Com. v. Evans, W.

J-S68024-15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

WARREN S. EVANS, :

:

Appellant : No. 1517 EDA 2014

Appeal from the Judgment of Sentence December 19, 2013,

Court of Common Pleas, Philadelphia County,

Criminal Division at No. CP-51-CR-0014523-2011

BEFORE: BENDER, P.J.E., DONOHUE and MUNDY, JJ.

MEMORANDUM BY DONOHUE, J.: FILED DECEMBER 03, 2015

Appellant, Warren S. Evans (“Evans”), appeals from the judgment of

sentence dated December 19, 2013, following his convictions of endangering

the welfare of a child (“EWOC”), 18 Pa.C.S.A. § 4304(a), corruption of

minors (“COM”), 18 Pa.C.S.A. § 6301(a)(1), and involuntary deviate sexual

intercourse (“IDSI”) with a child under 13, 18 Pa.C.S.A. § 3123(b). For the

reasons that follow, we affirm Evans’ convictions, but remand for

resentencing on the IDSI conviction.

The Commonwealth’s case against Evans depended primarily on the

testimony of Courtney Brooks (“Brooks”). In its opinion filed pursuant to

Rule 1925(a) of the Pennsylvania Rules of Appellate Procedure, the trial

court summarized Brooks’ trial testimony as follows:

When [Brooks] was growing up, she and her

brothers lived with George Johnson at 5301 Hadfield

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Street in Philadelphia. (N.T. 8/28/12 at 11). Though

unrelated to [Brooks], Mr. Johnson was her primary

caretaker and eventually she called him "grandpop".

(Id. at 10). One of Mr. Johnson's sons, [Evans],

who the victim thought of as an "uncle", also lived

from time to time with Mr. Johnson. (Id. at 11 -12).

When [Brooks] was eight (8) years old, [Evans]

started to sexually assault her. (Id. at 12 -13).

During one assault, [Brooks] woke up to find [Evans]

watching a movie called, "The Players Club ". (Id. at

13). As [Brooks] tried to leave, [Evans] told her that

she didn't have to leave and the victim sat down on

her bed. (Id. at 14). After [Brooks] sat down,

[Evans] went to a dresser in the room and obtained

a coin. (Id.). He then turned to [Brooks], flipped

the coin in the air, and then proceeded to pull out his

penis and tell her, "You got to suck it like a lollipop."

(Id.). [Brooks] told [Evans] she didn't want to, at

which point [Evans] grabbed her head and forced his

penis into her mouth. (Id. at 15). [Brooks] said

that she didn't want to do that and got up from the

bed. (Id.). [Evans] then ordered [Brooks] to lay

down, and once she complied he proceeded to put

his mouth on her vagina. (Id. at 16). Afterwards

[Evans] put his penis between her legs, ejaculated

on her legs, and then threw her a towel. (Id.).

After [Brooks] wiped off [Evans’] semen, she told

[Evans] that she was going to tell on him, to which

[Evans] replied, "If you tell, you're going to get in

trouble and foster care is going to take you away

from your brothers." (Id. at 16-17). Terrified about

this prospect, [Brooks] did not tell Mr. Johnson about

the incident. (Id. at 16 -17, 95).

Another assault by [Evans] occurred as [Brooks] was

watching television in her brothers' room. (Id. at

18). The victim's brothers were asleep on the floor,

but [Brooks] was awake watching television when

[Evans] entered the room and tried to put his penis

into her anus. (Id. at 19). [Evans] eventually

ejaculated on the victim's legs, after which [Brooks]

asked [Evans] if she could go to the bathroom. She

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proceeded to the bathroom and wiped off the

defendant's semen. (Id. at 21). [Brooks] then went

downstairs and slept next to Mr. Johnson for the rest

of night without telling him what had happened out

of fear in getting in trouble. (Id. at 22). [Evans]

sexually assaulted [Brooks] numerous other times as

well, including one instance where he tried to play

"doctor" with her. (Id. at 23 -24).

After [Brooks] turned eleven (11) years old, she

gave a forensic interview at Philadelphia Children's

Alliance and informed authorities as to [Evans’]

crimes. (Id. at 24, 55 -56). Subsequently,

[Evans] left Mr. Johnson's home and she did not

see him again for four or five years. (Id. at 24).

When [Brooks] returned to Mr. Johnson's home,

she informed the police. (Id. at 25 -26).

Trial Court Opinion, 12/22/2014, at 3-4 (footnote omitted).

On August 28-31, 2012, the late Honorable Adam Beloff presided over

a jury trial. On August 30, 2012, the jury returned guilty verdicts on the

EWOC and COM charges, and on August 31, 2012, the jury also found Evans

guilty on the IDSI charge. The jury acquitted Evans on a charge of rape of a

child under the age of 13 (18 Pa.C.S.A. § 3121(c)). On December 19, 2013,

the Honorable Denis P. Cohen, assigned to the case following the death of

Judge Beloff, sentenced Evans to a term of incarceration: (1) of from six

and a half to thirteen years on the IDSI conviction, (2) of from one to two

years on the EWOC conviction, to run consecutively to the IDSI sentence,

and (3) of from one to two years on the COM conviction, to run

consecutively to the EWOC sentence. On April 23, 2014, Evans’ post-

sentence motion was denied by operation of law.

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On appeal, Evans raises the following six issues for our review and

determination:

1. The admissible evidence introduced during trial was

insufficient as a matter of law to establish [Evans’]

guilt beyond a reasonable doubt on the charges of

[EWOC] and [COM].

Additionally, the weight of the evidence introduced

during trial failed to establish beyond a reasonable

doubt that [Evans] was guilty of IDSI, EWOC and

COM. The evidence was so contradictory that a new

trial is required.

