Com. v. Blevins, M.

J-A27014-19

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
MARK ALLEN BLEVINS :
:
Appellant : No. 1060 EDA 2019

Appeal from the Judgment of Sentence Entered January 31, 2019
In the Court of Common Pleas of Wayne County Criminal Division at
No(s): CP-64-CR-0000079-2018

BEFORE: BOWES, J., SHOGAN, J., and STRASSBURGER, J.*

MEMORANDUM BY BOWES, J.: Filed: March 20, 2020

Mark Allen Blevins appeals from the January 31, 2019 judgment of

sentence imposed following his convictions for aggravated indecent assault of

a child, criminal attempt—aggravated indecent assault, unlawful restraint of a

minor, corruption of minors, indecent assault—complainant less than thirteen,

and indecent exposure. We affirm.

Appellant’s convictions relate to a series of sexual assaults he committed

upon a minor child (the “victim”) over an indeterminate period of time

between January 2016 and November 2017. Appellant was a close friend and

neighbor of the victim’s family, and the victim spent significant amounts of

time in Appellant’s home during this time period. After the victim’s family

moved away from the immediate area, the victim disclosed that Appellant had

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* Retired Senior Judge assigned to the Superior Court.
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utilized these family visits as an opportunity to sexually assault her on multiple

occasions. Specifically, the victim alleged that Appellant (1) touched and

digitally penetrated her vagina; (2) exposed his penis to her; and (3)

unsuccessfully compelled her to touch his penis.

Appellant was convicted at a jury trial, and was sentenced to an

aggregate period of incarceration of 159 months to 360 months at all counts.

On January 31, 2019, after evaluation by a member of the Sexual Offenders

Assessment Board (“SOAB”) and a hearing, the trial court adjudged Appellant

to be a sexually violent predator (“SVP”). Appellant filed post-trial motions

preserving the claims raised in this appeal, which were denied by the trial

court. Appellant filed a timely notice of appeal. Thereafter, the trial court

directed Appellant to file a concise statement of errors pursuant to Pa.R.A.P.

1925(b), Appellant timely complied, and the trial court filed a Rule 1925(a)

opinion.

Appellant has raised the following claims for our disposition:

1. Whether the Commonwealth sustained its burden of proof
beyond a reasonable doubt relative to the charges for which
[Appellant] was convicted?

2. Whether the sentence imposed by the trial court was excessive
and utterly harsh and oppressive?

3. Whether the Commonwealth sustained its burden of proof by
clear and convincing evidence that [Appellant] is a sexually violent
predator?

Appellant’s brief at 8.

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As styled, Appellant purports to challenge the sufficiency of all of the

elements of his underlying convictions. However, the arguments as presented

in his brief are confined to allegations that the Commonwealth failed to adduce

sufficient evidence of: (1) the date and time of the offenses, generally, see

Appellant’s brief at 19-20; (2) “penetration” as to aggravated indecent assault

of a child, id. at 17, 20; (3) “restraint” with respect to unlawful restraint of a

minor, id. at 18; (4) likelihood of corruption as to corruption of a minor, id.

at 18-19; and (5) likelihood to offend with respect to indecent exposure. Id.

at 19. We will address these claims seriatim.1

Our Supreme Court has discussed our standard and scope of review in

this context as follows: “[W]ith respect to our sufficiency review, our standard

of review is de novo, however, our scope of review is limited to considering

the evidence of record, and all reasonable inferences arising therefrom,

viewed in the light most favorable to the Commonwealth as the verdict

winner.” Commonwealth v. Rushing, 99 A.3d 416, 420-21 (Pa. 2014). We

also note at the outset that “the Commonwealth may sustain its burden of

proving every element of the crime beyond a reasonable doubt relying wholly

on circumstantial evidence,” and that “[b]oth direct and circumstantial

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1 To the extent that Appellant seeks to advance other sufficiency arguments,
those claims are waived pursuant to Pa.R.A.P. 2119(a). See Commonwealth
v. Kearney, 92 A.3d 51, 66-67 (Pa.Super. 2014) (holding issue waived under
Rule 2119(a) where “Appellant fails to develop an argument in support of his
claim, or to provide pertinent citation to authority”).

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evidence must be considered equally when assessing the sufficiency of the

evidence.” Commonwealth v. Davalos, 779 A.2d 1190, 1193 (Pa.Super.

2001). Finally, “any doubt about the defendant’s guilt is to be resolved by the

fact[-]finder unless the evidence is so weak and inconclusive that, as a matter

of law, no probability of fact can be drawn from the combined circumstances.”

