Pursuant to Pa.R.A.P. 1925(b), setting forth eight

purported errors. CONCISE STATEMENT, ~~ 1-8.

Purported Error No.1

(O~15e<':'t-tfl'IIC

Defendant argues the imposition of.6@H-Oanem sentences on Counts One through Four

(Involuntary Deviate Sexual Intercourse with a Child) was excessive and an abuse of

discretion. CONCISE STATEMENT, ~ 1. To this end, Defendant argues the sentence amounted to

life imprisonment; the sentence was not an individualized sentence; and the sentence was

2

Circulated 01/27/2015 11 :43 AM

inconsistent with protection of the public, the gravity of the offenses as it relates to impact on

the life of the victim and on the community, and Defendant's rehabilitative needs. Id.

When a defendant challenges discretionary aspects of a court's sentence, the following

standard of review applies:

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.

Commw. v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (internal citations omitted). When

imposing a sentence, the trial court must consider, inter alia, "the protection of the public, the

gravity of the offense as it relates to the impact on the life of the victim and on the community,

and the rehabilitative needs of the defendant." 42 Pa.C.S.A. § 9721(b) ["Sentencing Code"].

In the case at bar, the trial court was persuaded by the heinous nature of the crimes,

Z.B.'s age during the period of victimization, Defendant's lack of remorse, and Defendant's

refusal to acknowledge that the events occurred. N.T. (July 30,2013), pp. 16-17. Specifically,

this Court noted that rehabilitation was unlikely because Defendant did not acknowledge his

affliction; did not accept responsibility for his actions; and suffers from pedophilia, a lifelong

condition. Id. at p. 17. Regarding the impact on the victim, Z.B.' s mother testified as follows:

Ever since that day we received a phone call for Ebensburg CYS, our lives have

been turned upside down. [Z.B.] was only ten years old when [Defendant] took

away his youth and forced [Z.B.] to deal with adult issues. Since then, [Z.B.] has

been institutionalized three times in various psyche [sic] wards. He's also been

placed in a youth home for boys for 28 days. [Z.B.] had several behavioral

problems to the point of being placed in Children's Adolescent Partial Hospital

for two years instead of regular school. [Z.B.] is finally back on track. He's back

in regular school, he's doing well, but he still struggles with everyday activities

and he still has trust issues that he has been placed in emotional learning support

classes when he is in school. This has not only affected [Z.B.], it affected all of

us and my family as well.

Id. at p. 12. This Court carefully considered the factors set forth in Section 9721 (b) of the

Sentencing Code. Thus, Defendant's first purported error must be denied.

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.'

Next, this Court addresses Defendant's argument that the sentence is excessive because

it results in a de facto "lifetime sentence." CONCISE STATEMENT, ~ 1. Defendant cites the

Superior Court decision of Commw. v. Coulverson, 34 A.3d 135, 141 (Pa. Super. 2011), for the

principle that a sentence in the standard range may nonetheless be excessive if it is unlikely to

end during the defendant's natural life span. DEFENDANT'S BRIEF ON POST-SENTENCE

MOTIONS, p. 3. The defendant in Coulverson cited a multitude of factors the trial court did not

consider, such as "the troubled circumstances of his background, his homelessness and

destitution, the absence of a prior record score or any record of delinquency, and his remorse

and cooperation with the police." 34 A.2d at 143.

Unlike the defendant in Coulverson, Defendant in the instant matter does not allege

specific facts in support of his assertion that the Court failed to consider the factors set forth in

Section 9721(b) of the Sentencing Code. CONCISE STATEMENT, ~ 1. On the contrary, the facts in

COli) !je~"h'vc:...

the case at bar support the Court's imposition of.concummt sentences on Counts One through

Four for the reasons set forth above. See DISCUSSION OF PURPORTED ERROR No.1, supra, at pp.

3-4.

Purported Error No.2

Next, Defendant argues the Commonwealth failed to prove, beyond a reasonable doubt,

the elements necessary for imposing a ten year mandatory minimum sentence on the convictions

for Involuntary Deviate Sexual Intercourse with a Child. CONCISE STATEMENT, ~ 2.

Section 9718(a)(1) of the Sentencing Code imposes a ten year minimum term of

imprisonment, intet alia, where the victim of Involuntary Deviate Sexual Intercourse is under

the age of 16. 42 PA.C.S.A. § 9718(a)(1). Defendant asserts that, pursuant to the United States

Supreme Court decision in Alleyne v. United States, 133 S.Ct. 2151 (2013), the victim's age was

an element that should have been submitted to the jury. DEFENDANT'S BRIEF ON POST-

SENTENCE MOTIONS, pps. 2-4.

The defendant in Alleyne was convicted of using or carrying a firearm in relation to a

crime of violence, which carried a mandatory minimum sentence if the defendant "brandished"

the firearm during commission of the offense. 133 S.Ct. 2151, 2155 (2013). The jury found the

4

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\

defendant guilty but did not indicate on the verdict slip that the firearm had been "brandished"

during the offense. Id at 2156. The sentencing judge applied the mandatory minimum

sentence. Id The Supreme Court vacated and remanded the sentence, reasoning as follows:

Because the fact of brandishing aggravates the legally prescribed range of

allowable sentences, it constitutes an element of a separate, aggravated offense

that must be found by the jury, regardless of what sentence the defendant might

have received had a different range been applicable.