2. Prior to sentencing [Evans] was deemed to be a

sexually violent predator. The evidence introduced

during the hearing was insufficient to establish that

[Evans] should be classified as a SVP.

3. The trial court erred when sentencing [Evans] with

regard to his right to allocate.

4. The trial court erred in failing to grant time credit to

[Evans] for time he had spent on house arrest prior

to his sentencing.

5. The [COM] charge merges with IDSI for sentencing

purposes.

6. The trial court’s request that it be allowed to sua

sponte raise a sentencing issue and thereby have the

matter remanded for resentencing on the IDSI

charge must be denied.

Evans’ Brief at 10.

We will address Evans’ last issue first, as it requires consideration of

the precise nature of his conviction of IDSI, which in turn affects our

consideration of the remaining issues. For his sixth issue on appeal, Evans

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refers us to a footnote in the trial court’s Rule 1925(a) opinion, in which

Judge Cohen requests that we remand this case for resentencing because he

mistakenly sentenced Evans for the crime of IDSI by forcible compulsion, 18

Pa.C.S.A. § 3123(a)(1), rather than IDSI upon a child who is less than 13

years of age, 18 Pa.C.S.A. § 3123(b). Trial Court Opinion, 12/22/2014, at 2

n.4.

Evans opposes a remand, claiming that he was in fact convicted of

IDSI by forcible compulsion. Evans’ Brief at 45. Evans points out that the

Commonwealth’s original bills of information stated that he was charged with

a violation of section 3123(a)(1), and that at no time thereafter (either

before or during trial) did the trial court or the Commonwealth specify that

the actual charge being pursued was a violation of section 3123(b). Id. The

Commonwealth responds that while the bills of information identified a

violation of section 3123(a)(1), Evans was therein also provided notice of

the Commonwealth’s intention to “proceed under 18 [Pa.C.S.] §§ 3123(b),

(c) & (d)” which relate to “involuntary deviate sexual intercourse with a child

less than 13 years of age.” Commonwealth’s Brief at 36 (emphasis added).

Unfortunately, we are not in a position to review the bills of

information. Although the docket reflects that the Commonwealth filed an

information on January 6, 2012, this document is not contained in the

certified record on appeal. The case docket does reflect that the information

charged Evans with “IDSI Forcible Compulsion,” a first-degree felony under

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“18 § 3123 §§ A1.” The docket also reflects that after a preliminary hearing

in the Magistrate Court on December 23, 2011,1 Evans was “Held for Court”

on the “IDSI Forcible Compulsion” charge. The Commonwealth’s initial

criminal complaint, filed in the Magistrate Court on or around August 8,

2011, provided only that Evans was charged with, inter alia, IDSI under

section 3123, without further specificity, although it (along with the

accompanying Affidavit of Probable Cause) did make clear that the victim

was between 8 and 11 years old at the time of the offenses. Complaint,

8/8/2011, at 2; Affidavit of Probable Cause, 8/8/2011, at 2.

These vagaries aside, there is no question that at trial Evans was

convicted of the crime of IDSI of a child under 13. On the first day of trial

on August 28, 2012, Evans was arraigned on, and entered a plea of not

guilty to, IDSI of a child under 13 on that charge.

[COURT CRIER]: To the same docket number, charging

you with involuntary deviate sexual intercourse of a

child under 13, how do you plead?

[THE DEFENDANT]: Not guilty.

N.T., 8/28/2012, at 6-7. Evans was not similarly arraigned on IDSI by

forcible compulsion. At the close of the evidence, the trial court instructed

the jury on IDSI of a child under 13:

[THE COURT]: The defendant is also charged with

involuntary deviate sexual intercourse. A person

1

The case was transferred to the trial court on or about December 27,

2011.

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commits involuntary deviate sexual intercourse with

a child when the person engages in deviate sexual

intercourse with a child who is less than 13 years of

age.

N.T., 8/28/2012, at 74-75. Again, the trial court did not instruct the jury on

IDSI by forcible compulsion. Finally, the jury sheets for August 30 and 31,

2012, list “INVOLUNTARY DEVIATE SEXUAL INTERCOURSE of a CHILD

UNDER 13,” and the August 31, 2012 sheet reflects a verdict of guilty on this

crime. Verdict Report, 8/31/2012, at 1. The jury sheets do not reference

IDSI by forcible compulsion. Evans’ counsel did not assert any objection to

the nature of the IDSI charge being pursued at trial by the Commonwealth.

Accordingly, the certified record plainly demonstrates that the jury

convicted Evans of IDSI of a child who is less than 13 years of age, 18

Pa.C.S.A. § 3123(b). Any earlier references to section 3123(a)(1) in the

bills of information are of no current moment, since Evans has not raised,

either in the trial court or now on appeal, any issues relating to lack of notice

of the charges against him. Variance between an information and the proof

at trial is not fatal as long as the defendant had adequate notice of the

nature of the crime and it did not cause any prejudicial surprise.

Commonwealth v. Lohr, 468 A.2d 1375 (Pa. 1983); Commonwealth v.

Murgallis, 753 A.2d 870, 872 (Pa. Super. 2000); Commonwealth v.

Johnson, 719 A.2d 778, 783, n. 4 (Pa. Super. 1998). Evans has not

asserted any lack of adequate notice of the charges against him or any

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prejudicial surprise relating to his arraignment, trial, or conviction on the

charge of IDSI of a child under 13 years of age.

