Com. v. Lellock, R.

J-A07001-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee

v.

ROBERT LELLOCK,

Appellant No. 2021 WDA 2013

Appeal from the Judgment of Sentence Entered October 22, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s):
CP-02-CR-0003936-2013
CP-02-CR-0013778-2012

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.: FILED APRIL 23, 2015

Appellant, Robert Lellock, appeals from the judgment of sentence of an

aggregate term of 32-64 years’ incarceration, imposed following his

conviction for multiple sexual offenses against minors committed while he

worked as a security guard at a Pittsburgh middle school. He presents three

questions for our review. First, Appellant claims the trial court abused its

discretion when it admitted other-bad-acts evidence. Second, he challenges

the discretionary aspects of his sentence. Third, he contends that the trial

court erred in designating him as a Sexually Violent Predator (SVP). After

careful review, we affirm in part, vacate in part, and remand for

resentencing.

The trial court briefly summarized the facts adduced at trial as follows:
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[T]he evidence presented at trial established that Arthur Rooney
Middle School, located on the North Side of the City of
Pittsburgh, opened for the 1998-1999 school year. At that time
[Appellant], a Pittsburgh School Police Officer, would patrol the
school and assist with various disciplinary matters. [Appellant]
was observed by several teachers frequently taking male
students out of class, including the four (4) victims herein:
Shawn Logan, Jeffrey Waldenmeyer, Chris O'Keefe and David
Jankowski. Upon taking the boys out of class, [Appellant] would
take them to a janitor's closet where he would touch their
nipples and penises through and underneath their clothing.
Particularly with regard to Shawn Logan, [Appellant] would
masturbate the boy's penis until he ejaculated and make the boy
do the same to him. On several occasions, [Appellant] made
him "kiss" the head of his penis, and when the child did so, he
would force his penis into his mouth. In order to ensure Logan's
silence, he threatened the child with violence against him and his
family and also threatened criminal prosecution for stolen credit
cards Logan had in his possession the first time they met.

Trial Court Opinion (TCO), 7/15/14, at 1-2.

Appellant was arrested on September 19, 2012. On November 21,

2012, the Commonwealth charged him, by criminal information, with

numerous sexual offenses arising from his sexual assault of the four victims,

although many of the charges were withdrawn or dismissed prior to trial.

Ultimately, Appellant proceeded to a jury trial on July 22, 2013, facing nine

charges at CP-02-CR-0013778-2012, and four charges at CP-02-CR-

0003936-2013. The jury convicted Appellant on all counts.

On October 22, 2013, the trial court held an SVP hearing, at which the

court deemed Appellant to be an SVP. Immediately thereafter, the trial

court sentenced Appellant for the following offenses at CP-02-CR-0013778-

2012:

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 count 2 - involuntary deviate sexual intercourse (IDSI) (victim under

16), 18 Pa.C.S. § 3123(a)(7), 10-20 years’ incarceration;

 count 10 - endangering the welfare of children (EWOC), 18 Pa.C.S. §

4304(a), 3½-7 years’ incarceration;

 count 11 - corruption of minors (COM), 18 Pa.C.S. § 6301(a)(1), 2½-5

years’ incarceration;

 count 13 - EWOC, 3½-7 years’ incarceration; and

 count 15 - COM, 2½-5 years’ incarceration.

Additionally, at CP-02-CR-0003936-2013, Appellant was sentence at count 2

to 10-20 years’ incarceration for IDSI. The trial court ordered each of these

sentences to run consecutively to one another, resulting in an aggregate

sentence of 32-64 years’ incarceration.1

Post-sentence motions were not initially filed. However, on November

15, 2013, the trial court permitted Appellant to file a post-sentence motion

nunc pro tunc following the appointment of current counsel from the

Allegheny County Public Defender’s office. The trial court denied that motion

on December 3, 2013, and Appellant filed a timely notice of appeal on

December 20, 2013. Pursuant to an order to do so as issued by the trial

court, Appellant filed a timely Pa.R.A.P. 1925(b) statement of errors

____________________________________________

1
Each of these sentences was also the statutory maximum penalty for the
corresponding offense.

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complained of on appeal. The trial court issued its Rule 1925(a) opinion on

July 14, 2014.

