J-S44003-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SCOTT MICHAEL FREKER
Appellant No. 579 WDA 2014
Appeal from the Judgment of Sentence June 3, 2013
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0004844-2011
BEFORE: LAZARUS, J., STABILE, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED JULY 28, 2015
Appellant Scott Michael Freker appeals from the judgment of sentence
entered on June 3, 2013 in the Allegheny County Court of Common Pleas
following his revocation of probation. We affirm.
On June 1, 2011, Appellant was charged by Information with sixty-
nine counts of Sexual Abuse of Children – Child Pornography,1 five counts of
Sexual Abuse of Children – Dissemination of Photographs,2 five counts of
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1
18 Pa. C.S. § 6312(d).
2
18 Pa. C.S. § 6312(c).
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Obscene and Other Sexual Materials,3 and one count of Criminal Use of
Communication Facility.4
On August 4, 2011, Appellant entered a negotiated guilty plea to a
single count of Sexual Abuse of Children – Child Pornography.5 That same
day, the trial court sentenced Appellant to seven years’ probation.
Following Appellant’s sentencing, the court conducted numerous
review hearings. N.T., 6/3/2013, 39-62. On June 3, 2013, the trial court
revoked Appellant’s probation and sentenced him to 18 to 36 months’
incarceration followed by 3 years’ probation. N.T., 6/3/2013, at 77.
The trial court summarized Appellant’s lack of compliance with
probationary conditions as follows:
This [c]ourt, on August 4, 2011, originally sentenced
Appellant to a term of seven years[’] probation. Appellant
consistently failed to comply with his conditions of
probation. Appellant was noncompliant as of his first
review on 10-27-11. Appellant had decorative swords in
his home, a beer keg on the porch, and Mercy Behavioral
would not accept him into treatment because he was
denying his offense (despite having pled guilty).
2
Mercy Behavioral is a treatment program for sex
offenders which requires an offender to admit his
offenses as part of his treatment.
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3
18 Pa. C.S. § 5903(a)(2).
4
18 Pa. C.S. § 7512(a).
5
Due to the nature of Appellant’s offense, he was assigned to the Allegheny
County Sex Offender Court. Opinion, 3/17/2015, at 2 n.1.
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In order to be given another chance to fulfill his treatment
condition, Appellant scheduled a polygraph for January 26,
2012. However, he appeared to take the polygraph with an
abrasive superglue-like substance on his palms and
fingers. When observed by the polygrapher, Appellant
referred to the substance as tanning solution. He was
instructed to wash off the substance. The polygrapher
noted that it did not easily rinse away but rather took
substantial scrubbing to remove. Appellant next attempted
to affect the outcome of the polygraph by flexing before he
answered each question. The polygrapher warned him to
cease. Ultimately he failed the polygraph with a
probability of deception of over 99 percent.
On February 2, 2012, he was noncompliant for talking to
children over the internet. He also admitted to changing
his name to run a web page for his spa and escort
businesses so that potential clients would not know he is a
Megan’s Law registrant, recorded video of a three year old
despite having been told to have no contact with children,
and had not made any restitution payments as of his
February 2, 2012 hearing. Appellant was discharged
unsuccessfully from treatment at Mercy on February 29,
2012. Furthermore, he continued to possess devices with
internet access, despite his special probation conditions
prohibiting access to the internet.
After being given another chance to comply with treatment
at Mercy, on August 27, 2012, Appellant took a
maintenance polygraph, where he admitted viewing
movies on a premium cable channel that contained nudity.
He also admitted using the internet to play online games.
Further, he admitted to viewing child pornography from
September to October of 2009, acknowledging that he
looked at less than 100 images and saved them to his hard
drive. On September 28, 2012, he was sanctioned at
Allegheny County Jail for seven days after the probation
officer discovered he was again playing online games with
an Xbox and a Wii. Appellant took another maintenance
polygraph on February 11, 2013, which again contained
responses indicative of deception and led to his second
discharge from Mercy Behavioral.
Trial Court 1925(a) Opinion, 3/17/2015, at 5-6.
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On June 12, 2013, Appellant filed a post-sentence motion, which was
denied by operation of law on October 18, 2013. Appellant did not appeal.
On March 5, 2014, Appellant filed a petition pursuant to the Post-Conviction
Relief Act, 42 Pa.C.S. § 9541 et seq., seeking reinstatement of his direct
appeal rights. On March 14, 2014, the court granted this petition. On April
11, 2014, Appellant filed a timely notice of appeal. Both Appellant and the
trial court complied with Pennsylvania Rule of Appellate Procedure 1925.