Instead, the only issue presently before us is one of sentencing. As a

result of Judge Beloff’s untimely death, Evans was sentenced by Judge

Cohen. As the transcript of the sentencing hearing and the sentencing order

both reflect, Judge Cohen mistakenly sentenced Evans for IDSI by forcible

compulsion rather than IDSI of a child under 13. N.T., 12/19/2013, at 3;

Order of Sentence, 12/19/2013, at 1. We would generally not expect that

sentences for these two IDSI crimes to be substantially different, as both are

first-degree felonies, both had the same offense gravity score (12) under the

applicable sentencing guidelines, and the trial court expressly took into

consideration the victim’s tender age when imposing sentence. N.T.,

12/19/2013, at 20-21. Nevertheless, as a technical matter, the trial court

sentenced Evans for a crime for which he was not convicted, which was an

illegal sentence because it lacked statutory authority. See, e.g.,

Commonwealth v. Bradley, 834 A.2d 1127, 1131 (Pa. 2003). This Court

may raise illegality of sentence sua sponte,2 and upon remand the trial court

2

When sentencing Evans, the trial court indicated that IDSI crimes against

children carry a mandatory minimum sentence of from five to ten years of

imprisonment. 42 Pa.C.S.A. § 9718. This Court has ruled that mandatory

minimum sentencing pursuant to section 9718 is facially unconstitutional,

per the decision of the United States Supreme Court in Alleyne v. United

States, 133 S.Ct. 2151 (2013). Commonwealth v. Wolfe, 106 A.3d 800,

801 (Pa. Super. 2014), appeal granted, 121 A.3d 433 (Pa. 2015). In the

present case, however, Judge Cohen, citing to standard guideline ranges,

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will have jurisdiction to resentence Evans to correct a “patent and obvious

mistake,” i.e., an order inconsistent with what in fact occurred in the

proceedings below. See, e.g., Commonwealth v. Borrin, 80 A.3d 1219,

1228 (Pa. 2013); Commonwealth v. Holmes, 933 A.2d 57, 59-60 (Pa.

2007); Commonwealth v. Young, 695 A.2d 414, 416-18 (Pa. Super.

1997).

For his first issue on appeal, Evans challenges the sufficiency of the

evidence to support the convictions for EWOC and COM, and that the weight

of the evidence did not support any of his convictions. We begin with his

challenges to the sufficiency of the evidence, which we review based upon

the following standard:

As a general matter, our standard of review of

sufficiency claims requires that we evaluate the

record “in the light most favorable to the verdict

winner giving the prosecution the benefit of all

reasonable inferences to be drawn from the

evidence.” Commonwealth v. Widmer, 560 Pa.

308, 744 A.2d 745, 751 (2000). “Evidence will be

deemed sufficient to support the verdict when it

establishes each material element of the crime

charged and the commission thereof by the accused,

beyond a reasonable doubt.” Commonwealth v.

Brewer, 876 A.2d 1029, 1032 (Pa. Super. 2005).

sentenced Evans on the IDSI conviction to a term of incarceration in excess

of the mandatory minimum (six and one half to thirteen years). Where a

sentencing court exceeds a mandatory minimum by applying a standard

guideline range, it has not sentenced in accordance with the applicable

mandatory minimum statute and thus the sentence is not illegal on this

ground. Commonwealth v. Shoemaker, 2015 WL 6675130, at *7 (Pa.

Super. Aug. 19, 2015) (quoting Commonwealth v. Ziegler, 112 A.3d 656,

662 (Pa. Super. 2014)). As a result, we do not remand on this basis.

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Nevertheless, “the Commonwealth need not

establish guilt to a mathematical certainty.” Id.;

see also Commonwealth v. Aguado, 760 A.2d

1181, 1185 (Pa. Super. 2000) (“[T]he facts and

circumstances established by the Commonwealth

need not be absolutely incompatible with the

defendant's innocence”). Any doubt about the

defendant's guilt is to be resolved by the fact finder

unless the evidence is so weak and inconclusive that,

as a matter of law, no probability of fact can be

drawn from the combined circumstances. See

Commonwealth v. DiStefano, 782 A.2d 574, 582

(Pa. Super. 2001).

The Commonwealth may sustain its burden by

means of wholly circumstantial evidence. See

Brewer, 876 A.2d at 1032. Accordingly, “[t]he fact

that the evidence establishing a defendant's

participation in a crime is circumstantial does not

preclude a conviction where the evidence coupled

with the reasonable inferences drawn therefrom

overcomes the presumption of innocence.” Id.

(quoting Commonwealth v. Murphy, 795 A.2d

1025, 1038–39 (Pa. Super. 2002)). Significantly, we

may not substitute our judgment for that of the fact

finder; thus, so long as the evidence adduced,

accepted in the light most favorable to the

Commonwealth, demonstrates the respective

elements of a defendant's crimes beyond a

reasonable doubt, the appellant's convictions will be

upheld. See Brewer, 876 A.2d at 1032.

Commonwealth v. Franklin, 69 A.3d 719, 722-23 (Pa. Super. 2013)

(quoting Commonwealth v. Pettyjohn, 64 A.3d 1072, 2013 49 (Pa. Super.

2013)).

The crime of EWOC is defined by statute, in relevant part, as follows:

“[a] parent, guardian or other person supervising the welfare of a child

under 18 years of age commits an offense if he knowingly endangers the

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welfare of the child by violating a duty of care, protection or support.” 18

Pa.C.S. § 4304.3 This Court has established a three-element test for EWOC:

(1) the accused was aware of his/her duty to protect the child; (2) the

accused was aware that the child was in circumstances that could threaten

the child's physical or psychological welfare; and (3) the accused has either

failed to act or has taken action so lame or meager that such actions cannot

reasonably be expected to protect the child's welfare. Commonwealth v.

Pahel, 456 159, 689 A.2d 963, 964 (Pa. Super 1997) (quoting

Commonwealth v. Cardwell, 515 A.2d 311, 315 (Pa. Super. 1986)).

