J-S33014-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    E. R.                                      :
                                               :
                       Appellant               :   No. 3391 EDA 2017

             Appeal from the Judgment of Sentence August 4, 2017
      In the Court of Common Pleas of Wayne County Criminal Division at
                        No(s): CP-64-CR-0000369-2016


BEFORE:      OTT, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED NOVEMBER 15, 2018

        E.R.1 appeals from the judgment of sentence entered following his jury-

trial conviction for crimes committed against his adopted daughter, K.R. E.R.

claims insufficient evidence supported the verdict because the Commonwealth

failed to establish a date on which the alleged crimes occurred and that the

reasonable doubt jury instruction was erroneous. We affirm the judgment of

sentence, but vacate the order finding E.R. to be a sexually violent predator

(“SVP”) and remand for the trial court to give E.R. notice of his correct

reporting requirements.

        K.R. testified that when she was 12 and 13 years old, E.R. improperly

touched her, including touching her breasts, kissing her body, and putting his
____________________________________________


*    Former Justice specially assigned to the Superior Court.

1We redacted the defendant’s name to help protect the privacy of K.R., the
minor victim.
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fingers and tongue inside her vagina. K.R. testified that E.R. began touching

her breasts and underwear, and that in “[r]oughly May of 2015” the touching

progressed and he began to put his fingers inside her vagina. N.T. 5/11/17,

at 35. She knew it was May 2015 because she was hospitalized at the end of

May because she was suicidal. Id. at 35-36. She stated that a week after she

returned from the hospital, the abuse started again. Id. at 36. When asked

how often the abuse occurred she said “[s]ome weeks it would be every night,

other weeks it’d be one or two nights a week. It varied on the week.” Id. at

39. She was unable to provide an estimate of the number of times E.R.

inappropriately touched her, but agreed that it was more than 20 times when

she was 12 and more than 20 times when she was 13. Id. at 40-41. She

further agreed it happened more than 100 times. Id. at 43. The abuse stopped

when she disclosed the acts to her mother in August 2016. Id.

        K.R.’s mother testified and confirmed various aspects of K.R.’s

testimony. Trooper John Strelish also testified regarding his interview of E.R.

Further, Ann Cook, a certified social worker who specializes in sexual trauma

of children, testified as to children’s reactions to abuse, including why there

often is a delay in disclosing the abuse.

        The trial court issued the following reasonable doubt instruction to the

jury:

              It is not the defendant’s burden to prove that he is not
           guilty. Instead, it is the Commonwealth that always has the
           burden of proving each and every element of the crime
           charged and that the defendant is guilty of that crime
           beyond a reasonable doubt. The person accused of a crime

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        is not required to present evidence or prove anything in his
        or her own defense. If the Commonwealth’s evidence fails
        to meet its burden, then your verdict must be not guilty. On
        the other hand, if the Commonwealth’s evidence does prove
        beyond a reasonable doubt that the defendant is guilty, then
        your verdict should be guilty.

           Although the Commonwealth has the burden of proving
        that the defendant is guilty, this does not mean that the
        Commonwealth must prove its case beyond all doubt and to
        a mathematical certainty, nor must it demonstrate the
        complete impossibility of innocence. A reasonable doubt is
        a doubt that would cause a reasonably careful, sensible
        person to pause, hesitate and restrain[] himself or herself
        before acting upon a matter of importance in his or her own
        affairs.

            A doubt to be reasonable must be one which fairly strikes
        a conscientious mind and clouds the judgment. It is not such
        a doubt as one might dig up, conjure up or summon up out
        of nowhere for the purpose[] . . . of escaping or avoiding
        the consequences of an unpleasant or unwanted verdict; but
        it is a doubt which is reasonable and honest, a real doubt
        arising out of the evidence that was presented with respect
        to some element of the crime.

           Further, a reasonable doubt is something different and
        much more, much more serious than a possible doubt.
        During the course of acquisition of worldly knowledge in our
        day-to-day living, all of us can safely and logically conclude
        that a possible doubt exists in all things, and that it is almost
        impossible to possess any human knowledge or come to any
        conclusion to a certainty beyond a possible doubt.
        Therefore, the Commonwealth is not required to prove its
        case beyond all doubt.

           So, to summarize, you may not find the defendant guilty
        based on a mere suspicion of guilt. The Commonwealth has
        the burden of proving the defendant guilty beyond a
        reasonable doubt. If it meets that burden, then the
        defendant is no longer presumed innocent and you should
        find him guilty. On the other hand, if the Commonwealth
        does not meet its burden, then you must find him not guilty.

N.T., 5/11/17, at 202-203.


