Com. v. Strait, H.

J-S17030-23

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

:

HOWARD ANTHONY STRAIT :

:

Appellant : No. 1076 WDA 2022

Appeal from the Judgment of Sentence Entered August 15, 2022

In the Court of Common Pleas of Bedford County Criminal Division at

No(s): CP-05-CR-0000475-2019

BEFORE: LAZARUS, J., OLSON, J., and KING, J.

MEMORANDUM BY OLSON, J.: FILED: August 9, 2023

Appellant, Howard Anthony Strait, appeals from the judgment of

sentence entered August 15, 2022, as made final by the denial of his

post-sentence motion on August 26, 2022. We affirm.

In April 2019, the Commonwealth charged Appellant with various

offenses relating to sexual assaults against three minor children. The matter

proceeded to a jury trial on December 13, 2021. The next day, the jury found

Appellant guilty of rape by forcible compulsion; rape of a child; statutory

sexual assault (two counts); aggravated involuntary deviate sexual

intercourse of a child (“IDSI”); aggravated indecent assault of a child;

unlawful contact with a minor; corruption of minors – drug use; corruption of

minors – as a sexual offense (three counts); endangering the welfare of a

child (three counts); and indecent assault without consent of other (four

J-S17030-23

counts).1 Thereafter, the trial court ordered the Adult Probation Office of

Bedford County to prepare a presentence investigation report and the

Pennsylvania Sexual Offenders Assessment Board (“SOAB”) to determine

whether Appellant met the criteria of a Sexually Violent Predator (“SVP”). On

August 15, 2022, the trial court conducted a joint SVP and sentencing hearing.

Ultimately, the trial court held that the Commonwealth presented clear and

convincing evidence that Appellant met the criteria for designation as an SVP

and a Tier III registrant under the Sexual Offender’s Registration and

Notification Act (“SORNA”).2 The trial court also sentenced Appellant to an

aggregate term of 36 to 114 years’ imprisonment. Appellant filed a

post-sentence motion on August 23, 2022, which the trial court denied on

August 26, 2022. This timely appeal followed.

On appeal, Appellant raises the following issues:3

1. Did the [trial] court abuse its discretion by imposing a

manifestly excessive and unreasonable sentence?

2. Did the [trial] court commit reversible error in finding that

Appellant [met the criteria for designation as an SVP]?

Appellant’s Brief at 2.

____________________________________________

1 18 Pa.C.S.A. §§ 3121(a)(1); 3121(c); 3122.1(a)(1); 3123(b); 3125(b);

6138(a)(1); 6301(a)(1)(i); 6301(a)(1)(ii); 4304(a)(1); and 3126(a)(1),

respectively.

2 42 Pa.C.S.A. §§ 9799.10 to 9799.41.

3 We have reordered Appellant’s issues to correspond to the argument sections

included in his brief.

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In his first issue, Appellant raises a challenge to the discretionary

aspects of his sentence. Before we may conduct a merits analysis of

Appellant’s challenge, we must determine whether he properly invoked this

Court's jurisdiction. See Commonwealth v. Luketic, 162 A.3d 1149,

1159-1160 (Pa. Super. 2017) (“Only if the appeal satisfies [a four-part test]

may we proceed to decide the substantive merits of [an a]ppellant's claim.”)

We conduct a four-part analysis to determine: (1) whether

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902

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

sentencing or in a motion to reconsider and modify sentence,

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

defect, [see] 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, [see] 42 Pa.C.S.A.

§ 9781(b).

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

omitted).

Instantly, Appellant filed a timely notice of appeal, properly preserved

his claim by filing a post-sentence motion, and included a Rule 2119(f)

statement in his brief. See Appellant's Brief at 18-21. Thus, we turn to

whether he raised a substantial question. A substantial question is raised by

demonstrating that the trial court's actions were inconsistent with the

Sentencing Code or contrary to a fundamental norm underlying the sentencing

process. Commonwealth v. Bonner, 135 A.3d 592, 603 (Pa. Super. 2016).

This issue is evaluated on a case-by-case basis. Id. This Court will not look

beyond the statement of questions involved and the prefatory Rule 2119(f)

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statement to determine whether a substantial question exists.

Commonwealth v. Radecki, 180 A.3d 441, 468 (Pa. Super. 2018) (citation

omitted). Moreover, for purposes of determining what constitutes a

substantial question, “we do not accept bald assertions of sentencing errors,”

but rather require an appellant to “articulat[e] the way in which the court's

actions violated the sentencing code.” Commonwealth v. Malovich, 903

A.2d 1247, 1252 (Pa. 2006).