On appeal, Evans contests the sufficiency of the evidence on the first

element, contending that the Commonwealth failed to prove that he was a

“caretaker” for Brooks. Evans’ Brief at 13-22. Evans directs our attention to

testimony from Brooks in which she indicated that she considered Evans to

be akin to an “uncle,” but not her caretaker. N.T., 8/28/2012, at 49-51 (“I

knew he wasn’t my caretaker.”). Evans further contends that he had no

legal obligation to care for Brooks, and that instead his father (George

Johnson, Sr.) was Brooks’ caregiver.4 Evans’ Brief at 13.

3

This is the version of section 4304 in effect at the time of Evans’ offenses.

4

Evans’ appellate brief includes a detailed description of various events and

circumstances relating to the Johnson household, including that at the time

of Brooks’ birth, her mother was having an extramarital affair with George

Johnson, Sr., that Brooks’ mother abandoned her children (including Brooks

and her brothers) at Johnson, Sr.’s home after the money from a civil suit

ran out, and that there was considerable animosity between Johnson, Sr.’s

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Contrary to Evans’ assertions, the crime of EWOC does not require

either that the defendant be the child’s “caretaker” or have any legal

responsibility as a parent or guardian. Instead, as the statutory language

makes clear, any person who supervises a child is potentially criminally

liable. In interpreting the statutory language, this Court has acknowledged

that the legislature attempted “to prohibit a broad range of conduct in order

to safeguard the welfare and security of our children.” Commonwealth v.

Brown, 721 A.2d 1105, 1106 (Pa. Super. 1998). In Brown, we explained:

In the present case, we must focus on the meaning

of the term “other person supervising the welfare of

a child” as an element of the crime in light of the

common sense of the community. In an age when

nontraditional living arrangements are commonplace,

it is hard to imagine that the common sense of the

community would serve to eliminate adult persons

residing with a non-custodial child from the scope of

a statute protecting the physical and moral welfare

of children. 18 Pa.C.S.A. § 4304 Official Comment,

1972. Accepting appellant's argument would be to

accept the idea that this statute is limited to only

children (including Evans) and Brooks and her brothers. Evans’ Brief at 13-

14. Evans’ also claims that a Department of Human Services’ investigation

concluded that he was not a caretaker for Brooks. Id. at 15.

No evidence in support of these points was introduced at trial, however, and

was not otherwise included in the certified record on appeal. Accordingly,

we will decide the issues presented on appeal without any consideration of

this information. See, e.g., Commonwealth v. Lawson, 2015 WL

6114513, at *4 (Pa. Super. July 30, 2015) (Pennsylvania appellate courts

cannot consider anything that is not included in the certified record on

appeal); In re Estate of Tigue, 926 A.2d 453, 459 (Pa. Super. 2007) (“This

Court does not rely on facts dehors the certified record.”); Commonwealth

v. Montalvo, 641 A.2d 1176, 1183 (Pa. Super. 1994) (“For purposes of

appellate review, what is not of record does not exist.”).

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those persons with permanent, temporary, or other

quasi-legal custody of children. The common sense

interpretation of the language of the statute and this

Court's recent case law do not support such a narrow

reading.

Deciding that adults who share a residence with a

child not in their legal custody are not responsible for

the welfare of that child would undermine both the

language and application of the endangering statute.

Under such a limited reading, stepparents,

grandparents, adult siblings, adult roommates, life

partners, and others could not be prosecuted for

endangering the welfare of a child. Our courts

should not and have not limited the scope of the

statute to exclude this broad and diverse category of

persons.

Brown, 721 A.2d at 1107.

More recently, in Commonwealth v. Bryant, 57 A.3d 191 (Pa. Super.

2012), we rejected out of hand the appellant’s contention that he could not

be criminally responsible for EWOC because he was not a relative or a

permanent resident of the victim’s home and thus was “not in the role of

caretaker and had no duty to protect the child.” Id. at 197. Similarly, in

Commonwealth v. Trippett, 932 A.2d 188 (Pa. Super. 2007), we affirmed

the appellant’s conviction for EWOC even though “he was not the parent or

natural guardian” of the victim and was not living in the same house. Id. at

195. We recognized that “[t]he plain language of the statute does not

indicate a person need only be a parent or guardian of a child before they

can be charged and convicted under section 4304,” and that “any ‘other

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person’ who supervises the child is eligible to be charged and convicted

under the statute.” Id.

In the present case, the Commonwealth introduced sufficient evidence

that Evans supervised Brooks for purposes of section 4304. During cross-

examination by the Commonwealth, Evans’ brother, Michael Johnson,

testified as follows:

Q. [Evans] would help your dad take care of the kids; is

that right?

A. Yes.

Q. Sometimes if your dad wasn’t there, [Evans] would

take care of things for him, including the children,

right?

A. Yes.

N.T., 12/29/2012, at 55. Similarly, Evans’ brother George Johnson, Jr.

testified that:

Q. Sometimes [Evans] would help your dad take care of

[Brooks] and her brothers; is that right?

A. Yes.

Id. at 60.

Finally, we note that Brooks’ testimony about her view of Evans as an

uncle rather than a caretaker was offered on cross-examination in relation to

her concern that Evans might have her removed from the house and

separated from her brothers if she told anyone about the molestation. N.T.,

12/28/2012, at 49-51. Read in the light most favorable to the

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Commonwealth, as our standard of review requires, Brooks was arguably

relating only her fear that Evans possessed sufficient authority to make good

on his threats, even though he technically was more like an uncle than her

primary caretaker. As such, her testimony need not be understood as a

denial that Evans ever provided supervision over her and her brothers.

The crime of COM requires proof that a person age 18 years and

above, “by any act corrupts or tends to corrupt the morals of any minor less

than 18 years of age, or who aids, abets, entices or encourages any such

minor in the commission of any crime ….” 18 Pa.C.S.A. § 6301(a)(1).

