J-A27036-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                            IN THE SUPERIOR COURT OF
                                                              PENNSYLVANIA
                            Appellee

                       v.

RONALD MORGAN

                            Appellant                        No. 996 WDA 2014


      Appeal from the Judgment of Sentence entered February 19, 2014
                In the Court of Common Pleas of Butler County
              Criminal Division at No: CP-10-CR-0000991-2011


BEFORE: BOWES, OLSON, and STABILE, JJ.

MEMORANDUM BY STABILE, J.:                              FILED DECEMBER 17, 2015

       Appellant, Ronald Morgan, appeals from the judgment of sentence

entered in the Court of Common Pleas of Butler County on February 19,

2014 following his conviction of various sexual offenses and designation as a

sexually violent predator (SVP).               Appellant asserts lack of jurisdiction,

insufficiency of evidence, and evidentiary error.               Following review, we

affirm.1



____________________________________________


1
  On December 14, 2015, Assistant District Attorney William T. Fullerton of
the Butler County District Attorney’s Office filed a motion to withdraw in light
of his impending departure from the District Attorney’s Office effective
January 4, 2016. The motion is denied in light of our contemporaneous
disposition of this matter.
J-A27036-15


      Following a three-day jury trial in May 2013, Appellant was convicted

of two counts of involuntary deviate sexual intercourse (IDSI), one count

each of statutory sexual assault, aggravated indecent assault, and indecent

assault,       104     counts       of        sexual      abuse     of     children

(photographing/videotaping/depicting on computer or filming sexual acts),

104   counts    of   sexual   abuse      of   children   (viewing/possessing   child

pornography), one count each of endangering the welfare of children and

corruption of minors, and two counts of misdemeanor possessory drug

offenses. With the exception of the drug convictions, all convictions involved

offenses committed against the daughter (victim) of one of Appellant’s

friends, beginning when the victim was approximately eleven or twelve and

continuing until she was fifteen.

      Appellant was sentenced to an aggregate term of not less than 182

months and not more than 364 months in prison. He also was determined

to be an SVP.        Following denial of his amended post-sentence motion,

Appellant filed a timely appeal in which he asks this Court to consider the

following five issues, which we have reordered for ease of discussion:

      1. Whether the trial court had jurisdiction over this case when
         none of the crimes or any overt act relating to any of the
         crimes charged in this case occurred in Butler County?

      2. Whether the evidence adduced at trial was insufficient to
         convict Appellant [] of Count 1 and Count 2, both of which
         charged [IDSI], because the evidence was legally insufficient
         to prove penetration, however slight?




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      3. Whether the evidence was insufficient to prove Counts 6-213
         because the trial evidence was insufficient to prove that a
         child was depicted in the photographs and videos and
         because there was no testimony at trial that correlated the
         admitted Commonwealth exhibits, the photographs and
         videos, to specific counts of the Information?

      4. Whether the trial court erred in failing to rule on the Motion to
         Offer Evidence of Victim’s Sexual Conduct Pursuant to 18
         Pa.C.S.A. § 3104 thereby wrongfully denying [Appellant] the
         opportunity to confront and effectively cross-examine the
         alleged victim in this case?

      5. Whether the Commonwealth failed to prove that [Appellant]
         was a sexually violent predator because the evidence was
         insufficient to prove that he possessed a mental abnormality
         and it ignored other factors that did not support such a
         determination?

Appellant’s Brief at 6-7.

      Appellant’s first issue appears to assert a challenge to the Butler

County trial court’s jurisdiction over the case based on the fact none of the

crimes or overt acts for which Appellant was convicted took place within

Butler County.   Although phrased as a jurisdictional challenge, Appellant’s

concise statement pursuant to Pa.R.A.P. 1925(b) frames this issue as a

challenge to venue.    The trial court found that Appellant never challenged

venue prior to raising it in his 1925(b) statement, resulting in waiver. Trial

Court Opinion (T.C.O.), 5/23/14, at 5 (citing Commonwealth v. Kelley,




                                     -3-
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664 A.2d 123, 126 (Pa. Super. 1995)).2 Even if not waived, Appellant is not

entitled to relief on either jurisdictional or venue grounds.

       This Court has recognized that “[a]ll courts of common pleas have

statewide subject matter jurisdiction in cases arising under the Crimes

Code.”    Commonwealth v. Miskovitch, 64 A.3d 672, 688 (Pa. Super.

