J-A07001-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                  IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                        Appellee

                   v.

ROBERT LELLOCK,

                        Appellant                   No. 2021 WDA 2013


     Appeal from the Judgment of Sentence Entered October 22, 2013
            In the Court of Common Pleas of Allegheny County
                        Criminal Division at No(s):
                         CP-02-CR-0003936-2013
                         CP-02-CR-0013778-2012

BEFORE: BENDER, P.J.E., LAZARUS, J., and MUNDY, J.

MEMORANDUM BY BENDER, P.J.E.:                        FILED APRIL 23, 2015

     Appellant, Robert Lellock, appeals from the judgment of sentence of an

aggregate term of 32-64 years’ incarceration, imposed following his

conviction for multiple sexual offenses against minors committed while he

worked as a security guard at a Pittsburgh middle school. He presents three

questions for our review.   First, Appellant claims the trial court abused its

discretion when it admitted other-bad-acts evidence. Second, he challenges

the discretionary aspects of his sentence. Third, he contends that the trial

court erred in designating him as a Sexually Violent Predator (SVP). After

careful review, we affirm in part, vacate in part, and remand for

resentencing.

     The trial court briefly summarized the facts adduced at trial as follows:
J-A07001-15


     [T]he evidence presented at trial established that Arthur Rooney
     Middle School, located on the North Side of the City of
     Pittsburgh, opened for the 1998-1999 school year. At that time
     [Appellant], a Pittsburgh School Police Officer, would patrol the
     school and assist with various disciplinary matters. [Appellant]
     was observed by several teachers frequently taking male
     students out of class, including the four (4) victims herein:
     Shawn Logan, Jeffrey Waldenmeyer, Chris O'Keefe and David
     Jankowski. Upon taking the boys out of class, [Appellant] would
     take them to a janitor's closet where he would touch their
     nipples and penises through and underneath their clothing.
     Particularly with regard to Shawn Logan, [Appellant] would
     masturbate the boy's penis until he ejaculated and make the boy
     do the same to him. On several occasions, [Appellant] made
     him "kiss" the head of his penis, and when the child did so, he
     would force his penis into his mouth. In order to ensure Logan's
     silence, he threatened the child with violence against him and his
     family and also threatened criminal prosecution for stolen credit
     cards Logan had in his possession the first time they met.

Trial Court Opinion (TCO), 7/15/14, at 1-2.

     Appellant was arrested on September 19, 2012.          On November 21,

2012, the Commonwealth charged him, by criminal information, with

numerous sexual offenses arising from his sexual assault of the four victims,

although many of the charges were withdrawn or dismissed prior to trial.

Ultimately, Appellant proceeded to a jury trial on July 22, 2013, facing nine

charges at CP-02-CR-0013778-2012, and four charges at CP-02-CR-

0003936-2013. The jury convicted Appellant on all counts.

     On October 22, 2013, the trial court held an SVP hearing, at which the

court deemed Appellant to be an SVP.          Immediately thereafter, the trial

court sentenced Appellant for the following offenses at CP-02-CR-0013778-

2012:




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       count 2 - involuntary deviate sexual intercourse (IDSI) (victim under

        16), 18 Pa.C.S. § 3123(a)(7), 10-20 years’ incarceration;

       count 10 - endangering the welfare of children (EWOC), 18 Pa.C.S. §

        4304(a), 3½-7 years’ incarceration;

       count 11 - corruption of minors (COM), 18 Pa.C.S. § 6301(a)(1), 2½-5

        years’ incarceration;

       count 13 - EWOC, 3½-7 years’ incarceration; and

       count 15 - COM, 2½-5 years’ incarceration.

