Com. v. Zeigafuse, D.

J-S81038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID L. ZEIGAFUSE

Appellant No. 872 EDA 2016

Appeal from the Judgment of Sentence December 14, 2015

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0001557-2014

BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 05, 2016

This is an appeal from the judgment of sentence entered in the Court

of Common Pleas of Northampton County following Appellant’s plea of nolo

contendere to one count of indecent assault--less than 13 years old, one

count of corruption of minors, one count of endangering the welfare of a

child, and one count of indecent exposure.1 We affirm.

The relevant facts and procedural history are as follows: Appellant

was arrested, and on September 1, 2015, represented by counsel, he

proceeded to a hearing at which he entered a plea of nolo contendere to the

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1

18 Pa.C.S.A. §§ 3126(a)(7), 6103(a), 4304(a), and 3127(a), respectively.

*

Former Justice specially assigned to the Superior Court.

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charges indicated supra. At the hearing, the Commonwealth presented

evidence of a video from Walmart depicting Appellant taking his eight-year

old daughter into the men’s bathroom and then exiting fifteen minutes later.

N.T., 9/1/15, at 7. The child later reported that, while in the bathroom,

Appellant showed her his penis and had sexual contact with her. Id.

At the conclusion of the hearing, the trial court ordered the

Pennsylvania Sexual Offenders Board (“the Board”) to evaluate whether

Appellant qualified as a sexually violent predator (“SVP”) under the Sexual

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §

9799.10 et seq. Id. at 8-9. The trial court further ordered a full

presentence investigation (“PSI”) be performed. Id. at 9.

On December 14, 2015, Appellant proceeded to a hearing at which the

trial court initially conducted a SVP hearing. Specifically, Paula Brust, a

member of the Board who the trial court deemed to be qualified to testify as

an expert in the field of sexual offender assessment, indicated that she

reviewed the pertinent police reports, affidavit of probable cause, the

victim’s interviews, the March 1, 2015, psychiatric report prepared by Dr.

Alex Thomas, and the May 12, 2015, psychological report prepared by Dr.

Robert Wisser. N.T., 12/14/15, at 11. She noted the Board sent a letter to

defense counsel requesting that Appellant participate in an interview, but

defense counsel failed to respond. Id. at 13. She further noted that

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Appellant’s failure to participate in the evaluation did not prevent her from

conducting an assessment as to Appellant’s SVP designation. Id.

Ms. Brust opined that, based on her evaluation and to a reasonable

degree of certainty, Appellant has a personality disorder or a mental

abnormality, i.e., he meets the diagnostic criteria set forth in the Diagnostic

and Statistical Manual, fifth edition, for the diagnosis of pedophilic disorder.

Id. at 14, 16. Ms. Brust explained that the essential features of a pedophilic

disorder are (1) the person has at least six monthly intense, sexually

arousing fantasies, sexual urges, or behavior involving sexual contact with

prepubescent children, who are generally thirteen years old or younger, (2)

the person has acted on these sexual urges or fantasies, and (3) the person

is at least sixteen years old and at least five years older than the victim. Id.

at 14-15. Ms. Brust opined “[Appellant] meets all [of] th[e]se diagnostic

criteria [for] having sexually assaulted his minor daughter for a number of

years in various ways.” Id. at 15.

Ms. Brust noted that some of the specific facts which support her

opinion include the fact Appellant sexually assaulted his minor daughter from

January 2009 to December 2013. Id. Moreover, the victim was three years

old when the assaults began and eight years old when the assaults were

disclosed. Id. Ms. Brust noted the assaults were disclosed when someone

witnessed the abuse and Appellant took a risk by assaulting the victim in

public. Id. Moreover, Ms. Brust noted the victim reported that Appellant

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sexually assaulted her in their home in various ways, including rubbing her

genitals, exposing himself to her, and rubbing his penis on and in her vaginal

area. Id. at 15-16.

Ms. Brust also opined, to a reasonable degree of certainty, that

Appellant has engaged in predatory behavior. Id. at 16-17. She noted

“[p]redatory is defined as an act directed at a stranger or a person with

whom a relationship has been maintained, established, promoted or initiated

in whole or in part for purposes of sexual victimization.” Id. at 16. In this

regard, she opined that Appellant assaulted his daughter for many years in

different places, some of them to include public places, and his relationship

with her “wasn’t a caring, loving father like he should have been.” Id. at 17.

She noted the relationship was “twisted and altered” so he could assault her.

Id.

Finally, Ms. Brust opined, to a reasonable degree of certainty, that

Appellant is likely to reoffend and that his mental disorder is not curable.

Id. In this regard, she noted the sexual assaults did not end until someone

witnessed the abuse.