2013) (quoting Commonwealth v. Bethea, 828 A.2d 1066, 1074 (Pa.

2003)). The Court of Common Pleas of Butler County unquestionably had

jurisdiction over Appellant’s case. Therefore, as in Miskovitch, “Appellant's

claim only challenges the procedural aspect of venue, as it is clear that [the

county where the charges were brought] would have subject matter

jurisdiction even over violations of the Crimes Code committed exclusively

and/or entirely within [another county].” Id.

       Concerning venue, Appellant argues his convictions should be reversed

because the criminal conduct for which he was convicted “occurred in

counties other than Butler County or [occurred] out of state.”     Appellant’s

Brief at 19. “Venue is predominately a procedural matter that ‘relates to the

right of a party to have the controversy brought and heard in a particular

judicial district.’” Miskovitch, 64 A.3d at 688 (quoting Bethea, 828 A.2d at

1074). While it is true that the majority of acts of sexual abuse took place in

____________________________________________


2
  Our review of the record reveals that Appellant also raised the issue of
venue in his amended post-sentence motion. Amended Post-Sentencing
Motion at 4, ¶ 7.



                                           -4-
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Allegheny County, with others taking place in Warren County, New York City

and Atlanta, it is also true, as the trial court recognized, that “Butler County

[was] the location from which [Appellant] would often transport the minor

victim prior to abusing her, [and] the testimony of Trooper Birckbichler

revealed that certain photographs of the minor victim were likely taken in

Butler County.” T.C.O., 5/23/14, at 5.

      In Miskovitch, this Court stated:

      Because Appellant's venue claim is exclusively procedural in
      nature, we look to Pa.R.Crim.P. 109 for guidance. Rule 109
      provides that:

         A defendant shall not be discharged nor shall a case be
         dismissed because of a defect in the form or content of a
         complaint, citation, summons, or warrant, or a defect in
         the procedures of these rules, unless the defendant raises
         the defect before the conclusion of the trial in a summary
         case or before the conclusion of the preliminary hearing in
         a court case, and the defect is prejudicial to the rights of
         the defendant.

      Pa.R.Crim.P. 109 (emphasis added).

      Thus, even assuming that venue was improper, Appellant must
      demonstrate prejudice in order to be entitled to relief, at least
      where, as was true in this case, the choice of venue is purely
      procedural, and not jurisdictional in nature. Indeed, the purpose
      of venue, apart from the manner in which it relates to subject
      matter jurisdiction, is a matter of convenience to the litigants.
      See Bethea, 828 A.2d at 1074–75 (“[V]enue pertains to the
      locality most convenient to the proper disposition of a matter[.]”.

Id. at 689.

      Appellant   has   not   demonstrated—or     even   suggested—that     any

procedural defect was prejudicial to his rights.    Nor did Appellant raise a


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“defect” prior to the conclusion of the preliminary hearing, as required by

Pa.R.Crim.P. 109.3 Appellant is not entitled to relief on his first issue.

       In his second and third issues, Appellant contends the evidence was

insufficient to support his convictions on Counts 1 and 2 (IDSI) and on

Counts 6 through 213 (sexual abuse of children).         In Commonwealth v.

Segida, 985 A.2d 871 (Pa. 2009), our Supreme Court explained:

       When reviewing a challenge to the sufficiency of the evidence,
       we must determine if the Commonwealth established beyond a
       reasonable doubt each of the elements of the offense,
       considering the entire trial record and all of the evidence
       received, and drawing all reasonable inferences from the
       evidence in favor of the Commonwealth as the verdict-winner.
       Commonwealth v. Pruitt, 597 Pa. 307, 951 A.2d 307, 313
       (2008). The Commonwealth may sustain its burden of proof by
       wholly circumstantial evidence. Commonwealth v. Kennedy,
       598 Pa. 621, 959 A.2d 916, 921 (2008), cert. denied, [556 U.S.
       1258], 129 S.Ct. 2433, 174 L.Ed.2d 229 (2009).

