J-S15045-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                              IN THE SUPERIOR COURT OF
                                                                PENNSYLVANIA
                            Appellee

                       v.

NATHANIEL GARFIELD

                            Appellant                        No. 1105 MDA 2014


              Appeal from the Judgment of Sentence May 30, 2014
                In the Court of Common Pleas of Dauphin County
              Criminal Division at No(s): CP-22-CR-0000763-2013


BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.:                                   FILED MARCH 23, 2015

       Appellant Nathaniel Garfield appeals from the judgment of sentence

entered in the Dauphin County Court of Common Pleas following his jury trial

convictions    for   statutory     sexual      assault,   involuntary   deviate   sexual

intercourse, aggravated indecent assault, indecent assault, unlawful contact

with a minor, and corruption of minors.1 Appellant also challenges the trial

court’s decision to designate him as a sexually violent predator (“SVP”).

After careful review, we affirm in part, vacate in part, and remand for re-

sentencing.

       The trial court sets forth the relevant facts and procedural history of

this appeal as follows:
____________________________________________


1
  18 Pa.C.S. §§ 3122.1(a)(2), 3123(a)(7),                    3125(a)(8),   3126(a)(8),
6318(a)(1), and 6301(a)(1)(ii), respectively.
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       On December 5, 2012, [Appellant] was arrested and
       charged with eleven (11) criminal offenses based on
       allegations of improper sexual activity committed upon a
       minor child. After the preliminary hearing, the following
       charges were bound over for court: Count 1 – statutory
       sexual assault: 8-11 years of age, count 2 – involuntary
       deviate sexual intercourse – person less than 16 years of
       age, Count 3 – aggravated indecent assault, Count 4 –
       indecent assault of person less than 16 years of age, count
       5 – unlawful contact with a minor, count 6 – corruption of
       minors – defendant age 18 or above.

       A jury trial was held on January 14-16, 2014, at which
       time Appellant was found guilty on all counts. This court
       ordered that an assessment be completed by the Sexual
       Offenders Assessment Board [(“SOAB”)] prior to
       sentencing. A pre-sentence investigation report was also
       prepared. On March 27, 2014, the Commonwealth filed a
       praecipe providing notice of its intent to have [Appellant]
       classified as [an SVP] pursuant to 42 Pa.C.S. § 9795.4. An
       SVP hearing was held on May 30, 2014, to determine the
       issue of Appellant’s classification and for imposition of
       sentence. Appellant was sentenced as follows:

          Count 1 – incarceration in a state correctional
          institution for a term of not less than 21 months nor
          more than 42 months, a fine of $500 and payment of
          the costs of prosecution;

          Count 2 – incarceration in a state correctional
          institution for a term of not less than 120 months
          nor more than 240 months, a fine of $1000 and
          payment of the costs of prosecution running
          concurrent with Count 1;

          Count 3 – incarceration in a state correctional
          institution for a term of not less than 36 months nor
          more than 72 months, a fine of $500 and payment of
          the costs of prosecution running consecutive to
          Count 2;

          Count 4 – incarceration in a state correctional
          institution for a term of not less than 12 months nor

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              more than 24 months, a fine of $100 and payment of
              the costs of prosecution running concurrent to Count
              1;

              Count 5 – incarceration in a state correctional
              institution for a term of not less than 66 months nor
              more than 132 months, a fine of $500 and payment
              of the costs of prosecution running concurrent to
              Count 2;

              Count 6 – incarceration in a state correctional
              institution for a term of not less than 12 months nor
              more than 24 months, a fine of $100 and payment of
              the costs of prosecution running concurrent to Count
              2.

          Applicable time credit was also granted.

Trial Court Opinion, filed December 3, 2014 (footnotes and unnecessary

capitalization omitted).

       On June 9, 2014, Appellant filed a post-sentence motion, which the

court denied on June 11, 2014. On July 3, 2014, Appellant filed a notice of

appeal.    The court ordered Appellant to file a concise statement of errors

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely

complied.2

       Appellant raises the following issues on appeal:

          I. WHETHER THE TRIAL COURT ILLEGALLY SENTENCED
          APPELLANT TO A MANDATORY MINIMUM SENTENCE OF
          TEN (10) YEARS’ IMPRISONMENT FOR INDECENT ASSAULT
____________________________________________


2
  On July 21, 2014, Appellant filed a petition to extend the time to file a
Pa.R.A.P. 1925(b) statement, which the court granted. Appellant filed his
concise statement on September 3, 2014.




