J. A03007/16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
BASEM K. SHLEWIET, :
:
Appellant : No. 1004 EDA 2015
Appeal from the Judgment of Sentence February 9, 2015
In the Court of Common Pleas of Bucks County
Criminal Division No(s).: CP-09-CR-0001645-2014
CP-09-CR-0001646-2014
BEFORE: GANTMAN, P.J., MUNDY,J., and DUBOW, J.
MEMORANDUM BY DUBOW, J.: FILED MARCH 31, 2016
Appellant, Basem K. Shlewiet, appeals from the judgment of sentence
entered in the Court of Common Pleas of Bucks County, following his jury
trial convictions for Unlawful Contact with a Minor – Sexual Offenses,1
Corruption of Minors,2 seven counts of Indecent Assault by Forcible
Compulsion,3 and seven counts of Indecent Assault Without the
Complainant’s Consent.4 We affirm.
1
18 Pa.C.S. § 6318(a)(1).
2
18 Pa.C.S. § 6301(a)(1)(i).
3
18 Pa.C.S. § 3126(a)(2).
4
18 Pa.C.S. § 3126(a)(1).
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Appellant is a psychiatrist who molested seven of his female patients,
including one minor, during treatment sessions. The trial court prepared a
detailed and accurate statement of facts and procedural history, which we
will incorporate by reference. See Trial Ct. Op., dated 6/26/2015, at 1-14.
Appellant raises the following issues on appeal:
a. Was the evidence sufficient to prove beyond a reasonable
doubt that the Appellant was guilty of Indecent Assault with
respect to the elements of forcible compulsion and/or without
the consent of the victims?
b. Was the sentence imposed by the trial court excessive,
unreasonable and based upon improper considerations?
Appellant’s Brief at 3.
Appellant first challenges the sufficiency of the evidence. Our
Supreme Court has set forth the appropriate standard of review: “[w]hen
reviewing the sufficiency of the evidence, an appellate court must determine
whether the evidence, and all reasonable inferences deducible from that,
viewed in the light most favorable to the Commonwealth as verdict winner,
are sufficient to establish all of the elements of the offense beyond a
reasonable doubt.” Commonwealth v. Weiss, 776 A.2d 958, 963 (Pa.
2001) (citation omitted).
We have thoroughly reviewed the certified record, the briefs of the
parties, the applicable law, and the well-reasoned Trial Court Opinion. We
conclude that Appellant’s first issue merits no relief. The comprehensive
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Trial Court Opinion properly disposes of the issue and we affirm on the basis
of that Opinion. See Trial Ct. Op., dated 1/26/15, at 15-27.
Appellant next challenges the discretionary aspects of the sentence
imposed by the trial court, which was also the sentencing court. The trial
court sentenced Appellant to an aggregate term of 7 to 17 years’
incarceration. For one count of Unlawful Contact with a Minor, 5 the trial
court sentenced Appellant to a term of 2 ½ to 5 years’ incarceration, a
sentence in the aggravated range. The trial court also sentenced Appellant
to a term of 9 to 24 months’ incarceration for each of six counts of Indecent
Contact – Forcible Compulsion.6 The trial court ordered Appellant to serve
all sentences consecutive to one another and did not impose a sentence on
the remaining counts.
Our standard of review applicable to sentencing challenges is well
settled:
Sentencing is a matter vested in the sound discretion of the
sentencing judge, and a sentence will not be disturbed on appeal
absent a manifest abuse of discretion. In this context, an abuse
of discretion is not shown merely by an error in judgment.
Rather, the appellant must establish, by reference to the record,
that the sentencing court ignored or misapplied the law,
exercised its judgment for reasons of partiality, prejudice, bias
or ill will, or arrived at a manifestly unreasonable decision.
5
18 Pa.C.S.A. § 6318(a)(1).
6
18 Pa.C.S.A. § 3126(a)(2).
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Commonwealth v. Rodda, 723 A.2d 212, 214 (Pa. Super. 1999) (en banc)
(internal quotations and citations omitted).
Appellant does not have an automatic right to appeal the discretionary
aspects of a sentence. Rather, we must first determine whether Appellant
has met the following four elements before we will review the discretionary
aspect of a sentence:
(1) whether the appellant has filed a timely notice of appeal;
(2) whether the issue was properly preserved at sentencing or
in a motion to reconsider and modify sentence,
(3) whether the appellant's brief has a fatal defect, and
(4) whether there is a substantial question that the sentence
appealed from is inappropriate under the Sentencing Code.
Commonwealth v. Williams, 787 A.2d 1085, 1087-88 (Pa. Super. 2001)
(internal citations omitted).
Here, Appellant met the first three elements by filing a timely Notice of
Appeal, properly preserving the issues, and including in his brief a Statement
of Reasons relied upon for allowance of appeal, pursuant to Pa.R.A.P.
2119(f). Accordingly, we next determine whether Appellant’s claims present
a “substantial question” for review.
It is well established that a “substantial question” about a sentence is
one in which the trial court violated the sentencing scheme or a fundamental
norm underlying the sentencing process. Commonwealth v. Mouzon, 812
A.2d 617, 627 (Pa. 2002).
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Appellant argues that the following issues are “substantial questions”
that merit this Court’s review of the sentence: (1) the trial court committed
a constitutional error when it considered the Appellant’s failure to accept
responsibility and failure to exhibit remorse as an aggravating factor in
determining the sentence to be imposed; (2) the trial court incorrectly
considered the victim’s age and the fact that there were multiple victims
when sentencing for Unlawful Contact with a Minor;7 and (3) the sentence
was excessive and unreasonable. Appellant’s Brief at 7-10, 30-36.
We agree that Appellant has raised a “substantial question” and will
review the merits of Appellant’s claims. See, e.g., Commonwealth v.
Bowen, 975 A.2d 1120, 1122 (Pa. Super. 2009) (noting a claim that an
aggravated-range sentence was based on an unconstitutional factor does
raise a “substantial question” for review) and Commonwealth v.
Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006) (concluding that when trial
court actions are inconsistent with the Sentencing Code, there is a
“substantial question” for review).
Appellant first states that the trial court “improperly considered the
fact that [he] refused to accept responsibility for these crimes” and “it would
appear from the statements of the sentencing court that it considered [his]
failure to express remorse as an aggravating factor in determining the
sentence to be imposed.” Appellant’s Brief at 30. Although the brief is
7
18 Pa.C.S. § 6318(a)(1).
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inartfully drafted, we deduce from Appellant’s case citations that he is
averring that such consideration violated his right to remain silent.
Appellant’s Brief at 30.
We first note that it is not an abuse of discretion for the trial court to
consider a defendant’s lack of remorse as one of many factors used to
determine a sentence, “provided that it is specifically considered in relation
to protection of the public, the gravity of the offense, and the defendant’s
rehabilitative needs.” Bowen, 975 A.2d at 1125.
Appellant, relying on Bowen, argues that the trial court impermissibly
equated Appellant’s silence at sentencing with his failure to take
responsibility. See id. at 1121.
We disagree with Appellant’s analogy. In the instant case, unlike
Bowen, Appellant allocuted during the sentencing hearing, acknowledging
only that the victims had felt uncomfortable during his medical examinations
and he should have had someone else in the room. See N.T. Sentencing,
2/9/15, at 25-34. After Appellant’s allocution, the trial court stated, “there’s
no doubt in my mind that you haven’t accepted responsibility for this. You
continue to deny it. Your remorse is for you and your family and not for
these young women that you have manipulated and assaulted.” Id. at 54.
In addition, the trial court considered numerous other sentencing factors
aside from lack of remorse and lack of responsibility including, but not
limited to, the impact on the victims, the types of crimes, the fact that
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Appellant exploited his position as a treating psychiatrist, the sentencing
guidelines, and the impact on the community. Id. at 48-60.
Accordingly, we find that the trial court relied on Appellant’s allocution,
not Appellant’s silence, to determine that Appellant lacked remorse and
failed to take responsibility for his crimes. We also find that the trial
considered Appellant’s lack of remorse and failure to take responsibility,
along with a myriad of other sentencing factors, in fashioning an
aggravated-range sentence. Therefore, the trial court did not abuse its
discretion. See Bowen, 975 A.2d at 1221.
Appellant next argues that the trial court engaged in impermissible
double counting when it (1) considered the victim’s age; and (2) observed
that there had been multiple victims, while sentencing for Unlawful Contact
with a Minor.8
The court considered several factors, including the age of the victim, in
sentencing Appellant in the aggravated range:
[O]n Criminal Information 1645 of 2014, Count Number 1, that’s
the unlawful contact with a minor – I might add that the
sentence in this case is an aggravated sentence because I
believe the victim’s age is a factor. I don’t believe the guidelines
ever took into account a doctor-patient relationship, nor do they
take into account the multiple victims in the case.