Id. at 880. Further, “we may not substitute our judgment for that of the

fact finder; thus, so long as the evidence adduced, accepted in the light

most favorable to the Commonwealth, demonstrates the respective elements

of a defendant’s crimes beyond a reasonable doubt, the appellant’s

convictions will be upheld.” Commonwealth v. Rahman, 75 A.3d 497, 501

____________________________________________


3
  Had Appellant timely challenged venue, the Commonwealth would have
borne the burden of proof—by a preponderance of the evidence—to
demonstrate venue was proper in Butler County. See Commonwealth v.
Gross, 101 A.3d 28, 33 (Pa. 2014).        Even if Appellant successfully
challenged venue, the remedy would have been to transfer venue, not
dismiss the case. Id. at 36.




                                           -6-
J-A27036-15


(Pa. Super. 2013) (quoting Commonwealth v. Pettyjohn, 64 A.3d 1072,

1075 (Pa. Super. 2013) (additional citations omitted)).

       Appellant’s first sufficiency challenge is to Counts 1 and 2, both of

which involved claims of IDSI. IDSI is defined, inter alia, as follows:

       A person commits a felony of the first degree when the person
       engages in deviate sexual intercourse with a complainant:


                                          ***
       (7) who is less than 16 years of age and the person is four or
       more years older than the complainant and the complainant and
       person are not married to each other.

18 Pa.C.S.A. § 3123(a)(7).4           “Deviate sexual intercourse” is defined as

follows:

       Sexual intercourse per os or per anus between human beings
       and any form of sexual intercourse with an animal. The term
       also includes penetration, however slight, of the genitals or anus
       of another person with a foreign object for any purpose other
       than good faith medical, hygienic or law enforcement
       procedures.

18 Pa.C.S.A. § 3101.

       Appellant argues the evidence was insufficient to establish penetration

with a foreign object warranting a conviction under Count 1 or to establish

that Appellant engaged in deviate sexual intercourse per os warranting a


____________________________________________


4
  Appellant does not contest that the victim was under the age of sixteen,
that he is four or more years older than she, or that they were not married
to each other.



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conviction under Count 2.   The record belies his assertions.   As the trial

court accurately summarized:

            The victim [], who was seventeen years old at the time of
     trial, testified that, beginning when she was eleven or twelve
     years old, she suffered an escalating course of sexual abuse at
     the hands of [Appellant] that continued until she was fifteen
     years old. Her testimony was that, at the beginning of the time
     during which the abuse occurred, [Appellant] would [lie] in bed
     with her while he was naked. She testified that [Appellant]
     would rub her “butt” and her “vagina” with his hand and or with
     “vibrators.” During many of the sexual encounters, the victim
     testified, [Appellant] would use his camera to take pictures of
     her. [Appellant] went from using adult toys and objects on the
     victim to, as the victim testified, using his mouth and his penis
     on her vagina. The abuse occurred on numerous occasions and
     at various locations, including [Appellant’s] home in Allegheny
     County, [Appellant’s] camp in Tidioute, Pennsylvania, and at
     various hotels. She testified that [Appellant] engaged in sexual
     intercourse with her, beginning at approximately age thirteen or
     fourteen. When asked by counsel for [Appellant] to describe
     what the victim meant by the term “sexual intercourse,” the
     victim replied by stating: “Touch me inappropriately to have sex
     with me whenever I didn’t want to. Rape.” The victim described
     that, on one particular occasion, [Appellant] “put himself on
     me[.] . . . He put himself on me and had sex.” When asked
     “How so[?] . . . Well, did he use his fingers? His mouth? His
     lips? His penis?,” the victim testified, “All of the above.” She
     testified that [Appellant], on that occasion, penetrated her
     vagina with his penis. On the many occasions where sexual
     abuse took place, [Appellant] was acting as a person supervising
     the welfare of the victim. In addition to the testimony of the
     victim, the Commonwealth introduced numerous explicit
     photographs and videos of the victim that were seized from
     [Appellant’s] home. The images and videos, at the minimum,
     corroborate the victim’s testimony.

     The testimony of the minor victim provides sufficient evidence
     that [Appellant], an adult, penetrated her vagina orally and with
     a foreign object at a time when she was under the age of
     sixteen. The victim’s testimony also established that [Appellant]
     penetrated her vagina digitally and with his penis. Coupled with
     the photographic and video evidence that was admitted at trial,

                                   -8-
J-A27036-15


     it cannot be maintained that the verdicts, relating to [IDSI] . . .,
     were against the weight of the evidence because the victim’s
     testimony was “incredible, vague and unworthy of belief.” In
     any case, the jury was free to believe or disbelieve the testimony
     of the victim. The jury chose to believe her testimony.