Evans argues that the Commonwealth’s evidence was insufficient to support

his conviction on this charge because he did not encourage Brooks to

commit a criminal act, and because there was no evidence that Brooks was

in fact “corrupted or tended to be corrupted” by the sexual acts at issue.

Evans’ Brief at 22.

There is no requirement of any underlying criminal activity as a basis

for COM conviction, as the statute states "by any act," not "by any criminal

act." Commonwealth v. Decker, 698 A.2d 99, 100 (Pa. Super. 1997),

appeal denied, 705 A.2d 1304 (Pa. 1998). “Corruption of a minor can

involve conduct towards a child in an unlimited number of ways. The

purpose of such statutes is basically protective in nature[, and they] cover a

broad range of conduct.” Id. at 101 (quoting Commonwealth v. Todd,

502 A.2d 631, 635 n. 2 (Pa. Super. 1985)). As such, the Commonwealth

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does not have to prove that the appellant’s actions actually corrupted the

morals of the victim, but rather only provide evidence that the appellant’s

actions “tend to have the effect of corrupting the morals of a minor.”

Commonwealth v. Slocum, 86 A.3d 272, 277 (Pa. Super. 2014). This

Court has held that the types of acts constituting “corruption” are those that

“would offend the common sense of the community and the sense of

decency, propriety and morality which most people entertain.” Decker, 698

A.2d at 100.

Presently, the Commonwealth’s evidence showed that Evans engaged

in inappropriate sexual contact with Brooks on multiple occasions. 5 Brooks

testified that the molestation caused “her whole life to change,” including

anger issues that resulted in her expulsion from school. N.T., 8/28/2012, at

25. She also indicated that Evans’ actions caused her to “hate all men for a

very long time.” Id. Accordingly, we have no basis to question the trial

court’s determination that Evans’ “heinous acts … against a young girl are

more than sufficient, when taken in the light most favorable to the verdict

5

Evans also cites to Commonwealth v. Karkaria, 612 A.2d 1167 (Pa.

1993) and related cases to argue that the evidence here was so

contradictory that the defendant’s conviction for forcible rape could not be

sustained. Evan’s Brief at 27-28. In Karkaria, however, our Supreme

Court concluded that the evidence, even when read in the light most

favorable to the Commonwealth, was so unreliable and contradictory that it

did not prove that “a single act of intercourse occurred” during the time

frame in question. Id. at 1171-72. In significant comparison, based upon

our careful review, we conclude that the Commonwealth’s evidence in this

case, including Brooks’ testimony, suffers from no similar irreconcilable

defects.

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winner, to prove [him] guilty of [COM].” Trial Court Opinion, 12/22/2014, at

7.

Evans also challenges the trial court’s determination that his

convictions were not against the weight of the evidence. Our standard of

review applicable to a challenge to the weight of the evidence is as follows.

[A] verdict is against the weight of the evidence only

when the jury's verdict is so contrary to the evidence

as to shock one's sense of justice. It is well

established that a weight of the evidence claim is

addressed to the discretion of the trial court.... The

role of the trial court is to determine that

notwithstanding all the evidence, certain facts are so

clearly of greater weight that to ignore them, or to

give them equal weight with all the facts, is to deny

justice. A motion for a new trial on the grounds that

the verdict is contrary to the weight of the evidence

concedes that there is sufficient evidence to sustain

the verdict; thus the trial court is under no obligation

to view the evidence in the light most favorable to

the verdict winner.

Significantly, in a challenge to the weight of the

evidence, the function of an appellate court ... is to

review the trial court's exercise of discretion based

upon a review of the record, rather than to consider

de novo the underlying question of the weight of the

evidence. In determining whether this standard has

been met, appellate review is limited to whether the

trial judge's discretion was properly exercised, and

relief will only be granted where the facts and

inferences of record disclose a palpable abuse of

discretion. It is for this reason that the trial court's

denial of a motion for a new trial based on a weight

of the evidence claim is the least assailable of its

rulings.

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Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

citations and quotation marks omitted).

Evans’ weight of the evidence claim depends primarily on his challenge

to the credibility of Brooks’ testimony. In his appellate brief, Evans

describes Brooks as a “fantasy laden young woman” and attempts to identify

inconsistencies and shortcomings in the substance of her testimony. Evans’

Brief at 13-30. It is not this Court’s function, however, to pass on the

credibility of trial witnesses. Rather, it was the jury’s function to evaluate

Brooks’ credibility, and to this end it was free to believe all, part, or none of

the evidence. Commonwealth v. Houser, 18 A.3d 1128, 1135-36 (Pa.

2011). In this case, Evans had a full and fair opportunity to cross-examine

Brooks and to raise for the jury’s consideration all of his reasons for

doubting her credibility. Through its guilty verdicts, the jury plainly found

Brooks’ testimony to be credible, disagreeing with Evans’ contentions to the

contrary. Based upon our review of the certified record on appeal, the trial

court did not abuse its discretion when determining that the jury's verdict is

not so contrary to the evidence that it shocks one's sense of justice. As

such, we find no palpable abuse of discretion that would necessitate a new

trial.

For his second issue on appeal, Evans challenges the sufficiency of the

evidence supporting the trial court’s ruling that he should be classified as a

sexually violent offender (SVP).

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In order to affirm an SVP designation, we, as a

reviewing court, must be able to conclude that the

fact-finder found clear and convincing evidence that

the individual is a sexually violent predator. As with

any sufficiency of the evidence claim, we view all

evidence and reasonable inferences therefrom in the

light most favorable to the Commonwealth. We will

reverse a trial court's determination of SVP status

only if the Commonwealth has not presented clear

and convincing evidence that each element of the

statute has been satisfied.

