J-S07026-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

TIMOTHY WAYNE LEWIS

                            Appellant                 No. 1361 MDA 2015


             Appeal from the Judgment of Sentence April 16, 2015
               In the Court of Common Pleas of Montour County
              Criminal Division at No(s): CP-47-CR-0000241-2012


BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                FILED MARCH 14, 2016

        Timothy Wayne Lewis brings this appeal from the judgment of

sentence imposed on April 16, 2015, in the Court of Common Pleas of

Montour County. The trial court found Lewis guilty of unlawful contact with

a minor, corruption of minors, and open lewdness.1         Thereafter, the trial

court determined that Lewis was a Sexually Violent Predator (SVP) and

sentenced him to an aggregate term of 58 months to 144 months’

incarceration.2 Lewis presents three questions: (1) “Where the definition of
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    18 Pa.C.S. §§ 6318(a)(2), 6301(a)(1)(i), and 5901, respectively.
2
 The court imposed the following sentences of imprisonment: (1) Count 3 —
unlawful contact with a minor, 33 to 84 months, (2) Count 1 — corruption of
minors, 25 to 60 months, to run consecutively to the sentence imposed for
unlawful contact with a minor, and (3) Count 2 — open lewdness, 3 to 12
(Footnote Continued Next Page)
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Unlawful Contact With Minor, 18 Pa.C.S. § 6318(a)(2) includes ‘Open

Lewdness as defined in § 5901’, should these counts have merged for

sentencing purposes?”, (2) “Where the basis of the Court’s imposition of

consecutive sentences was not factually supported, should the Court have

imposed concurrent sentences?”, and (3) “Should a court make a[n] [SVP]

finding where there is no scientifically based risk assessment [] of [Lewis]?”.

Lewis’s Brief at 3.3 Based upon the following, we affirm.

        This case arose on October 24, 2012, at a Salvation Army store in

Danville,    Pennsylvania.         The   seven    year   old   victim   was   with   her

grandmother, who was shopping in the store. At trial, the victim described

Lewis’s actions of raising a Barbie doll, holding it up to the victim, and

manipulating the area on the doll between its legs, and smiling at the victim.

The trial court convicted and sentenced Lewis, as set forth above.

Thereafter, Lewis filed a motion for reconsideration of sentence, which was

denied by the trial court. This appeal followed.4

        The first issue raised by Lewis is whether the trial court erred in failing

to merge the counts of unlawful contact with a minor and open lewdness, for

                       _______________________
(Footnote Continued)

months, to run concurrently with the sentence imposed for corruption of
minors.
3
    We have reordered Lewis’s questions for purposes of this discussion.
4
 Lewis timely complied with the order of the trial court to file a statement of
errors complained of on appeal, pursuant to Pa.R.A.P. 1925(b).



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purposes of sentencing.     Lewis argues that “the exact same criminal act

constituted the basis of all three charged offenses,” and that “all of the

elements of [open lewdness, 18 Pa.C.S.] § 5901 are included within the

statutory elements of [u]nlawful [c]ontact with a [m]inor, 18 Pa.C.S. §

6318(a)(2).” Lewis’s Brief at 8. Lewis maintains that “[Subsection (a)(2)]

of the Unlawful Contact with Minor statute is by definition merely Open

Lewdness directed toward a minor.          It is essentially a lesser included

offense.” Lewis’s Brief at 7.

      “A claim that crimes should have merged for sentencing purposes

raises a challenge to the legality of the sentence. Therefore, our standard of

review is de novo and our scope of review is plenary.” Commonwealth v.

Nero, 58 A.3d 802, 806 (Pa. Super. 2012) (quotations and citation omitted).

      Section 9765 of the Judicial Code provides:

      No crimes shall merge for sentencing purposes unless the crimes
      arise from a single criminal act and all of the statutory elements
      of one offense are included in the statutory elements of the
      other offense. Where crimes merge for sentencing purposes, the
      court may sentence the defendant only on the higher graded
      offense.

42 Pa.C.S. § 9765. This Court has explained:

      [The Pennsylvania Supreme Court] held the plain language of
      Section 9765 reveals a legislative intent “to preclude the courts
      of this Commonwealth from merging sentences for two offenses
      that are based on a single criminal act unless all of the statutory
      elements of one of the offenses are included in the statutory
      elements of the other.”




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Commonwealth v. Quintua, 56 A.3d 399, 401 (Pa. Super. 2012), citing

Commonwealth v. Baldwin, 985 A.2d 830, 837 (Pa. 2009).

      Turning to the statutes at issue, the statute prohibiting open lewdness

provides:

      A person commits a misdemeanor of the third degree if he does
      any lewd act which he knows is likely to be observed by others
      who would be affronted or alarmed.