Alleyne v. Us., 133 S.Ct. 2151, 2153 (2013).

In the case at bar, Defendant was charged with four counts of Involuntary Deviate

Sexual Intercourse with a Child, which were alleged to have occurred between April 1, 2009

and June 10,2010. AMENDED INFORMATION FILED FOR RECORD ON JUNE 20, 2012. "A person

commits involuntary deviate sexual intercourse with a child, a felony of the first degree, when

the person engages in deviate sexual intercourse with a complainant who is less than 13 years of

age." 18 PA.C.S.A. § 3123(b). Z.B.'s age at the time of the crime was a specific element of the

offense. Id. Z.B. testified that his date of birth is September 11, 1998. N.T. (June 25, 2012), p.

85. Thus, Z.B.'s age on April 1,2009 was approximately 10Y2, and his age on June 10,2010,

was less than 12. The jury was instructed they must find Z.B. to be under the age of 13 at the

time of the offenses to find Defendant guilty. N.T. (June 27,2012), pp. 217-218. The jury

found Defendant guilty of four counts of Involuntary Deviate Sexual Intercourse with a Child.

N.T. (June 27,2012) pp. 217-218.

By convicting Defendant of Involuntary Deviate Sexual Intercourse with a Child, the

jury found the victim to be under the age of 13. This necessarily means the child is also under

the age of 16, the requirement for imposition of a mandatory minimum sentence pursuant to

Section 9718(a)(1). 42 Pa.C.S.A. § 9718(a)(1). The "fact" which Defendant argues constitutes

an "element" necessary for imposing the mandatory minimum, i. e., the victim is under the age

of 16, was determined by the jury. For these reasons, Defendant's second error must fail.

Purported Error No.3

Next, Defendant argues the Commonwealth's evidence was insufficient to prove the

following elements of Count Five, Trafficking of Persons: (1) that Defendant "did traffic or

5

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knowingly attempt to traffic another person;" and (2) that Defendant "knew that the other

person would be subjected to forced labor or services." CONCISE STATEMENT, ,-r 3.

The Superior Court outlined the following standard for reviewing a challenge to the

sufficiency of evidence:

In reviewing the sufficiency of the evidence, we view all the evidence admitted at

trial in the light most favorable to the Commonwealth, as verdict winner, to see

whether there is sufficient evidence to enable [the factfinder] to find every

element of the crime beyond a reasonable doubt. This standard is equally

applicable to cases where the evidence is circumstantial rather than direct so long

as the combination of the evidence links the accused to the crime beyond a

reasonable doubt. Although a conviction must be based on "more than mere

suspicion or conjecture:' the Commonwealth need not establish guilt to a

mathematical certainty.

Commw. v. McFadden, 850 A.2d 1290, 1293 (Pa. Super. 2004) (internal citations and

quotations omitted).

Purusant to the Pennsylvania Crimes Code, "a person commits an offense [of

Trafficking of Persons] if the person knowingly traffics or knowingly attempts to traffic

another person, knowing that the other person will be subjected to forced labor or services. ,- 18

PA.C.S. § 3002. The term "traffic" is defined as "recruits, entices, harbors, transports or

provides or obtains by any means." 18 Pa.C.S. § 3001. The term "forced labor or services" is

defined as:

(1) attempts to cause, causes or by threat of physical menace puts another

person in fear of bodily injury;

(2) physically restrains or threatens to physically restrain another person

unlawfully;

(3) abuses or threatens to abuse the law or legal process;

(4) possesses except as required by Federal immigration law or regulation,

destroys, conceals, removes or confiscates any actual or purported

passport or other immigration document of another person, or any other

actual or purported govermnent identification document of another person;

or

(5) engages in criminal coercion of another person.

18 Pa.C.S § 3001.

In the case at bar, Defendant transported Z.B. from Ford City, Pennsylvania, to

Defendant's home in Ebensburg, Cambria County, thus satisfying the definition of "traffics."

6

CircuJated 01/27/2015 11 :43 AM

N.T. (June 25, 2012), pp. 154-155. While at Defendant's home in Ebensburg, Defendant

subjected Z.B. to forcible sexual intercourse. Id. at pp. 97-100. Z.B. described feeling

"uncomfortable, scared." Id. at p. 99. Clearly Defendant's actions constituted "forced labor or

services," as Defendant caused Z.B. to be placed in fear of bodily injury and Defendant

physically retrained Z.B. for the unlawful purpose of engaging in involuntary deviate sexual

intercourse. 18 Pa.C.S. § 3001(1), (2). The evidence presented at trial was sufficient to sustain

the jury's guilty verdict on Trafficking of Persons. Accordingly, Defendant's third alleged error

must fail.

Purported Error No.4

Next, Defendant argues the Commonwealth's evidence was insufficient to prove the

following elements of Count Seven, Endangering the Welfare of a Child: (1) that Defendant

was acting as a "parent, guardian or other person supervising the welfare of a child under 18

years of age;" and (2) that Defendant engaged in a "course of conduct of endangering the

welfare ofa child." CONCISE STATEMENT, ~ 4.

