The opinion
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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
HARRY MICHAEL SZEKERES
Appellant No. 482 MDA 2015
Appeal from the Judgment of Sentence January 8, 2015
In the Court of Common Pleas of Dauphin County
Criminal Division at No(s): CP-22-CR-0002247-2012
BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*
MEMORANDUM BY PANELLA, J. FILED DECEMBER 15, 2015
Appellant, Harry Michael Szekeres, appeals from the judgment of
sentence entered after he was convicted of 33 counts of sexual abuse of his
daughter (“the victim”). Szekeres challenges the sufficiency and weight of
the evidence supporting his convictions, his designation as a sexually violent
predator (“SVP”), and the discretionary aspects of his sentence. After
careful review, we conclude that none of Szekeres’s claims merit relief, and
therefore affirm.
At trial, the jury heard testimony from the victim that Szekeres had
sexually abused her from age seven to age 19. The victim testified that she
had delayed reporting the abuse until she realized that she had nieces that
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*
Retired Senior Judge assigned to the Superior Court.
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were old enough for her father to victimize. The jury also heard a recorded
phone conversation between the victim and Szekeres in which he admitted
to making “a mistake touching my daughter.” The jury found Szekeres
guilty on all 33 charges.
The trial court ordered Szekeres to be assessed by the Pennsylvania
Sexual Offender Assessment Board (“SOAB”), and scheduled a Megan’s Law
hearing. At the hearing, the SOAB representative, Dr. Robert Stein, a
licensed psychologist, opined that Szekeres was a SVP. In contrast,
Szekeres presented the expert testimony of Dr. Timothy Foley. Dr. Foley
opined that Szekeres did not qualify as a SVP. The trial court found
Szekeres to be a SVP, and ultimately sentenced him to an aggregate term of
imprisonment of 16 to 32 years.
Szekeres filed a post-sentence motion, which the trial court denied.
This timely appeal followed.
On appeal, Szekeres raises four issues for our review. Szekeres claims
that his convictions were supported by insufficient evidence, or in the
alternative, were against the weight of the evidence. In his third issue,
Szekeres argues that the evidence did not support his designation as a SVP.
In his fourth and final issue, Szekeres challenges the sentence imposed as
excessive. We will address these issues in sequence.
In his first issue on appeal, Szekeres argues that the evidence
presented at trial was insufficient to sustain his convictions. Szekeres does
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not challenge the sufficiency of the evidence to support any specific element
or elements of his convictions; rather, he contends that the victim’s
testimony is “in contravention of human experience[,]” and therefore
categorically insufficient as a matter of law. Appellant’s Brief, at 15 (citing
Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).
Szekeres concedes that the victim’s testimony, under normal
circumstances, was sufficient to sustain his convictions. See Appellant’s
Brief, at 14 (citing Commonwealth v. Davis, 650 A.2d 452 (Pa. Super.
1994)). However, he argues that the victim’s decade long delay in
reporting, as well as her admitted drug and alcohol abuse, corroborated and
enhanced by testimony that she had experienced hallucinations of sexual
abuse by various family members while intoxicated, rendered the victim’s
testimony insufficient as a matter of law. Even if we were to accept this
argument, which we explicitly do not, Sekeres cannot overcome the
inculpatory statements present in the recorded phone conversation with the
victim.
During the conversation, the victim repeatedly asked Szekeres why he
had sexually abused her. Several times, Szekeres implicitly admitted that
he had. See Commonwealth’s Exhibit 2, at 7:20, 7:50, 8:45. He further
admitted that he knew that what he had done was wrong. See id., at
10:40. The victim repeatedly asked Szekeres for reassurances that her child
would be safe in Szekeres’s presence. Szekeres responded:
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Hey it would never happen but … I don’t know how I can
reassure you other than that I would … I want to be a part of the
grandchildren’s lives to show them, here how it is, here’s what
this island looks like. … here’s how I swing a hammer when I
was young, here’s things like that I mean I would never touch
your children. I’ve never touched any children you were not, I
made a mistake touching my daughter. And it seemed like it
was okay for some reason in my mind and I, I continued it for,
for a few years, several years. I don’t know why, I don’t know
why it happened I wouldn’t I would never touch anybody in
anyway other than the huge mistake I made when you were
young. I’m telling you I would never do that. I just want your
mother, I want your mother to be so much part of your, your
children and … part of your life in whatever way she can. If, if I
don’t have to be I mean I, do you know how many times I
thought of taking my own life I, I could, but, but being the
coward I am I can’t do it. I can’t do it. I, I thought of now
being here how many ways could I, could I steal life from
myself, which I, which I deserve to, to let the rest of the family
live and go on. And I just can’t make myself do it.