N.T. Sentencing at 59-60. As stated above, the trial court went on to name
numerous other sentencing factors. Id. at 48-60.
8
18 Pa.C.S. § 6318(a)(1).
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This Court has held that, while it is impermissible for a court to
consider factors already included within the sentencing guidelines as the
sole reason for increasing a sentence to the aggravated range, sentencing
courts may consider “other factors already included in the guidelines if, they
are used to supplement other extraneous sentencing information.”
Commonwealth v. Simpson, 829 A.2d 334, 339 (Pa. Super. 2003). Here,
as stated above, the trial court considered numerous other sentencing
factors and age was not the sole factor in fashioning the aggravated
sentence. N.T. Sentencing, 2/9/15, at 48-60. We, thus, conclude the court
did not abuse its discretion when considering age as one of many factors
when sentencing Appellant for Unlawful Contact with a Minor.9
Further, it was not an abuse of discretion for the trial court to take into
consideration the multiple victims in the case when imposing a sentence for
Unlawful Contact with a Minor.10 Appellant argues that:
[T]he fact that there were multiple victims in the case should
have had no bearing on the sentence to be imposed as to the
complainant named in Count 1. As already noted, the lower
court did proceed to impose a consecutive term of imprisonment
for each of the six other complainants in this case. Therefore,
the fact that there were ‘multiple victims in the case’ was
already factored into the lower court’s aggregate terms of
imprisonment.
Appellant’s Brief at 35.
9
18 Pa.C.S. § 6318(a)(1).
10
18 Pa.C.S. § 6318(a)(1).
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We disagree. Sentencing a defendant to consecutive sentences for
each victim is not tantamount to double counting an aggravating factor
where defendant committed a host of crimes with multiple victims.
Commonwealth v. Dodge, 77 A.3d 1263, 1277 (Pa. Super. 2013).
Therefore, this challenge lacks merit.
Appellant last argues that the sentence was excessive and
unreasonable. We have thoroughly reviewed the certified record, the briefs
of the parties, the applicable law, and the well-reasoned Trial Court Opinion.
The comprehensive Trial Court Opinion properly disposes of this issue, and
we affirm on the basis of that Opinion. See Trial Ct. Op., dated 1/26/15, at
27-32.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/31/2016
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,,. .
IN THE COURT OF COMMON PLEAS OF BUCKS COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEAL TH OF PENNSYLVANIA CP-09-CR-0001645-2014
v.
BASEM SHLEWIET
OPINION
Defendant Basem Shlewiet (hereinafter "Appellant") appeals this Court's February 9,
2015 Judgment of Sentence and March 20, 2015 Denial of Motion to Reconsider Sentence. We
file this Opinion pursuant to Pennsylvania Rule of Appellate Procedure l 925(a).
PROCEDURAL HISTORY
On January 23, 2014, the Bucks County Detectives charged Appellant with multiple
counts of Indecent Assault and related offenses. On October 14, 2014, a jury found Appellant
guilty of Unlawful Contact with a Minor- Sexual Offenses', Corruption of Minors', seven (7)
counts oflndecent Assault by Forcible Compulsion', and seven (7) counts oflndecent Assault
without Complainant's Consent", convicting Appellant of all charges with the exception of one
(1) count each of Indecent Assault by Forcible Compulsion and Indecent Assault without
Consent. Sentencing was deferred for a psychiatric evaluation, a pre-sentence investigation, and
an evaluation by the Sexual Offenders Assessment Board.
On January 14, 2015, Appellant filed a Motion for Extraordinary Relief, which this Court
denied at Appellant's Sentencing Hearing on February 9, 2015. At that Hearing, Appellant was
118Pa.C.S.
§6318(a)(l).
2
18 Pa.C.S. § 6301(aXIXi).
3
18 Pa.C.S. § 3 I 26{a)(2).
, 4
18 Pa.C.S. § 3 l26{a)(J).
1
sentenced to serve not less than seven (7) years, nor more than seventeen ( 1 7) years, in a State
Correctional Institution. On February 12, 2015 Appellant filed a Motion for Reconsideration of
Sentence, which this Court denied without a hearing on March 30, 2015. On April 9, 2015,
Appellant filed a timely Notice of Appeal to Superior Court.
FACTUAL BACKGROUND
The Commonwealth began its case-in-chief by presenting the testimony of Chelsea
Reinert (hereinafter "C.R."). C.R.'s primary physician advised that she see a psychiatrist to help
with her anxiety, depression, and an eating disorder, so C.R. began treating with Dr. Shlewiet on
October 3, 2013. N.T. 10/07/14, pp. 122-23. C.R. visited Appellant five (5) separate times with
her mother present, with each visit occurring approximatelytwo (2) weeks after the previous
appointment N.T. 10/07/14, pp. 125, 137. During her first session, Appellant examined C.R. and
prescribed medication to treat her various issues. Appellant did not touch C.R. during this
encounter. N.T. 10/07/14, p. 124. At C.R.'s second appointment, Appellant requested that C.R.'s
mother leave the room for a period of time. With only him and C.R. in the room, Appellant
attempted to measure C.R.'s heart rate using a stethoscope, thereby placing his hand and the
stethoscope under her shirt and slightly under her bra, resting upon C.R. 's breast During this
visit, C.R. did not complain of any heart or chest-related pain. N.T. 10/07/14, pp. 125-27.
During C.R.'s third and fourth visits, C.R. experienced similar suggestive contact with
Appellant. In each instance, Appellant asked C.R.'s mother to step out of the room and then took
C.R.'s heart rate using a stethoscope. Appellant placed his hand and the stethoscope down C.R's
shirt and underneath her bra. C.R. could feel Appellant's fingertips brushing her nipple and
overtop and underneath her breast as well. N.T. 10/07/14, pp. 129-32. During her fourth visit
with Appellant, Appellant seemed to act in a more deliberate and slower pace while feeling
2
around C.R.'s chest area. Additionally, Appellant then toJd C.R. to lie across a loveseat in the
room while he felt her stomach overtop of her clothing. N.T. 10/07/14, pp. 132-35. Appellant
gave no reason for doing this, and C.R. did not complain of any chest or stomach issues either.
Appellant continued to prescribe C.R. medication for her various conditions. N.T. 10/07/14, pp.
135-36.
Appellant's actions during this fourth visit prompted C.R. to tell her parents of his
behavior. N.T. 10/07/14, p. 136. After not being able to make an appointment with another
psychiatrist within such a small amount of time, C.R. was forced to go back to Appellant so that
she could get a re-fill on her prescriptions. During this fifth visit, C.R's mother did not leave the
room while she was being examined by Appellant. N.T. 10/07/14, pp. 137, 185-86. With her
mother in the room, Appellant still took C.R.'s blood pressure, yet did not reach underneath her
shirt or bra to do so. In general, Appellant's behavior was much more "scared, intimidated, and
sheepish" than it had been during the previous visits. N.T. 10/07/14, pp. 137-38. At various times
during these appointments, C.R. also observed that Appellant would reach down and cup or
touch his testicles as he was talking and listening to her. N.T. 10/07/14, pp. 141-42.
Throughout this time, C.R. kept seeing Appellant as she needed to continue to receive
medication to treat her various conditions. Even though C.R. did not believe the medication was
working, she still felt as if she needed to continue treatment with the hope that she could find a
medication that would help. N.T. 10/07/14, p. 128.
Jenna Miniscalco (hereinafter "J.M.") began treating with Appellant in July 2013 for her
anxiety and depression. N.T. 10/07/14, pp. 202-03. During J.M.'s first two (2) visits to
Appellant's Doylestown office, Appellant treated J.M. and prescribed her medicine to address
both her anxiety and depression, and prescribed new medication for a suspected case of ADD.
3
N.T. 10/07/14, pp. 204-06. After going away to college, J.M. began FaceTiming with Appellant
so that he could monitor her condition and the effects of the prescribed medication. At the behest
of J.M.'s parents, J.M. went to a family therapy session that involved her parents, Appellant, and
J.M.'s therapist as well. N.T. 10/07/14, pp. 207-09. Throughout these encounters with Appellant,
Appellant did not touch J.M. in any suggestive way or attempt to measure her heart rate.
J.M. further visited Appellant on January 8, 2014, while on winter break from college.
N.T. 10/07/14, p. 209. During this visit, however, Appellant insisted on monitoring J.M.'s heart
rate and requested that she remove her sweatshirt so that he could better do so. Appellant then
proceeded to place his hand and his stethoscope down her camisole and underneath her bra,
touching in between and on both of her breasts. J.M. confirms that his hand reached down to the
underwire of the bra N.T. 10/07/14, pp. 209-11. Appellant then told J.M. that she had high blood
pressure, instructed her to stop talking, and then he sat across from her with his eyes closed for
approximately one minute. After that time elapsed, Appellant told J.M. that she had white coat
syndrome and was afraid of him, and he proceeded to measure her heart rate again. He touched
J.M. in the same fashion as he had previously, again reaching underneath her shirt and bra and
touching both ofher breasts.N.T. 10/07/14, pp. 212-13.