Based on all of the aforementioned, Ms. Brust opined, to a reasonable

degree of certainty, that Appellant meets the statutory criteria to be

classified as a SVP. Id.

On cross-examination, Ms. Brust admitted that, in his psychiatric

report, Dr. Thomas did not include the diagnosis of pedophilic disorder. Id.

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at 23. Further, she admitted Dr. Wisser did not reference pedophilic

disorder in his psychological report. Id. at 24-25.

However, on redirect-examination, Ms. Brust noted that, in his

psychiatric report, Dr. Thomas indicated Appellant should have a sexual

offender evaluation and, if found to be a sexually violent offender, Appellant

should be enrolled in a sex offender program. Id. at 29-30. Moreover, Ms.

Brust noted that, in Dr. Wisser’s psychological report, he indicated that

Appellant should have a sexual offender evaluation and then follow through

with any recommendations. Id. at 30. Thus, Ms. Brust testified both

doctors contemplated that someone would evaluate Appellant for purposes

of determining whether he is a sexually violent predator and that is precisely

what she did. Id. at 30-31.

At the conclusion of Ms. Brust’s testimony, the trial court indicated it

was moving on to the sentencing hearing and the court had in its possession

a PSI report. Id. at 36. The trial court permitted the victim’s mother to

read into evidence a victim impact statement. Id. at 37-42. The trial court

heard testimony from Appellant’s mother, who indicated Appellant would not

“hurt a fly...[and would] give the shirt off his back to anybody that needed

it.” Id. at 47.

The trial court asked Appellant if he would like to make a statement,

and Appellant indicated “No.” Id. at 48. The prosecutor asked the trial

court to take into account the seriousness of the offenses, as well as

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Appellant’s need for rehabilitation. Id. at 43. Appellant’s counsel asked for

a standard range sentence. Id. at 48-49.

At the conclusion of all testimony, the trial court, indicating it had

reviewed the PSI report, the sentencing guidelines, and the plea colloquy,

stated the following:

[Appellant], you are a very sick individual and you need

serious, serious treatment. And clearly the County of

Northampton is not suitable to give you that treatment.

When I balance your rehabilitative needs versus the need

to protect society, on a whole, I come to one conclusion that you

need to be placed in confinement for a period of time that is

going to allow you to receive sufficient treatment, that these

deprivations would never take place again.

***

On the first count of indecent assault I sentence you to 12

to 84 months in a state correctional institution.

On the corruption of minors charge I sentence you to a

consecutive term of 12 to 84 months in a state correctional

institution.

On the endangering the welfare of a child, I sentence you

to a consecutive term of 12 to 84 months in a state correctional

institution.

I sentence you to a consecutive term of 60 months

probation on the remaining charge of indecent exposure.

Id. at 49-51.

The trial court then indicated it found Appellant to be a SVP and

subject to all requirements of SORNA. Id. at 52. The trial court noted it

made this finding based upon the experts’ reports and, in particular, found

“the opinion of Ms. Brust is credible[.]” Id. Appellant was then provided

with his post-sentence and appellate rights.

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On December 24, 2015, Appellant filed a timely, counseled post-

sentence motion, which the trial court denied, and this timely appeal

followed. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)

statement, Appellant timely complied, and the trial court filed a responsive

opinion.

Appellant first contends the trial court erred in classifying him as a SVP

since the Commonwealth failed to prove by clear and convincing evidence

that Appellant meets the criteria for such a classification. Specifically,

Appellant suggests Ms. Brust’s testimony failed “to rise to the level of the

clear and convincing standard[.]”2 Appellant’s Brief at 12.

The standards governing our review of the sufficiency of the evidence

with respect to a SVP determination are well established:

A challenge to the sufficiency of the evidence is a question

of law subject to plenary review. We must determine whether

the evidence admitted at [the SVP hearing] and all reasonable

inferences drawn therefrom, when viewed in the light most

favorable to the Commonwealth as the verdict winner, is

sufficient to support all elements of the [statute]. A reviewing

court may not weigh the evidence or substitute its judgment for

that of the trial court.

At a hearing prior to sentencing the court shall determine

whether the Commonwealth has proved by clear and convincing

evidence that the individual is a sexually violent predator. In

reviewing the sufficiency of the evidence regarding the

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2

Appellant also suggests the trial court erred in failing to announce its SVP

determination prior to imposing Appellant’s sentence. See Appellant’s Brief

at 11. We find this specific issue to be waived as Appellant failed to include

it in his court-ordered Pa.R.A.P. 1925(b) statement. See Pa.R.A.P.

1925(b)(4)(vii).

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determination of SVP status, we will reverse the trial court only if

the Commonwealth has not presented clear and convincing

evidence sufficient to establish each element required by the

statute.