18 Pa.C.S. § 5901.       “Lewd” acts involve “sexuality or nudity in public.”

Commonwealth v. Fenton, 750 A.2d 863, 866 (Pa. Super. 2000). Section

5901 pertains to conduct that: “1) involves public nudity or public sexuality,

and 2) represents such a gross departure from accepted community

standards as to rise to the level of criminal liability.”   Commonwealth v.

Tiffany, 926 A.2d 503, 511 (Pa. Super. 2007) (quotations and citation

omitted).

      Regarding the crime of unlawful contact with minors, the Crimes Code

provides:

      A person commits an offense if he is intentionally in contact with
      a minor, or a law enforcement officer acting in the performance
      of his duties who has assumed the identity of a minor, for the
      purpose of engaging in an activity prohibited under any of the
      following, and either the person initiating the contact or the
      person being contacted is within this Commonwealth: ...

            (2) Open lewdness as defined in section 5901 (relating to
            open lewdness).

18 Pa.C.S. § 6318(a)(2). A defendant need not be successful in completing

the purpose of his communication with a minor in order to be found guilty of


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Section 6318(a). “Once Appellant contacts or communicates with the minor

for the purpose of engaging in the prohibited activity, the crime of

unlawful contact with a minor has been completed.” Commonwealth v.

Evans, 901 A.2d 528, 537 (Pa. Super. 2006) (emphasis in original).

     Here, the unlawful contact occurred when Lewis intentionally attracted

the minor victim’s attention.    The contact was clearly initiated for the

purpose effectuating the crime of open lewdness. Lewis’s argument that the

open lewdness offense is a lesser included offense of unlawful contact with a

minor is premised upon his erroneous assertion that “[Subsection (a)(2)] of

the Unlawful Contact with Minor statute is by definition merely Open

Lewdness directed toward a minor.” Lewis’s Brief at 7, supra.

     While the crimes occurred contemporaneously, we must also look at

the statutorily-required elements of each offense to see if the greater

offense necessarily includes the lesser offense. See 42 Pa.C.S. 9765. Even

though Lewis did engage in open lewdness, which is enumerated in 18

Pa.C.S. § 6318, the crime of open lewdness need not have been carried out

to commit unlawful contact of a minor pursuant to Section 6318(a)(2). See

Evans, supra. As the trial court correctly explained:

     Open Lewdness requires the elements of a lewd act and that it
     would likely affront or alarm another, elements which are not
     required of Unlawful Contact with a Minor. Conversely, Unlawful
     Contact with a Minor requires contact with a minor, which is not
     required by Open Lewdness.




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Trial Court Opinion, 7/21/2015, at 2 (unnumbered). Because each offense

requires proof of at least one element that the other does not, the offenses

do not merge. See Baldwin, supra at 837. Therefore, we conclude Lewis’s

sentence is not illegal, and reject Lewis’s argument that the court erred in

failing to merge the two charges for purposes of sentencing.

     Next, Lewis contends the evidence was insufficient to support the trial

court’s determination that he was an SVP.     The principles that guide our

review are as follows:

         In order to affirm an SVP designation, we, as a reviewing
         court, must be able to conclude that the fact-finder found
         clear and convincing evidence that the individual is a[n
         SVP]. As with any sufficiency of the evidence claim, we
         view all evidence and reasonable inferences therefrom in
         the light most favorable to the Commonwealth. We will
         reverse a trial court’s determination of SVP status only if
         the Commonwealth has not presented clear and
         convincing evidence that each element of the statute has
         been satisfied.

     Commonwealth v. Baker, 2011 PA Super 131, 24 A.3d 1006,
     1033 (Pa. Super. 2011), aff’d, 621 Pa. 401, 78 A.3d 1044 (Pa.
     2013) (citation omitted).

     This Court has explained the SVP determination process as
     follows:

         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] 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

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J-S07026-16


         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 re-offend, 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, 2013 PA Super 181, 74 A.3d
     1034, 1038-1039 (Pa. Super. 2013) (internal quotation marks,
     ellipsis, and citations omitted).

     When performing an SVP assessment, a mental health
     professional must consider the following 15 factors: whether the
     instant offense involved multiple victims; whether the defendant
     exceeded the means necessary to achieve the offense; the
     nature of the sexual contact with the victim(s); the defendant’s
     relationship with the victim(s); the victim(s)' age(s); whether
     the instant offense included a display of unusual cruelty by the
     defendant during the commission of the offense; the victim(s)’
     mental capacity(ies); the defendant’s prior criminal record;
     whether the defendant completed any prior sentence(s);
     whether the defendant participated in available programs for
     sexual offenders; the defendant’s age; the defendant’s use of
     illegal drugs; whether the defendant suffers from a mental
     illness, mental disability, or mental abnormality; behavioral
     characteristics that contribute to the defendant’s conduct; and
     any other factor reasonably related to the defendant's risk of
     reoffending. See 42 Pa.C.S.A. § 9799.24(b).