J.M. did not feel comfortable with Appellant's behavior and was also disturbed by the
thought of having high blood pressure. J.M. prepared to go back to Appellant two (2) weeks later
as she needed a re-fill of her medication and did not believe that she could get an appointment
with another psychiatrist in such a small amount of time. N.T. 10/07/14, p. 214. When J.M.
attempted to go to her next appointment, she intentionally wore a larger, baggy t-shirt underneath
her sweatshirt so that Appellant would not have enough room to go down the top of her shirt and
4
would have plenty of room to use her arm instead. J.M. did not have this appointment with
Appellant, however, as Appellant was arrested the previous day. N.T. 10/07/14, pp. 214-15.
In January 2013, Brittany Kulick (hereinafter B.K.) started visiting Appellant in order to
treat her depression, anxiety, and other related issues. N.T. 10/08/14, p. 14. During her first two
appointments with Appellant, he did not touch her inappropriately, only placing the stethoscope
slightly under her shirt in order to take her blood pressure. 10/08/14, pp. 16-18. However,
Appellant's behavior changed during B.K.'s subsequent visits. At her third appointment with
Appellant, Appellant proceeded to reach deeper into B.K.'s shirt and underneath her bra while
attempting to measure her heart rate. B.K. could feel Appellant's hand touching her breasts and
nipples and, at times, could feel him cup her breasts while underneath her bra as well. B.K. did
not complain about chest pains during this visit. N.T. 10/08/14, pp. 18-20.
After that third appointment, B.K. continued to visit Appellant for treatment. In response
to B.K.'s complaints about nausea, Appellant switched her medication at a previous appointment.
During a subsequent February visit, B.K. con.firmedthat she was no longer experiencing nausea
from her new medication. Despite B.K.'s claims, Appellant insisted on examining B.K.'s stomach
and reached his hand down below her underwear line. N.T. l0/08/14, pp. 21-23.
During B.K.'s next two appointments, Appellant's inappropriate behavior escalated. At
B.K.'s next visit, which occurred during late February 2013, Appellant attempted to take her
blood pressure and felt both of her breasts underneath her bra as he did during previous visits.
However, B.K. wore a nipple ring during this appointment, and she could feel Appellant feel
around and touch the ring. In addition, Appellant commented on the ring during that appointment
in a way that indicated to B.K. that he was also looking down her shirt. After that incident,
5
Appellant began to generally behave and talk in a way that made B.K. feel more uncomfortable
around him than she had previously. N.T. 10/08/14, pp. 23-24.
B.K. visited Appellant once more before she contacted the police. At this appointment,
Appellant informed B.K. that she had low blood pressure and that she should lie down on the
couch in his office. B.K. was wearing a long skirt at the time, and Appellant instructed B.K. to
uncross her legs and place them up over the arm of the couch. N.T. 10/08/14, pp. 26-27.
Appellant then crouched on the side of the couch, placing one hand on B.K. 's inner upper thigh
and the other hand grabbing her breasts inside of her shirt. B.K. did not look at Appellant as she
thought that he would kiss her if she turned her head. Appellant kept telling B.K. to "relax."
Appellant continually asked, "What can we do to make you relax?," suggesting that she smoke a
cigarette or do yoga. Then Appellant pressed further, saying, "You can't think of anything else 1
can do to make you relax? What can we do to make you relax?" Appellant's behavior scared
B.K., and it seemed as if he was getting satisfaction from hearing B.K.'s heart during this
encounter. The appointment lasted for approximately twenty (20) minutes, and apart from the
very start of the session, B.K. was lying on the couch for its entirety. N.T. 10/08/14, pp. 28-30.
After this last appointment, B.K. went to the Doylestown Borough Police to report
Appellant. N.T. 10/08/14, p. 31. While the investigation was ongoing, B.K. received
prescriptions for her medicine from her family doctor. After two (2) months, however, B.K.'s
family doctor could no longer prescribe the medication, and B.K. was forced to go back to
Appellant for her prescriptions. B.K. returned to Appellant's office for three (3) more visits after
she had contacted the police, and she would wrap medical bandages around her breasts before
attending her appointments. N.T. 10/08/14, pp. 38-40. During these last few appointments,
6
Appellant behaved differently toward B.K. and did not touch her as he had in prior visits. N.T.
10/08/14, p. 41.
Samantha Welsh (hereinafter "S.W.") began seeing Appellant to assist in her recovery
from an opiates addiction and to treat her anxiety and depression. N.T. 10/08/14, pp. 84-85. S.W.
visited with Appellant several times between May 27, 2013 and January 17, 2014. Appellant did
not touch S. W. during her first scheduled appointment. However, Appellant proceeded to have
inappropriate physical contact with S.W. approximately (I 0) times during her treatments with
him. Beginning with her appointment on May 28, 2013, Appellant began to touch S.W.'s left
breast and nipple underneath her shirt and bra while claiming to monitor her heart rate.
During the summer months, S.W. changed the way she was dressing in an attempt to
prevent Appellant from touching her breasts. S.W. would wear multiple layers and even put on a
long sleeve shirt that she kept in her car before going in for her appointments. Yet the wardrobe
changes did not affect Appellant's behavior. N.T. I 0/08/14, p. 102. In an appointment during
July or August of 2013, Appellant proceeded to touch both of S.W.'s breasts while using a
stethoscope to seemingly monitor her heart rate. Appellant touched S.W. under the pretense that
he was also checking her lungs as well. N .T. 10/08/14, pp. 99-100. During this appointment,
Appellant continued to prescribe S.W. medications for her various issues, including Suboxone
and Prozac. N.T. 10/08/14, p. 101.
Appellant's behavior remained unchanged until an October 3, 2013 appointment During
this visit, Appellant began by feeling S.W.'s breast while attempting to monitor her heart rate,
except S.W. noted that Appellant felt her by placing his hand up from the bottom of her shirt.
N.T. 10/08/14, pp. 106~07. Appellant then told S.W. that her heart seemed to be beating fast and
instructed her to lie down on the couch in his office. Appellant then touched S.W.'s stomach,
7
asking if anything was tender or hurt at all. Despite S.W. affirming that she was not feeling any
pain, Appellant continued to touch S.W. Appellant then knelt next to the couch and ran his right
hand down S.W.'s pants, placing it partway beneath S.W.'s underwear line. At this point, S.W.
grabbed Appellant's hand, prompting Appellant to pull his hand back away from S.W. Appellant
gave S.W. her prescriptions and the appointment ended. N.T. 10/08/14, pp. 103-05.
AppelJant's inappropriate behavior continued throughout S.W.'s remaining visits. In a
November appointment, Appellant felt both ofS.W.'s breasts again, yet this time, S.W. observed
that Appellant flicked or touched her left nipple in what seemed to be an attempt to stimulate it
N .T. 10/08/14, p. I 08. At her next appointment, Appellant immediately instructed S. W. to lie
down on the couch. Appellant reached his hand up from the bottom ofS.W.'s shirt and felt her
left breast underneath her bra. After doing so, Appellant informed S.W. that "something was
going on" with her heart, and he gave her a form to get an EKG test. S.W. later received the
EKG test, which revealed no problems with her heart. N.T. 10/08/14, pp. 109-10.
S.W. next saw Appellant on January 8, 2014 for a scheduled appointment. During this
visit, Appellant questioned S. W. about her marriage and further divulged that his marriage was
not going well, and he had no sex life with his wife. Appellant then communicated to S.W. that
the two should "help each other out," an advance which S.W. declined. N.T. 10/08/14, pp. 110-
11. S. W. next paid an unscheduled visit to Appellant in his office on January 13, 2014, as she
was not feeling right, explaining that she was feeling what seemed to be electric shocks going
through her head. Appellant told her to wait a few days, and S. W. left without any physical
contact with Appellant N.T. 10/08/14, pp. 112-13.
S.W.'s last visit with Appellant occurred on January 17, 2014. S.W.'s condition was
getting worse, so she again stopped by Appellant's office for an unscheduled visit. S.W. had a
8
friend drive her, and her friend accompanied her inside the office as well. Appellant saw S. W.,
and further agreed to change her medication as well. Afterwards, Appellant asked S.W.'s friend
to step out of the office, whereupon he then grabbed the back ofS.W.'s head, pulled her into his
face, and proceeded "to shove his tongue halfway down [her] throat." S.W. pulled herself away
and informed Appellant that "this will be the last time you ever touch me like this again." N.T.
10/08/14, pp. 113-14.
