J-S01018-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                              IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

ANTONIO GALES

                            Appellant                         No. 127 EDA 2015


             Appeal from the Judgment of Sentence April 15, 2011
             In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0005615-2007


BEFORE: GANTMAN, P.J., MUNDY, J., and MUSMANNO, J.

MEMORANDUM BY MUNDY, J.:                                   FILED JANUARY 25, 2016

       Appellant, Antonio Gales, appeals nunc pro tunc from the April 15,

2011 aggregate judgment of sentence of five to ten years’ imprisonment,

imposed after he was found guilty by a jury of unlawful contact with a child,

aggravated indecent assault of a child, endangering the welfare of a child,

indecent assault without complainant’s consent, and corruption of minors.1

Specifically, he challenges the determination by the trial court that he is a

sexually violent predator (SVP) under Megan’s Law, 42 Pa.C.S.A. §§ 9791-




____________________________________________


1
  18 Pa.C.S.A. §§ 6318(a)(1),                  3125(b),    4304(a),   3126(a)(1),   and
6301(a)(1), respectively.
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9799.9.2 After careful review, we affirm Appellant’s convictions, and his SVP

designation. However, because of our sua sponte review of the legality of

Appellant’s sentence, we are constrained to vacate his sentence and remand

for resentencing.

       The trial court summarized the relevant facts and procedural history as

follows.

                     Complainant [E.W.], age 12 years, testified
              that she and her three siblings currently reside with
              their grandmother and grandfather, T[.L.] and J[.]L.
              In 2005, when in the third grade [E.W.] and her
              siblings lived at 5337 Lesher Street with her mother
              [(Mother)] and her mother’s boyfriend, [A]ppellant[.]
              She stated that the bedroom she shared with her
              sister adjoined the room [M]other and Appellant
              shared, and that the rooms were connected with a
              door. [E.W.] stated that one day while she was
              cleaning her bedroom Appellant called her into his
              room and instructed her to sit on the bed. Appellant
              directed [E.W.] to pull her pants down and he
              inserted his finger and penis into the minor
              Complainant’s vagina.       She also described an
              incident [] during which she was watching television
              in [M]other’s bedroom when Appellant entered the
              room and instructed her to lie across the bed, pulled
              her pants and underwear down, pulled out his penis,
              and inserted his penis into her vagina. [E.W.] stated
              that Appellant told her not to tell anyone of the
              incident and she complied because she was afraid
              and did not believe that [M]other would believe her.


____________________________________________


2
  On December 20, 2012, Megan’s Law was replaced by Sexual Offender
Registration and Notification Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-
9799.41. As Appellant was sentenced on April 15, 2011, Megan’s Law
controls.



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                Appellant repeated this more than once a week
          during the year she was in the third grade.
          Complainant testified that on the final occasion of
          sexual abuse, Appellant called [E.W.] into his
          bedroom and instructed her to pull down her pants,
          pulled out his penis, and was going to insert his
          penis into her vagina when [M]other walked into the
          room. An altercation ensued between Appellant and
          [Mother] and [Mother] demanded that Appellant
          leave the house. Appellant gathered his belongings
          and complied.

                 Complainant finally reported Appellant[’s]
          assaults the following year, [in January 2007] when
          in the fourth grade [E.W.] touched the penis of a
          classmate and she was questioned by school
          officials. Denise Klein was the elementary school
          counselor at [E.W.]’s school. Klein testified that she
          was advised of the incident and spoke to [E.W.]
          During the discussion [E.W.] reported that Appellant
          had inserted his penis into her vagina on multiple
          occasions and that [M]other knew about Appellant’s
          behavior.   Klein reported this information to the
          Philadelphia Department of Human Services and the
          police were called.

                Philadelphia Police Detective Kimberly Stone of
          Special Victims Unit testified that on January 23,
          2007 she was assigned to investigate the report of
          sexual abuse involving [E.W.] and a few days later
          she interviewed [E.W.] and recorded her statement.
          During the interview, [E.W.] communicated that
          Appellant inserted his penis into her vagina. Stone
          spoke with [E.W.]’s mother and grandmother and
          then reviewed the report from the DHS social worker
          and the school counselor. She and her partner,
          Detective Thomas, then prepared a formal Police
          Report of the incident.

