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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
DAVID ALLEN BILLE, : No. 1962 WDA 2014
:
Appellant :
Appeal from the Judgment of Sentence, October 28, 2014,
in the Court of Common Pleas of Erie County
Criminal Division at No. CP-25-CR-0002982-2013
BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED NOVEMBER 18, 2015
David Allen Bille appeals from the judgment of sentence of October 28,
2014, following his convictions of one count of endangering the welfare of
children, three counts of indecent assault, and one count of corruption of
minors.1 We affirm.
The trial court articulated the facts and procedural history of this case
as follows:
Appellant was convicted of sexually assaulting
his step-daughter, S.S. The first assault occurred
when S.S. was six years old and living with
appellant, her mother, and older brother. On that
occasion, appellant instructed S.S. to touch his
penis, and she complied. During the assault, S.S.’s
* Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 4304(a)(1), 3126(a)(7) and 6301(a)(1)(i), respectively.
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mother was not home and her brother was in his
bedroom.
Appellant assaulted S.S. a second time when
she was eight or nine years old. Appellant instructed
S.S. to sit on his lap and he began touching her
breasts and vaginal area. At the time of the assault,
S.S.’s mother was not home and her older brother
was in the basement playing video games.
Another assault occurred while S.S. was in her
bedroom. Appellant entered her room while she was
partially unclothed and instructed her to sit on the
knob of the foot of her bed. Appellant then placed
his hand over her vagina and told her this would
relax her. S.S.’s mother was not home, and her
brother was in the basement.
The last assault occurred when S.S. was 11.
While S.S. was on a couch in the living room,
appellant placed his hand over her vaginal area. As
S.S. struggled to get away, appellant lifted up her
shirt and bra and placed his hands over her exposed
breasts. After S.S. ended up on the floor, appellant
straddled her and pressed his penis against her
lower abdomen/pelvic area.
On June 20, 2014, following a two-day jury
trial, appellant was found guilty of the foregoing
offenses. Appellant was also found not guilty of
indecent exposure. This Court subsequently ordered
a sexual violent predator (SVP) assessment pursuant
to Pennsylvania’s version of “Megan’s Law,” the Sex
Offender Registration and Notification Act,
42 Pa.C.S.A. § 9799.10 et. seq.
Appellant’s SVP hearing was held on
October 28, 2014. At that time, Brenda A. Manno, a
licensed clinical social worker and board member of
the Pennsylvania Sexual Offender Assessment Board,
testified to a reasonable degree of professional
certainty that appellant met the statutory criteria for
classification as a sexually violent predator. At the
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conclusion of the SVP hearing, this Court found that
appellant was a sexually violent predator.
Following the SVP hearing, appellant was
sentenced to the following terms of incarceration:
6 to 12 months’ incarceration at Count 1
(endangering welfare of child); a term of 2 to
4 months’ incarceration at Count 3 (indecent
assault), consecutive to Count 1; and, a term of 2 to
4 months’ incarceration at Count 4 consecutive to
Counts 1 and 3, above.
Trial court opinion, 2/27/15 at 1-2 (citations omitted). Appellant filed notice
of appeal on December 1, 2014, and provided a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925, and the trial court filed
an opinion.
Appellant raises the following issues for our review:
1. The Honorable Trial Court committed reversible
error of law by ruling to exclude, as irrelevant,
any mention of a report that was made by the
Office of Children and Youth, which concluded
that the allegations in this case were
unfounded.
2. The Honorable Trial Court erred and abused its
discretion as well as denied Defendant’s Due
Process rights guaranteed by the 5th and
14th Amendments by relying on facts not in
evidence to determine that the Defendant was
a Sexually Violent Predator. The Honorable
Trial Court relied exclusively on Ms. Manno’s
determination that the Defendant was a
Sexually Violent Predator. Ms. Manno did not
review the trial transcripts, she did not meet
with the Defendant, and the report contained
several errors. Ms. Manno relied on
preliminary hearing transcripts, criminal
complaint, and probable cause affidavit in
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making her determination, not evidence
presented at trial.
3. The Honorable Trial Court erred and abused its
discretion as well as denied Defendant’s Due
Process rights guaranteed by the 5th and
14th Amendments by classifying the Defendant
to be a Sexually Violent Predator. The
Commonwealth’s burden of Clear and
Convincing evidence was not met because the
Commonwealth did not provide evidence that
the Defendant was likely to reoffend.
Furthermore, the factors contained in the
statute weigh heavily in the Defendant’s favor.
4. The Honorable Trial Court abused its discretion
and violated the Defendant’s 14th Amendment
Due Process rights by not granting Defendant’s
continuance prior to the Sexually Violent
Predator Determination Hearing, so the
Defendant could find a qualified expert to rebut
Ms. Manno’s testimony. The continuance did
not prejudice the Commonwealth in any way.
