J-S61010-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

HARRY MICHAEL SZEKERES

                            Appellant                 No. 482 MDA 2015


            Appeal from the Judgment of Sentence January 8, 2015
               In the Court of Common Pleas of Dauphin County
             Criminal Division at No(s): CP-22-CR-0002247-2012


BEFORE: PANELLA, J., WECHT, J., and STRASSBURGER, J.*

MEMORANDUM BY PANELLA, J.                        FILED DECEMBER 15, 2015

        Appellant, Harry Michael Szekeres, appeals from the judgment of

sentence entered after he was convicted of 33 counts of sexual abuse of his

daughter (“the victim”). Szekeres challenges the sufficiency and weight of

the evidence supporting his convictions, his designation as a sexually violent

predator (“SVP”), and the discretionary aspects of his sentence.         After

careful review, we conclude that none of Szekeres’s claims merit relief, and

therefore affirm.

        At trial, the jury heard testimony from the victim that Szekeres had

sexually abused her from age seven to age 19. The victim testified that she

had delayed reporting the abuse until she realized that she had nieces that
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*
    Retired Senior Judge assigned to the Superior Court.
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were old enough for her father to victimize. The jury also heard a recorded

phone conversation between the victim and Szekeres in which he admitted

to making “a mistake touching my daughter.”        The jury found Szekeres

guilty on all 33 charges.

      The trial court ordered Szekeres to be assessed by the Pennsylvania

Sexual Offender Assessment Board (“SOAB”), and scheduled a Megan’s Law

hearing.   At the hearing, the SOAB representative, Dr. Robert Stein, a

licensed psychologist, opined that Szekeres was a SVP.          In contrast,

Szekeres presented the expert testimony of Dr. Timothy Foley.      Dr. Foley

opined that Szekeres did not qualify as a SVP.         The trial court found

Szekeres to be a SVP, and ultimately sentenced him to an aggregate term of

imprisonment of 16 to 32 years.

      Szekeres filed a post-sentence motion, which the trial court denied.

This timely appeal followed.

      On appeal, Szekeres raises four issues for our review. Szekeres claims

that his convictions were supported by insufficient evidence, or in the

alternative, were against the weight of the evidence.     In his third issue,

Szekeres argues that the evidence did not support his designation as a SVP.

In his fourth and final issue, Szekeres challenges the sentence imposed as

excessive. We will address these issues in sequence.

      In his first issue on appeal, Szekeres argues that the evidence

presented at trial was insufficient to sustain his convictions. Szekeres does


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not challenge the sufficiency of the evidence to support any specific element

or elements of his convictions; rather, he contends that the victim’s

testimony is “in contravention of human experience[,]” and therefore

categorically insufficient as a matter of law. Appellant’s Brief, at 15 (citing

Commonwealth v. Widmer, 744 A.2d 745, 751 (Pa. 2000)).

      Szekeres   concedes    that   the   victim’s   testimony,    under   normal

circumstances, was sufficient to sustain his convictions.         See Appellant’s

Brief, at 14 (citing Commonwealth v. Davis, 650 A.2d 452 (Pa. Super.

1994)).    However, he argues that the victim’s decade long delay in

reporting, as well as her admitted drug and alcohol abuse, corroborated and

enhanced by testimony that she had experienced hallucinations of sexual

abuse by various family members while intoxicated, rendered the victim’s

testimony insufficient as a matter of law.     Even if we were to accept this

argument, which we explicitly do not, Sekeres cannot overcome the

inculpatory statements present in the recorded phone conversation with the

victim.

      During the conversation, the victim repeatedly asked Szekeres why he

had sexually abused her.    Several times, Szekeres implicitly admitted that

he had. See Commonwealth’s Exhibit 2, at 7:20, 7:50, 8:45. He further

admitted that he knew that what he had done was wrong.               See id., at

10:40. The victim repeatedly asked Szekeres for reassurances that her child

would be safe in Szekeres’s presence. Szekeres responded:


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      Hey it would never happen but … I don’t know how I can
      reassure you other than that I would … I want to be a part of the
      grandchildren’s lives to show them, here how it is, here’s what
      this island looks like. … here’s how I swing a hammer when I
      was young, here’s things like that I mean I would never touch
      your children. I’ve never touched any children you were not, I
      made a mistake touching my daughter. And it seemed like it
      was okay for some reason in my mind and I, I continued it for,
      for a few years, several years. I don’t know why, I don’t know
      why it happened I wouldn’t I would never touch anybody in
      anyway other than the huge mistake I made when you were
      young. I’m telling you I would never do that. I just want your
      mother, I want your mother to be so much part of your, your
      children and … part of your life in whatever way she can. If, if I
      don’t have to be I mean I, do you know how many times I
      thought of taking my own life I, I could, but, but being the
      coward I am I can’t do it. I can’t do it. I, I thought of now
      being here how many ways could I, could I steal life from
      myself, which I, which I deserve to, to let the rest of the family
      live and go on. And I just can’t make myself do it.

