J. S55011/15

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA              :     IN THE SUPERIOR COURT OF
                                          :           PENNSYLVANIA
                     v.                   :
                                          :
DAVID ALLEN BILLE,                        :          No. 1962 WDA 2014
                                          :
                          Appellant       :


           Appeal from the Judgment of Sentence, October 28, 2014,
                 in the Court of Common Pleas of Erie County
               Criminal Division at No. CP-25-CR-0002982-2013


BEFORE: FORD ELLIOTT, P.J.E., BENDER, P.J.E., AND STRASSBURGER, J.*


MEMORANDUM BY FORD ELLIOTT, P.J.E.:              FILED NOVEMBER 18, 2015

        David Allen Bille appeals from the judgment of sentence of October 28,

2014, following his convictions of one count of endangering the welfare of

children, three counts of indecent assault, and one count of corruption of

minors.1 We affirm.

        The trial court articulated the facts and procedural history of this case

as follows:

                    Appellant was convicted of sexually assaulting
              his step-daughter, S.S. The first assault occurred
              when S.S. was six years old and living with
              appellant, her mother, and older brother. On that
              occasion, appellant instructed S.S. to touch his
              penis, and she complied. During the assault, S.S.’s



* Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. §§ 4304(a)(1), 3126(a)(7) and 6301(a)(1)(i), respectively.
J. S55011/15


          mother was not home and her brother was in his
          bedroom.

                Appellant assaulted S.S. a second time when
          she was eight or nine years old. Appellant instructed
          S.S. to sit on his lap and he began touching her
          breasts and vaginal area. At the time of the assault,
          S.S.’s mother was not home and her older brother
          was in the basement playing video games.

                Another assault occurred while S.S. was in her
          bedroom. Appellant entered her room while she was
          partially unclothed and instructed her to sit on the
          knob of the foot of her bed. Appellant then placed
          his hand over her vagina and told her this would
          relax her. S.S.’s mother was not home, and her
          brother was in the basement.

                 The last assault occurred when S.S. was 11.
          While S.S. was on a couch in the living room,
          appellant placed his hand over her vaginal area. As
          S.S. struggled to get away, appellant lifted up her
          shirt and bra and placed his hands over her exposed
          breasts. After S.S. ended up on the floor, appellant
          straddled her and pressed his penis against her
          lower abdomen/pelvic area.

                 On June 20, 2014, following a two-day jury
          trial, appellant was found guilty of the foregoing
          offenses. Appellant was also found not guilty of
          indecent exposure. This Court subsequently ordered
          a sexual violent predator (SVP) assessment pursuant
          to Pennsylvania’s version of “Megan’s Law,” the Sex
          Offender     Registration   and   Notification  Act,
          42 Pa.C.S.A. § 9799.10 et. seq.

                 Appellant’s SVP hearing was held on
          October 28, 2014. At that time, Brenda A. Manno, a
          licensed clinical social worker and board member of
          the Pennsylvania Sexual Offender Assessment Board,
          testified to a reasonable degree of professional
          certainty that appellant met the statutory criteria for
          classification as a sexually violent predator. At the



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              conclusion of the SVP hearing, this Court found that
              appellant was a sexually violent predator.

                   Following the SVP hearing, appellant was
              sentenced to the following terms of incarceration:
              6 to 12 months’ incarceration at Count 1
              (endangering welfare of child); a term of 2 to
              4 months’ incarceration at Count 3 (indecent
              assault), consecutive to Count 1; and, a term of 2 to
              4 months’ incarceration at Count 4 consecutive to
              Counts 1 and 3, above.

Trial court opinion, 2/27/15 at 1-2 (citations omitted). Appellant filed notice

of appeal on December 1, 2014, and provided a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925, and the trial court filed

an opinion.

      Appellant raises the following issues for our review:

              1.   The Honorable Trial Court committed reversible
                   error of law by ruling to exclude, as irrelevant,
                   any mention of a report that was made by the
                   Office of Children and Youth, which concluded
                   that the allegations in this case were
                   unfounded.

              2.   The Honorable Trial Court erred and abused its
                   discretion as well as denied Defendant’s Due
                   Process rights guaranteed by the 5th and
                   14th Amendments by relying on facts not in
                   evidence to determine that the Defendant was
                   a Sexually Violent Predator. The Honorable
                   Trial Court relied exclusively on Ms. Manno’s
                   determination that the Defendant was a
                   Sexually Violent Predator. Ms. Manno did not
                   review the trial transcripts, she did not meet
                   with the Defendant, and the report contained
                   several errors.       Ms. Manno relied on
                   preliminary   hearing     transcripts, criminal
                   complaint, and probable cause affidavit in



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                  making her determination,         not   evidence
                  presented at trial.

            3.    The Honorable Trial Court erred and abused its
                  discretion as well as denied Defendant’s Due
                  Process rights guaranteed by the 5th and
                  14th Amendments by classifying the Defendant
                  to be a Sexually Violent Predator.          The
                  Commonwealth’s      burden    of   Clear    and
                  Convincing evidence was not met because the
                  Commonwealth did not provide evidence that
                  the Defendant was likely to reoffend.
                  Furthermore, the factors contained in the
                  statute weigh heavily in the Defendant’s favor.

