J-S16040-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF                            :   IN THE SUPERIOR COURT OF
    PENNSYLVANIA                               :        PENNSYLVANIA
                                               :
                      Appellee                 :
                                               :
                v.                             :
                                               :
    DAVID CHARLES BEAN                         :
                                               :      No. 1320 MDA 2017
                       Appellant               :


            Appeal from the Judgment of Sentence August 15, 2017
              in the Court of Common Pleas of Lycoming County
              Criminal Division at No.: CP-41-CR-0001226-2014


BEFORE:      BOWES, J., MURRAY, J., and PLATT*, J.

MEMORANDUM BY PLATT, J.:                                    FILED JULY 31, 2018

       Appellant, David Charles Bean, appeals from the judgment of sentence,

as amended, following his conviction by a jury of rape of an unconscious

person, and numerous related offenses.1            Appellant chiefly challenges the

denial of his motions to suppress evidence of the sexual encounters found on

his cell phone. He also claims his sentence was excessive. Finally, he disputes

his designation as a sexually violent predator (SVP). We vacate the portion

of Appellant’s sentence finding him to be a sexually violent predator and affirm

in all other respects.

____________________________________________


1 The trial court corrected and reduced Appellant’s sentence on August 15,
2017. Therefore, Appellant is appealing from the amended sentence, not the
original sentence imposed on March 20, 2017. We have amended the caption
accordingly.
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S16040-18


      The underlying facts of the case are not in substantial dispute. In the

summer of 2013, on or about July 14, 15, August 8, and August 10, 2013,

(see Trial Court Opinion, 8/15/17, at 5-6), Appellant recorded videos on his

cell phone which showed him engaging in graphic, explicit sexual acts with

two female acquaintances, J.D. and L.K. (the Victims), while they were passed

out from the effect of drugs, mainly heroin. Both women were addicted to

heroin.

      Both victims admitted that on previous occasions, each had agreed to

engage in sexual acts with Appellant (while they were conscious) in exchange

for his providing them heroin, Xanax, or the money to buy the drugs.

Appellant essentially claimed a kind of boyfriend/girlfriend relationship with

the two women, who had both lived or stayed with him at various times. At

trial, Appellant explained, “[it] kind of evolved into boyfriend/girlfriend, but

like a degree below that.” (N.T. Trial, 9/13/16, at 31). Appellant maintained

that he had shot the videos to show both women the effect the drugs were

having on them. (See id. at 32).

      However, both of the women denied a romantic relationship with

Appellant, or more than a casual friendship (other than for the admitted sex,

drugs, and living arrangements). Both women also denied consenting to the

sex acts on the videos. Although accounts varied, the two women eventually

discovered the videos and reported Appellant to the Pennsylvania State Police.




                                     -2-
J-S16040-18


They also informed the State Police of burglaries in which Appellant was

involved.

       The state police prepared two affidavits of probable cause in support of

a search warrant for the cell phone. Trooper Jeffrey A. Vilello drafted the first

affidavit of probable cause.       (See Affidavit of Probable Cause, 7/15/14, at

unnumbered pages 1-4). Defense counsel filed a motion to suppress the first

search warrant. He alleged that it was constitutionally invalid as insufficiently

particular, stale, and lacking in probable case.

       At that point, apparently at the urging of the assigned assistant district

attorney, Pennsylvania State Police Corporal Brad Eisenhower, Trooper

Vilello’s supervisor, drafted a supplemental affidavit of probable cause.

Appellant filed a supplemental motion to suppress, on March 9, 2015. (See

Opinion and Order, 3/25/15, at 1).

       At the hearing on the motion, the parties “stipulated that the sole issue,

in light of the subsequent search warrant, related to the taint of said search

warrant.” (Id. at 2). After the hearing, the court denied the second motion

to suppress, and ruled that the first motion to suppress was moot. (See id.

at 6). A State Police expert recovered videos from the cell phone (or from SD

cards, after the women deleted the original videos from the cell phone).2



____________________________________________


2 SD (secure digital) is a memory card developed according to industry
standards for use in portable devices.


                                           -3-
J-S16040-18


       At trial, Appellant’s defense was essentially that the sex was consensual,

because both Victims had previously had sex with him for drugs or money.