Additionally, at CP-02-CR-0003936-2013, Appellant was sentence at count 2

to 10-20 years’ incarceration for IDSI. The trial court ordered each of these

sentences to run consecutively to one another, resulting in an aggregate

sentence of 32-64 years’ incarceration.1

        Post-sentence motions were not initially filed. However, on November

15, 2013, the trial court permitted Appellant to file a post-sentence motion

nunc pro tunc following the appointment of current counsel from the

Allegheny County Public Defender’s office. The trial court denied that motion

on December 3, 2013, and Appellant filed a timely notice of appeal on

December 20, 2013. Pursuant to an order to do so as issued by the trial

court, Appellant filed a timely Pa.R.A.P. 1925(b) statement of errors



____________________________________________


1
  Each of these sentences was also the statutory maximum penalty for the
corresponding offense.



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complained of on appeal. The trial court issued its Rule 1925(a) opinion on

July 14, 2014.

       Appellant now presents the following questions for our review:

        I.    Did the lower court abuse its discretion when it admitted
              evidence of alleged behavior of [] Appellant pertaining to
              Robert Shannon, as the evidence was irrelevant,
              noncriminal, and non-probative, yet highly prejudicial?

       II.    Did the lower court abuse its discretion when it sentenced
              [] Appellant to a manifestly excessive and unreasonable
              period of thirty-two to sixty-four years of incarceration?

      III.    Did the lower court err when determined clear and
              convincing evidence existed to find [] Appellant was a
              [SVP]?

Appellant’s Brief at 6. Additionally, Appellant challenges the legality of his

sentence, a claim he first raised in a post-submission communication that he

filed pursuant to Rule 2501(a).2

       Appellant’s first claim concerns the admission of other-bad-acts

evidence. The trial court describes the evidence in question as follows:



____________________________________________


2
  In Appellant’s 1925(b) statement, he also challenged his convictions based
on the Commonwealth’s purported failure to file within the time period set
by statute of limitations for the charged offenses. As is apparent from the
facts and procedural history of this case, Appellant was not arrested and/or
charged for the offenses committed against the four victims for more than a
decade after the underlying criminal conduct allegedly occurred. However,
Appellant has abandoned this claim as it is not raised his brief. Although the
relevant statute of limitations in effect in 1999 expired prior to Appellant’s
arrest, that statute had twice been extended such that the charges were
timely filed in this case. See TCO, at 2-5 (explaining the effects of the
extensions/amendments to the pertinent statute of limitations in this case).



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           At trial, the Commonwealth averred that [Appellant] would
     pull male students out of class and take them into a closet at the
     school where he would then sexually assault them.             The
     Commonwealth presented the testimony of Ronald Zangaro, the
     principal of Arthur Rooney Middle School at the time of the
     events in question. Mr. Zangaro testified that on May 28, 1999,
     he was making his customary round of the school shortly before
     dismissal when he heard voices and saw light coming from a
     storage closet on the 3rd floor. He opened the door and found
     student Robert Shannon in the closet with [Appellant], though
     they were both clothed and not touching at the time. Mr.
     Zangaro questioned Robert Shannon in the presence of
     [Appellant], and Shannon denied any inappropriate conduct.
     [Appellant] was then permitted to walk Shannon back to class.
     [Appellant] explained the incident by stating that Shannon was
     his confidential informant and had challenged him to a test of
     strength, so they were preparing to wrestle.

TCO, at 5-6.

     Appellant contends this evidence was not admissible under any

exception to the rule against other-bad-acts evidence, that its probative

value was outweighed by its prejudicial effect and, therefore, that the trial

court abused its discretion when it admitted it over Appellant’s objection.

Notably, Robert Shannon died more than a decade prior to Appellant’s trial.

Appellant argues that this fact left him “unable to combat the jury’s worst

possible assumptions regarding the incident.” Appellant’s Brief at 22.

     In reviewing Appellant’s claim, we adhere to the following standards:

     With regard to the admission of evidence, we give the trial court
     broad discretion, and we will only reverse a trial court's decision
     to admit or deny evidence on a showing that the trial court
     clearly abused its discretion. An abuse of discretion is not
     merely an error in judgment, but an overriding misapplication of
     the law, or the exercise of judgment that is manifestly
     unreasonable, or the result of bias, prejudice, ill-will or partiality,
     as shown by the evidence or the record.