Appellant now presents the following questions for our review:

I. Did the lower court abuse its discretion when it admitted
evidence of alleged behavior of [] Appellant pertaining to
Robert Shannon, as the evidence was irrelevant,
noncriminal, and non-probative, yet highly prejudicial?

II. Did the lower court abuse its discretion when it sentenced
[] Appellant to a manifestly excessive and unreasonable
period of thirty-two to sixty-four years of incarceration?

III. Did the lower court err when determined clear and
convincing evidence existed to find [] Appellant was a
[SVP]?

Appellant’s Brief at 6. Additionally, Appellant challenges the legality of his

sentence, a claim he first raised in a post-submission communication that he

filed pursuant to Rule 2501(a).2

Appellant’s first claim concerns the admission of other-bad-acts

evidence. The trial court describes the evidence in question as follows:

____________________________________________

2
In Appellant’s 1925(b) statement, he also challenged his convictions based
on the Commonwealth’s purported failure to file within the time period set
by statute of limitations for the charged offenses. As is apparent from the
facts and procedural history of this case, Appellant was not arrested and/or
charged for the offenses committed against the four victims for more than a
decade after the underlying criminal conduct allegedly occurred. However,
Appellant has abandoned this claim as it is not raised his brief. Although the
relevant statute of limitations in effect in 1999 expired prior to Appellant’s
arrest, that statute had twice been extended such that the charges were
timely filed in this case. See TCO, at 2-5 (explaining the effects of the
extensions/amendments to the pertinent statute of limitations in this case).

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At trial, the Commonwealth averred that [Appellant] would
pull male students out of class and take them into a closet at the
school where he would then sexually assault them. The
Commonwealth presented the testimony of Ronald Zangaro, the
principal of Arthur Rooney Middle School at the time of the
events in question. Mr. Zangaro testified that on May 28, 1999,
he was making his customary round of the school shortly before
dismissal when he heard voices and saw light coming from a
storage closet on the 3rd floor. He opened the door and found
student Robert Shannon in the closet with [Appellant], though
they were both clothed and not touching at the time. Mr.
Zangaro questioned Robert Shannon in the presence of
[Appellant], and Shannon denied any inappropriate conduct.
[Appellant] was then permitted to walk Shannon back to class.
[Appellant] explained the incident by stating that Shannon was
his confidential informant and had challenged him to a test of
strength, so they were preparing to wrestle.

TCO, at 5-6.

Appellant contends this evidence was not admissible under any

exception to the rule against other-bad-acts evidence, that its probative

value was outweighed by its prejudicial effect and, therefore, that the trial

court abused its discretion when it admitted it over Appellant’s objection.

Notably, Robert Shannon died more than a decade prior to Appellant’s trial.

Appellant argues that this fact left him “unable to combat the jury’s worst

possible assumptions regarding the incident.” Appellant’s Brief at 22.

In reviewing Appellant’s claim, we adhere to the following standards:

With regard to the admission of evidence, we give the trial court
broad discretion, and we will only reverse a trial court's decision
to admit or deny evidence on a showing that the trial court
clearly abused its discretion. An abuse of discretion is not
merely an error in judgment, but an overriding misapplication of
the law, or the exercise of judgment that is manifestly
unreasonable, or the result of bias, prejudice, ill-will or partiality,
as shown by the evidence or the record.

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Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012) (internal

citations and quotation marks omitted).

“Under the Pennsylvania Rules of Evidence, evidence of other bad acts

or crimes that are not currently being prosecuted against the defendant are

not admissible against the defendant to show his bad character or propensity

to commit criminal acts.” Id. at 87 (citing Pa.R.E. 404(b)). “However,

evidence of other crimes may be admissible where that evidence is used for

some other purpose.” Id. Such purposes explicitly include “proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Rule 404(b)(2). Case law recognizes similar

(or more specific) purposes under Rule 404(b)(2) that also overcome the

general ban on evidence of other bad acts, such as “a common scheme, plan

or design embracing the commission of two or more crimes so related to

each other that proof of one tends to prove the others[.]” Commonwealth

v. Brookins, 10 A.3d 1251, 1256 (Pa. Super. 2010) (quoting

Commonwealth v. Collins, 703 A.2d 418, 422-23 (Pa. Super. 1997)).

Here, the trial court admitted the Shannon-related evidence because it

demonstrated “a common scheme regarding [Appellant’s] removing male

students from their classrooms and bringing them into closets within the

school.” TCO, at 7.