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          OF A CHILD UNDER SIXTEEN YEARS PURSUANT TO 42
          [PA.C.S. §] 9718(A)(1) WHERE THE STATUTE AT ISSUE -
          42 [PA.C.S. §] 9718 - IS UNCONSTITUTIONAL AS A
          WHOLE SINCE IT VIOLATES APPELLANT’S RIGHT TO A
          JURY TRIAL UNDER ARTICLE I, SECTION IX OF THE
          PENNSYLVANIA     CONSTITUTION    AND   THE    SIXTH
          AMENDMENT TO THE UNITED STATES CONSTITUTION?[3]

          II. WHETHER THE TRIAL COURT ERRED IN DENYING
          APPELLANT’S POST[-]SENTENCE MOTION WHERE THE
          JURY’S VERDICT WAS AGAINST THE WEIGHT OF THE
          EVIDENCE SO AS TO SHOCK ONE’S SENSE OF JUSTICE
          DUE TO THE VICTIM’S INCONSISTENT, CONTRADICTORY,
          AND UNRELIABLE TESTIMONY?

          III. WHETHER THE TRIAL COURT ERRED IN DENYING
          APPELLANT’S   POST[-]SENTENCE  MOTION    WHERE
          APPELLANT’S [SVP] DESIGNATION WAS AGAINST THE
          WEIGHT OF THE EVIDENCE SO AS TO SHOCK ONE’S
          SENSE OF JUSTICE WHERE DR. STEIN’S OPINION WAS
          MANIFESTLY UNREASONABLE AND CONSTITUTED A
          MISAPPLICATION OF THE LAW?

          IV. WHETHER THE TRIAL COURT ERRED IN DENYING
          APPELLANT’S   POST[-]SENTENCE   MOTION    WHERE
          APPELLANT’S   SENTENCE    WAS   EXCESSIVE    AND
          UNREASONABLE AND CONSTITUTES TOO SEVERE A
          PUNISHMENT IN LIGHT OF APPELLANT’S NON-VIOLENT
          CRIMINAL HISTORY AND LIMITED INTELLECTUAL ABILITY
          WITH POSSIBLE MENTAL HEALTH ISSUES THAT HAVE NOT
          BEEN PROPERLY ADDRESSED PRIOR TO HIS CURRENT
          INCARCERATION, AND WHERE THE PUNITIVE MEASURES
          INHERENT IN THE SENTENCING SCHEME COULD HAVE
          BEEN ACCOMPLISHED BY THE IMPOSITION OF A LESSER
          SENTENCE?
____________________________________________


3
  Although Appellant did not properly raise this issue in this Pa.R.A.P.
1925(b) statement, challenges to the legality of a sentence on direct appeal
cannot be waived. See Commonwealth v. Hawkins, 45 A.3d 1123, 1130
(Pa.Super.2012), appeal denied, 53 A.3d 756 (Pa.2012).




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Appellant’s Brief at 6-7.

      In his first issue, Appellant argues his sentence under section 9718 is

unconstitutional because it requires the court to impose a mandatory

minimum sentence based upon proof by a preponderance of the evidence.

Appellant requests this Court to remand this matter for resentencing without

consideration of any mandatory minimum sentence. We agree.

      Our standard of review regarding the imposition of a mandatory

sentence is as follows:

      Generally, a challenge to the application of a mandatory
      minimum sentence is a non-waiveable challenge to the legality
      of the sentence. Issues relating to the legality of a sentence are
      questions of law, as are claims raising a court’s interpretation of
      a statute. Our standard of review over such questions is de
      novo and our scope of review is plenary.

Hawkins, supra. at 1130.

      The Sentencing Code provides, in relevant part:

         § 9718.      Sentences    for   offenses   against    infant
         persons

         (a) Mandatory sentence.--

            (1) A person convicted of the following offenses when
            the victim is less than 16 years of age shall be
            sentenced to a mandatory term of imprisonment as
            follows:

            18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated
            assault)--not less than two years.

            18 Pa.C.S. § 3121(a)(1), (2), (3), (4) and (5) (relating
            to rape)--not less than ten years.



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           18 Pa.C.S. § 3123 (relating to involuntary deviate
           sexual intercourse)--not less than ten years.

