Com. v. Ennis, D.

J. S27041/15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

Appellee :

:

v. :

:

DARREN EDWARD ENNIS, :

:

Appellant : No. 2210 EDA 2014

Appeal from the Judgment of Sentence January 6, 2014

In the Court of Common Pleas of Monroe County

Criminal Division No(s).: CP-45-CR-0001020-2012

CP-45-CR-0001315-2012

BEFORE: FORD ELLIOTT, P.J.E., STABILE, and FITZGERALD,* JJ.

MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 15, 2016

Appellant, Darren Edward Ennis, appeals from the judgment of

sentence entered in the Monroe County Court of Common Pleas after a jury

found him guilty of four counts of aggravated indecent assault and two

counts of corruption of minors.1 He claims (1) the evidence was insufficient

to support the convictions; (2) the verdicts were against the weight of the

evidence; (3) the trial court erred in admitting hearsay and prior bad acts

evidence at trial; (4) the mandatory minimum sentences under 42 Pa.C.S. §

9718(a)(3) are unconstitutional in light of Alleyne v. United States, 133 S.

*

Former Justice specially assigned to the Superior Court.

1

18 Pa.C.S. §§ 3125(a)(7) (complainant under thirteen years old), 3125(b)

complainant a child), 6301(a)(1).

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Ct. 2151 (2013); (5) the court abused its discretion in ordering some of his

sentences to run consecutively; (6) the court erred and abused its discretion

when it found he was a sexually violent predator (“SVP”); and (7) the court

erred in denying his motion for the presiding judge to recuse.2 We affirm

2

We have reordered and reorganized Appellant’s questions presented on

appeal, which read:

1. WHETHER THE TRIAL COURT ERRED AS A MATTER OF

LAW AND ABUSED ITS DISCRETION IN FAILING TO

SENTENCING [Appellant] TO A CONCURRENT TERM

RATHER THAN CONSECUTIVE TERM OF INCARCERATION

BASED UPON THE FACTS OF THE CASE AND THE JUR[Y’s]

VERDICT WHICH FAILED TO MAKE SPECIFIC FINDINGS.

2. WHETHER THE TRIAL COURT ERRED AS A MATTER OF

LAW AND ABUSED ITS DISCRETION IN THAT THE

SENTENCE IMPOSED UPON [Appellant] PURSUANT TO 42

PA.C.S.[ ] § 9718(A)(3) CONSTITUTES AN ILLEGAL

SENTENCE BECAUSE THE FACTS NECESSARY FOR THE

IMPOSITION OF THE MANDATORY MINIMUM WERE NOT

ESTABLISHED BEYOND A REASONABLE DOUBT OR FOUND

BY THE JURY?

3. WHETHER THE COMMONWEALTH FAILED TO ESTABLISH

BY CLEAR AND CONVINCING EVIDENCE THAT THE

APPELLANT WAS A SEXUALLY VIOLENT PERSON.

4. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION

IN ADMITTING HEARSAY AND AN EXPERT OPINION INTO

EVIDENCE BY ALLOWING THE REPRESENTATIVE OF THE

SEXUAL OFFENDERS ASSESSMENT BOARD TO TESTIFY TO

ALLEGATIONS OF ABUSE IN WRITTEN RECORDS,

INCLUDING POLICE REPORTS AND THE AFFIDAVIT OF

PROBABLE CAUSE, WHEN SUCH ALLEGATIONS HAD NOT

BEEN ESTABLISHED BY TESTIMONY AT THE SVP HEARING,

NOR BY ADMISSION OF [Appellant], TO BE FACTS OF THE

CASE.

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the conviction, but are constrained to vacate the sentence and remand this

case for resentencing.

We summarize the procedural history of this appeal.3 On April 27,

2012, Appellant was charged with numerous counts of aggravated indecent

assault, corruption of minors, indecent assault, and endangering the welfare

of children. The Commonwealth alleged that Appellant sexually abused two

of his children, B.E. and A.E. (collectively “Complainants”), at their residence

5. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION

OR ERRED AS A MATTER OF LAW IN FAILING TO GRANT

RECONSIDERATION OF ITS FINDING THAT [Appellant] IS

A SEXUALLY VIOLENT PREDATOR.

6. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION

OR ERRED AS A MATTER OF LAW IN PERMITTING

HEARSAY EVIDENCE AND PRIOR ALLEGED BAD ACTS INTO

EVIDENCE.

7. WHETHER THE TRIAL COURT ERRED AS A MATTER OF

LAW AND ABUSED ITS DISCRETION IN FAILING TO

APPOINT A PSYCHOTHERAPIST FOR [Appellant’s]

EVALUATION.

8. WHETHER THE TRIAL COURT ERRED AS A MATTER OF

LAW AND ABUSED ITS DISCRETION IN FAILING TO GRANT

[Appellant’s] MOTION FOR RECUSAL.

9. WHETHER THE TRIAL COURT ABUSED ITS DISCRETION

AND ERRED AS A MATTER OF LAW IN FAILING TO GRANT

THE MOTION FOR AN ARREST OF JUDGMENT, JUDGMENT

FOR ACQUITTAL, AND/OR MOTION FOR A NEW TRIAL AS

THE VERDICTS WERE CONTRARY TO THE WEIGHT OF THE

EVIDENCE AND SUFFICIENCY OF THE EVIDENCE.

Appellant’s Brief at 3-5.

3

We review the evidence in this case in detail below.

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in Pennsylvania (“Incident 1”) and in a car near a grocery store (“Incident

2”), after moving from Idaho to Pennsylvania in November or December

2009.

On December 11, 2012, the Commonwealth filed a notice to admit

evidence under the “Tender Years Statute.” See 42 Pa.C.S. § 5985.1(b).

On April 16, 2013, Appellant filed a motion to recuse the trial judge,

alleging, inter alia, the judge had presided over his family court matters,

including a proceeding to terminate his parental rights to Complainants, and

had exhibited bias in its decision in that matter. On May 6 and 7, 2013,

respectively, the Commonwealth filed a Pa.R.E. 404 notice of intent to admit

“prior bad acts” and an amended Tender Years Statute notice. On May 14,

2013, the trial court denied Appellant’s request for recusal. The court

reserved its rulings on the Commonwealth’s pretrial motions.

Appellant and Codefendant proceeded to a joint jury trial beginning on

July 11, 2013.4 At trial, Complainants testified from a remote location.5

Immediately after Complainants’ testimony, Codefendant’s counsel sought

an offer of proof. The Commonwealth requested rulings to permit

Complainants’ foster mother (“Foster Mother”) and a county Children and

Youth Services (“CYS”) caseworker, Sherry Bradshaw, to testify about B.E.’s

4

Appellant was represented by privately-retained counsel.

5

At the time of trial, B.E. and A.E. were twelve and ten years old,

respectively.

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prior reports of abuse by Appellant. The trial court excused the jury for the

day, conducted hearing on the proffer, and ruled the witnesses’ testimony

was admissible under the Tender Years Statute.

On July 23, 2013, the jury found Appellant guilty of four counts of

aggravated indecent assault and two counts of corruption of minors for

Incident 2.6 The jury acquitted Appellant of all charges related to the

alleged abuse in Incident 1 and the indecent assault and endangering the

welfare of children charges related to Incident 2.

