J-A24007-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                     IN THE SUPERIOR COURT OF
                                                       PENNSYLVANIA


                       v.

ROBERT DAVID CALDWELL, II

                            Appellant                 No. 189 WDA 2017


            Appeal from the Judgment of Sentence December 22, 2016
                 In the Court of Common Pleas of Fayette County
               Criminal Division at No(s): CP-26-CR-0001359-2015


BEFORE: MOULTON, J., SOLANO, J., and MUSMANNO, J.

MEMORANDUM BY MOULTON, J.:                         FILED OCTOBER 19, 2017

       Robert David Caldwell II appeals from the December 22, 2016

judgment of sentence entered in the Fayette County Court of Common Pleas

on two counts of possession of child pornography, and one count each of

display of obscene and other sexual materials and criminal use of a

communication facility.1 We affirm.

       On July 28, 2016, Caldwell pled nolo contendere to the aforementioned

charges.2 On December 22, 2016, the trial court held a sentencing hearing.

At that hearing, Dr. Allen Pass,3 a psychotherapist, testified on behalf of

____________________________________________


       1
           18 Pa.C.S. §§ 6312(d), 5903(a)(1), and 7512(a), respectively.
       2
       Caldwell’s father, Robert David Caldwell, also pled nolo contendere to
sexual offenses similar to those of his son.

(Footnote Continued Next Page)
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Caldwell.   After both parties examined Dr. Pass, the trial court questioned

Dr. Pass about the end of Caldwell’s treatment program, which included a

discussion of supervision of sex offenders:

          THE COURT: So once they’ve successfully completed
          whatever, length you determine is necessary for each you
          don’t monitor future behavior. There’s nothing that you’re
          doing to check on relapsing.

          [DR. PASS]: No, that part of the program then falls
          directly on the Probation or the Parole Officer so that if a
          Probation Officer while governing or supervising the
          offender believes that they’re in need of a consult they
          contact our office, we set up an appointment and/or bring
          the offender back in for a follow up polygraph.

          THE COURT: If you’ve completed your treatment how do
          you bring them back for a follow up polygraph?

          [DR. PASS]:        At the request of the Probation or the Parole
          Officer.

          THE COURT: And I’m sure you realize that most county
          Probation and Parole Officers are not trained specifically in
          this field.

          [DR. PASS]:        Correct.

          THE COURT: I mean their ability to ascertain a violation
          is going to be looking at the computer.

          [DR. PASS]:        Correct.

          THE COURT: I mean there’s nothing they can do vis a vis
          the person unless there’s an admission.

          [DR. PASS]: That is correct in part. What we’ve noticed
          for instance in Allegheny County, Butler County, these
          counties have developed specialized sex offender Probation
                       _______________________
(Footnote Continued)
      3
        Caldwell’s father was sentenced on the same day and also was being
treated by Dr. Pass.



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           Officers who undergo specialized training in managing this
           offender group and as a result even after an offender is
           discharged from a program that discharge is obviously
           discharge from the core elements of the program but he or
           she is still on probation. So if the Probation Officer makes
           a determination, and I can tell you the ways in which they
           do this, but if they make a determination that they suspect
           that the offender is relapsing then they contact the office,
           we set up a meeting, review the allegations or the
           potential for the violation and then bring the offender back
           in and then retest.

           THE COURT:       So they or the Court could trigger bringing
           you back in?

           [DR. PASS]:      Absolutely.

           THE COURT: Are the state parole agents, do they have
           specific training in this field?

           [DR. PASS]: Yes, they do. I work with the parole agents
           from various counties who have, obviously also are
           specifically assigned to manage sex offenders, and it works
           very well actually because to be honest with you, Your
           Honor, they’re a different group of offenders and you have
           to be very careful of them.

           THE COURT:       Yes, it’s more a mental than it is –-

           [DR. PASS]:      Yes, sir.

           THE COURT:       -- an overt act, physical kind of act.

N.T., 12/22/16, at 40-41.          The trial court also asked Dr. Pass about his

experience with other states’ parole agencies, as Caldwell had moved to

Florida during the pendency of his case:4



____________________________________________


       4
        The certified record is unclear as to when Caldwell moved to Florida.
The first indication in the record that Caldwell was a resident of Florida was
in his December 21, 2016 sentencing memorandum.



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         THE COURT: Doctor, again, not to belabor this, do you
         have any familiarity in your professional experience with
         Florida parole?

         [DR. PASS]: Well we do have, to the best of my
         knowledge the last time I checked, and of course this is
         always subject to change, we do have an Interstate
         Transfer Compact Agreement.

         THE COURT: I mean do they have similar, are their
         agents similarly trained as our state parole agents are?

         [DR. PASS]: I cannot speak specifically to their level of
         training but what I can say is that my readings on this
         specialty area because it is a growing concern across the
         United States more and more jurisdictions, state
         jurisdictions and their respective counties are in fact
         advocating specialized training for agents.

N.T., 12/22/16, at 45.

