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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID L. ZEIGAFUSE
Appellant No. 872 EDA 2016
Appeal from the Judgment of Sentence December 14, 2015
In the Court of Common Pleas of Northampton County
Criminal Division at No(s): CP-48-CR-0001557-2014
BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*
MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 05, 2016
This is an appeal from the judgment of sentence entered in the Court
of Common Pleas of Northampton County following Appellant’s plea of nolo
contendere to one count of indecent assault--less than 13 years old, one
count of corruption of minors, one count of endangering the welfare of a
child, and one count of indecent exposure.1 We affirm.
The relevant facts and procedural history are as follows: Appellant
was arrested, and on September 1, 2015, represented by counsel, he
proceeded to a hearing at which he entered a plea of nolo contendere to the
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1
18 Pa.C.S.A. §§ 3126(a)(7), 6103(a), 4304(a), and 3127(a), respectively.
*
Former Justice specially assigned to the Superior Court.
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charges indicated supra. At the hearing, the Commonwealth presented
evidence of a video from Walmart depicting Appellant taking his eight-year
old daughter into the men’s bathroom and then exiting fifteen minutes later.
N.T., 9/1/15, at 7. The child later reported that, while in the bathroom,
Appellant showed her his penis and had sexual contact with her. Id.
At the conclusion of the hearing, the trial court ordered the
Pennsylvania Sexual Offenders Board (“the Board”) to evaluate whether
Appellant qualified as a sexually violent predator (“SVP”) under the Sexual
Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §
9799.10 et seq. Id. at 8-9. The trial court further ordered a full
presentence investigation (“PSI”) be performed. Id. at 9.
On December 14, 2015, Appellant proceeded to a hearing at which the
trial court initially conducted a SVP hearing. Specifically, Paula Brust, a
member of the Board who the trial court deemed to be qualified to testify as
an expert in the field of sexual offender assessment, indicated that she
reviewed the pertinent police reports, affidavit of probable cause, the
victim’s interviews, the March 1, 2015, psychiatric report prepared by Dr.
Alex Thomas, and the May 12, 2015, psychological report prepared by Dr.
Robert Wisser. N.T., 12/14/15, at 11. She noted the Board sent a letter to
defense counsel requesting that Appellant participate in an interview, but
defense counsel failed to respond. Id. at 13. She further noted that
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Appellant’s failure to participate in the evaluation did not prevent her from
conducting an assessment as to Appellant’s SVP designation. Id.
Ms. Brust opined that, based on her evaluation and to a reasonable
degree of certainty, Appellant has a personality disorder or a mental
abnormality, i.e., he meets the diagnostic criteria set forth in the Diagnostic
and Statistical Manual, fifth edition, for the diagnosis of pedophilic disorder.
Id. at 14, 16. Ms. Brust explained that the essential features of a pedophilic
disorder are (1) the person has at least six monthly intense, sexually
arousing fantasies, sexual urges, or behavior involving sexual contact with
prepubescent children, who are generally thirteen years old or younger, (2)
the person has acted on these sexual urges or fantasies, and (3) the person
is at least sixteen years old and at least five years older than the victim. Id.
at 14-15. Ms. Brust opined “[Appellant] meets all [of] th[e]se diagnostic
criteria [for] having sexually assaulted his minor daughter for a number of
years in various ways.” Id. at 15.
Ms. Brust noted that some of the specific facts which support her
opinion include the fact Appellant sexually assaulted his minor daughter from
January 2009 to December 2013. Id. Moreover, the victim was three years
old when the assaults began and eight years old when the assaults were
disclosed. Id. Ms. Brust noted the assaults were disclosed when someone
witnessed the abuse and Appellant took a risk by assaulting the victim in
public. Id. Moreover, Ms. Brust noted the victim reported that Appellant
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sexually assaulted her in their home in various ways, including rubbing her
genitals, exposing himself to her, and rubbing his penis on and in her vaginal
area. Id. at 15-16.