The trial court ordered the preparation of a presentence report and an

assessment by the Sexual Offenders Assessment Board (“SOAB”). Two days

later, on July 25, 2013, the Commonwealth filed a notice of its intent to seek

mandatory minimum sentences for “offenses against infant persons.” See

42 Pa.C.S. § 9718(a)(3). On December 5, 2013, after receiving a copy of

the SOAB assessment, Appellant filed a motion requesting the appointment

of a psychotherapist.

On January 6, 2014, the trial court convened a joint SVP and

sentencing hearing. It reserved ruling on Appellant’s motion for

appointment of a psychotherapist and heard the SOAB assessor’s testimony.

The court then denied Appellant’s motion for the appointment of an expert.

N.T., SVP/Sentencing Hr’g, 1/6/14, at 45-46. At the conclusion of the

6

The jury also found Codefendant guilty of two counts of endangering the

welfare of children.

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hearing, the court found Appellant to be an SVP and ordered an aggregate

term of twenty-to-forty years’ imprisonment, which consisted of (1) two

mandatory ten-to twenty-year sentences to run consecutively, and (2) two

one-half-to-one year sentences for corruption of minors, ordered to run

concurrently.

Appellant, on January 16, 2014, filed timely post-sentence motions,

which the trial court denied on January 21, 2014.7 Appellant’s counsel, on

February 10, 2014, filed a motion to withdraw his appearance, asserting

Appellant wished to appeal, but could not afford his services. Mot. to

Withdraw Appearance, 2/10/14, at ¶ 4. On February 19th, the court

granted Appellant’s counsel leave to withdraw and appointed new counsel.

On March 14, 2014, the court vacated the prior appointment and appointed

present counsel to represent Appellant. The court’s March 14th order

stated, “Appointed counsel is given ninety (90) days leave nunc pro tunc in

which to file a Notice of Appeal in this matter.” Order, 3/14/14. Appellant,

though present counsel, filed a notice of appeal on June 9, 2014, within

ninety days of the court’s March 14th order,8 and subsequently complied

with the court’s order to submit a Pa.R.A.P. 1925(b) statement.

7

The trial court filed a corrected sentencing orders on January 31, 2014, to

indicate it found Appellant to be an SVP.

8

We acknowledge that this appeal is, on its face untimely. See Pa.R.A.P.

903(a); Pa.R.Crim.P. 720(A)(2)(a). However, we find that the complications

in the appointment of present counsel and present counsel’s reliance on the

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Appellant directs his first two claims to the sufficiency and weight of

the evidence at trial. See Appellant’s Brief at 28-29. Our review reveals

these claims are waived for the failure to develop meaningful appellate

arguments, but are meritless in light of the record.9

“The Pennsylvania Rules of Appellate Procedure require that each

question an appellant raises be supported by discussion and analysis of

pertinent authority, and failure to do so constitutes waiver of the claim.”

Commonwealth v. Buterbaugh, 91 A.3d 1247, 1262 (Pa. Super.) (en

banc), appeal denied, 104 A.3d 1 (Pa. 2014) (citing, inter alia, Pa.R.A.P.

2119(a)). “‘[T]his Court will not act as counsel and will not develop

arguments on behalf of [an appellant].’” Id. (citations omitted).

Instantly, Appellant’s sufficiency and weight of the evidence

arguments lack any discussion. See Appellant’s Brief at 28-29. Further, his

bare assertion that his sufficiency and weight of the evidence arguments are

“intertwined” with his prior claims is misleading,10 and, in any event,

trial court’s setting of a ninety-day period to take an appeal constitute

breakdowns in the operation of the court that excuses the untimeliness of

the notice of appeal. See Commonwealth v. Coolbaugh, 770 A.2d 788,

791 (Pa. Super. 2001).

9

Our review of the record was necessitated, in part, by Appellant’s

argument that the trial court was biased and abused its discretion when

denying his motion for recusal.

10

For example, the majority of Appellant’s brief focuses on the trial court’s

SVP and sentencing determinations, as well as the alleged bias of the trial

court. See Appellant’s Brief at 10-21, 23-28. Appellant discusses the trial

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misapprehend the relevant standards of review.11 Appellant’s Brief at 29.

Under these circumstances, waiver is appropriate. See Buterbaugh, 91

A.3d at 1262.

evidence presented at trial in one argument challenging the admission of

hearsay and prior bad acts evidence. Id. at 21-23.

11

Our standards for reviewing challenges to the sufficiency and weight of

the evidence are well settled.

A claim challenging the sufficiency of the evidence is a

question of law. 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. Where the

evidence offered to support the verdict is in contradiction

to the physical facts, in contravention to human experience

and the laws of nature, then the evidence is insufficient as

a matter of law. When reviewing a sufficiency claim the

court is required to view the evidence in the light most

favorable to the verdict winner giving the prosecution the

benefit of all reasonable inferences to be drawn from the

evidence.

A motion for 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. An allegation

that the verdict is against the weight of the evidence is

addressed to the discretion of the trial court. A new trial

should not be granted because of a mere conflict in the

testimony or because the judge on the same facts would

have arrived at a different conclusion. A trial judge must

do more than reassess the credibility of the witnesses and

allege that he would not have assented to the verdict if he

were a juror. Trial judges, in reviewing a claim that the

verdict is against the weight of the evidence do not sit as

the thirteenth juror. Rather, the role of the trial judge is

to determine that “notwithstanding all the facts, certain

facts are so clearly of greater weight that to ignore them

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A review of the record nonetheless reveals no basis to disturb the

verdicts. The Commonwealth’s trial evidence established the following. In

November of 2009, Appellant, Codefendant, Complainants, and

Complainant’s siblings were living in Idaho. N.T. Trial, 7/12/13, at 12-13.

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

justice.”

Commonwealth v. Widmer, 744 A.2d 751-52 (Pa. 2000) (citations and

footnote omitted). “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.” Id. at 753 (citation omitted).

Aggravated indecent assault is defined as follows:

(a) Offenses defined.— . . . a person who engages in

penetration, however slight, of the genitals or anus of a

complainant with a part of the person's body for any

purpose other than good faith medical, hygienic or law

enforcement procedures commits aggravated indecent

assault if:

(1) the person does so without the complainant’s

consent;

* * *

(7) the complainant is less than 13 years of age; or

(b) Aggravated indecent assault of a child.—A person

commits aggravated indecent assault of a child when the

person violates subsection (a)(1), (2), (3), (4), (5) or (6)

and the complainant is less than 13 years of age.

18 Pa.C.S. § 3125(a)(1), (7), (b).

Corruption of minors is defined, in relevant part, as: “whoever, being

of the age of 18 years and upwards, by any act corrupts or tends to corrupt

the morals of any minor less than 18 years of age . . . commits a

misdemeanor of the first degree.” 18 Pa.C.S. § 6301(a)(1).

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On November 12, 2009, Officer Tosha Williams responded to their Idaho

residence for a report of “child abuse,” and Codefendant informed the officer

that Appellant sexually abused Complainants.12 Id. at 15-16. Detective

Angela Munson testified she personally interviewed Appellant in Idaho, while

Complainants were interviewed by social workers and medical personnel.13

Id. at 34, 40.

Detective Munson testified Appellant denied the sexual abuse

allegations, but observed “very obvious sweating around his hairline and his

appearance was flushed” after she confronted him with the allegation. Id. A

recording of Detective Munson’s interview was played to the jury during the

Commonwealth’s rebuttal case. N.T. Trial, 7/22/13, at 40.

