J-S47012-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    FREDERICK COATES                           :
                                               :
                       Appellant               :   No. 1506 WDA 2017

              Appeal from the Judgment of Sentence July 19, 2016
     In the Court of Common Pleas of Allegheny County Criminal Division at
                        No(s): CP-02-CR-0014825-2015


BEFORE:      OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.

MEMORANDUM BY OLSON, J.:                             FILED OCTOBER 16, 2018

       Appellant, Frederick Coates, appeals from the judgment of sentence

entered on July 19, 2016, following his convictions for indecent assault,

unlawful contact with a minor, and corruption of minors.1 Upon review, we

affirm.

       The trial court summarized the facts of this as follows:

       A.W., the victim in this case, testified at trial that she was eight
       years old and that her birthday is May 8. A.W. testified that she
       used to see Appellant when she visited her aunt[,] who A.W. called
       “Aunt TT[.”] A.W. testified that when she was at Aunt TT’s house,
       Appellant, who she called “Mr. Fred,” was also in the home and
       would sometimes be alone in a room with her. She stated that
       Mr. Fred touched her inappropriately on three separate occasions.
       The first time Appellant touched her [was when] she was watching
       cartoons in Aunt TT’s room while also playing games on her phone.
       A.W. testified that Appellant entered the room [and] touched his
       hand to her vagina over her clothes. The touching ended when
____________________________________________


1   18 Pa.C.S.A. §§ 3126(a)(7), 6318(a)(5), and 6301(a)(1)(ii), respectively.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
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     A.W. got up and left the room. The second instance occurred in
     her brother[’s] room. A.W.’s sister [] left the room to go to the
     bathroom, leaving A.W. alone with Appellant. Appellant touched
     [A.W.’s] vagina with his hand over her clothes while A.W. played
     video games. He also kissed her on the lips, which she described
     as different from how her mother kisses her. The third and final
     incident to which A.W. testified occurred in a [third] room. While
     she was watching cartoons, Appellant entered the room and
     touched her in the same manner as he had previously. A.W.
     identified Appellant in court as the person who had touched her
     inappropriately.

     [] A.W.’s mother [(Mother)] testified that [Aunt TT] was [a
     paternal cousin] and A.W. spent a lot of time [at Aunt TT’s home]
     prior to [Mother] becoming aware of the allegations of abuse.
     [Mother] testified that Appellant was a childhood friend of [Aunt
     TT] who [Mother] did not know [before the prior] summer.
     [Mother] noticed a change in A.W.’s behavior and asked her why
     she was acting so mean. [Mother] testified that A.W. put her head
     down and said it was “the man at Aunt TT’s house, the bald guy.”
     A.W. and [Mother] went to [Aunt TT’s] house and A.W. said it was
     “Fred” and started crying hysterically.

     Detective Nicholas Bobbs, testified that he is a 15-year veteran of
     the City of Pittsburgh Police Department, who is currently
     assigned to the Sex Assault Family Crisis Unit. Pursuant to
     investigation, Detective Bobbs interviewed Appellant regarding
     these allegations. Detective Bobbs testified that Appellant told
     him, “I picked her up and secured her body against mine like a
     baby. Her buttocks was in my hand. Yeah, I did it. It was
     intentional.” The [d]etective told Appellant that this was not the
     allegation he was investigating, that the allegations were more
     sexual in nature. Appellant stated to the [d]etective, “I stuck my
     hand on the front of her pants and touched her vagina.” Appellant
     said this happened in TT’s bedroom. Appellant told Det. Bobbs
     that he kissed A.W. on the lips at one point and told her that he
     loved her. The [d]etective testified that Appellant denied touching
     A.W. under her clothing.

     Appellant testified that he had been friends with [TT] as a child
     and reconnected with her in 2014. He stated that he frequently
     visited her house where they would play cards with several other
     people. He testified that he saw A.W. while at [TT’s] house. In
     addition, Appellant indicated that he and A.W. are “distant

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       cousins.” He testified that he did not have any memory of any of
       the allegations of sexual abuse.          Appellant agreed to be
       interviewed by the police.          Appellant testified that after
       approximately 25 minutes of denials, his emotions got the better
       of him and he said that he “did it.” He told the [d]etective that he
       touched A.W. on her vagina on the inseam of her pants. Appellant
       stated that he told the police that he kissed A.W. on the cheek but
       did not tell them that he kissed her on the lips. Appellant told
       A.W. that he loved her after A.W. had broken her arm. On the
       witness stand, he flatly denied touching A.W. in any type of
       sexually inappropriate manner.

Trial Court Opinion, 1/16/2018, at 2-4 (record citations omitted).