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Commonwealth v. Flamer, 53 A.3d 82, 86 (Pa. Super. 2012) (internal

citations and quotation marks omitted).

      “Under the Pennsylvania Rules of Evidence, evidence of other bad acts

or crimes that are not currently being prosecuted against the defendant are

not admissible against the defendant to show his bad character or propensity

to commit criminal acts.”    Id. at 87 (citing Pa.R.E. 404(b)).     “However,

evidence of other crimes may be admissible where that evidence is used for

some other purpose.” Id. Such purposes explicitly include “proving motive,

opportunity, intent, preparation, plan, knowledge, identity, absence of

mistake, or lack of accident.” Rule 404(b)(2). Case law recognizes similar

(or more specific) purposes under Rule 404(b)(2) that also overcome the

general ban on evidence of other bad acts, such as “a common scheme, plan

or design embracing the commission of two or more crimes so related to

each other that proof of one tends to prove the others[.]” Commonwealth

v.   Brookins,   10   A.3d   1251,   1256   (Pa.   Super.   2010)    (quoting

Commonwealth v. Collins, 703 A.2d 418, 422-23 (Pa. Super. 1997)).

Here, the trial court admitted the Shannon-related evidence because it

demonstrated “a common scheme regarding [Appellant’s] removing male

students from their classrooms and bringing them into closets within the

school.” TCO, at 7.

      Appellant presents several arguments why the Shannon incident did

not fall under the common scheme/plan exception. We agree with Appellant

that the trial court’s admitting of this evidence under the common

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scheme/plan exception is at least questionable in light of the fact that there

was no evidence that Shannon had been victimized by Appellant in a manner

similar to the victims in this case.    Indeed, there is no evidence that the

Shannon incident involved any criminal conduct at all.         However, further

analysis of the trial court’s error in this regard is unnecessary.

      The Commonwealth asserts that even if the Shannon-related evidence

was erroneously admitted, any such error was harmless. We agree.

      [A]n error may be harmless where the properly admitted
      evidence of guilt is so overwhelming and the prejudicial effect of
      the error is so insignificant by comparison that it is clear beyond
      a reasonable doubt that the error could not have contributed to
      the verdict.     Under this approach, a reviewing court first
      determines whether the untainted evidence, considered
      independently of the tainted evidence, overwhelmingly
      establishes the defendant's guilt. If honest, fair minded jurors
      might very well have brought in not guilty verdicts, an error
      cannot be harmless on the basis of overwhelming evidence.
      Once the court determines that the evidence of guilt is
      overwhelming, it then decides if the error was so insignificant by
      comparison that it could not have contributed to the verdict.

Commonwealth v. Story, 383 A.2d 155, 166 (Pa. 1978) (internal citations,

quotation marks, and footnotes omitted).

      In this case, the Commonwealth presented the untainted testimony of

four victims who testified to having been sexually assaulted by Appellant in

strikingly similar circumstances, at the same school, and during the same

school year.   Each victim testified that Appellant had removed them from

their normal school day, took them to secluded closets in the school, and

then proceeded to molest them.          While this case lacked any physical



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J-A07001-15



evidence of note, the combined effect of the four victims’ testimony

constituted overwhelming evidence of guilt. It is simply implausible that all

four victims had concocted such similar allegations, more than a decade

after the molestations occurred, in a concerted effort to frame Appellant.

      We must consider the effect of the ‘tainted’ evidence in this context.

To the extent that the Shannon-related evidence appears to point to a

common scheme or plan, it was merely cumulative of the far more powerful

testimony provided by the four victims. The fact that the Shannon-related

evidence did not present prior criminal or bad conduct may very well have

rendered it inadmissible under Rule 404.      However, the Shannon-related

evidence was not significantly prejudicial to Appellant for the same reason.