12

Appellant’s counsel requested an offer of proof regarding the relevance of

Officer Williams’s testimony. N.T. Trial, 7/12/13, at 10. The Commonwealth

asserted that it intended to elicit evidence regarding the allegations against

Appellant in Idaho to establish Codefendant’s “state of mind” for the charges

of endangering the welfare of children. Id. at 11.

13

Appellant’s counsel objected before Detective Munson testified, asserting

her testimony would be “irrelevant,” “immaterial,” and “prejudicial.” N.T.

Trial, 7/12/13, at 26. The Commonwealth responded that Detective

Munson’s testimony regarding Codefendant’s statements to her was

admissible hearsay under the “party opponent” exception and would also

establish Codefendant’s awareness of the investigation into Appellant. Id.

The Commonwealth further stated that Detective Munson would testify about

her interview of Appellant and his denial of the allegations. Id. at 28. The

trial court overruled Appellant’s initial objections, but later sustained

Appellant’s counsel’s hearsay objection to the Detective’s testimony that B.E.

reported being sexually abused in Idaho. Id. at 28, 34.

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Appellant, Codefendant, Complainants, and Complainants’ siblings

moved to Pennsylvania in November or December 2009. N.T. Trial,

7/15/13, at 15-16. They initially lived at a family member’s residence

(“Residence 1”), but in May 2010, they moved to their own home

(“Residence 2”). Id.

A Pennsylvania investigation of the sexual abuse of Complainants

began on October 29, 2010. At 3:21 a.m. that morning, Police Officer

Charles Brown received a report of a domestic disturbance at Residence 2.

N.T., 7/12/13, at 64. The officer went to the residence, talked to Appellant

on the back porch, and went inside the home to talk with Codefendant. The

officer testified at trial that Codefendant stated she and Appellant had a

verbal dispute. Id. Codefendant told the officer that Appellant had

molested B.E. in Idaho, there was a case pending, and “that’s why the two

were in Pennsylvania now.” Id. at 65.

Shortly before 2 p.m. that afternoon, Officer Richard Gehring received

a 911 dispatch to Residence 1 for a suicide attempt. 14 Id. at 75-77, 83.

The officer found Appellant inside that home. Id. at 77. The officer testified

at trial that Appellant was banging his head, asked the officer to shoot him,

and stated he did not want to live. Id. at 78-79. The officer took Appellant

14

Codefendant and B.E. were outside in a car near Residence 1.

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into custody, transported him to a hospital for a mental evaluation, and filed

an involuntary commitment form against him. Id. at 79, 81.

That evening, Dawn Walker, a CYS supervisor, and Sherry Bradshaw,

a CYS caseworker, went to Residence 2 to talk with Codefendant. Id. at 87,

89, 129-30. They informed Codefendant of the referral for sexual abuse.

Id. at 89, 131. Walker and Bradshaw testified that Codefendant admitted

Appellant was the subject of a sexual abuse charge in Idaho. Id. Walker

and Bradshaw discussed a safety plan for Codefendant to have no contact

with Appellant, to contact law enforcement upon his discharge from the

hospital, and to file a protection from abuse order against him. Id. at 90,

133-34.

On November 2, 2010, four days after the initial events, CYS received

another referral15 and placed Complainants and their siblings in foster care.

Id. at 97-99. One day later, on November 3, 2010, Appellant wrote a note

stating he “molested [B.E.]” in Idaho, but he “never ever molested [her] at

any other time or place ever again which the state of Pennsylvania claims I

did.” Id. at 225. He stated that the allegations of abuse were “coerced.”

Id. Appellant also wrote that Codefendant was unaware of the abuse and

requested that she be allowed to keep custody of Complainants and the

15

The circumstances and content of the November 2, 2010 referral is not

apparent from the record because the trial court sustained Appellant’s

counsel’s objection to hearsay. N.T. Trial, 7/12/13, at 99.

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other children. Id. That same day, Appellant, who was still hospitalized,

“took a pencil and shoved it up his right nostril until he heard a ‘pop[.’]” Id.

at 217. He was transferred for medical treatment.

Meanwhile, on November 3, 2010, the Children’s Advocacy Center

(“CAC”) conducted initial interviews of Complainants, at which Complainants

denied the sexual abuse allegations. Id. at 123. The November 3, 2010

interviews were recorded and played to the jury.16 N.T. Trial, 7/22/13, at

5-6.

Foster Mother testified at trial that approximately one week after the

initial CAC interview, A.E. “told [her] some things,” which prompted Foster

Mother to contact CYS. N.T. Trial, 7/12/13, at 123. CYS arranged for CAC

to conduct a second interview of A.E. Id. While A.E. was interviewed by

CAC, B.E. asked where A.E. was. Id. Foster Mother “told [her] and then

that’s when [B.E.] started to tell [Foster Mother] about things that happened

to her.” Id. When A.E. came home from the interview, she told B.E. she

“had to go to that place because they were asking [her] questions about

[Appellant].” Id. at 124. A.E. “told [B.E.] in length where she went and

then that’s when they started talking about what happened with

[Appellant].” Id. at 123.

16

The trial transcript reveals that the jury heard or viewed recorded CAC

interviews from November 3, 2010, and April 17, 2012. The record does not

include those recordings.

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Foster Mother also testified that B.E. disclosed an incident to her.17

B.E. told her she “was in her bedroom at home[,]” Appellant “was drunk[,]”

and he “pulled her out of bed.” Id. at 117. Appellant “dragged her into the

bedroom and he pulled down his pants and he made her rub his private

part.” Id. at 118. Foster Mother also testified that B.E. disclosed Incident

2. B.E. told her that they “had gone to either Wal-mart or Giant . . . near a

highway.” Id. at 121. When Codefendant went inside to go shopping,

Appellant “stuck his finger inside of [B.E.] and then did it to A.E. . . . .” Id.

On December 14, 2010, Sherry Bradshaw conducted a CYS visit with

Complainants at the foster home.18 Bradshaw testified B.E. told her about

Incident 2. Specifically, B.E. stated she and A.E. “were behind the Giant by

the highway [and Appellant] stuck his fingers in her and [A.E.].” Id. at 101.

B.E. told Bradshaw the abuse occurred in the “family van.” Id.

On April 17, 2012, eight days before the instant charges were filed

against Appellant, CYS arranged for additional CAC interviews of

Complainants. The April 17, 2012 interviews were recorded and played to

17

As discussed above, Appellant’s counsel objected to Foster Mother’s

testimony regarding B.E.’s reports of abuse, which the trial court overruled

after an in-camera hearing. N.T. Trial, 7/11/13, at 124; N.T., In Camera

Proceeding, 7/11/13 at 15.

18

As discussed above, Appellant’s counsel’ objected to Bradshaw’s testimony

regarding B.E.’s reports of abuse, which the trial court overruled after an in-

camera hearing. N.T. Trial, 7/11/13, at 124; N.T. In-Camera Proceeding,

7/11/13, at 35.

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the jury during the Commonwealth’s case in rebuttal. N.T. Trial, 7/22/13,

at 41.

Complainant’s trial testimony regarding Incident 1 and 2 was as

follows.19 B.E. described Incident 1, testifying that “one time[,]” she was on

the top of a bunk bed when Appellant tried to pull off her pants. N.T. Trial,

7/11/13, at 40. He then “pulled [her] out of [her] bed and . . . brought her

like through the hallway to his room and then . . . started like asking me to

like rub his private part.” Id. at 40. She refused and “he just like put my

hand on his private part.” Id. He then took her to the bathroom, “used a

rag to wipe his private part,” “tried to make [her] rub it again[,]” and told

her that “now it was clean.” Id. at 46. When asked whether this incident

occurred in Pennsylvania, B.E. initially answered, “I’m not sure[,]” 20 but later

testified, “No.” Id. at 47-48.