5. The Honorable Trial Court erred and abused its
discretion as well as denied Defendant’s Due
Process rights guaranteed by the 5th and
14th Amendments because the evidence was
insufficient to warrant a GUILTY verdict on the
Charges of Endangering the Welfare of
Children, Three (3) Counts of Indecent Assault,
and Corruption of Minors. The Defendant was
found NOT GUILTY of Indecent Exposure on
the same factual basis as one of the Counts of
Indecent Assault.
Appellant’s brief at 5-6.
Appellant’s first issue for our review is whether the trial court erred in
denying appellant’s request to introduce the Office of Children and Youth
(“OCY”) report which indicated that the victim’s allegations were unfounded.
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The trial court stated that the introduction of such evidence by defense
counsel would amount to vouching. (Notes of testimony, 6/19/14 at 8.)
Our standard of review for the admissibility of evidence is as follows:
The admissibility of evidence is at the discretion of
the trial court and only a showing of an abuse of that
discretion, and resulting prejudice, constitutes
reversible error. An abuse of discretion is not merely
an error in judgment, but is rather the overriding or
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 of record. Furthermore, if in
reaching a conclusion the trial court over-rides or
misapplies the law, discretion is then abused and it is
the duty of the appellate court to correct the error.
Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa.Super. 2013)
(en banc) (internal quotation marks and citations omitted), appeal denied,
83 A.3d 167 (Pa. 2013).
We agree with the trial court that the OCY report is inadmissible. The
trial court found the OCY report to be inadmissible as “basically vouching.”
(Notes of testimony, 6/18/14 at 8.) It is well settled that vouching is a form
of prosecutorial misconduct, occurring when a prosecutor “places the
government’s prestige behind a witness through personal assurances as to
the witness’s truthfulness, and when it suggests that information not before
the jury supports the witness’s testimony.” Commonwealth v. Reid, 99
A.3d 427, 447 (Pa. 2014), citing Commonwealth v. Williams, 896 A.2d
523, 541 (Pa. 2006). Therefore, the report cannot be a form of vouching
because the defense sought to present it.
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However, the trial court also recognized that the OCY report is
inadmissible because it is irrelevant. OCY operates under the Child
Protective Services Law (“CPSL”). “The [CPSL] does not provide for
legal determinations of abuse; it is mainly a vehicle for reporting abuse
and bringing quickly into play those services (including court hearings)
available through county protective service facilities for the care of the
child.” In Interest of J.R.W., 631 A.2d 1019, 1022 (Pa.Super. 1993)
(emphasis added). Due to the fact that the CPSL has a different objective
compared to the criminal justice system, the OCY report is irrelevant and
appellant’s argument is without merit.
Appellant’s next three issues address his classification as a sexually
violent predator (“SVP”). For the purposes of this appeal, we shall consider
all three of his issues raised relating to his classification as a sexually violent
predator together.
Our standard of review for SVP determinations is as follows:
[An SVP] is a person who has been convicted of a
sexually violent offense set forth in Section 9795.1
(relating to registration) and who is determined to be
a sexually violent predator under 9795.4 (relating to
assessments) due to 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
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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.
Predatory conduct is defined as an act directed at a
stranger or at a person with whom a relationship has
been instituted, established, maintained, or
promoted, in whole or in part, in order to facilitate or
support victimization. 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 re-offend, 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)
(citations and quotations omitted).
First, we address whether the trial court erred by relying on facts that
were not admitted into evidence during the trial. Specifically, appellant
argues that the trial court, in making its determination of whether appellant
was to be classified as an SVP relied exclusively on Brenda Manno’s
testimony. (Appellant’s brief at 8.) Appellant alleges that Manno did not
review any evidence that was presented at trial, nor did she read the trial
transcripts; she also used inaccurate information as to appellant’s criminal
and medical history. (Id. at 8-9.)
We find that the trial court did not commit reversible error by relying
exclusively on Manno’s testimony. In Commonwealth v. Prendes, 97 A.3d
337, 345 (Pa.Super. 2014), appeal denied 105 A.3d 736 (Pa. 2014), this
court considered the sufficiency of the evidence in a sexually violent
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predator determination based on a trial court’s sole reliance on the
Commonwealth’s expert witness. Much like the instant appeal, the expert
witness in Prendes formed her opinion based on her review of the arrest
warrant, affidavit of probable cause, police reports, victim’s statements, the
Pennsylvania Sexual Offender Assessment Board (“Board”) investigator’s
reports, and several other documents.2 Id. at 346. Similar to the present
case, the expert in Prendes did not interview the defendant because he
declined to be interviewed. Id. at 346. The Prendes court held that the
trial court did not err in classifying the defendant as an SVP based solely on
the testimony of the Commonwealth’s expert. See also Commonwealth v.