The Court notes that the standard of review discussed above applies equally to

Defendant's fourth purported error. See, DISCUSSION OF PURPORTED ERROR No.3, Supra at pp.

6-7. The Pennsylvania Crimes Code defines Endangering the Welfare of a Child as follows:

A parent, guardian or other person supervising the welfare of a child under 18

years of age, or a person that employs or supervises such a person, commits an

offense if he knowingly endangers the welfare of the child by violating a duty of

care, protection or support.

18 PA.C.S.A. § 4304(a)(1).

Z.B.'s mother testified as follows: "[Defendant] was technically a godfather to [Z.B.].

[Defendant] was going to be if something would happen to me, he was going to be the one to

take over .... His relationship with Z.B. at the time was great. It was perfect." N.T. (June 25,

2012), pp. 151-152. Furthermore, Z.B.'s mother described Defendant as Z.B.'s "father, like a

father like figure for him." Id. at p. 157. Justin Cann, Defendant's roommate, described the

. relationship between Defendant and Z.B. as follows: "It was just a very nurturing relationship.

I mean, Z.B. didn't have his father in his life and [Defendant] was pretty much taking that role

7

fZ\rculated 01/27/2015 11 :43 A

in his life." N.T. (June 25, 2012), p. 215. Z.B. often referred to Defendant as "dad" and Z.B.

testified that he "looked to [Defendant] as my dad." Id. at p. 91. Moreover, Z.B. would spend

weeks in the summer in Defendant's care. N.T. (June 25, 2012), p. 154. Clearly, Defendant

was acting as an "other person supervising the welfare of a child."

Next, whether there is a "course of conduct" is a question of fact that must be alleged in

the information, evidence of which must be elicited at trial and submitted to the jury. Cammw.

v. Papaw, 844 A.2d 13, 16 (Pa. Super. 2004)). In the case at bar, the Commonwealth alleged a

"course of conduct" in the Amended Information. AMENDED INFORMATION DATED JUNE 20,

2012. Z.B. clearly described two separate events during which Defendant engaged in

Involuntary Deviate Sexual Intercourse with Z.B. N.T. June 25, 2012), pp. 94-100. The jury

was instructed that "course of conduct" is defined as "a pattern of actions composed of more

than one act over a period of time, however short, evidencing a continuity of conduct." N.T.

(June 27, 2012), p. 221. The testimony was sufficient to show a course of conduct, and the jury

was properly instructed regarding this element. For these reasons, Defendant's fifth purported

error must fail.

Purported Error Nos. 5 and 6

Next, Defendant argues the Court erred in determining Z.B. was "competent to testify

and had not been tainted." CONCISE STATEMENT, ,-r 6. The issue of Z.B.'s possible taint was

first raised in Defendant's Supplemental Onmibus Pre-Trial Motion for Relief. SUPPLEMENTAL

OMNIBUS PRE-TRIAL MOTION FOR RELIEF FILED AUG. 1,2011, p. 2, ,-r,-r 6-15. At a September

20, 2011 Hearing, defense counsel requested the Court to defer ruling on the issue of taint

pending counsel's review of Z.B's Children & Youth Services records. N.T. (Sept. 20, 2011),

p. 8; ORDER DATED June 17, 2011, p. 2, ,-r 2. Thereafter, the issue was raised again in

Defendant's Second Supplemental Omnibus Pretrial Motion for Relief, filed on June 4, 2012.

SECOND SUPPLEMENTAL OMNIBUS PRETRIAL MOTION FOR RELIEF FILED JUNE 4,2012, pp. 5-7,

,-r,-r 9-14. The Court denied Defendant's request for a taint hearing by Order dated June 25,

2012. ORDERDATEDJUNE25,2012.

8

Circulated 01/27/2015 11 :43 A

Upon further examination, the Court concedes it should have conducted a competency

hearing outside the presence of the jury since Z.B. was less than 14 years old at the time of

trial. Commw. v. Shearer, 828 A.2d 383 (Pa. Super. 2003), appeal granted, 856 A.2d 834 (Pa.

2004); N.T. (June 25, 2012), p. 85. However, this Court elected not to remand for a

competency hearing when, based on the record, the child was clearly competent; Defendant did

not suffer prejudice; and remanding for a competency hearing would be a futile act. Commw.

v. Moore, 980 A.2d 647,658 CPa. Super. 2009).

In determining the competency of a child under 14 years old, the following IS

considered:

(1) such capacity to communicate, including as it does both an ability to

understand questions and to frame and express intelligent answers, (2) mental

capacity to observe the occurrence itself and the capacity of remembering 1-vhat it

is that she is called to testify about, and (3) a consciousness of the duty to speak

the truth.

Rosche v. McCoy, 156 A.2d 307, 310 (Pa. 1959) (emphasis in original). In the instant matter,

Z.B.'s testimony proves he was a competent witness. First, Z.B. understood the questions

posed to him and expressed intelligent answers. See generally N.T. (June 25, 2012), pp. 83-

121. Second, Z.B. exhibited the mental capacity to observe the event and remember what he

was called to testify about. For example:

Attorney Bernstein: Do you remember what you were wearing when [Defendant]

first came into your room?

Z.B.: My pj's.

Attorney Bernstein: And what happened to your pajamas?