Herein, Appellant argues first that the trial court abused its discretion

because his “aggregate sentence of 36 to 114 years’ imprisonment appears

on its face to be excessive and patently unreasonable.” Appellant’s Brief at

10. In addition, Appellant argues that the trial court failed to consider

mitigating factors, such as his lack of criminal record, as required. Id. This

Court previously stated:

Generally, Pennsylvania law 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. Any challenge to the exercise of

this discretion ordinarily does not raise a substantial question.”

Commonwealth v. Prisk, 13 A.3d 526, 533 (Pa. Super. 2011).

See Commonwealth v. Hoag, 665 A.2d 1212 (Pa. Super.

1995) (stating an appellant is not entitled to a “volume

discount” for his crimes by having all sentences run

concurrently). In fact, this Court has recognized “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.” Commonwealth v. Lamonda, 52 A.3d 365,

372 (Pa. Super. 2012) (en banc) (citation omitted). That is “in

our view, the key to resolving the preliminary substantial

question inquiry is whether the decision to sentence

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consecutively raises the aggregate sentence to, what appears

upon its face to be, an excessive level in light of the criminal

conduct at issue in the case.” Prisk, 13 A.3d at 533 [(quotation

omitted)].

Commonwealth v. Austin, 66 A.3d 798, 808–809 (Pa. Supe. 2013).

Moreover, “this Court has held on numerous occasions that a claim of

inadequate consideration of mitigating factors does not raise a substantial

question for our review.” Commonwealth v. Cannon, 954 A.2d 1222, 1229

(Pa. Super. 2008); see Commonwealth v. Velez, 273 A.3d 6, 10 (Pa. Super.

2022) (noting that the “weight accorded to the mitigating factors or

aggravating factors presented to the sentencing court is within the

[sentencing] court's exclusive domain.”).

In this instance, the jury found Appellant guilty of 18 separate offenses,

involving three different minor victims. Additionally, the trial court “imposed

[Appellant’s] sentences in the standard range of the sentencing guidelines,

running only the most serious against each of the victims consecutively.” Trial

Court Opinion, 11/4/22, at 1-2. Hence, by “seeking a reduction in his

aggregate sentence, Appellant is seeking a further ‘volume discount’” which is

impermissible. Austin, 66 A.3d at 809; see also Commonwealth v.

Gonzalez-DeJesus, 994 A.2d 595, 599 (Pa. Super. 2010) (holding that,

because the appellant was “involved, on separate dates, in a robbery of two

individuals, and then a kidnapping of two individuals,” his claim did not “ring

of raising a substantial question” because he was not entitled to a “‘volume

discount.’”). In light of the number of victims, as well as the criminal conduct

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at issue, we conclude that the trial court’s imposition of consecutive

sentences, resulting in an aggregate sentence of 36 to 114 years’

incarceration, does not present a substantial question. See Prisk, 13 A.3d at

533 (holding that the appellant’s conviction of 314 counts relating to the

sexual abuse of his stepdaughter, resulting in the imposition of an aggregate

sentence of 633 to 1,500 years’ incarceration did not present a substantial

question). “Simply put, this is not a case where the trial court’s exercise of

discretion resulted in a sentence that is ‘grossly disparate to [Appellant’s]

conduct [or] viscerally appear as patently unreasonable.” Austin, 66 A.3d at

809 (quotation omitted). Moreover, Appellant’s claim that the trial court failed

to adequately consider mitigating factors, i.e., his lack of criminal record, fails

to give rise to a substantial question. Indeed, our case law is clear that claims

of inadequate consideration of mitigating factors do not raise a substantial

question. See Commonwealth v. Crawford, 257 A.3d 75, 79 (Pa. Super.

2021); see also Commonwealth v. Velez, 273 A.3d 6, 10 (Pa. Super. 2022)

(noting that the “weight accorded to the mitigating factors or aggravating

factors presented to the sentencing court is within the [sentencing] court's

exclusive domain.”). As Appellant did not raise a substantial question, we will

not review the merits of his discretionary sentencing claim.

In his second issue, Appellant challenges the trial court’s SVP

determination. It is unclear, however, whether Appellant is raising a

weight-of-the-evidence or a sufficiency challenge. Indeed, in the argument

section of his brief, Appellant argues that the court’s SVP determination was

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not “supported by clear and convincing evidence” and cites to this Court’s

previous decision in Commonwealth v. Aumick, 2022 WL 533997 (Pa.

Super. 2022),4 which dealt with a challenge to the sufficiency of the evidence

for an SVP determination. In developing his claim, however, Appellant

references

22 character letters, many of which were written by people who

have known Appellant for most of their lives, and many of which

expressed dismay at the charges lodged against him, their

belief that the victims were being dishonest, and how much

their children love and miss spending time with Appellant.