            4.    The Honorable Trial Court abused its discretion
                  and violated the Defendant’s 14th Amendment
                  Due Process rights by not granting Defendant’s
                  continuance prior to the Sexually Violent
                  Predator Determination Hearing, so the
                  Defendant could find a qualified expert to rebut
                  Ms. Manno’s testimony. The continuance did
                  not prejudice the Commonwealth in any way.

            5.    The Honorable Trial Court erred and abused its
                  discretion as well as denied Defendant’s Due
                  Process rights guaranteed by the 5th and
                  14th Amendments because the evidence was
                  insufficient to warrant a GUILTY verdict on the
                  Charges of Endangering the Welfare of
                  Children, Three (3) Counts of Indecent Assault,
                  and Corruption of Minors. The Defendant was
                  found NOT GUILTY of Indecent Exposure on
                  the same factual basis as one of the Counts of
                  Indecent Assault.

Appellant’s brief at 5-6.

      Appellant’s first issue for our review is whether the trial court erred in

denying appellant’s request to introduce the Office of Children and Youth

(“OCY”) report which indicated that the victim’s allegations were unfounded.



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The trial court stated that the introduction of such evidence by defense

counsel would amount to vouching. (Notes of testimony, 6/19/14 at 8.)

      Our standard of review for the admissibility of evidence is as follows:

            The admissibility of evidence is at the discretion of
            the trial court and only a showing of an abuse of that
            discretion, and resulting prejudice, constitutes
            reversible error. An abuse of discretion is not merely
            an error in judgment, but is rather the overriding or
            misapplication of the law, or the exercise of
            judgment that is manifestly unreasonable, or the
            result of bias, prejudice, ill-will, or partiality, as
            shown by the evidence of record. Furthermore, if in
            reaching a conclusion the trial court over-rides or
            misapplies the law, discretion is then abused and it is
            the duty of the appellate court to correct the error.

Commonwealth v. Fischere, 70 A.3d 1270, 1275 (Pa.Super. 2013)

(en banc) (internal quotation marks and citations omitted), appeal denied,

83 A.3d 167 (Pa. 2013).

      We agree with the trial court that the OCY report is inadmissible. The

trial court found the OCY report to be inadmissible as “basically vouching.”

(Notes of testimony, 6/18/14 at 8.) It is well settled that vouching is a form

of prosecutorial misconduct, occurring when a prosecutor “places the

government’s prestige behind a witness through personal assurances as to

the witness’s truthfulness, and when it suggests that information not before

the jury supports the witness’s testimony.”    Commonwealth v. Reid, 99

A.3d 427, 447 (Pa. 2014), citing Commonwealth v. Williams, 896 A.2d

523, 541 (Pa. 2006). Therefore, the report cannot be a form of vouching

because the defense sought to present it.


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      However, the trial court also recognized that the OCY report is

inadmissible because it is irrelevant.        OCY operates under the Child

Protective Services Law (“CPSL”).       “The [CPSL] does not provide for

legal determinations of abuse; it is mainly a vehicle for reporting abuse

and bringing quickly into play those services (including court hearings)

available through county protective service facilities for the care of the

child.”   In Interest of J.R.W., 631 A.2d 1019, 1022 (Pa.Super. 1993)

(emphasis added). Due to the fact that the CPSL has a different objective

compared to the criminal justice system, the OCY report is irrelevant and

appellant’s argument is without merit.

      Appellant’s next three issues address his classification as a sexually

violent predator (“SVP”). For the purposes of this appeal, we shall consider

all three of his issues raised relating to his classification as a sexually violent

predator together.

      Our standard of review for SVP determinations is as follows:

            [An SVP] is a person who has been convicted of a
            sexually violent offense set forth in Section 9795.1
            (relating to registration) and who is determined to be
            a sexually violent predator under 9795.4 (relating to
            assessments) due to a mental abnormality or
            personality disorder that makes the person likely to
            engage in predatory sexually violent offenses. In
            order to show that the offender suffers from a
            mental abnormality or personality disorder, the
            evidence must show that the defendant suffers from
            a congenital or acquired condition . . . that affects
            the emotional or volitional capacity of the person in a
            manner that predisposes that person to the
            commission of criminal sexual acts to a degree that


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             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.
             Predatory conduct is defined as an act directed at a
             stranger or at a person with whom a relationship has
             been    instituted,   established,   maintained,      or
             promoted, in whole or in part, in order to facilitate or
             support victimization. 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, 74 A.3d 1034, 1038-1039 (Pa.Super. 2013)

(citations and quotations omitted).

     First, we address whether the trial court erred by relying on facts that

were not admitted into evidence during the trial.         Specifically, appellant

argues that the trial court, in making its determination of whether appellant

was to be classified as an SVP relied exclusively on Brenda Manno’s

testimony.   (Appellant’s brief at 8.)   Appellant alleges that Manno did not

review any evidence that was presented at trial, nor did she read the trial

transcripts; she also used inaccurate information as to appellant’s criminal

and medical history. (Id. at 8-9.)