Commonwealth v. Rodriguez, 141 A.3d 523, 525 (Pa.Super. 2016).

Much of the evidence presented by the Commonwealth in this case

revolved around the averments of the victim, including an in-camera interview

with Tina Green of the Northeastern Pennsylvania Children’s Advocacy Center

(“CAC”) and her direct testimony at trial. Direct testimony was also adduced

from the victim’s mother, Appellant, and Appellant’s wife. The Commonwealth

also presented expert testimony from Ann Cook, a clinical social worker who

was not personally involved in the case, and Dr. Marla Farrell, the pediatrician

who examined the victim as part of her assessment at the CAC.

Appellant’s first sufficiency claim alleges that the Commonwealth did not

offer enough evidence of the chronological specifics of the at-issue sexual

assaults. See Appellant’s brief at 19 (“[T]here is little, if any, definition of

time, date, place, month or year relative to any of the charges and the proof

necessary for conviction.”). On this point, Appellant cites precedent wherein

our Supreme Court has held that a failure of the Commonwealth to situate the

date of an alleged crime with “reasonable certainty” can create due process

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concerns by hamstringing a defendant’s ability to prepare a defense. See

Commonwealth v. Devlin, 333 A.2d 508, 513-16 (Pa. 1975).

In applying Devlin, this Court has explicitly stated that “for purposes of

a Devlin claim, the Commonwealth must be allowed a reasonable measure of

flexibility when faced with the special difficulties involved in ascertaining the

date of an assault upon a young child.” Commonwealth v. Groff, 548 A.2d

1237, 1242 (Pa.Super. 1988). Furthermore, this Court provides the

Commonwealth even greater license in this respect when it is dealing with

ongoing offenses that occur over a long period of time. Id. (“[T]he

Commonwealth must be afforded broad latitude when attempting to fix the

date of offenses which involve a continuous course of criminal conduct.”). As

Appellant’s own brief acknowledges, a child victimized in this fashion cannot

be expected to remember each and every date upon which she was victimized,

particularly where the events are numerous and occur over an extended

period of time. See Commonwealth v. Niemetz, 422 A.3d 1369, 1373

(Pa.Super. 1980) (“[W]e do not believe that it would serve the ends of justice

to permit a person to . . . sexually abuse [a] child with impunity simply

because the child has failed to record in a daily diary the unfortunate details

of her childhood.”); see also Appellant’s brief at 17.

Viewing the temporal evidence and allegations presented by the

Commonwealth through this deferential lens, Appellant’s claim is meritless.

The Commonwealth consistently provided Appellant with a discrete time frame

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in which the sexual assaults were alleged to have occurred, namely, between

January 2016 and November 2017. See Criminal Complaint, 1/3/18, at

unnumbered 2-3; see also Information, 4/3/18, at unnumbered 1-3. This

range corresponds with the victim’s testimony, which indicates that she was

subjected to repeated assaults by Appellant during this same time period. See

N.T. Trial, 11/6/18, at 60-69; see also N.T. Interview, 12/4/17, at 15-16, 40-

41. The Commonwealth also offered expert testimony from Ms. Cook,

explaining that children as young as the victim have a diminished

understanding of time, meaning that disclosures such as these are often not

precise. See N.T. Trial, 11/6/18, at 102-03. Furthermore, the witnesses

presented by both the Commonwealth and Appellant focused their testimony

on the same time period described by the victim. Id. at 162-63; see also

N.T. Trial, 11/7/18, at 20-35, 41-44, 58-68, 83.

Critically, Appellant has failed to demonstrate how the alleged lack of

specificity in the Commonwealth’s allegations prejudiced his ability to defend

himself. In light of the particular circumstances of this case, the evidence

discussed above was sufficient to provide a reasonably certain time frame to

permit Appellant to prepare a defense. Accord Groff, supra at 1242;

Niemetz, supra at 1373. No relief is due on this claim.

Appellant’s second sufficiency argument concerns his conviction for

aggravated indecent assault of a child. See 18 Pa.C.S. § 3125(b). A person

violates this statute when he engages in “penetration, however slight, of the

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genitals or anus of a complainant with a part of the person’s body for any

purpose other than good faith medical, hygienic or law enforcement

procedures” where the complainant is younger than 13 years of age. See 18

Pa.C.S. § 3125(b). Specifically, Appellant avers that the Commonwealth failed

to demonstrate that the victim was “penetrated” as defined by the statute.