           18 Pa.C.S. § 3125(a)(1) through (6) (relating to
           aggravated indecent assault)--not less than five years.

                                *    *    *

        (c) Proof at sentencing.--The provisions of this section
        shall not be an element of the crime, and notice of the
        provisions of this section to the defendant shall not be
        required prior to conviction, but reasonable notice of the
        Commonwealth’s intention to proceed under this section
        shall be provided after conviction and before sentencing.
        The applicability of this section shall be determined at
        sentencing. The court shall consider any evidence
        presented at trial and shall afford the Commonwealth and
        the defendant an opportunity to present any necessary
        additional   evidence    and    shall  determine,     by    a
        preponderance of the evidence, if this section is applicable.

42 Pa.C.S. § 9718.

     In Alleyne v. United States, __ U.S. __, 133 S.Ct 2151, 186 L.Ed 2d

341 (2013), the Supreme Court of the United States held that the Due

Process Clause of the Federal Constitution requires each factor that

increases a mandatory minimum sentence to be submitted to a jury and

found beyond a reasonable doubt.     Id., 133 S.Ct., at 2163.    Based upon

Alleyne, this Court stated in dicta in Commonwealth v. Watley, that

sections 7508 and 9712.1 of the sentencing code are unconstitutional insofar

as they permit a judge to automatically increase a defendant’s sentence

based on a preponderance of the evidence standard for factors other than a

prior conviction. Watley, 81 A.3d 108, 117 n. 4 (Pa.Super.2013) (en banc),

appeal denied, 95 A.3d 277.

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      In Commonwealth v. Newman, following our dicta in Watley, we

held that the preponderance of the evidence standard in section 9712.1(c) is

unconstitutional under Alleyne. Newman, 99 A.3d 86 (Pa.Super.2014) (en

banc). We then addressed whether it was possible to continue enforcing the

remaining subsections of section 9712.1 after severing subsection (c). We

held that section 9712.1, as a whole, was no longer workable, because

subsection (c) was “essentially and inseparably connected” with the

mandatory minimum sentencing provision in subsection (a). Id. at 101. We

cited several trial court opinions on this subject, most notably the following

analysis by the Montgomery County Court of Common Pleas:

         While the Commonwealth clearly is correct that
         unconstitutional provisions of a statute may be severed in
         order to effectuate the legislature’s intent in enacting that
         statute, the undersigned believes that this simply is not
         possible in the instant situation, where the constitutional
         and unconstitutional provisions of the mandatory minimum
         statutes are inextricably interwoven. In order to effectuate
         the legislature’s intent for the imposition of mandatory
         minimum sentences, the Commonwealth would have us
         ignore the legislature’s clear intent: that the factors
         triggering such sentences be found by a judge and not a
         jury; that the defendant need not be informed of the
         applicability of the mandatory sentence prior to
         sentencing; and that the applicable standard be one of
         preponderance of the evidence. The undersigned believes
         it is for the legislature, and not this court, to make such
         determinations. Further, and crucially, rather than asking
         this court simply to ‘sever’ unconstitutional provisions
         within the statutes, the Commonwealth is essentially
         asking this court to rewrite them, by imposing different
         burdens of proof and notification than the legislature
         imposed.




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Id.   at   103    (citing   Commonwealth         v.    Brockington,    et   al.   (CCP

Montgomery Cty., March 21, 2014)).                    Accordingly, we vacated the

defendant’s judgment of sentence and remanded for re-sentencing “without

consideration of any mandatory minimum sentence provided by section

9712.1.” Id. at 103.

       More recently, and after the trial court issued its Pa.R.A.P. 1925(a)

opinion in the present case, this Court specifically analyzed 42 Pa.C.S. §

9718 in Commonwealth v. Wolfe, ___ A.3d ___ (Pa.Super., Dec. 24,

2014).     We recognized that section 9718 contained the same format as

section 9712.1, the statute struck down as unconstitutional in Newman.

Id. at *5. We therefore determined that section 9718 was unconstitutional,

vacated the judgment of sentence, and remanded the case for re-sentencing

without application of the section 9718 mandatory minimum.                  Id. at *6.

Pursuant to Wolfe, because the trial court sentenced Appellant under the

unconstitutional provision of section 9718, we must vacate Appellant’s

judgment of sentence and remand for re-sentencing without application of

section 9718.4

       In his second issue, Appellant argues the jury’s verdict was against the

weight of the        evidence.       He   claims the     victim made    inconsistent,

____________________________________________


4
  Our determination of this issue moots Appellant’s fourth claim concerning
the discretionary aspects of his sentence. Therefore, we will not address this
claim.