Appellant raises the following issues on appeal:
Did the trial court abuse its discretion when it sentenced
Mr. Freker to 18 to 36 months of incarceration, because it
failed to adequately consider all of the required sentencing
factors under 42 Pa.C.S.[] § 9721, specifically Mr. Freker’s
nature and characteristics, and whether a sentence of
incarceration was consistent with the protection of the
public?
Appellant’s Brief at 10. Appellant’s issue challenges the discretionary
aspects of his sentence.
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super.2011) (citing Commonwealth v. Sierra, 752 A.2d 910,
912 (Pa.Super.2000)). Before this Court can address a discretionary
challenge, we must engage in a four-part analysis to determine:
(1) whether the appeal is timely; (2) whether Appellant
preserved his issue; (3) whether Appellant’s brief includes
a concise statement of the reasons relied upon for
allowance of appeal with respect to the discretionary
aspects of sentence; and (4) whether the concise
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statement raises a substantial question that the sentence
is appropriate under the sentencing code.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super.2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super.2006)); see
also Allen, 24 A.3d at 1064.
Appellant raised the issue in a timely post-sentence motion, filed a
timely notice of appeal, and included a statement of reasons pursuant to
Rule 2119(f) in his brief. We must, therefore, determine whether his issue
presents a substantial question and, if so, review the merits.
“The determination of whether a particular issue raises a substantial
question is to be evaluated on a case-by-case basis.” Commonwealth v.
Dunphy, 20 A.3d 1215, 1220 (Pa.Super.2011) (quoting Commonwealth v.
Fiascki, 886 A.2d 261, 263 (Pa.Super.2005)). A substantial question exists
where a defendant raises a “plausible argument that the sentence violates a
provision of the sentencing code or is contrary to the fundamental norms of
the sentencing process.” Commonwealth v. Dodge, 77 A.3d 1263, 1268
(Pa.Super.2013) (quoting Commonwealth v. Naranjo, 53 A.3d 66, 72
(Pa.Super.2012)).
Appellant raises a plausible argument that the trial court failed to
consider numerous factors, including the protection of the public and
Appellant’s history and characteristics.6 Appellant’s Brief at 19-20.
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6
The Commonwealth concedes Appellant raised a substantial question,
relying on Commonwealth v. Crump, 995 A.2d 1280, 1282
(Footnote Continued Next Page)
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Accordingly, his challenge raises a substantial question, and we will review
the merits. See Commonwealth v. Riggs, 63 A.3d 780, 786
(Pa.Super.2012) (appellant raised substantial question where he argued trial
court failed to consider relevant sentencing criteria, including protection of
public, gravity of offense and rehabilitative needs of Appellant).
“Sentencing is a matter vested within the discretion of the trial court
and will not be disturbed absent a manifest abuse of discretion.” Crump,
995 A.2d at 1282 (citing Commonwealth v. Johnson, 967 A.2d 1001
(Pa.Super.2009)). “An abuse of discretion requires the trial court to have
acted with manifest unreasonableness, or partiality, prejudice, bias, or ill-
will, or such lack of support so as to be clearly erroneous.” Id. (citing
Commonwealth v. Walls, 926 A.2d 957 (Pa.2007)).
Following the revocation of probation, “the sentencing court has all of
the alternatives available at the time of the initial sentencing.”
_______________________
(Footnote Continued)
(Pa.Super.2010), which found a sentence of total confinement for a technical
probation violation raised a substantial question. Appellee’s Brief at 10;
Crump, 995 A.2d at 1282 (appellant raised substantial question when he
challenged “[t]he imposition of a sentence of total confinement after the
revocation of probation for a technical violation, and not a new criminal
offense,” as it “implicate[d] the “fundamental norms which underlie the
sentencing process” (quoting Commonwealth v. Sierra, 752 A.2d 910, 913
(Pa.Super.2000))). Appellant, however, does not maintain the court lacked
the authority to impose a sentence of total confinement. Rather, he
maintains the court abused its discretion in sentencing Appellant to 18-36
months’ incarceration.