T.C.O., 5/23/14, at 2-4 (citations to Notes of Testimony omitted).

     Appellant cites Commonwealth v. Hawkins, 614 A.2d 1198 (Pa.

Super. 1992), in support of his contention that “mere kissing of the vagina

does not constitute penetration” under Pennsylvania law.      Appellant’s Brief

at 25.   In Hawkins, this Court considered the sufficiency of evidence

supporting Appellant’s conviction for attempted IDSI and stated:

     The crime of involuntary deviate sexual intercourse requires
     “some penetration however slight.” 18 Pa.C.S. §§ 3101, 3123.
     Here, Hawkins argues that the evidence only established that he
     kissed the complainant’s vagina. As such, Hawkins contends
     that the evidence was insufficient to prove that he intended to
     orally penetrate the complainant’s vagina.

     ....

     The complainant testified that Hawkins kissed her vagina. From
     this evidence, the jury could certainly infer Hawkins’s intent to
     penetrate her vagina with his tongue, or to force the act of
     cunnilingus upon her. See Commonwealth v. Vanderlin, 398
     Pa. Super. 21, 35–37, 580 A.2d 820, 828–829 (1990) (the jury
     could conclude that defendant attempted involuntary deviate
     sexual intercourse from the evidence establishing that the
     defendant touched the victim’s mouth with his penis); see also
     Commonwealth v. Westcott, 362 Pa. Super. 176, 523 A.2d
     1140 (1987) (cunnilingus is one of the acts proscribed by section
     3123 of the Crimes Code). We conclude, therefore, that the
     evidence was sufficient to support Hawkins’s conviction for
     attempted      involuntary     deviate     sexual    intercourse.
     [Commonwealth v. Fromal, 572 A.2d 711 (Pa. Super. 1990)],
     supra.

Id. at 1199-1200 (footnote omitted). This Court has since clarified that:

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      [I]n order to sustain a conviction for involuntary deviate sexual
      intercourse, the Commonwealth must establish the perpetrator
      engaged in acts of oral or anal intercourse, which involved
      penetration however slight. Commonwealth v. Poindexter,
      435 Pa. Super. 509, 646 A.2d 1211, 1215 (1994), appeal
      denied, 540 Pa. 580, 655 A.2d 512 (1995). In order to establish
      penetration,    some     oral    contact    is   required.     See
      Commonwealth v. Trimble, 419 Pa. Super. 108, 615 A.2d 48
      (1992) (finding actual penetration of the vagina is not
      necessary; some form of oral contact with the genitalia is all that
      is required). Moreover, a person can penetrate by use of the
      mouth or the tongue. See In the Interest of J.R., 436 Pa.
      Super. 416, 648 A.2d 28 (1994), appeal denied, 540 Pa. 584,
      655 A.2d 515 (1995) (stating “Deviate sexual intercourse is
      considered to have occurred if one's mouth or tongue penetrates
      the vaginal area of another”).

Commonwealth v. Wilson, 825 A.2d 710 (Pa. Super. 2003) (quoting

Commonwealth v. L.N., 787 A.2d 1064, 1070 (Pa. Super. 2001)). While

Wilson and the cases cited therein address penetration with respect to

intercourse per os, the same principles of contact with genitalia should apply

as well to “penetration, however slight” with a foreign object, such as the

vibrators described by the victim here.

      Viewing the evidence and reasonable inferences in a light most

favorable to the Commonwealth as verdict-winner, we find the trial court

correctly determined that the Commonwealth established the elements of

IDSI beyond a reasonable doubt, warranting convictions on Counts 1 and 2.

Appellant’s second issue fails for lack of merit.

      In his third issue, Appellant argues the evidence was insufficient to

support his convictions under Counts 6 through 213, i.e., 104 counts of

sexual    abuse    of   children    under     18    Pa.C.S.A.   §   6312(b)(2)

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J-A27036-15


(photographing/videotaping/depicting on computer or filming sexual acts)

and 104 counts of sexual abuse of children under 18 Pa.C.S.A. § 6312(d)

(viewing/possessing child pornography).