The definition of indecent aggravated assault of a child requires that

“penetration, however slight” occur. 18 Pa.C.S. § 3125(b). This Court has

held that the “uncorroborated testimony of a prosecution witness” is sufficient

to establish that penetration occurred. Commonwealth v. Ziegler, 550 A.2d

567, 569 (Pa.Super. 1988), abrogated on separate grounds Commonwealth

v. Goggins, 748 A.2d 721, (Pa.Super. 2000 “[L]ike any element of an offense,

penetration can be proven with circumstantial evidence.” Id.

The Commonwealth initially addressed this element of aggravated

indecent assault at trial by presenting expert testimony from Dr. Farrell, who

testified that children as young as the victim have an imperfect understanding

of the mechanics of sexual contact. See N.T. Trial, 11/6/18, at 148-49 (“It is

a very difficult concept for a little girl . . . to understand, because children of

[the victim’s] age are sexually naïve. They have no sexual experience. So,

the concept of penetration is something they . . . have no basis of

understanding for.”). Dr. Farrell testified that children of the victim’s age will

often alternatively describe penetration as pain, or feeling like they need to

“use the bathroom.” Id. at 149-50. Farrell also testified regarding his

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physical examination of the victim. Id. at 145-50, 155. During the exam, Dr.

Farrell stated that the victim’s responses to his questions indicated Appellant

had penetrated her labia during at least one of the assaults. Id. at 146.

Thereafter, the victim testified both in-camera and at trial that Appellant

used his fingers to “hurt” her vagina, and that he was trying to “get in.” See

N.T. Interview, 12/4/17, at 35-36; see also N.T. Trial, 11/6/18, at 59. She

also testified that the assaults made her feel like she “had to go to the

bathroom.”2 See N.T. Interview, 12/4/17, at 29-30. Although the victim

never directly testified that Appellant had engaged in “penetration,” her

testimony was consistent with Dr. Farrell’s expert opinions regarding the

inability of children as young as the victim to grasp that concept.

Furthermore, Dr. Farrell testified that the victim’s responses during the

physical examination were indicative of a slight penetration of the labia having

occurred. “It is clearly established that there is no requirement that

penetration reach the vagina, or farther reaches of the female genitalia.”

Commonwealth v. Trimble, 615 A.2d 48, 50 (Pa.Super. 1992). Rather, our

case law indicates that “entrance in the labia is sufficient” to establish

“penetration, however slight.” Commonwealth v. Ortiz, 457 A.2d 559, 560-

61 (Pa.Super. 1983).

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2 The victim’s mother similarly testified that the victim told her that Appellant
would “press really hard” on her genitals during the assaults, which made the
victim feel like she “had to pee.” See N.T. Trial, 11/6/18, at 169, 204.

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Giving the Commonwealth every benefit of doubt, we conclude that this

evidence was sufficient to permit a “reasonable inference” that Appellant

engaged in “slight” penetration of the victim’s genitals within the meaning of

§ 3125(b). Thus, Appellant’s second sufficiency claim fails.

Appellant’s third argument sounding in sufficiency asserts that the

Commonwealth failed to produce sufficient evidence that Appellant

“restrained” the victim under the meaning of 18 Pa.C.S. § 2902 (providing

that a person violates this statute by restraining a minor who is not their child

“in circumstances exposing him to risk of serious bodily injury”). While

Appellant claims that the Commonwealth did not provide any evidence of

restraint, this argument is belied by the victim’s testimony during her in-

camera interview that Appellant would hold her down with one hand, while

assaulting her with his other hand. See N.T. Interview, 12/4/17, at 20, 23

(the victim testifying that Appellant held her down and would not let her

leave). As such, this claim is without merit.

Appellant has also challenged his conviction for corruption of a minor,

arguing that the Commonwealth did not sufficiently demonstrate that his

actions corrupted the victim’s morals. See 18 Pa.C.S. § 6301(a)(1)(ii)

(providing that anyone 18 years or older violates this statute when he engages

in “any course of conduct” that “corrupts or tends to corrupt the morals of any

minor less than 18 years of age”). In this context, “[a]ctions that tend to

corrupt the morals of a minor are those that ‘would offend the common sense

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of the community and the sense of decency, propriety and morality which

most people entertain.’” Commonwealth v. Snyder, 870 A.2d 336, 351

(Pa.Super. 2005) (quoting Commonwealth v. DeWalt, 752 A.2d 915, 918

(Pa.Super. 2000)).