Dixon, 907 A.2d 533, 535 (Pa.Super. 2006) (the Commonwealth’s expert
did not review trial transcripts when determining the defendant to be an
SVP). We, therefore, find that the trial court’s reliance on Manno’s
testimony is not a reversible error.
Appellant also raises the issue of several mistakes that he alleges
Manno made during her testimony. Specifically, appellant claims that
Manno’s report included inaccurate information about appellant’s criminal
history and his medical history. In her report, Manno noted that appellant
had been convicted of a summary offense. (Notes of testimony, 10/28/14 at
27.) After defense counsel established that the summary offense conviction
2
We also note that the expert in Prendes did not review the transcript of
the defendant’s guilty plea colloquy when making her determination. Id. at
349.
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was mistakenly attributed to appellant, Manno admitted on the record that
the attribution was made in error. (Id. at 30.) Manno also testified that she
only had access to appellant’s medical records that were contained in her
investigator’s report. (Id. at 32.)
A challenge such as this addresses Manno’s credibility as a witness.
We cannot assume the task of weighing the evidence as part of our review
of the trial court’s determination as the weighing of evidence is solely within
the trial court’s purview. See Commonwealth v. Meals, 912 A.2d 213,
223 (Pa. 2006) (“The task of the Superior Court is one of review, and not of
weighing and assessing evidence in the first instance.”). The trial court was
in a position where it heard not only Manno’s testimony, but it also
considered the evidence presented at trial when making its SVP
determination. Specifically, the trial court reviewed “the record, all of the
relevant statutory provisions, and credited Ms. Manno’s testimony and her
report.” (Trial court opinion, 2/27/15 at 11.) Therefore, we find that
appellant’s claim that the trial court committed reversible error when it
relied on Manno’s testimony and report is without merit.
Second, we consider whether the Commonwealth met its burden of
clear and convincing evidence. Our standard of review for the sufficiency of
evidence in an SVP determination hearing is as follows:
At the SVP hearing, the Commonwealth has
the burden of proving by clear and convincing
evidence that the person meets the criteria to be
designated as an SVP. This burden of proof has
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been described as an intermediate test, falling below
the highest level of proof, beyond a reasonable
doubt, but above the preponderance of the evidence
standard. Evidence will meet this level of proof if it
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.
Stephens, 74 A.3d at 1039 (citations omitted). We are required to view all
evidence presented in the light most favorable to the Commonwealth, and
are prohibited from substituting our own judgment for that of the trial court.
Commonwealth v. Plucinski, 868 A.2d 20, 25 (Pa.Super. 2005) (citations
omitted).
Upon a defendant’s conviction of a crime requiring a determination as
to whether the defendant is to be classified as an SVP, the Board conducts
an assessment in which the following factors are considered:
§ 9799.24 Assessments
....
(b) Assessment.--Upon receipt from the court of
an order for an assessment, a member of the
board as designated by the administrative
officer of the board shall conduct an
assessment of the individual to determine if
the individual should be classified as a sexually
violent predator. The board shall establish
standards for evaluations and for evaluators
conducting the assessments. An assessment
shall include, but not be limited to, an
examination of the following:
(1) Facts of the current offense,
including:
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(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.
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(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 related
to the risk of re-offense.
42 Pa.C.S.A. § 9799.24. An individual is designated as an SVP after he or
she is convicted of a sexually violent offense and, following an assessment
as mandated by Section 9799.24, is deemed to have “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.
In the present case, Manno compiled her report based on Child Line
records, the police report, the criminal complaint, the affidavit of probable
cause, the preliminary hearing transcript, appellant’s driving records, and
the Board investigator’s report. (Notes of testimony, 10/28/14 at 11.)
Manno concluded that appellant suffers from an unspecified paraphilic
disorder.3 (Id. at 14.) Specifically, Manno testified that the presence of
3
According to Manno’s testimony, an unspecified paraphilic disorder is
diagnosed when there is “a period of at least six months with recurrent,
intense sexually arousing fantasies, urges, or behaviors involving a . . .
child.” (Id.)
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such a disorder made appellant more likely to offend in the future. (Id. at
15.)
Appellant states that Manno reached her conclusion without ever
meeting with appellant or reviewing the evidence presented at trial.