     Shortly thereafter, the trial court excused Dr. Pass from the witness

stand.   Before Dr. Pass left the courtroom, however, the trial court asked

him to opine on Caldwell’s potential employment plan:

         [CALDWELL’S COUNSEL]: And, Your Honor, if I may, just
         a couple housekeeping matters.       Same situation with
         [Caldwell], the PSI lists him as unemployed. He would be,
         he has available employment and is I believe working
         presently. Do you have available employment depending
         on what happens here today? So he has employment
         available for him.

         THE COURT:      Can you share with us what that might be?

         [CALDWELL’S COUNSEL]: [Caldwell’s father] is opening up
         a business franchise.

         THE COURT:      Of?

         [CALDWELL’S COUNSEL]: Ice         cream.    Frozen   yogurt,
         sorry.

         THE COURT:      Doctor, you didn’t get out of the room quick
         enough.

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       [DR. PASS]:   Do you need me again?

       THE COURT:    Just a question from where you are.

       [DR. PASS]:   Yes, sir.

       THE COURT: I love ice cream so this may not apply to
       the population generally, but when I think of ice cream I
       think of kids. Any risk factor involved here?

       [DR. PASS]: Well it’s an excellent question, Your Honor,
       and I would agree. I think that ice cream by its very
       nature would draw children either on their own or under
       the supervision of their parents, and I think in my opinion
       is that there would have to be the necessary precautions
       taken if in fact [] Caldwell[’s father] is going to execute
       this as part of his business plan as to how he would be
       monitored at that facility. In other words, is he going to
       be a face to face service person for the children or is he
       going to be in the back room or perhaps he’s just going to
       manage it from afar on a PNL basis.

       THE COURT:    Well, also, who’s he going to employ?

       [DR. PASS]: Assumingly, you’re right again.   I don’t
       know if he’s going to employ, what age range, but of
       course just speaking from my own knowledge if I were
       running a business I wouldn’t want to employ anyone
       under the age of eighteen.

       THE COURT: Well I can tell you at age thirteen I started
       in a Dairy Queen in Braddock, Pennsylvania.

       [CALDWELL’S COUNSEL]: Your Honor, if I may, he has
       other employment available to him as well if that was
       going to be an issue.

       THE COURT:    You threw it out and it just—

       [CALDWELL’S COUNSEL]: I’m just saying that we do have,
       he does have employment available.

       THE COURT:    --threw flags up.

                                  ...

       [THE COMMONWEALTH]: Your Honor, following up with
       that, what’s the other employment.

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       [CALDWELL’S COUNSEL]: If I may, Judge –

       [THE COMMONWEALTH]: And this just with regard to
       [Caldwell’s father]. We need to address [Caldwell] as well.

       THE COURT:     I will.

       [CALDWELL’S COUNSEL]: Part of their conviction in this
       matter is going to make them, and Dr. Pass could talk
       about this more, compliant with the Adam Walsh Act and
       Megan’s Law, and there’s conditions in that specifically
       addresses where the person can work and what their
       involvement with children is. That’s where they can live,
       where they can work, who they can be around and we’re
       seeing this being of issue and making it more and more
       difficult for people to find employment, but at the end of
       the day he has to comply with those rules, but also we’re
       amenable and we’re open to the Court’s discretion. We’re
       not stuck on him working at a yogurt place. He can work
       anywhere. He just wants to get a job.

       [THE COMMONWEALTH]: Forgive me, Your Honor, but I
       believe that it was [counsel] who said that [Caldwell] had
       other employment opportunities available to him. So we
       just want to clarify what other employment opportunities
       he was referring to.

       THE COURT:     Nothing firm that you can speak to.

       [CALDWELL’S COUNSEL]: Nothing firm.         I’m just saying
       that, let’s face it—

       THE COURT:     What you meant was he’s employable.

       [CALDWELL’S COUNSEL]: Yes.          I’m not trying to be
       disrespectful but working in a yogurt place isn’t a job that,
       you know, I’m a brain surgeon and I can only do this. He
       can work almost anywhere, at Home Depot or where it is
       he’s going to work. It’s a minimum wage or slightly above
       job. It’s very interchangeable. It’s nothing specific.

       THE COURT: I think what you’re telling me is that
       although he’s retired and sixty-seven that [Caldwell’s
       father] is still interested in working part time somewhere.

       [CALDWELL’S COUNSEL]: He is. He’s retired. Obviously
       they’re retired but he has some ideas.   They would

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        certainly comply. If the Courts want them to work, they’re
        going to work. Whatever the Court wants we’re going to
        do and we’re going to be in compliance.

        THE COURT:     Okay. And [Caldwell]?

        [CALDWELL’S COUNSEL]: The          same,    Your    Honor,
        whatever the Court tells us.

        THE COURT:     He has nothing specific in mind.

        [CALDWELL’S COUNSEL]: No, we can get him, that’s not,
        like I said, it’s not a real specialized job. He can work
        anywhere.