Commonwealth v. Evans, 901 A.2d 528, 534 (Pa.Super. 2006) (citations

omitted; bracketed information in original).

SORNA defines a SVP as:

[a] person who has been convicted of a sexually violent offense

as set forth in § 9795.1 (relating to registration)3 and who is

determined to be a sexually violent predator under § 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.A. § 9792 (footnote added). SORNA defines a “mental

abnormality” as “[a] congenital or acquired condition of a person that affects

the emotional or volitional capacity of the person in a manner that

predisposes that person to the commission of criminal sexual acts to a

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

persons.” Id. Further, SORNA defines “predatory” as “[a]n 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.” Id.

Among the relevant sections of SORNA, Section 9795.4 provides:

§ 9795.4. Assessments

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3

Appellant does not dispute that he was convicted of such an offense.

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(a) Order for assessment.—After conviction but before

sentencing, a court shall order an individual convicted of an

offense specified in [S]ection 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.

(b) Assessment.—Upon receipt from the court of an order for

an assessment, a member of the board as designated by the

administrative officer of the board shall conduct an assessment

of the individual to determine if the individual should be

classified as a sexually violent predator. The board shall

establish standards for evaluations and for evaluators conducting

the assessments. 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.

(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.

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The above Section delineates a non-exclusive list of factors to consider

in the SVP assessment of a defendant. “[However,] there is no statutory

requirement that all of [the factors] or any particular number of them be

present or absent in order to support an SVP designation. The factors are

not a checklist with each one weighing in some necessary fashion for or

against SVP designation.” Commonwealth v. Brooks, 7 A.3d 852, 863

(Pa.Super. 2010) (quotation omitted). Thus, “[t]he Commonwealth does not

have to show that any certain factor is present or absent in a particular

case.” Id. (quotation omitted). Moreover, “to carry its burden of proving

that an offender is an SVP, the Commonwealth is not obliged to provide a

clinical diagnosis by a licensed psychiatrist or psychologist” of a personality

disorder or mental abnormality. Commonwealth v. Conklin, 587 Pa. 140,

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

Instantly, in concluding the Commonwealth carried its burden, the trial

court reasoned as follows:

On December 14, 2015, a [SVP] hearing was held in which

[Ms.] Brust, who was accepted as an expert by th[e] [c]ourt,

testified as follows to a reasonable degree of certainty[.] The

purpose of the assessment is to determine whether or not

[Appellant] meets the criteria set forth in the statute to be

classified as an SVP. In formulating her opinion, she relied on

police reports, Affidavits of Probable Cause, children’s advocacy

interviews with the victim, psychiatric and psychological

evaluations, among other things. Ms. Brust did not have a

chance to interview [Appellant] personally because there was no

response as to his participation from counsel. According to the

statute, [Appellant] may be evaluated for SVP designation

despite his lack of participation and must possess either a

mental abnormality or a personality disorder that makes it likely

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that he will engage in predatory sexual behavior. In Ms. Brust’s

expert opinion, [Appellant] does meet the diagnostic criteria set

forth in the Diagnostic and Statistical manual for the diagnosis of

pedophilic disorder, which is characterized by at least six

monthly intense sexually arousing fantasies, sexual urges or

behaviors involving sexual contact with a prepubescent child,

generally age 13 or younger. In order to have pedophilic

disorder, a person must also have acted on these sexual urges

or fantasies and be over the age of 16 and at least 5 years older

than the victim.

Here, [Appellant] was reported to have sexually assaulted

his minor daughter between January 2009 and December 2013.

She was approximately three years old when the assault began

and eight years old when it was finally disclosed. Additionally,

the victim was interviewed and said her father would assault her

multiple times and in multiple ways, rubbing her genital area,

exposing himself and rubbing his penis on and in her vaginal

area. Further, the places in which [Appellant] assaulted his

daughter included public places, which is essentially how

[Appellant] got caught. It is Ms. Brust’s expert opinion that had

[Appellant] not gotten caught he would have continued the

assault and, thus, is likely to reoffend.

***

Here, Ms. Brust. . .testified that, in her expert opinion,

[Appellant] has pedophilic disorder. As discussed [above], Ms.

Brust identified each of the elements of this disorder and

explained to the [c]ourt how [Appellant] meets each of these

criteria to a degree of professional certainty.

Trial Court Opinion, filed 4/7/16, at 2-3.

The records supports the trial court’s sound reasoning. Evans, supra.

Additionally, we note that, as to the “predatory” element set forth under

SORNA, Ms. Brust testified that Appellant was not a caring, loving father;

but rather, he had a “twisted and altered” relationship with the victim which

promoted the sexual assaults. N.T., 12/14/15, at 17. The trial court was

free to accept Ms. Brust’s testimony, and we conclude the evidence was

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sufficient to support Appellant’s SVP classification under the clear and

convincing standard.