Appellant presents several arguments why the Shannon incident did

not fall under the common scheme/plan exception. We agree with Appellant

that the trial court’s admitting of this evidence under the common

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scheme/plan exception is at least questionable in light of the fact that there

was no evidence that Shannon had been victimized by Appellant in a manner

similar to the victims in this case. Indeed, there is no evidence that the

Shannon incident involved any criminal conduct at all. However, further

analysis of the trial court’s error in this regard is unnecessary.

The Commonwealth asserts that even if the Shannon-related evidence

was erroneously admitted, any such error was harmless. We agree.

[A]n error may be harmless where the properly admitted
evidence of guilt is so overwhelming and the prejudicial effect of
the error is so insignificant by comparison that it is clear beyond
a reasonable doubt that the error could not have contributed to
the verdict. Under this approach, a reviewing court first
determines whether the untainted evidence, considered
independently of the tainted evidence, overwhelmingly
establishes the defendant's guilt. If honest, fair minded jurors
might very well have brought in not guilty verdicts, an error
cannot be harmless on the basis of overwhelming evidence.
Once the court determines that the evidence of guilt is
overwhelming, it then decides if the error was so insignificant by
comparison that it could not have contributed to the verdict.

Commonwealth v. Story, 383 A.2d 155, 166 (Pa. 1978) (internal citations,

quotation marks, and footnotes omitted).

In this case, the Commonwealth presented the untainted testimony of

four victims who testified to having been sexually assaulted by Appellant in

strikingly similar circumstances, at the same school, and during the same

school year. Each victim testified that Appellant had removed them from

their normal school day, took them to secluded closets in the school, and

then proceeded to molest them. While this case lacked any physical

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evidence of note, the combined effect of the four victims’ testimony

constituted overwhelming evidence of guilt. It is simply implausible that all

four victims had concocted such similar allegations, more than a decade

after the molestations occurred, in a concerted effort to frame Appellant.

We must consider the effect of the ‘tainted’ evidence in this context.

To the extent that the Shannon-related evidence appears to point to a

common scheme or plan, it was merely cumulative of the far more powerful

testimony provided by the four victims. The fact that the Shannon-related

evidence did not present prior criminal or bad conduct may very well have

rendered it inadmissible under Rule 404. However, the Shannon-related

evidence was not significantly prejudicial to Appellant for the same reason.

Appellant complains that the jury was permitted to assume the worst from

this evidence. However, such prejudice is wholly speculative. On its face,

there was no “bad” or “criminal” conduct presented by the Shannon-related

evidence.

Appellant cites Commonwealth v. Miles, 846 A.2d 132 (Pa. Super.

2004), in support of his assertion that admission of the Shannon-related

evidence was not harmless error. We find Miles easily distinguishable from

the facts of the instant case. In Miles, the appellant was convicted of

separately robbing Jones and Philip. The inadmissible evidence in question

was that pertaining to a third robbery, of Siebert, which Miles had allegedly

committed near to where Jones and Philip had been robbed. After

concluding that the evidence of the third robbery was inadmissible under

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several Rule 404(b) theories, the Miles court also concluded that admission

of evidence of the robbery of Siebert was not harmless error, reasoning as

follows:

The evidence of Miles's guilt consisted entirely of the
testimony of the two victims, Jones and Philip, who each
identified Miles as the perpetrator, and who indicated that they
were robbed within a short period of time in the same
geographic vicinity. Jones's and Philip's descriptions of the
perpetrator's appearance were not distinctive and did not
demonstrate that the robberies were conducted in a unique
fashion such that the perpetrator's method could be termed a
“signature.” No other evidence was presented to link the Jones
and Philip robberies or to establish that Miles was the
perpetrator of each robbery.

On the other hand, Siebert's testimony that he was robbed
in the same location as Philip provided an additional, compelling
fact from which the jury could have inferred and concluded that
Miles committed the Jones and Philip robberies two days earlier.
Thus, Siebert's testimony concerning the subsequent robbery
was clearly prejudicial to Miles. Although the evidence provided
by Jones and Philip was substantial, it was outweighed by the
prejudice resulting from the compelling but erroneously admitted
evidence of the subsequent robbery of Siebert. We cannot
conclude that the erroneous admission of Siebert's testimony
could not have contributed to the verdict. Accordingly, the error
in admitting Siebert's testimony was not harmless.