       On April 27, 2016, a jury convicted Appellant of the aforementioned

crimes. On July 19, 2016, the trial court sentenced Appellant to an aggregate

term of 20 to 40 months of imprisonment, with a consecutive term of three

years of probation. Moreover, in the sentencing order, the trial court ordered

Appellant to register for life as a Tier III sex offender under SORNA.2 However,

the trial court did not order an assessment or otherwise determine Appellant

to be a sexually violent predator (SVP). On August 28, 2017, the trial court

reinstated Appellant’s post-sentence motion and direct appeal rights nunc pro

tunc. Appellant filed a post-sentence motion that the trial court denied on

September 19, 2017. This timely appeal resulted.3
____________________________________________


2 The Sex Offender Registration and Notification Act, 42 Pa.C.S.A.
§§ 9799.10–9799.41. “SORNA was enacted on December 20, 2011, and
became effective on December 20, 2012. SORNA recently was amended on
February 21, 2018, by H.B. 631, 202 Gen. Assem., Reg. Sess. (Pa. 2018), Act
10 of 2018.” Commonwealth v. Golson, 189 A.3d 994, 1003 (Pa. Super.
2018).

3 Appellant filed a notice of appeal on October 16, 2017. On November 8,
2017, the trial court ordered Appellant to file a concise statement of errors



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       On appeal, Appellant presents the following issues for our review:

       I.     Did the trial court abuse its discretion in denying the motion
              for a new trial on the grounds that the guilty verdicts for
              indecent assault, unlawful contact with a minor, and
              corruption of minors were contrary to the weight of the
              evidence presented in that the Commonwealth’s evidence
              was of such low quality, tenuous, vague, and uncertain as
              to make the verdict of guilty pure conjecture; and,
              therefore, shocks the conscience of the Court?

       II.    Did the trial court impose an illegal sentence in imposing a
              lifetime registration requirement under SORNA, thereby
              exceeding the statutory maximum sentences possible for his
              convictions?

Appellant’s Brief at 7.

       Appellant first contends that his convictions are against the weight of

the evidence presented at trial.         Id. at 19-34.   Appellant argues that the

victim’s testimony “was vague, uncertain, and inconsistent.” Id. at 23. He

claims the victim “stretched the truth with regard to her interactions with

[Appellant] in order to gain her mother’s sympathy.” Id. at 28. Appellant

further posits that because “five or more adults [were inside Aunt TT’s] house

when the incidents occurred, [there was] reasonable doubt as to whether any

of the contact A.W. described occurred, and that if it did, that it was for the

purpose of arousing or gratifying sexual desire in either A.W. or [Appellant].”

Id. at 29.

       Our standard of review is as follows:

____________________________________________


complained of on appeal pursuant to Pa.R.A.P. 1925(b). Appellant complied
timely on November 21, 2017. The trial court issued an opinion pursuant to
Pa.R.A.P. 1925(a) on January 16, 2018.

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     The essence of appellate review for a weight claim appears to lie
     in ensuring that the trial court's decision has record support.
     Where the record adequately supports the trial court, the trial
     court has acted within the limits of its discretion.

                                *     *      *

     A motion for a new trial based on a claim that the verdict is against
     the weight of the evidence is addressed to the discretion of the
     trial court. A new trial should not be granted because of a mere
     conflict in the testimony or because the judge on the same facts
     would have arrived at a different conclusion. Rather, the role of
     the trial judge is to determine that notwithstanding all the facts,
     certain facts are so clearly of greater weight that to ignore them
     or to give them equal weight with all the facts is to deny justice.

                                *     *      *

     An appellate court's standard of review when presented with a
     weight of the evidence claim is distinct from the standard of review
     applied by the trial court. Appellate review of a weight claim is a
     review of the exercise of discretion, not of the underlying question
     of whether the verdict is against the weight of the evidence.

     In order for an appellant to prevail on a challenge to the weight of
     the evidence, the evidence must be so tenuous, vague and
     uncertain that the verdict shocks the conscience of the court.

Commonwealth v. Rodriguez, 174 A.3d 1130, 1139–1140 (Pa. Super.

2017) (internal citations and quotations omitted).

     In this case, the trial court determined:

     The jury reasonably found credible the testimony of the victim,
     A.W. She testified in detail at trial about three specific instances
     of criminal contact at [Aunt TT’s] house over an extended period
     of time. Her testimony was corroborated by [] her mother and
     Detective Bobbs.      The jury reasonably rejected Appellant’s
     testimony as nothing but a self-serving denial. Upon further
     review of the evidence, [the trial court’s] sense of justice [was]
     not shocked by the jury’s verdict in this case as it was not against
     the weight of the evidence but rather supported by it.

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Trial Court Opinion, 1/16/2018, at 5.

         Upon review, we discern the trial court did not abuse its discretion in

denying Appellant’s weight of the evidence claim.             As the trial court

recognized, the victim’s testimony was detailed and corroborated. Moreover,

on appeal, Appellant overlooks the fact that he admitted to police that he

touched the eight-year-old victim’s vagina. We conclude that the trial court

did not abuse its discretion in determining the verdict did not shock the

conscience of the court. Accordingly, Appellant’s weight of the evidence claim

fails.

         Next, relying on our Supreme Court’s decision in Commonwealth v.

Muniz, 164 A.3d 1189 (Pa. 2017) and this Court’s subsequent decision in

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

contends that his lifetime registration requirements under SORNA are illegal.4

Appellant’s Brief at 35-40.