Id., at 11:40 – 13:15. These inculpatory statements are certainly sufficient
to overcome any issues with the victim’s credibility. We therefore conclude
that Szekeres has failed to establish that the victim’s testimony was so
unrealiable as to be insufficient as a matter of law. Szekeres’s first issue on
appeal merits no relief.
Next, Szekeres challenges the weight of the evidence supporting his
convictions. 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
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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.
Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal
citations and quotation marks omitted). While we are without the benefit of
explicit reasoning from the trial court1, we have little difficulty in concluding
that the trial court did not abuse its discretion in denying the motion for a
new trial. Szekere’s second issue on appeal merits no relief.
In his third issue, Szekeres argues that the trial court erred in finding,
by clear and convincing evidence, that he is a SVP. Specifically, Szekeres
contends that the Commonwealth failed to prove that he is likely to re-
offend. See Appellant’s Brief, at 26. As with any sufficiency of the evidence
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1
The trial court found this issue waived, as Szekeres failed to explicitly
specify the basis of his challenge in his statement of matters complained of
on appeal. While Szekeres’s statement is not a model of specificity, we
decline to find waiver, as the nature of his challenge, that the victim was not
a credible witness, is easily reviewed upon the record before us.
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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 sufficient that each element of the statute has
been satisfied.” Commonwealth v. Fuentes, 991 A.2d 935, 942 (Pa.
Super. 2010) (citation omitted). The task of the Superior Court on appeal of
a trial court's classification of a criminal offender as a sexually violent
predator “is one of review, and not of weighing and assessing evidence in
the first instance.” Commonwealth v. Meals, 912 A.2d 213, 218 (Pa.
2006).
Megan’s Law II defines “sexually violent predator” as a person
suffering from a “mental abnormality or personality disorder that makes the
person likely to engage in predatory sexually violent offenses.” 42 Pa.C.S.A.
§ 9792. The salient inquiry to be made by the trial court is the identification
of the impetus behind the commission of the crime and the extent to which
the offender is likely to reoffend. See Commonwealth v. Price, 876 A.2d
988, 995 (Pa. Super. 2005).
Dr. Stein testified that the extended period during which Szekeres
engaged in sexual abuse of his prepubescent daughter supported a finding
that he suffered from a pedophilic disorder. See N.T., sentencing, 1/8/15,
at 10-11. Dr. Stein further opined that the fact that the abuse continued for
a significant time after the victim reached puberty supported a finding that
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Szekeres suffered from “other specified paraphilic disorder nonconsent.”
See id., at 11-12. Based upon these findings, Dr. Stein concluded that
Szekeres had demonstrated predatory behavior and therefore posed a high
risk of re-offending. See id., at 15-16.
While Dr. Foley contradicted these findings, and highlighted many
factors that undercut Dr. Stein’s reasoning, the trial court was entitled to
find Dr. Stein’s testimony credible. Dr. Stein’s testimony is sufficient to
support a finding that Szekeres is likely to reoffend. Thus, Szekeres’s third
issue on appeal merits no relief.
In his fourth and final issue on appeal, Szekeres argues that the trial
court imposed an excessive sentence. Szekeres concedes that this issue
raises a challenge to the discretionary aspects of his sentence. See
Appellant’s Brief, at 9.
“A challenge to the discretionary aspects of a sentence must be
considered a petition for permission to appeal, as the right to pursue such a
claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.
Super. 2004) (citation omitted). When challenging the discretionary aspects
of the sentence imposed, an appellant must present a substantial question
as to the inappropriateness of the sentence. See Commonwealth v.
Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).