     We find that the trial court did not commit reversible error by relying

exclusively on Manno’s testimony. In Commonwealth v. Prendes, 97 A.3d

337, 345 (Pa.Super. 2014), appeal denied 105 A.3d 736 (Pa. 2014), this

court considered the sufficiency of the evidence in a sexually violent



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predator determination based on a trial court’s sole reliance on the

Commonwealth’s expert witness.         Much like the instant appeal, the expert

witness in Prendes formed her opinion based on her review of the arrest

warrant, affidavit of probable cause, police reports, victim’s statements, the

Pennsylvania Sexual Offender Assessment Board (“Board”) investigator’s

reports, and several other documents.2 Id. at 346. Similar to the present

case, the expert in Prendes did not interview the defendant because he

declined to be interviewed. Id. at 346. The Prendes court held that the

trial court did not err in classifying the defendant as an SVP based solely on

the testimony of the Commonwealth’s expert. See also Commonwealth v.

Dixon, 907 A.2d 533, 535 (Pa.Super. 2006) (the Commonwealth’s expert

did not review trial transcripts when determining the defendant to be an

SVP).     We, therefore, find that the trial court’s reliance on Manno’s

testimony is not a reversible error.

        Appellant also raises the issue of several mistakes that he alleges

Manno made during her testimony.             Specifically, appellant claims that

Manno’s report included inaccurate information about appellant’s criminal

history and his medical history. In her report, Manno noted that appellant

had been convicted of a summary offense. (Notes of testimony, 10/28/14 at

27.) After defense counsel established that the summary offense conviction


2
  We also note that the expert in Prendes did not review the transcript of
the defendant’s guilty plea colloquy when making her determination. Id. at
349.


                                       -8-
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was mistakenly attributed to appellant, Manno admitted on the record that

the attribution was made in error. (Id. at 30.) Manno also testified that she

only had access to appellant’s medical records that were contained in her

investigator’s report. (Id. at 32.)

      A challenge such as this addresses Manno’s credibility as a witness.

We cannot assume the task of weighing the evidence as part of our review

of the trial court’s determination as the weighing of evidence is solely within

the trial court’s purview.     See Commonwealth v. Meals, 912 A.2d 213,

223 (Pa. 2006) (“The task of the Superior Court is one of review, and not of

weighing and assessing evidence in the first instance.”). The trial court was

in a position where it heard not only Manno’s testimony, but it also

considered   the    evidence    presented    at   trial   when   making   its   SVP

determination.     Specifically, the trial court reviewed “the record, all of the

relevant statutory provisions, and credited Ms. Manno’s testimony and her

report.”   (Trial court opinion, 2/27/15 at 11.)          Therefore, we find that

appellant’s claim that the trial court committed reversible error when it

relied on Manno’s testimony and report is without merit.

      Second, we consider whether the Commonwealth met its burden of

clear and convincing evidence. Our standard of review for the sufficiency of

evidence in an SVP determination hearing is as follows:

                   At the SVP hearing, the Commonwealth has
             the burden of proving by clear and convincing
             evidence that the person meets the criteria to be
             designated as an SVP. This burden of proof has


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            been described as an intermediate test, falling below
            the highest level of proof, beyond a reasonable
            doubt, but above the preponderance of the evidence
            standard. Evidence will meet this level of proof if it
            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.

Stephens, 74 A.3d at 1039 (citations omitted). We are required to view all

evidence presented in the light most favorable to the Commonwealth, and

are prohibited from substituting our own judgment for that of the trial court.

Commonwealth v. Plucinski, 868 A.2d 20, 25 (Pa.Super. 2005) (citations

omitted).

      Upon a defendant’s conviction of a crime requiring a determination as

to whether the defendant is to be classified as an SVP, the Board conducts

an assessment in which the following factors are considered:

            § 9799.24 Assessments

            ....

            (b)    Assessment.--Upon receipt from the court of
                   an order for an assessment, a member of the
                   board as designated by the administrative
                   officer of the board shall conduct an
                   assessment of the individual to determine if
                   the individual should be classified as a sexually
                   violent predator.    The board shall establish
                   standards for evaluations and for evaluators
                   conducting the assessments. An assessment
                   shall include, but not be limited to, an
                   examination of the following:

                   (1)   Facts of     the      current   offense,
                         including:



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                     (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.

                     (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.



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                        (ii)    Use of illegal drugs.

                        (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 related
                        to the risk of re-offense.

42 Pa.C.S.A. § 9799.24. An individual is designated as an SVP after he or

she is convicted of a sexually violent offense and, following an assessment

as mandated by Section 9799.24, is deemed to have “a mental abnormality

or personality disorder that makes the individual likely to engage in

predatory sexually violent offenses.” 42 Pa.C.S.A. § 9799.12.

      In the present case, Manno compiled her report based on Child Line

records, the police report, the criminal complaint, the affidavit of probable

cause, the preliminary hearing transcript, appellant’s driving records, and

the Board investigator’s report.      (Notes of testimony, 10/28/14 at 11.)

Manno concluded that appellant suffers from an unspecified paraphilic

disorder.3   (Id. at 14.)   Specifically, Manno testified that the presence of




3
   According to Manno’s testimony, an unspecified paraphilic disorder is
diagnosed when there is “a period of at least six months with recurrent,
intense sexually arousing fantasies, urges, or behaviors involving a . . .
child.” (Id.)