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Commonwealth v. Mazzetti, 44 A.3d 58, 61 (Pa.Super.2012).7 When
imposing a sentence, “the court shall follow the general principle that the
sentence imposed should call for confinement that is consistent with the
protection of the public, the gravity of the offense as it relates to the impact
on the life of the victim and on the community, and the rehabilitative needs
of the defendant.” 42 Pa.C.S. § 9721(b). “A sentencing court need not
undertake a lengthy discourse for its reasons for imposing a sentence or
specifically reference the statute in question, but the record as a whole must
reflect the sentencing court’s consideration of the facts of the crime and
character of the offender.” Crump, 995 A.2d at 1283 (citing
Commonwealth v. Malovich, 903 A.2d 1247 (Pa.Super.2006)). Further,
“where the trial court is informed by a pre-sentence report, it is presumed
that the court is aware of all appropriate sentencing factors and
considerations.” Commonwealth v. Ventura, 975 A.2d 1128, 1134
(Pa.Super.2009) (citing Commonwealth v. Devers, 519 Pa. 88, 101–102,
546 A.2d 12, 18–19 (1988)).
The trial court reviewed a pre-sentence report and had presided over
Appellant’s numerous review hearings. N.T., 6/3/2013, at 2, 3-6, 39-62.
The trial court also read all letters submitted on Appellant’s behalf. Id. at
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7
The sentencing guidelines are inapplicable to sentences imposed following
revocation of probation. Commonwealth v. Williams, 69 A.3d 735, 741
(Pa.Super.2013).
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17, 75. At the June 3, 2013 hearing, the Commonwealth presented a
history of Appellant’s non-compliance with probation conditions, Appellant’s
mother testified, Appellant’s counsel presented argument on his behalf, and
Appellant had an opportunity to speak. The trial court then concluded:
It cannot be back and forth. It cannot be one minute
admitting to viewing child pornography, another minute
dissembling and blaming it on Ryan.[8] Another time
saying you only viewed adult pornography and thought
you only search for adult pornography on LimeWire.
I can’t, after all this time, I cannot continue this. So with
that I believe the original sentence of seven years[’]
probation is not effective.
We have tried sanctions as well as other measures to bring
him into compliance, and today I revoke that seven
years[’] probation, and I impose a period of incarceration
of 18-36 months. He does have some credit for the time
that he has served since March of this year.
He will receive treatment while he is incarcerated. To the
extent that he successfully completes his treatment while
incarcerated, he will be eligible for parole. He is not triple
RI eligible based on the charges.
Consecutive to his period of incarceration, I impose a
period of three years of probation. . . .
N.T., 6/3/2013, at 76-77.
In its 1925(a) opinion, the trial court reviewed Appellant’s
noncompliance, as outlined above, and concluded:
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8
Some of the letters submitted on Appellant’s behalf claimed “Ryan” viewed
the child pornography on Appellant’s computer. Also, Appellant’s mother
testified that it was “Ryan,” not Appellant, who viewed the child
pornography. N.T., 6/3/2013, 23-25, 75.
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This [c]ourt gave Appellant many chances to prove his
willingness and ability to comply with the reasonable
charge specific special conditions of probation. As
demonstrated by his poor supervision history, his outright
lies about his continued contact with children and internet
use, and his ongoing treatment failure, he is not amenable
to community supervision and treatment. Nothing in his
course of conduct indicates an ability or desire to refrain
from criminal behavior or participate in treatment. As
Appellant has repeatedly ignored his need for rehabilitation
and treatment, intentionally disregarded court ordered
supervision conditions, and his ongoing behavior
demonstrates the community’s need to be protected from
him, this [c]ourt did not err in sentencing him to a
sentence of confinement for a period of 18 to 36 months
with three years of consecutive probation.
Opinion, 3/17/2015, at 6-7.
The record as a whole demonstrates the trial court considered the
protection of the public, the gravity of the offense, and the rehabilitative
needs of the defendant. Moreover, because the trial court reviewed the pre-
sentence report, it presumably was aware of all appropriate sentencing
factors and considerations. The trial court acted within its discretion in
sentencing Appellant to a sentence of total confinement of 18 to 36 months’
incarceration.9
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9
Appellant maintains that the trial court used the fact that he had “never
harmed another individual” against him. Appellant’s Brief at 27. This is
incorrect. Appellant argued he had no prior record and the crimes charged
in the criminal complaint did not allege violence. The trial court correctly
responded that this argument:
only diminishes [Appellant’s] understanding of the charge
against him. . .
(Footnote Continued Next Page)
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Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/28/2015
_______________________
(Footnote Continued)
Sexual abuse of children, possession of child pornography
is classified as a Megan’s law offense for a very good
reason. What he has done, by virtue of his being a
consumer of it, is place children at risk and cause them to
be sexually assaulted.
If there were no audience for this material, it would no
longer be something that we would be concerned about as
a society.
N.T., 6/3/2013, at 16.
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