Z.B.: He took them off.

Attorney Bernstein: He being Mr. Rugg, Patrick?

Z.B.: Yes.

Attorney Bernstein: I want you to tell this jury what the defendant did to you that

made you uncomfortable in your bedroom.

Z.B.: Hold on a minute. He had put his middle in my butt.

Attorney Bernstein: And when you say his middle, what part of the body is that?

Z.B.: (Indicating).

Attorney Bernstein: And what do you do with your middle?

Z.B.: Go to the bathroom.

Attorney Bernstein: So he put his middle in your butt?

Z.B.: Yes.

9

Circulated 01/27/2015 11 :43 A

Attorney Bernstein: And how did that make you feel?

Z.B.: Uncomfortable.

Attorney Bernstein: Now, you said he put his middle in your butt. How about, did he

do anything to your middle?

Z.B.: Yes.

Attorney Bernstein: Can you please tell the jury what he did?

Z.B.: He put his mouth on my middle.

Attorney Bernstein: He put his mouth on your middle?

Z.B.: Yes.

Attorney Bernstein: Once he put his mouth on there, what did he do?

Z.B.: Moved his head up and down.

Attorney Bernstein: [Z.B.J, when he put his middle in your butt, did something

happen to his middle?

Z.B.: Yes. Stuff came out.

Attorney Bernstein: Stuff came out? What happened to the stuff?

Z.B.: It was still in my butt.

Attorney Bernstein: Now, did you ever see it or feel it when you were at the Ford City

house?

Z.B.: Yes.

Attorney Bernstein: Did you see it?

Z.B.: Yes.

Attorney Bernstein: Can you please describe it to the jury?

Z.B.: It was like mucus.

N.T. (June 25, 2012), pps. 94-97. Third, Z.B. indicated he understood the difference between

the truth and a lie. N.T. (June 25, 2012), pp. 83-85. For the reasons set forth above, Z.B. was

competent to testify, and remanding this matter for competency proceedings would be a futile

act.

Furthermore, the concerns underlying the competency test "become less relevant as the

witness's age increases, ultimately being rendered totally irrelevant as a matter of law by age

fourteen." Commw. v. Judd, 897 A.2d 1224, 1229 CPa. Super. 2006). In the instant matter,

Z.B. was born on September 11, 1998, and he reached the age of 14 less than three months after

the trial. N.T. (June 25, 2012), p. 85. For this reason, remanding this issue would not only be

futile, but it would be irrelevant as a matter of law.

Next, the Court addresses Defendant's claim that Z.B. was incompetent because he was

a tainted witness. "In order to trigger an investigation of competency on the issue of taint, the

moving party must show some evidence of taint. Once some evidence of taint is presented, the

10

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competency hearing must be expanded to explore this specific question." Commw. v.

Delbridge, 855 A.2d 27, 40-41 CPa. 2003). To suggest taint, Defendant relies on the fact that

Z.B. was interviewed during the investigation. N.T. (June 19, 2012), p. 3. During argument,

defense counsel petitioned the Court to release additional records that he believed may be

relevant to the issue of taint. Id at pp. 3-4. Defendant's request for additional records belies

1

his assertion that he presented evidence of taint sufficient to trigger a taint hearing.

Additionally, unlike the defendant in Delbridge, Defendant in the case at bar failed to present

evidence of suggestive interview techniques, vilification of the accused, or interview bias. 855

A.2d at p. 41. Moreover, the children at issue in Delbridge were much younger than Z.B., i.e.,

six and four at the time of the incident. !d. For these reasons, Defendant's sixth purported

error should be denied.

Purported Error No.7

Next, Defendant argues the Court erred in finding sufficient evidence to prove

Defendant is a sexually violent predator. CONCISE STATEMENT, ~ 7. This Court relies on its

Opinion dated June 21, 2013 regarding this issue.

Purported Error No.8

Finally, Defendant argues this Court erred in denying the suppression motion set forth

in his Third Supplemental Omnibus Pretrial Motion for Relief, where Defendant asked for

suppression of a CD containing various images seized from Defendant's laptop. CONCISE

STATEMENT, ~ 8; THIRD SUPPLEMENTAL OMNIBUS PRETRIAL MOTION FOR RELIEF, pp. 1-2, ~ 1-

3. This Court entertained argument on Defendant's Motion to Suppress on June 19, 2012.

N.T. (June 19,2012), pp. 18-24. By Order dated June 22, 2012, the Court denied Defendant's

Motion to Suppress. ORDER DATED JUNE 22, 20 12, ~ 1.

A search and seizure must be initiated pursuant to a warrant except, inter alia, when a

person voluntarily consents to a search. Commw. v. Edwards, 735 A.2d 723, 725 CPa. Super.

1 Moreover, the Court noted that Defendant requested additional records on the eve of jury selection; and the Court

was not inclined to order a taint hearing based on the evidence submitted by Defendant. N.T. (June 19,2012), p.

14.

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Ci.fculated 01/27/2015 11 :43 A

1999) (internal citations omitted). For the consent to be valid, it must be "unequivocal,

specific, and voluntary." Id. (internal citations omitted). In the case at bar, a search of

Defendant's laptop was performed pursuant to a "Waiver of Rights and Consent to Search"

signed by Defendant. COURT Ex. 1. Defendant does not argue the consent was invalid; rather,

Defendant avers the information sought to be suppressed was outside the scope of the consent.