Appellant’s Brief at 15. Appellant claims that these letters “should, at a

minimum, have caused hesitancy.” Id. In addition, Appellant challenges the

testimony of the Commonwealth’s expert, William G. Allenbaugh, II, claiming

that his testimony should be discounted because he “relied exclusively on

documents submitted by third parties,” instead of, inter alia, interviewing

Appellant, administering tests to Appellant, and interviewing or reviewing the

testimony of the victims. Id. at 16. Appellant asserts that the aforementioned

omissions may not be dispositive, but “weigh in favor” of reversing Appellant’s

SVP determination. Id. This language, therefore, rings as a challenge to the

weight-of-the-evidence. We will therefore address both potential challenges

to Appellant’s SVP determination.

____________________________________________

4 This decision was withdrawn and subsequently superseded by

Commonwealth v. Aumick, 2023 WL 3939850, *1 (Pa. Super. 2023) (en

banc).

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We first address Appellant’s claim that the trial court’s SVP

determination was against the weight-of-the-evidence. Where an appellant

claims that an SVP determination is against the weight of the evidence, we

apply the following standard:

Our standard of review of a weight of the evidence claim is for

an abuse of discretion. 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. Indeed, it is oft-stated

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. We discern no basis on which to distinguish our

standard of review on weight claims, whether challenging the

weight of the evidence to support a guilty verdict or a trial

court's SVP determination. A defendant must put the issue

before the trial court in the first instance because it is not the

function of the appellate court to substitute its judgment based

on a cold record for that of the trial court. The weight to be

accorded conflicting evidence is exclusively for the fact finder,

whose findings will not be disturbed on appeal if they are

supported by the record.

Commonwealth v. Ratushny, 17 A.3d 1269, 1272 (Pa. Super. 2011)

(internal citations and quotation marks omitted).

As suggested by the foregoing, a challenge to the weight of the evidence

must be initially raised before the trial court. Appellant, however, failed to

raise a weight challenge to his SVP determination orally during the August 15,

2022 hearing. See Pa.R.Crim.P. 607(A)(1) (explaining that a “claim that the

verdict was against the weight of the evidence shall be raised with the trial

judge in a motion for a new trial[] orally, on the record, at any time before

sentencing”); see also N.T. Hearing, 8/13/22, at 1-85. Furthermore,

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Appellant’s post-sentence motion did not frame his challenge to his SVP

determination in terms of a weight-of-the-evidence claim. To the contrary,

Paragraph 4(A) of Appellant’s post-sentence motion simply states: “The [trial

court] erred in finding that [Appellant] is a [SVP].” Appellant’s Post-Sentence

Motion, 8/23/22, at *1 (unpaginated). As such, we deem Appellant’s

challenge waived. See Ratushny, 17 A.3d at 1272 (holding that the appellant

waived his weight-of-the-evidence challenge to the trial court’s SVP

determination because he did not raise his claim in a post-sentence motion).

We now review Appellant’s challenge to the sufficiency of the evidence

supporting his SVP determination. Our standard of review is de novo and our

scope of review is plenary. Commonwealth v. Meals, 912 A.2d 213, 218

(Pa. 2006).

The determination of a defendant's SVP status may only be

made following an assessment by the [SOAB] and [a] hearing

before the trial court. In order to affirm an SVP designation, we,

as a reviewing court, must be able to conclude that the

fact-finder found clear and convincing evidence that the

individual is a sexually violent predator. As with any sufficiency

of the evidence claim, we view all evidence and reasonable

inferences therefrom in the light most favorable to the

Commonwealth[, as the prevailing party on this issue]. We will

reverse a trial court's determination of SVP status only if the

Commonwealth has not presented clear and convincing

evidence that each element of the statute has been satisfied.

Commonwealth v. Fuentes, 991 A.2d 935, 941-942 (Pa. Super. 2010) (en

banc) (citation omitted), appeal denied, 12 A.3d 370 (Pa. 2010). The clear

and convincing standard governing a determination of SVP status “requires

evidence that is so clear, direct, weighty, and convincing as to enable the

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trier[-]of[-]fact to come to a clear conviction, without hesitancy, of the truth

of the precise facts in issue.” Meals, 912 A.2d at 219 (citation, original

quotation marks, and original brackets omitted).

Section 9799.12 of SORNA defines the term “sexually violent predator”

as,

[a]n individual who committed a sexually violent offense on or

after December 20, 2012, for which the individual was

convicted, [] who is determined to be a [SVP] under section

9799.24 (relating to assessments) due to a mental abnormality

or personality disorder that makes the individual likely to

engage in predatory sexually violent offenses.