       Pursuant     to   Section    6312(b)(2),    “Any   person   who   knowingly

photographs, videotapes, depicts on computer or films a child under the age

of 18 years engaging in a prohibited sexual act or in the simulation of such

an act commits an offense.”           Further, pursuant to Section 6312(d), “Any

person who intentionally views or knowingly possesses or controls any book,

magazine, pamphlet, slide, photograph, film, videotape, computer depiction

or other material depicting a child under the age of 18 years engaging in a

prohibited sexual act or in the simulation of such act commits an offense.”

       The trial court rejected Appellant’s claims of insufficiency to support

his convictions of child sexual abuse and accurately noted that “[t]he victim

was clearly depicted in numerous photographs and videos that were

introduced into evidence.        The victim also testified to [Appellant’s] habits

regarding the taking and downloading of pictures at or near the times the

sexual abuse took place.” T.C.O., 5/23/14, at 4. Our review of the record

leads us to conclude that the trial court correctly determined the evidence

was sufficient to support the convictions.5

____________________________________________


5
 The trial court also considered the possibility that some of the 104 images
might not have depicted the victim or might not have been taken or filmed
by Appellant, commenting:
(Footnote Continued Next Page)


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J-A27036-15


      In his fourth issue, Appellant asserts the trial court erred by failing to

conduct an in camera hearing or rule on his motion to offer evidence of the

victim’s sexual conduct under the Rape Shield Law, 18 Pa.C.S.A. § 3104. In

his brief, Appellant explains:

      At trial, the alleged victim testified that her sexual activity with
      [Appellant] began when she was approximately 11 or 12 years
      old. Defense counsel was in possession of evidence that the
      alleged victim had bragged publicly on a social media site that
      she lost her virginity when she was in the 9th grade to another
      person, not [Appellant], and that she had only had sex one time.
      This claims sexual activity occurred after the time she claims
      that she had sex with [Appellant.]

Appellant’s Brief at 42 (citations to Notes of Testimony omitted). Appellant

contends the trial court’s inaction deprived him of the right to confront his

victim, requiring a new trial.

      In Commonwealth v. K.S.F., 102 A.3d 480 (Pa. Super. 2014), a case

on which Appellant heavily relies, this Court explained:

      Our standard of review for admission of evidence of a victim's
      prior sexual conduct is as follows:

                       _______________________
(Footnote Continued)


      In any case, it is certain that there was sufficient evidence
      relating to sexual abuse of children with respect to at least some
      of the photographs and videos, and with respect to some of the
      photographs and videos, it is plain that the verdicts were not
      against the weight of the evidence. We note this because the
      sentences at Counts six through 109 were imposed concurrently
      with each other.

T.C.O., 5/23/14, at 4.



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         A trial court’s ruling on the admissibility of evidence of the
         sexual history of a sexual abuse complainant will be
         reversed only where there has been a clear abuse of
         discretion. An abuse of discretion is not merely an error of
         judgment, but if in reaching a conclusion the law is
         overridden or misapplied or the judgment exercised is
         manifestly unreasonable, or the result of partiality,
         prejudice, bias, or ill will, as shown by the evidence or the
         record, discretion is abused.

Id. at 483 (quoting Commonwealth v. Holder, 815 A.2d 1115, 1118 (Pa.

Super. 2003) (additional citations omitted)).

      The Rape Shield Law provides as follows:

      (a)   General rule.--Evidence of specific instances of the
            alleged victim's past sexual conduct, opinion evidence of
            the alleged victim's past sexual conduct, and reputation
            evidence of the alleged victim's past sexual conduct shall
            not be admissible in prosecutions under this chapter
            except evidence of the alleged victim's past sexual
            conduct with the defendant where consent of the alleged
            victim is at issue and such evidence is otherwise
            admissible pursuant to the rules of evidence.

      (b)   Evidentiary proceedings.--A defendant who proposes to
            offer evidence of the alleged victim's past sexual conduct
            pursuant to subsection (a) shall file a written motion and
            offer of proof at the time of trial. If, at the time of trial,
            the court determines that the motion and offer of
            proof are sufficient on their faces, the court shall
            order an in camera hearing and shall make findings
            on the record as to the relevance and admissibility
            of the proposed evidence pursuant to the standards
            set forth in subsection (a).