This Court has repeatedly held that the Commonwealth presents

sufficient evidence of corruption of minors where there is evidence that the

defendant sexually assaults the minor. See Commonwealth v. Leatherby,

116 A.3d 73, 82 (Pa.Super. 2015) (finding sufficient evidence of corruption of

minor where the Commonwealth presented evidence “demonstrating

extensive physical, sexual, and emotional abuse”); see also Commonwealth

v. Miller, 657 A.2d 946, 949 (Pa.Super. 1995) (finding sufficient evidence of

corruption of minor where “the Commonwealth presented evidence that

appellant improperly fondled victim on a regular basis for approximately one

year”). Instantly, the Commonwealth adduced evidence that Appellant

sexually assaulted the victim numerous times over a nearly two-year period.

This evidence was sufficient to establish a likelihood of corruption under

§ 6301, and Appellant’s sufficiency challenge is meritless.

Appellant’s final sufficiency challenge asserts that the Commonwealth

did not adequately establish that exposing his penis to the victim was “likely

to offend, affront, or alarm” pursuant to 18 Pa.C.S. § 3127(a) (“Indecent

exposure.”). Instantly, the victim testified that Appellant showed her his

exposed penis and implored her to touch it on at least one occasion. See N.T.

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Interview, 12/4/17, at 30-31; see also N.T. Trial, 11/6/18, at 62-63. This

Court has held that such evidence is sufficient to support a conviction for

indecent exposure. See Commonwealth v. Bishop, 742 A.2d 178, 190

(Pa.Super. 1999) (holding evidence that the defendant exposed his penis and

encouraged minor child to touch it supported conviction for indecent

exposure). As such, Appellant’s claim must fail. Id.

In his next issue, Appellant asserts that the sentence imposed by the

trial court was “utterly harsh and oppressive.” Appellant’s brief at 22. In

particular, Appellant claims that the trial court’s use of consecutive sentence

terms for multiple convictions has resulted in an excessive sentence. Id. This

issue implicates the discretionary aspects of Appellant’s sentence. See

Commonwealth v. Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010).

It is well-settled that, with regard to the discretionary aspects of

sentencing, there is no automatic right to appeal. Id. Rather, a petitioner

must invoke the jurisdiction of this Court by: (1) filing a timely notice of

appeal; (2) preserving the issue at sentencing or in a post-sentence motion;

(3) including a statement of reasons in their brief pursuant to Pa.R.A.P.

2119(f); and (4) presenting a “substantial question” that the sentence

appealed from is inappropriate under the Pennsylvania Sentencing Code. Id.

Instantly, Appellant submitted a timely notice of appeal and properly

preserved his sentencing challenge before the trial court. Appellant has not

attached a Rule 2119(f) statement to his brief, but the Commonwealth has

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not objected to this oversight. Therefore, we may continue with our

assessment of the merits of Appellant’s claim. See Commonwealth v.

Wilson, 829 A.2d 1194, 1198 n.4 (Pa.Super. 2003) (citing Commonwealth

v. Medley, 725 A.2d 1225, 1228 n.8 (Pa.Super. 2003)).

Even overlooking Appellant’s failure to include a Rule 2119(f) statement

in his brief, we conclude that Appellant has not raised a substantial question.

As a general matter, “[t]he imposition of consecutive as opposed to concurrent

sentences is solely within the discretion of the trial court, and does not in and

of itself even rise to the level of a substantial question.” Commonwealth v.

Johnson, 873 A.2d 704, 709 (Pa.Super. 2005). Instantly, Appellant’s

arguments allege that the imposition of consecutive sentences has rendered

Appellant’s sentence excessive, without any other supporting factual or legal

argument. See Appellant’s brief at 22-24. Thus, this claim fails. See

Commonwealth v. Dodge, 77 A.3d 1263, 1270 (Pa.Super. 2013) (“[A] bald

claim of excessiveness due to the consecutive nature of a sentence will not

raise a substantial question.”).

Appellant’s final claim challenges the trial court’s determination that

Appellant is an SVP. Appellant’s discussion of this issue is truncated, spanning

a mere half-page and with only a single citation to legal authorities. See

Appellant’s brief at 25. In relevant part, Appellant argues that: (1) Appellant

should not have been determined to be an SVP pursuant to the factors listed

at 42 Pa.C.S. § 9799.58(b)(1); and (2) the trial court’s determination violated

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Commonwealth v. Butler, 173 A.3d 1212 (Pa.Super. 2018), which found

that the SVP determination process utilized under Pennsylvania’s Sexual

Offender Registration and Notification Act (“SORNA I”) was unconstitutional.

See 42 Pa.C.S. § 9799.24.