The standard of proof governing the determination of

SVP status, i.e., “clear and convincing evidence,” has

been described as an “intermediate” test, which is

more exacting than a preponderance of the evidence

test, but less exacting than proof beyond a

reasonable doubt.

***

The clear and convincing standard requires evidence

that is “so clear, direct, weighty, and convincing as

to enable the [trier of fact] to come to a clear

conviction, without hesitancy, of the truth of the

precise facts [in] issue.”

Commonwealth v. Fuentes, 991 A.2d 935, 942 (Pa. Super.) (en banc),

appeal denied, 12 A.3d 370 (Pa. 2010).

At the time of Evans’ conviction, he was subject to the assessment

provisions of the former Megan's Law, which stated, in relevant part:

After conviction but before sentencing, a court shall

order an individual convicted of an offense specified

in section 9795.1 (relating to registration) to be

assessed by the board. The order for an assessment

shall be sent to the administrative officer of the

board within ten days of the date of conviction. 42

Pa.C.S. § 9795.4(a). After the court entered such an

order, a member of the Sexual Offenders'

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Assessment Board (“SOAB”) was assigned to conduct

an assessment to determine if the individual should

be classified as a sexually violent predator. 42

Pa.C.S. § 9795.4(b).15 The Act defined a “sexually

violent predator” as:

A person who has been convicted of a sexually

violent offense as set forth in section 9795.1

(relating to registration) and who is determined to be

a sexually violent predator under section 9795.4

(relating to assessments) due to a mental

abnormality or personality disorder that makes the

person likely to engage in predatory sexually violent

offenses ....

42 Pa.C.S. § 9792. Furthermore,

“predatory” conduct, which is indispensable to the

designation, 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.” Meals, 590 Pa. at 120, 912 A.2d at

218–19 (quoting 42 Pa.C.S.A. § 9792).

Fuentes, 991 A.2d at 943. Section 9795.4 also provides in relevant part:

An assessment shall include, but not be limited to, an

examination of the following:

(1) Facts of the current offense, including:

(i) Whether the offense involved multiple

victims.

(ii) Whether the individual exceeded the

means necessary to achieve the offense.

(iii) The nature of the sexual contact with

the victim.

(iv) Relationship of the individual to the

victim.

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(v) Age of the victim.

(vi) Whether the offense included a

display of unusual cruelty by the

individual during the commission of the

crime.

(vii) The mental capacity of the victim.

(2) Prior offense history, including:

(i) The individual's prior criminal record.

(ii) Whether the individual completed any

prior sentences.

(iii) Whether the individual participated

in available programs for sexual

offenders.

(3) Characteristics of the individual, including:

(i) Age of the individual.

(ii) Use of illegal drugs by the individual.

(iii) Any mental illness, mental disability

or mental abnormality.

(iv) Behavioral characteristics that

contribute to the individual's conduct.

(4) Factors that are supported in a sexual offender

assessment field as criteria reasonably related to the

risk of reoffense.

42 Pa.C.S.A. § 9795.4(b) (repealed).

In this case, Evans’ assessment was conducted by Dr. Barry Zakireh,

Ph.D., a licensed psychologist and a member of the SOAB. Evans’ trial

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counsel stipulated to the admission of Dr. Zakireh’s report and neither

challenged its findings nor introduced any contrary evidence. N.T.,

12/19/2013, at 6. In reviewing Dr. Zakireh’s report, the trial court

concluded as follows:

In his report, Dr. Zakireh stated that the defendant

met the necessary criteria for Pedophilia, and that,

"[i]ndividuals with Pedophilia tend to experience

recurrent or intense fantasies, urges and behaviors

involving sexual activity with prepubescent children."

(SVP Report, p. 9). In explaining his determination,

the doctor stated:

"There is significant evidence of a

repetitive pattern of offending against a

prepubescent victim which is associated

with a pedophilic urges and interests.

Although the sexual contacts with the

victim may have possibly extended into

hear early pubescence, this pattern

remains consistent with many individuals

manifesting pedophilic characteristics as

they do not necessarily assault

prepubescent children exclusively or limit

their sexual behaviors to a specific group

of minors. Hence, the offender's

behavior in this case indicates significant

and prolonged pedophilic interests,

arousal, or sexual interest/urges toward

a prepubescent or young minor and

significantly exceeds the required

duration of a six-month period for the

presence of sexual urges, fantasies or

behaviors involving a prepubescent child

as required by the criteria for

Pedophilia."

(SVP Report, p.9-10)

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With regard to the [Evans’] predatory conduct, the

doctor found that the defendant's conduct was

predatory:

"From the statutory viewpoint, it is

imperative to establish that the defined

mental abnormality can lead to or

increase the likelihood of predatory

behavior. The mental abnormality in this

case involves repetitive and/or prolonged

acting out of deviant sexual interests,

proclivities, or urges toward

prepubescent or minor children. In this

evaluator's opinion the statutory criteria

is met along this dimension ... it is

evident that [Evans] extended,

augmented, transformed, or promoted

his relationship as family based, long-

term acquaintance in a supervisory or

care- taking role with the victim at least

in part (if not primarily) for the purpose

of sexual gratification, victimization, and

stemming from deficits in controlling

sexual impulses toward prepubescent

children or young minors. As well, the

presence of multiple sexual contacts over

a period of several years with the victim

clearly indicates an evolving relationship

initiated, developed or maintained by the

offender toward the victim at least

partially if not predominantly for sexual

purposes. Furthermore, his behavior

was intentional, deliberate, anteceded by

sexual thoughts or fantasies, and

involved planning and/or risk- taking in

order to gratify his sexual impulses ...

given these aspects, it is the opinion of

this examiner that [Evans'] behavior

during the Instant Offense represents

and corresponds to the legal conception

of "predatory" as defined in the

Pennsylvania Statutes.