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18 Pa.C.S.A. § 3104 (emphasis added).6

        “Although the literal language of the Rape Shield Law would appear to

bar a wide range of evidence, courts have interpreted the statute to yield to

certain constitutional considerations implicating the rights of the accused.”

K.S.F., 102 A.3d at 483 (citing Commonwealth v. Riley, 643 A.2d 1090,

1093 (Pa. Super. 1994) (right to cross-examine witnesses)). This Court

further explained:

        Evidence that tends to impeach a witness’ credibility is not
        necessarily inadmissible because of the Rape Shield Law.
        [Commonwealth v. Black, 487 A.2d 396, 401 (Pa. Super.
        1985)]. When determining the admissibility of evidence that the
        Rape Shield Law may bar, trial courts hold an in camera hearing
        and conduct a balancing test consisting of the following factors:
        “(1) whether the proposed evidence is relevant to show bias or
        motive or to attack credibility; (2) whether the probative value
        of the evidence outweighs its prejudicial effect; and (3) whether
        there are alternative means of proving bias or motive or to
        challenge credibility.” Id.

Id. at 483-84.7

        In K.S.F., the appellant was convicted of IDSI and other sexual

offenses against his stepdaughter, some occurring before she was sixteen

and some before she was thirteen. Prior to trial, the appellant filed a motion

to access his stepdaughter’s profiles on Facebook, which he could not
____________________________________________


6
  We have highlighted the second sentence of subsection (b) to underscore
the fact a hearing is required only if the trial court determines the motion
and offer of proof are sufficient on their faces.
7
    See note 5.




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otherwise access because of privacy settings. The appellant alleged one of

the   profiles   contained   impeachable      material:   specifically,   that   the

stepdaughter described herself as a virgin.         The trial court denied the

motion, finding the evidence inadmissible under the Rape Shield Law.

      On appeal, this Court vacated the judgment of sentence and remanded

with instruction to conduct an in camera hearing applying the three-prong

balancing test outlined in Black, after which the trial court could either grant

a new trial or reinstate the appellant’s judgment of sentence. The trial court

complied. At the hearing, the “[s]tepdaughter testified that when she wrote

on Facebook that she had never had sex before, she meant she had never

had consensual sex.” Id. at 482. The trial court determined the probative

value of the evidence did not outweigh its prejudicial effect and reinstated

the judgment of sentence.     On return to this Court, we reversed the trial

court’s determination, finding “the trial court erred as a matter of law in

weighing the probative value of the evidence against the prejudice of its

admission.” Id. at 484. The panel looked to our Supreme Court’s ruling in

Commonwealth v. Spiewak, 617 A.2d 696 (Pa. 1992), in which the Court

held that “rules excluding evidence cannot be mechanistically applied to

abridge a defendant’s right of confrontation by denying admission of highly

reliable and relevant evidence critical to his defense.”             Id. (quoting

Spiewak, 617 A.2d at 701).




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     In Spiewak, the victim accused her stepfather of engaging in sexual

activity prior to her sixteenth birthday. The appellant acknowledged having

sexual relations with his stepdaughter after she turned sixteen—after he and

his stepdaughter’s mother had separated, but denied any sexual contact

before she turned sixteen.   The trial court did not allow the appellant to

cross-examine the stepdaughter about a statement she made to a friend,

admitting she had one sexual relationship prior to turning sixteen that

involved an older man who was a friend of her stepfather.       The Supreme

Court reversed the appellant’s judgment of sentence, finding that applying

the Rape Shield Law violated the appellant’s constitutional rights of

confrontation and cross-examination.

     The Court recognized that the victim’s credibility was the critical issue,

id. at 698, and held:

     The statute cannot be both shield and sword. Here a statute is
     so designed to protect the witness’s interest in preventing
     prejudicial disclosure of the witness's past behavior. It cannot at
     the same time preclude a defendant from offering evidence
     which is so highly probative of the witness’s credibility that such
     evidence is necessary to allow/permit a jury to make a fair
     determination of the defendant's guilt or innocence. The statute
     must yield to a defendant's basic constitutional right.

Id. at 702.

     We find both K.S.F. and Spiewak factually distinguishable from the

case before us. In K.S.F. and Spiewak, credibility of the complaining minor

was the central issue in what can be described as “he said-she said” cases.