Miles, 846 A.2d at 138.

As noted above, and unlike what occurred in Miles, the Shannon-

related testimony was not, at least on its face, evidence of another crime.

Moreover, in Miles, the identity of the perpetrator was in doubt in a manner

that was not analogous to the instant case. The victims in Miles, Jones and

Philip, gave general descriptions of their respective assailants, and did not

specifically identify Miles until two day after the robberies. Here, however,

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Appellant’s identity was known to the victims at the time they were

molested. Consequently, the possibility of mistaken identity was not present

in this case as it was in Miles. Additionally, it is also significant that in

Miles, two ‘untainted’ witnesses testified, whereas in this case, there were

four. As a result, we conclude that Miles is neither compelling nor

persuasive on the question of whether admission of the Shannon-related

evidence was harmless error. Accordingly, we conclude that Appellant is not

entitled to relief on this claim.

Next, Appellant contends that his sentence of 32-64 years’

incarceration was manifestly unreasonable, a claim that questions the

discretionary aspects of his sentence. However, in a post-submission

communication, filed by permission after Appellant’s oral argument,

Appellant also asserts that his sentence is illegal. Because a successful

illegal sentencing claim would render Appellant’s discretionary aspects of

sentencing claim moot, we will first address the legality of his sentence to

preserve judicial economy.

“Legality of sentence questions are not waivable and may be raised

sua sponte by this Court.” Commonwealth v. Watley, 81 A.3d 108, 118

(Pa. Super. 2013) appeal denied, 95 A.3d 277 (Pa. 2014). Furthermore,

“[a]pplication of a mandatory minimum sentence gives rise to illegal

sentence concerns, even where the sentence is within the statutory limits.”

Id.

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Recently, in Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.

2014), this Court recognized the unconstitutionality of 42 Pa.C.S. § 9718

based on the rule announced by the United States Supreme Court in

Alleyne v. United States, 133 S.Ct. 2151 (2013). The Alleyne Court held

as a general rule that any fact that served to aggravate the minimum

sentence for an offense must be found by the jury under a reasonable doubt

standard of proof. The Wolfe court followed previous decisions of this court

striking down similar mandatory minimum statutes. See Commonwealth

v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) (striking down 42

Pa.C.S. § 9712.1); Commonwealth v. Valentine, 101 A.3d 801 (Pa.

Super. 2014) (same).3 The Wolfe Court specifically held that: “As Section

9718 is indistinguishable from the statutes struck down in Newman and

Valentine, we are constrained to conclude that Section 9718 is also facially

void.” Wolfe, 106 A.3d at 806.

In the present case, Appellant was sentenced under the mandatory

minimum sentencing provision of Section 9718 for both IDSI offenses for

which he was convicted. Because Section 9718 is constitutionally unsound

and facially invalid under Wolfe, we vacate Appellant’s IDSI-related

sentences and remand for resentencing on those counts. Accordingly, we

____________________________________________

3
Immediately after Wolfe was decided, this Court also struck down 18
Pa.C.S. § 7508 in Commonwealth v. Vargas, 108 A.3d 858 (2014) (en
banc), based on Alleyne.

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decline to address Appellant’s discretionary aspects of sentencing claim at

this time, without prejudice to Appellant’s ability to raise such a claim

following resentencing.

Finally, Appellant contends that the trial court erred when it

determined that he was an SVP. Our standard for reviewing a sufficiency

challenge to an SVP determination is as follows:

If a person appeals an SVP designation and contends the
evidence supporting that designation was insufficient, our
standard of review is clear. We do not weigh the evidence
presented to the sentencing court and do not make credibility
determinations. Instead, we view all the evidence and its
reasonable inferences in a light most favorable to the
Commonwealth. We will disturb an SVP designation only if the
Commonwealth did not present clear and convincing evidence to
enable the court to find each element required by the SVP
statutes.

Commonwealth v. Feucht, 955 A.2d 377, 381-82 (Pa. Super. 2008)

(internal citations omitted). The clear and convincing standard of proof

applied by the trial court does not require proof beyond a reasonable doubt.