S.W. did not see Appellant again for treatment after the January 17, 2014 visit. Despite
Appellant's inappropriate touching during the length of S.W.'s treatment, S.W. continued to treat
with Appellant as she felt that she did not have a choice. N.T. l 0/08/14, p. 115. Moreover, S. W.
conducted research on the Suboxone website, which indicated that Appellant and a Quakertown
clinic were the only two available medical offices in the area that could prescribe Suboxone.
N.T. 10/08/14, pp. 94-95. S.W. looked into making an appointment with the Quakertown clinic,
but a $70 walk-in fee without the guarantee of an appointment prevented S.W. from attempting
to treat there. So S. W. kept seeing Appellant in order to continue with her Suboxone treatment.
N.T. 10/08/14, p. 117-18.
Annie Axenroth (hereinafter "A.A.") saw Appellant from August 2012 until November
2013 to treat her anxiety and related issues. N.T. 10/08/14, p. 167. During this period, A.A. was
16-17 years old. N.T. 10/08/14, p. 170. Before her November 2013 appointment, A.A. visited
Appellant approximately every 4-6 weeks in his office for treatment and to receive her
prescriptions. During these visits, Appellant would take A.A.'s blood pressure by pumping up a
cuff around her arm and placing his stethoscope under the cuff. N.T. 10/08/14, pp. 168-69.
During A.A. 's November appointment, Appellant's behavior changed. Appellant began by
taking A.A.'s blood pressure as he usually did, except he then told her that it seemed higher than
9
usual. Appellant instructed A.A. to lie down on the couch to see if she would be more relaxed.
N.T. l 0/08/14, p. J 70. While she was lying down, Appellant put his hand underneath A.A.'s shirt
with his stethoscope. After he finished touching underneath her shirt, he began to massage her
stomach, asking if it hurt when he touched certain places, even though A.A. never complained to
him about any stomach issues. As he was touching her stomach, Appellant questioned A.A.
about her sex life, asking if it ever hurt when she had sex. Afterwards, Appellant then placed his
hand under A.A. 's pants, ultimately stopping a few inches below the pant line. Appellant further
instructed A.A. to tum over so that she would be lying on her stomach, and he then proceeded to
touch in between her legs and to the front of her body. A.A. could feel Appellant touching her
vagina on the outside of her leggings. N.T. 10/08/14, pp. 170-73. After Appellant finished
touching her, Appellant told A.A. to sit up on the couch. As she sat up, Appellant stood directly
in front of her such that his zipper was in line with A.A.'s face. When A.A. left Appellant's
office, she texted her mom "Think I was almost raped by Dr. Shlewiet." See Exhibit C-2; N.T.
10/08/14, pp. 174-77.
Beginning in the last week of August 2013, Samantha Hagan (hereinafter "S.H.") saw
Appellant a total of four (4) times. S.H. was transferring from another psychiatrist and sought out
Appellant to help treat her anxiety, depression, and other related issues. N.T. 10/08/14, pp. 197-
98. During the first visit to his office, Appellant took S.H.'s blood pressure by pwnping up a cuff
around her arm and using his stethoscope. Appellant sat next to S.H., then proceeded to remove
the stethoscope from her arm and place it down the left side of her shirt, ultimately placing his
hand and the stethoscope underneath her shirt and bra, touching her left breast and nipple. S.H.
could feel Appellant's hands actually touching both her breast and nipple. N.T. 10/08/14, pp.
IO
199-200. At the conclusion of her appointment, Appellant prescribed S.H. medication for her
anxiety and depression. N.T. 10/08/14, p. 201.
At S.H.'s second appointment, Appellant measured S.H.'s heart rate twice. Appellant
asked S.H. to lie down on the couch, then he positioned her legs so that they were dangling over
the arm. N.T. 10/08/14, pp. 201-03. Appellant proceeded to reach his hand and stethoscope up
from the bottom of S.H.'s shirt and placed it inside her bra. S.H. could again feel Appellant
touching her left breast and nipple with his hand. N.T. 10/08/14, pp. 203-05. After Appellant
finished touching S.H., he went to his desk and asked S.H. some questions as she resumed her
seated position. Appellant then seemed as ifhe were thinking about something, and then told
S.H. to lie down on the couch again. Appellant then repeated what he had done moments before,
feeling S.H.'s left breast underneath her shirt as he attempted to monitor her heart rate. N.T.
10/08/14, pp. 205-06.
S.H. returned to Appellant's office after her second visit so that she could re-fill her
medication. During this third appointment, Appellant did not touch S.H. inappropriately. N.T.
10/08/14, p. 206. S.H. returned for a fourth and final visit, but asked her boyfriend to accompany
her, hoping that his presence would dissuade Appellant from touching her as he had previously.
At this appointment, S.H. remembers Appellant checking her blood pressure, but not touching
her inappropriately. However, before S.H. left his office, Appellant asked S.H. if she had any
questions about everything that "stays in here," which seemed to S.H. to be an attempt by
Appellant to control what she would say outside of his office. N.T. 10/08/14, pp. 207-08, 21 L
Chelsea Kalman (hereinafter "C.K.11) visited Appellant from August 2013 until December
2013 to treat for anxiety disorder and related issues. N.T. 10/09/14, p. 14. During her first
appointment in August, Appellant did a routine examination of C.K., including checking her
11
blood pressure. However, Appellant used an inflatable arm cuff and placed his stethoscope near
the cuff in order to measure C.K. 's blood pressure. Appellant proceeded to prescribe C.K.
medication before the appointment concluded. N. T. l 0/09/ 14, pp. 16-17.
After her first appointment, C.K. visited Appellant monthly until December 2013.
Appellant did not attempt to take C.K.'s blood pressure during any of the next three visits, and
C.K. did not complain of any issues with her heart or chest either. N.T. 10/09/14, pp. 17-20.
During C.K.'s final visit in December, however, Appellant's behavior changed. Appellant
informed C.K. that he was thinking about placing her on a new medication, and that he would
need to take her blood pressure. Right away, Appellant placed his hand and stethoscope down
C.K.'s shirt and underneath her bra. Appellant's hand reached down to the bottom of C.K.'s bra,
and C.K. could feel his fingers on her breast and nipple. N.T. 10/09/14, pp. 21-22. Appellant then
informed C.K. that he couldn't read her heart rate, so he told her to lie down on the couch. As
C.K. laid on the couch with her legs hanging over the arm, Appellant proceeded to put his
stethoscope back down C.K.'s shirt and beneath her bra as he did before. C.K. could again feel
Appellant's whole hand on her breast. N.T. 10/09/14, pp. 23-25.
In July 2013, Devon Jones (hereinafter "D.J.") began seeing Appellant to treat issues
associated with both heroin addiction and the recent death of her sister as a result of her own
heroin addiction. N.T. 10/09/14, pp. 53-54. During her first three (3) visits, D.J. was
accompanied to Appellant's office with her mother, and Appellant did not touch D.J.
inappropriately. Appellant treated D.J. and provided her with medication at each appointment.
N.T. 10/09/14, pp. 54-58.
On August 22, 2013, D.J.'s mother was on vacation, so D.J. went to her fourth
appointment alone. At his office, Appellant initially conunented on D.J.'s improved physical
12
appearance, as she had now been off heroin for some time. However, Appellant began to make
D.J. feel uncomfortable with how he was stressing that she was "hot" and continually insisting
that she take off her jacket. N.T. 10/09/14, pp. 58-59. After that exchange, Appellant told D.J. to
lie down on the couch. As DJ. did so, Appellant proceeded to pull down the top of the strapless
summer dress that DJ. was then wearing, exposing both of her breasts. Appellant then checked
DJ.'s heart beat for approximately three (3) seconds, then began pressing on and grasping her
breast, giving her what seemed like a physical examination. Appellant stopped touching D.J.
after approximately ten-fifteen (10-15) seconds and prescribed her medication before she left the
office. N.T. 10/09/14, pp. 60-64.
Prior to her next appointment, D.J. left her parents' house and moved in with an old
boyfriend with whom she used to use heroin. Shortly after leaving home, DJ. ran out of
medication and relapsed on her heroin addiction. N.T. 10/09/14, pp. 65-66. Approximately four
(4) days before Halloween, D.J.'s parents removed her from her boyfriend's house and brought
her back to their home to help her through the detoxification process. On November I, 2013, five
(5) days after DJ.'s parents brought her home, D.J. and her mother went to see Appellant N.T.
10/09/14, pp. 67-70.
During the ensuing appointment, D.J.'s mother entered Appellant's office with her and
told Appellant what had happened. Appellant then told DJ.'s mother to leave the room, and
afterwards D.J. discussed the recent developments with Appellant. Appellant then told DJ. to lie
down so that he could check her heart rate. Appellant proceeded to lift up D.J.'s shirt over her
breasts and pull her bra down so her breasts were exposed. Appellant initially used a stethoscope,
but then began to fondle D.J.'s left breast as he had done during her previous visit. N.T. 10/09/14,
pp. 70-72. Appellant did not prescribe any medication for DJ. during this appointment, but
13
rather suggested that she visit a rehabilitation facility. Immediately after leaving Appellant's
office, D.J. told her mom of Appellant's behavior, but her mother insisted that they just
concentrate on getting her into rehab as soon as possible. N.T. 10/09/14, pp. 72-73.