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such a disorder made appellant more likely to offend in the future. (Id. at

15.)

       Appellant states that Manno reached her conclusion without ever

meeting with appellant or reviewing the evidence presented at trial.

(Appellant’s brief at 12.)   Appellant further states that Manno’s conclusion

could have “been easily refuted” if appellant had been able to procure his

own expert.      (Id.)    This court has repeatedly held that experts may

sufficiently deem defendants to be SVPs without actually meeting with them

or reviewing the evidence presented at trial or allocuted to during guilty plea

colloquies.     See, e.g., Commonwealth v. Morgan, 16 A.3d 1165

(Pa.Super. 2011) (finding the Commonwealth’s evidence sufficient to

warrant an SVP determination despite the defendant’s refusal to meet with

the Commonwealth’s expert). Therefore, appellant’s claim that the evidence

is insufficient to warrant an SVP determination is without merit.

       Third, we consider whether the trial court erred when it denied

appellant’s request for a continuance in order to obtain expert testimony.

The decision to grant a continuance is in the sole discretion of the trial court

and    will   only   be   reversed   upon     an   abuse   of   that   discretion.

Commonwealth v. Brooks, 104 A.3d 466, 469 (Pa. 2014) (citations

omitted).     We agree with the trial court that appellant’s request for a

continuance in order to hire an expert was untimely, and accordingly affirm




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based on the trial court’s opinion for this issue.   (See trial court opinion,

2/27/15 at 6-7.)

     Finally, appellant challenges whether the evidence at trial is sufficient

to warrant convictions for endangering the welfare of children, indecent

assault, and corruption of minors.

                  In reviewing the sufficiency of the evidence,
            we view all evidence admitted at trial in the light
            most favorable to the Commonwealth, as verdict
            winner, to see whether there is sufficient evidence to
            enable [the fact finder] to find every element of the
            crime beyond a reasonable doubt. This standard is
            equally applicable to cases where the evidence is
            circumstantial rather than direct so long as the
            combination of the evidence links the accused to the
            crime beyond a reasonable doubt.           Although a
            conviction must be based on “more than mere
            suspicion or conjecture, the Commonwealth need not
            establish guilt to a mathematical certainty.”

                  Moreover, when reviewing the sufficiency of
            the evidence, this Court may not substitute its
            judgment for that of the fact finder; if the record
            contains support for the convictions, they may not
            be disturbed.

Commonwealth v. Stokes, 78 A.3d 644, 649 (Pa.Super. 2013) (citations

omitted).    The Commonwealth may satisfy its burden of proving a

defendant’s guilt beyond a reasonable doubt by using wholly circumstantial

evidence. Commonwealth v. Diggs, 949 A.2d 873, 877 (Pa. 2008).

     In the instant case, after reviewing the evidence presented, cast in the

light most favorable to the Commonwealth, as verdict winner, we find that




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the evidence is sufficient to warrant the jury’s convictions for endangering

the welfare of children, indecent assault, and corruption of minors.

      Endangering the welfare of children is defined as, “[a] parent,

guardian, or other person supervising the welfare of a child under 18 years

of age . . . commits an offense if he knowingly endangers the welfare of the

child by violating a duty of care, protection, or support.”         18 Pa.C.S.A.

§ 4304(a)(1). This court has established a three-part test for determining

whether the elements of endangering the welfare of children have been met:

             (1) the accused was aware of his duty to protect the
             child; (2) the accused was aware that the child was
             in circumstances that could threaten the child’s
             physical or psychological welfare; and (3) the
             accused has either failed to act or has taken action
             so lame or meager that such actions cannot
             reasonably be expected to protect the child’s
             welfare.

Commonwealth v. Bryant, 57 A.3d 191, 197 (Pa.Super. 2012) (citations

omitted).

      In    order   to   obtain   a   conviction   for   indecent   assault,   the

Commonwealth must prove beyond a reasonable doubt that the defendant

had, “indecent contact with the complainant or causes the complainant to

have indecent contact with the [defendant], and . . . the complainant is less

than 13 years of age.” 18 Pa.C.S.A. § 3126(a)(7).

      This court has previously stated that the uncorroborated testimony of

a victim of a sexually based offense is sufficient to uphold a conviction, so

long as the testimony is believed by the trier-of-fact. Commonwealth v.


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Trippett, 932 A.2d 188, 194 (Pa.Super. 2007), citing Commonwealth v.

Charlton, 902 A.2d 554, 562 (Pa.Super. 2006).           A fact-finder is free to

believe all, part, or none of the evidence, including uncorroborated

testimony, presented.    Commonwealth v. Mosley, 114 A.3d 1072, 1087

(Pa.Super. 2015) (citations omitted).      Therefore, how much credibility and

weight is given to uncorroborated testimony is fully within the exclusive

purview of the fact-finder.