Ms. Brust also opined, to a reasonable degree of certainty, that
Appellant has engaged in predatory behavior. Id. at 16-17. She noted
“[p]redatory is defined as an act directed at a stranger or a person with
whom a relationship has been maintained, established, promoted or initiated
in whole or in part for purposes of sexual victimization.” Id. at 16. In this
regard, she opined that Appellant assaulted his daughter for many years in
different places, some of them to include public places, and his relationship
with her “wasn’t a caring, loving father like he should have been.” Id. at 17.
She noted the relationship was “twisted and altered” so he could assault her.
Id.
Finally, Ms. Brust opined, to a reasonable degree of certainty, that
Appellant is likely to reoffend and that his mental disorder is not curable.
Id. In this regard, she noted the sexual assaults did not end until someone
witnessed the abuse.
Based on all of the aforementioned, Ms. Brust opined, to a reasonable
degree of certainty, that Appellant meets the statutory criteria to be
classified as a SVP. Id.
On cross-examination, Ms. Brust admitted that, in his psychiatric
report, Dr. Thomas did not include the diagnosis of pedophilic disorder. Id.
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at 23. Further, she admitted Dr. Wisser did not reference pedophilic
disorder in his psychological report. Id. at 24-25.
However, on redirect-examination, Ms. Brust noted that, in his
psychiatric report, Dr. Thomas indicated Appellant should have a sexual
offender evaluation and, if found to be a sexually violent offender, Appellant
should be enrolled in a sex offender program. Id. at 29-30. Moreover, Ms.
Brust noted that, in Dr. Wisser’s psychological report, he indicated that
Appellant should have a sexual offender evaluation and then follow through
with any recommendations. Id. at 30. Thus, Ms. Brust testified both
doctors contemplated that someone would evaluate Appellant for purposes
of determining whether he is a sexually violent predator and that is precisely
what she did. Id. at 30-31.
At the conclusion of Ms. Brust’s testimony, the trial court indicated it
was moving on to the sentencing hearing and the court had in its possession
a PSI report. Id. at 36. The trial court permitted the victim’s mother to
read into evidence a victim impact statement. Id. at 37-42. The trial court
heard testimony from Appellant’s mother, who indicated Appellant would not
“hurt a fly...[and would] give the shirt off his back to anybody that needed
it.” Id. at 47.
The trial court asked Appellant if he would like to make a statement,
and Appellant indicated “No.” Id. at 48. The prosecutor asked the trial
court to take into account the seriousness of the offenses, as well as
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Appellant’s need for rehabilitation. Id. at 43. Appellant’s counsel asked for
a standard range sentence. Id. at 48-49.
At the conclusion of all testimony, the trial court, indicating it had
reviewed the PSI report, the sentencing guidelines, and the plea colloquy,
stated the following:
[Appellant], you are a very sick individual and you need
serious, serious treatment. And clearly the County of
Northampton is not suitable to give you that treatment.
When I balance your rehabilitative needs versus the need
to protect society, on a whole, I come to one conclusion that you
need to be placed in confinement for a period of time that is
going to allow you to receive sufficient treatment, that these
deprivations would never take place again.
***
On the first count of indecent assault I sentence you to 12
to 84 months in a state correctional institution.
On the corruption of minors charge I sentence you to a
consecutive term of 12 to 84 months in a state correctional
institution.
On the endangering the welfare of a child, I sentence you
to a consecutive term of 12 to 84 months in a state correctional
institution.
I sentence you to a consecutive term of 60 months
probation on the remaining charge of indecent exposure.
Id. at 49-51.
The trial court then indicated it found Appellant to be a SVP and
subject to all requirements of SORNA. Id. at 52. The trial court noted it
made this finding based upon the experts’ reports and, in particular, found
“the opinion of Ms. Brust is credible[.]” Id. Appellant was then provided
with his post-sentence and appellate rights.
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On December 24, 2015, Appellant filed a timely, counseled post-
sentence motion, which the trial court denied, and this timely appeal
followed. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b)
statement, Appellant timely complied, and the trial court filed a responsive
opinion.