42 Pa.C.S.A. § 9799.12; see also Commonwealth v. Butler, 226 A.3d 972,

992 (Pa. 2020) (stating, an SVP, in addition to having been convicted of a

sexually violent offense, is a person “who [has] been individually determined

to suffer from a mental abnormality or personality disorder such that they are

highly likely to continue to commit sexually violent offenses”). A “sexually

violent offense” is defined by SORNA as “[a]n offense specified in section

9799.14 (relating to sexual offenses and tier system) as a Tier I, Tier II[,] or

Tier III sexual offense committed on or after December 20, 2012, for which

the individual was convicted.” 42 Pa.C.S.A. § 9799.12. “Predatory” is defined

by SORNA 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.

Under Section 9799.24 of SORNA, after a defendant is convicted of a

sexually violent offense but before sentencing, the trial court shall order the

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SOAB to conduct an “assessment of the individual to determine if the

individual should be classified as a [SVP.]” 42 Pa.C.S.A. § 9799.24(a) and

(b). In performing its assessment, the SOAB examines, inter alia 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.[5]

(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.

(ii) Use of illegal drugs.

(iii) Any mental illness, mental disability or mental

abnormality.

(iv) Behavioral characteristics that contribute to the

individual's conduct.

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(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. § 9799.24(b)(1-4).

Herein, Appellant takes issue with the testimony of the Commonwealth’s

expert, William G. Allenbaugh, II. He argues that the trial court erred in

relying upon his testimony and finding by clear and convincing evidence that

Appellant is an SVP because Allenbaugh’s relied “on documents submitted by

third parties,” failed to interview or administer tests to Appellant, and did not

interview or otherwise review the testimony of the victims. Appellant’s Brief

at 16.

In a recent decision, however, this Court explained the type of evidence

an SOAB member is permitted to consider when testifying at an SVP hearing.

We stated:

Pursuant to revised Subchapter H, the SOAB must undertake a

comprehensive assessment of a defendant convicted of a

sexually violent offense by considering the fifteen factors set

forth in section 9799.24(b)(1)-(4). See id.

§ 9799.24(b)(1)-(4). Section 9799.24(c) expressly requires

that “[a]ll State, county and local agencies, offices and entities

in this Commonwealth, including juvenile probation officers,

shall cooperate by providing copies of records and information

as requested by the board in connection with the court-ordered

assessment[.]” 42 Pa.C.S.A. § 9799.24(c) (emphasis

[omitted]). Moreover, within ninety days of a defendant's

qualifying conviction, the SOAB must prepare a written report

regarding its assessment which includes, at a minimum, the

following information: (1) a concise narrative of the individual's

conduct; (2) whether the victim was a minor; (3) the manner

of weapon or physical force used or threatened; (4) if the

offense involved unauthorized entry into a room or vehicle

occupied by the victim; (5) if the offense was part of a course

or pattern of conduct involving multiple incidents or victims;

and (6) previous instances in which the individual was

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determined guilty of an offense subject to this subchapter or of

a crime of violence as defined in section 9714(g) (relating to

sentences for second and subsequent offenses). Id.

§ 9799.24(d), (d.1).

Given these statutory mandates, it is clear that the legislature

intended that the SOAB member consider more than the limited

facts included in a plea colloquy, and that the SOAB member

undertake to review and consider the information contained in

records provided by state, county and local agencies, offices

and entities in this Commonwealth when making an SVP

assessment and preparing a statutorily compliant written

report. To be sure, it would be the rare occasion on which the

SOAB member would be able to fulfill its statutory obligations if

its SVP assessments and written reports were limited to facts

contained in a plea colloquy, admitted into evidence, or

determined by the trier of fact.

Aumick, 2023 WL 3939850 at *8 (footnote omitted).

Herein, we conclude that Appellant’s contention that Allenbaugh’s

testimony was patently flawed because he did not interview Appellant or the

victims in this matter and, instead, relied upon documentation “submitted by

third parties” is at odds with our decision in Aumick. Appellant’s Brief at 16.

First, upon review, it is apparent that Allenbaugh based his opinion upon his

review of the SOAB investigation report, submitted by the SOAB investigator,

pursuant to 42 Pa.C.S.A. § 9799.24 (d.1). See N.T. Hearing, 8/15/22, at 15.