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       A jury convicted E.R. of involuntary deviate sexual intercourse (“IDSI”)

with a child; two counts of IDSI of a complainant less than 16 years of age;

and one count each of aggravated indecent assault of a complainant less than

13 years of age, aggravated indecent assault of a complainant less than 16

years of age, indecent assault of a complainant less than 13 years of age, and

indecent assault of a complainant less than 16 years of age.2

       On August 3, 2017, the trial court found E.R. to be an SVP. N.T., 8/3/17,

at 21; Order, filed Aug. 23, 2017.3 That same day, it sentenced E.R. to an

aggregate sentence of 144 to 360 months’ incarceration. E.R. filed a post-

sentence motion, which the trial court denied. He then filed a timely Notice of

Appeal.

       E.R. raises the following issues on appeal:

          1. Whether[] the jury verdict in this matter was against the
          sufficiency of the evidence because the Commonwealth
          failed to establish the date of the offense with any
          reasonable certainty?

          2. Whether[] the lower court created a lower burden of proof
          required by the constitution when it gave an improper jury
          instruction regarding proof beyond a reasonable doubt[?]

E.R.’s Br. at 7.4
____________________________________________


218 Pa.C.S.A. §§ 3123(b), 3123(a)(7), 3125(a)(7), 3125(a)(8), 3126(a)(7),
and 3126(a)(8), respectively.

3The order finding E.R. to be an SVP was dated August 3, 2017, but docketed
on August 27, 2017.

4 Although E.R. preserved his claim that the verdict was against the weight of
the evidence, and presented the argument to the trial court, he abandoned
that claim in our Court.

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        E.R. first maintains the Commonwealth failed to present sufficient

evidence to support the verdict because it failed to establish the date of the

offenses. He alleges that, although K.R. maintained she was abused over the

course of a number of years, she was unable to name a specific date for any

of the abuse.

        E.R. relies on Commonwealth v. Devlin, which held that due process

requires the Commonwealth to fix the date of the commission of the offense

with reasonable certainty. 333 A.2d 888, 890 (Pa. 1975). There, the

Commonwealth charged the defendant with one count of sodomy of an

intellectually disabled individual, where the assault could have occurred at any

time during a fourteen-month period. Id. at 892. The Supreme Court

concluded this broad time frame violated the defendant’s due process rights

because it substantially denied him an opportunity to present an alibi defense

and to attack the victim’s credibility. Id. at 891. The Court, however, noted

that:

          [t]he pattern of due process is picked out in the facts and
          circumstances of each case. Due process is not reducible to
          a mathematical formula. Therefore, we cannot enunciate
          the exact degree of specificity in the proof of the date of a
          crime which will be required or the amount of latitude which
          will be acceptable. Certainly the Commonwealth need not
          always prove a single specific date of the crime. Any leeway
          permissible would vary with the nature of the crime and the
          age and condition of the victim, balanced against the rights
          of the accused.

Id. at 892 (citations and quotation marks omitted). Following Devlin, this

Court has held that “the Commonwealth must be allowed a reasonable


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measure of flexibility when faced with the special difficulties involved in

ascertaining the date of an assault upon a young child.” Commonwealth v.

Groff, 548 A.2d 1237, 1241 (Pa.Super. 1988); Commonwealth v. Luktisch,

680 A.2d 877, 880 (Pa.Super. 1996). Further, the Commonwealth “must be

afforded broad latitude when attempting to fix the date of offenses which

involve a continuous course of criminal conduct.” Groff, 548 A.2d at 1242;

Commonwealth v. Benner, 147 A.3d 915, 921 (Pa.Super. 2016). We have

held that “the due process concerns of Devlin are satisfied where the victim

. . . can at least fix the times when an ongoing course of [abuse] commenced

and when it ceased.” Commonwealth v. G.D.M, Sr., 926 A.2d 984, 990

(Pa.Super. 2007); Benner, 147 A.3d at 921.

      Here, K.R., a child victim, alleged a continuous course of conduct, where

E.R. abused her several times a week for over a year. She further pinpointed

the start of the incidents of digital penetration to May 2015, the same month

in which she was admitted to the hospital, and the end of the abuse to August

2016, when she told her mother. Here, the Commonwealth presented

sufficient evidence to support the verdict. See G.D.M., Jr., 926 A.2d at 990

(finding   sufficient   evidence   where    victim   testified   abuse   began

contemporaneously with his start of kindergarten and ended when defendant

was arrested).

      E.R. next challenges the reasonable doubt jury instruction issued by the

trial court. E.R. maintains that the court’s instruction that a reasonable doubt

is “much more serious” than possible doubt, coupled with the superfluous

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language in the instruction, suggested a higher degree of doubt than

reasonable doubt. E.R.’s Br. at 14.

      The certified record does not contain an objection to the jury instruction

at trial and, therefore, E.R. has waived the claim. Commonwealth v.

Bullock, 948 A.2d 818, 825 (Pa.Super. 2008) (finding claim waived where

review of record failed to disclose objection and appellant did not direct court’s

attention to where in record objection was raised); Pa.R.A.P. 302(b) (“[a]

general exception to the charge to the jury will not preserve an issue for

appeal. Specific exception shall be taken to the language or omission

complained of”). Further, even if he had not waived the claim, we would

conclude it lacks merit.