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contradictory and unreliable accusations, first by writing to her mother that

Appellant only engaged in anal, not vaginal, sex with her during the first

incident, and then by telling the Children’s Resource Center that Appellant

had engaged in vaginal, not anal, sex with her during the same incident.

Appellant avers the discrepancies in the victim’s allegations rendered her

testimony so incredible that the verdict was contrary to the evidence such

that it would shock one’s sense of justice. We disagree.

      We review challenges to the weight of the evidence as follows:

               The weight of the evidence is exclusively for the finder
               of fact who is free to believe all, part, or none of the
               evidence and to determine the credibility of the
               witnesses. An appellate court cannot substitute its
               judgment for that of the finder of fact. Thus, we may
               only reverse the…verdict if it is so contrary to the
               evidence as to shock one's sense of justice.

         Commonwealth v. Small, 741 A.2d 666, 672–73
         (Pa.1999) [cert. denied, 121 S.Ct. 80, 148 L.Ed.2d 42
         (U.S.2000)]. Moreover, where the trial court has ruled on
         the weight claim below, an appellate court’s role is not to
         consider the underlying question of whether the verdict is
         against the weight of the evidence. Rather, appellate
         review is limited to whether the trial court palpably abused
         its discretion in ruling on the weight claim.

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011), appeal

denied, 42 A.3d 1059 (Pa.2012) (some internal citations omitted).

      “One of the least assailable reasons for granting or denying a new trial

is the lower court’s conviction that the verdict was or was not against the

weight of the evidence and that a new trial should be granted in the interest

of justice.”    Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013).         A

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J-S15045-15


trial judge should not grant a new trial due to “a mere conflict in the

testimony or because the judge on the same facts would have arrived at a

different conclusion.”   Id.   Instead, the trial court must examine whether

“‘notwithstanding all the facts, certain facts are so clearly of greater weight

that to ignore them or to give them equal weight with all the facts is to deny

justice.’” Id. Only where the jury verdict “is so contrary to the evidence as

to shock one’s sense of justice” should a trial court afford a defendant a new

trial. Id. A weight of the evidence claim concedes that the Commonwealth

introduced sufficient evidence.    Commonwealth v. Charlton, 902 A.2d

554, 561 (Pa.Super.2006), appeal denied, 911 A.2d 933 (Pa.2006).

       Here, the jury had the opportunity to assess the credibility of the

witnesses and consider all of the evidence. The jury heard testimony from

the victim, her mother, and a Children and Youth caseworker who worked on

the victim’s case.   Appellant had ample opportunity to cross-examine the

child victim, and exercised his right to do so.   See N.T., 1/14/14, pp. 97-

118.   Following consideration of all the evidence, the jury found Appellant

guilty on all counts. The verdict was not so contrary to the evidence as to

shock one’s sense of justice. The trial court properly exercised its discretion

in denying Appellant’s challenge to the weight of the evidence. See Devine,

supra.

       In his third issue, Appellant argues his SVP designation was against

the weight of the evidence.     He complains the trial court should not have


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believed Dr. Robert Stein, the licensed psychologist from the SOAB who

opined Appellant was an SVP. Appellant avers Dr. Stein had no research to

support his diagnosis and even admitted that Appellant’s prior criminal

record did not specifically increase his risk of recidivism. He complains Dr.

Stein’s diagnosis of other specified paraphilic disorder non-consent did not

apply to Appellant, because this designation is reserved for those whose

sexual satisfaction is derived from the victim’s screaming, fighting, and

resisting. Appellant suggests the trial court should have believed Appellant’s

expert, Dr. Timothy Foley, who testified that Appellant had a low risk of

reoffending. We disagree.

      In Commonwealth v. Prendes, this Court observed:

         “To deem an individual [an SVP], the Commonwealth must
         first show [the individual] ‘has been convicted of a sexually
         violent offense as set forth in [section 9799.14]....’”
         Commonwealth v. Askew, 907 A.2d 624, 629
         (Pa.Super.2006), appeal denied, 919 A.2d 954 (Pa.2007).
         See also 42 [Pa.C.S.] § 9799.12.             “Secondly, the
         Commonwealth must show that the individual has ‘a
         mental abnormality or personality disorder that makes
         [him] likely to engage in predatory sexually violent
         offenses.’” Askew, supra. When the Commonwealth
         meets this burden, the trial court then makes the final
         determination on the defendant’s status as an SVP.
         Commonwealth v. Kopicz, 840 A.2d 342, 351
         (Pa.Super.2003).

