J-A24007-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
ROBERT DAVID CALDWELL, II
Appellant No. 189 WDA 2017
Appeal from the Judgment of Sentence December 22, 2016
In the Court of Common Pleas of Fayette County
Criminal Division at No(s): CP-26-CR-0001359-2015
BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.
MEMORANDUM BY MOULTON, J.: FILED OCTOBER 19, 2017
Robert David Caldwell II appeals from the December 22, 2016
judgment of sentence entered in the Fayette County Court of Common Pleas
on two counts of possession of child pornography, and one count each of
display of obscene and other sexual materials and criminal use of a
communication facility.1 We affirm.
On July 28, 2016, Caldwell pled nolo contendere to the aforementioned
charges.2 On December 22, 2016, the trial court held a sentencing hearing.
At that hearing, Dr. Allen Pass,3 a psychotherapist, testified on behalf of
____________________________________________
1
18 Pa.C.S. §§ 6312(d), 5903(a)(1), and 7512(a), respectively.
2
Caldwell’s father, Robert David Caldwell, also pled nolo contendere to
sexual offenses similar to those of his son.
(Footnote Continued Next Page)
J-A24007-17
Caldwell. After both parties examined Dr. Pass, the trial court questioned
Dr. Pass about the end of Caldwell’s treatment program, which included a
discussion of supervision of sex offenders:
THE COURT: So once they’ve successfully completed
whatever, length you determine is necessary for each you
don’t monitor future behavior. There’s nothing that you’re
doing to check on relapsing.
[DR. PASS]: No, that part of the program then falls
directly on the Probation or the Parole Officer so that if a
Probation Officer while governing or supervising the
offender believes that they’re in need of a consult they
contact our office, we set up an appointment and/or bring
the offender back in for a follow up polygraph.
THE COURT: If you’ve completed your treatment how do
you bring them back for a follow up polygraph?
[DR. PASS]: At the request of the Probation or the Parole
Officer.
THE COURT: And I’m sure you realize that most county
Probation and Parole Officers are not trained specifically in
this field.
[DR. PASS]: Correct.
THE COURT: I mean their ability to ascertain a violation
is going to be looking at the computer.
[DR. PASS]: Correct.
THE COURT: I mean there’s nothing they can do vis a vis
the person unless there’s an admission.
[DR. PASS]: That is correct in part. What we’ve noticed
for instance in Allegheny County, Butler County, these
counties have developed specialized sex offender Probation
_______________________
(Footnote Continued)
3
Caldwell’s father was sentenced on the same day and also was being
treated by Dr. Pass.
-2-
J-A24007-17
Officers who undergo specialized training in managing this
offender group and as a result even after an offender is
discharged from a program that discharge is obviously
discharge from the core elements of the program but he or
she is still on probation. So if the Probation Officer makes
a determination, and I can tell you the ways in which they
do this, but if they make a determination that they suspect
that the offender is relapsing then they contact the office,
we set up a meeting, review the allegations or the
potential for the violation and then bring the offender back
in and then retest.
THE COURT: So they or the Court could trigger bringing
you back in?
[DR. PASS]: Absolutely.
THE COURT: Are the state parole agents, do they have
specific training in this field?
[DR. PASS]: Yes, they do. I work with the parole agents
from various counties who have, obviously also are
specifically assigned to manage sex offenders, and it works
very well actually because to be honest with you, Your
Honor, they’re a different group of offenders and you have
to be very careful of them.
THE COURT: Yes, it’s more a mental than it is –-
[DR. PASS]: Yes, sir.
THE COURT: -- an overt act, physical kind of act.
N.T., 12/22/16, at 40-41. The trial court also asked Dr. Pass about his
experience with other states’ parole agencies, as Caldwell had moved to
Florida during the pendency of his case:4
____________________________________________
4
The certified record is unclear as to when Caldwell moved to Florida.
The first indication in the record that Caldwell was a resident of Florida was
in his December 21, 2016 sentencing memorandum.
-3-
J-A24007-17
THE COURT: Doctor, again, not to belabor this, do you
have any familiarity in your professional experience with
Florida parole?
[DR. PASS]: Well we do have, to the best of my
knowledge the last time I checked, and of course this is
always subject to change, we do have an Interstate
Transfer Compact Agreement.
THE COURT: I mean do they have similar, are their
agents similarly trained as our state parole agents are?
[DR. PASS]: I cannot speak specifically to their level of
training but what I can say is that my readings on this
specialty area because it is a growing concern across the
United States more and more jurisdictions, state
jurisdictions and their respective counties are in fact
advocating specialized training for agents.