The Commonwealth asked B.E. whether Appellant touched her in

Pennsylvania, and B.E. testified as follows about Incident 2. Appellant,

Codefendant, and Complainants, went to the grocery store. Id. at 50.

Codefendant exited the car and went inside. Id. Appellant drove around to

“the back” and came around to the back of the car. Id. He tried to pull

19

Complainants were the Commonwealth’s first witnesses at trial.

20

B.E. was unable to provide circumstantial evidence to determine whether

Incident 1 occurred in Idaho or Pennsylvania, such as her age or grade at

the time. N.T. Trial, 7/11/13, at 48. She also testified she had bunk beds

in Idaho and in Residence 2 in Pennsylvania. Id. at 47-48.

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down their pants and “stick his finger inside of like [their] private part . . . .”

Id. He told them “he was just trying to help [them] and check [them].” Id.

Additionally, the Commonwealth asked whether Appellant “touch[ed]

her like that other times after [she] moved to Pennsylvania,” and she

responded, “No.” Id. at 51. The Commonwealth, over Appellant’s

counsel’s objections, asked B.E. whether Appellant “touched [her] in

Idaho.”21 Id. at 55. She responded, “I don’t remember.” Id. When asked

by the Commonwealth if “anything else like that” happened in Idaho, she

answered, “No.” Id. at 54. She also did not remember talking to the police

in Idaho. Id. at 55.

A.E. testified that Appellant “stuck his finger in our private part” and

witnessed Appellant doing so to B.E., and to two other siblings when

changing their diapers. Id. at 100. She testified that the abuse occurred

at Residence 1, Residence 2, and “once at the store.” Id. at 100-01. She

described Incident 2 as follows: “[W]e let [Codefendant] get out of the car

and then [Appellant] drove to the back of the lot and then he just came to

the back of the car and he pulled our pants down and he put his finger in our

private part.” Id. at 101.

21

Appellant’s counsel objected to the Commonwealth questioning of B.E.

regarding Idaho, asserting that such evidence was irrelevant and did not

“qualify as 404(b) material.” N.T., Trial 7/11/13, at 51-52. In support, he

argued B.E. denied the abuse occurred in Idaho. Id. at 52.

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Appellant testified on his own behalf and denied abusing Complainants.

N.T., 7/15/13, at 139-40. He stated the initial argument with Codefendant

on October 29, 2010, involved a “discussion about financial problems.” Id.

at 141. He stated the latter incident on that day occurred after he relapsed

on alcohol. Id. at 142. He also stated he wrote the note admitting that

abuse occurred in Idaho because Codefendant told him he needed to

“confess” for Codefendant could retain custody. Id. at 178-79.

In light of the foregoing record, and mindful of our standards of

review, we discern no merit to Appellant’s arguments that the evidence was

insufficient to sustain his convictions for Incident 2, or that the trial court

abused its discretion when denying his request for a new trial. We reiterate

that a victim’s testimony alone may establish each element of the offense.

See Commonwealth v. W.H.M., Jr., 932 A.2d 155, 160-61 (Pa. Super.

2007); Commonwealth v. Filer, 846 A.2d 139, 141-42 (Pa. Super. 2004).

Moreover, we agree with the trial court that the jury was entitled to resolve

the issues of fact and credibility before it and that its guilty verdicts as to

Incident 2 did not “shock the conscience.” See Widmer, 744 A.2d at 751-

52. Thus, Appellant’s sufficiency and weight of the evidence claims warrant

no relief.

Appellant’s third claim focuses on the trial court’s evidentiary rulings at

trial. Specifically, he argues that the testimony regarding B.E.’s prior

reports of abuse did not qualify for a hearsay exception because the

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statements “lacked detail, spontaneity, consisten[cy, and] repetition . . .” as

well as “time, etc.” Appellant’s Brief at 22. According to Appellant, “[t]he

statements were at most cumulative and [introduced] for the sole issue of

corroboration.” Id. Appellant also argues the allegations of sexual abuse in

Idaho constituted “prior bad acts,” “testified through hearsay,” and “could be

nothing more than prejudicial.” Id. at 22-23. He suggests B.E. testified

“these alleged acts never occurred” in Idaho. Id. at 23.

The trial court did not address a Tender Years Statute argument in its

Pa.R.A.P. 1925(a) opinion. See Trial Ct. Op., 9/5/14, at 13. It observed

Appellant’s Pa.R.A.P. 1925(b) statement raised the following claim: “[T]he

Trial Court abused its discretion or erred as a matter of law in permitting

hearsay evidence.” Id. (quoting Appellant’s Pa.R.A.P. 1925(b) statement,

6/30/14, at ¶ 5). The court declined to speculate regarding the basis of

Appellant’s hearsay claim and found any subsidiary argument waived. Id.

The trial court also found Appellant’s Rule 1925(b) statement challenging the

admission of prior bad acts vague, but asserted its rulings were proper. Id.

at 31; see also Appellant’s Pa.R.A.P. 1925(b) Statement at ¶ 13 (“The Trial

Court erred as a matter of law and abused its discretion in permitting prior

alleged bad acts in evidence.”).

Pennsylvania Rule of Appellate Procedure 1925(b)(4)(ii) states, “The

Statement shall concisely identify each ruling or error that the appellant

intends to challenge with sufficient detail to identify all pertinent issues for

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the judge.” Pa.R.A.P. 1925(b)(4)(ii). Rule 1925(b)(4)(vii) provides “Issues

not included in the Statement and/or not raised in accordance with the

provisions of this paragraph (b)(4) are waived.” Pa.R.A.P. 1925(b)(4)(vii).

Instantly, we are constrained to agree with the trial court that

Appellant’s Pa.R.A.P. 1925(b) lacked adequate specificity to discern his

intended challenge to the admission of “hearsay” evidence under the Tender

Years Statute. Appellant’s present counsel had the opportunity to review the

trial transcripts before filing a Rule 1925(b) statement, and the bases of the

trial court’s various hearsay ruling were evident in the record. Nonetheless,

the Rule 1925(b) statement did not identify the Tender Years Statute or any

factor related to that statute. Thus, we are compelled to conclude that this

claim has been waived. See Pa.R.A.P. 1925(b)(4)(ii), (vii).

As to Appellant’s claim regarding “prior bad acts,” we agree with the

trial court that the Pa.R.A.P. 1925(b) statement was also vague. However,

our review of the record reveals it provides adequate context for the trial

court to identify Appellant’s intended arguments vis-à-vis the alleged sexual

abuse in Idaho.22 Therefore, we decline to find waiver and will address this

issue.

Pennsylvania Rule of Evidence 404 provides, in relevant part:

22

Specifically, Appellant objected to two major areas involving his alleged

prior bad acts: the sexual abuse allegations in Idaho and references to his

abuse of Complainants’ siblings. The references to the alleged abuse of

Complainants’ siblings was fleeting.

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(b) Crimes, Wrongs or Other Acts.

(1) Prohibited Uses. Evidence of a crime, wrong, or

other act is not admissible to prove a person's character

in order to show that on a particular occasion the

person acted in accordance with the character.