(Appellant’s brief at 12.) Appellant further states that Manno’s conclusion
could have “been easily refuted” if appellant had been able to procure his
own expert. (Id.) This court has repeatedly held that experts may
sufficiently deem defendants to be SVPs without actually meeting with them
or reviewing the evidence presented at trial or allocuted to during guilty plea
colloquies. See, e.g., Commonwealth v. Morgan, 16 A.3d 1165
(Pa.Super. 2011) (finding the Commonwealth’s evidence sufficient to
warrant an SVP determination despite the defendant’s refusal to meet with
the Commonwealth’s expert). Therefore, appellant’s claim that the evidence
is insufficient to warrant an SVP determination is without merit.
Third, we consider whether the trial court erred when it denied
appellant’s request for a continuance in order to obtain expert testimony.
The decision to grant a continuance is in the sole discretion of the trial court
and will only be reversed upon an abuse of that discretion.
Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa. 2014) (citations
omitted). We agree with the trial court that appellant’s request for a
continuance in order to hire an expert was untimely, and accordingly affirm
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based on the trial court’s opinion for this issue. (See trial court opinion,
2/27/15 at 6-7.)
Finally, appellant challenges whether the evidence at trial is sufficient
to warrant convictions for endangering the welfare of children, indecent
assault, and corruption of minors.
In reviewing the sufficiency of the evidence,
we view all evidence admitted at trial in the light
most favorable to the Commonwealth, as verdict
winner, to see whether there is sufficient evidence to
enable [the fact finder] to find every element of the
crime beyond a reasonable doubt. This standard is
equally applicable to cases where the evidence is
circumstantial rather than direct so long as the
combination of the evidence links the accused to the
crime beyond a reasonable doubt. Although a
conviction must be based on “more than mere
suspicion or conjecture, the Commonwealth need not
establish guilt to a mathematical certainty.”
Moreover, when reviewing the sufficiency of
the evidence, this Court may not substitute its
judgment for that of the fact finder; if the record
contains support for the convictions, they may not
be disturbed.
Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations
omitted). The Commonwealth may satisfy its burden of proving a
defendant’s guilt beyond a reasonable doubt by using wholly circumstantial
evidence. Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008).
In the instant case, after reviewing the evidence presented, cast in the
light most favorable to the Commonwealth, as verdict winner, we find that
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the evidence is sufficient to warrant the jury’s convictions for endangering
the welfare of children, indecent assault, and corruption of minors.
Endangering the welfare of children is defined as, “[a] parent,
guardian, or other person supervising the welfare of a child under 18 years
of age . . . commits an offense if he knowingly endangers the welfare of the
child by violating a duty of care, protection, or support.” 18 Pa.C.S.A.
§ 4304(a)(1). This court has established a three-part test for determining
whether the elements of endangering the welfare of children have been met:
(1) the accused was aware of his duty to protect the
child; (2) the accused was aware that the child was
in circumstances that could threaten the child’s
physical or psychological welfare; and (3) the
accused has either failed to act or has taken action
so lame or meager that such actions cannot
reasonably be expected to protect the child’s
welfare.
Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa.Super. 2012) (citations
omitted).
In order to obtain a conviction for indecent assault, the
Commonwealth must prove beyond a reasonable doubt that the defendant
had, “indecent contact with the complainant or causes the complainant to
have indecent contact with the [defendant], and . . . the complainant is less
than 13 years of age.” 18 Pa.C.S.A. § 3126(a)(7).
This court has previously stated that the uncorroborated testimony of
a victim of a sexually based offense is sufficient to uphold a conviction, so
long as the testimony is believed by the trier-of-fact. Commonwealth v.
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Trippett, 932 A.2d 188, 194 (Pa.Super. 2007), citing Commonwealth v.
Charlton, 902 A.2d 554, 562 (Pa.Super. 2006). A fact-finder is free to
believe all, part, or none of the evidence, including uncorroborated
testimony, presented. Commonwealth v. Mosley, 114 A.3d 1072, 1087
(Pa.Super. 2015) (citations omitted). Therefore, how much credibility and
weight is given to uncorroborated testimony is fully within the exclusive
purview of the fact-finder.
In the instant case, the jury heard the victim’s uncorroborated
testimony regarding three separate encounters with appellant. Through her
testimony, the Commonwealth proved all three elements of endangering the
welfare of children beyond a reasonable doubt. During all three of the
encounters with appellant to which the victim testified, appellant was the
only adult present in the home during the assaults. Based upon the victim’s
testimony, the Commonwealth proved beyond a reasonable doubt that
appellant owed a duty to the victim and violated that duty on the three
occasions that he assaulted her. See Bryant, 57 A.3d at 199. The jury, in
voting to convict appellant of all crimes charged with the exception of
indecent exposure, found the victim’s testimony to be credible, thereby
warranting a conviction. Therefore, we find that appellant’s sufficiency of
the evidence claim, as it pertains to the endangering the welfare of children
charge, has no merit.
