J-S41023-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA
                            Appellee

                       v.

EDWARD PAUL FIDLER

                            Appellant                No. 1726 MDA 2014


             Appeal from the Judgment of Sentence May 27, 2014
              In the Court of Common Pleas of Lebanon County
             Criminal Division at No(s): CP-38-CR-0000996-2013
                           CP-38-CR-0001001-2013


BEFORE: ALLEN, J., LAZARUS, J., and PLATT, J.*

MEMORANDUM BY LAZARUS, J.:                             FILED JUNE 26, 2015

        Edward Paul Fidler appeals from the judgment of sentence imposed in

the Court of Common Pleas of Lebanon County after a jury convicted him of

one count of involuntary deviate sexual intercourse (IDSI),1 two counts of

aggravated indecent assault,2 two counts of indecent assault,3 two counts of




____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
1
    18 Pa.C.S.A. § 3123.
2
    18 Pa.C.S.A. § 3125.
3
    18 Pa.C.S.A. § 3126.
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corruption of minors,4 and two counts of endangering the welfare of

children.5 Upon careful review, we affirm.

        The offenses related to sexual abuse perpetrated by Fidler against two

minor girls with whom he lived during the time of the abuse.         The first

victim, R.F., testified that from October 2012 through May 2013, Fidler

resided in her home along with R.F.’s mother, father and brother.      During

that time, Fidler used his tongue and fingers to touch her private parts,

which she identified as her vagina and breasts on a female body diagram.

N.T. Trial, 2/5/14, at 11-14. R.F. was twelve years old when these incidents

occurred. Id. at 18. During questioning by police, Fidler admitted to these

sexual acts as well as to having bought R.F. gifts. Id. at 46-49.

        The second victim, F.S., testified that Fidler had lived in the same

household as her for a few months and that during that time Fidler would

touch her breasts, buttocks, and vagina with his hands. Id. at 22-25. F.S.

also testified that, after Fidler moved out, he would pick her up from school

and spy on her while she was outside on the playground. Id. at 28. Fidler

admitted these sexual acts to the police as well as to having touched his

mouth to F.S.’s vagina.        Id. at 52-53. Fidler acknowledged that F.S. was

eleven or twelve at the time of these acts. Id. at 53.


____________________________________________


4
    18 Pa.C.S.A. § 6301.
5
    18 Pa.C.S.A. § 4304.



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        After the jury found Fidler guilty of the various offenses, the trial court

ordered that he undergo a Sexually Violent Predator assessment by the

Sexual Offenders Assessment Board pursuant to section 9799.24 of the

Sexual Offender Registration and Notification Act (SORNA). 6           Dr. Robert

Stein, a member of the Board, performed the assessment and, on May 27,

2014, the trial court determined that Fidler was an SVP. The trial court also

sentenced Fidler to ten (10) to twenty (20) years’ imprisonment.           Fidler’s

post-sentence motions were denied and he filed a timely notice of appeal to

this Court, as well as a court-ordered statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b).

        On appeal, Fidler challenges the sufficiency of the evidence as to all

the offenses of which he was convicted. He also claims that the Court erred

in finding him to be an SVP.

        Fidler first challenges the sufficiency of the evidence to establish all of

his convictions.     We review a sufficiency of the evidence claim under the

following standard:

        The standard we apply in reviewing the sufficiency of the
        evidence is whether viewing all the evidence admitted at trial in
        the light most favorable to the verdict winner, there is sufficient
        evidence to enable the fact-finder to find every element of the
        crime beyond a reasonable doubt. In applying the above test,
        we may not weigh the evidence and substitute our judgment for
        that of the fact-finder. In addition, we note that the facts and
        circumstances established by the Commonwealth need not
____________________________________________


6
    42 Pa.C.S.A. §§ 9799.10 - 9799.41.



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      preclude every possibility of innocence. Any doubts regarding a
      defendant’s guilt may be resolved by the fact-finder unless the
      evidence is so weak and inconclusive that as a matter of law no
      probability of fact may be drawn from the combined
      circumstances. The Commonwealth may sustain its burden of
      proving every element of the crime beyond a reasonable doubt
      by means of wholly circumstantial evidence.          Moreover, in
      applying the above test, the entire record must be evaluated and
      all evidence actually received must be considered. Finally, the
      trier of fact while passing upon the credibility of witnesses and
      the weight of the evidence produced, is free to believe all, part
      or none of the evidence.

Commonwealth v. Vargas, 108 A.3d 858, 867-68 (Pa. Super. 2014)

(brackets omitted).