It 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.” Commonwealth v. Maldonado,

838 A.2d 710, 715 (Pa. 2003).

This Court has explained the SVP determination process as
follows:

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After a person has been convicted of an offense listed in
[42 Pa.C.S.A. § 9799.14], the trial [court] then orders an
assessment to be done by the [SOAB][4] to help determine
if that person should be classified as a[n SVP. An SVP] is
defined as a person who has been convicted of a sexually
violent offense ... and who [has] a mental abnormality or
personality disorder that makes the person likely to
engage in predatory sexually violent offenses. In order to
show that the offender suffers from a mental abnormality
or personality disorder, the evidence must show that the
defendant suffers from a congenital or acquired condition
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. Moreover, there must be a showing that the
defendant's conduct was predatory.... Furthermore, in
reaching a determination, we must examine the driving
force behind the commission of these acts, as well as
looking at the offender's propensity to reoffend, an opinion
about which the Commonwealth's expert is required to
opine. However, the risk of re-offending is but one factor
to be considered when making an assessment; it is not an
independent element.

Commonwealth v. Stephens, 74 A.3d 1034, 1038–1039 (Pa.
Super. 2013) (internal quotation marks, ellipsis, and citations
omitted).

Commonwealth v. Hollingshead, 2015 WL 745709, *1-*2 (Pa. Super.

2015).

Appellant first contends that “the Commonwealth failed to present

sufficient evidence to prove [that he] has a mental defect or abnormality”

necessary to designate him as an SVP. The Commonwealth’s expert, Dr.

Allan Pass, testified that Appellant’s pertinent mental defect or abnormality

____________________________________________

4
Sexual Offenders Assessment Board.

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was that of “paraphilia not otherwise specified [(NOS)].” N.T., 10/22/13, at

9. Appellant argues:

Dr. Pass defined someone with paraphilia NOS as "an individual
[that] has engaged in behavior — sexual misconduct behavior
over a period of time of at least six months which has created
concerns and conflict, social conflict, personal conflict for
himself." Dr. Pass added, "And obviously the case here is that
we have an adult who is engaged in sexual misconduct with
juvenile males over the course of approximately one year and six
months."

Using the crimes for which he was charged with and found
guilty of as a guide - the claim that Mr. Lellock engaged in
sexual misconduct for a year cannot be credited. Dr. Pass
testified the "six months or longer" term of misconduct is not
only necessary to fit the paraphilia NOS definition, but "any of
the paraphilias require that the behavior that's under
examination extend for six months or longer."

Shawn Logan testified that Mr. Lellock first abused him in
the summer of 1998. Logan was expelled from Rooney Middle
School on February 1, 1999. Parties agreed that Shawn Logan
enrolled at Rooney Middle School on September 8, 1998. All
abuse alleged by Logan likely occurred within the five month
period between September 1, 1998, and February 1, 1999.3

____
3
At the October 19, 2012, Preliminary Hearing, Mr. Logan
guessed the first event occurred "a month before school
started." Granting Logan an entire month before the
beginning of school would bring the farthest possible date
of that encounter to August 8, 1998. Six months from
then was February 8, 1999, seven days after Logan's
expulsion. The Preliminary Hearing transcript is not part of
the record, yet Dr. Pass testified to reviewing it when
forming his opinion.
___

David Jankowski testified that he began at Rooney Middle
in 1998, "a month or two after it opened." Jankowski did not
remember when his first contact with Mr. Lellock was, only that

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"it was probably in like October, November, or December." (TT
191). He additionally could not remember the date of the final
incident with Mr. Lellock he testified to, but stated, "It was cold
out. Maybe October, December." Asked if it could have been
January, he responded, "Yeah." Granting Jankowski the entire
October to January timeframe, still only [four months had
elapsed.]

Christopher O'Keefe did not testify to a specific date, or
even range of dates beyond when he attended Rooney Middle
School, when his single claim of abuse occurred. Additionally,
Jeffery Waldenmyer could not provide an exact time frame in
which the one event leading to his accusation of sexual assault
occurred. When asked when this occurred, he testified, "Man, its
13 or 14 years ago. I think it could be 7th or 8th [grade]. I ain't
going to lie. It could be. But I think 8th. My honest answer
would be 8th, but I can't be official." Waldenmyer's 8th grade-
year was September 8, 1998, to June 18, 1999. Therefore June
1999, to January 2000, must be excluded from any calculation.