The description of items to be searched for and seized included "images, photographs,

videos, etc of any illegal pornography." COURT Ex. 1. In addition, the Waiver contained a

provision permitting seizure of the following:

(l) any contraband, the fruits of a cnme or things otherwise criminally

possessed.

(2) property which is or has been used as the means of committing a

criminal offense.

(3) property which constitutes evidence of the commission of a

criminal offense.

COURT Ex. 1. The search revealed non-pornographic images of Defendant and Z.B., which

the prosecution sought to introduce at trial for the purposes of establishing the relationship

between them. N.T. (June 19,2012), pp. 20, 23.

Defendant was charged with, inter alia, Endangering the Welfare of a Child pursuant to

18 Pa.C.S.A. § 4304(a)(l). The offense is defined as follows:

A parent, guardian or other person supervising the welfare of a child under 18

years of age, or a person that employs or supervises such a person, commits an

offense if he knowingly endangers the welfare of the child by violating a duty of

care, protection or support.

Id. The seized photographs depict Defendant and Z.B. engaged in various activities, including

one photograph of Defendant and Z.B. in bed together. N.T. (June 25, 2012), COMMW. Ex.

18. The photographs were relevant to demonstrate an element of the crime, namely, that

Defendant acted as a "guardian or other person supervising the welfare of a child under 18

years of age." Accordingly, the photographs are "property which constitutes evidence of the

commission of a criminal offense." COURT Ex. 1.

12

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\, .

CONCLUSION

For the reasons set forth above, the Trial Court respectfully requests that the Orders

dated June 25, 2012; June 21,2013; and December 27, 2013; as well as the convictions and

sentences imposed; are AFFIRMED.

RESPECTFULLY SUBMITTED:

Linda Rovder Fleming, J.

COPIES TO:

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Circulated 01/27/2015 11 :43 AM

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(PRtl'-IT NAMEl IADDRESSI

·,NA·TURE) ICITY,STATE)

COURT'S

EXHIBIT NO. _1___

TIME.::: IDENTIFICATION/EVIDENCE

DKT. # 13,-,; 2- 20 10 "11\11.:::

DATE:

IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, ~ENNSYLVANIA

CRIMINAL DIVISION

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COMMONWEALTH OF PENNSYLVANIA: No. 1342-2010 3:. <- r'l

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PATRICK L. RUGG, 7- :::~ :x f"li

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Defendant. -OW N

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**************

APPEARANCES:

For the Commonwealth: TAMARA R. BERNSTEIN, ESQUIRE

Assistant District Attorney

For the Defendant: THOMAS W. DICKEY, ESQUIRE

**************

OPINION

FLEMING, J., June 21, 2013. This Court is called upon to decide two issues: (1) the

admissibility of expert reports introduced at a February 26, 2013 Sexually Violent Predator

Determination Hearing; and (2) whether the Commonwealth met its burden qf proving by clear

and convincing evidence that Defendant, Patrick L. Rugg, is a Sexually Violent Predator. The

parties were directed to submit briefs addressing the ad.missibility of the expert reports. N.T.

(February 26, 2013), pp. 77-78. On March 26, 2013, Defendant filed a "Brief on SVP

Determination Hearing." On March 28, 2013, the Commonwealth filed its "Memorandum

Regarding SVP Hearing."

FACTUAL BACKGROUND

On June 27,2012, ajury found Defendant guilty of four counts of Involuntary Deviate

Sexual Intercourse with a Child, one count of Trafficking of Person, one count of Indecent

Assault, one count of Endangering the Welfare of Children, and one count of Corruption of

Circulated 01/27/2015 11 :43 AM

I

\

Minors. This Court required Defendant to undergo a sexually violent predator assessment in

accordance with 42 Pa.C.S.A. §979S.4(a) (May 29, 2007) (current version at 42 Pa.C.S.A.

§9799.24 (Dec. 20, 2012)).1 ORDER DATED July 20,2012.

Herbert Hays, a member of the Sexual Offender Assessment Board ["SOAB"],

performed the assessment of Defendant on September 13, 2012. N.T. (February 26, 2013),

Comm. Ex. 1. Mr. Hays concluded that Defendant meets the criteria to be classified as a

sexually violent predator. Id., p. 7. On September 20, 2012, the Commonwealth requested a

hearing pursuant to 42 Pa.C.S. §979S.4(e)(1) (current version at 42 Pa.C.S.A. §9799.24(e)(1)).

On September 24,2012, the Court granted the Commonwealth's request for a hearing. ORDER

DATED SEPTEMBER 24, 2012. On October 19, 2012, Defendant filed a Motion Requesting

Assessment Expert. Following a hearing, the Court.determined Defendant to be indigent and

appointed Dr. Scott Scotilla to be the defepse expert. ORDER DATED DECEMBER 7,2012. This

Court conducted the sexually violent predator hearing on February 26,2013.

LEGAL DISCUSSION

Admissibility of the Sexually Violent Predator Assessment prepared by Mr. Hays

Defendant argues against admission of the Sexually Violent Predator ["SVP"]

Assessment and admission of Mr. Hays as an expert. DEFENDANT'S BRIEF, pp. 7-9.