N.T., 12/22/16, at 45.
Shortly thereafter, the trial court excused Dr. Pass from the witness
stand. Before Dr. Pass left the courtroom, however, the trial court asked
him to opine on Caldwell’s potential employment plan:
[CALDWELL’S COUNSEL]: And, Your Honor, if I may, just
a couple housekeeping matters. Same situation with
[Caldwell], the PSI lists him as unemployed. He would be,
he has available employment and is I believe working
presently. Do you have available employment depending
on what happens here today? So he has employment
available for him.
THE COURT: Can you share with us what that might be?
[CALDWELL’S COUNSEL]: [Caldwell’s father] is opening up
a business franchise.
THE COURT: Of?
[CALDWELL’S COUNSEL]: Ice cream. Frozen yogurt,
sorry.
THE COURT: Doctor, you didn’t get out of the room quick
enough.
-4-
J-A24007-17
[DR. PASS]: Do you need me again?
THE COURT: Just a question from where you are.
[DR. PASS]: Yes, sir.
THE COURT: I love ice cream so this may not apply to
the population generally, but when I think of ice cream I
think of kids. Any risk factor involved here?
[DR. PASS]: Well it’s an excellent question, Your Honor,
and I would agree. I think that ice cream by its very
nature would draw children either on their own or under
the supervision of their parents, and I think in my opinion
is that there would have to be the necessary precautions
taken if in fact [] Caldwell[’s father] is going to execute
this as part of his business plan as to how he would be
monitored at that facility. In other words, is he going to
be a face to face service person for the children or is he
going to be in the back room or perhaps he’s just going to
manage it from afar on a PNL basis.
THE COURT: Well, also, who’s he going to employ?
[DR. PASS]: Assumingly, you’re right again. I don’t
know if he’s going to employ, what age range, but of
course just speaking from my own knowledge if I were
running a business I wouldn’t want to employ anyone
under the age of eighteen.
THE COURT: Well I can tell you at age thirteen I started
in a Dairy Queen in Braddock, Pennsylvania.
[CALDWELL’S COUNSEL]: Your Honor, if I may, he has
other employment available to him as well if that was
going to be an issue.
THE COURT: You threw it out and it just—
[CALDWELL’S COUNSEL]: I’m just saying that we do have,
he does have employment available.
THE COURT: --threw flags up.
...
[THE COMMONWEALTH]: Your Honor, following up with
that, what’s the other employment.
-5-
J-A24007-17
[CALDWELL’S COUNSEL]: If I may, Judge –
[THE COMMONWEALTH]: And this just with regard to
[Caldwell’s father]. We need to address [Caldwell] as well.
THE COURT: I will.
[CALDWELL’S COUNSEL]: Part of their conviction in this
matter is going to make them, and Dr. Pass could talk
about this more, compliant with the Adam Walsh Act and
Megan’s Law, and there’s conditions in that specifically
addresses where the person can work and what their
involvement with children is. That’s where they can live,
where they can work, who they can be around and we’re
seeing this being of issue and making it more and more
difficult for people to find employment, but at the end of
the day he has to comply with those rules, but also we’re
amenable and we’re open to the Court’s discretion. We’re
not stuck on him working at a yogurt place. He can work
anywhere. He just wants to get a job.
[THE COMMONWEALTH]: Forgive me, Your Honor, but I
believe that it was [counsel] who said that [Caldwell] had
other employment opportunities available to him. So we
just want to clarify what other employment opportunities
he was referring to.
THE COURT: Nothing firm that you can speak to.
[CALDWELL’S COUNSEL]: Nothing firm. I’m just saying
that, let’s face it—
THE COURT: What you meant was he’s employable.
[CALDWELL’S COUNSEL]: Yes. I’m not trying to be
disrespectful but working in a yogurt place isn’t a job that,
you know, I’m a brain surgeon and I can only do this. He
can work almost anywhere, at Home Depot or where it is
he’s going to work. It’s a minimum wage or slightly above
job. It’s very interchangeable. It’s nothing specific.
THE COURT: I think what you’re telling me is that
although he’s retired and sixty-seven that [Caldwell’s
father] is still interested in working part time somewhere.
[CALDWELL’S COUNSEL]: He is. He’s retired. Obviously
they’re retired but he has some ideas. They would
-6-
J-A24007-17
certainly comply. If the Courts want them to work, they’re
going to work. Whatever the Court wants we’re going to
do and we’re going to be in compliance.
THE COURT: Okay. And [Caldwell]?