                [Mother] testified and explained that she met
          Appellant while he was working at [Mother]’s
          children[]s’ day care, Brightside Academy, and they
          began dating. [Mother] and Appellant began living
          together in April, 200[5] and shortly thereafter

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          Appellant stopped working. [Mother] attended Job
          Corps at the time while Appellant stayed at home.

                [Mother] testified that she and Appellant drank
          heavily. She stated that there came a time when
          she and Appellant were arguing and when he was
          drinking that she went to the store and upon her
          return she found Appellant and [E.W.] in her
          bedroom and observed Appellant holding his penis
          getting ready to penetrate [E.W.] sexually. [Mother]
          demanded that Appellant leave her home and he
          complied. [Mother] explained that she did not report
          the incident to police because Appellant had
          previously threatened that if she ever called police
          and accused him of anything he would have her
          physically assaulted.        Notwithstanding having
          observed Appellant sexually assaulting [E.W.]
          [Mother] continued her relationship with him.
          [Mother] stated that she nevertheless had feelings
          for Appellant.

                [T.L.]   testified  that    she    is    [E.W.]’s
          grandmother, and that she has had custody of
          [Mother]’s children since April 2006. She explained
          that she reported her daughter to the Department of
          Human Services as a result of her daughter’s chronic
          alcoholism and after finding that her daughter was
          neglecting her young children and putting them at
          risk. DHS later placed the children in [T.L.]’s home.

                 [T.L.] went on to testify that in January of
          2007 she and her husband were called to [E.W.]’s
          school as a result of the incident involving [E.W.]’s
          inappropriately touching a fellow male student.
          When she arrived at the school she was informed of
          the incident with the student and later, after leaving
          the school she had a discussion with [Mother] during
          which her daughter told her that she walked into her
          bedroom and observed Appellant as he was
          preparing to mount [E.W.] with his pants and
          [E.W.]’s pants down. Later, while [E.W.] was in
          therapy as a result of these incidents, [T.L.]
          participated and spoke with [E.W.]


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                  Appellant testified in [his own] defense. He
            stated that he met [Mother] at Brightside Academy,
            a child care facility in the northeast section of
            Philadelphia, where he was employed, and that they
            dated from October of 2004 until February of 2005
            when they began living together until he moved out
            of the house in July 2005. Appellant testified that
            they had a good relationship until [Mother] began
            drinking heavily. He stated that he purchased the
            house in which they resided and that he paid the bills
            and provided financial support for [Mother]’s
            children.

Trial Court Opinion, 4/7/15, at 2-5 (citations omitted).

      The trial court further set forth the subsequent procedural history.

                  On March 23, 2007[,] Appellant was arrested
            and charged with Unlawful Contact With a Child,
            Aggravated Indecent Assault of a Child, Endangering
            the Welfare of a Child, Corruption of Minors, and
            related offenses. On October 28, 2009, following a
            jury trial before [the trial court], the Honorable
            Thomas Dempsey presiding, [on October 28, 2009,]
            Appellant was found guilty of those crimes [and
            sentencing was deferred pending a Megan’s Law
            Assessment.] [On April 15, 2011[, Appellant was
            found to be an SVP and] he was sentenced to
            concurrent terms of imprisonment of not less than
            five (5) years nor more than ten (10) years for
            Unlawful Contact and Aggravated Indecent Assault of
            a Child plus concurrent sentences of five (5) years[’]
            probation for Endangering the Welfare of a Child and
            Corruption of a Minor. No direct appeal was taken
            from the [j]udgment of [s]entence.

                  On March 26, 2012[,] Appellant filed a Petition
            pursuant to the Post Conviction Relief Act [42
            Pa.C.S.A. § 9541] (hereinafter, PCRA) pro se and
            PCRA counsel was appointed. PCRA counsel filed an
            [a]mended PCRA [p]etition on July 19, 2013 and on
            October 29, 2014 the Commonwealth filed an
            Answer to the PCRA Petition. On December 11,
            2014[,] the PCRA [p]etition was granted by

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              agreement and Appellant’s appeal rights were
              reinstated nunc pro tunc.      This timely appeal
              followed on December 31, 2014.

