Opinion
J-S29020-15 No. 1295 WDA 2014
08-04-2015
COMMONWEALTH OF PENNSYLVANIA Appellee v. IVAN CARL SCHAEFER Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence July 21, 2014
In the Court of Common Pleas of Lawrence County
Criminal Division at No(s): CP-37-CR-0000665-2013
BEFORE: PANELLA, J., MUNDY, J., and STRASSBURGER, J. MEMORANDUM BY MUNDY, J.:
Retired Senior Judge assigned to the Superior Court.
Appellant, Ivan Carl Schaefer, appeals from the July 21, 2014 aggregate judgment of sentence of seven to 14 years' incarceration followed by five years' probation, imposed after he pleaded guilty to one count each of statutory sexual assault, aggravated indecent assault, disseminating obscene and other sexually explicit materials to a minor, and sexual abuse of children/possession of child pornography. Specifically, he challenges the determination by the trial court that he is a sexually violent predator (SVP) pursuant to the Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41. Upon careful review, we affirm.
18 Pa.C.S.A. §§ 3122.1(b), 3125(a)(8), 5903(c)(1), and 6312(d)(1), respectively.
On April 30, 2013, Appellant was arrested and charged with numerous sex and child abuse offenses in connection with his victimization of a 13-year-old female. The trial court summarized the factual circumstances of the offenses as follows.
[Appellant's] offense[s] involve[] a female who was 13 years of age at the time of the offenses. The victim is of normal intellectual and physical capacity. [Appellant] met the victim's family on January 7, 2013, at a Tack Shop and a friendship developed due to a mutual interest in bull riding. [Appellant] advised the victim's mother he did not have a place to reside[,] and she allowed him to reside at their residence until he could find a place of his own. [Appellant] started residing with the victim and her family on February 14, 2013, and was requested to leave that residence on March 16, 2013. [Appellant] and victim became friends during this approximate one month period of time residing together and afterwards contact was maintained between the two of them by way of social media messaging and telephone calls. Nude photographs were exchanged electronically and the victim would secretly remove herself from the residence during the early morning hours so she could meet with [Appellant] nearby in his truck where sexual activities would occur. ...Trial Court Order, 7/21/14, at 5 ¶ 14.
[Appellant] was 39 years of age at the time the offenses were committed.
On September 18, 2013, Appellant entered a negotiated guilty plea to the previously mentioned charges. After a number of continuances, a hearing was held on July 9, 2014, to determine Appellant's SVP status. The sole witness at the SVP hearing was Cathy L. Clover, a psychologist member of the Sexual Offender Assessment Board (SOAB). Subsequently, by order dated July 15, 2014, and filed on July 21, 2014, the trial court entered an order, determining Appellant to be an SVP. That same day, the trial court sentenced Appellant to the afore-stated negotiated aggregate sentence. No post-sentence motion was filed. Appellant filed a timely notice of appeal on August 6, 2014.
Specifically, the trial court sentenced Appellant to three to six years' incarceration on the statutory sexual assault count, a consecutive four to eight years' on the aggravated indecent assault count, a consecutive five year term of probation on the disseminating obscene and other sexually explicit materials to a minor count, and a concurrent five years' probation on the sexual abuse of children/possession of child pornography count.
Appellant and the trial court have complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following issues for our review.
1. Whether the [t]rial [c]ourt abused its discretion in imputing undue credibility to the testimony of the Commonwealth's expert witness in reaching its determination as to Appellant's SVP status, thereby resulting in a finding that is against the weight of the evidence?Appellant's Brief at 4.
2. Whether the [t]rial [c]ourt abused its discretion imputing undue credibility to the testimony of the Commonwealth's expert witness in reaching its determination as to Appellant's SVP status, thereby resulting in a finding based upon insufficient evidence?
Appellant's first issue is a challenge to the weight of the evidence supporting the trial court's SVP determination. Id. at 12. We conclude Appellant has waived this issue.
Our standard of review of a weight of the evidence claim is for an abuse of discretion. [A]ppellate 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 quotation marks and citations omitted, emphasis added). "[A] weight of the evidence claim must be preserved either in a post-sentence motion, by a written motion before sentencing, or orally prior to sentencing. Pa.R.Crim.P. 607. Failure to properly preserve the claim will result in waiver, even if the trial court addresses the issue in its [Rule 1925(a)] opinion." Commonwealth v. Thompson , 93 A.3d 478, 490 (Pa. Super. 2014) (some citations omitted).
Instantly, Appellant did not file a post-sentence motion. Our review of the record further reveals that Appellant did not raise an oral or written weight of the evidence challenge at any time after the issuance of the trial court's SVP status order, including prior to or during sentencing. Because the trial court had no opportunity to rule on the weight-of-the-evidence challenge, there is no exercise of discretion by the trial court for us to review, and we conclude the issue is waived. See Ratushny , supra.
Appellant next challenges the sufficiency of the evidence supporting the trial court's determination that Appellant is an SVP. Appellant's Brief at 16. Our standard of review for such a challenge is well settled.
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[n SVP]. As with any sufficiency of the evidence claim, we view all evidence and reasonable inferences therefrom in the light most favorable to the Commonwealth. We will reverse a trial court's determination of SVP status only if the Commonwealth has not presented clear and convincing evidence that each element of the statute has been satisfied.Commonwealth v. Hollingshead , 111 A.3d 186, 189 (Pa. Super. 2015), quoting Commonwealth v . Baker , 24 A.3d 1006, 1033 (Pa. Super. 2011), affirmed 78 A.3d 1044 (Pa. 2013). "The clear and convincing standard requires evidence that is so clear, direct, weighty and convincing as to enable [the trier of fact] to come to a clear conviction, without hesitancy, of the truth of the precise facts [at] issue. The scope of review is plenary." Commonwealth v. Prendes , 97 A.3d 337, 355-356 (Pa. Super. 2014), appeal denied, 105 A.3d 736 (Pa. 2014) (citations omitted). "Our task ... is one of review, not one of reweighing or assessing the evidence in the first instance." Id. at 356 (citation omitted).
The Sexual Offenders Reporting and Notification Act provides in pertinent part as follows.
§ 9799.24. Assessments
(a) Order for assessment.--After conviction but before sentencing, a court shall order an individual convicted of a sexually violent offense to be assessed by the [Sexual Offenders Assessment Board]. ...
(b) Assessment.... 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.
(ii) Use of illegal drugs.
(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.
...
(e) Hearing.—
...
42 Pa.C.S.A. § 9799.24.(3) At the 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 the instant case, the only testimony presented to the trial court at the SVP-status hearing was that of the SOAB certified examiner, Cathy Clover, M.A. Appellant contends that the trial court afforded her undue credibility because her testimony contained inaccuracies or showed her unfamiliarity with the timeline of events and Appellant's offending history. Appellant's Brief at 14-16. Appellant also contends Clover's alleged skepticism about the usefulness of some of the statutory factors in determining SVP status. Id. Appellant also claims the trial court failed to adequately acknowledge his argument that the "impetus behind the current offense," i.e., the unbidden invitation by the victim's mother for Appellant to reside with them, is a situation unlikely to be repeated. Id. at 14. Appellant claims these considerations, together with the fact he successfully completed 14 years of probation and treatment subsequent to his prior conviction, demonstrate that the Commonwealth failed to establish he was an SVP by clear and convincing evidence. Id. at 16.
In the face of a similar challenge to the trial court's determination of SVP status, this Court has held an appellant "mischaracterized his arguments as sufficiency of the evidence claims." In the case of Commonwealth v. Fuentes , 991 A.2d 935, 944 (Pa. Super. 2010) (en banc). We explained as follows.
[T]o the extent Appellant believes that [the expert report and testimony] was not fully explained, did not square with accepted analyses of the disorder, or was simply erroneous, he was free to introduceId. at 945 (citations omitted).
evidence to that effect and/or to argue to the fact-finder that the Commonwealth's expert's conclusions should be discounted or ignored. However, such arguments would affect the weight, and not the sufficiency of the expert's evidence.
Thus, we conclude that Appellant's challenge to the sufficiency of the evidence in this case is merely a recasting of his weight of the evidence claim and is waived. In any event, our review of the record leads us to conclude the evidence was sufficient to support the trial court's determination that Appellant was an SVP and that the statutory factors were considered. The trial court noted the qualifications of the sole witness at the SVP hearing.
As explained in Prendes , "there is no statutory requirement that all [the statutory factors] ... be present or absent in order to support an SVP designation. ... [T]he Commonwealth does not have to show that any certain factor is present or absent in a particular case." Prendes , supra at 358-359 (internal quotation marks and citations omitted).
[] Clover []has served as a member of the [SOAB] since its inception in 1996 and has been a licensed psychologist in Pennsylvania since 1991. Since 1983 she has worked as a psychologist and treatment provider with sexual offenders. She has conducted 170 assessments for the [SOAB]. Her curriculum vitae of 25 pages indicates a vast degree of training and education in dealing with sexual offenders. In conducting her assessment, she had the benefit of the summary interview report of [Appellant] by investigator Nicole Bahr of the [SOAB] along with numerous records and other documents to [sic] in formulating her opinion.Trial Court Order, 7/21/14, at 4-5 ¶ 11. The trial court further noted Clover's assessment conclusions.
Clover testified in her expert opinion [Appellant] clearly meets the criteria for paraphilia, not otherwise specified []. [] Clover found this a lifelong condition which overrides [Appellant's] emotional and volitional control and there is a great likelihood that he would reoffend. [] Clover further opined that [Appellant] met the criteria to be a[n SVP].Id. at 7 ¶ 15.
The trial court considered Appellant's prior sexual behavioral and offending history.
... [Appellant] has a prior conviction for [s]tatutory [r]ape and [i]ndecent [a]ssault on October 23 1997, for two different minor female victims, and additional non-sex related convictions. [Appellant] successfully completed a sexual offender treatment program in 2007, which program lasted only four months. Over the course of his life, [Appellant] has generally been involved with women who are ten to twelve years younger than him[,] either when married or dating.Id. at 6 ¶ 14. After recounting the factual circumstances of the instant case, the trial court concluded as follows.
It is clear to the [trial c]ourt that the vast age difference between [Appellant] and the victim, the fact that [Appellant] had two prior convictions with victims either the same age or slightly older than the current victim, that [Appellant] had been [] convicted of sexual crimes, punished for those offenses, attended sexual offenders counseling, and in this case managed to ingratiate himself into the family where within one month he was removed from that residence due to concerns of his behavior with the current victim, then subsequent to that heId. at 7 ¶ 16.
continued to engage in sexual offenses both by social media and in person with the victim clearly shows a mental abnormality which is predatory in nature.
Our review of the record reveals that the trial court's findings are supported, and we will not reweigh the evidence as urged by Appellant. See Prendes , supra. Rather, viewing the evidence in the light most favorable to the Commonwealth, we conclude the evidence is sufficient to establish clearly and convincingly that Appellant qualifies as an SVP. See Hollingshead , supra. Accordingly, we affirm the July 21, 2014 judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2015