The jury convicted Appellant on September 13, 2016.3          The jury acquitted

Appellant of two other counts of invasion of privacy.

       On March 20, 2017, the trial court sentenced Appellant, a repeat felon

with a long criminal history, to a term of incarceration of not less than nineteen

nor more than thirty-eight years of incarceration. The sentencing court had

the benefit of a pre-sentence investigation report (PSI).             (See N.T.

Sentencing, 3/20/17, at 14). Neither party had any objections or corrections

to the contents of the PSI. (See id.). On August 15, 2017, the court amended

the sentence to an aggregate term of not less than eighteen nor more than

thirty-six years of incarceration.4

       Appellant timely appealed on August 17, 2017. Appellant filed a court-

ordered statement of errors on August 23, 2017. See Pa.R.A.P. 1925(b). The

trial court filed a Rule 1925(a) opinion, referencing its Opinion and Order dated

August 14, 2017 (filed August 15, 2017), disposing of Appellant’s post-


____________________________________________


3 In addition to rape of an unconscious person, the jury convicted him of
involuntary deviate sexual intercourse with an unconscious person, two counts
of sexual assault, aggravated indecent assault without consent, aggravated
indecent assault of an unconscious person, four counts of obscene and other
sexual materials and performances, two counts of invasion of privacy, three
counts of indecent assault without consent, and three counts of indecent
assault of an unconscious person.

4 The court vacated Appellant’s convictions of obscene performance on the
ground that that the sex videos had not been presented to the public.

                                           -4-
J-S16040-18


sentence motions.       (See Opinion in Support of Order, 8/24/17); see also

Pa.R.A.P. 1925(a). On the motions to suppress issue, the trial court denied

relief based on the Opinion and Order, 3/25/15, supra at 1-7, previously

authored by the Honorable Marc F. Lovecchio.           (See Trial Court Order,

8/15/17, at 2).

       Appellant presents four questions for our review:

            I. Did the [trial] court err by denying Appellant’s motion to
       suppress evidence obtained as a result of the search of his cell
       phone?

             II. Did the trial court err by denying the Appellant’s
       objection to admission of the evidence obtained from his cell
       phone based on a break in the chain of custody?

             III. Did the trial court abuse its discretion by sentencing the
       Appellant to 18 to 36 years for sexual offenses that he videotaped
       where the alleged victim acknowledged voluntarily participating in
       sexual act [sic] with the Appellant on other occasions for drugs or
       money?

            IV. Should the trial court’s SVP designation be stricken as
       unconstitutional  pursuant    to    this  Court’s   opinion   in
       Commonwealth v. Butler, [173 A.3d 1212 (Pa. Super. 2017)]?

(Appellant’s Brief, at 4).5




____________________________________________


5 The Commonwealth declined to file a brief, relying on the trial court’s order
and opinion dated August 14, 2017 (and filed on August 15, 2017). (See
letter from A. Melissa Kalaus, Esq., Assistant District Attorney, to Jennifer
Traxler, Esq., Deputy Prothonotary, Superior Court of Pennsylvania, 2/15/18).




                                           -5-
J-S16040-18


       In his first claim, Appellant argues that the video evidence from his cell

phone should have been suppressed.6 He contends that the state police were

slow to serve the search warrant, and the information was stale.             (See

Appellant’s Brief, at 12, 15). We disagree.

       Our standard of review in suppression matters is well-settled:

             Our review is limited to determining whether the record
       supports the findings of fact of the suppression court and whether
       the legal conclusions drawn from those findings are correct. . . .
       We are bound by the factual findings of the suppression court,
       which are supported by the record, but we are not bound by the
       suppression court’s legal rulings, which we review de novo.

Commonwealth v. James, 69 A.3d 180, 186 (Pa. 2013) (citation omitted).