Granting Logan and Jankowski the benefit of all inferences
made in their testimony only provides a five month offense
cycle. Neither Waldenmyer nor O'Keefe could remember, even
within a year's period of time, when the events leading to their
accusations occurred. The 18 month period used by Dr. Pass is
not supported by any evidence from the trial or in the record. In
fact, Dr. Pass testified that he did not review the trial transcript
before making his assessment. When asked on cross-
examination, "if the testimony shows that it was less than a six-
month window cumulative, all four, then we are missing a prong
of the SVP?" Dr. Pass answered, "That's correct."

Appellant’s Brief, at 36-38 (citations to the SVP hearing record omitted).

Thus, Appellant argues that there was not sufficient evidence presented by

the Commonwealth that Appellant engaged in sexual misconduct for at least

six months, a finding which is necessary to the diagnosis of paraphilia NOS

which laid the foundation for Appellant’s SVP designation.

The Commonwealth disagrees, and cites evidence demonstrating that

Appellant engaged in sexually inappropriate behavior over a period of time in

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excess of six months with victim Shawn Logan. Mr. Logan testified at trial

that Appellant first grabbed his penis in an incident that occurred before the

school year began in the summer of 1998. N.T., 7/23/13, at 53. Mr. Logan

also testified that after February 1, 1999 (the date Mr. Logan was expelled

from the school), Appellant picked him up in his police cruiser and attempted

to solicit oral sex from Logan. Id. at 73.

Appellant admits that Logan’s testimony reveals that the first incident

of abuse could have occurred as early as August 8, 1998. It is also

reasonable to assume that events that occurred after Logan’s expulsion did

not occur the same day he was expelled, which was on February 1, 1999.

Logan did not testify with any specificity regarding the latter date, however,

he also did not provide any indication that the last incident with Appellant

occurred immediately after he was expelled. If the final incident occurred on

or after February 8, Dr. Pass’ determination that Appellant engaged in

sexually inappropriate behavior with Logan for at least six months is

supported by the record.

Although we agree with Appellant that the record does not support Dr.

Pass’ estimate of 18 months, it appears to us that it is a reasonable

conclusion that Appellant abused Logan for at least 6 months, and it is a

duration of 6 months, not 18 months, that was relevant to Dr. Pass’

diagnosis that supported Appellant’s SVP designation. It is also fair to say,

however, that there is a possibility that the abuse may have occurred over a

period that fell just short of 6 months. However, viewing the “evidence and

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its reasonable inferences in a light most favorable to the Commonwealth,”

we are constrained to reject Appellant’s claim that there was insufficient

evidence that Appellant’s sexual abuse of his victims exceeded 6 months in

duration. Hollingshead, supra. It was reasonable to infer from the

evidence of record that at least 6 months passed between Appellant’s first

and last inappropriate contacts with Logan. We may not revisit the trial

court’s decision by reweighing the evidence. It is enough that the evidence

of record, and reasonable inferences derived therefrom, supported the SVP

designation and its underlying mental abnormality/defect diagnosis. It is

simply not relevant under our standard of review that an alternative

conclusion regarding whether the criteria for the diagnosis had been met is

also supported by the record.

Appellant also asserts that “the Commonwealth failed to show, even if

the paraphilia NOS diagnosis is accurate, the presence of clear and

convincing evidence to establish that the diagnosis makes [Appellant] likely

to engage in future predatory sexual behavior.” Appellant’s Brief, at 39.

Similarly, he asserts that the “Commonwealth failed to analyze, discuss, or

prove the likelihood [that Appellant] would reoffend.” Id. at 40. Appellant

did not raise a claim concerning Appellant’s future dangerousness in his Rule

1925(b) statement. Consequently, this matter waived.5 See

____________________________________________

5
In Appellant’s Rule 1925(b) statement, he asserted that the
Commonwealth had failed to prove by clear and convincing evidence that he
(Footnote Continued Next Page)

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Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not

raised in a 1925(b) statement will be deemed waived.”).

Sentences for IDSI are vacated. Judgment of sentence affirmed in

all other respects. Case remanded for resentencing for IDSI convictions.

Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 4/23/2015

_______________________
(Footnote Continued)

engaged in sexually predatory behavior and/or that he suffered from a
mental abnormality. Appellant’s Rule 1925(b) statement, 3/11/14, at 6 ¶ d.
There is no mention of a challenge to the trial court’s determination
regarding Appellant’s likelihood to reoffend.

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