[CALDWELL’S COUNSEL]: The same, Your Honor,
whatever the Court tells us.
THE COURT: He has nothing specific in mind.
[CALDWELL’S COUNSEL]: No, we can get him, that’s not,
like I said, it’s not a real specialized job. He can work
anywhere.
[THE COMMONWEALTH]: So forgive me, but I thought
that when the correction was put on the record was that at
the time they were interviewed by the Adult Probation
Office the information provided was that they were not
employed. We came here today and the information I
thought was that they are employed. So is [Caldwell]
employed or is he not employed?
[CALDWELL’S COUNSEL]: He has employment available to
him providing what happens to him.
THE COURT: Doing what?
[CALDWELL’S COUNSEL]: Working at their yogurt place.
That being said – the moral of the story, Your Honor, is he
has a job opportunity. He wasn’t really sure what’s going
to happen here today as none of us are.
THE COURT: Okay.
[CALDWELL’S COUNSEL]: And once that moves forward he
does want to work. He will be employed. That’s all I
wanted to share with the Court.
THE COURT: Okay.
N.T., 12/22/16, at 46-50.
-7-
J-A24007-17
After hearing argument from the parties, the trial court sentenced
Caldwell to 1 to 7 years’ incarceration for one of the convictions for
possession of child pornography,5 a concurrent 1 to 7 years’ incarceration on
the conviction for criminal use of a communications facility, and a
consecutive 1 to 5 years’ incarceration on the conviction for display of
obscene and other sexual materials.
On December 29, 2016, Caldwell filed a post-sentence motion for
reconsideration of sentence, which the trial court denied on January 3, 2017.
On January 26, 2017, Caldwell timely filed a notice of appeal.
Caldwell raises one issue on appeal:
Whether the Sentencing Court committed an abuse of
discretion in considering factors outside of the
[S]entencing [G]uidelines in determining the sentence of
[Caldwell], specifically, the future employment of
[Caldwell], the level of supervision and training of a
potential supervising jurisdiction, or in treating [Caldwell]
differently based upon his residence outside of
Pennsylvania.
Caldwell’s Br. at 4 (suggested answer omitted).
“Challenges to the discretionary aspects of sentencing do not entitle an
appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,
1064 (Pa.Super. 2011). Before we address such a challenge, we must first
determine:
____________________________________________
5
The trial court imposed no further penalty on the other conviction for
possession of child pornography.
-8-
J-A24007-17
(1) whether the appeal is timely; (2) whether [the
a]ppellant preserved his issue; (3) whether [the
a]ppellant’s brief includes a concise statement of the
reasons relied upon for allowance of appeal with respect to
the discretionary aspects of sentence; and (4) whether the
concise statement raises a substantial question that the
sentence is appropriate under the [S]entencing [C]ode.
Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting
Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).
Caldwell filed a timely notice of appeal. Caldwell, however, failed to
preserve his claim that the trial court relied on impermissible sentencing
factors in his post-sentence motion. In that motion, Caldwell asked the
court to modify his sentence based on his health issues, his remorse for the
crime, and his continuing treatment with Dr. Pass. Caldwell’s motion did not
argue that the trial court used supervision issues or Caldwell’s proffered
post-incarceration employment as impermissible factors in sentencing. Nor
did Caldwell raise this claim at the time of sentencing. Because Caldwell’s
failure denied “the sentencing judge an opportunity to reconsider or modify
[his] sentence on this basis,” Commonwealth v. Mann, 820 A.2d 788, 794
(Pa.Super. 2003), we conclude that Caldwell has waived his discretionary
aspects of sentencing challenge.6 See Commonwealth v. Bullock, 948
____________________________________________
6
Caldwell also failed to include a Pennsylvania Rule of Appellate
Procedure 2119(f) concise statement of reasons for allowance of appeal
regarding the discretionary aspects of sentencing. However, Caldwell’s
failure to include this statement would not have been fatal to his claim
because Caldwell’s brief adequately addressed the allegedly impermissible
(Footnote Continued Next Page)
-9-
J-A24007-17
A.2d 818, 826 (Pa.Super. 2008) (concluding that appellant waived
discretionary aspects of sentencing claim where he failed to raise issue
before trial court orally or by written motion).