Appellant complains that the jury was permitted to assume the worst from

this evidence. However, such prejudice is wholly speculative. On its face,

there was no “bad” or “criminal” conduct presented by the Shannon-related

evidence.

      Appellant cites Commonwealth v. Miles, 846 A.2d 132 (Pa. Super.

2004), in support of his assertion that admission of the Shannon-related

evidence was not harmless error. We find Miles easily distinguishable from

the facts of the instant case.    In Miles, the appellant was convicted of

separately robbing Jones and Philip. The inadmissible evidence in question

was that pertaining to a third robbery, of Siebert, which Miles had allegedly

committed near to where Jones and Philip had been robbed.                After

concluding that the evidence of the third robbery was inadmissible under

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J-A07001-15



several Rule 404(b) theories, the Miles court also concluded that admission

of evidence of the robbery of Siebert was not harmless error, reasoning as

follows:

             The evidence of Miles's guilt consisted entirely of the
      testimony of the two victims, Jones and Philip, who each
      identified Miles as the perpetrator, and who indicated that they
      were robbed within a short period of time in the same
      geographic vicinity.    Jones's and Philip's descriptions of the
      perpetrator's appearance were not distinctive and did not
      demonstrate that the robberies were conducted in a unique
      fashion such that the perpetrator's method could be termed a
      “signature.” No other evidence was presented to link the Jones
      and Philip robberies or to establish that Miles was the
      perpetrator of each robbery.

             On the other hand, Siebert's testimony that he was robbed
      in the same location as Philip provided an additional, compelling
      fact from which the jury could have inferred and concluded that
      Miles committed the Jones and Philip robberies two days earlier.
      Thus, Siebert's testimony concerning the subsequent robbery
      was clearly prejudicial to Miles. Although the evidence provided
      by Jones and Philip was substantial, it was outweighed by the
      prejudice resulting from the compelling but erroneously admitted
      evidence of the subsequent robbery of Siebert. We cannot
      conclude that the erroneous admission of Siebert's testimony
      could not have contributed to the verdict. Accordingly, the error
      in admitting Siebert's testimony was not harmless.

Miles, 846 A.2d at 138.

      As noted above, and unlike what occurred in Miles, the Shannon-

related testimony was not, at least on its face, evidence of another crime.

Moreover, in Miles, the identity of the perpetrator was in doubt in a manner

that was not analogous to the instant case. The victims in Miles, Jones and

Philip, gave general descriptions of their respective assailants, and did not

specifically identify Miles until two day after the robberies. Here, however,


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J-A07001-15



Appellant’s identity was known to the victims at the time they were

molested. Consequently, the possibility of mistaken identity was not present

in this case as it was in Miles. Additionally, it is also significant that in

Miles, two ‘untainted’ witnesses testified, whereas in this case, there were

four.    As a result, we conclude that Miles is neither compelling nor

persuasive on the question of whether admission of the Shannon-related

evidence was harmless error. Accordingly, we conclude that Appellant is not

entitled to relief on this claim.

        Next,   Appellant   contends    that    his    sentence   of     32-64   years’

incarceration was manifestly unreasonable, a claim that questions the

discretionary aspects of his sentence.            However, in a post-submission

communication,      filed   by   permission    after   Appellant’s     oral   argument,

Appellant also asserts that his sentence is illegal.          Because a successful

illegal sentencing claim would render Appellant’s discretionary aspects of

sentencing claim moot, we will first address the legality of his sentence to

preserve judicial economy.

        “Legality of sentence questions are not waivable and may be raised

sua sponte by this Court.” Commonwealth v. Watley, 81 A.3d 108, 118

(Pa. Super. 2013) appeal denied, 95 A.3d 277 (Pa. 2014).                  Furthermore,

“[a]pplication of a mandatory minimum sentence gives rise to illegal

sentence concerns, even where the sentence is within the statutory limits.”

Id.




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       Recently, in Commonwealth v. Wolfe, 106 A.3d 800 (Pa. Super.