(2) Permitted Uses. This evidence may be admissible

for another purpose, such as proving motive,

opportunity, intent, preparation, plan, knowledge,

identity, absence of mistake, or lack of accident. In a

criminal case this evidence is admissible only if the

probative value of the evidence outweighs its potential

for unfair prejudice.

(3) Notice in a Criminal Case. In a criminal case the

prosecutor must provide reasonable notice in advance

of trial, or during trial if the court excuses pretrial notice

on good cause shown, of the general nature of any such

evidence the prosecutor intends to introduce at trial.

Pa.R.E. 404(b)(1)-(3).

In Commonwealth v. Knowles, 637 A.2d 331 (Pa. Super. 1994),

which was decided before the promulgation of the Rules of Evidence, 23 the

defendant was convicted of sexually abusing the complainant. The

defendant appealed claiming that the admission of the complainant’s

testimony that the defendant abused her five years earlier in Texas was

improper. This Court affirmed, reasoning:

In general, evidence of other wrongful conduct not

charged in the information on which the defendant is being

23

Although Knowles predates the Pennsylvania Rules of Evidence, Rule

404(b) “embodies the common scheme or plan exception to the prohibition

against use of prior crimes evidence.” See Commonwealth v. Aikens, 990

A.2d 1181, 1181 n.2 (Pa. Super. 2010). Therefore, we may rely such cases

even though they were filed before enactment of those rules. Id.

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tried is inadmissible at trial except in certain limited

circumstances.

* * *

. . . Remoteness . . . is only one factor to be considered

when determining the admissibility of the evidence.

Whether evidence is too remote in time to be probative,

moreover, is largely within the discretion of the trial court.

[The defendant’s] conduct in Texas was not a single,

isolated act. He and [the complainant] were alone every

night for a week, and the sexual assaults continued over a

six day period. They were committed by one who normally

did not have the opportunity to become intimate with [the

complainant]. The acts stopped when [the complainant]

returned to her parents and, of course, after she moved

with her parents to Pennsylvania. After [the defendant]

also moved to Pennsylvania, however, the sexual abuse

was resumed when [the defendant] had an opportunity to

be alone with [her]. We conclude, therefore, that the

evidence was relevant to show that [the defendant] had a

continuing passion for illicit sexual contact with [the

complainant] and acted on that passion when the

opportunity arose.

Knowles, 637 A.2d at 578-79 (citations omitted).

In Aikens, 990 A.2d at 1181, the defendant was convicted of sexually

assaulting the complainant after watching a pornographic movie with her.

At trial, the defendant’s daughter testified the defendant engaged in similar

conduct with her seventeen years earlier, when she was a similar age as the

complainant. After this Court affirmed the judgment of sentence, the

defendant claimed in a PCRA petition that his appellate counsel was

ineffective for failing to preserve a direct appeal challenge to the admission

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of the prior bad acts testimony. This Court affirmed the denial of PCRA

relief, reasoning, in relevant part:

Generally, evidence of prior bad acts or unrelated

criminal activity is inadmissible to show that a

defendant acted in conformity with those past acts or

to show criminal propensity. However, evidence of

prior bad acts may be admissible when offered to

prove some other relevant fact, such as motive,

opportunity, intent, preparation, plan, knowledge,

identity, and absence of mistake or accident. In

determining whether evidence of other prior bad acts

is admissible, the trial court is obliged to balance the

probative value of such evidence against its

prejudicial impact.

In the present case, we conclude that the evidence in

question was admissible under the common scheme design

or plan exception. . . . In [Commonwealth v. Lukitsch,

680 A.2d 877 (Pa. Super. 1996), a pre-Rules of Evidence

case], the defendant was convicted of sexually molesting

his stepdaughter. At trial, the court had permitted the

defendant’s biological daughter to testify about sexual

abuse that the defendant had perpetrated on her when she

was a child, even though that abuse ended nineteen years

before trial and began twenty-four years before trial. The

defendant claimed that the prior assaults were too remote.

We held that the prior incidents were not too distant since

there was only a six-year lapse between the previous

assaults and the inception of the defendant’s abuse of the

victim in that case.

We held that “while remoteness in time is a factor to be

considered in determining the probative value of other

crimes evidence under the theory of common scheme, plan

or design, the importance of the time period is inversely

proportional to the similarity of the crimes in question.”

After analyzing the facts relating to the defendant’s abuse

of his daughter and the victim in question, we concluded in

Luktisch that the two incidents were factually similar and

that the defendant’s prior conduct was admissible under

the common scheme or plan exception to the prohibition

against introduction of prior bad acts.

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In the case at bar, we believe that the fact pattern

involved in the two incidents was markedly similar. In

both cases, the victims were of like ages . . . fourteen

years old . . . and . . . fifteen years old. Both victims

were [the defendant’s] biological daughters. [The

defendant] initiated the contact during an overnight visit in

his apartment. He began the sexual abuse by showing the

girls pornographic movies. The assaults occurred in bed at

night. While [the defendant] raped [his daughter] and

indecently assaulted [the complainant], [the complainant]

stopped [the defendant] from disrobing her and

committing the more serious sexual assault. In addition,

[the defendant] mimicked the grinding movements of

sexual intercourse on [the complainant] in order to

sexually gratify himself. These matching characteristics

elevate the incidents into a unique pattern that

distinguishes them from a typical or routine child-abuse

factual pattern. Hence, we reject [the defendant’s]

position that we are pigeonholing sexual abuse cases to

such an extent that any prior instance of child abuse would

be admissible in a subsequent child abuse prosecution. . .

. [T]he similarities at issue herein were “not confined to

insignificant details that would likely be common elements

regardless of who committed the crimes.”

Aikens, 990 A.2d at 1185-86 (citations omitted).

In light of the foregoing principles, we discern no merit to Appellant’s

argument that the trial court erred in admitting references to the allegations

of abuse in Idaho as evidence of identity and motive. We further note that

the evidence was also necessary to establish whether the alleged abuse in

Incident 1 occurred in Pennsylvania or Idaho in light of B.E.’s testimony.

Thus, Appellant’s suggestion that the admission of the evidence “could be

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nothing more than prejudicial” lacks merit.24 Moreover, Appellant’s selective

reading of a single passage from B.E.’s testimony to assert that abuse did

not occur in Idaho did not affect the admissibility of the evidence under Rule

404(b)(2), but rather raised a matter for the jury’s determination.

Appellant next challenges the legality of the court’s aggregate twenty-

to-forty year sentence. He claims Section 9718(a)(3) is unconstitutional in

24

The trial court charged the jury with the appropriate use of the evidence

from Idaho. See N.T. Trial, 7/23/13, at 110-11.

You heard evidence tending to prove that [Appellant] is

guilty of an offense that occurred in Idaho for which he is

not on trial. I am speaking about the testimony that you

heard regarding the incidents that occurred in the State of

Idaho.

This evidence is before you for a limited purpose, that is

for the purpose of tending to show motive, intent, plan,

knowledge, identity, absence of mistake. This evidence

must not be considered by you in any way other than the

purposes I just stated.

You must not regard this evidence as showing that the

defendant is a person of bad character or criminal

tendencies from which you might be inclined to infer guilt

for the things that are alleged to have occurred here in

Monroe County.

The evidence is not admissible to show action and

conformity with what is alleged to have occurred in the

State of Idaho.

Id. We note Appellant refers to the court’s statement regarding “evidence

tending to prove that [Appellant] is guilty of an offense that occurred in

Idaho” as evidence of bias.