Id. at 1-2 (footnote omitted).

       On appeal, Appellant raises the following issue for our review.3

              Whether the [trial] court erred in finding that the
              Commonwealth proved by [c]lear and convincing
              evidence that [Appellant] was properly classifiable as
              a “sexually violent predator” under 42 Pa.C.S.
              Section 9799.24(e)(b)[?]

Appellant’s Brief at 5.

       Appellant’s sole issue raises a challenge to the sufficiency of the

evidence to support the trial court’s finding that he was an SVP. Id. at 11.

“Because evidentiary sufficiency presents a question of law, our standard of

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

Johnson, 107 A.3d 52, 66 (Pa. 2014) (italics added). As in all sufficiency

reviews, we consider the evidence in the light most favorable to the

Commonwealth, as the prevailing party in the trial court. Id.

       Under Megan’s Law, an SVP is defined as “a person who has been

convicted of a sexually violent offense […] and who is determined to be a

sexually violent predator under section 9795.4 […] due to a mental

abnormality or personality disorder that makes the person likely to engage

in predatory sexually violent offenses.”         Commonwealth v. Martz, 926
____________________________________________


3
  Appellant and the trial court have complied with Pennsylvania Rule of
Appellate Procedure 1925.



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A.2d 514, 522 (Pa. Super. 2007), appeal denied, 940 A.2d 363 (Pa. 2008);

see also generally 42 Pa.C.S.A. § 9792.      When a person is convicted of

one or more offenses set forth in section 9795.1, the trial court must order

an SVP assessment by the Pennsylvania Sexual Offenders Assessment Board

(SOAB), which is comprised, of “psychiatrists, psychologists and criminal

justice experts, each of whom is an expert in the field of the behavior and

treatment of sexual offenders.” 42 Pa.C.S.A. § 9795.4; see also generally

Commonwealth v. Dixon, 907 A.2d 533, 535 (Pa. Super. 2006), appeal

denied, 920 A.2d 830 (Pa. 2007). Once the assessment is ordered, an SOAB

member is chosen to perform the assessment and determine whether the

offender fits the definition of an SVP as defined by the statute.    Dixon,

supra at 536.

     The determination of whether an individual should be classified as an

SVP is governed by examination of the following factors.

           (1)   Facts of the current offense, including:

                 (i)   Whether the offense involved multiple
                 victims.

                 (ii) Whether the individual exceeded the
                 means necessary to achieve the offense.

                 (iii) The nature of the sexual contact with the
                 victim.

                 (iv) Relationship of the individual to the
                 victim.

                 (v)   Age of the victim.


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                 (vi) Whether the offense included a display of
                 unusual cruelty by the individual during the
                 commission of the crime.

                 (vii) The mental capacity of the victim.

           (2)   Prior offense history, including:

                 (i)    The individual’s prior criminal record.

                 (ii)   Whether the individual completed any
                 prior sentences.

                 (iii) Whether the individual participated in
                 available programs for sexual offenders.

           (3)   Characteristics of the individual, including:

                 (i)    Age of the individual.

                 (ii)   Use of illegal drugs by the individual.

                 (iii) Any mental illness, mental disability or
                 mental abnormality.

                 (iv) Behavioral characteristics that contribute
                 to the individual's conduct.

           (4) Factors that are supported in a sexual offender
           assessment field as criteria reasonably related to the
           risk of reoffense.

42 Pa.C.S.A. § 9795.4(b).

     Using the SOAB member’s assessment and other evidence, the

Commonwealth must prove to the trial court that the offender is an SVP by

clear and convincing evidence. Dixon, supra (citation omitted). The trial

court makes the ultimate determination.       Id.    “The clear and convincing

standard requires evidence that is so clear, direct, weighty, and convincing


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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.

Meals, 912 A.2d 213, 219 (Pa. 2006) (brackets in original, citation omitted,

internal quotation marks omitted). Accordingly, in reviewing the trial court’s

SVP classification, “[w]e will reverse a trial court’s determination of SVP

status only if the Commonwealth has not presented clear and convincing

evidence sufficient to enable the trial court to determine that each element

required   by    the    statute    has    been   satisfied.”    Commonwealth         v.