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Finally, we address the corruption of minors charge. “[W]hoever,
being of the age of 18 years and upwards, by any act corrupts or tends to
corrupt the morals of any minor less than 18 years of age . . . commits a
misdemeanor of the first degree.” 18 Pa.C.S.A. § 6301(a)(1)(i). This court
has previously upheld a conviction for corruption of minors under
Section 6301(a)(1)(i). Commonwealth v. Kelly, 102 A.3d 1025, 1032
(Pa.Super. 2014) (en banc). The defendant in Kelly was convicted of
indecent assault, which the court determined was sufficient to justify a
conviction for corruption of minors. Id. In the instant case, appellant was
convicted of three counts of indecent assault; therefore, there is sufficient
evidence to warrant his conviction for corruption of minors.
Appellant also raises the argument that the jury produced an
inconsistent verdict. Specifically, appellant notes that the jury acquitted him
of a charge of indecent exposure “on the same factual basis as one of the
counts of indecent assault.” (Appellant’s brief at 6.) This argument holds no
merit. Both the United States Supreme Court and the Pennsylvania
Supreme Court have cautioned against appellate review of inconsistent
verdicts. “[T]he fact that the inconsistency [in the verdict] may be the
result of lenity, coupled with the Government’s inability to invoke review,
suggests that inconsistent verdicts should not be reviewable.”
Commonwealth v. Miller, 35 A.3d 1206, 1209 (Pa. 2012), quoting United
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States v. Powell, 469 U.S. 57, 65 (1984). Therefore, appellant’s argument
relating to inconsistent verdicts has no merit.
Judgment of sentence affirmed.
Bender, P.J.E. joins the Memorandum.
Strassburger, J. files a Concurring Memorandum.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/18/2015
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COMMONWEALTH OF PEmfs!KvhllfiA1ECOR:OfN THE COURT PLEAS
OF COMMON
Appellee;?D,5f£B 27 M~ g:; 4~~A~O~iJlJNNSYLVANIA
v. CRtf courn-.1 :
CL[Ri, OF coi';RTn
DAYID ALLEN BILLE, ER If. PA I Gs.:;_ 'f
Appellant : No. 2982 OF 2013
1925(a) OPINION
Garhart, J., February~ 2015
Appellant, David Allen Bille, appeals from the judgment of sentence entered on October
28, 2014, following his conviction of one count of endangering welfare of children, three counts
of indecent assault, and one count of corruption of minors.' Based upon the following, this
Court respectfully requests the Honorable Superior Court affirm his judgment of sentence.
I. BACKGROUND OF THE CASE
Appellant was convicted of sexually assaulting his step-daughter, S.S. The first assault
occurred when S.S. was six-years old and living with AppeJlant, her mother and older brother.
N.T. Trial (Day 2), 06/20/14, at 6. On that occasion, Appellant instructed S.S. to touch his penis,
and she complied. Id., at 6, 8-10. During the assault, S.S.'s mother was not home and her
brother was in his bedroom. Id., at 7-8.
Appellant assaulted S.S. a second time when she was eight or nine-years old. Appellant
instructed S.S. to sit on his lap and he began touching her breasts and vaginal area. Id., at 14, 16.
At the time of the assault, S.S. 'smother was not home and her older brother was in the basement
playing video games. Id. at l 5, 17.
Another assault occurred while S.S. was in her bedroom. Appellant entered her room
while she was partially unclothed and instructed her to sit on the knob of the foot of her bed. Id.,
J 18 Pa.C.S.A. §§4304{a), 3126(a)(7) and 630\(a)(l)(i). respectively.
1
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at 18, 20. Appe11ant then placed his hand over her vagina and told her this would relax her. Id.,
at 18, 20. S.S.'s mother was not home, and her brother was in the basement. Id., at 18.
The last assault occurred when S.S. was 11. While S.S. was on a couch in the living
room, AppelJant placed his hand over her vaginal area. Id., at 22-23. As S.S. struggled to get
away. Appellant lifted up her shirt and bra and placed his hands over her exposed breasts. Id., at
23. After S.S. ended up on the floor, Appellant straddled her and pressed his penis against her
lower abdomen/pelvic area. Id., at 23,
On June 20, 2014, following a two-day jury trial, Appellant was found guilty of the
foregoing offenses. Appellant was also found not guilty of indecent exposure. This Court
subsequently ordered a sexual violent predator (SVP) assessment pursuant to Pennsylvania's
version of "Megan's Law", the Sex Offender Registration and Notification Act, 42 PaC.S.A.
§9799.10 et. seq. ("SORNN').