Ashley Bartasek's (hereinafter "A.B.") nine (9) year-old son, Robert, saw Appellant for
approximately two (2) years to treat his Asperger Syndrome and ADHD. N .T. 10/09/14, pp. I 54-
55. Robert visited Appellant once per month for twenty-four (24) months, making for a total of
twenty-four (24) visits. A.B. accompanied her son for each appointment, and not once did
Appellant ask her to leave the room. Additionally, Appellant never measured her son's heart rate.
N.T. 10/09/14, pp. 154-57.
At her son's last appointment, A.B. scheduled her own appointment with Appellant to
address her recent depression and anxiety. At the beginning of her appointment, Appellant took
A.B.'s heart rate by placing an inflatable cuff on her arm and further placing his stethoscope
inside her shirt at the top of her breast. N.T. 10/09/14, pp. 158-60. Afterwards, Appellant had a
discussion with A.B., asking several inappropriate questions. Appellant inquired of A.B. if she
masturbates, what stimulates her, if she watches porn, and other related questions. A.B. never
talked to Appellant about relationship problems that she was having at the time. N.T. 10/09/14,
p. 161-62. Despite only being scheduled for a forty (40) minute appointment, A.B.'s visit lasted
for between two (2) and two-and-a-half (2 1/2) hours, most of which was spent discussing sex or
sexual things. N.T. 10/09/14, pp. 163-64.
Based upon the above evidence, the jury returned a guilty verdict on the charges of
Unlawful Contact with a Minor, Corruption of Minors, seven (7) counts oflndecent Assault by
Forcible Compulsion, and seven (7) counts of Indecent Assault without Consent. The jury found
14
Appellant not guilty of one (1) count each of Indecent Assault by Forcible Compulsion and
Indecent Assault without Consent.
STATEMENT OF MATTERS COMPLAINED OF ON APPEAL
On April 10, 2015, this Court issued al 925(b) Order directing Appellant to file a
Concise Statement of Matters Complained of on Appeal within twenty-one days. Appellant filed
such a Statement on April 30, 2015, which raised the following issues, verbatim:
1. The Commonwealth presented evidence that was not sufficient to prove beyond a
reasonable doubt that the Defendant was guilty of these multiple charges of Indecent Assault
with respect to the proof of the element of his intent to gain sexual gratification. This deficiency
undermines his convictions for violating 18 Pa.C.S. §3126(a)(l) and (a)(2) as well as §6301 and
§6318.
2. The Commonwealth presented evidence that was not sufficient to prove beyond a
reasonable doubt that the Defendant was guilty of these multiple charges of indecent Assault
with respect to the proof of the element that the Defendant acted with force or that he acted
without the consent of the victims. This deficiency undermines his convictions for violating 18
Pa.C.S. §3126(a)(l) and (a)(2) as well as §6301 and §6318.
(a) In support of points l and 2, the Appellant attaches hereto a true and correct copy
of his Motion for Extraordinary Relief/Judgment of Acquittal for All Charges filed in this Court
on January 12, 2015.5
3. The sentenced (sic) imposed by the trial court was excessive, unreasonable and outside
the sentencing guidelines, as set forth in his post sentence motion for reconsideration of sentence.
In support of this point, the Appellant attaches a true and correct copy of his Motion for
6
Reconsideration filed in this Court on February 13, 2015.
ANALYSIS
I. Sufficiency of the Evidence
Appellant contends that the evidence presented at trial was not sufficient to sustain the
jury's verdict. We demonstrate herein that the Commonwealth presented sufficient evidence to
5
Appellant filed a Motion for Extraordinary Relief/Judgment of Acquittal for All Charges with this Court on
January 14, 2015, and the Motion was denied at Appellant's Sentencing Hearing on February 9, 2015.
6 Appellant filed a Motion for Reconsideration of Sentence with this Coun on February 12, 2015, and the Motion
was denied by Order dated March 20, 2015.
15
the jury to prove beyond a reasonable doubt that Appellant committed the crimes of which he
was convicted.
The Pennsylvania Supreme Court has articulated that the well-settled standard of review
in judging the sufficiency of the evidence is whether, when viewing the evidence in a light most
favorable to the Commonwealth as the verdict winner and drawing the proper inferences
favorable to the Commonwealth, the trier of fact could reasonably have found that all of the
elements of the crime were established beyond a reasonable doubt. Commonwealth v. Hagan,
654 A.2d 541, 543 (Pa 1995); Commonwealth v. Heberling, 678 A.2d 794, 795 (Pa Super.
1996). The Superior Court has elaborated:
In applying [the above] test, we may not weigh the evidence and substitute our
judgment for that of the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not preclude every
possibility of innocence. Any doubts regarding a defendant's guilt may be
resolved by the fact-finder unless the evidence is so weak and inconclusive that as
a matter of law no probability of fact may be drawn from the combined
circumstances.
The Commonwealth may sustain its burden of proving every element of the crime
beyond a reasonable doubt by means of wholly circumstantial evidence.
Moreover, in applying the above test, the entire record must be evaluated and all
evidence actually received must be considered. Finally, the trier of fact while
passing upon the credibility of witnesses and the weight of the evidence produced,
is free to believe all, part or none of the evidence.
Commonwealth v. Ventrini, 734 A.2d 404, 406-07 (Pa Super. 1999) (citations omitted).
"Furthermore, it is well-established that even the uncorroborated testimony of the complaining
witness is sufficient to convict a defendant of sexual offenses." Commonwealth v. Bishop, 742
A.2d 178, 189 (Pa. Super. 1999).
Clearly, in finding Appellant guilty of Unlawful Contact with a Minor, Corruption of
Minors, seven (7) counts of Indecent Assault by Forcible Compulsion, and seven (7) counts of
Indecent Assault without Consent, the jury believed the testimony of the Commonwealth's
16
witnesses and accepted the Commonwealth's evidence to the extent it established beyond a
reasonable doubt the elements of these offenses. Based on the foregoing facts and in viewing the
facts most favorable to the Commonwealth as verdict winner, it is apparent that the
Commonwealth presented sufficient evidence to the jury to prove beyond a reasonable doubt that
Appellant committed the offenses.
A. Indecent Assault Without Complainant's Consent
A person is guilty of Indecent Assault Without Complainant's Consent if he "has indecent
contact with the complainant, causes the complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with seminal fluid, urine or feces for
the purpose of arousing sexual desire in the person or .the complainant," and he does so "without
the complainant's consent." 18 PaC.S. § 3126(aX1). Indecent contact is ''[a]ny touching of the
sexual or other intimate parts of the person for the purpose of arousing or gratifying sexual
desire, in any person." 18 Pa.C.S. § 3101. In order to find that a person initiates contact for the
purpose of gratifying sexual desire, direct evidence is unnecessary, and such a purpose may be
inferred based on the evidence presented. See G.V. v. Dep't of Pub. Welfare, 52 A.3d 434, 439
(Pa. Commw. Ct 2012) rev'd on other grounds. 91 A.3d 667 (Pa 2014). Moreover, the phrase
"other intimate parts" is not limited solely to genitalia. Commonwealth v. Capo, 727 A.2d 1126,
1127 (Pa Super. 1999).7
The evidence in the light most favorable to the Commonwealth was sufficient to support
the jury's finding that indecent contact occurred between Appellant and C.R. The jury heard the
1
"The language of the statutory section defining indecent contact includes both "sexual" and "other intimate parts"
as possible erogenous zones for purposes of prosecution. Therefore, the phrase "other intimate parts" cannot refer
solely to genitalia, as such a construction ignores the distinction between "sexual" and "other intimate parts,"
making the latter term redundant." Capo, 727 A.2d at 1127.
17
testimony of C.R. in which she detailed Appellant touching her breasts as he claimed to monitor
her heart rate on three (3) separate occasions. During C.R.'s second appointment with Appellant,
Appellant placed his stethoscope under C.R.'s shirt and slightly beneath her bra, resting it upon
her breast. N.T. 10/07/14, pp. 125-27. At her third appointment, Appellant placed his hand and
his stethoscope beneath C.R.'s shirt and bra, with C.R. being able to feel Appellant's fingertips
against both her breast and nipple. N.T. 10/07/14, pp. 129-32. During C.R.'s next visit, Appellant
touched her breast and nipple in the same manner as before, except he did so in a slower, more
deliberate manner. Appellant also made C.R. lie down on a couch in the office and felt her
stomach overtop of her clothing, giving no medical reason for doing so. N.T. 10/07/14, pp. 132-
36. Based on the above evidence and the fact that Appellant touched C.R. in a manner that his
own expert deemed was unnecessary to monitor a patient's heart rate, the jury could properly
infer that Appellant contacted C.R. for the purpose of his own sexual gratification. N.T.