Leddington, 908 A.2d 328, 335 (Pa. Super. 2006), appeal denied, 940 A.2d

363 (Pa. 2007) (citation omitted). “Our task … is one of review, not one of

reweighing      or     assessing    the     evidence     in    the   first   instance.”

Commonwealth v. Prendes, 97 A.3d 337, 356 (Pa. Super. 2014), appeal

denied, 105 A.3d 736 (Pa. 2014) (citations omitted).

       In the instant matter, Appellant was found guilty of, inter alia,

indecent assault, a triggering offense for an SVP assessment under Megan’s

Law.     See generally 42 Pa.C.S.A. § 9795.1.                  Appellant argues “the

Commonwealth failed to produce clear and convincing evidence at the time

of his assessment hearing” that he qualifies as an SVP. Appellant’s Brief at

11.    The focus of Appellant’s argument is on whether the Commonwealth

presented clear and convincing evidence that “the mental abnormality of

pedophilia … last[ed] for a period of at least six months.” Id. at 12. It is

Appellant’s assertion that the Commonwealth’s expert witness was only able


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to answer in general terms and could not provide the exact dates of the

incidents. Id. at 12-13.

      At the SVP hearing, the Commonwealth presented the testimony of Dr.

Barry Zakireh, Ph.D., an expert in the field of psychology, and a member of

the SOAB.     N.T., 3/24/11, at 6-8.      Appellant stipulated to Dr. Zakireh’s

qualification as an expert.   Id. at 6.    Upon our review of the record, we

conclude that Dr. Zakireh’s testimony presented clear and convincing

evidence supporting Appellant’s classification as an SVP.

      Dr. Zakireh testified that he has been a member of the SOAB since

2000 and has conducted 1,200 to 1,300 SVP evaluations. N.T., 3/24/11, at

8-9. After evaluation of Appellant, Dr. Zakireh testified that “[i]n my opinion

[Appellant] meets the criteria for a sexually violent predator.” Id. at 9. Dr.

Zakireh summarized his finding as follows.

                 The law asks fundamentally where [sic] the
            person suffers from a mental abnormality or a
            personality disorder that makes them likely to
            engage in violent sexual behavior.

                  And based on the review of the records related
            to [Appellant] and the offense in particular, also the
            available history of [Appellant], I came to the
            conclusion that he’s diagnosed with pedophilia which
            is a disorder that involves long-term persistent
            sexual attraction or sexual arousal, sexual interest in
            prepubescent children.

                  So it involves urges, sexual urges, sexual
            fantasies or behaviors or a situation of six months or
            more, and the individual has to be at least 16 years
            or older when they’re diagnosed, and at least five


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          years or more older than the person whom they
          have a sexual relationship with or contact with.

                Based on the records that are reviewed,
          [Appellant] has a - - his offense in this case involves
          over a nine-month period having repeated and
          multiple sexual contact, varied and progressive
          sexual acts with a prepubescent female who
          was roughly about eight to nine years old at
          the time, and he obviously - - the nine-month
          period specified in the record goes beyond the
          six-month period as required by the diagnostic
          criteria. [Appellant] was in his 40s, I believe, and
          so obviously there was a significant age difference.

                He engaged in various sexual acts such as
          fondling, vaginal fondling, digital penetration, also
          attempted penile/vaginal penetration.        He also
          exposed his penis to the victim. He acted on the
          sexual urges of fantasies which is another
          component of the diagnostic criteria. This was not
          confined to urges only or fantasies. He acted on
          these on a regular basis.

                 Based on the analysis of his behavior and as
          contained in the records and as required by the
          diagnostic criteria, he clearly meets the diagnostic
          criteria for pedophilia.

                Pedophilia is a disorder that is significant and
          associated with not only the genitive etiology of
          sexual contact with children, but also puts the
          person at high risk for engaging in such contact in
          the future.    So it involves both an element of
          etiology and also an element of persistence.

                And as I stated, the law asks whether the
          person has a mental abnormality or a personality
          disorder.