“Two requirements must be met before we will review this challenge
on its merits.” McAfee, 849 A.2d at 274 (citation omitted). “First, an
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appellant must set forth in his brief a concise statement of the reasons relied
upon for allowance of appeal with respect to the discretionary aspects of a
sentence.” Id. (citation omitted). “Second, the appellant must show that
there is a substantial question that the sentence imposed is not appropriate
under the Sentencing Code.” Id. (citation omitted). That is, “the sentence
violates either a specific provision of the sentencing scheme set forth in the
Sentencing Code or a particular fundamental norm underlying the sentencing
process.” Tirado, 870 A.2d at 365 (citation omitted).
We examine an appellant’s Rule 2119(f) statement to determine
whether a substantial question exists. See id. “Our inquiry must focus on
the reasons for which the appeal is sought, in contrast to the facts
underlying the appeal, which are necessary only to decide the appeal on the
merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f). “[W]e cannot
look beyond the statement of questions presented and the prefatory 2119(f)
statement to determine whether a substantial question exists.”
Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013) (citation
omitted).
In the present case, Szekere’s appellate brief contains the requisite
Rule 2119(f) concise statement, and, as such, is in technical compliance with
the requirements to challenge the discretionary aspects of a sentence.
Szekeres presents three separate arguments in his 2119(f) statement. First
he argues in his Rule 2119(f) statement that the imposition of consecutive
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sentences, as opposed to concurrent sentences, by the trial court was
excessive. Next, he argues that the trial court failed to provide adequate
reasons on the record for the sentence it imposed. Finally, Szekeres
contends that the sentence imposed was not consistent with norms
underlying the sentencing code. We will analyze whether these arguments
raised a substantial question in sequence.
First, Szekeres claims that the imposition of consecutive sentences
created an excessive sentence. “[W]here a sentence is within the standard
range of the guidelines, Pennsylvania law views the sentence as appropriate
under the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171
(Pa. Super. 2010) (citations omitted). The imposition of consecutive, rather
than concurrent, sentences may raise a substantial question in only the most
extreme circumstances, such as where the aggregate sentence is unduly
harsh, considering the nature of the crimes and the length of imprisonment.
See id., at 171-172.
Here, the aggregate sentence for 33 convictions of sexual abuse of a
minor was 16 to 32 years in prison. Szekeres concedes that each individual
sentence was within the guideline ranges. See Appellant’s Brief, at 20. This
is not an extreme circumstance. Thus, we conclude that Szekeres’s first
argument does not raise a substantial question.
Next, Szekeres argues that the trial court failed to put adequate
reasons for its sentence on the record at sentencing. This claim, combined
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with Szekeres’s third claim, that the sentencing court failed to consider his
rehabilitative needs, raises a substantial question for our review. See
Commonwealth v. Parlante, 823 A.2d 927, 929-930 (Pa. Super. 2003).
The standard of review with respect to sentencing is as follows.
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)
(citation omitted).
Although Szekeres claims that the trial court erred in imposing a
sentence that was inconsistent with the protection of the community and his
rehabilitative needs, we note that the trial court reviewed a pre-sentence
report. Where the trial court had the benefit of reviewing a pre-sentence
report, we must
presume that the sentencing judge was aware of relevant
information regarding the defendant’s character and weighed
those considerations along with mitigating statutory factors. A
pre-sentence report constitutes the record and speaks for itself.
In order to dispel any lingering doubt as to our intention of
engaging in an effort of legal purification, we state clearly that
sentencers are under no compulsion to employ checklists or any
extended or systematic definitions of their punishment
procedure. Having been fully informed by the pre-sentence
report, the sentencing court’s discretion should not be disturbed.
This is particularly true, we repeat, in those circumstances where
it can be demonstrated that the judge had any degree of
awareness of the sentencing considerations, and there we will
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presume also that the weighing process took place in a
meaningful fashion. It would be foolish, indeed, to take the
position that if a court is in possession of the facts, it will fail to
apply them to the case at hand.
Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation
omitted). As the trial court in this case had the benefit of a pre-sentence
report, we must presume that it considered all relevant sentencing factors
and did not impose a sentence based solely on the gravity of the offenses.
Thus, Szekere’s final issue on appeal merits no relief.
We conclude that none of Szekeres’s issues on appeal merit relief. We
therefore affirm the judgment of sentence.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/15/2015
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