      In the instant case, the jury heard the victim’s uncorroborated

testimony regarding three separate encounters with appellant. Through her

testimony, the Commonwealth proved all three elements of endangering the

welfare of children beyond a reasonable doubt.         During all three of the

encounters with appellant to which the victim testified, appellant was the

only adult present in the home during the assaults. Based upon the victim’s

testimony, the Commonwealth proved beyond a reasonable doubt that

appellant owed a duty to the victim and violated that duty on the three

occasions that he assaulted her. See Bryant, 57 A.3d at 199. The jury, in

voting to convict appellant of all crimes charged with the exception of

indecent exposure, found the victim’s testimony to be credible, thereby

warranting a conviction.      Therefore, we find that appellant’s sufficiency of

the evidence claim, as it pertains to the endangering the welfare of children

charge, has no merit.




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      Finally, we address the corruption of minors charge.                  “[W]hoever,

being of the age of 18 years and upwards, by any act corrupts or tends to

corrupt the morals of any minor less than 18 years of age . . . commits a

misdemeanor of the first degree.” 18 Pa.C.S.A. § 6301(a)(1)(i). This court

has   previously     upheld    a   conviction     for   corruption   of   minors   under

Section 6301(a)(1)(i).        Commonwealth v. Kelly, 102 A.3d 1025, 1032

(Pa.Super. 2014) (en banc).           The defendant in Kelly was convicted of

indecent assault, which the court determined was sufficient to justify a

conviction for corruption of minors. Id. In the instant case, appellant was

convicted of three counts of indecent assault; therefore, there is sufficient

evidence to warrant his conviction for corruption of minors.

      Appellant also raises the argument that the jury produced an

inconsistent verdict. Specifically, appellant notes that the jury acquitted him

of a charge of indecent exposure “on the same factual basis as one of the

counts of indecent assault.” (Appellant’s brief at 6.) This argument holds no

merit.      Both the United States Supreme Court and the Pennsylvania

Supreme Court have cautioned against appellate review of inconsistent

verdicts.    “[T]he fact that the inconsistency [in the verdict] may be the

result of lenity, coupled with the Government’s inability to invoke review,

suggests      that   inconsistent     verdicts      should    not    be    reviewable.”

Commonwealth v. Miller, 35 A.3d 1206, 1209 (Pa. 2012), quoting United




                                         - 17 -
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States v. Powell, 469 U.S. 57, 65 (1984). Therefore, appellant’s argument

relating to inconsistent verdicts has no merit.

      Judgment of sentence affirmed.



      Bender, P.J.E. joins the Memorandum.

      Strassburger, J. files a Concurring Memorandum.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 11/18/2015




                                     - 18 -
                                                                                               Circulated 10/28/2015 02:34 PM




COMMONWEALTH OF                  PEmfs!KvhllfiA1ECOR:OfN THE COURT                     PLEAS
                                                                                       OF COMMON
                            Appellee;?D,5f£B 27 M~              g:;   4~~A~O~iJlJNNSYLVANIA
                            v.             CRtf courn-.1 :
                                         CL[Ri, OF coi';RTn
DAYID ALLEN BILLE,                          ER If. PA I Gs.:;_ 'f
                            Appellant                             : No. 2982 OF 2013

                                                 1925(a) OPINION

Garhart, J., February~               2015

           Appellant, David Allen Bille, appeals from the judgment of sentence entered on October

28, 2014, following his conviction of one count of endangering welfare of children, three counts

of indecent assault, and one count of corruption of minors.'                    Based upon the following, this

Court respectfully requests the Honorable Superior Court affirm his judgment of sentence.


      I.       BACKGROUND OF THE CASE

           Appellant was convicted of sexually assaulting his step-daughter, S.S. The first assault

occurred when S.S. was six-years old and living with AppeJlant, her mother and older brother.

N.T. Trial (Day 2), 06/20/14, at 6. On that occasion, Appellant instructed S.S. to touch his penis,

and she complied.          Id., at 6, 8-10. During the assault, S.S.'s mother was not home and her

brother was in his bedroom. Id., at 7-8.

           Appellant assaulted S.S. a second time when she was eight or nine-years old. Appellant

instructed S.S. to sit on his lap and he began touching her breasts and vaginal area. Id., at 14, 16.

At the time of the assault, S.S. 'smother was not home and her older brother was in the basement

playing video games. Id. at l 5, 17.

           Another assault occurred while S.S. was in her bedroom.                  Appellant entered her room

while she was partially unclothed and instructed her to sit               on the knob of the   foot of her bed. Id.,



J   18 Pa.C.S.A. §§4304{a), 3126(a)(7) and 630\(a)(l)(i). respectively.
                                                            1
                                                                                Circulated 10/28/2015 02:34 PM




at 18, 20. Appe11ant then placed his hand over her vagina and told her this would relax her. Id.,

at 18, 20. S.S.'s mother was not home, and her brother was in the basement. Id., at 18.

        The last assault occurred when S.S. was 11. While S.S. was on a couch in the living

room, AppelJant placed his hand over her vaginal area. Id., at 22-23.     As S.S. struggled to get

away. Appellant lifted up her shirt and bra and placed his hands over her exposed breasts. Id., at

23. After S.S. ended up on the floor, Appellant straddled her and pressed his penis against her

lower abdomen/pelvic area. Id., at 23,

        On June 20, 2014, following a two-day jury trial, Appellant was found guilty of the

foregoing offenses.    Appellant was also found not guilty of indecent exposure.        This Court

subsequently ordered a sexual violent predator (SVP) assessment pursuant to Pennsylvania's

version of "Megan's Law", the Sex Offender Registration and Notification Act, 42 PaC.S.A.