         An SVP assessment is not a trial or a separate criminal
         proceeding that subjects the defendant to additional
         punishment. Commonwealth v. Howe, 842 A.2d 436,
         445–46 (Pa.Super.2004). SVP status, therefore, does not
         require proof beyond a reasonable doubt; the court
         decides SVP status upon a show of clear and convincing
         evidence that the offender is, in fact, an SVP.

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       Commonwealth        v.   Killinger,       888   A.2d   592,   600
       ([Pa.]2005).

                                *     *      *

       Pa.R.E. 702 states that an expert may testify in the form
       of an “opinion or otherwise.”       Much of the literature
       assumes that experts testify only in the form of an opinion.
       The language “or otherwise” reflects the fact that experts
       frequently are called upon to educate the trier of fact
       about the scientific or technical principles relevant to the
       case.

                                *     *      *

       “With regard to the various assessment factors..., there is
       no statutory requirement that all of them or any particular
       number of them be present or absent in order to support
       an SVP designation. The factors are not a checklist with
       each one weighing in some necessary fashion for or
       against SVP designation.” Commonwealth v. Brooks, 7
       A.3d 852, 863 (Pa.Super. 2010), appeal denied, 21 A.3d
       1189 ([Pa.]2011). Thus, “[t]he Commonwealth does not
       have to show that any certain factor is present or absent in
       a particular case.” Id. Moreover, “the absence of an
       interview does not preclude the ability to evaluate the
       offender’s behavior through available history for
       characteristics similar or dissimilar to the criteria set forth
       in the law for defining a sexually violent predator.”
       Commonwealth v. Woods, 909 A.2d 372, 381
       (Pa.Super.2006),      appeal    denied,    919     A.2d    957
       ([Pa.]2007). Likewise, “to carry its burden of proving that
       an offender is an SVP, the Commonwealth is not obliged to
       provide a clinical diagnosis by a licensed psychiatrist or
       psychologist...” Commonwealth v. Conklin, 897 A.2d
       1168, 1178 ([Pa.]2006). Additionally, the statute requires
       all state, county, and local agencies, offices or entities to
       provide copies of records and information as requested by
       the SOAB in connection with an SVP assessment. 42
       [Pa.C.S.] § 9799.24(c). Importantly, the primary purpose
       of the registration requirements is to help ensure the
       safety of the public, not to punish the offender.
       Commonwealth v. Carter, 821 A.2d 601, 606
       (Pa.Super.2003) (holding SOAB expert can review

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J-S15045-15


        confidential psychiatric examinations performed       when
        defendant was juvenile to make SVP assessment).

Prendes, 97 A.3d 337, 358-59 (Pa.Super.2014), appeal denied, 105 A.3d

736 (Pa.2014).

     Instantly, Appellant stipulated that Dr. Stein, a licensed psychologist

working with the SOAB, was qualified to testify as an expert in the

assessment of sexual offenders. N.T., 8/14/14, at 5. Dr. Stein testified that

he reviewed each of the fifteen statutory factors, diagnosed Appellant with

paraphilic disorder non-consent and opined that Appellant should be

classified as an SVP. Id. at 8-12, 13, 22.

     Because Appellant challenges the weight and not the sufficiency of the

evidence, he concedes that sufficient evidence supports the trial court’s

finding that Appellant is an SVP. See Charlton, supra. The trial court had

the opportunity to hear Dr. Stein’s testimony along with the testimony of

Appellant’s expert, Dr. Foley.    After reviewing the evidence, the court

determined that Appellant was an SVP.        The determination was not so

contrary to the evidence as to shock one’s sense of justice. The trial court

properly exercised its discretion in denying Appellant’s challenge to the

weight of the evidence on this claim. See Devine, supra.

     In summary, we conclude that Appellant’s weight of the evidence

claims as to the verdict and his SVP classification lack merit.    However,

because we have determined that section 9718 is unconstitutional, we must




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vacate Appellant’s judgment of sentence and remand for re-sentencing

without application of section 9718.

      Convictions and SVP classification affirmed.   Judgment of sentence

vacated. Case remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 3/23/2015




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