10/09/14, pp. 44-48. The foregoing evidence was sufficient to find that Appellant indecently
contacted C.R.
There was likewise sufficient evidence to establish that C.R. did not consent to such
contact C.R. testified that she felt like what Appellant was doing was wrong, and she was not
comfortable with his behavior. N.T. 10/07/14, pp. 131-32. Moreover, C.R. informed her parents
of Appellant's actions and had her mother accompany her while in his office for her final
appointment. N.T. 10/07/14, pp. 136-37. C.R. only continued to return to Appellant's office
because she needed help with her medication. N.T. 10/07/14, p. 132. Taken in light most
favorable to the Commonwealth, this evidence was sufficient for the jury to find that C.R. did
not consent to the indecent contact initiated by Appellant.
18
The evidence presented was equally sufficient for the jury to find that indecent contact
occurred between Appellant and J.M. J.M. testified that at a January 2014 appointment,
Appellant touched her breasts as he attempted to measure her heart rate. Appellant reached his
hand and stethoscope down J.M.'s camisole and underneath her bra, such that his hand touched
both of her breasts as well as in between her breasts. N.T. 10/07/14, pp. 209-11. J.M. confirmed
that after Appellant touched her, he attempted to measure her heart rate again during that same
appointment. Appellant then touched J.M.'s breasts in the same manner as he did moments prior.
N.T. 10/07/14, pp. 212-13. Based on the above evidence and the seemingly unnecessary and
repetitive nature of Appellant's contact with J.M., the jury could properly infer that Appellant
contacted J.M. for the purpose of his own sexual gratification. The foregoing evidence was
sufficient to find that Appellant indecently contacted J.M.
There was sufficient evidence for the jury to further find that J.M. did not consent to this
indecent contact. J.M. testified that she was confused and not comfortable with Appellant
touching her breasts. N.T. I 0/07/14, p. 213-14. After the appointment in which Appellant
indecently contacted her, J.M. intentionally wore a baggier t-shirt that would give Appellant
ample room to take her blood pressure using her arm instead of going down the top of her shirt.
J.M. further testified that she only returned to Appellant's office because she needed her
medication and did not have enough time to procure an appointment with another psychiatrist.
N.T. 10/07/14, pp. 214-15. Taken in light most favorable to the Commonwealth, this evidence
was sufficient for the jury to find that J.M. did not consent to the indecent contact initiated by
Appellant.
The record further indicates that indecent contact occurred between Appellant and B.K.
B.K. testified that during several appointments with Appellant, Appellant would attempt to
19
.•
monitor her heart rate by reaching his hand and stethoscope underneath her shirt and bra.
Appellant first did so at B.K.'s third appointment, where B.K. could feel Appellant touching her
breasts and nipples, and at times, she could feel him cup her breasts in his hand. During this visit,
B.K. also testified that Appellant insisted on examining her stomach by reaching his hand down
beneath her underwear line. N.T. l 0/08/14, pp. 18-20.
B.K. also told the jury that at her next two (2) appointments, Appellant continued to feel
her breasts as he did previously. The next time he touched B.K., B.K. recalls him feeling her
nipple ring with his fingers and commenting about it to her. N.T. 10/08114, pp. 23-24. During her
final appointment, not only did Appellant feel her breasts while claiming to monitor her heart
rate, but he made her lie down on a couch while he touched her. Specifically, B.K. testified that
Appellant made her lie on the couch and uncross her legs as he crouched next to her, using one
arm to rub between her thighs while the other grabbed her breasts underneath her shirt. While
touching her, Appellant continually asked B.K. what else he could "do to make [her] relax." N.T.
10/08/14, pp. 26-30. Based on the Appellant's specific actions, his sexually suggestive
comments, and the fact that Appellant touched B.K. in a manner that his own expert deemed was
unnecessary to monitor a patient's heart rate, the jury could properly infer that Appellant
contacted B.K. for the purpose of his own sexual gratification. N.T. 10/09/14, pp. 44-48. The
foregoing evidence was sufficient to find that Appellant indecently contacted B.K.
The evidence was sufficient for the jury to find that B.K. did not consent to this indecent
contact. B.K. described Appellant's touching her breasts as "inappropriate.'' N.T. 10/08/14, pp.
19-20. B.K. further recalled that Appellant's behavior left her feeling very uncomfortable and
scared. N.T. I 0/08/14, pp. 28-30. B.K. only returned to Appellant's office after the inappropriate
contact because she needed her prescriptions re-filled, yet before she arrived at his office, she
20
first wrapped a medical bandage around her breasts in the hope of preventing him from
indecently contacting her further. N.T. 10/08/14, pp. 39-40. Taken in light most favorable to the
Commonwealth, this evidence was sufficient for the jury to find that B.K. did not consent to the
indecent contact initiated by Appellant.
S.W.'s testimony likewise supports the finding that indecent contact occurred between her
and Appellant. S.W. testified that while treating with Appellant, he touched her breasts
approximately ten (10) separate times. Beginning with her May 2013 appointment, Appellant
touched S. W.'s left breast and nipple beneath her bra while claiming to monitor her heart rate.
Appellant continued to touch S.W.'s breasts underneath her shirt and bra during her appointments
until January 2014. Appellant would only touch the left breast at some appointments, while he
would touch both during other visits. N.T. 10/08/14, pp. 92, 97-101, 106-10. During an
appointment on January 8, 2014, Appellant insisted on explaining his lack of a sex life to S.W.,
immediately after which he further offered that the two of them could "help each other out." N.T.
10/08/14, p. 11 L During an unscheduled visit approximately one week later, while alone in his
office with S. W., Appellant grabbed her head, pulled her into face, and proceeded "to shove his
tongue halfway down [her] throat." N.T. 10/08/14, p. 113. Based on the specific actions that
Appellant took towards S.W., coupled with the sexually charged and suggestive comments that
he made, the jury could properly infer that Appellant contacted S. W. for the purpose of his own
sexual gratification. The foregoing evidence was sufficient to find that Appellant indecently
contacted S.W.
The evidence was sufficient for the jury to further fmd that S. W. did not consent to this
indecent contact with Appellant S. W. testified that Appellant's touching her made her feel
uncomfortable, and she only kept returning to his office so that she could continue to receive her
21
prescription medications. N.T. 10/08/14, p. 93. At one appointment, S.W. grabbed Appellant's
wrist as he began to reach his hand down into her underwear line. At another, S.W. admonished
Appellant after he had attempted to shove his tongue down her throat, saying, "This will be the
last time you ever touch me like this." N.T. 10/08/14, pp. 105-06, 113-14. Taken in light most
favorable to the Commonwealth, this evidence was sufficient for the jury to find that S. W. did
not consent to the indecent contact initiated by Appellant.
The evidence was also sufficient for the jury to find that indecent contact occurred
between Appellant and S.H. S.H. testified that Appellant touched her breasts at two (2) separate
appointments. During her first visit, Appellant sat next to her on the couch and placed his hand
and stethoscope down the left side of her shirt and underneath her bra. S.H. could feel
Appellant's hand touching her breast and nipple. N.T. 10/08/14, pp. 199-200. At her second
appointment, Appellant told S.H. to lie down on his couch and positioned her legs over the side
of the arm. He then proceeded to reach his hand and stethoscope up from the bottom of her shirt
and underneath her bra. Again, S.H. could feel Appellant touching her breast and nipple with his
hand. N.T. 10/08/14, pp. 203-05. Later during that same appointment, Appellant again told S.H.
to lie back down on the couch, and he then proceeded to feel her left breast as he did before. N.T.
10/08/14, pp. 205-06. Based on the above evidence and the fact that Appellant's repeated contact
with S.H.'s nipple was medically unnecessary to monitor a patient's heart rate, the jury could
properly infer that Appellant contacted S.H. for the purpose of his own sexual gratification. N.T.
10/09/14, pp. 44-48. The foregoing evidence was sufficient to find that Appellant indecently
contacted S.H.
The evidence was sufficient for the jury to find that S.H. did not consent to this indecent
contact. S.H. testified that she was uncomfortable with Appellant's behavior. S.H. further
22
recalled that she asked her therapist and several members of her family to accompany her to an
appointment at Appellant's office with the hope that he would not touch her with someone else
present. N. T. l 0/08/14, p. 208. Taken in light most favorable to the Commonwealth, this
evidence was sufficient for the jury to find that S.H. did not consent to the indecent contact
initiated by Appellant.