         We recently summarized our Supreme Court’s holding in Muniz, as

follows:

         In Muniz, the defendant was convicted in February 2007 of two
         counts of indecent assault of a person less than 13 years of age
         with sentencing scheduled for May 2007. [Muniz, 164 A.3d] at
         1193. At the time of his conviction, Muniz “would have been
         ordered to register as a sex offender with the Pennsylvania State
         Police for a period of ten years pursuant to then-effective Megan's
         Law III.” Id. at 1192 (citing 42 Pa.C.S.A. § 9795.1 (expired)).
         Muniz, however, never appeared for sentencing and absconded
____________________________________________


4  Appellant did not raise this issue in his Rule 1925(b) concise statement;
however, a challenge to the legality of a sentence based upon Muniz may
be raised for the first time on appeal. See Butler, 173 A.3d at 1214.

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     until he was later apprehended in September 2014. Id. When
     Muniz was finally sentenced in 2014, the trial court ordered him
     to comply with the lifetime registration provisions under the
     then-effective SORNA, pursuant to which he was a Tier III sexual
     offender. Id. Muniz appealed.

     On appeal to our Supreme Court, five of the six participating
     justices held that even though the General Assembly identified
     SORNA's enhanced registration provisions as non-punitive, they
     nonetheless constituted punishment. Id. at 1218. The Supreme
     Court further determined that the retroactive application of
     SORNA's registration requirements to Muniz violated the ex post
     facto clause of the Pennsylvania Constitution. Id. at 1218–1219.
     Our Supreme Court explained:

             Critical to relief under the ex post facto clause is not
             an individual's right to less punishment, but the lack
             of fair notice and governmental restraint when the
             legislature increases punishment beyond what was
             prescribed when the crime was consummated.

                           *            *           *

     Because Muniz committed his crimes prior to the existence of
     SORNA, the Supreme Court determined that application of that
     statute would inflict greater punishment than the law (Megan's
     Law III) in effect at the time he committed his crimes.
     Consequently, our Supreme Court concluded that the retroactive
     application of SORNA's registration and reporting requirements to
     Muniz violated the ex post facto clauses of the United States and
     Pennsylvania Constitutions. Id. at 1223.

Commonwealth v. Horning, 2018 WL 3372367, at *3–4 (Pa. Super. July

11, 2018).

     Thereafter:

     In light of Muniz, this Court determined: “[U]nder Apprendi [v.
     New Jersey, 530 U.S. 466, (2000) ] and Alleyne [v. United
     States, 570 U.S. 99 (2013)] a factual finding, such as whether a
     defendant has a mental abnormality or personality disorder that
     makes him ... likely to engage in predatory sexually violent
     offenses, that increases the length of registration must be found

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      beyond a reasonable doubt by the chosen fact–finder.”
      Commonwealth v. Butler, 173 A.3d 1212, 1217 (Pa. Super.
      2017) (internal quotations and citations omitted). The Butler
      Court further held “section 9799.24(e)(3) of SORNA violates the
      federal and state constitutions 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.” Id. at 1218. The Court therefore concluded that trial
      courts no longer can designate convicted defendants as SVPs or
      hold SVP hearings “until our General Assembly enacts a
      constitutional designation mechanism.” Id. The Butler Court
      directed trial courts to apply only the applicable tier–based
      registration period, as those periods apply based on the conviction
      itself, and not due to any additional fact not found, under SORNA's
      procedures, by the fact–finder. The Court ultimately reversed the
      order finding the defendant to be an SVP and remanded to the
      trial court for the sole purpose of issuing appropriate notice of the
      defendant's tier–based registration period. Id.

Golson, 189 A.3d at 1003.

      Upon review, there is no dispute that the crimes at issue took place after

the enactment of SORNA in December 2012.               Furthermore, Appellant

acknowledges that he “was convicted after SORNA’s enactment” and that “he

did not experience any change to his registration status” because of SORNA.

Appellant’s Brief at 37 (emphasis in original). Thus, he was not subject to

retroactive application of registration requirements in violation of the ex post

facto doctrine.    Instead, the trial court imposed Tier III registration

requirements as statutorily authorized and required and Appellant is not

entitled to relief under Muniz and Butler.

      In the alternative, Appellant argues that because the registration

“consequences pursuant to SORNA are deemed ‘punishment’ under Muniz,

the lifetime registration requirement imposes a lifetime sentence which is



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greater than the lawful maximum for [Appellant’s] offenses.”         Appellant’s

Brief at 40. Accordingly, Appellant suggests that “the registration requirement

in his case should be limited to the length of the sentence imposed, or [seven]

years.” Id.

      This Court has recently rejected this argument. See Commonwealth

v. Strafford, 2018 WL 3717081, at *3 (Pa. Super. 2018) (SORNA's

registration requirements are authorized punitive measures separate and

apart from a defendant's term of incarceration, the legislature did not limit the

authority of a court to impose registration requirements only within the

maximum allowable term of incarceration, and in fact, the legislature requires

courts to impose registration requirements in excess of the maximum

allowable term of incarceration).    As such, Appellant’s second issue lacks

merit.

      Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/16/2018




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