Even if Caldwell had preserved this issue, we would conclude that the
trial court did not abuse its discretion. “Sentencing is a matter vested within
the discretion of the trial court and will not be disturbed absent a manifest
abuse of discretion.” Commonwealth v. Crump, 995 A.2d 1280, 1282
(Pa.Super. 2010). Caldwell asserts that the trial court relied on two
impermissible factors in sentencing. First, Caldwell contends that the trial
court’s inquiry of Dr. Pass regarding the supervision of sexual offenders in
Florida and Pennsylvania reveals that the trial court considered “whether
probation officers have adequate training to supervise sex offenders,” thus
placing “an impossible burden upon a defendant to convince the court that
he or she will be adequately supervised by his supervising officer.”
Caldwell’s Br. at 8-9. Similarly, Caldwell asserts that the trial court’s inquiry
of Dr. Pass regarding Caldwell’s planned employment in the frozen yogurt
business evinces the trial court’s consideration of an “immaterial” factor to
_______________________
(Footnote Continued)
factors and the Commonwealth waived this defect by failing to object. See
Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa.Super. 2009)
(addressing discretionary aspects of sentencing claim despite appellant’s
failure to include Rule 2119(f) statement because Commonwealth did not
object to defective brief).
- 10 -
J-A24007-17
sentencing, as “every job and every social situation exposes an individual to
children in some form or another.” Caldwell’s Br. at 11.
With respect to the consideration of impermissible sentencing factors,
we have explained:
It is an abuse of discretion, as a denial of due process
of law, for the sentencing court to consider irrelevant
factors during sentencing. Thus, previous sentences have
been vacated because, in imposing sentence, the
sentencing court relied upon, e.g.: the defendant's
decision to stand trial rather than plead guilty,
Commonwealth v. Bethea, . . . 379 A.2d 102, 106, 107
([Pa. ]1977); prior constitutionally infirm convictions,
Commonwealth v. Calvert, . . . 344 A.2d 797
([Pa.Super. 1]975); the defendant’s political ideology,
Commonwealth v. Berrigan, . . . 535 A.2d 91
([Pa.Super. ]1987) (en banc) . . .; unverified hearsay, id.;
and the defendant’s status as a naturalized citizen,
Commonwealth v. Dugan, . . . 483 A.2d 965
([Pa.Super.] 1984).
It is not enough that a trial court simply entertained
impermissible evidence in its deliberations. A court is
“ordinarily presumed to be capable of identifying and
properly disregarding all but the most prejudicial and
inflammatory evidence.” Commonwealth v. Penrod,. . .
578 A.2d 486, 491 ([Pa.Super. ]1990). Thus, a sentence
must be vacated only where “it reasonably appears from
the record that the trial court relied in whole or in part
upon such [an impermissible] factor.” Commonwealth v.
Bethea, supra, 379 A.2d at 107 (emphasis added).
Commonwealth v. Smithton, 631 A.2d 1053, 1056-57 (Pa.Super. 1993).
We conclude that the trial court did not rely on impermissible factors in
imposing sentence. As the trial court stated in its Pennsylvania Rule of
Appellate Procedure 1925(a) opinion:
Although [the trial court heard testimony on] supervision
of [Caldwell] in this jurisdiction and to a lesser extent,
- 11 -
J-A24007-17
Florida, the Court did not take into account even a scintilla
of “the level of supervision and training of a potential
jurisdiction” or [Caldwell’s] residence outside of
Pennsylvania, in arriving at its sentence in this case. This
Court did consider the nature of the offenses, the need for
continuing treatment so as to lessen the likelihood of re-
offending due to the fluid risk factors as outlined by the
treating expert, Dr. Pass, and [Caldwell]’s resistance to
accepting responsibility for his numerous criminal
activities, all of which are permissible factors for
consideration in fashioning an appropriate sentence taking
into account [Caldwell]’s rehabilitative needs, as well as
the public’s right to be protected from criminal behavior.
Rule 1925 Opinion, 3/1/17, at 3-4 (“1925(a) Op.”). The context of the trial
court’s questioning about the supervision of sex offenders shows that, at
most, the trial court was educating itself about the supervision system to
determine how Dr. Pass could continue treating Caldwell and how treatment
providers and the Department of Corrections would address potential
violations by Caldwell.
We also conclude that the trial did not improperly rely on Caldwell’s
employment plan in imposing sentence. The trial court stated that it
“considered [Caldwell]’s one stated actual job opportunity, employment by
his co-defendant father in a franchise business selling a product known to be
attractive to children, only in relation to [Caldwell]’s continuing fluid risk
factors, not for any reason relative to his employability.” 1925(a) Op. at 3.
Because Caldwell has failed to show that the trial court considered any
impermissible factors, much less relied on impermissible factors in imposing
sentence, he is not entitled to relief.
Judgment of sentence affirmed.
- 12 -
J-A24007-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/19/2017
- 13 -