Appellant first contends the trial court erred in classifying him as a SVP
since the Commonwealth failed to prove by clear and convincing evidence
that Appellant meets the criteria for such a classification. Specifically,
Appellant suggests Ms. Brust’s testimony failed “to rise to the level of the
clear and convincing standard[.]”2 Appellant’s Brief at 12.
The standards governing our review of the sufficiency of the evidence
with respect to a SVP determination are well established:
A challenge to the sufficiency of the evidence is a question
of law subject to plenary review. We must determine whether
the evidence admitted at [the SVP hearing] and all reasonable
inferences drawn therefrom, when viewed in the light most
favorable to the Commonwealth as the verdict winner, is
sufficient to support all elements of the [statute]. A reviewing
court may not weigh the evidence or substitute its judgment for
that of the trial court.
At a hearing prior to sentencing the court shall determine
whether the Commonwealth has proved by clear and convincing
evidence that the individual is a sexually violent predator. In
reviewing the sufficiency of the evidence regarding the
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2
Appellant also suggests the trial court erred in failing to announce its SVP
determination prior to imposing Appellant’s sentence. See Appellant’s Brief
at 11. We find this specific issue to be waived as Appellant failed to include
it in his court-ordered Pa.R.A.P. 1925(b) statement. See Pa.R.A.P.
1925(b)(4)(vii).
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determination of SVP status, we will reverse the trial court only if
the Commonwealth has not presented clear and convincing
evidence sufficient to establish each element required by the
statute.
Commonwealth v. Evans, 901 A.2d 528, 534 (Pa.Super. 2006) (citations
omitted; bracketed information in original).
SORNA defines a SVP as:
[a] person who has been convicted of a sexually violent offense
as set forth in § 9795.1 (relating to registration)3 and who is
determined to be a sexually violent predator under § 9795.4
(relating to assessments) due to a mental abnormality or
personality disorder that makes the person likely to engage in
predatory sexually violent offenses.
42 Pa.C.S.A. § 9792 (footnote added). SORNA defines a “mental
abnormality” as “[a] congenital or acquired condition of a person that affects
the emotional or volitional capacity of the person in a manner that
predisposes that person to the commission of criminal sexual acts to a
degree that makes the person a menace to the health and safety of other
persons.” Id. Further, SORNA defines “predatory” as “[a]n act directed at a
stranger or at a person with whom a relationship has been initiated,
established, maintained or promoted, in whole or in part, in order to
facilitate or support victimization.” Id.
Among the relevant sections of SORNA, Section 9795.4 provides:
§ 9795.4. Assessments
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3
Appellant does not dispute that he was convicted of such an offense.
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(a) Order for assessment.—After conviction but before
sentencing, a court shall order an individual convicted of an
offense specified in [S]ection 9795.1 (relating to registration) to
be assessed by the board. The order for an assessment shall be
sent to the administrative officer of the board within ten days of
the date of conviction.
(b) Assessment.—Upon receipt from the court of an order for
an assessment, a member of the board as designated by the
administrative officer of the board shall conduct an assessment
of the individual to determine if the individual should be
classified as a sexually violent predator. The board shall
establish standards for evaluations and for evaluators conducting
the assessments. An assessment shall include, but not be
limited to, an examination of the following:
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means necessary
to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of unusual
cruelty by the individual during the commission of the
crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual's prior criminal record.
(ii) Whether the individual completed any prior sentences.
(iii) Whether the individual participated in available
programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age of the individual.
(ii) Use of illegal drugs by the individual.
(iii) Any mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to the
individual's conduct.
(4) Factors that are supported in a sexual offender assessment
field as criteria reasonably related to the risk of reoffense.