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(SVP Report, p. 10 -11).

This Court, after reviewing the report, determined

that there was clear and convincing evidence that

[Evans] was a SVP. The impetus behind the

commission of the crime was clearly sexual in nature,

and this Court firmly believed that based on Dr.

Zakireh's report, [Evans] was likely to reoffend.

Trial Court Opinion, 12/22/2014, at 9-10. Based upon our review, the

record supports the trial court's findings. Dr. Zakireh’s report indicated that

Evans has the mental abnormality of pedophilia, which our Supreme Court

has held to be sufficient to sustain a criminal defendant as a SVP.

Commonwealth v. Meals, 912 A.2d 213, 223 (Pa. 2006).

On appeal, Evans argues that Dr. Zakireh failed to give sufficient

consideration to certain factors, including that Evans had only one victim

(Brooks) and that he made no sexual advances towards her when she

returned to the home after being away for several years. Evan’s Brief at 31.

In support of his arguments, Evans cites to Commonwealth v. Krouse,

799 A.2d 835 (Pa. Super. 2002) (en banc). In Meals, however, the

Supreme Court disapproved of our decision in Krouse, holding that the

section 9795.4(b) factors do not “operate as a checklist where each factor

weights, in some absolute fashion, either for or against a SVP classification.”

Meals, 912 A.2d at 222. It was for Dr. Zakireh, and not for this Court, to

weigh the statutory factors to arrive at a diagnosis and determination of SVP

status.

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A review of Dr. Zakireh’s report reflects that he reviewed all of the

listed statutory factors, including those Evans’ contends are absent in his

case. For example, while Dr. Zakireh considered the lack of multiple victims,

he decided that other factors were more important -- including the disparity

in age (45 years), Evans’ position of authority, the length of time over which

the molestation occurred (three years), and his increasing oblivion to

detection (molesting her while her brothers were sleeping in the same

room). See generally Commonwealth v. Stephens, 74 A.3d 1034, 1040

(Pa. Super. 2013) (SVP classification affirmed where a single victim was

molested over an extended period of time). In addition, although Evans

made no sexual advances on Brooks when she returned to the home several

years later, she was no longer prepubescent by this point in time, and thus

his behavior was not inconsistent with a diagnosis of pedophilia.

For his third issue on appeal, Evans contends that the trial court failed

to extend to him his right to allocute prior to sentencing. There is no

question that the trial court provided Evans with an opportunity to speak

prior to sentencing, as is clear from these transcript excerpts cited in Evans’

appellate brief:

[THE COURT]: And, sir, will you stand up? Mr. Evans,

before I hear from the Commonwealth, I want to

give you allocution rights which means anything you

might want to tell the Court before the Court hears

from Ms. McNabb, the assistant DA, and imposes

sentence, the Court would be happy to hear from

you

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[THE DEFENDANT]: Can I speak?

[THE COURT]: Yes, you can speak. Whatever you'd like

to tell me, I'd be happy to hear from you

[THE DEFENDANT]: The only thing I would like to say is

that I hired Mr. Sagot to represent me because when

I had Randolph Goldman represent me, he didn't do

any investigation in my case and the case is so

conflicting, its pathetic.

[THE COURT]: You're not making argument on the

effectiveness of counsel? Why don't you just

address the sentencing, because it's this Court's

decision as to what the sentence should be. So your

attorney has asked that I simply impose the

mandatory minimum, and, as you understand, I'm

sure Mr. Sagot explained to you the Court has to

impose that.

[THE DEFENDANT]: Yes.

* * *

[THE COURT]: I'm going to hear from you. I'm going to

hear from Ms. McNabb. I was not at the trial. I've

got all the notes of testimony right here that I

reviewed. Whatever you'd like to tell me, I will be

very happy to hear from you, sir. A lot is on the

line.

This is your case.

[THE DEFENDANT]: I understand. Like I was saying, and

in the case, there's five different stories. That's all I

have to say.

[THE COURT]: There were five different stories?

[THE DEFENDANT]: Yes. It was never investigated, yes.

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[THE COURT]: Here's my question to you, just so you

understand, I want you to understand as much as

possible. My job is to impose a sentence. So part of

the sentence relates to what the impact of the

sentence would be. So I'm not here to try the case

all over again. Your statement about five different

stories really relates to the trial. The jury returned

the verdict, so the verdict is what it is I now have to

impose a sentence on that. Is there anything you

might want to tell me about yourself that will be

helpful for me to decide what the sentence would

be? Mr. Sagot addressed it, he talked about your

age and all that, but anything, this is your

opportunity. Mr. Sagot is not telling you not to say

stuff, so he's letting you say whatever you want to

bring to my attention. Am I correct, Mr. Sagot?

* * *

[MR. SAGOT]: That's correct.

[THE COURT]: So you're not going to retry the trial right

now The notes of testimony are in my hands. We're

not going to retry the trial, because that's not my

function. My function right now is to impose

sentence. So whatever you might want to tell me

that might be relevant to what the sentence is, I

would be very happy to hear from you.

[THE DEFENDANT]: I would like to go back to work. I miss

working. I miss my family. I miss my kids. That's it

[THE COURT]: Thank you very much.

N.T. 12/19/13 at 9 -13.

On appeal, Evans argues that while the trial court provided him with

an initial opportunity to speak, “in actuality” the trial court refused “to

consider [his] allocutorial statements.” Evan’s Brief at 36. Evans further

claims that the trial court attempted to “dissuade [him] from allocuting

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further about the fact[s] of the case, a thing he really needed to do since the

prosecution would use those same facts to ask for a severe sentence.” Id.