Specifically, Defendant argues that (1) the Commonwealth offered Defendant as "an expert in

the field of fotensic examination, specifically whether an individual meets the criteria as a

sexually violent predator," which is at odds with statutory language; (2) Mr. Hays lacked a

foundation by relying on the guilty verdicts without transcripts of the proceedings; (3) the

process employed by Mr. Hays was "tautological" in that "the convictions equaled pedophilia;

I The Court references the applicable version of the statute at the time of the proceeding.

2

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( (

pedophilia equaled mental abnormality; pedophilia equaled no cure; no cure equaled re-

offense; and the sum equaled sexually violent predator." DEFENDANT'S BRIEF, pp. 7-9.

The Commonwealth asserts that the SVP Assessment was properly admitted, as Mr.

Hays considered all fourteen factors mandated by 42 Pa.C.S.A. §9795.4(b) (current version 42

Pa.C.S.A. 9799.24(b)). COMMW. BRIEF, p. 1. Furthermore, the Commonwyalth argues that a

sexually violent predator designation is not based on a finding that a specific number of the

factors are relevant. COMMW. BRIEF, pp. 1-2 (citing C;ommw. v. Meals, 912 A.2d 213 (Pa.

2005); Commw v. Brooks, 7 A.3d 852 (Pa. Super. 2010)). Therefore, the Commonwealth

asserts the SVP Assessment is proper as Mr. Hays reviewed and addressed all fourteen factors.

COMMW. BRIEF, pp. 1-2.

The Court turns to the first of Defendant's arguments, i.e., that the Commonwealth's

acceptance of Mr. Hays as an expert is at odds with the statute. DEFENDANT'S BRIEF, p. 7. Mr.

Hays is a current member of the Sexual Offender Assessment Board. N.T. (February 26,

2013), p. 5. Mr. Hays has conducted 976 sexually violent predator assessments for the courts.

N.T. (February 26, 2013), p. 4. Mr. Hays has testified as an expert in the field of forensic

examination of sexually violent predators in 24 Pennsylvania counties. N.T. (February 26,

2013), pp. 5-6. By statute, Mr. Hays is an expert in"the behavior and treatment of sexual

offenders." 42 Pa.C.S.A. §9799.3(a) (current version 42 Pa.C.S.A. §9799.35(a)). Additionally,

through his extensive experience, Mr. Hays qualifies as an expert in "forensic examination,

specifically regarding assessment of sexual offenders." N.T. (February 26,2013), pp. 10-11;

P A.R.E. 702. Accordingly, Mr. Hays possesses the knowledge, skill, trcUning, and" experience

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necessary to opine whether Defendant meets the criteria of a sexually violent ·predator. PA.R.E.

Next, Defendant argues that the Syp Assessment lacked the proper foundation, as Mr.

Hays relied on Defendant's conviction without reviewing transcripts from the criminal

proceedings. DEFENDANT'S BRIEF, p. 7. Pennsylvania Rule of Evidence 703 provides as

follows:

The facts or data in the particular case upon which an expert bas~s an opinion or

inference may be those perceived by or made known to the expert at or before the

hearing. If of a type reasonably relied upon by experts in the particular field in

forming opinions or inferences upon the subject, the facts or data need not be

admissible in evidence

Defendant cites no case law or statutory authority for the assertion that a Board member

performing an SVP Assessment is required to rely on transcripts. The SVP Assessment at bar

sets forth that Mr. Hays relied on, inter alia, an· interview with Defendant, Pennsylvania

Childline Records, the information, the verdicts, the affidavit of probable cause, the incident

investigation report, and a transcript of witness testimony. N.T. (February 26, 2013), Ex. 1, p.

1. Accordingly, the Court finds that Mr. Hays relied on sufficient facts and data to satisfy the

requirements of Pennsylvania Rule of Evidence 703 in preparing his SVP Assessment.

Finally, the Court addresses Defendant's claim that the SVP Assessment was improper

because Defendant was determined to be a sexually violent predator based solely on his

conviction of a crime fitting the definition of pedophilia. DEFENDANT'S BRIEF, pp. 7_8.3

Defendant ostensibly relies on Rule of Evidence 703; however, this Court d~termined that the

2 The Court finds no relevance in Defendant's statement that Mr. Hays did not use his background in psychology

when assessing Defendant. Commw. v. Conklin, 897 A.2d 1168, 1176 (Pa. 2006) (finding that the statute does not

require a psychiatrist or psychologist to perform a sexually violent predator assessment).

3 The Court will address this argument in terms of the weight the Court should afford to the Assessment in the

Court's SVP determination below.

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SVP Assessment was supported by a sufficient foundation. See supra, pp. 4-5. Moreover, the

Board member performing the assessment is not required to find all fourteen factors relevant,

nor is the member required to give weight to all fourteen factors. Comm}li. v. Meals, 912 A.2d

213 (Pa. 2005); Commw v. Brooks, 7 A.3d 852 (Pa. Super. 2010). Mr. Hays' SVP Assessment

clearly considers the fourteen factors outlined by the statute. 42 Pa.C.S.A. §9795.4(b) (current

version 42 Pa.C.S.A. §9799.24(b». The Court concludes that the Commonw~aIth established a

sufficient foundation for admitting the SVP Assessment and, further, that the SVP Assessment

complied with the relevant statutory criteria.