Id., at 11:40 – 13:15. These inculpatory statements are certainly sufficient

to overcome any issues with the victim’s credibility. We therefore conclude

that Szekeres has failed to establish that the victim’s testimony was so

unrealiable as to be insufficient as a matter of law. Szekeres’s first issue on

appeal merits no relief.

      Next, Szekeres challenges the weight of the evidence supporting his

convictions. Our standard of review applicable to a challenge to the weight

of the evidence is as follows.

      [A] verdict is against the weight of the evidence only when the
      jury’s verdict is so contrary to the evidence as to shock one’s
      sense of justice. It is well established that a weight of the
      evidence claim is addressed to the discretion of the trial court. …
      The role of the trial court is to determine that notwithstanding all
      the evidence, certain facts are so clearly of greater weight that
      to ignore them, or to give them equal weight with all the facts, is

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       to deny justice. A motion for a new trial on the grounds that the
       verdict is contrary to the weight of the evidence concedes that
       there is sufficient evidence to sustain the verdict; thus the trial
       court is under no obligation to view the evidence in the light
       most favorable to the verdict winner.

       Significantly, in a challenge to the weight of the evidence, the
       function of an appellate court … is to review the trial court’s
       exercise of discretion based upon a review of the record, rather
       than to consider de novo the underlying question of the weight
       of the evidence. In determining whether this standard has been
       met, appellate review is limited to whether the trial judge’s
       discretion was properly exercised, and relief will only be granted
       where the facts and inferences of record disclose a palpable
       abuse of discretion. It is for this reason that the trial court’s
       denial of a motion for a new trial based on a weight of the
       evidence claim is the least assailable of its rulings.

Commonwealth v. Rivera, 983 A.2d 1211, 1225 (Pa. 2009) (internal

citations and quotation marks omitted). While we are without the benefit of

explicit reasoning from the trial court1, we have little difficulty in concluding

that the trial court did not abuse its discretion in denying the motion for a

new trial. Szekere’s second issue on appeal merits no relief.

       In his third issue, Szekeres argues that the trial court erred in finding,

by clear and convincing evidence, that he is a SVP. Specifically, Szekeres

contends that the Commonwealth failed to prove that he is likely to re-

offend. See Appellant’s Brief, at 26. As with any sufficiency of the evidence

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1
  The trial court found this issue waived, as Szekeres failed to explicitly
specify the basis of his challenge in his statement of matters complained of
on appeal. While Szekeres’s statement is not a model of specificity, we
decline to find waiver, as the nature of his challenge, that the victim was not
a credible witness, is easily reviewed upon the record before us.



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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 sufficient that each element of the statute has

been satisfied.”   Commonwealth v. Fuentes, 991 A.2d 935, 942 (Pa.

Super. 2010) (citation omitted). The task of the Superior Court on appeal of

a trial court's classification of a criminal offender as a sexually violent

predator “is one of review, and not of weighing and assessing evidence in

the first instance.”   Commonwealth v. Meals, 912 A.2d 213, 218 (Pa.

2006).

      Megan’s Law II defines “sexually violent predator” as a person

suffering from a “mental abnormality or personality disorder that makes the

person likely to engage in predatory sexually violent offenses.” 42 Pa.C.S.A.

§ 9792. The salient inquiry to be made by the trial court is the identification

of the impetus behind the commission of the crime and the extent to which

the offender is likely to reoffend. See Commonwealth v. Price, 876 A.2d

988, 995 (Pa. Super. 2005).

      Dr. Stein testified that the extended period during which Szekeres

engaged in sexual abuse of his prepubescent daughter supported a finding

that he suffered from a pedophilic disorder. See N.T., sentencing, 1/8/15,

at 10-11. Dr. Stein further opined that the fact that the abuse continued for

a significant time after the victim reached puberty supported a finding that


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Szekeres suffered from “other specified paraphilic disorder nonconsent.”

See id., at 11-12.     Based upon these findings, Dr. Stein concluded that

Szekeres had demonstrated predatory behavior and therefore posed a high

risk of re-offending. See id., at 15-16.

      While Dr. Foley contradicted these findings, and highlighted many

factors that undercut Dr. Stein’s reasoning, the trial court was entitled to

find Dr. Stein’s testimony credible.   Dr. Stein’s testimony is sufficient to

support a finding that Szekeres is likely to reoffend. Thus, Szekeres’s third

issue on appeal merits no relief.

      In his fourth and final issue on appeal, Szekeres argues that the trial

court imposed an excessive sentence.       Szekeres concedes that this issue

raises a challenge to the discretionary aspects of his sentence.         See

Appellant’s Brief, at 9.

       “A challenge to the discretionary aspects of a sentence must be

considered a petition for permission to appeal, as the right to pursue such a

claim is not absolute.” Commonwealth v. McAfee, 849 A.2d 270, 274 (Pa.

Super. 2004) (citation omitted). When challenging the discretionary aspects

of the sentence imposed, an appellant must present a substantial question

as to the inappropriateness of the sentence.       See Commonwealth v.

Tirado, 870 A.2d 362, 365 (Pa. Super. 2005).