To preserve an appellate claim for lack of the right to allocution, the

appellant must raise the claim before the trial court. Pa.R.A.P. 302(a);

Commonwealth v. Hardy, 2014 187, 99 A.3d 577, 579 (Pa. Super. 2014)

(to preserve a claim of error pertaining to the right of allocution, the

defendant must raise the claim before the trial court at the time of

sentencing or in a post-sentence motion) (citing Commonwealth v.

Jacobs, 900 A.2d 368, 372 (Pa. Super. 2006) (en banc)). In this case,

Evans did not assert any objections relating to his right of allocution, either

at the sentencing hearing on in a post-sentence motion, and therefore it is

waived for purposes of this direct appeal. Citing to Arizona v. Fulminate,

499 U.S. 279 (1991), Evans contends that interference with allocution rights

constitutes a non-waivable “structural error.” Evans’ Brief at 27-28. In our

en banc decision in Jacobs, however, this Court considered this argument at

some length and concluded that the right of allocution does not implicate the

legality of sentence and thus is waivable. Jacobs, 900 A.2d at 372-77.

For his fourth issue on appeal, Evans posits that the trial court erred in

refusing to grant him credit for time served while on house arrest prior to his

sentencing.6 This issue is easily resolved. In Commonwealth v. Kyle, 874

6

Evans did not raise either this issue or the next one (sentencing merger)

in the trial court. We agree with Evans, however, that both issues relate to

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A.2d 12 (Pa. 2005), our Supreme Court ruled that an individual is not

entitled to sentencing credit for time spent at home and subject to electronic

monitoring. Id. at 17-22. “Incarceration in an institutional setting is

different in kind, not in mere degree, from ‘confinement’ to the comforts of

one's home.” Id. at 22.

Evans cites to various decisions from this Court in support of a

contrary result, including Commonwealth v. Vanskiver, 819 A.2d 69 (Pa.

Super. 2003), Commonwealth v. Mallon, 406 A.2d 569 (Pa. Super. 1979),

and Commonwealth v. Usher, 399 A.2d 1129 (Pa. Super. 1979). To the

extent that these cases support Evans’ claim for sentencing credit, they have

been overruled by Kyle. Evans also argues that Kyle was wrongly decided,

insisting that the basis for the decision is not sound, as it “constantly

harkens back to the notion that serving a sentence in the ‘comfort’ of one’s

home is repugnant to the idea of jail.” Evans’ Brief at 41-42. This Court,

however, has no authority to reconsider or ignore decisions of our Supreme

Court, as we must in all instances follow its mandates. Walnut Street

Associates, Inc. v. Brokerage Concepts, Inc., 20 A.3d 468, 480 (Pa.

2011).

the legality of his sentence and thus are non-waivable. Jacobs, 900 A.2d at

372. We further note that because both issues raise questions of law, our

standard of review is plenary. See, e.g., Commonwealth v. Duffy, 832

A.2d 1132, 1137 (Pa. Super. 2003), appeal denied, 845 A.2d 816 (Pa.

2004).

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For his fifth issue on appeal, Evans argues that the crimes of EWOC

and COM should each have merged with IDSI for sentencing purposes, and

as a result the sentencing court erred in imposing separate sentences for

these crimes. “[T]he same facts may support multiple convictions and

separate sentences for each conviction except in cases where the offenses

are greater and lesser included offenses.” Commonwealth v. Anderson,

650 A.2d 20, 22 (Pa. 1994). Whether particular crimes merge for

sentencing purposes depends in the first instance upon 42 Pa.C.S.A. § 9765,

which provides as follows:

§ 9765. Merger of sentences

No crimes shall merge for sentencing purposes

unless the crimes arise from a single criminal act and

all of the statutory elements of one offense are

included in the statutory elements of the other

offense. Where crimes merge for sentencing

purposes, the court may sentence the defendant

only on the higher graded offense.

42 Pa.C.S.A. § 9765.

In the present case, neither of the two requirements for merger exists.

First, the charges against Evans did not arise from a single criminal act.

While Brooks was able to relate the details of just two specific episodes of

molestation, she testified that Evans’ sexual improprieties occurred on

multiple occasions between the time she was 8 until she was 11. N.T.,

8/28/2012, at 12-24. On appeal, Evans contends that merger is

nevertheless required because the Commonwealth only charged him with

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single counts for IDSI, EWOC and COM. This Court rejected such an

argument in Commonwealth v. Snyder, 870 A.2d 336 (Pa. Super. 2005).

All that is required is that the jury, based upon the testimony received, could

reasonably have concluded that multiple separate criminal acts took place.

Id. at 349-51. Here, based upon Brooks’ testimony, such a finding was well

within the jury’s province.

Second, the three crimes at issue here all necessitate proof of at least

one element that the others do not. 42 Pa.C.S.A. § 9765; Commonwealth

v. Thomas, 879 A.2d 246, 263 (Pa. Super. 2005). Evans’ conviction of IDSI

required proof that he engaged in involuntary deviate sexual intercourse

with a child under the age of 13, while EWOC did not. Conversely, EWOC

required proof that he was providing care or supervision to a child under the

age of 18, and IDSI did not. Likewise, Evan’s conviction for COM required

proof that his actions tended to corrupt the morals of a child under the age

of 18, while his IDSI conviction did not, whereas IDSI required proof of an

act of involuntary deviate sexual intercourse with a child under the age of

13, which is not an element of COM. As a result, neither EWOC nor COM is a

lesser-included offense to IDSI, and pursuant to section 9765 none merge

for sentencing purposes.

For these reasons, we affirm Evans’ convictions on all charges, but

remand to the trial court for resentencing on the IDSI conviction.

Jurisdiction relinquished.

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Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/3/2015

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