Commonwealth v. Hollingshead, 111 A.3d 186, 189–190 (Pa. Super.

2015), appeal denied, 125 A.3d 1199 (Pa. 2015).

     Here, Lewis argues that his expert, Dr. Timothy P. Foley, “applied one

of these scientifically based actuarial risk assessment instruments, the

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Static-99R, to determine that Mr. Lewis has a low risk of repetition of his

behavior.” Lewis’s Brief at 11. Lewis maintains “the trial court’s reluctance

to consider the scientific evidence of the Static-99R was unreasonable, and

[Commonwealth expert] Dr. [Joseph B.] Sheris’s conclusion, which was

accepted by the Court, to find that Mr. Lewis is a sexually violent predator

was based upon gut feelings and supposition, rather than any scientifically

based instruments of prediction.” Id.

      At the SVP hearing, Dr. Foley explained that the Static-99R tool “was

developed based     upon an      analysis   of more   than   25,000   convicted

offenders,” and that it is a tool that “assists in assigning a level of

dangerousness or risk for sex offense recidivism, which is measured as new

charges or convictions.” N.T., 4/16/2014, at 44. With regard to the Static-

99R, he stated Lewis scored a “Plus 2,” which represented a “relatively low

risk for recidivism.” Id. at 45.    On cross-examination, Dr. Foley admitted

Lewis’s score “would have been five which is relatively high …. With the age

correction for over 60, because he is going to be confined beyond the age of

60, he gets a two.” Id. at 50.

      The trial court, after hearing the testimony presented at the SVP

hearing, noted that in using the Static-99R assessment tool to assess risk

recidivism, Dr. Foley factored in Lewis’s age as of the time he presumably

would be released from prison.       The trial court reasoned:    “[Dr. Foley]

admitted it was not part of the protocols of Static 99 to impute some kind of


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advanced age.    So, that casts credibility issues with respect to this case.”

N.T., 4/16/2015, at 61.

      In its opinion, the trial court addressed its SVP determination, as

follows:

      The Commonwealth presented the testimony of Joseph B.
      Sheris, Ph.D., SCC, CCMHC, an eminently qualified expert
      retained by the Pennsylvania Sexual Offenders Assessment
      Board. Dr. Sheris testified that [] he evaluated and considered
      the facts of the current offense, the prior offense history,
      [Lewis’s] characteristics, and factors that are supported in a
      sexual offender assessment field as criteria reasonably related to
      the risk of reoffense, consistent with the requirements of 42
      Pa.C.S. § 9799.24(b). Dr. Sheris concluded that [Lewis] suffers
      from the diagnosis of Antisocial Personality Disorder and that
      [Lewis] engaged in Predatory Behavior in the present case and in
      prior cases and was likely to engage in predatory sexually violent
      offenses. Even [Lewis] admitted in a signed written statement
      that he makes lewd gestures to children to, in his mind, keep
      from “touching or acting out,” and [Lewis] admitted that he does
      derive “satisfaction out of it.” (NT 18). In this written statement,
      [Lewis] admitted to two (2) separate incidents (the present
      incident and one in the recent past in 2012) involving his
      approach of children in the local Salvation Army store. He also
      has a 1999 conviction for Corruption of Minors. The sentencing
      court accepted Dr. Sheris’s testimony and opinions as entirely
      credible, and rejected the testimony of Dr. Foley, [Lewis’s]
      expert witness. The sentencing court had substantial evidence
      upon which it properly found that [Lewis] is an SVP.

Trial Court Opinion, 7/21/2015, at 3–4 (unnumbered).

      Based on our review, we find that the Commonwealth did provide clear

and convincing evidence that Lewis is an SVP. The report of the

Commonwealth’s expert, Dr. Sheris, and his testimony at the SVP

assessment hearing, indicate that he conducted a detailed evaluation of

Lewis with regard to the statutory factors and his mental abnormality, in

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accordance with 42 Pa.C.S. § 9799.24(b). N.T., 4/16/2015 at 6–23; Sexual

Offender Assessment Board SVP Assessment, 7/20/2014, at 6–9.           In this

regard, we note that Section 9799.24(b) does not call for the use of the

Static-99. See 42 Pa.C.S. § 9799.24(b).