                In this case, I believe pedophilia is consistent
          with the conception of mental abnormality,[I] do not
          find a personality disorder, but a mental abnormality
          or a personality disorder. In this case pedophilia

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            being a mental abnormality which is associated with
            placing the person at high risk or likelihood for
            engaging in criminal violent sexual acts.

Id. at 10-12 (emphasis added).

      Dr. Zakireh also focused on Appellant’s predatory behavior, noting

Appellant “was a household member, was in a relationship with the victim’s

mother, … living with the victim, and that’s when the offense occurred.” Id.

at 15. He noted that Appellant’s “behavior is very consistent with the notion

of predatory behavior because he initiated a sexual relationship and

maintained that over a period of time with someone he has known[.]” Id.

Further, Dr. Zakireh highlighted the “significant age and power difference

between [Appellant] and the victim[,]” and its “potential for all the adverse

affects [sic] [to] increase.” Id. at 15-16. Finally, he noted that this was “an

evolving pattern of sexual abuse … [and Appellant] did not cease his

behavior until he was expelled from the house.”        Id. at 28.   On cross-

examination, defense counsel extensively reviewed the timeline with Dr.

Zakireh, who maintained that the records show a repeated pattern of abuse

over the course of the school year starting in September 2005, the year

E.W. was in third grade. Id. at 37-43.

      At the SVP hearing, Appellant also presented an expert, Dr. Timothy

Foley, an expert in the field of psychology and in the field of assessment of

sexual offenders, who concluded that Appellant did not meet the criteria of

an SVP.   N.T., 3/24/14, at 49-52.       Specifically, Dr. Foley noted that he


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“couldn’t testify to a reasonable degree of psychological certainty that the

six months [necessary for a pedophilia diagnosis] had been established.”

Id. at 51. While Dr. Foley conceded Appellant met the predator prong of the

assessment, he found “insufficient information” to ascertain Appellant was

“likely a perpetrator for future sexual offenses.”   Id. at 52.    Accordingly,

Appellant’s expert, Dr. Foley, did not believe the evidence was sufficient to

establish Appellant was an SVP by clear and convincing evidence.

      Our review of the record reveals that the trial court’s findings are

supported, and we will not reweigh the evidence.      See Prendes, supra.

The trial court was free to credit the conclusions of the Commonwealth’s

expert and discount the contrary findings presented by Appellant’s expert.

See Meals, supra at 223-224. Therefore, we conclude that the evidence

was sufficient to enable the trial court to determine that the Commonwealth

established, by clear and convincing evidence that Appellant qualifies as an

SVP. See Leddington, supra.

      Notwithstanding our disposition of Appellant’s issue on appeal, we are

constrained to address a legality of sentencing issue sua sponte.         “[A]

challenge to the legality of the sentence can never be waived and may be

raised by this Court sua sponte.” Commonwealth v. Wolfe, 106 A.3d 800,

801 (Pa. Super. 2014), appeal granted 121 A.3d 433 (Pa. 2015). Instantly,

as   the   Commonwealth     concedes   “[b]ecause    [Appellant]    committed

aggravated indecent assault against a child less than thirteen years of age,


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the lower court imposed a mandatory minimum sentence under 42 Pa. C.S.

§ 9718.”     Commonwealth’s Brief at 12, n.4.        In light of recent precedent

interpreting the import of the United States Supreme Court’s ruling in

Alleyne v. United States, 133 S. Ct. 2151 (2013), we conclude the trial

court imposed an illegal sentence. See Wolfe, supra at 805–806 (holding

that   the   mandatory    minimum    sentencing      provision      of   42    Pa.C.S.A.

9718(a)(1) was unconstitutional even though the triggering fact was also an

element of the offense for which Appellant was convicted), appeal granted

121 A.3d 433 (Pa. 2015).

       Based on the foregoing, we conclude that the issue raised by Appellant

lacks merit, but the trial court imposed an illegal sentence. Accordingly, the

trial court’s April 15, 2011 judgment of sentence is vacated, and the case is

remanded     for   resentencing,   without     consideration   of    the      mandatory

minimum, in accordance with this memorandum.

       Judgment of sentence vacated.           Case remanded for resentencing.

Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 1/25/2016




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