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light of Alleyne and its Pennsylvania progeny. Appellant’s Brief at 10-12.

Relief is due.

Our standards of review are as follows:

“A challenge to the legality of a sentence . . . may be

entertained as long as the reviewing court has

jurisdiction.” It is also well-established that “[i]f no

statutory authorization exists for a particular sentence,

that sentence is illegal and subject to correction.” “An

illegal sentence must be vacated.” “Issues relating to the

legality of a sentence are questions of law[.] . . . Our

standard of review over such questions is de novo and our

scope of review is plenary.”

Commonwealth v. Wolfe, 106 A.3d 800, 801-02 (Pa. Super. 2014)

(citations omitted), appeal granted, 121 A.3d 433 (Pa. 2015).25

In Wolfe, this Court vacated a sentence imposed under Section

9718(a)(1). In that case, the defendant was convicted of involuntary

deviate sexual intercourse—complainant under sixteen years of age, 18

Pa.C.S. § 3123(a)(7), and sentenced under the mandatory minimum

provisions in Section 9718(a)(1) and (c), which stated:

25

The Pennsylvania Supreme Court granted allowance of appeal on the

following question:

Whether the Superior Court of Pennsylvania’s sua sponte

determination that the ten year mandatory minimum

sentence for involuntary deviate sexual intercourse

(Person less than 16 years) imposed pursuant to 42

Pa.C.S.[ ] § 9718(a)(1) is facially unconstitutional is

erroneous as a matter of law?

Wolfe, 121 A.3d 433 (Pa. 2015).

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(a) Mandatory sentence.—

(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.

...

(c) Proof at sentencing.—The provisions of this section

shall not be an element of the crime, and notice of the

provisions of this section to the defendant shall not be

required prior to conviction, but reasonable notice of the

Commonwealth's intention to proceed under this section

shall be provided after conviction and before sentencing.

The applicability of this section shall be determined at

sentencing. The court shall consider any evidence

presented at trial and shall afford the Commonwealth and

the defendant an opportunity to present any necessary

additional evidence and shall determine, by a

preponderance of the evidence, if this section is applicable.

Id. at 801-02 (quoting 42 Pa.C.S. § 9718(a)(1), (c)) (emphasis added).

The Wolfe Court summarized the legal principles applicable to an

Alleyne challenge:

In Alleyne, the Supreme Court held that “facts that

increase mandatory minimum sentences must be

submitted to the jury” and must be found beyond a

reasonable doubt. Alleyne is an extension of the

Supreme Court’s line of cases beginning with Apprendi

v. New Jersey, 530 U.S. 466 . . . (2000)[ and held:]

It is impossible to dissociate the floor of a

sentencing range from the penalty affixed to the

crime. Indeed, criminal statutes have long

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specified both the floor and ceiling of sentence

ranges, which is evidence that both define the

legally prescribed penalty. This historical practice

allowed those who violated the law to know, ex

ante, the contours of the penalty that the

legislature affixed to the crime—and comports

with the obvious truth that the floor of a

mandatory range is as relevant to wrongdoers as

the ceiling. A fact that increases a sentencing

floor, thus, forms an essential ingredient of the

offense.

Moreover, it is impossible to dispute that facts

increasing the legally prescribed floor aggravate

the punishment. Elevating the low-end of a

sentencing range heightens the loss of liberty

associated with the crime: the defendant’s

expected punishment has increased as a result of

the narrowed range and the prosecution is

empowered, by invoking the mandatory

minimum, to require the judge to impose a higher

punishment than he might wish. Why else would

Congress link an increased mandatory minimum

to a particular aggravating fact other than to

heighten the consequences for that behavior?

This reality demonstrates that the core crime and

the fact triggering the mandatory minimum

sentence together constitute a new, aggravated

crime, each element of which must be submitted

to the jury.

In Commonwealth v. Newman, 99 A.3d 86 (Pa.

Super. 2014) (en banc), this Court confronted the same

type of challenge to the mandatory minimum sentence

found at Section 9712.1, regarding the proximity between

drugs and guns. Section 9712.1 had the same format as

Section 9718 insofar that one subsection contains the

additional fact that triggers the mandatory penalty, and

another subsection states that this fact shall be found by

the trial court by a preponderance of the evidence at

sentencing.

The Newman Court first concluded that the defendant’s

sentence was illegal in light of Alleyne and required this

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Court to vacate and remand for resentencing. However,

this Court further noted that Alleyne issues are subject to

harmless error analysis but that the Alleyne issue in

Newman was not harmless. Finally, this Court rejected

the Commonwealth’s argument that, if the error was not

harmless, the appropriate remedy would be to remand to

the trial court to empanel a second sentencing jury.

Specifically, in rejecting this argument, the Newman

Court concluded that Section 9712.1 in its entirety must be

struck down as unconstitutional in light of Alleyne,

concluding that its subsections were not severable.

The Commonwealth’s suggestion that we remand for

a sentencing jury would require this court to

manufacture whole cloth a replacement enforcement

mechanism for Section 9712.1; in other words, the

Commonwealth is asking us to legislate. We

recognize that in the prosecution of capital cases in

Pennsylvania, there is a similar, bifurcated process

where the jury first determines guilt in the trial

proceeding (the guilt phase) and then weighs

aggravating and mitigating factors in the sentencing

proceeding (the penalty phase). However, this

mechanism was created by the General Assembly

and is enshrined in our statutes at 42 Pa.C.S.[ ] §

9711. We find that it is manifestly the province of

the General Assembly to determine what new

procedures must be created in order to impose

mandatory minimum sentences in Pennsylvania

following Alleyne. We cannot do so.

* * *

As noted above, the mandatory minimum statute in this

case contains the same format as the statutes struck down

as facially unconstitutional in Newman . . . . Following

Newman’s instructions, we are required to conclude

that Section 9718 is also facially unconstitutional.

We recognize that this specific case is unique insofar

that the additional fact triggering the mandatory sentence

is also contained as an element within the subsection of

[a] statute under which [the defendant] was convicted.

Therefore, in order to convict [the defendant] . . . , the

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Commonwealth was already required to prove beyond a

reasonable doubt that the victim was less than 16 years

old.

However, we are not concerned with [the defendant’s]

conviction in this appeal, only the imposition of the

mandatory minimum sentence.

Wolfe, 106 A.3d at 802-03, 805 (citations and footnotes omitted) (emphasis

added). Thus, although the Wolfe Court considered a sentence under

Section 9718(a)(1), it concluded that Section 9718, in its entirety, offended

the constitutional principles set forth in Alleyne and Newman. Id.

Instantly, Appellant, in relevant part, was convicted under 18 Pa.C.S.

§ 3125(b). The mandatory minimum provision is set forth in Section

9718(a)(3), and states:

(3) A person convicted of the following offenses shall be

sentenced to a mandatory term of imprisonment as

follows:

18 Pa.C.S. § 3121(c) and (d)--not less than ten years.

18 Pa.C.S. § 3125(a)(7)--not less than five years.

18 Pa.C.S. § 3125(b)--not less than ten years.

42 Pa.C.S. § 9718(a)(3) (emphasis added).

That Section 9718(a)(3) requires only a conviction for a predicate

offense without requiring the finding of an additional fact at sentencing

appears to distinguish it from Subsection (a)(1). Further, Section

9718(a)(3) was enacted in its current form in 2004, two years before the

now-unconstitutional fact-finding provision in Section 9718(c).

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Nevertheless, the practice of our Court has been to apply Alleyne broadly.