The evidence is likewise sufficient to support the finding that indecent contact occurred
between Appellant and DJ. D.J. testified that at an appointment with Appellant, Appellant told
her to lie down on a couch, and then pulled down the top of her strapless dress, exposing her
breasts. After briefly seeming to check her heart beat, Appellant began to press on and grasp
D.J.'s breasts. N.T. 10/09/14, pp. 60-64. During her next visit, Appellant again told D.J. to lie
down, whereupon he lifted her shirt up over her breasts and pulled her bra down so her breasts
were exposed. After initially using his stethoscope, Appellant began to fondle D.J.'s left breast as
he had done during the previous visit. Based on the above evidence and the fact that Appellant's
touching and exposing of D.J.'s intimate body parts was seemingly unnecessary to monitor her
heart rate, the jury could properly infer that Appellant contacted DJ. for the purpose of his own
sexual gratification. The foregoing evidence was sufficient to find that Appellant indecently
contacted DJ.
Moreover, the evidence was sufficient to find that D.J. did not consent to this indecent
contact initiated by Appellant. D.J. testified that she was very uncomfortable with Appellant
feeling her breasts and was in shock by his behavior. N.T. 10/09/14, p. 61. DJ. told her mom
directly after one appointment that Appellant had felt her breasts, and that "this isn't right." N.T.
10/09/14, p. 73. Taken in light most favorable to the Commonwealth, this evidence was
23
sufficient for the jury to find that D.J. did not consent to the indecent contact initiated by
Appellant.
Lastly, the evidence viewed in light most favorable to the Commonwealth was sufficient
to find that indecent contact occurred between Appellant and A.A. The jury heard testimony that
Appellant made A.A. lie down, and then reached underneath her shirt with his stethoscope. A.A.
further testified that Appellant touched in between her legs such that she could feel his hand
touching her vagina over top of her leggings. N.T. 10/08/14, pp. 170-73. Based on the above
evidence and the fact that Appellant's touching of A.A.'s breasts and vagina was unnecessary to
monitor her heart rate, the jury could properly infer that Appellant contacted A.A. for the
purpose of his own sexual gratification. The foregoing evidence was sufficient to find that
Appellantindecently contacted A.A.
The evidence was sufficient for the jury to further find that A.A. did not consent to this
indecent contact. A.A. testified that after her appointment where Appellant indecently contacted
her, she immediately sent a text to her mother, saying "Think 1 was almost raped by Dr.
Shlewiet." A.A. spoke with her parents following the appointment and went to the Doylestown
Police Department soon after. N.T. 10/08/14, pp. 175-78. Taken in light most favorable to the
Commonwealth, this evidence was sufficient for the jury to find that A.A. did not consent to the
indecent contact initiated by Appellant.
B. Indecent Assault By Forcible Compulsion
A person is guilty of Indecent Assault By Forcible Compulsion if he "has indecent
contact with the complainant, causes the complainant to have indecent contact with the person or
intentionally causes the complainant to come into contact with seminal fluid, urine or feces for
24
the purpose of arousing sexual desire in the person or the complainant," and he does so "by
forcible compulsion." 18 Pa. C. S. § 3126(a)(2).
Forcible compulsion is "compulsion by use of physical, intellectual, moral, emotional or
psychological force, either express or implied." 18 Pa.C.S. § 3101. Forcible compulsion
"connotes the act of using superior force-physical, moral[,] psychological, or intellectual-to
compel a person to do a thing against that person's volition and/or will." Commonwealth v.
Rhodes, 510 A.2d 1217, 1225 (Pa. 1986). "The degree of force required ... is relative and
depends upon the facts and particular circumstances of the case. It is not necessary that force be
actually applied by the perpetrator to the victim." Commonwealth v. Williams, 439 A.2d 765,
768 (Pa. Super. 1982) (internal citations omitted).
The evidence presented at trial was sufficient to support the jury's finding that Appellant
used forcible compulsion to facilitate indecent contact with each victim. All seven (7) of the
above victims testified that Appellant was their psychiatrist who indecently contacted them in the
context of the doctor-patient relationship. Each victim further testified that the indecent contact
arose from Appellant's insistence on measuring each of their heart rates. Under the rouse of
providing medical treatment, Appellant initiated indecent contact with each victim. Being as
Appellant used the psychological and intellectual advantages inherent in his position as a
licensed medical doctor to compel each victim to permit him to contact them in a manner that
was against their will, the evidence was sufficient to find that Appellant's behavior amounted to
forcible compulsion.
Coupled with this Court's above analysis establishing that Appellant initiated indecent
contact with all seven (7) victims, the evidence presented at trial was sufficient to support the
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jury's verdict that Appellant was guilty of seven (7) counts oflndecent Assault By Forcible
Compulsion.
C. Unlawful Contact with a Minor
A person is guilty of Unlawful Contact With a Minor if "he is intentionally in contact
with a minor ... for the purpose of engaging in an activity prohibited under any of the following,
and either the person initiating the contact or the person being contacted is within this
Commonwealth: ( 1) Any of the offenses enumerated in Chapter 31 (relating to sexual offenses)."
18 Pa.C.S. § 6318. "The elements of this crime consist ofintentionally, either directly or
indirectly, contacting or communicating with a minor for the purpose of engaging in a sexual
offense," specifically Indecent Assault. Commonwealth v. Morgan, 913 A.2d 906, 910 (Pa
Super. 2006). A minor is defined as any individual under the age of 18. 18 Pa. C.S. § 6318(c).
A.A. testified that at the time she treated with Appellant, she was 16-17 years of age.
N.T. 10/08/14, p. 170. A.A. further testified that Appellant made her lie down on a couch as he
reached underneath her shirt with his stethoscope. Appellant then touched in between her legs
such that she could feel his hand touching her vagina over top of her leggings. N.T. 10/08/14, pp.
170-73.
Taken in light most favorable to the Commonwealth, this evidence is sufficient to find
that Appellant engaged in unlawful contact with a minor. The evidence showed that A.A. was a
minor at the time of the offense. The evidence further indicated that Appellant intentionally felt
A.A.'s breasts underneath her shirt and touched her vagina overtop of her leggings. A.A's
testimony was sufficient for the jury to find that such direct contact to A.A.'s sexual and intimate
body parts was done intentionally and for the purpose of engaging in a sexual offense,
specifically Indecent Assault. Lastly, as demonstrated through the above analysis, there was
26
likewise sufficient evidence to find that Appellant committed an Indecent Assault against A.A.
As such, the evidence viewed in light most favorable to the Commonwealth as verdict winner
was sufficient to support the imposition of a guilty verdict on the count of Unlawful Contact with
a Minor.
D. Corruption of Minors
18 Pa.C.S. § 630l(a)(l)(i) provides that a person "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." "Any actions that would offend the
common sense of the community and the sense of decency, propriety, and morality which most
people entertain, are actions that tend to corrupt the morals of a minor." Commonwealth v.
Smith, 863 A.2d 1172, 1177 (Pa. Super. 2004).
Through her testimony, A.A. communicated to the jury that Appellant felt her breasts
beneath her shirt and touched her vagina overtop of her pants. N.T. 10/08/14, pp. 170-73. By
contacting a minor is such a sexual manner, there was sufficient evidence for the jury to find that
Appellant's behavior is the type that "would offend the common sense of the community and the
sense of decency, propriety, and morality which most people entertain." Therefore, viewed in
light most favorable to the Commonwealth, there was sufficient evidence to support Appellant's
guilty verdict on this count.
IL Sentencing
Appellant asserts that the sentence imposed by this Court was excessive. At the outset,
we note that no automatic right of appeal exists for a challenge to the discretionary aspects of
sentencing. Rather, this type of appeal is more appropriately considered a petition for allowance
of appeal. Commonwealth v. Rossetti, 863 A.2d 1185, 1193 (Pa. Super. 2004). Before reaching
27
the merits of a discretionary sentencing issue, a court must ascertain whether an appellant (i)
filed a timely notice of appeal, (ii) properly preserved the issue to be heard on appeal, (iii) filed a
brief free of fatal defects, and (iv) raised a substantial question that the sentence appealed from is
not appropriate under the Sentencing Code. Commonwealth v. Mastromarino, 2 A.3d 581, 588
(Pa Super. 2010).
A court evaluates whether a particular issue raises a substantial question on a case-by-
case basis. Rossetti, 863 A.2d at 1193. "[The court) will grant an appeal only when the appellant
advances a colorable argument that the sentencingjudge's actions were either: (1) inconsistent
with a specific provision of the Sentencing Code; or (2) contrary to the fundamental norms
which underlie the sentencing process." Commonwealth v. Brown, 741 A.2d 726, 735 (Pa
Super. 1999) (en bane).