42 Pa.C.S.A. § 9795.4.
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The above Section delineates a non-exclusive list of factors to consider
in the SVP assessment of a defendant. “[However,] there is no statutory
requirement that all of [the factors] or any particular number of them be
present or absent in order to support an SVP designation. The factors are
not a checklist with each one weighing in some necessary fashion for or
against SVP designation.” Commonwealth v. Brooks, 7 A.3d 852, 863
(Pa.Super. 2010) (quotation omitted). Thus, “[t]he Commonwealth does not
have to show that any certain factor is present or absent in a particular
case.” Id. (quotation omitted). Moreover, “to carry its burden of proving
that an offender is an SVP, the Commonwealth is not obliged to provide a
clinical diagnosis by a licensed psychiatrist or psychologist” of a personality
disorder or mental abnormality. Commonwealth v. Conklin, 587 Pa. 140,
158, 897 A.2d 1168, 1178 (2006).
Instantly, in concluding the Commonwealth carried its burden, the trial
court reasoned as follows:
On December 14, 2015, a [SVP] hearing was held in which
[Ms.] Brust, who was accepted as an expert by th[e] [c]ourt,
testified as follows to a reasonable degree of certainty[.] The
purpose of the assessment is to determine whether or not
[Appellant] meets the criteria set forth in the statute to be
classified as an SVP. In formulating her opinion, she relied on
police reports, Affidavits of Probable Cause, children’s advocacy
interviews with the victim, psychiatric and psychological
evaluations, among other things. Ms. Brust did not have a
chance to interview [Appellant] personally because there was no
response as to his participation from counsel. According to the
statute, [Appellant] may be evaluated for SVP designation
despite his lack of participation and must possess either a
mental abnormality or a personality disorder that makes it likely
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that he will engage in predatory sexual behavior. In Ms. Brust’s
expert opinion, [Appellant] does meet the diagnostic criteria set
forth in the Diagnostic and Statistical manual for the diagnosis of
pedophilic disorder, which is characterized by at least six
monthly intense sexually arousing fantasies, sexual urges or
behaviors involving sexual contact with a prepubescent child,
generally age 13 or younger. In order to have pedophilic
disorder, a person must also have acted on these sexual urges
or fantasies and be over the age of 16 and at least 5 years older
than the victim.
Here, [Appellant] was reported to have sexually assaulted
his minor daughter between January 2009 and December 2013.
She was approximately three years old when the assault began
and eight years old when it was finally disclosed. Additionally,
the victim was interviewed and said her father would assault her
multiple times and in multiple ways, rubbing her genital area,
exposing himself and rubbing his penis on and in her vaginal
area. Further, the places in which [Appellant] assaulted his
daughter included public places, which is essentially how
[Appellant] got caught. It is Ms. Brust’s expert opinion that had
[Appellant] not gotten caught he would have continued the
assault and, thus, is likely to reoffend.
***
Here, Ms. Brust. . .testified that, in her expert opinion,
[Appellant] has pedophilic disorder. As discussed [above], Ms.
Brust identified each of the elements of this disorder and
explained to the [c]ourt how [Appellant] meets each of these
criteria to a degree of professional certainty.
Trial Court Opinion, filed 4/7/16, at 2-3.
The records supports the trial court’s sound reasoning. Evans, supra.
Additionally, we note that, as to the “predatory” element set forth under
SORNA, Ms. Brust testified that Appellant was not a caring, loving father;
but rather, he had a “twisted and altered” relationship with the victim which
promoted the sexual assaults. N.T., 12/14/15, at 17. The trial court was
free to accept Ms. Brust’s testimony, and we conclude the evidence was
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sufficient to support Appellant’s SVP classification under the clear and
convincing standard.
Appellant next contends the trial court abused its discretion in
imposing an excessive sentence where the maximum sentence is seven
times the minimum sentence for the offenses of indecent assault, corruption
of minors, and endangering the welfare of children. In this regard, Appellant
concedes the minimum sentence for each offense is within the standard
range of the sentencing guidelines, see Appellant’s Brief at 13; however, he
argues the sentences are excessive in light of the trial court’s failure to
consider the factors set forth in 42 Pa.C.S.A. § 9721(b) related to the
protection of the public, the gravity of the offense, and the rehabilitative
needs of Appellant. 4
Appellant’s issue challenges the discretionary aspects of his sentence,
for which there is no automatic right to appeal. Commonwealth v.
Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010). To reach the merits of a
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We note that 42 Pa.C.S.A. § 9756(b) provides that “[t]he court shall
impose a minimum sentence of confinement which shall not exceed one-half
of the maximum sentence imposed.” In the case sub judice, Appellant does
not dispute that his minimum sentences do not exceed one-half of the
maximum sentences imposed. Moreover, we note that, while “a sentencing
court must impose a maximum sentence that is at least twice the
minimum[,]. . .there is no restriction placed on the court's decision
regarding the maximum sentence, aside from the statutory maximum[.]”
Commonwealth v. Edwards, 906 A.2d 1225, 1230 (Pa.Super. 2006).
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discretionary aspects of sentencing claim, this Court must conduct a four-
part analysis to determine:
(1) whether appellant filed a timely notice of appeal, Pa.R.A.P.
902, 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
Pa.R.Crim.P. 720; (3) whether appellant's brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code.
Id. (citation omitted). A substantial question exists when “the appellant
advances a colorable argument that the sentencing judge'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. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013)
(citations and quotation marks omitted).
Here, Appellant filed a timely notice of appeal, sufficiently raised the
issue in his timely post-sentence motion,5 and complied with the briefing
requirements of Pa.R.A.P. 2119(f). Moreover, we conclude the issue
presents a substantial question permitting our review. See Commonwealth
v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (holding the argument that
“the trial court failed to consider the factors set forth in 42 Pa.C.S.A. §
9721(b)” presented a substantial question for our review).
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He also adequately presented the issue in his court-ordered Rule 1925(b)
statement.
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Turning to the merits, our standard of review of a sentencing challenge
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.
Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa.Super. 2015) (citation
omitted).
When imposing a sentence, the sentencing court must
consider the factors set out in 42 [Pa.C.S.A.] § 9721(b), that is,
the protection of the public, gravity of offense in relation to
impact on victim and community, and rehabilitative needs of the
defendant. And, of course, the court must consider the
sentencing guidelines.
Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en
banc) (citation and quotation marks omitted). “Where, as here, the trial
court has the benefit of a pre-sentence report, we presume that the court
was aware of relevant information regarding the defendant's character and
weighed those considerations along with any mitigating factors.” Johnson,
125 A.3d at 827 (citation omitted).
In the case sub judice, the trial court specifically indicated it had in its
possession the PSI report, the reports of Drs. Thomas and Wisser, the
sentencing guidelines, and Appellant’s plea colloquy. N.T., 12/14/15, at 36.
The trial court accepted into evidence Appellant’s medical records and heard
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statements from the victim’s mother, as well as Appellant’s mother. In
imposing its sentence, the trial court specifically stated it was considering
Appellant’s rehabilitative needs versus the need to protect society as a
whole. Id. at 49.
Moreover, in its opinion, the trial court noted:
[Appellant] claims that the sentence imposed upon [him] is
excessive and an abuse of discretion where the maximum
sentence is seven (7) times the minimum sentence for indecent
assault, corruption of minors, and endangering the welfare of
children. The sentences imposed, however, do not exceed the
statutorily prescribed limits and are not so manifestly excessive
as to constitute too severe a punishment given the alarming
circumstances which surround the reported incidents of abuse
(including, but not limited to: the age of the victim, the
frequency of the abuse and [Appellant’s] relationship with the
victim). Therefore, the sentences imposed do not transgress the
bounds of th[e] [c]ourt’s sentencing discretion.
Trial Court Opinion, filed 4/7/16, at 4.
We find no abuse of discretion in this regard, Johnson, supra, and for
all of the foregoing reasons, we affirm Appellant’s judgment of sentence.
Affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/5/2016
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Com. v. Zeigafuse, D.
Combined Opinion