      Pennsylvania’s IDSI statute provides, in relevant part:

      § 3123. Involuntary deviate sexual intercourse

                                     ***

      (b) Involuntary deviate sexual intercourse with a child.--A
      person commits involuntary deviate sexual intercourse with a
      child, a felony of the first degree, when the person engages in
      deviate sexual intercourse with a complainant who is less than
      13 years of age.

18 Pa.C.S.A. § 3123. Deviate sexual intercourse is defined, in relevant part,

as “[s]exual intercourse per os or per anus between human beings.”            18

Pa.C.S.A. § 3101. “Intercourse per os or per anus” are acts of oral or anal

sex, respectively.    Commonwealth v. Kelley, 801 A.2d 551, 555 (Pa.

2002).

      Evidence that the defendant placed his mouth to a victim’s vagina

constitutes oral intercourse, and is sufficient to sustain a conviction for IDSI.

Commonwealth v. Castelhun, 889 A.2d 1228, 1233 (Pa. Super. 2005).

Here, R.F. testified that Fidler placed his tongue on her vagina and Fidler

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admitted to the police to having done so.            Thus, the record supports the

jury’s guilty verdict for this offense.

      Pennsylvania’s    aggravated        indecent   assault   statute   provides,   in

relevant part:

      § 3125. Aggravated indecent assault

      (a) Offenses defined.--Except as provided in sections 3121
      (relating to rape), 3122.1 (relating to statutory sexual assault),
      3123 (relating to involuntary deviate sexual intercourse) and
      3124.1 (relating to sexual assault), a person who engages in
      penetration, however slight, of the genitals or anus of a
      complainant with a part of the person's body for any purpose
      other than good faith medical, hygienic or law enforcement
      procedures commits aggravated indecent assault if:

                                          ***

      (7) the complainant is less than 13 years of age.

18 Pa.C.S.A. § 3125.

      Digital penetration is sufficient to support a conviction for aggravated

indecent assault.    Commonwealth v. Gonzalez, 109 A.3d 711, 723 (Pa.

Super. 2015). Here, both victims testified that Fidler placed his finger inside

of their vaginas when they were under the age of thirteen.                 Fidler also

admitted these acts to the police.          Accordingly, the record supports the

jury’s finding of guilt on this offense.

      Pennsylvania’s indecent assault statute provides, in relevant part:

      § 3126. Indecent assault

      (a) Offense defined.--A person is guilty of indecent assault if
      the person has indecent contact with the complainant, causes
      the complainant to have indecent contact with the person or
      intentionally causes the complainant to come into contact with


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        seminal fluid, urine or feces for the purpose of arousing sexual
        desire in the person or the complainant and:

                                      ***

        (7) the complainant is less than 13 years of age.

18 Pa.C.S.A. § 3126. “Indecent contact” is defined as “[a]ny touching of the

sexual or other intimate parts of the person for the purpose of arousing or

gratifying sexual desire, in any person.” 18 Pa.C.S.A. § 3101.

        The evidence of digital penetration is also sufficient to support the

conviction for indecent assault as Fidler touched the intimate parts of the

girls for the purposes of arousal.

        Pennsylvania’s corruption of minors statute provides, in relevant part:

        § 6301. Corruption of minors

                                      ***

        (a)(1)(ii) Whoever, being of the age of 18 years and upwards,
        by any course of conduct in violation of Chapter 31 (relating to
        sexual offenses) corrupts or tends to corrupt the morals of any
        minor less than 18 years of age, or who aids, abets, entices or
        encourages any such minor in the commission of an offense
        under Chapter 31 commits a felony of the third degree.

18 Pa.C.S.A. § 6301(a)(1)(ii).

        In Castelhun, supra, “[the defendant’s] actions in engaging in

repeated sexual assaults upon a 12 year old girl, clearly satisfy the requisite

elements for corrupting the morals of a minor.”       Castelhun, 889 A.2d at

1234.     Here, the sexual conduct displayed by Fidler towards his victims

constitutes violations of various sexual offenses as defined in Chapter 31 of

the Crimes Code. Fidler is older than eighteen, having been born in 1960,



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while the two victims were both younger than eighteen years of age when

these acts occurred.    These sexual offenses, in addition to the gifts Fidler

provided his victims, are sufficient to have enabled the jury to find Fidler

guilty of corrupting his victims’ morals.

      Finally, Pennsylvania’s endangering the welfare of children statute

provides, in relevant part:

      § 4304. Endangering welfare of children

      (a)(1) A parent, guardian or other person supervising the
      welfare of a child under 18 years of age, or a person that
      employs or supervises such a person, 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.