§9799.10 et. seq. ("SORNN').

       Appellant's SVP hearing was held on October 28, 2014. At that time, Brenda A. Manno,

a licensed clinical social worker and board member of the Pennsylvania            Sexual Offender

Assessment Board, testified to a reasonable degree of professional certainty that Appellant met

the statutory criteria for classification as a sexually violent predator. N.T. SVP and Sentencing,

10/28/14, at 17. At the conclusion of the SVP hearing, this Court found that Appellant was a

sexually violent predator.   Id, at 68.

       Following the SVP bearing, Appellant was sentenced to the following terms of

incarceration: 6 to 12 months' incarceration at Count l (endangering welfare of child); a term of

2 to 4 months' incarceration at Count 3 (indecent assault), consecutive to Count 1 ; and, a term of

2 to 4 months' incarceration at Count 4 consecutive to Counts 1 and 3, above.




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            On December 1, 2014, Appellant fiJed a Notice of Appeal.       Oo December 3, 2014, this

    Court ordered that Appellant file a concise statement of matters complained of on appeal.

    pursuant to Pa.R.A.P. 1925.       Appellant complied on January 30, 2015, and raises the following

issues on appeal':

            (1)    The Honorable Trial Court committed reversible error of law by ruling to
            exclude, as irrelevant, any mention of a report that was made by the Office of
            Children and Youth, which concluded that the allegations in this case were
            unfounded,

            (2)    The Honorable Trial Court erred and abused its discretion as well as
            denied Defendant's Due Process rights guaranteed by the 5th and 14th
            Amendments because the evidence was insufficient to warrant a GillLTY verdict
            on the Charges of Endangering the Welfare of Children, Three (3) Counts of
            Indecent Assault, and Corruption of Minors. The Defendant was found NOT
            GUILTY of Indecent Exposure on the same factual basis as one of the Counts of
            Indecent Assault.

            {3)     The Honorable Trial Court abused its discretion and violated the
            Defendant's 14th Amendment Due Process rights by not granting Defendant's
            continuance prior to the Sexually Violent Predator Determination Hearing, so the
            Defendant could find a qualified expert to rebut Ms. Manna's testimony.        The
            continuance did not prejudice the Commonwealth in any way.

           ( 4)    The Honorable Trial Court erred and abused its discretion as well as
           denied Defendant's Due Process rights guaranteed by the 5th and 14th
           Amendments by relying on facts not in evidence to determine that the Defendant
           was a Sexually Violent Predator. The Honorable Trial Court relied exclusively on
           Ms. Mann.o's determination that the Defendant was a Sexually Violent Predator.
           Ms. Manno did not review the trial transcripts, she did not meet with the
           Defendant, and the report contained several errors. Ms. Manno relied on the
           preliminary hearing transcripts, criminal complaint, and probable cause affidavit
           in making her determination, not evidence presented at trial.

           (5)     The Honorable Trial Court erred and abused its discretion as well as
           denied Defendant's Due Process rights guaranteed by the 5th and 14th
           Amendments by classifying the Defendant to be a Sexually Violent Predator. The
           Commonwealth's Burden of Clear and Convincing evidence was not met because
           the Commonwealth did not provide evidence that the Defendant was likely to
           reoffend. Furthermore, the factors contained in the statute weigh heavily in the
           Defendant's favor.


2
    Appellant's issues are renumbered for ease of discussion.

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         (6)     The Honorable Trial Court erred and abused its discretion as well as
         denied Defendant's Due Process rights guaranteed by the 5th and 14th
         Amendments by its application of statute 42 Pa.C.S. Section 9795.4 at the SVP
         hearing. The trial court['s] application of this statute requires that any person
         convicted of a listed offense will also be deemed a Sexually Violent Predator.
         Therefore, the statute was improperly applied to the Defendant in this case, which
         is reversible error.

         (7)     Pennsylvania's Sexually Violent Predator statute is Vague and Overbroad
         and therefore Defendant should not be considered a Sexually Violent Predator.

Appellant's Rule 1925(b) statement. 01/30/15, at renumbered          fl   1 ~ 7.

    n.       DISCUSSION

         A. Whether the trial court erred in precluding inadmissible evidence?

         Admission of evidence is within the sound discretion of the trial court and will be
         reversed only upon a showing that the trial court clearly abused its discretion.
         Admissibility depends on relevance and probative value. Evidence is relevant if it
         logically tends to establish a material fact in the case, tends to make a fact at issue
         more or less probable or supports a reasonable inference or presumption regarding
         a material fact.
Commonwealth v. Drumheller. 570 Pa. 117, 135, 808 A.2d 893, 904 (2002')(quotation marks and

citation omitted).

         Before trial, Appellant requested admission of an Office of Children and Youth ("OCY")

investigation, which determined that S.S.'s allegations were unfounded.                 N.T. Trial (Day 1),

06/19/14, at 4.      Appellant claimed the OCY employee             and investigating Pennsylvania       State

Trooper observed an interview at the Crime Advocacy Center. Id., at 5. Appellant claimed the

OCY      determination   was   relevant   because       the   OCY     employee      was trained,     from    a

Commonwealth agency, and involved in an investigation with the state trooper. Id., at 5-6.