Appellant's SVP hearing was held on October 28, 2014. At that time, Brenda A. Manno,
a licensed clinical social worker and board member of the Pennsylvania Sexual Offender
Assessment Board, testified to a reasonable degree of professional certainty that Appellant met
the statutory criteria for classification as a sexually violent predator. N.T. SVP and Sentencing,
10/28/14, at 17. At the conclusion of the SVP hearing, this Court found that Appellant was a
sexually violent predator. Id, at 68.
Following the SVP bearing, Appellant was sentenced to the following terms of
incarceration: 6 to 12 months' incarceration at Count l (endangering welfare of child); a term of
2 to 4 months' incarceration at Count 3 (indecent assault), consecutive to Count 1 ; and, a term of
2 to 4 months' incarceration at Count 4 consecutive to Counts 1 and 3, above.
2
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On December 1, 2014, Appellant fiJed a Notice of Appeal. Oo December 3, 2014, this
Court ordered that Appellant file a concise statement of matters complained of on appeal.
pursuant to Pa.R.A.P. 1925. Appellant complied on January 30, 2015, and raises the following
issues on appeal':
(1) The Honorable Trial Court committed reversible error of law by ruling to
exclude, as irrelevant, any mention of a report that was made by the Office of
Children and Youth, which concluded that the allegations in this case were
unfounded,
(2) The Honorable Trial Court erred and abused its discretion as well as
denied Defendant's Due Process rights guaranteed by the 5th and 14th
Amendments because the evidence was insufficient to warrant a GillLTY verdict
on the Charges of Endangering the Welfare of Children, Three (3) Counts of
Indecent Assault, and Corruption of Minors. The Defendant was found NOT
GUILTY of Indecent Exposure on the same factual basis as one of the Counts of
Indecent Assault.
{3) The Honorable Trial Court abused its discretion and violated the
Defendant's 14th Amendment Due Process rights by not granting Defendant's
continuance prior to the Sexually Violent Predator Determination Hearing, so the
Defendant could find a qualified expert to rebut Ms. Manna's testimony. The
continuance did not prejudice the Commonwealth in any way.
( 4) The Honorable Trial Court erred and abused its discretion as well as
denied Defendant's Due Process rights guaranteed by the 5th and 14th
Amendments by relying on facts not in evidence to determine that the Defendant
was a Sexually Violent Predator. The Honorable Trial Court relied exclusively on
Ms. Mann.o's determination that the Defendant was a Sexually Violent Predator.
Ms. Manno did not review the trial transcripts, she did not meet with the
Defendant, and the report contained several errors. Ms. Manno relied on the
preliminary hearing transcripts, criminal complaint, and probable cause affidavit
in making her determination, not evidence presented at trial.
(5) The Honorable Trial Court erred and abused its discretion as well as
denied Defendant's Due Process rights guaranteed by the 5th and 14th
Amendments by classifying the Defendant to be a Sexually Violent Predator. The
Commonwealth's Burden of Clear and Convincing evidence was not met because
the Commonwealth did not provide evidence that the Defendant was likely to
reoffend. Furthermore, the factors contained in the statute weigh heavily in the
Defendant's favor.
2
Appellant's issues are renumbered for ease of discussion.
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(6) The Honorable Trial Court erred and abused its discretion as well as
denied Defendant's Due Process rights guaranteed by the 5th and 14th
Amendments by its application of statute 42 Pa.C.S. Section 9795.4 at the SVP
hearing. The trial court['s] application of this statute requires that any person
convicted of a listed offense will also be deemed a Sexually Violent Predator.
Therefore, the statute was improperly applied to the Defendant in this case, which
is reversible error.
(7) Pennsylvania's Sexually Violent Predator statute is Vague and Overbroad
and therefore Defendant should not be considered a Sexually Violent Predator.
Appellant's Rule 1925(b) statement. 01/30/15, at renumbered fl 1 ~ 7.
n. DISCUSSION
A. Whether the trial court erred in precluding inadmissible evidence?
Admission of evidence is within the sound discretion of the trial court and will be
reversed only upon a showing that the trial court clearly abused its discretion.
Admissibility depends on relevance and probative value. Evidence is relevant if it
logically tends to establish a material fact in the case, tends to make a fact at issue
more or less probable or supports a reasonable inference or presumption regarding
a material fact.
Commonwealth v. Drumheller. 570 Pa. 117, 135, 808 A.2d 893, 904 (2002')(quotation marks and
citation omitted).
Before trial, Appellant requested admission of an Office of Children and Youth ("OCY")
investigation, which determined that S.S.'s allegations were unfounded. N.T. Trial (Day 1),
06/19/14, at 4. Appellant claimed the OCY employee and investigating Pennsylvania State
Trooper observed an interview at the Crime Advocacy Center. Id., at 5. Appellant claimed the
OCY determination was relevant because the OCY employee was trained, from a
Commonwealth agency, and involved in an investigation with the state trooper. Id., at 5-6.