There was no physical evidence to support or defeat the complainants’

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J-A27036-15


claims of sexual misconduct. By contrast, here there was physical evidence

in the form of scores of photographs and videos portraying the victim

engaging in sexual activity—photographs and videos found in Appellant’s

possession.   Appellant was not prevented from cross-examining the victim

as to when the photographs or videos were taken, by whom, whether she

and/or Appellant were portrayed in them, etc. His ability to cross-examine

the victim effectively was not thwarted by precluding him from asking

Appellant about an online post that was outweighed by overwhelming

physical evidence introduced at trial.        Allowing Appellant to introduce

evidence of the victim’s online posts indicating she lost her virginity to

someone other than Appellant would not serve the same critical purpose as

allowing testimony of inconsistent statements in K.S.F. or Spiewak.          The

proposed evidence was not “so highly probative of the witness’s credibility

that such evidence [was] necessary to allow/permit a jury to make a fair

determination of the defendant's guilt or innocence.” Spiewak, 617 A.2d at

702.

       We find no abuse of discretion on the part of the trial court for

reserving its ruling on Appellant’s Rape Shield Motion until time of trial or for

its ruling during trial to the extent it precluded Appellant from impeaching

the victim or challenging her credibility by presenting evidence of sexual




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conduct between the victim and anyone other than Appellant.8          Under the

facts of the case, an in camera hearing was unnecessary, and the trial court

properly sustained the Commonwealth’s objection. Appellant is not entitled

to relief based on the Rape Shield Law.

       In his fifth and final issue, Appellant claims the trial court based

Appellant’s SVP designation on “uncharged, unfounded and incredible

evidence. Specifically, the trial court relied on false, unreliable evidence that

[Appellant] had engaged in improper conduct with another victim.            That

evidence was hearsay and patently unreliable.” Appellant’s Brief at 49.

       The trial court rejected Appellant’s claim, stating:

       [Appellant] asserts that the “factual basis for his designation as
       a sexually violent predator was based on uncharged, unfounded
____________________________________________


8
  On direct examination, the victim recalled the circumstances under which
she admitted to her adoptive father that Appellant had been abusing her.
Her adoptive father called the victim’s mother, who was out of town
attending school, and told her she should return home immediately. When
the mother returned, the victim told her about the abuse.         Notes of
Testimony (N.T.), Trial, 5/20/13, at 81-82.

On cross-examination, Appellant’s counsel asked the victim why she did not
confide in her mother about Appellant’s actions and then asked if she ever
confided in her mother on other occasions about issues involving sexual
activity. Counsel for the Commonwealth objected, arguing at sidebar there
was no notice given as required under the Rape Shield Law and noting he
objected to any further questioning about the victim’s sexual activity with
anyone other than Appellant. Appellant’s counsel replied, “I’m going to
impeachment and credibility issue, Your Honor.” The trial judge responded,
“It’s not admissible.” and instructed the jury that the witness’s response was
stricken from the record. No further questioning was conducted along those
lines and Appellant’s counsel did not raise the issue of the pre-trial motion
on which the trial court reserved its ruling. N.T. Trial, 5/20/13, at 88-89.



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     and incredible evidence.” That is not the case. While the
     uncharged conduct was considered by the [Sexual Offenders
     Assessment Board (SOAB)] evaluator, her testimony was that
     the uncharged conduct played little part in her determining that
     the [Appellant] was a sexually violent predator. She testified
     that absent the uncharged conduct, her conclusion would have
     been the same. The [c]ourt, in any event, did not rely on any
     uncharged conduct in finding the Commonwealth met its burden
     of demonstrating by clear and convincing evidence that
     [Appellant] met the criteria to be classified as a sexually violent
     predator.

T.C.O., 5/23/14, at 7.

     As this Court recognized in Commonwealth v. Prendes, 97 A.3d 337

(Pa. Super. 2014):

     A challenge to a determination of SVP status requires us to view
     the evidence:

        [i]n the light most favorable to the Commonwealth. The
        reviewing court may not weigh the evidence or substitute
        its judgment for that of the trial court. The clear and
        convincing standard 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 [at] issue.

     The scope of review is plenary. “[A]n expert's opinion, which is
     rendered to a reasonable degree of professional certainty, is
     itself evidence.” Commonwealth v. Fuentes, 991 A.2d 935,
     944 (Pa. Super. 2010) (en banc), appeal denied, 608 Pa. 645,
     12 A.3d 370 (2010) (emphasis in original).