         In reply, the Commonwealth        claimed that the OCY employee                made a credibility

determination based upon their own standards, which was not relevant.              Id., at 7.

         After argument, this Court concluded that the evidence is inadmissible because it was a

sub-species of vouching. Id, at 7. Particularly, the Court concluded the following:


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       Here the question for this jury is do they find the evidence credible. The fact that
       some otber person involved in the process might have a differcnt view of the
       evidence it seems to me is irrelevant. The question is what does this jury think
       the Commonwealth bas met a minimal legal standard of probability cause at the
       magistrate. I recognize how low that is, it's pretty low. There's no credibility
       assessment made. But the credibility assessment is to be made by the jury in this
       trial on this testimony hcre.. What someone else thought at an earlier time if it
       went to credibility just is a distraction, so I'm not goingto allow it. It's basically
       vouching.

N.T. Trial (Day 1), 06/19/14, at 8.

       Based on the above, the OCY report was not relevant to the jury's determination on

Appellant's culpability. Accordingly, this issue is meritless.

       B.      Whether the jury verdict is appropriate?

       Appellant claims the evidence was insufficient to convict him of the charges because he

was found not guilty of indecent exposure.         Essentially, Appellant claims that this was an

inconsistent verdict Therefore, the claim will be analyzed       as a challenge   to the inconsistency of

the jury's verdict, rather than a sufficiency of the evidence claim. See, Commonwealth v. Moore,

103 A.3d 1240, 1242 n.3 (Pa. 2014), citing United States v. Powell, 469 U.S. 57, 67

(l 984)(finding that "such challenges are more appropriately characterized          as challenges to the

inconsistency of the jury's verdict, rather than to the sufficiency of the evidence to sustain a

particular conviction")

       Federal and Pennsylvania courts alike have long recognized that jury acquittals
       may not be interpreted as specific findings with regard to the evidence, as an
       acquittal does not definitively establish that the jury was not convinced of the
       defendant's guilt. Rather, it has been the understanding of federal courts as well
       as the courts of this Commonwealth that an acquittal may merely show lenity on
       the jury's behalf, or that "the verdict may have been the result of compromise or
       of a mistake on the part of the jury. Accordingly, the United States Supreme
       Court has instructed the courts not to make factual findings regarding jury
       acquittals and, thus, cannot "upset" verdicts by "speculation or inquiry into such
       matters."
       It is because of the inability to ascertain the rationale behind a jury's decision to
       acquit a defendant that the United States Supreme Court has proclaimed that


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      "[clonsistency in the verdict is not necessary," expressly holding that a defendant
      may not challenge his conviction on one count when it is inconsistent with the
      jury's verdict or acquittal on another count.

Moore, 103 A.3d at 1246·1247 (internal citations and quotation marks omitted).

       Here, the fact that Appellant was found not gui)ty of indecent exposure and guilty of

indecent assault does not render the verdict unsound.       Pennsylvania law allows inconsistent

verdicts. Moreover, the fact that Appellant was found not guilty of indecent exposure cannot be

interpreted as a specific regarding the evidence at trial. Commonwealth v. Miller, 35 A.3d 1206,

1213 (Pa. 20 l 2)(noting that an acquittal cannot be interpreted as a specific finding in relation to

the evidence). Accordingly, this claim is meritless.

       C. Whether the trial Court erred in denying Appellant's untimely request for a
          sentencing continuance?

       On June 20, 2014, Appellant was found guilty of the foregoing offenses. On October 22,

2014, approximately four months after trial and six days before the scheduled hearing, Appellant

filed a Motion to Continue.   Appellant requested a six week continuance so that he could treat

with a psychologist who would then prepare an independent assessment on whether he was a

sexual predator. Motion to Continue, 10/22/15, at ,t 5.    Appellant claimed he was attempting to

find his own health care professional to conduct an independent examination, and although most

health care professional refused, one individual agreed only if he treated Appellant for a nwnber

of weeks. Id., at~ 6. Appellant claimed the Commonwealth would suffer no prejudice. Id. On

October 24, 2014, this Court denied the motion.




        During the SVP hearing, Appellant         again renewed     his request for a sentencing

continuance.   In support, he noted he was unable to find an expert who did not want to treat


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       D. Whether Appellant is a sexually violent predator?

       In his final four issues on appeal, Appellant challenges the SVP determination. Appellant

claims the trial court erred in the following respects: (1) relying exclusively on Ms. Manno's

determination when she did not review the trial transcripts or evidence presented at trial. Ms.

Manno also failed to meet with Appellant and submitted a report with errors; (2) classifying

Appellant as a SVP when the Commonwealth did not provide evidence that he was likely to re-

offend; and, (3) application of the SVP statute that requires that any person convicted of a listed

offense will also be deemed a SVP.           Appellant's   Rule 1925 (b) statement, 01/30/15,       at

renumbered   114-6.   Appellant further asserts that Pennsylvania Sexually Violent Predator statute

is vague and overbroad. Id., at renumbered    17.
       At the outset, "[w]hen [the Superior Court] reviews the sufficiency of the evidence

supporting a determination of SVP status, '[it] will reverse the tria1 court 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. Fletcher, 947 A.2d 776 (Pa. Super. 2008), quoting Commonwealth v. Haughwout, 837 A.2d

480, 484 (Pa Super. 2003).