       Here, preliminarily, we are compelled to note that Appellant has failed

to ensure that the certified record includes the second affidavit of probable

cause, or the search warrant at issue. Only the first affidavit of probable cause

is included.

             This Court cannot meaningfully review claims raised on
       appeal unless we are provided with a full and complete certified
       record. This requirement is not a mere “technicality” nor is this a
       question of whether we are empowered to complain sua sponte of
       lacunae in the record. In the absence of an adequate certified
       record, there is no support for an appellant’s arguments and, thus,
       there is no basis on which relief could be granted.

Commonwealth v. Preston, 904 A.2d 1, 7 (Pa. Super. 2006), appeal denied,

916 A.2d 632 (Pa. 2007) (citation omitted). “[T]he ultimate responsibility of


____________________________________________


6 Appellant’s argument is sometimes difficult to follow. E.g., at page fifteen,
two lines from the bottom of the page, the argument ends abruptly mid-
sentence with no apparent conclusion. (See Appellant’s Brief, at 15).

                                           -6-
J-S16040-18


ensuring that the transmitted record is complete rests squarely upon the

appellant and not upon the appellate courts.”      Id. (citing Pa.R.A.P.1 931).

Without both affidavits of probable cause, and the search warrant, there is no

basis for meaningful independent review of Appellant’s issue.      Accordingly,

Appellant’s first claim is waived.

      Moreover, on the record before us, and under controlling authority, it

would not merit relief.      We agree with Appellant (and apparently the

Commonwealth) that this issue is controlled by Commonwealth v.

Henderson, 47 A.3d 797 (Pa. 2012), cert. denied, 568 U.S. 946 (2012). (See

Trial Ct. Op., 3/25/15, at 3; Appellant’s Brief, at 12).

      On the specific issue of a supplemental affidavit of probable cause, our

Supreme Court in Henderson limited the effect of the independent source

rule by holding that suppression was not required on account of a second

affiant’s status as a member of the same police department as the original

affiant. See Henderson, supra at 804-05.

      Instead, after discussing the origin and development of the prophylactic

rule articulated in Commonwealth v. Melendez, 676 A.2d 226, 231 (Pa.

1996), and Commonwealth v. Mason, 637 A.2d 251, 257 (Pa. 1993), the

Henderson Court limited it and the independent police team requirement “to

situations in which the rule prevents police from exploiting the fruits of their

own willful misconduct.” Id. at 805 (footnote omitted).




                                      -7-
J-S16040-18


       Here, the trial court found that “[i]n this particular case, there is nothing

of the sort.” (Trial Ct. Op., 3/25/15, at 5). 7 We are bound by the factual

findings of the suppression court, unless they find no support in the record.

See James, supra at 186. Moreover, aside from the claims of procedural

irregularities,   Appellant    fails   to   develop   an   argument   that   he   was

impermissibly prejudiced or that the police exploited the fruits of their own

willful misconduct. Appellant’s first issue is waived and would not merit relief.

       In Appellant’s second claim, he assigns error to the trial court for

denying his objection to the admission of evidence from his cell phone based

on an alleged break in the chain of custody. (See Appellant’s Brief, at 4).

Appellant baldly asserts that “no evidence established that the cellphone

examined either time was the one seized from the Appellant.” (Id. at 21).

Appellant maintains that he is entitled to a new trial. (See id. at 22). We

disagree.

       Our standard of review regarding the admissibility of evidence is
       an abuse of discretion. The admissibility of evidence is a matter
       addressed to the sound discretion of the trial court and . . . an
       appellate court may only reverse upon a showing that the trial
       court abused its discretion. An abuse of discretion is not a mere
       error in judgment but, rather, involves bias, ill will, partiality,
       prejudice, manifest unreasonableness, or misapplication of law.




____________________________________________


7 We note that Melendez involved unauthorized warrantless entry into the
suspect’s home; Mason involved the use of a battering ram.


                                            -8-
J-S16040-18


Commonwealth v. Collins, 70 A.3d 1245, 1251–52 (Pa. Super. 2013),

appeal denied, 80 A.3d 774 (Pa. 2013) (citations, internal quotation marks

and other punctuation omitted).