See, e.g., Commonwealth v. Young, 1653 EDA 2014 (unpublished

memorandum) (Pa. Super. Mar. 18, 2015), appeal denied, 123 A.3d 1062

(Pa. 2015). But see Young, 123 A.3d at 1063 (Eakin, J., dissenting)

(suggesting “the Superior Court’s decision [in Young] affirming the

unconstitutionality of § 9718(a)(3) cannot be based on Commonwealth v.

Hopkins, ––– Pa. ––––, 117 A.3d 247 (2015), which deals with statutes

requiring proof of additional facts.”). Although reasonable minds may

disagree over whether Alleyne, Hopkins, Newman, and Wolfe apply with

equal force to Section 9718(a)(3), we are constrained to follow Wolfe’s

broad mandate and thus conclude the instant sentences imposed under are

illegal. Accordingly, we vacate the sentences and remand this matter for

resentencing.

Appellant’s fifth claim focuses on the trial court’s decision to impose

consecutive sentences was an abuse of discretion because it involved a

single criminal episode. We acknowledge Appellant also suggests that the

sentence was the result of the trial court’s bias. However, we are

constrained to conclude that no relief is due.

The procedures for determining whether to address the merits of

discretionary aspects of sentencing claim are well settled:

The right to appellate review of the discretionary aspects

of a sentence is not absolute, and must be considered a

petition for permission to appeal. An appellant must

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satisfy a four-part test to invoke this Court’s jurisdiction

when challenging the discretionary aspects of a sentence.

[W]e conduct a four-part analysis to determine: (1)

whether appellant has filed a timely notice of appeal;

(2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify

sentence; (3) whether appellant’s brief has a fatal

defect; and (4) whether there is a substantial

question that the sentence appealed from is not

appropriate under the Sentencing Code.

* * *

A substantial question will be found where an appellant

advances a colorable argument that the sentence imposed

is either inconsistent with a specific provision of the

Sentencing Code or is contrary to the fundamental norms

which underlie the sentencing process. At a minimum, the

Rule 2119(f) statement must articulate what particular

provision of the code is violated, what fundamental norms

the sentence violates, and the manner in which it violates

that norm.

* * *

We have stated that the imposition of consecutive

rather than concurrent sentences lies within the

sound discretion of the sentencing court. Long

standing precedent of this Court recognizes that 42

Pa.C.S.[ ] § 9721 affords the sentencing court

discretion to impose its sentence concurrently or

consecutively to other sentences being imposed at

the same time or to sentences already imposed. A

challenge to the imposition of consecutive rather

than concurrent sentences does not present a

substantial question regarding the discretionary

aspects of sentence. “We see no reason why [a

defendant] should be afforded a ‘volume discount’

for his crimes by having all sentences run

concurrently.”

Commonwealth v. Zirkle, 107 A.3d 127, 132 (Pa. Super. 2014).

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Instantly, Appellant’s Rule 2119(f) statement suggests that the

consecutive nature of the mandatory minimum sentence rendered the

aggregate sentence “excessive.” Appellant’s Brief at 6. He does not allege

bias. See id. Accordingly, given the narrow claim set forth in his Rule

2119(f), we discern no substantial question warranting review. See Zirkle,

107 A.3d at 132. In any event, were we to address this issue, we would

note that although Appellant was found guilty of Incident 2, during which he

assault two victims. Thus, we discern no basis to conclude that the trial

court acted unreasonably when imposing consecutive sentences and

declining Appellant’s invitation to permit a “volume discount” on his crimes.

Cf. id.

Appellant next claims that the trial court erred in designating him SVP.

He argues the trial court erred in denying his motion for appointment of an

expert and violated on his right to present evidence. Appellant’s Brief at 20-

21. In support, he cites Commonwealth v. Curnutte, 871 A.2d 839 (Pa.

Super. 2005). He also argues “the SOAB expert[, Dr. Mary Muscari,] was

permitted to consider and testify to evidence that should have been

inadmissible at an SVP hearing.” Id. at 18-19. In support, he suggests Dr.

Muscari referred to conduct in Incident 1, for which Appellant was acquitted.

Id. at 19. Further, Appellant suggests Dr. Muscari impermissibly relied on

hearsay statements from Idaho that referenced his prior bad acts. Id. He

emphasizes Dr. Muscari would not have found Appellant to be a SVP were it

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not for her reliance on the reports of the Idaho incident. Id. He further

argues the Commonwealth failed to establish one of the diagnostic criteria

for pedophilia, namely, that the conduct occur over a span of at least six

months. Id. No relief is due

As to the appointment of an expert for an SVP proceeding, we

reiterate: “The provision of public funds to hire experts to assist in the

defense against criminal charges is a decision vested in the sound discretion

of the court and a denial thereof will not be reversed absent an abuse of that

discretion.” Commonwealth v. Cannon, 954 A.2d 1222, 1226 (Pa. Super.

2008) (citation omitted).

In Curnutte, this Court recognized an indigent defendant’s right to

have an expert appointed and remanded for the appointment of an expert.

Curnutte, 871 A.2d at 842, 844. However, the Curnutte Court recognized

that “the Commonwealth is not obligated to pay for the services of an expert

simply because a defendant requests one.” Id. at 842. Our case law

recognizes at least two considerations that must be addressed when seeking

the appointment of an expert for the purposes of an SVP proceeding. First,

“[t]here must be some showing as to the content and relevancy of the

proposed expert testimony before such a request will be granted.” Id. at

842. Second, there must be finding of indigence. See Cannon, 954 A.2d at

1226.

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Instantly, the trial court found that (1) Appellant failed to establish

indigence; (2) Appellant’s written motion did not state an expert was

required to rebut the SOAB report; and (3) an independent mental health

assessment was unnecessary for sentencing in light of the mandatory

provisions. Trial Ct. Op. at 23-24; N.T. SVP/Sentencing Hr’g, at 9-13, 46.

Appellant fails to address any one of the trial court’s reasons for denying the

motion to appoint an expert. Significantly, Appellant does not address the

trial court’s finding that Appellant intentionally distanced himself from family

funding, on which he had relied throughout trial. Therefore, this argument is

waived. See Pa.R.A.P. 2119(a); Buterbaugh, 91 A.3d at 1262.

As to the SVP determination, we emphasize that the Pennsylvania

Supreme Court has cautioned this Court not to reassess the credibility of an

expert presented at an SVP hearing. See Commonwealth v. Meals, 912

A.2d 213, 224 (Pa. 2006).

A challenge to the sufficiency of the evidence to support

an SVP designation requires the reviewing court to accept

the undiminished record of the case in the light most

favorable to the Commonwealth. The reviewing court

must examine all of the Commonwealth’s evidence without

consideration of its admissibility. A successful sufficiency

challenge can lead to an outright grant of relief such as a

reversal of the SVP designation, whereas a challenge to

the admissibility of the expert’s opinion and testimony is

an evidentiary question which, if successful, can lead to a

new SVP hearing.

* * *

Our task in either scenario is one of review, not one of

reweighing or assessing the evidence in the first instance.

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Commonwealth v. Prendes, 97 A.3d 337, 356 (Pa. Super.) (citations

omitted), appeal denied, 105 A.3d 738 (Pa. 2014).