Appellant’s first allegation concerns the fourteen factors listed at

§ 9799.58(b)(1), which are considered as part of the SVP determination

process that our General Assembly has adopted to replace that promulgated

under SORNA I. The SOAB member that assessed him concluded that seven

of the fourteen factors augured in favor of determining that Appellant was an

SVP. See N.T. Sentencing, 1/31/19, at 17-21. Appellant’s argument

mistakenly asserts that there were more “negative” findings than “positive”

findings. This is simply not accurate based on our review of the transcript.3

This factual discrepancy, alone, is fatal to this claim.

Even assuming, arguendo, that Appellant’s assessment had concluded

that more findings were “negative” than “positive,” this claim would still be

without merit. Appellant’s argument mistakenly characterizes these fourteen

factors as the only relevant point of inquiry in SVP determinations. However,

the statute explicitly provides that an SVP assessment “shall include, but not

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3 We note that the SOAB member incorrectly conceded during his testimony
that Appellant’s assessment contained more “negative” than “positive”
findings of SVP status. See N.T. Sentencing, 1/31/19, at 21-22. However,
reviewing the SOAB member’s testimony in totality, she stated that the factors
at 42 Pa.C.S. §§ 9799.58(b)(1)(iii)-(v), (vii), (3)(i), (iii)-(iv), supported
finding that Appellant constitutes an SVP. Id. at 18-22.

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be limited to” the aforementioned factors. 42 Pa.C.S. § 9799.58(b)

(emphasis added). Furthermore, 42 Pa.C.S. § 9799.58(b)(4) also permits an

assessor to include other, unspecified “[f]actors that are supported in a sexual

offender assessment field as criteria reasonably related to the risk of

reoffense." Appellant’s argument is predicated upon a fundamental

misunderstanding of SVP determinations. See N.T. Sentencing, 1/31/19, at

21 (SOAB member testifying that: “We don’t add up the factors for this.

[W]hat we look at with each of the factors is how it does relate to that mental

abnormality or personality disorder. So, it’s not a totality of the factors.”).

No relief is due on this claim.

In his final claim, Appellant has challenged his SVP determination

pursuant to this Court’s holding in Butler. Appellant’s entire argument on

this point spans just two sentences and immediately follows Appellant’s

discussion concerning the § 9799.58(b) factors: “Added to that contention is

this Court’s determination in [Butler]. The SVP determination should not be

allowed to stand.” Appellant’s brief at 25. This argument is woefully deficient,

and does not discuss any of the relevant legal issues attendant to such a

complex, constitutional claim for relief.

This Court’s holding in Butler was made with respect to the SVP

determination process included as part of SORNA I, and relied explicitly upon

the Supreme Court’s holding in Commonwealth v. Muniz, 164 A.3d 1189,

1193 (Pa. 2017), wherein SORNA I was found to be “punitive” pursuant to the

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seven-factor test set forth by the U.S. Supreme Court in Kennedy v.

Mendoza-Martinez, 372 U.S. 144 (1963). Applying Muniz in conjunction

with Alleyne v. U.S., 570 U.S. 99, 104 (2013) (“Any fact that, by law,

increases the penalty for a crime that is an ‘element’ that must be submitted

to the jury and found beyond a reasonable doubt.”), we concluded that

SORNA’s SVP determination process was unconstitutional because “it

increases the criminal penalty to which a defendant is exposed without the

chosen fact-finder making the necessary factual findings beyond a reasonable

doubt.” Butler, supra at 1218.

We discern that Appellant is attempting to directly extrapolate the

holding in Butler to the present circumstances, without any relevant

explanation or argument. Ultimately, Appellant’s brevity is his undoing. As

noted above, the General Assembly has adopted a new statutory scheme to

replace SORNA I and respond to the concerns identified in both Muniz and

Butler. See 42 Pa.C.S. §§ 9799.10, et al. (“SORNA II”). Appellant does not

acknowledge this material statutory change, nor has he applied the Mendoza-

Martinez factors to ascertain whether SORNA II is punitive.

This Court has held that a defendant waives their arguments concerning

the SVP determination process under SORNA II where “he fails to provide any

discussion, whatsoever, concerning the alterations made by the General

Assembly in crafting SORNA II in response to Muniz and Butler.”

Commonwealth v. Cosby, ___ A.3d ___, 2019 PA Super 354, at 45

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(Pa.Super. 2019). “This omission is fatal under [Pa.R.A.P.] 2119, as the

discussion of such changes is critical to any pertinent analysis of whether

SORNA II’s SVP provisions are punitive and, thus, subject to state and federal

prohibitions of ex post facto laws.” Id. Appellant has waived this claim for

want of development and discussion. See Pa.R.A.P. 2119(a).

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 3/20/2020

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