2014), this Court recognized the unconstitutionality of 42 Pa.C.S. § 9718

based on the rule announced by the United States Supreme Court in

Alleyne v. United States, 133 S.Ct. 2151 (2013). The Alleyne Court held

as a general rule that any fact that served to aggravate the minimum

sentence for an offense must be found by the jury under a reasonable doubt

standard of proof. The Wolfe court followed previous decisions of this court

striking down similar mandatory minimum statutes. See Commonwealth

v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc) (striking down 42

Pa.C.S. § 9712.1); Commonwealth v. Valentine, 101 A.3d 801 (Pa.

Super. 2014) (same).3 The Wolfe Court specifically held that: “As Section

9718 is indistinguishable from the statutes struck down in Newman and

Valentine, we are constrained to conclude that Section 9718 is also facially

void.” Wolfe, 106 A.3d at 806.

       In the present case, Appellant was sentenced under the mandatory

minimum sentencing provision of Section 9718 for both IDSI offenses for

which he was convicted. Because Section 9718 is constitutionally unsound

and facially invalid under Wolfe, we vacate Appellant’s IDSI-related

sentences and remand for resentencing on those counts.      Accordingly, we


____________________________________________


3
  Immediately after Wolfe was decided, this Court also struck down 18
Pa.C.S. § 7508 in Commonwealth v. Vargas, 108 A.3d 858 (2014) (en
banc), based on Alleyne.



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decline to address Appellant’s discretionary aspects of sentencing claim at

this time, without prejudice to Appellant’s ability to raise such a claim

following resentencing.

      Finally, Appellant   contends that the       trial court erred when it

determined that he was an SVP.      Our standard for reviewing a sufficiency

challenge to an SVP determination is as follows:

      If a person appeals an SVP designation and contends the
      evidence supporting that designation was insufficient, our
      standard of review is clear. We do not weigh the evidence
      presented to the sentencing court and do not make credibility
      determinations.  Instead, we view all the evidence and its
      reasonable inferences in a light most favorable to the
      Commonwealth. We will disturb an SVP designation only if the
      Commonwealth did not present clear and convincing evidence to
      enable the court to find each element required by the SVP
      statutes.

Commonwealth v. Feucht, 955 A.2d 377, 381-82 (Pa. Super. 2008)

(internal citations omitted).   The clear and convincing standard of proof

applied by the trial court does not require proof beyond a reasonable doubt.

It requires “evidence that is so clear, direct, weighty, and convincing as to

enable the [trier of fact] to come to a clear conviction, without hesitancy, of

the truth of the precise facts [in] issue.” Commonwealth v. Maldonado,

838 A.2d 710, 715 (Pa. 2003).

            This Court has explained the SVP determination process as
      follows:




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          After a person has been convicted of an offense listed in
          [42 Pa.C.S.A. § 9799.14], the trial [court] then orders an
          assessment to be done by the [SOAB][4] to help determine
          if that person should be classified as a[n SVP. An SVP] is
          defined as a person who has been convicted of a sexually
          violent offense ... and who [has] a mental abnormality or
          personality disorder that makes the person likely to
          engage in predatory sexually violent offenses. In order to
          show that the offender suffers from a mental abnormality
          or personality disorder, the evidence must show that the
          defendant suffers from a congenital or acquired condition
          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. Moreover, there must be a showing that the
          defendant's conduct was predatory.... Furthermore, in
          reaching a determination, we must examine the driving
          force behind the commission of these acts, as well as
          looking at the offender's propensity to reoffend, an opinion
          about which the Commonwealth's expert is required to
          opine. However, the risk of re-offending is but one factor
          to be considered when making an assessment; it is not an
          independent element.

        Commonwealth v. Stephens, 74 A.3d 1034, 1038–1039 (Pa.
        Super. 2013) (internal quotation marks, ellipsis, and citations
        omitted).

Commonwealth v. Hollingshead, 2015 WL 745709, *1-*2 (Pa. Super.