Appellant next contends the trial court abused its discretion in

imposing an excessive sentence where the maximum sentence is seven

times the minimum sentence for the offenses of indecent assault, corruption

of minors, and endangering the welfare of children. In this regard, Appellant

concedes the minimum sentence for each offense is within the standard

range of the sentencing guidelines, see Appellant’s Brief at 13; however, he

argues the sentences are excessive in light of the trial court’s failure to

consider the factors set forth in 42 Pa.C.S.A. § 9721(b) related to the

protection of the public, the gravity of the offense, and the rehabilitative

needs of Appellant. 4

Appellant’s issue challenges the discretionary aspects of his sentence,

for which there is no automatic right to appeal. Commonwealth v.

Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010). To reach the merits of a

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We note that 42 Pa.C.S.A. § 9756(b) provides that “[t]he court shall

impose a minimum sentence of confinement which shall not exceed one-half

of the maximum sentence imposed.” In the case sub judice, Appellant does

not dispute that his minimum sentences do not exceed one-half of the

maximum sentences imposed. Moreover, we note that, while “a sentencing

court must impose a maximum sentence that is at least twice the

minimum[,]. . .there is no restriction placed on the court's decision

regarding the maximum sentence, aside from the statutory maximum[.]”

Commonwealth v. Edwards, 906 A.2d 1225, 1230 (Pa.Super. 2006).

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discretionary aspects of sentencing claim, this Court must conduct a four-

part analysis to determine:

(1) whether appellant filed a timely notice of appeal, Pa.R.A.P.

902, 903; (2) whether the issue was properly preserved at

sentencing or in a motion to reconsider and modify sentence,

Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal

defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial

question that the sentence appealed from is not appropriate

under the Sentencing Code.

Id. (citation omitted). A substantial question exists when “the appellant

advances a colorable argument that the sentencing judge's actions were

either: (1) inconsistent with a specific provision of the Sentencing Code; or

(2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013)

(citations and quotation marks omitted).

Here, Appellant filed a timely notice of appeal, sufficiently raised the

issue in his timely post-sentence motion,5 and complied with the briefing

requirements of Pa.R.A.P. 2119(f). Moreover, we conclude the issue

presents a substantial question permitting our review. See Commonwealth

v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (holding the argument that

“the trial court failed to consider the factors set forth in 42 Pa.C.S.A. §

9721(b)” presented a substantial question for our review).

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5

He also adequately presented the issue in his court-ordered Rule 1925(b)

statement.

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Turning to the merits, our standard of review of a sentencing challenge

is well-settled:

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. Johnson, 125 A.3d 822, 826 (Pa.Super. 2015) (citation

omitted).

When imposing a sentence, the sentencing court must

consider the factors set out in 42 [Pa.C.S.A.] § 9721(b), that is,

the protection of the public, gravity of offense in relation to

impact on victim and community, and rehabilitative needs of the

defendant. And, of course, the court must consider the

sentencing guidelines.

Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en

banc) (citation and quotation marks omitted). “Where, as here, the trial

court has the benefit of a pre-sentence report, we presume that the court

was aware of relevant information regarding the defendant's character and

weighed those considerations along with any mitigating factors.” Johnson,

125 A.3d at 827 (citation omitted).

In the case sub judice, the trial court specifically indicated it had in its

possession the PSI report, the reports of Drs. Thomas and Wisser, the

sentencing guidelines, and Appellant’s plea colloquy. N.T., 12/14/15, at 36.

The trial court accepted into evidence Appellant’s medical records and heard

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statements from the victim’s mother, as well as Appellant’s mother. In

imposing its sentence, the trial court specifically stated it was considering

Appellant’s rehabilitative needs versus the need to protect society as a

whole. Id. at 49.

Moreover, in its opinion, the trial court noted:

[Appellant] claims that the sentence imposed upon [him] is

excessive and an abuse of discretion where the maximum

sentence is seven (7) times the minimum sentence for indecent

assault, corruption of minors, and endangering the welfare of

children. The sentences imposed, however, do not exceed the

statutorily prescribed limits and are not so manifestly excessive

as to constitute too severe a punishment given the alarming

circumstances which surround the reported incidents of abuse

(including, but not limited to: the age of the victim, the

frequency of the abuse and [Appellant’s] relationship with the

victim). Therefore, the sentences imposed do not transgress the

bounds of th[e] [c]ourt’s sentencing discretion.

Trial Court Opinion, filed 4/7/16, at 4.

We find no abuse of discretion in this regard, Johnson, supra, and for

all of the foregoing reasons, we affirm Appellant’s judgment of sentence.

Affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016

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