      For evidence to be admissible on chain of custody grounds, “it is

sufficient that the evidence [ ] establish a reasonable inference that the

identity and condition of the exhibits remained unimpaired until they were

surrendered to the court.” Commonwealth v. Pedano, 405 A.2d 525, 528

(Pa. Super. 1979) (citations omitted).         Every hypothetical possibility of

tampering or identity need not be eliminated. See id. Any gaps in the chain

of custody go to the weight, not admissibility, of the evidence.                See

Commonwealth v. Copenhefer, 719 A.2d 242, 256 (Pa. 1998), cert. denied,

528 U.S. 830 (1999).

      Here, Appellant does not dispute, in fact he freely admitted, that the

videos introduced at trial of his having sex with the two Victims, were recorded

by him.    (See N.T. Trial, 9/13/16, at 33-34).         Nor does Appellant claim

partiality, prejudice, bias, or ill will. Appellant fails to establish a break in the

chain of custody. On independent review, we discern no basis to disturb the

discretion of the trial court. Appellant’s second issue does not merit relief.

      Appellant’s third issue challenges his sentence on the basis that the

victims acknowledged their voluntary participation, on other occasions, in

sexual acts with Appellant for drugs or money. (See Appellant’s Brief, at 4).

He maintains his sentence was excessive “based on the prior relationship


                                        -9-
J-S16040-18


between the parties[.]”   (Id. at 23).   Appellant fails to raise a substantial

question. Moreover, his claim of excessiveness would not merit relief.

           There is no absolute right to appeal when challenging the
     discretionary aspect of a sentence. Rather, an appeal is permitted
     only after this Court determines that there is a substantial
     question that the sentence was not appropriate under the
     sentencing code.

              A defendant presents a substantial question when he
        sets forth a plausible argument that the sentence violates a
        provision of the sentencing code or is contrary to the
        fundamental norms of the sentencing process. In order to
        properly present a discretionary sentencing claim, a
        defendant is required to preserve the issue in either a post-
        sentence motion or at sentencing and in a court-ordered
        Pa.R.A.P. 1925(b) concise statement. Further, on appeal, a
        defendant must provide a separate statement specifying
        where the sentence falls in the sentencing guidelines, what
        provision of the sentencing code has been violated, what
        fundamental norm the sentence violates, and the manner in
        which it violates the norm.

Commonwealth v. Dodge, 77 A.3d 1263, 1268–69 (Pa. Super. 2013),

appeal denied, 91 A.3d 161 (Pa. 2014) (citations, internal quotation marks,

footnote, and other punctuation omitted).

     Here, aside from the mere bald assertion that the sentence did not

substantially serve the purposes of the sentencing code, as set forth in 42

Pa.C.S.A. § 9721, Appellant posits, without reference to any supporting

authority, the novel argument that because he had consensual sex with the

Victims on other occasions, for money or drugs, which he concedes to be

prostitution, he is in effect immunized from criminal liability for non-




                                   - 10 -
J-S16040-18


consensual sex with the Victims later.             (See Appellant’s Brief, at 24); 42

Pa.C.S.A. § 9721(b).8

        Appellant fails to identify what provision of the Sentencing Code is

purportedly violated by sentencing for offenses against a victim (or victims)

who Appellant had previously engaged as a prostitute. Nor does Appellant

identify a fundamental norm underlying the sentencing process which was

violated. See Dodge, supra at 1268.

        Therefore, Appellant fails to present a substantial question that the

sentence violates a specific provision of the Sentencing Code or is contrary to

any identified fundamental norm of the sentencing process. Appellant’s third

claim does not merit relief.