2015).

        Appellant first contends that “the Commonwealth failed to present

sufficient evidence to prove [that he] has a mental defect or abnormality”

necessary to designate him as an SVP.              The Commonwealth’s expert, Dr.

Allan Pass, testified that Appellant’s pertinent mental defect or abnormality

____________________________________________


4
    Sexual Offenders Assessment Board.



                                          - 13 -
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was that of “paraphilia not otherwise specified [(NOS)].” N.T., 10/22/13, at

9. Appellant argues:

     Dr. Pass defined someone with paraphilia NOS as "an individual
     [that] has engaged in behavior — sexual misconduct behavior
     over a period of time of at least six months which has created
     concerns and conflict, social conflict, personal conflict for
     himself." Dr. Pass added, "And obviously the case here is that
     we have an adult who is engaged in sexual misconduct with
     juvenile males over the course of approximately one year and six
     months."

            Using the crimes for which he was charged with and found
     guilty of as a guide - the claim that Mr. Lellock engaged in
     sexual misconduct for a year cannot be credited. Dr. Pass
     testified the "six months or longer" term of misconduct is not
     only necessary to fit the paraphilia NOS definition, but "any of
     the paraphilias require that the behavior that's under
     examination extend for six months or longer."

           Shawn Logan testified that Mr. Lellock first abused him in
     the summer of 1998. Logan was expelled from Rooney Middle
     School on February 1, 1999. Parties agreed that Shawn Logan
     enrolled at Rooney Middle School on September 8, 1998. All
     abuse alleged by Logan likely occurred within the five month
     period between September 1, 1998, and February 1, 1999.3

                                   ____
        3
          At the October 19, 2012, Preliminary Hearing, Mr. Logan
        guessed the first event occurred "a month before school
        started."   Granting Logan an entire month before the
        beginning of school would bring the farthest possible date
        of that encounter to August 8, 1998. Six months from
        then was February 8, 1999, seven days after Logan's
        expulsion. The Preliminary Hearing transcript is not part of
        the record, yet Dr. Pass testified to reviewing it when
        forming his opinion.
                               ___

          David Jankowski testified that he began at Rooney Middle
     in 1998, "a month or two after it opened." Jankowski did not
     remember when his first contact with Mr. Lellock was, only that


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J-A07001-15


     "it was probably in like October, November, or December." (TT
     191). He additionally could not remember the date of the final
     incident with Mr. Lellock he testified to, but stated, "It was cold
     out. Maybe October, December." Asked if it could have been
     January, he responded, "Yeah." Granting Jankowski the entire
     October to January timeframe, still only [four months had
     elapsed.]

           Christopher O'Keefe did not testify to a specific date, or
     even range of dates beyond when he attended Rooney Middle
     School, when his single claim of abuse occurred. Additionally,
     Jeffery Waldenmyer could not provide an exact time frame in
     which the one event leading to his accusation of sexual assault
     occurred. When asked when this occurred, he testified, "Man, its
     13 or 14 years ago. I think it could be 7th or 8th [grade]. I ain't
     going to lie. It could be. But I think 8th. My honest answer
     would be 8th, but I can't be official." Waldenmyer's 8th grade-
     year was September 8, 1998, to June 18, 1999. Therefore June
     1999, to January 2000, must be excluded from any calculation.

           Granting Logan and Jankowski the benefit of all inferences
     made in their testimony only provides a five month offense
     cycle. Neither Waldenmyer nor O'Keefe could remember, even
     within a year's period of time, when the events leading to their
     accusations occurred. The 18 month period used by Dr. Pass is
     not supported by any evidence from the trial or in the record. In
     fact, Dr. Pass testified that he did not review the trial transcript
     before making his assessment.            When asked on cross-
     examination, "if the testimony shows that it was less than a six-
     month window cumulative, all four, then we are missing a prong
     of the SVP?" Dr. Pass answered, "That's correct."