      In Commonwealth v. Bishop, 742 A.2d 178, 190 (Pa. Super. 1999),

this Court held that where the victim’s mother left the defendant, the

victim’s step-grandfather, in charge of the victim and the defendant then

sexually abused her, there was sufficient evidence to support a conviction of

endangering the welfare of children. Here, Fidler was R.F.’s uncle and living

with her at the time that he sexually abused R.F. Fidler was a member of

F.S.’s household and the sexual violations occurred when F.S.’s parents had

left Fidler in charge of the household. Thus, the evidence as to both victims

was sufficient for the jury to find that Fidler violated his duty of care towards

the two victims and thereby endangered their welfare through his conduct.




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         Viewing the evidence in the light most favorable to the Commonwealth

as verdict winner, see Vargas, supra, we agree with the trial court that

there was sufficient evidence to convict Fidler of all of the above offenses.

         Fidler also challenges the trial court’s determination that he is an SVP.

A challenge to a determination of SVP status requires us to view the

evidence presented in the light most favorable to the Commonwealth.

Commonwealth v. Prendes, 97 A.3d 337, 355 (Pa. Super. 2014).                    We

may not weigh the evidence or substitute our judgment for that of the trial

court.     Id.   The Commonwealth must establish SVP status by clear and

convincing evidence, which requires evidence that 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. Id. The scope

of our review is plenary. Id. at 357.

         After conviction but before sentencing, the trial court is required to

order an individual convicted of a sexually violent offense to be assessed by

the Board.       Section 9799.24 of the Sentencing Code provides, in relevant

part:

         § 9799.24. Assessments

         (b) Assessment.-- 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.


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         (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.

         (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
     field as criteria reasonably related to the risk of reoffense.

42 Pa.C.S.A. § 9799.24(b).

     While the Board must examine all statutory factors, there is no

requirement that all factors or any particular number of them be present or

absent in order to support an SVP designation. Commonwealth v. Brooks,

7 A.3d 852, 863 (Pa. Super. 2010). Rather, the question for the SVP court

is whether the Commonwealth’s evidence, including the Board’s assessment,

shows that the person convicted of a sexually violent offense has a mental



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abnormality or disorder making that person likely to engage in predatory

sexually violent offenses. Id. Based on the evidence presented, the court

decides whether a defendant is to be designated an SVP and thus made

subject to SORNA’s registration requirements. Id.

         An   appellate   court’s   role   in   a   sufficiency   review   of   an   SVP

determination is not to compare and weigh the factors that are “absent” in

supporting the classification against those found and relied upon by the trial

court.     Commonwealth v. Meals, 912 A.2d 213, 220 (Pa. 2006).                      This

Court is confined to an “assessment of those factors which supported the

SVP finding.” Id.

         Here, Dr. Stein performed an evaluation of Fidler and testified to a

reasonable degree of professional certainty that, based on the young ages of

the children Fidler abused, the nature of the sexual acts, and the fact that

the abuse continued for at least seven months, Fidler met the criteria for

pedophilic disorder,7 a mental abnormality.           Dr. Stein stated that this is a

lifelong, non-curable condition and that reoffending is likely if the individual

is given unsupervised access to young girls in the future. N.T. SVP Hearing,

5/27/14, at 9. Dr. Stein testified that it was relevant that Fidler was caught

in bed with R.F. for a second time in May of 2013, as it demonstrates that


____________________________________________


7
  Dr. Stein defined this as a condition that describes a sexual interest and
acting on that interest over a period of at least six months. N.T. SVP
Hearing, 5/27/14, at 8.



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being caught the first time was not sufficient to cause him to stop the

behavior. Id. at 8-9.

      Regarding the predatory nature of the acts, Dr. Stein stated:

      Predatory has to do with either initiating or establishing or
      maintaining or promoting a sexually victimizing relationship with
      multiple acts of sexual contact. Relationships were establish[ed]
      and maintained and promoted with each of these two victims.
      The acts of buying gifts, the rubbing lotion on the children is
      considered grooming behaviors. Grooming are any acts that
      make it easier to gain a victim’s permission to sexually assault
      them, to break down their defenses, their boundaries, and that
      is also consistent with predatory behavior and with Pedophilic
      Disorders as well.

Id. at 11.    Dr. Stein then testified that he believes Fidler meets “the

classification of [a] sexually violent predator” after reviewing all of the

information provided. Id. at 11. Dr. Stein acknowledged that after age 60

there is a drop-off in recidivism, but the risk is not eliminated and that the

low rates may be due to a lack of reporting. Id. at 15-16.

      Based on our review of the evidence presented by the Commonwealth

at Fidler’s SVP hearing, including Dr. Stein’s testimony, we conclude that the

trial court did not err in finding, by clear and convincing evidence, that Fidler

satisfied the criteria to be classified as an SVP.

      Judgment of sentence affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/26/2015




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