____________________________________________


8   In pertinent part, section 9721(b) provides:

        In selecting from the [sentencing] alternatives set forth in
        subsection (a), the court shall follow the general principle that the
        sentence imposed should call for confinement that is consistent
        with the protection of the public, the gravity of the offense as it
        relates to the impact on the life of the victim and on the
        community, and the rehabilitative needs of the defendant. The
        court shall also consider any guidelines for sentencing and
        resentencing adopted by the Pennsylvania Commission on
        Sentencing and taking effect under section 2155 (relating to
        publication of guidelines for sentencing, resentencing and parole
        and recommitment ranges following revocation).1

42 Pa.C.S. § 9721(b) (footnote omitted); see also Sentencing Guidelines,
204 Pa. Code § 303.18.


                                          - 11 -
J-S16040-18


      Moreover, we agree with the reasoning of the sentencing court, that

concurrent terms would in essence eliminate punishment for (at least) one of

Appellant’s sexual assaults. (See Trial Ct. Op., 8/15/17, at 7).

             Our concern . . . is to avoid giving criminals a “volume
      discount” on crime. If multiple acts of criminal violence were
      regarded as part of one larger criminal transaction or encounter
      which is punishable only as one crime, then there would be no
      legally recognized difference between a criminal who robs
      someone at gunpoint and a criminal who robs the person and
      during the same transaction or encounter pistol whips him in order
      to effect the robbery. But in Pennsylvania, there is a legally
      recognized difference between these two crimes. The criminal in
      the latter case may be convicted of more than one crime and
      sentences for each conviction may be imposed where the crimes
      are not greater and lesser included offenses.

Commonwealth v. Belsar, 676 A.2d 632, 634 (Pa. 1996) (citation omitted).

      Appellant fails to establish a substantial question that his sentence was

excessive.   Moreover, he is not entitled to a volume discount.          Even if

Appellant’s third claim raised a substantial question, it would not merit relief.

      In his fourth and final argument, Appellant challenges his SVP

designation as unconstitutional under Commonwealth v. Butler, 173 A.3d

1212 (Pa. Super. 2017). (See Appellant’s Brief, at 4). Appellant argues that

under Butler, the statutory mechanism for SVP designation is constitutionally

flawed. He asks that this Court vacate the sentencing order and remand for

resentencing without an SVP finding. (See Appellant’s Brief, at 28).

      In support of his argument, Appellant posits that under our Supreme

Court’s decision in Commonwealth v. Muniz, 164 A.3d 1189, 1192 (Pa.

2017), cert. denied, 138 S. Ct. 925 (2018) (Opinion Announcing the Judgment

                                     - 12 -
J-S16040-18


of the Court), Pennsylvania’s Sex Offender Registration and Notification Act

(SORNA), 42 Pa.C.S.A. §§ 9799.10–9799.42, is punitive, and, as applied

retroactively, is unconstitutional under the ex post facto clauses of the United

States and Pennsylvania Constitutions.

      Appellant candidly concedes that he raises this issue for the first time in

this appeal.   (See Appellant’s Brief, at 27).    Consequently, this is not a

reviewable issue for us. We are an error correcting court. “Issues not raised

in the lower court are waived and cannot be raised for the first time on

appeal.” Pa.R.A.P. 302(a).

      Finally, we note that the Legislature has recently amended, and the

Governor has signed, legislation to reenact the SORNA registration system,

applying to individuals who commit an eligible offense on or after December

20, 2012. See Act 29 of 2018 (H.B. 1952); 42 Pa.C.S.A. Ch. 97. The trial

court did not have the opportunity to decide what, if any, effect the amending

legislation had on Appellant’s claim. Therefore, we are constrained to vacate

that portion of Appellant’s sentence finding him to be an SVP and remand to

the trial court to issue a revised notice to Appellant pursuant to 42 Pa.C.S.A.

§ 9799.23 (governing reporting requirements of sex offenders). On remand,

we direct the sentencing court to determine whether the new legislation

affects the propriety of Appellant’s SVP designation. Accordingly, we affirm

the judgment of sentence in part but vacate the court’s imposition of SVP

status and remand with instructions.


                                     - 13 -
J-S16040-18


     Judgment of sentence affirmed in part. SVP designation vacated. Case

remanded with instructions. Jurisdiction relinquished.

     Judge Murray joins the Memorandum.

     Judge Bowes concurs in the result.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary

Date: 07/31/2018




                                   - 14 -