Appellant’s Brief, at 36-38 (citations to the SVP hearing record omitted).

Thus, Appellant argues that there was not sufficient evidence presented by

the Commonwealth that Appellant engaged in sexual misconduct for at least

six months, a finding which is necessary to the diagnosis of paraphilia NOS

which laid the foundation for Appellant’s SVP designation.

     The Commonwealth disagrees, and cites evidence demonstrating that

Appellant engaged in sexually inappropriate behavior over a period of time in


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excess of six months with victim Shawn Logan. Mr. Logan testified at trial

that Appellant first grabbed his penis in an incident that occurred before the

school year began in the summer of 1998. N.T., 7/23/13, at 53. Mr. Logan

also testified that after February 1, 1999 (the date Mr. Logan was expelled

from the school), Appellant picked him up in his police cruiser and attempted

to solicit oral sex from Logan. Id. at 73.

      Appellant admits that Logan’s testimony reveals that the first incident

of abuse could have occurred as early as August 8, 1998.           It is also

reasonable to assume that events that occurred after Logan’s expulsion did

not occur the same day he was expelled, which was on February 1, 1999.

Logan did not testify with any specificity regarding the latter date, however,

he also did not provide any indication that the last incident with Appellant

occurred immediately after he was expelled. If the final incident occurred on

or after February 8, Dr. Pass’ determination that Appellant engaged in

sexually inappropriate behavior with Logan for at least six months is

supported by the record.

      Although we agree with Appellant that the record does not support Dr.

Pass’ estimate of 18 months, it appears to us that it is a reasonable

conclusion that Appellant abused Logan for at least 6 months, and it is a

duration of 6 months, not 18 months, that was relevant to Dr. Pass’

diagnosis that supported Appellant’s SVP designation. It is also fair to say,

however, that there is a possibility that the abuse may have occurred over a

period that fell just short of 6 months. However, viewing the “evidence and

                                    - 16 -
J-A07001-15



its reasonable inferences in a light most favorable to the Commonwealth,”

we are constrained to reject Appellant’s claim that there was insufficient

evidence that Appellant’s sexual abuse of his victims exceeded 6 months in

duration.     Hollingshead, supra.             It was reasonable to infer from the

evidence of record that at least 6 months passed between Appellant’s first

and last inappropriate contacts with Logan.               We may not revisit the trial

court’s decision by reweighing the evidence. It is enough that the evidence

of record, and reasonable inferences derived therefrom, supported the SVP

designation and its underlying mental abnormality/defect diagnosis.               It is

simply not relevant under our standard of review that an alternative

conclusion regarding whether the criteria for the diagnosis had been met is

also supported by the record.

       Appellant also asserts that “the Commonwealth failed to show, even if

the paraphilia NOS diagnosis is accurate, the presence of clear and

convincing evidence to establish that the diagnosis makes [Appellant] likely

to engage in future predatory sexual behavior.”               Appellant’s Brief, at 39.

Similarly, he asserts that the “Commonwealth failed to analyze, discuss, or

prove the likelihood [that Appellant] would reoffend.” Id. at 40. Appellant

did not raise a claim concerning Appellant’s future dangerousness in his Rule

1925(b)     statement.           Consequently,     this     matter   waived.5      See

____________________________________________


5
  In Appellant’s Rule 1925(b) statement, he asserted that the
Commonwealth had failed to prove by clear and convincing evidence that he
(Footnote Continued Next Page)


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Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998) (“Any issues not

raised in a 1925(b) statement will be deemed waived.”).

      Sentences for IDSI are vacated. Judgment of sentence affirmed in

all other respects.       Case remanded for resentencing for IDSI convictions.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/23/2015




                       _______________________
(Footnote Continued)

engaged in sexually predatory behavior and/or that he suffered from a
mental abnormality. Appellant’s Rule 1925(b) statement, 3/11/14, at 6 ¶ d.
There is no mention of a challenge to the trial court’s determination
regarding Appellant’s likelihood to reoffend.



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