       A "sexually violent predator" is defined as an individual convicted of an offense as set

forth in Section 9799.14 (relating to sexual offenses and tier system) and who is determined to be

a sexually violent predator under section 9799.24 (relating to assessments) due to a mental

abnormality or personality disorder that makes the individual likely to engage in predatory

sexually violent offenses." 42 PaC.S.A. § 9799.12. The statute defines "mental abnormality" as

a "congenital or acquired condition of a person that affects the emotional or volitional capacity

of the person in a manner that predisposes that person to the commission of criminal sexual acts



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to a degree that makes the person a menace to the health and safety of other persons." Id. The

term "predatory" is defined as an "act directed at a stranger or at a person which whom a

relationship has been initiated, established, maintained or promoted, in whole or in part, in order

to facilitate or support victimization.', Id

        The standard of proof governing the determination of SVP status. i.e., clear and
        convincing evidence, has been described as an intermediate test, which is more
        exacting than a preponderance of the evidence test, but less exacting than proof
        beyond a reasonable doubt. The clear and convincing standard requires evidence
        that is so cJear, direct, weighty, and convincing as to enable the trier of fact to
        come to a clear conviction, without hesitancy, of the truth of the precise facts in
        issue.

Commonwealth v. Bishop, 936 A.2d 1136, 1 141 (Pa Super. 2007)              (internal citations   and

quotation marks omitted).

        Once an individual is convicted of a sexually violent offense, the trial court must order

the person to be assessed by the Sexual Offenders Assessment Board.           See 42 Pa.C.S.A. §

9799.24(a).   The Board, in making its assessment, must follow the procedure set forth in 42

Pa.C.S.A. § 9799.24. The relevant portions are as follows:

       § 9799.24. Assessments



       (b) Assessment.--Upon receipt from the court of an order for an assessment, a
        member of the board as designated by the administrative officer of the board shall
        conduct an assessment of the individual to determine if the individual should be
        classified as a sexually violent predator. Toe board shall establish standards for
        evaluations and for evaluators conducting the assessments. An assessment shall
        include, but not be limited to, an examination of the following:

       (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) Toe nature of the sexual contact with the victim.


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      (iv) Relationship of the individual to the victim.

      (v) Age of the victim.

      (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.

      (ii) Use of illegal drugs.

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

      (jv) 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. § 9799.24.

       Instantly, this Court directed the State Sexual Offender Assessment Board to perform an

SVP assessment of Appellant. Ms. Brenda Manno, a licensed clinical social worker and member

of the Board, conducted the assessment and prepared a report in which she concluded, to a

reasonable   degree of professional    certainty,   that Appellant   met the statutory criteria for

classification as a sexually violent predator. N.T. SVP Hearing and Sentencing, 10/28/14, at 17.

        At the SVP bearing, Ms. Manno explained that she reviewed the following: (1) report

from the Board investigator, Nicole Bahr; (2) Child Line Records; (3) police report, criminaJ



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complaint. and affidavit of probable cause: (4) preliminary hearing transcript; (5) records from

the Pennsylvania Department of Transportation; and, (6) letter of non-participation from the

defense attorney.      N.T. SVP Hearing and Sentencing, 10/28/14, at 11, 25. She explained the

relevant statutory criteria that she considered and rendered her opinion that Appellant suffered

from a mental abnormality/personality disorder and met the diagnostic criteria for unspecified

paraphilic disorder, which is a lifetime disorder.       Id .. at 12-16 .   Ms. Manno also found that

Appellant· s paraphilia made it more likely that he would reoffend in a sexual manner. Id., at 15.

           Ms. Manno concluded that Appellant's behavior was predatory as defined under the

statute.     Id., at 15-16.   She further concluded that Appellant maintained         or promoted     his

relationship as the victim's step-father to have access to. and sexually victimize her. ld., at 16.

           In making its determination, this Court considered the record, all of the relevant statutory

provisions, and credited Ms. Manna's testimony and her report. The fact that Ms. Manno did not

interview Appellant is not dispositive, especially since Appellant notified the Board on or about

June 24, 2014, that he was refusing to participate in the interview process. Any purported errors

contained in the report bad no bearing on the SVP determination.               N.T. SVP Hearing and

Sentencing, I 0/28/14, at 29-30, 58-59. Furthermore, the fact that Ms. Manno did not review the

trial transcripts. which were not transcribed until January of 2015, and instead relied on other

credible evidence. does not impact her determination.         Finally, despite Appellant's argument to

the contrary, Ms. Manna's determined that Appellant had the likelihood of reoffending.              N.T.

SVP Hearing and Sentencing, 10/28/14, at 15; See also, 8/28/14 Sexually Violent Predator

Assessment at 3-4.

           The fact that some of the enumerated assessment factors under Section 9799.24 may not

have been present is not dispositive because "there is no statutory requirement that all of them or



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