For the reasons set forth above, the Court AFFIRMS admission of the SVP

Assessment into evidence.

Admissibility ofDr. Scott Scotilla 's Report

We tum next to the admissibility of Dr. Scott Scotilla's report. Dr. Scotilla was

qualified by the Court as an expert in the field of psychology. N.T. (February 26, 2013), p. 49.

The Commonwealth argues that Dr. Scotilla's report is irrelevant because (1) Dr. Scotilla does

not possess the necessary education, training, or experience regarding sex offenders and

assessments; (2) Dr. Scotilla did not rely on the fourt~en statutory factors in performing the

assessment; (3) Dr. ScotiIla did not accept Defendant's conviction as a conclusive

detemlination of his guilt; and (4) Dr. Scotilla testified that the diagnosis of pedophilia hinged

on whether Defendant's appeal is won or lost.. COMMW. BRIEF, pp. 2-4. Defendant counters

that the testimony of Dr. Scotilla is admissible because it focuses on negating the diagnosis of

pedophilia and the likelihood ofre-offense. DEFENDANT'S BRIEF, pp. 9-ll.

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The Commonwealth proved by clear and convincing evidence that Defendant is a Sexually

Violent Predator.

The Commonwealth has the burden of proving by clear and convincing evidence that

Defendant meets the criteria to be classified as a sexually violent predator. 42 Pa.C.S.A.

§9799.24(a). The clear and convincing evidence standard is described as an "intermediate

test," i. e., more exacting than a preponderance of the evidence standard, but1ess exacting than

proof beyond a reasonable doubt. Meals, 912 A.2d at 219.

Pursuant to the SVP statute, the Commonwealth must first show that Defendant has

been convicted of a sexually violent offense as set forth in 42 Pa.C.S.A. §9799.14. Next, the

Commonwealth must prove that Defendant has a mental abnormality or personality disorder

that makes him likely to engage in predatory sexually violent offenses. 42 Pa.C.S.A. §9799.l2;

Commw. v. Whanger, 30 A.3d 1212, 1214 (Pa. Super. 2011). "Mental a~normalityl' is defined

as "a congenital or acquired condition of a person that affects the emotional or volitional

capacity of the person in a manner that predisposes that person to the commission of criminal

sexual acts to· a degree that makes the person a menace to the health and safety of other

persons." 42 Pa.C.S.A. §9799.l2. "Predatory" is defined as "an act 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 victimization." 42 Pa.C.S.A. §9799.12.

In a sexually violent predator determination, the following factors should be considered:

(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.

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(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 ~he

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. .

(ii) Use of illegal drugs.

(iii) Any mental illness, mental disability or mental abnormality.

(iv) Behavioral characteristics that contribute to the individual's

conduct.

(4) Factors that are suppOlied in a se~ual offender assessment field as criteria

reasonably related to the risk ofreoffense.

42 Pa.C.S.A. §9799.24(a).

Defendant's conviction on, inter alia, Involuntary Deviate Sexual Intercourse qualifies

him for SVP assessment under the statute. Defendant was convicted prior to the effective date

of the current version of the Registration of Sexual Offenders Statute, i.e., December 20, 2012.

42 Pa.C.S.A. §§9799.10-9799.41. The Court notes that Defendant would be subject to

assessment under a reading of both the current and former versions of the statute. 42 Pa.C.S.A.

§9799.24(a) (current version); 42 Pa.C.S.A. §9795.4 (former version). Under the current

version, Involuntary Deviate Sexual Intercourse is a Tier III sexual offense that falls under the

definition of "sexually violent offense." 42 Pa.C.S.A. §9799.12 (defining "sexually violent

offense" as a Tier I, II or III offense as listed in §9799.14); 42 Pa.C.S.A. §9799.14(d)(4) (listing

Involuntary Deviate Sexual Intercourse as a Tier III offense). Likewise, under the prior version

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of the statute, an individual convicted of Involuntary Deviate Sexual Intercourse is also subject

to assessment. 42 Pa.C.S.A. §9795.4; 42 Pa.C.S.A. §9795.1(b)(2)(i).

Next, the Court concludes the Commonwealth met its burden of proving that Defendant

suffers fro1ll a mental abnormality or personality disorder. Mr. Hays testified that pedophilia

meets the definition of a mental abnormality. N.T. (February 26, 2013), pp. 32-33; see also

Commw v. L eddington , 908 A.2d 328, 335 (Pa. Super. 2006) (describing pedophilia as a

"mental abnormality in the most decisive sense of the term"). At the SVP Hearing, Mr. Hays

described a diagnosis of pedophilia as involving the following: (l) a person 16 years of age or

older; (2) who has a sexual attraction (fantasies, urges or behaviors) towards a child; (3) where

the child is more than five years younger than the individual in question; (4) and where the

behavior persists over a period of at least six months. N.T. (February 26, :2013), pp. 17-18. 5

Mr. Hays testified that offenders who have male victims are twice as likely to reoffend as

offenders who have female victims. N.T. (February 26, 2013), p. 18. Further, Mr. Hays

testified that, according to professional literature and the DSM-IV, pedophilia is a lifetime

condition with no cure. N.T. (February 26, 2013), p. 20. 6

The following factors weigh in favor of qualifying Defendant as a sexually violent

predator: First, Defendant engaged in a sexual relationship with the victim for a period of

fourteen months. ASSESSMENT, p. 4, ~ 3. The victim was between 10 and 11 years old at the

time of the sexual contact. Id, p. 4, ~ 5. At the time of the sexual contact, Defendant was

between 30 arid 31 years of age. Id, p. 5, ~ 1. Defendant gained access to the victim by

gaining the trust of his mother, who allowed Defendant to provide child care. Id, p. 5, ~ 4.