      “Two requirements must be met before we will review this challenge

on its merits.”   McAfee, 849 A.2d at 274 (citation omitted).      “First, an


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appellant must set forth in his brief a concise statement of the reasons relied

upon for allowance of appeal with respect to the discretionary aspects of a

sentence.” Id. (citation omitted). “Second, the appellant must show that

there is a substantial question that the sentence imposed is not appropriate

under the Sentencing Code.” Id. (citation omitted). That is, “the sentence

violates either a specific provision of the sentencing scheme set forth in the

Sentencing Code or a particular fundamental norm underlying the sentencing

process.” Tirado, 870 A.2d at 365 (citation omitted).

      We examine an appellant’s Rule 2119(f) statement to determine

whether a substantial question exists. See id. “Our inquiry must focus on

the reasons for which the appeal is sought, in contrast to the facts

underlying the appeal, which are necessary only to decide the appeal on the

merits.” Id. (citation omitted); see also Pa.R.A.P. 2119(f). “[W]e cannot

look beyond the statement of questions presented and the prefatory 2119(f)

statement    to   determine    whether     a   substantial   question   exists.”

Commonwealth v. Christine, 78 A.3d 1, 10 (Pa. Super. 2013) (citation

omitted).

      In the present case, Szekere’s appellate brief contains the requisite

Rule 2119(f) concise statement, and, as such, is in technical compliance with

the requirements to challenge the discretionary aspects of a sentence.

Szekeres presents three separate arguments in his 2119(f) statement. First

he argues in his Rule 2119(f) statement that the imposition of consecutive


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sentences, as opposed to concurrent sentences, by the trial court was

excessive.   Next, he argues that the trial court failed to provide adequate

reasons on the record for the sentence it imposed.        Finally, Szekeres

contends that the sentence imposed was not consistent with norms

underlying the sentencing code. We will analyze whether these arguments

raised a substantial question in sequence.

     First, Szekeres claims that the imposition of consecutive sentences

created an excessive sentence. “[W]here a sentence is within the standard

range of the guidelines, Pennsylvania law views the sentence as appropriate

under the Sentencing Code.” Commonwealth v. Moury, 992 A.2d 162, 171

(Pa. Super. 2010) (citations omitted). The imposition of consecutive, rather

than concurrent, sentences may raise a substantial question in only the most

extreme circumstances, such as where the aggregate sentence is unduly

harsh, considering the nature of the crimes and the length of imprisonment.

See id., at 171-172.

     Here, the aggregate sentence for 33 convictions of sexual abuse of a

minor was 16 to 32 years in prison. Szekeres concedes that each individual

sentence was within the guideline ranges. See Appellant’s Brief, at 20. This

is not an extreme circumstance.     Thus, we conclude that Szekeres’s first

argument does not raise a substantial question.

     Next, Szekeres argues that the trial court failed to put adequate

reasons for its sentence on the record at sentencing. This claim, combined


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with Szekeres’s third claim, that the sentencing court failed to consider his

rehabilitative needs, raises a substantial question for our review.        See

Commonwealth v. Parlante, 823 A.2d 927, 929-930 (Pa. Super. 2003).

      The standard of review with respect to sentencing is as follows.

      Sentencing is a matter vested in the sound discretion of the
      sentencing judge, and a sentence will not be disturbed on appeal
      absent a manifest abuse of discretion. In this context, an abuse
      of discretion is not shown merely by an error in judgment.
      Rather, the appellant must establish, by reference to the record,
      that the sentencing court ignored or misapplied the law,
      exercised its judgment for reasons of partiality, prejudice, bias
      or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Shugars, 895 A.2d 1270, 1275 (Pa. Super. 2006)

(citation omitted).

      Although Szekeres claims that the trial court erred in imposing a

sentence that was inconsistent with the protection of the community and his

rehabilitative needs, we note that the trial court reviewed a pre-sentence

report.   Where the trial court had the benefit of reviewing a pre-sentence

report, we must

      presume that the sentencing judge was aware of relevant
      information regarding the defendant’s character and weighed
      those considerations along with mitigating statutory factors. A
      pre-sentence report constitutes the record and speaks for itself.
      In order to dispel any lingering doubt as to our intention of
      engaging in an effort of legal purification, we state clearly that
      sentencers are under no compulsion to employ checklists or any
      extended or systematic definitions of their punishment
      procedure. Having been fully informed by the pre-sentence
      report, the sentencing court’s discretion should not be disturbed.
      This is particularly true, we repeat, in those circumstances where
      it can be demonstrated that the judge had any degree of
      awareness of the sentencing considerations, and there we will

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      presume also that the weighing process took place in a
      meaningful fashion. It would be foolish, indeed, to take the
      position that if a court is in possession of the facts, it will fail to
      apply them to the case at hand.

Commonwealth v. Hallock, 603 A.2d 612, 616 (Pa. Super. 1992) (citation

omitted). As the trial court in this case had the benefit of a pre-sentence

report, we must presume that it considered all relevant sentencing factors

and did not impose a sentence based solely on the gravity of the offenses.

Thus, Szekere’s final issue on appeal merits no relief.

      We conclude that none of Szekeres’s issues on appeal merit relief. We

therefore affirm the judgment of sentence.

      Judgment of sentence affirmed. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/15/2015




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