In reply, the Commonwealth claimed that the OCY employee made a credibility
determination based upon their own standards, which was not relevant. Id., at 7.
After argument, this Court concluded that the evidence is inadmissible because it was a
sub-species of vouching. Id, at 7. Particularly, the Court concluded the following:
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Here the question for this jury is do they find the evidence credible. The fact that
some otber person involved in the process might have a differcnt view of the
evidence it seems to me is irrelevant. The question is what does this jury think
the Commonwealth bas met a minimal legal standard of probability cause at the
magistrate. I recognize how low that is, it's pretty low. There's no credibility
assessment made. But the credibility assessment is to be made by the jury in this
trial on this testimony hcre.. What someone else thought at an earlier time if it
went to credibility just is a distraction, so I'm not goingto allow it. It's basically
vouching.
N.T. Trial (Day 1), 06/19/14, at 8.
Based on the above, the OCY report was not relevant to the jury's determination on
Appellant's culpability. Accordingly, this issue is meritless.
B. Whether the jury verdict is appropriate?
Appellant claims the evidence was insufficient to convict him of the charges because he
was found not guilty of indecent exposure. Essentially, Appellant claims that this was an
inconsistent verdict Therefore, the claim will be analyzed as a challenge to the inconsistency of
the jury's verdict, rather than a sufficiency of the evidence claim. See, Commonwealth v. Moore,
103 A.3d 1240, 1242 n.3 (Pa. 2014), citing United States v. Powell, 469 U.S. 57, 67
(l 984)(finding that "such challenges are more appropriately characterized as challenges to the
inconsistency of the jury's verdict, rather than to the sufficiency of the evidence to sustain a
particular conviction")
Federal and Pennsylvania courts alike have long recognized that jury acquittals
may not be interpreted as specific findings with regard to the evidence, as an
acquittal does not definitively establish that the jury was not convinced of the
defendant's guilt. Rather, it has been the understanding of federal courts as well
as the courts of this Commonwealth that an acquittal may merely show lenity on
the jury's behalf, or that "the verdict may have been the result of compromise or
of a mistake on the part of the jury. Accordingly, the United States Supreme
Court has instructed the courts not to make factual findings regarding jury
acquittals and, thus, cannot "upset" verdicts by "speculation or inquiry into such
matters."
It is because of the inability to ascertain the rationale behind a jury's decision to
acquit a defendant that the United States Supreme Court has proclaimed that
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"[clonsistency in the verdict is not necessary," expressly holding that a defendant
may not challenge his conviction on one count when it is inconsistent with the
jury's verdict or acquittal on another count.
Moore, 103 A.3d at 1246·1247 (internal citations and quotation marks omitted).
Here, the fact that Appellant was found not gui)ty of indecent exposure and guilty of
indecent assault does not render the verdict unsound. Pennsylvania law allows inconsistent
verdicts. Moreover, the fact that Appellant was found not guilty of indecent exposure cannot be
interpreted as a specific regarding the evidence at trial. Commonwealth v. Miller, 35 A.3d 1206,
1213 (Pa. 20 l 2)(noting that an acquittal cannot be interpreted as a specific finding in relation to
the evidence). Accordingly, this claim is meritless.
C. Whether the trial Court erred in denying Appellant's untimely request for a
sentencing continuance?
On June 20, 2014, Appellant was found guilty of the foregoing offenses. On October 22,
2014, approximately four months after trial and six days before the scheduled hearing, Appellant
filed a Motion to Continue. Appellant requested a six week continuance so that he could treat
with a psychologist who would then prepare an independent assessment on whether he was a
sexual predator. Motion to Continue, 10/22/15, at ,t 5. Appellant claimed he was attempting to
find his own health care professional to conduct an independent examination, and although most
health care professional refused, one individual agreed only if he treated Appellant for a nwnber
of weeks. Id., at~ 6. Appellant claimed the Commonwealth would suffer no prejudice. Id. On
October 24, 2014, this Court denied the motion.
During the SVP hearing, Appellant again renewed his request for a sentencing
continuance. In support, he noted he was unable to find an expert who did not want to treat
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D. Whether Appellant is a sexually violent predator?
In his final four issues on appeal, Appellant challenges the SVP determination. Appellant
claims the trial court erred in the following respects: (1) relying exclusively on Ms. Manno's
determination when she did not review the trial transcripts or evidence presented at trial. Ms.