Per Aumick, Allenbaugh’s review of this information was not only permissible,

it was required. Second, Appellant’s claim regarding Allenbaugh’s failure to

interview him or the victims in this matter is, in essence, an invitation “to this

Court to reweigh the evidence and find in his favor, which we cannot do.” 5

____________________________________________

5 Appellant declined to be interviewed. See N.T. Hearing, 8/15/22, at 15.

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Aumick, 2023 WL 3939850 at 9; see also Fuentes, 991 A.2d at 945 (Pa.

Super. 2010) (holding that the appellant’s challenge to the documentation

considered by the SOAB expert “affect[ed] the weight, and not the sufficiency

of the expert’s evidence”). Accordingly, we conclude that Appellant’s

challenge to Allenbaugh’s expert testimony lacks merit.

Moreover, we conclude that the trial court did not err in determining

that the Commonwealth presented clear and convincing evidence that

supports a finding that Appellant is an SVP. At the August 15, 2022 hearing,

the trial court set forth the basis for its conclusion as follows:

So, on review of [] Allenbaugh's testimony he testified as a

credible witness on it. Obviously, he has testified as an expert

before. We [have] admitted him as an expert in his field for

today's purposes as well. So, the standard here is by clear and

convincing evidence. And this [c]ourt has to find that, one,

[Appellant] was convicted of an enumerated offense in 9799,

Section 9799.12. Clearly, he has. So, he qualifies for the SVP

hearing and the assessment. And then we have to find by clear

and convincing evidence that whether or not due to a mental

abnormality or personality disorder that makes the individual

likely to engage in predatory sexually violent sexual offenses. I

find based on the testimony given by [] Allenbaugh and my,

also in my own assessment of the evidence in the case I find

that the Commonwealth has proven that by clear and

convincing evidence.

Here as we go down the factors the numbers, the number of

the victims weighs very heavily here. Here we have not one

victim, not two victims, but three victims. [] Allenbaugh did

indicate that there were four victims in the case. He seemed to

be operating, and this happens sometimes during trials like this

where the SOAB investigator reports some information that did

[not] make it to trial. So, I am cognizant of that fact.

So, he did indicate there were four victims. There were actually

only [three] at trial. So, let me get that out in the open. I [am]

only operating on the evidence that was presented here at trial

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such that it overlaps with [] Allenbaugh's assessment, and what

he testified to. But there were [three] victims that testified at

trial. So, there [were] multiple victims here that were sexually

abused. The age of the victims weighs very heavily here. He

had the age ranges of [nine] to, either [nine] to 12 or [nine] to

13. Again, I think perhaps he [is] taking into account the fourth

alleged victim that was never produced at trial.

My review of the testimony, from my notes, and I believe from

the transcripts is that the age ranges for the [three] victims that

testified is 10 to 12. Regardless, even if it is 10 to 12, the age

of the victims here is very young. So, also the nature of those

victims that they were prepubescent in nature at the time of the

sexual abuse. So, both the age and also they were

prepubescent. Sorry.

In addition to that the acts of the, committed against the victims

here ranging from sexual intercourse to IDSI to [a]ggravated

[i]ndecent [a]ssault on the one victim. And taking also into

account, I agree with [] Allenbaugh it, it [is] further

victimization and predatory behavior to use drugs to entice,

either entice, or make it easier to victimize the victims that were

involved here. In addition of that the length of the sexual

relationship between the [Appellant] and the victims here. It

did not occur just once. It occurred over a range of time. Given

their testimony over at least a couple of years. Again[,] from

their ages being 10 to 12. So, that [is] the key evidence in my

mind that shows that he does suffer from mental abnormality

in the way of pedophilia because these were prepubescent

children that he was offending. And that it does make him

likely to engage in predatory sexually violent offenses because

of all the information that I just went over there.

I understand the defense counsel's argument, it [is] not

dispositive that here against the SVP hearing that he did [not]

interview [Appellant]. If that were the case we could, you

know, the defendant could just basically stonewall the

proceedings and not participate in an interview, and then we

could never find an SVP. So, that [is] not dispositive. It [is]

also not dispositive that he did [not] have any prior record. I

mean I think your argument is it is relevant. I mean that [is]

relevant because it's a factor. But it [is] certainly not dispositive

here given what the testimony was at the trial, and what the

jury convicted him of. So[,] based on the information I just

went over there I do find by clear and convincing evidence that

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[Appellant] does meet the definition of a [SVP] as its defined

under Pennsylvania law.

N.T. Hearing, 8/15/22, 47-51. Viewing the evidence in the light most

favorable to the Commonwealth, as the prevailing party, we concur with the

trial court that there was sufficient clear and convincing evidence to designate

Appellant as an SVP. As such, Appellant’s sufficiency claim fails.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 8/9/2023

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