      Trial courts are vested “with broad discretion in crafting jury

instructions, and such instructions will be upheld so long as they clearly and

accurately present the law to the jury for its consideration.” Commonwealth

v. Simpson, 66 A.3d 253, 274 (Pa. 2013) (citing Commonwealth v. Rainey,

928 A.2d 215, 242–43 (Pa. 2007)). When reviewing a challenge to the jury

instructions, “we consider the challenged instruction in its entirety, rather than

isolated fragments.” Id.

      The trial court did not abuse its discretion in defining reasonable doubt

as “much more serious” than possible doubt. As E.R. acknowledges, the

Pennsylvania Supreme Court has “consistently rejected challenges to a trial

court’s description of reasonable doubt as ‘much more serious than a possible

doubt.’” Commonwealth v. Cook, 952 A.2d 594, 631 (Pa. 2008). The trial

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court’s use of the language was therefore not error. Further, E.R. fails to

explain how the charge as a whole—the much more serious terminology

coupled with the remainder of the charge, as set forth above—created a lower

standard for the Commonwealth to meet to establish guilt. Read as a whole,

the charge accurately described reasonable doubt.

      We must now address an issue not raised by the parties—whether the

trial court had the authority to find E.R. to be a SVP. Although E.R. did not

challenge the trial court’s finding that he was an SVP under 42 Pa.C.S.A. §

9799.24, a section of the Sexual Offender Registration and Notification Act

(“SORNA”), we may raise the issue on our own motion. The issue presents a

question as to the legality of E.R.’s sentence, which cannot be waived and

which this Court may raise sua sponte. Commonwealth v. Butler, 173 A.3d

1212, 1215 (Pa.Super. 2017); Commonwealth v. Wolfe, 106 A.3d 800, 801

(Pa.Super. 2014).

      Our Supreme Court held in Commonwealth v. Muniz, 164 A.3d 1189

(Pa. 2017), that the registration requirements set forth under SORNA

constitute criminal punishment as opposed to a mere civil penalty, and

therefore their retroactive application violates the Ex Post Facto clause of the

U.S. Constitution. Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)

(OAJC), cert. denied sub nom. Pennsylvania v. Muniz, 138 S.Ct. 925 (U.S.

Jan. 22, 2018).




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       In the wake of Muniz, we concluded in Commonwealth v. Butler that

SORNA’s SVP procedure is subject to the constitutional requirement that the

factual findings be found by a fact-finder beyond a reasonable doubt. 173 A.3d

at 1217-18;5 see also Commonwealth v. Tighe, 184 A.3d 560, 583

(Pa.Super. 2018). The Court held that, because 42 Pa.C.S.A. § 9799.24(e)(3)

permitted the trial court to determine whether a defendant is an SVP “by clear

and convincing evidence,” rather than beyond a reasonable doubt, SORNA’s

SVP procedure was unconstitutional. Butler, 173 A.3d at 1217-18. The Court

in Butler concluded:

          As the sole statutory mechanism for SVP designation is
          constitutionally flawed, there is no longer a legitimate path
          forward for undertaking adjudications pursuant to section
          9799.24. As such, trial courts may no longer designate
          convicted defendants as SVPs, nor may they hold SVP
          hearings, until our General Assembly enacts a constitutional
          designation mechanism. Instead, trial courts must notify a
          defendant that he or she is required to register for 15 years
          if he or she is convicted of a Tier I sexual offense, 25 years
          if he or she is convicted of a Tier II sexual offense, or life if
          he or she is convicted of a Tier III sexual offense.


____________________________________________


5 The Pennsylvania Supreme Court granted a petition for allowance of appeal
to address the following issue:

          Whether the Superior Court of Pennsylvania erred in
          vacating the trial court’s Order finding [Respondent] to be
          [a Sexually Violent Predator (“SVP”)] by extrapolating the
          decision in [Commonwealth v. Muniz, 640 Pa. 699, 164
          A.3d 1189 (2017),] to declare SVP hearings and
          designations unconstitutional under 42 Pa.C.S. §
          9799.24(e)(3).

Order, No. 47 WAL 2018 (Pa. filed July 31, 2018).

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173 A.3d at 1218 (citation and footnote omitted).

      In light of Butler, E.R.’s SVP designation constitutes an illegal sentence.

Therefore, we vacate the finding that E.R. is an SVP, and, pursuant to Butler,

remand to the trial court to issue a revised notice to E.R. pursuant to 42

Pa.C.S.A. § 9799.23 (governing reporting requirements of sex offenders). See

Butler, 173 A.3d at 1218 (vacating SVP order and remanding for sole purpose

of issuing appropriate notice).

      Judgment of sentence affirmed. Order finding Appellant to be an SVP

vacated. Remanded with instructions. Jurisdiction relinquished.



P.J.E. Stevens joins the Memorandum.

Judge Ott files a Concurring Statement.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 11/15/18




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