When reviewing sentencing matters, great weight must be given to the sentencing court
as it is in the best position to view the defendant's character, displays of remorse, defiance or
indifference, and the overall effect and nature of the crime. Commonwealth v. Fries, 523 A.2d
1134 (Pa. Super. 1987), allocator denied, 531 A.2d 427 (Pa. 1987). The well-settled standard of
review for a claim challenging a discretionary aspect of sentencing is as follows:
Sentencing is a matter vested in the sound discretion of the sentencing judge, and
a sentence will not be disturbed on appeal absent a manifest abuse of discretion.
In this context, an abuse of discretion is not shown merely by an error in
judgment. Rather, the appellant must establish, by reference to the record, that the
sentencing court ignored or misapplied the law, exercised its judgment for reasons
of partiality, prejudice, bias, or ill will, or arrived at a manifestly unreasonable
decision.
Commonwealth v. Shugars, 894 A.2d 1270, 1275 (Pa. Super. 2006).
Appellant objects to his aggregate sentence of seven (7) to seventeen ( 17) years
confinement as being excessive and unreasonable. This Court sentenced Appellant to serve two
28
and a half (2 1/2) to five (5) years confinement on Count l, and nine (9) to twenty four (24)
months on each Count 3, Count 7, Count 8, Count 9, Count I 0, and Count 12. Appellant's
sentences are to be served consecutively.8 We will address each element of this sentence below.
A. Sentence Imposed Within the Aggravated Range
Appellant objects to this Court's sentence of not less than two and a half (2 1/2) nor more
than five (5) years confinement on Count 1, Unlawful Contact with a Minor.
When imposing a sentence, the trial court is required to consider the sentence ranges set
forth in the Sentencing Guidelines. Commonwealth v. Yuhasz, 923 A.2d 1111, 1118 (Pa. 2007).
However, the trial court may deviate from the recommended guidelines; they are "merely one
factor among many that the court must consider in imposing a sentence." Yuhasz, 923 A.2d at
118. A court may depart from the guidelines "if necessary, to fashion a sentence which takes into
account the protection of the public, the rehabilitative needs of the defendant, and the gravity of
the particular offense as it relates to the impact on the life of the victim and the community."
Commonwealth v. Eby, 784 A.2d 204, 206 (Pa Super. 2001).
"The sentencing guidelines are merely advisory, and the sentencing court may sentence a
defendant outside of the guidelines so long as it places its reasons for the deviation on the
record." Commonwealth v. Mouzon, 828 A.2d 1126, 1128 (Pa. Super. 2003). When specifically
reviewing a trial court's imposition of a sentence within the aggravated range, the Superior Court
will examine three factors:
First, a sentencing judge may consider any legal factor in deciding whether a
defendant should be sentenced within the aggravated range. Second, in order to be
adequate, the sentencing judge's reasons for sentencing within the aggravated
range must reflect this consideration. Finally, the sentencing judge's decision
regarding the aggravation of a sentence will not be disturbed absent a manifest
abuse of discretion.
8
This Court did not impose any further sentence on Counts 2, 4, 5, 6, 13, 14, 15, 16, 17, and 18.
29
Com. v. Duffy, 491 A.2d 230, 233 (Pa. Super. 1985) (citations omitted).
While this Court went beyond the standard range of the Guidelines in sentencing
Appellant on Count 1, we submit that we have based Appellant's sentence on valid legal reasons
and placed such reasons on the record, as required by Pennsylvania law. In fashioning
Appellant's sentence, this Court considered the Sentencing Guidelines and the mitigating
evidence presented by Appellant, among all other necessary factors. However, this Court was,
and remains to be, troubled by the fact that Appellant used the position of trust afforded him by
his medical license to manipulate and abuse those patients who came to him seeking treatment
and aid. This Court was also troubled by the fact that, even after hearing the testimony and
impact statements of his victims, Appellant still denied responsibility and essentially claimed he
was only helping his patients. This Court gave the following explanation at Appellant's
sentencing hearing:
There's no doubt in my mind that you haven't accepted responsibility for
this. You continue to deny it. Your remorse is for you and your family and not for
these young women that you have manipulated and assaulted. And by your own
words, you just can't bring yourself to tell them what happened and that you're
sorry for -- you rationalize everything.
And so when l look at the nature and background of the defendant, Ihave
to look at the impact he has had upon the victims, and he continues to victimize
them. He continues to look them in the eye and tell them he pretends to care about
them, when we all know the only thing he cares about is getting out of jail. So I've
taken all of those things into account.
I've taken into account the multiple victims in the case, the fact that the
defendant has exploited his position as a treating physician of these young
women. In fact, he used his medical license to take advantage of them. He had yet
another tool of his trade. They went to him for treatment, and they came out of his
office as victims of a diabolical mind.
I think there's even some suggestion ... when I heard the trial testimony
that they tried to get away and they couldn't. They felt like they couldn't get away
but had to go back. They couldn't get their appointments with other physicians in
less time so they felt like they had to go back to him. To me, that's something that
30
justifies an aggravation of the sentencing guidelines, although I'm not sure I feel
that that's necessary on every count. But it certainly is an aggravation of what has
happened in this case. They were desperate and they could only get help from one
person, and that was their doctor. And as he so aptly put it, he was the only person
they could go to.
[The] sentencing guidelines in this case recommend, on Count Number 1,-
three to 12 months in the standard range, and that's because the contact was with a
minor. The sentencing guidelines on the misdemeanors of the first degree
recommend a sentence of probation to nine months in the standard range, and 12
months in the aggravated range. So I've considered sentencing guidelines as well.
And the impact it's had upon the victims is immeasurable. As they said,
their recovery has been delayed, if not backtracked. They have been victimized
again; as I said, people who are fragile to begin with who need your help. And so
the impact upon the community is such that Ihave to send, I think, a message to
others like you, Doctor, that this type of conduct is not acceptable.
N.T. 02/09/15, pp. 54-57.
With respect to Appellant's sentence on Count I in particular, this Court further detailed:
... I might add that the sentence in this case is an aggravated sentence because I
believe the victim's age is a factor. Idon't believe the guidelines ever took into
account a doctor-patient relationship, nor do they take into account the multiple
victims in the case.
N.T. 02/09/15, pp. 59-60.
This Court considered several factors in our imposition of a sentence within the
aggravated range of the sentencing guidelines on Count 1, and as evidenced during Appellant's
Sentencing Hearing, this Court documented each factor on the record. As it is apparent from the
record that this Court considered several legal factors, in addition to both the Guidelines and the
mitigating evidence supplied by Appellant, we submit the sentence imposed was appropriate.
B. Sentences Imposed Within the Standard Range
No substantial question exists as to the sentences imposed upon Appellant within the
standard range of the sentencing guidelines. Therefore, Appellant's sentences on Counts 3, 7, 8,
9, I 0, and 12 are not appealable issues. The standard range for each count of Indecent Assault is
31
,.
probation to nine (9) months incarceration. This Court imposed a sentence of nine (9) to twenty
four (24) months incarceration on each of six (6) counts. Even assuming Appellant's sentence is
an appealable issue, this Court considered several legal factors when imposing sentence and
placed those factors on the record.9 We submit that the sentence imposed was appropriate and
should be affirmed.
C. Consecutive Sentences
The general rule in Pennsylvania is that a sentencing court has discretion in determining
whether to run a sentence concurrently with or consecutively to other sentences being imposed.
42 Pa.C.S. 9721; Commonwealth v. Hoag, 665 A.2d 1212, 1214 (Pa. Super. 1995) (citations
omitted). A challenge to a trial court's imposition of "consecutive rather than concurrent
sentences, however, does not present a substantial question regarding the discretionary aspects of
sentence" that is required to invoke the jurisdiction of the Superior Court. Id.
Appellant complains that his total sentence was excessive. It is important to note that
each of these Counts of which Appellant was convicted arises out of her crimes against seven
separate victims, each of whom specifically sought out Appellant for help, only to become
victims. The imposition of consecutive sentences properly addresses the crimes Appellant
committed against each victim. This Court's imposition of consecutive sentences was a valid
exercise of our discretion, and our reasons for imposing Appellant's sentence are well-
10
documented on the record. As such, we submit that this Court did not abuse our discretion in
imposing consecutive sentences for Appellant's crimes against his patients.
9
This Court's findings, in pertinent part, are reproduced above.
'0 We again reference the findings this Court made at Appellant's Sentencing Hearing, produced above.
32
I
CONCLUSION
for the foregoing reasons, this Court perceives that the issues of which Appellant has
complained in this appeal are without merit, and that this Court's February 9, 2015 Judgment of
Sentence and March 20, 2015 Denial of Motion to Reconsider Sentence were supported by both
the law and the record in this case. We respectfully request the Superior Court affirm this Court's
decision.
BY THE COURT:
33
Copies to:
Lindsay Vaughn, Esquire
District Attorney's Office
100 North Main Street
Doylestown, PA 1890 l
Burton Rose, Esquire
1731 Spring Garden Street
Philadelphia, PA 1913 0
34
Com. v. Shlewiet, B.
Combined Opinion