In Prendes, 97 A.3d 337 (Pa. Super. 2014), this Court observed:

“An expert may base an opinion on facts or data in the

case that the expert has been made aware of or personally

observed. If experts in the particular field would

reasonably rely on those kinds of facts or data in forming

an opinion on the subject, they need not be admissible for

the opinion to be admitted.” “If the expert states an

opinion the expert must state the facts or data on which

the opinion is based.” “Once expert testimony has been

admitted, the rules of evidence then place the full burden

of exploration of facts and assumptions underlying the

testimony of an expert witness squarely on the shoulders

of opposing counsel’s cross-examination.” Opposing

counsel bears the burden of exposing and exploring “any

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

Prendes, 97 A.3d at 358 (citations omitted). Further, “[a]n SVP

assessment is not a trial or a separate criminal proceeding that subjects the

defendant to additional punishment.” Id. (citation omitted).

Instantly, our review reveals that Dr. Muscari misstated the facts of

the underlying case as “[t]wo victims, multiple incident” and “penetration of

the victims[’] vagina[s] and one of the victims had touched his penis.” N.T.

SVP/Sentencing Hr’g at 17-18. These misstatements of fact are problematic

because they appear to refer to offenses for which Appellant was acquitted,

i.e., all of the charges related to Incident 1, as well as B.E.’s testimony that

Appellant had her touch his penis at Residence 2. Cf. Commonwealth v.

Smithton, 631 A.2d 1053, 1058 (Pa. Super. 1993) (vacating sentence

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where court relied upon “irrelevant” testimony that “bore directly on crimes

for which the defendant had been acquitted”). But see Commonwealth v.

Stokes, 38 A.3d 846, 863 (Pa. Super. 2011) (discussing use of “acquitted

conduct” at sentencing).

However, a further review of the transcript reveals that Dr. Muscari

based her ultimate opinion on reports from Idaho that Appellant placed

B.E.’s hand “on his private area” during an incident at “Sally’s Beauty Supply

Store on November 1, 2009” and the incident in Pennsylvania. See id. at

28, 30. She further related that she found the Idaho allegations credible in

light of Appellant’s admission to sexual abuse of B.E. in Idaho. Id. at 21,

30. Further, the court inquired independently as to Dr. Muscari’s reasons for

crediting Appellant’s admissions and the allegations of abuse and the

decisive weight she placed on the Idaho allegations. Id. at 30. Indeed, Dr.

Muscari explained she would not have found Appellant to be an SVP were it

not for the Idaho allegations.

In light of the narrow review called for by the Pennsylvania Supreme

Court, we conclude that Appellant’s claims go to the weight and not the

admissibility of Dr. Muscari’s opinions. Moreover, despite her reliance on

allegations that did not result in a conviction in Idaho, as well as her possible

misstatement of the record, the court had at least some basis for adopting

her opinion as dispositive of its SVP determination. In short, we are

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constrained to conclude that while Appellant’s arguments reveal possible

defects in the basis for Dr. Muscari’s opinions, we must affirm.

We now address Appellant’s claim that the trial court erred in denying

his motion for recusal of the presiding judge. He observes the presiding

judge also considered Appellant’s and Codefendant’s “lengthy [CYS] matter,”

including a dependency proceeding and the termination of their parental

rights. Appellant’s Brief at 24.

As examples of bias, Appellant observes that the trial court, in its

opinion in support of termination asserted that termination was appropriate

even if he received treatment and was not deemed to be a threat to children

and that Appellant failed to “take ownership of the serious allegations.” Id.

at 25 (quoting Trial Ct. Op., 4/12/12, at 20-21). He also cites to the

court’s colloquy on his right to testify, during which the court stated either

Appellant or Codefendant “knowingly lied” at a prior family court proceeding,

which could be used to impeach him if that party elected to testify. Id. at

26-27. He also refers to the court’s cautionary instruction regarding prior

bad acts evidence, and notes the court told the jury it heard “evidence

tending to prove that [Appellant] is guilty of an offense that occurred in

Idaho for which he is not on trial.” Id. at 28 (quoting N.T. Trial, 7/23/13, at

110). Lastly, Appellant cites to the court’s statements at sentencing during

which the court found the case disturbing due, in part, to “the level of

deception” exhibited by Appellant and Codefendant. Id. at 27; see also

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N.T. SVP/Sentencing Hr’g at 50). Appellant notes the court referred to

Appellant’s alleged testimony that he did not want Codefendant to become

pregnant again, as well as Codefendant’s pregnancy during trial and their

attempts to conceal the pregnancy. Appellant’s Brief at 27. He emphasizes

that the record contains no indication that he did not want Codefendant to

become pregnant again.26 Id. In sum, Appellant asserts the court revealed

a personal, unsubstantiated animus against him and burdened his

presumption of innocence in the underlying criminal matter.

The following principles govern our review:

If a party questions the impartiality of a judge, the

proper recourse is a motion for recusal, requesting that the

judge make an independent, self-analysis of the ability to

be impartial. If content with that inner examination, the

judge must then decide “whether his or her continued

involvement in the case creates an appearance of

impropriety and/or would tend to undermine public

confidence in the judiciary.” This assessment is a

“personal and unreviewable decision that only the jurist

can make.” “Once the decision is made, it is final. . . .”

[An appellate court] presumes judges of this

Commonwealth are “honorable, fair and competent,” and,

when confronted with a recusal demand, have the ability

to determine whether they can rule impartially and without

prejudice. The party who asserts a trial judge must be

disqualified bears the burden of producing evidence

establishing bias, prejudice, or unfairness necessitating

recusal, and the “decision by a judge against whom a plea

of prejudice is made will not be disturbed except for an

abuse of discretion.”

26

We note that Appellant’s counsel did not object to any of the trial court’s

statements at trial or sentencing in this matter. Moreover, Appellant did not

renew his request for recusal at or after trial.

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Commonwealth v. Druce, 848 A.2d 104, 108 (Pa. 2004).

[T]he mere participation by the trial judge in an earlier

stage of the proceedings does not provide a per se basis

for requiring recusal of the trial judge.

The determination of whether a trial judge should

recuse himself depends upon the following: the type

of evidence that the judge hears; if the evidence is

inadmissible and is of a highly prejudicial nature, the

judge should recuse himself or declare a mistrial if it

is too late for recusal. The judge should also recuse

himself whenever there is substantial doubt as to his

ability to preside impartially. The burden to show

prejudice, however, is on the party seeking recusal.

If the evidence is admissible, or not of a highly

prejudicial nature, recusal is not required, and while

it may be the better practice to have a different

judge preside over trial than preside over pre-trial

proceedings, such a practice is not constitutionally

required and has not been made the basis for setting

aside a verdict reached in an otherwise proper trial.

This principle appears to be based on the prevailing

view that judicial fact-finders are capable of

disregarding prejudicial evidence.

Commonwealth v. Postie, 110 A.3d 1034, 1038 (Pa. Super. 2015)

(citation omitted).

The trial court, in its Pa.R.A.P. 1925(a) opinion in this matter, asserted

it had “no interest whatsoever in or personal knowledge of the case at bar,

and we did not have any bias or prejudice towards [Appellant] based on his

previous [CYS] matter or otherwise. We were fully capable of distinguishing

between [Appellant’s] criminal case and his [CYS] case.” Trial Ct. Op. at 15.

We have reviewed the entire record, and although the trial court may have

made statements that appear negative or prejudicial when read in isolation,

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we conclude that the trial court did not abuse its discretion when refusing to

recuse. See Postie, 110 A.3d at 1038.

Judgment of sentence vacated. Case remanded for resentencing.

Jusidiction reliquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/15/2016

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