      As an appellate court, we must view the evidence in the light most

favorable to the Commonwealth when reviewing the sufficiency of the

evidence for an SVP determination, and we may not disturb the trial court’s

credibility determinations.   See Hollingshead, supra, 111 A.3d at 194.

Because we have found that the Commonwealth has presented clear and

convincing evidence that Lewis met the SVP criteria, we conclude that the

trial court did not err in designating him an SVP.

      Finally, Lewis claims that the trial court erred in imposing consecutive

sentences on the corruption of a minor and unlawful contact with a minor

charges. Lewis contends the trial court “ignored the findings and authorities

cited by Dr. Foley for his conclusion that there was no measurable

predictable, scientific evidence or support for a finding that an anti-social

personality disorder renders an individual more likely to repeat sexually

violent conduct.” Lewis’s Brief, at 9.

      As Lewis’s argument is a discretionary sentencing claim, we must

conduct the following examination:

      A challenge to the discretionary aspects of a sentence is not
      appealable as of right; instead, an appellant must petition for
      permission to appeal. Commonwealth v. Colon, 2014 PA
      Super 242, 102 A.3d 1033, 1042 (Pa. Super. 2014), appeal

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     denied, 109 A.3d 678 (Pa. 2015). We evaluate the following
     factors to determine whether to grant permission to appeal a
     discretionary aspect of sentencing.

            Before we reach the merits of this issue, we must engage
            in a four part analysis to determine: (1) whether the
            appeal is timely; (2) whether Appellant preserved his
            issue [at sentencing or in a motion to reconsider and
            modify sentence]; (3) whether Appellant’s brief includes a
            concise statement of the reasons relied upon for
            allowance of appeal with respect to the discretionary
            aspects of sentence [as required by Pennsylvania Rule of
            Appellate Procedure 2119(f)]; and (4) whether the
            concise statement raises a substantial question that the
            sentence is appropriate under the sentencing code. The
            third and fourth of these requirements arise because
            Appellant’s attack on his sentence is not an appeal as of
            right. Rather, he must petition this Court, in his [Rule
            2119(f)] concise statement of reasons, to grant
            consideration of his appeal on the grounds that there is a
            substantial question. [I]f the appeal satisfies each of
            these four requirements, we will then proceed to decide
            the substantive merits of the case.

     Commonwealth v. Edwards, 2013 PA Super 142, 71 A.3d 323,
     329-330 (Pa. Super. 2013) (citations omitted), appeal denied,
     622 Pa. 765, 81 A.3d 75 (Pa. 2013). Further, “[i]f a defendant
     fails to include an issue in his Rule 2119(f) statement, and the
     Commonwealth objects, then the issue is waived and this Court
     may not review the claim.” Commonwealth v. Karns, 2012 PA
     Super 154, 50 A.3d 158, 166 (Pa. Super. 2012), appeal denied,
     619 Pa. 721, 65 A.3d 413 (Pa. 2013).

Commonwealth v. Batts, 125 A.3d 33, 43 (Pa. Super. 2015).

     Here, although Lewis filed a timely notice of appeal and preserved his

claim in a timely motion for reconsideration of sentence, his brief does not

contain a Rule 2119(f) concise statement of the reasons relied upon for

allowance of appeal. The Commonwealth, in its brief, has objected to Lewis’s

omission.     See Commonwealth’s Brief at 6.      Therefore, we are precluded

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from addressing the discretionary aspects claim. Batts, supra. See also

Commonwealth v. Dawson, ___ A. 3d ___ [2015 PA Super 256] (Pa.

Super. 2015) (denying appellant’s petition for permission to appeal the

discretionary    aspects    of   her   sentence,   where   Commonwealth   lodged

objection to appellant’s failure to include a Rule 2119(f) statement in her

brief).5

       Having reviewed Lewis’s arguments, and having found them to be

meritless or waived, we affirm the judgment of sentence.

       Judgment of sentence affirmed.


Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/14/2016
____________________________________________


5
  Even if we considered Lewis’s claim, no relief would be due. We note the
imposition of consecutive rather than concurrent sentences generally lies
within the discretionary power of the sentencing court. Commonwealth v.
Johnson, 961 A.2d 877, 880 (Pa. Super. 2008) (“Long standing precedent
of this Court recognizes that 42 Pa.C.S. § 9721 affords sentencing court
discretion to impose sentence concurrently or consecutively to other
sentences being imposed at the same time or to sentences already
imposed.”). Here, the trial court found there were no mitigating factors and
imposed standard range sentences, and ordered that the sentences run
consecutively. N.T., 4/16/2015, at 85. The trial court made a credibility
determination concerning Dr. Foley’s testimony. We would find no abuse of
discretion in sentence imposed by the trial court.



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