5Dr. Scotilla did not dispute this description of a pedophilia diagno~is. N.T. (February 26,2013), pp. 61-62.

6Defendant offered no evidence to rebut these statements. In fact, Dr. Scotilla agreed with Mr. Hays's definition

a

of pedophilia and his conclusion that pedophilia is mental abnormality. N.T. (February 26, 2013), p. 67.

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I

Additionally, Defendant "groomed" the victim to participate in sex acts. N.T. (February 26,

2013), p. 21.

The following factors weigh against qualifying Defendant as a sexually violent

predator: First, Defendant did not have multiple victims. ASSESSMENT, p. 3, 4J 1. Defendant

did not exceed the means necessary to achieve the offense. Id., p. 3, 4J 2. Defendant did not

display unusual cruelty during the commission of the crime. Id., p. 4, 4J 6. Defendant does not

have any prior offenses, nor has Defendant completed .any prior sentences. Id., p. 4, 4J4J 1-2.

Defendant did not use any illegal drugs in the commission of the crime. Id., p. 5, 4J 2.

Defendant does not have a record of a mental health diagnosis. Id., p. 5, 4J 3.

Defendant was convicted of engaging in oral and anal intercourse with the victim, who

was then a prepubescent child, over a period of six months. N.T. (February 26,2013), pp. 17-

18. Mr. Hays testified to a reasonable degree of professional certainty that Defendant suffers

from the mental abnormality of pedophilia and meets the criteria to be classified as a sexually

violent predator. N.T. (February 26, 2013), pp. 18-21. Dr. Scotilla agreed that the facts, as the

jury found them to exist, support a pedophilia diagnosis and that Defendant meets the definition

of a pedophile per the verdict. N.T. (February 26, 2013), pp. 61-62. However, after

performing objective tests and evaluating Defendant, . Dr. Scotilla concluded that no other

evidence ~ aside from the conviction - supports a pedophilia diagnosis. N.T. (February 26,

2013), 59. Dr. Scotilla relies on Defendant's protestations of iImocence in concluding that

Defendant's diagnosis "hinged entirely oli whether his appeal was lost or won." N.T.

(February 26,2013), p. 54.

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Based on the evidence submitted at the Sexually Violent Predator Hearing and the

statutory factors, this Court finds that Defendant meet.s the criteria for Pedophilia, Sexually

Attracted to Males. ASSESSMENT, p. 6, ~ 1. Because pedophilia qualifies as a mental

ab.n0rmality, this Court concludes the Commonwealth has met its burden of proving that

Defendant suffers from a mental abnormality. Leddington, 908 A.2d at 335. Further, Mr. Hays

testified without opposition that pedophilia is an incurable lifetime condition. N.~. (February

26,2013), p. 18. Because Defendant meets the criteria of pedophilia and because he repeatedly

assaulted the victim with no intention of stopping, the Court finds there is a likelihood of re-

offense. ASSESSMENT, p. 6, ~ 4. Finally, the Court finds that Defendant's actions meet the

definition of predatory behavior. Defendant groomed the victim and maintained a relationship

with the victim's mother by providing child care, thereby affording Defendant the opportunity

to sexually abuse victim. Id., p. 5, ~ 4; N.T. (February 26,2013), p. 20.

F Of the aforementioned reasons, this Court finds that the Commonwealth has sustained

its' burden of proving by clear and convincing evidence that Defendant is a sexually violent

predator within the meaning of the statute.

ACCORDINGL Y THE FOLLOWING ORDER IS ENTERED:

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IN THE COURT OF COMMON PLEAS OF CAMBRIA COUNTY, PENNSYLVANIA

CRIMINAL DIVISION

COMMONWEALTH OF PENNSYLVANIA: No. 1342 - 2010

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APPEARANCES:

For the Commonwealth: TAMARA R. BERNSTEIN, ESQUIRE

Assistant District Attorney

For the Defendant: THOMAS W. DICKEY, ESQUIRE

*******.*******

ORDER

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AND NOW, this 21 day of June, 2013, it is hereby ORDERED and DECREED as

follows:

1. The Sexually Violent Predator Assessment prepared by Herbert Hays, member

of the Sexual Offender Assessment Board, is ADMITTED.

2. The report prepared by defense expert, Dr. Scott ScotiIla, is ADMITTED.

3. The Commonwealth met its burden of proving by clear and convincing evidence

that Defendant is a Sexually Violent Predator within the meaning of 42 Pa.C.S.A. §§

9799.24(a), 9799.12.

BY THE COURT: