Opinion
J-S47005-15 No. 1572 MDA 2014
08-04-2015
COMMONWEALTH OF PENNSYLVANIA, Appellee v. PAUL WILLIAM TALBERT, Appellant
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal from the Judgment of Sentence entered April 21, 2014, in the Court of Common Pleas of York County, Criminal Division, at No(s): CP-67-CR-0002721-2011 BEFORE: ALLEN, OTT, and STRASSBURGER, JJ. MEMORANDUM BY ALLEN, J.:
Retired Senior Judge assigned to the Superior Court.
Paul William Talbert ("Appellant") appeals from the judgment of sentence imposed after a jury convicted him of aggravated indecent assault and related charges. We affirm.
The pertinent facts and procedural history are as follows: The charges filed against Appellant involved his inappropriate conduct over a prolonged period with his common law wife's minor daughter. Following Appellant's convictions, the trial court directed the Pennsylvania Sexual Offender Assessment Board ("SOAB") to conduct an investigation of Appellant prior to sentencing. On April 21, 2014, the trial court sentenced Appellant to an aggregate term of two and one-half to five years of imprisonment, and a consecutive five-year term of probation. After hearing testimony from a member of the SOAB, the trial court also designated Appellant a Sexually Violent Predator ("SVP"), and informed Appellant of the applicable registration requirements. The trial court denied Appellant's post-sentence motion on August 29, 2014. This timely appeal followed. Both Appellant and the trial court have complied with Pa.R.A.P. 1925.
Appellant raises the following reviewable issues:
I. Did the trial court's ruling to allow in evidence of an alleged prior bad act between [Appellant] and the victim amount to an abuse of discretion that should warrant a new trial?See Appellant's Brief at 4.
II. Was [] Appellant's designation as [an SVP] supported by clear and convincing evidence?
Although Appellant raises two additional issues in his Statement of Questions Involved, he later concedes that they "are either waived for failure of prior counsel to abide by the rules of appellate procedure or contain allegations of ineffective assistance of counsel that are not ripe for review." Appellant's Brief at 8.
Appellant's first issue involves the trial court's decision to permit the Commonwealth to introduce testimony regarding Appellant's misconduct toward the victim several years prior to the incidents with which he was charged. This prior conduct involved Appellant's attempt to have vaginal intercourse with the victim when she was twelve years old. Appellant was never arrested or criminally charged in relation to this incident.
Our standard of review is well settled:
Appellate courts typically examine a trial court's decision concerning the admissibility of evidence for abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous. Typically, all relevant evidence, i.e., evidence which tends to make the existence or non-existence of a material fact more or less probable, is admissible, subject to the prejudice/probative value weighing which attends all decisions upon admissibility. See Pa.R.E. 401; Pa.R.E. 402[.]Commonwealth v. Dillon , 925 A.2d 131, 136-37 (Pa. 2007).
When denying Appellant's post-sentence motion, the trial court explained its rationale as follows:
[Appellant] contends that the use of the information at trial that was permitted pursuant to the Court's granting of the Motion in Limine filed by the Commonwealth was prejudicial and inappropriate. Specifically, [Appellant] contends that the Victim, when testifying, did not support the averments that the Commonwealth asserted and, therefore, [Appellant] was prejudiced. [Appellant] cites paragraph numbers seven (7) and nine (9) of the Commonwealth's Motion in Limine. Paragraph seven (7) states that "[the victim] will testify that [Appellant] penetrated her vagina with his penis in the back of the parked tractor trailer."Trial Court Opinion, 8/27/14, at 1-3.
Immediately prior to trial, the Court heard argument on the Commonwealth's Motion in Limine and determined that testimony pertaining to the incident in New Jersey was admissible "because it shows a propensity to have illicit sexual relationships with the victim." (N.T., 8/12/13,
pages 3-8). "[P]rior sexual misconduct with the victim is admissible '[t]o show a passion or propensity for illicit sexual relations with the particular person concerned in the crime on trial.'" Commonwealth v. Dunkle , 529 Pa. 168, 186-187, 602 A.2d 830, 839 (1992) (citation omitted).
At trial in this case, the Victim testified that the first incident of sexual abuse by [Appellant] was when she was around twelve (12) years old. (N.T., 8/12/13, page 81). She testified that [Appellant] is a truck driver and drives an eighteen wheeler. (N.T., 8/12/13, pages 81-82). On one of his trips to New Jersey, the Victim went with [Appellant]. (N.T., 8/12/13, page 82). The Victim testified that she was tired and went to lay down on the bed in the back of the truck. (N.T., 8/12/13, page 82). After she did so, [Appellant] pulled into a rest stop and came into the back. (N.T., 8/12/13, page 82). The Victim further testified that [Appellant] "tried to put his dick in my vagina," that it lasted a couple of minutes, and that while it was going on, she was crying and telling him to stop. (N.T., 8/12/13, pages 83-84). When asked by the Commonwealth whether [Appellant's] dick actually went into her vagina, the Victim indicated that she can't remember. (N.T., 8/12/13, pages 83-84).
This testimony by the Victim was corroborated to a certain extent by the Victim's mother[.] Both the Victim and [her mother] testified that [Appellant] called [the victim's mother] and told her what he did, and that he was sorry. (N.T., 8/12/13, pages 85-86, 108-109). Furthermore, [the victim's mother] also corroborated the Victim's testimony that when they got home, the Victim talked to [her mother] about what happened, and that the Victim told her mom that she was scared. (N.T., 8/12/13, pages 86, 109)[.]
The fact that the Victim did not testify that there was actual penetration during this incident, but instead testified that she could not remember is of no moment. The jury was not aware of the Commonwealth's Motion in Limine and the averments contained therein. Moreover, in the Commonwealth's opening statement, there is no mention of penetration. Instead, the Commonwealth indicated as follows: 1) it was the first time something happened; 2)
while they were in Appellant's truck, Appellant touched the victim; and 3) [Appellant sexually abused the victim in this truck.] (N.T., 8/12/13, page 74). This opening is not inconsistent with the Victim's testimony, [that Appellant's] attempt to "stick his dick in [her] vagina" is sexual abuse.
The trial court also noted that it instructed the jury that arguments of counsel are not evidence. Id. at 3. The trial court then stated:
Finally, the Court gave the jury a limiting instruction pertaining to the incident in New Jersey as follows:
You have heard evidence during this trial tending to prove that [Appellant] was guilty of improper conduct for which he is not on trial. I am speaking of the testimony to the effect the he had sexual contact with [the victim] in a truck in New Jersey. This evidence is before you for a limited purpose, that is, for the purpose of tending to show [Appellant's] passion or propensity for illicit sexual relations with [the victim]. The evidence must not be considered by you in any other way but for the purpose I just stated. You must not regard this evidence showing [Appellant] has bad character or criminal tendencies for which you might be inclined to infer guilt.
Id. at 3-4.
(N.T., 8/13/13, pages 208-209).
Our review of the record and pertinent case law supports the trial court's conclusions. See Commonwealth v. Wattley , 880 A.2d 682, 686 (Pa. Super. 2005) (reiterating that "evidence of prior sexual relations between [a criminal defendant] and his or her victim is admissible to show a passion or propensity for illicit sexual relations with the victim" only "when the prior act involves the same victim and the two acts are sufficiently connected to suggest a continuing course of conduct") (citation and emphasis omitted). "This 'lustful disposition' exception to the general rule against the admission of prior or subsequent bad acts has been consistently recognized by our Supreme Court for more than a century." Id. at 686-87 (citations omitted).
Here, Appellant's earlier actions toward the victim were sufficiently connected to the act for which he was on trial. Thus, "[a]ny possible prejudice resulting from admission of the challenged testimony under the 'same transaction' exception is heavily outweighed by the probative value of establishing the history of the event on trial." Commonwealth v. Murphy , 409 A.2d 1080, 1084 (Pa. Super. 1985); see also Wattley , 880 A.2d at 687 (citation omitted) (explaining that a trial court "is not required to sanitize the trial to eliminate all unpleasant facts from consideration where those facts are relevant to the issues at hand and form part of the development of the events and offenses for which the defendant is charged").
Finally, our review of the record supports the trial court's statement that it gave a limiting instruction to the jury. In fact, during their deliberations, the jury inquired why they could not consider the New Jersey incident, and the trial court responded by explaining further the limited use of such evidence. See N.T., 8/13/13, at 222-23. The law presumes a jury will follow the instructions of the court. Commonwealth v. Arrington , 86 A.3d 831, 845 (Pa. 2014). Thus, Appellant's first claim does not entitle him to relief.
To the extent Appellant argues that the trial court erred in never expressly stating that that it weighed the probative value of this evidence against its prejudicial impact, as well as a exhibiting bias and partiality toward him, these claims are inappropriately being raised for the first time on appeal. See generally , Pa.R.A.P. 302(a).
In his remaining issue, Appellant asserts that the evidence presented by the Commonwealth was insufficient to support his designation as an SVP. "Questions of evidentiary sufficiency present questions of law; thus, 'our standard of review is de novo and our scope of review is plenary.'" Commonwealth v. Stephens , 74 A.3d 1034, 1038 (Pa. Super. 2013) (citation omitted). "In reviewing such a claim, we consider the evidence in the light most favorable to the Commonwealth, which prevailed upon the issue at trial." Id.
This Court has explained:
The determination of a defendant's SVP status may only be made following an assessment by the [Sexual Offenders Assessment Board ("SOAB")] and 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 the 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 theCommonwealth v. Morgan , 16 A.3d 1165, 1168 (Pa. Super. 2011) (citing Commonwealth v . Fuentes , 991 A.2d 935, 941-42 (Pa. Super. 2010) (en banc)).
Commonwealth has not presented clear and convincing evidence that each element of the statute has been satisfied.
The standard of proof governing the determination of SVP status, i.e., "clear and convincing evidence," has been described as an "intermediate" test, which is more exacting than a preponderance of the evidence test, but less exacting than proof beyond a reasonable doubt.
* * *
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 [in] issue."
An SVP under Pennsylvania's Megan's Law is defined as:
[A]n individual convicted of an offense [specified within the statute] who, on or after the effective date of this subchapter, is determined to be a sexually violent predator under section 9799.24 (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. § 9799.12.
Sections 9795.1-9799.4 expired on December 20, 2012, and were essentially re-enacted at and renumbered. See 42 Pa.C.S.A. §§ 9799.14-9799.36. See also 42 Pa.C.S.A. § 9799.41.
Moreover:
The process of determining SVP status is statutorily-mandated and well-defined. The triggering event is a conviction of one or more offenses [as identified in the subchapter], which, in turn, prompts the trial court to order an SVP assessment by the SOAB. The Board's administrative officer assigns the matter to one of the Board's members, all of whom are "expert[s] in the field of behavior and treatment of sexual offenders." 42 Pa.C.S.A. § 9799.3[5]. At the core of the expert's assessment is a detailed list of factors, which are mandatory and are designed as criteria by which the likelihood of reoffense may be gauged.Morgan , 16 A.3d at 1168 (citation omitted). According to the statute:
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.
42 Pa.C.S.A. § 9799.24(b).
(4) Factors that are supported in a sexual offender assessment field as criteria reasonably related to the risk of reoffense.
The above "factors are not a check list with each one weighing in some necessary fashion for or against SVP designation. Rather, the presence or absence of one or more factors might simply suggest the presence or absence of one or more particular types of mental abnormalities." Commonwealth v. Brooks , 7 A.3d 852, 863 (Pa. Super. 2010). Importantly, "the risk of re-offending is but one factor to be considered when making an assessment; it is not an 'independent element.'" Stephens , 74 A.3d at 1039 (citation omitted).
This Court further summarized:
The precise line of inquiry for the Board's expert, as well as any other expert who testifies at an SVP hearing, is whether the defendant satisfied the definition of sexually violent predator set out in the statute, that is, whether he or she suffers from a mental abnormality or personality disorder that makes him or her more likely to engage in predatory sexually violent offenses. The salient inquiry to be made by the trial court is the identification of the impetus behind the commission of the crime and extent to which the offender is likely to reoffend.Morgan , 16 A.3d at 1169 (citation omitted).
In this context, a "mental abnormality" is 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." 42 Pa.C.S.A. [§ 9799.12]. Moreover, "predatory" conduct, which is indispensable to the designation, is defined as an "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." [42 Pa.C.S.A. § 9799.12].
At sentencing, the Commonwealth called Dr. Robert M. Stein, a licensed psychologist, and a member of the Pennsylvania SOAB. The parties stipulated to Dr. Stein's qualifications as an expert in the field of sex offender assessment. N.T., 4/21/14, at 4. Dr. Stein testified that although Appellant declined to be interviewed, Appellant's refusal did not impair Dr. Stein's ability to complete an evaluation, and issue a report dated October 2, 2013. Id. at 5. Dr. Stein testified about which records he relied upon, and then discussed the applicability of each statutory factor to Appellant's conduct. See id., at 6-10. In conclusion, Dr. Stein opined, "within a reasonable degree of professional certainty," that Appellant met the criteria of an SVP based upon "the age of the victim, the nature of the conduct with the victim, penetrative sexual acts, and the lengthy period of time that these acts took place over five years." Id. at 10.
On cross-examination, defense counsel confirmed that Dr. Stein never personally evaluated or treated Appellant. Id. at 11. Referring to Dr. Stein's report, defense counsel then had Dr. Stein acknowledge certain inaccuracies, as the fact that he was unaware of Appellant's Asperger's diagnosis. See id. at 11-16.
On redirect, Dr. Stein agreed with the Commonwealth's assertion that the statute regarding SVPs did not require a certain amount of factors be present before a finding could be made. N.T., 4/21/14, at 16. The Commonwealth then rested, and Appellant did not present any evidence regarding SVP criteria. Id., at 36.
Based on the evidence presented, the trial court concluded:
Okay. Back to the SVP determination. In this case, the Commonwealth has rested. Defense rested without presenting any evidence regarding the assessment or their own assessment, for that matter. We note that we must be satisfied by the evidence presented that such evidence clearly and convincingly proves that [Appellant] is an [SVP], as that term is defined by Pennsylvania law.Id., at 38-39.
We note that the one and only witness, who was the author of the assessment itself, Dr. Stein, his qualifications to opine as an expert in this area were stipulated to. We found his testimony to be credible and well supports our conclusion that [Appellant] is, in fact, an [SVP], as that term is defined by law.
Of particular note, we believe the large difference in age between [Appellant] and the victim, who was a child certainly younger than 16, that the nature of the acts were, of course, very serious in nature and it's highly inappropriate, not to say the least, very illegal, as well, and frankly, at the time of the sexual abuse over some period of five years put together, along with all other supporting findings by Dr. Stein as to the factors to be considered, proves thus clearly and convincingly that [Appellant] is, in fact, an [SVP]. An adult male, twice the age of the victim, who's a child, through a course of conduct lasting some five years, consisting of aggressive nonsexual acts, intimidating that victim, as well as advertently [sic] sexual acts performed on that victim
against her will convince us, and clearly so, that [Appellant] is an [SVP], as defined by Pennsylvania law.
In support of his second issue, Appellant asserts that "it was error to designate [Appellant] an [SVP] and challenge[s] his designation as an [SVP] on the grounds that Dr. Robert Stein of the [SOAB] relied on inaccurate information in determining that Appellant met the criteria to be designated an [SVP]." Appellant's Brief at 8. According to Appellant, the trial court's "lack of analysis" of the fact that he has Asperger's, as well as other inaccuracies brought to Dr. Stein's attention during cross-examination, "makes it impossible to determine whether the evidence" was sufficient to support an SVP designation. Id. at 13. Appellant therefore requests a "remand for a thorough and meaningful [SVP] hearing[.]" Id.
In rejecting Appellant's claim, the trial court reasoned:
[Appellant] contends that Dr. Stein's report was riddled with mistakes and incorrect statements and that, after these errors were pointed out by Defense Counsel, the Commonwealth never had Dr. Stein re-affirm that his position was still the same. [Appellant] made no cites to the record in support of these contentions.Trial Court Opinion, 8/27/14, at 6. The trial court then referred to five inaccuracies discovered during cross-examination, explained why they were not significant to Appellant's SVP designation, and concluded:
As previously indicated, and as indicated by Dr. Stein on re-direct, there are no certain amount of factors that you need to make a finding of an [SVP]. In this case, there were numerous factors that [contributed to] SVPTrial Court Opinion, 8/27/14, at 9-10.
designation. Moreover, paraphilia is any act of sexual deviance where the target is a child or a non-consenting person. A child is any person under the age of sixteen (16), as was the victim in this case.
Our review of the record supports the trial court's conclusions. We further note that the trial court did not address the effect, if any, of Appellant's Asperger's diagnosis, because Appellant did not preserve the claim in his post-sentence motion. Thus, once again, Appellant improperly raises a claim for this first time on appeal. See Pa.R.A.P. 302(a).
In sum, the trial court did not err in admitting evidence of Appellant's prior bad act involving the victim, and the Commonwealth presented sufficient evidence to support Appellant's designation as an SVP. We therefore affirm Appellant's judgment of sentence.
Judgment of sentence affirmed. Judgment Entered. /s/_________
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/4/2015