Manno also failed to meet with Appellant and submitted a report with errors; (2) classifying
Appellant as a SVP when the Commonwealth did not provide evidence that he was likely to re-
offend; and, (3) application of the SVP statute that requires that any person convicted of a listed
offense will also be deemed a SVP. Appellant's Rule 1925 (b) statement, 01/30/15, at
renumbered 114-6. Appellant further asserts that Pennsylvania Sexually Violent Predator statute
is vague and overbroad. Id., at renumbered 17.
At the outset, "[w]hen [the Superior Court] reviews the sufficiency of the evidence
supporting a determination of SVP status, '[it] will reverse the tria1 court only if the
Commonwealth has not presented clear and convincing evidence sufficient to enable the trial
court to determine that each element required by the statute has been satisfied'". Commonwealth
v. Fletcher, 947 A.2d 776 (Pa. Super. 2008), quoting Commonwealth v. Haughwout, 837 A.2d
480, 484 (Pa Super. 2003).
A "sexually violent predator" is defined as an individual convicted of an offense as set
forth in Section 9799.14 (relating to sexual offenses and tier system) and who 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 individual likely to engage in predatory
sexually violent offenses." 42 PaC.S.A. § 9799.12. The statute defines "mental abnormality" as
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
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to a degree that makes the person a menace to the health and safety of other persons." Id. The
term "predatory" is defined as an "act directed at a stranger or at a person which whom a
relationship has been initiated, established, maintained or promoted, in whole or in part, in order
to facilitate or support victimization.', Id
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 cJear, 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. Bishop, 936 A.2d 1136, 1 141 (Pa Super. 2007) (internal citations and
quotation marks omitted).
Once an individual is convicted of a sexually violent offense, the trial court must order
the person to be assessed by the Sexual Offenders Assessment Board. See 42 Pa.C.S.A. §
9799.24(a). The Board, in making its assessment, must follow the procedure set forth in 42
Pa.C.S.A. § 9799.24. The relevant portions are as follows:
§ 9799.24. Assessments
(b) Assessment.--Upon receipt from the court of an order for an assessment, a
member of the board as designated by the administrative officer of the board shall
conduct an assessment of the individual to determine if the individual should be
classified as a sexually violent predator. Toe board shall establish standards for
evaluations and for evaluators conducting the assessments. 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) Toe nature of the sexual contact with the victim.
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(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.
(jv) 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.
42 Pa.C.S.A. § 9799.24.
Instantly, this Court directed the State Sexual Offender Assessment Board to perform an
SVP assessment of Appellant. Ms. Brenda Manno, a licensed clinical social worker and member
of the Board, conducted the assessment and prepared a report in which she concluded, to a
reasonable degree of professional certainty, that Appellant met the statutory criteria for
classification as a sexually violent predator. N.T. SVP Hearing and Sentencing, 10/28/14, at 17.
At the SVP bearing, Ms. Manno explained that she reviewed the following: (1) report
from the Board investigator, Nicole Bahr; (2) Child Line Records; (3) police report, criminaJ
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complaint. and affidavit of probable cause: (4) preliminary hearing transcript; (5) records from
the Pennsylvania Department of Transportation; and, (6) letter of non-participation from the
defense attorney. N.T. SVP Hearing and Sentencing, 10/28/14, at 11, 25. She explained the
relevant statutory criteria that she considered and rendered her opinion that Appellant suffered
from a mental abnormality/personality disorder and met the diagnostic criteria for unspecified
paraphilic disorder, which is a lifetime disorder. Id .. at 12-16 . Ms. Manno also found that
Appellant· s paraphilia made it more likely that he would reoffend in a sexual manner. Id., at 15.
Ms. Manno concluded that Appellant's behavior was predatory as defined under the
statute. Id., at 15-16. She further concluded that Appellant maintained or promoted his
relationship as the victim's step-father to have access to. and sexually victimize her. ld., at 16.
In making its determination, this Court considered the record, all of the relevant statutory
provisions, and credited Ms. Manna's testimony and her report. The fact that Ms. Manno did not
interview Appellant is not dispositive, especially since Appellant notified the Board on or about
June 24, 2014, that he was refusing to participate in the interview process. Any purported errors
contained in the report bad no bearing on the SVP determination. N.T. SVP Hearing and
Sentencing, I 0/28/14, at 29-30, 58-59. Furthermore, the fact that Ms. Manno did not review the
trial transcripts. which were not transcribed until January of 2015, and instead relied on other
credible evidence. does not impact her determination. Finally, despite Appellant's argument to
the contrary, Ms. Manna's determined that Appellant had the likelihood of reoffending. N.T.
SVP Hearing and Sentencing, 10/28/14, at 15; See also, 8/28/14 Sexually Violent Predator
Assessment at 3-4.
The fact that some of the enumerated assessment factors under Section 9799.24 may not
have been present is not dispositive because "there is no statutory requirement that all of them or
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