Id. at 355-56 (some citations omitted). Further, “[a]s a general rule, [the]

standard of review of a trial court’s evidentiary ruling . . . is limited to

determining whether the trial court abused its discretion.”       Id. at 356

(quoting Commonwealth v. Dengler, 890 A.2d 372, 279 (Pa. 2005)).




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J-A27036-15


      In accordance with 42 Pa.C.S.A § 9799.24(b), an SOAB member

conducts an SVP assessment upon receipt of a court order for an

assessment.    The assessment is to include, but not be limited to, an

examination of various factors that include, inter alia, the facts of the

offenses, prior offense history, characteristics of the offender—including any

mental abnormality, and factors relating to the risk of re-offense. Id. “The

SOAB merely assesses the defendant, it does not perform an adjudicative

function.” Prendes, 97 A.3d at 357.

      To deem an individual a sexually violent predator, the
      Commonwealth must first show the individual has been
      convicted of a sexually violent offense as set forth in section
      9799.14. Secondly, the Commonwealth must show that the
      individual has a mental abnormality or personality disorder that
      makes him likely to engage in predatory sexually violent
      offenses. When the Commonwealth meets this burden, the trial
      court then makes the final determination on the defendant’s
      status as an SVP.

Id. at 357-58 (quotations, citations and brackets omitted).

      An SVP assessment is not a trial or a separate criminal
      proceeding that subjects the defendant to additional
      punishment.   SVP status, therefore, does not require proof
      beyond a reasonable doubt; the court decides SVP status upon a
      show of clear and convincing evidence that the offender is, in
      fact, an SVP.

Id. at 358 (citations omitted).

      The record reveals that the trial court conducted an SVP hearing on

February 19, 2014, during which SOAB member Julia Lindemuth testified

that her review of the provided materials led her to conclude Appellant



                                    - 20 -
J-A27036-15


suffered from a mental abnormality, i.e., paraphilia not otherwise specified

(NOS).    N.T. SVP Hearing, 2/19/14, at 10.        She explained that paraphilia

NOS “very similarly mirrors pedophilia but that is a sexual attraction to

prepubescent children.” Id. at 10. Because the offenses for which Appellant

was convicted occurred when the victim was approximately twelve to fifteen

years old, she classified it as paraphilia NOS. Id. at 10-11. She stated that

her conclusion was based on “the ongoing pattern [] of sexual abuse with

the children for several years which included fondling, oral sex, penetration,

intercourse, and pornography.” Id. at 11.9 She testified that paraphilias are

lifetime disorders, id. at 11-12, and “the likelihood over time is that he

would likely reoffend because it’s a sexual deviant disorder that does not

have a cure [] per se. Id. at 13. Finally, she explained her opinion, to a

reasonable degree of professional certainty, that Appellant met the statutory

definition of predatory, noting:

       He was a life-long trusted family friend. He had known the
       victim since birth and used that trust and status within the
       family to gain access to the victim. He spent many times alone
       with her, took her on trips, and because of that trusting family

____________________________________________


9
  Ms. Lindemuth’s reference to “children” is likely based on her review of
allegations involving “CC.” Ms. Lindemuth acknowledged that allegations
involving CC were not involved in Appellant’s trial and she was unaware of
any charges filed against Appellant by any individual other than the victim.
N.T. SVP Hearing, 2/19/14, at 21-22.        In its opinion, the trial court
confirmed that uncharged conduct was not considered in its SVP ruling.
T.C.O., 5/23/14, at 7.



                                          - 21 -
J-A27036-15


        relationship he was able to offend, and it is my opinion that that
        is predatory.

Id.10

        At the conclusion of the hearing, the trial court found “by clear and

convincing evidence that [Appellant] meets the criteria to be classified as a

sexually violent predator.” Id. at 34. Our review of the record leads us to

conclude the trial court did not abuse its discretion in designating Appellant

an SVP. Therefore, Appellant is not entitled to relief on his fifth issue.

        Each of Appellant’s issues fails for lack of merit. Therefore, we affirm

his judgment of sentence.

        Judgment of sentence affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/17/2015




____________________________________________


10
  Ms. Lindemuth testified that all of her opinions were held to a reasonable
degree of professional certainty. N.T. SVP Hearing, 2/19/14, at 13.



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