        [THE COMMONWEALTH]: So forgive me, but I thought
        that when the correction was put on the record was that at
        the time they were interviewed by the Adult Probation
        Office the information provided was that they were not
        employed. We came here today and the information I
        thought was that they are employed. So is [Caldwell]
        employed or is he not employed?

        [CALDWELL’S COUNSEL]: He has employment available to
        him providing what happens to him.

        THE COURT:     Doing what?

        [CALDWELL’S COUNSEL]: Working at their yogurt place.
        That being said – the moral of the story, Your Honor, is he
        has a job opportunity. He wasn’t really sure what’s going
        to happen here today as none of us are.

        THE COURT:     Okay.

        [CALDWELL’S COUNSEL]: And once that moves forward he
        does want to work. He will be employed. That’s all I
        wanted to share with the Court.

        THE COURT:     Okay.

N.T., 12/22/16, at 46-50.




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       After hearing argument from the parties, the trial court sentenced

Caldwell to 1 to 7 years’ incarceration for one of the convictions for

possession of child pornography,5 a concurrent 1 to 7 years’ incarceration on

the conviction for criminal use of a communications facility, and a

consecutive 1 to 5 years’ incarceration on the conviction for display of

obscene and other sexual materials.

       On December 29, 2016, Caldwell filed a post-sentence motion for

reconsideration of sentence, which the trial court denied on January 3, 2017.

On January 26, 2017, Caldwell timely filed a notice of appeal.

       Caldwell raises one issue on appeal:

           Whether the Sentencing Court committed an abuse of
           discretion in considering factors outside of the
           [S]entencing [G]uidelines in determining the sentence of
           [Caldwell], specifically, the future employment of
           [Caldwell], the level of supervision and training of a
           potential supervising jurisdiction, or in treating [Caldwell]
           differently based upon his residence outside of
           Pennsylvania.

Caldwell’s Br. at 4 (suggested answer omitted).

       “Challenges to the discretionary aspects of sentencing do not entitle an

appellant to review as of right.” Commonwealth v. Allen, 24 A.3d 1058,

1064 (Pa.Super. 2011). Before we address such a challenge, we must first

determine:

____________________________________________


       5
       The trial court imposed no further penalty on the other conviction for
possession of child pornography.



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           (1) whether the appeal is timely; (2) whether [the
           a]ppellant preserved his issue; (3) whether [the
           a]ppellant’s brief includes a concise statement of the
           reasons relied upon for allowance of appeal with respect to
           the discretionary aspects of sentence; and (4) whether the
           concise statement raises a substantial question that the
           sentence is appropriate under the [S]entencing [C]ode.

Commonwealth v. Austin, 66 A.3d 798, 808 (Pa.Super. 2013) (quoting

Commonwealth v. Malovich, 903 A.2d 1247, 1250 (Pa.Super. 2006)).

       Caldwell filed a timely notice of appeal. Caldwell, however, failed to

preserve his claim that the trial court relied on impermissible sentencing

factors in his post-sentence motion.           In that motion, Caldwell asked the

court to modify his sentence based on his health issues, his remorse for the

crime, and his continuing treatment with Dr. Pass. Caldwell’s motion did not

argue that the trial court used supervision issues or Caldwell’s proffered

post-incarceration employment as impermissible factors in sentencing. Nor

did Caldwell raise this claim at the time of sentencing. Because Caldwell’s

failure denied “the sentencing judge an opportunity to reconsider or modify

[his] sentence on this basis,” Commonwealth v. Mann, 820 A.2d 788, 794

(Pa.Super. 2003), we conclude that Caldwell has waived his discretionary

aspects of sentencing challenge.6          See Commonwealth v. Bullock, 948

____________________________________________


       6
         Caldwell also failed to include a Pennsylvania Rule of Appellate
Procedure 2119(f) concise statement of reasons for allowance of appeal
regarding the discretionary aspects of sentencing. However, Caldwell’s
failure to include this statement would not have been fatal to his claim
because Caldwell’s brief adequately addressed the allegedly impermissible
(Footnote Continued Next Page)


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A.2d   818,   826      (Pa.Super.     2008)      (concluding   that   appellant   waived

discretionary aspects of sentencing claim where he failed to raise issue

before trial court orally or by written motion).

       Even if Caldwell had preserved this issue, we would conclude that the

trial court did not abuse its discretion. “Sentencing is a matter vested within

the discretion of the trial court and will not be disturbed absent a manifest

abuse of discretion.”        Commonwealth v. Crump, 995 A.2d 1280, 1282

(Pa.Super. 2010).         Caldwell asserts that the trial court relied on two

impermissible factors in sentencing.             First, Caldwell contends that the trial

court’s inquiry of Dr. Pass regarding the supervision of sexual offenders in

Florida and Pennsylvania reveals that the trial court considered “whether

probation officers have adequate training to supervise sex offenders,” thus

placing “an impossible burden upon a defendant to convince the court that

he or she will be adequately supervised by his supervising officer.”

Caldwell’s Br. at 8-9. Similarly, Caldwell asserts that the trial court’s inquiry

of Dr. Pass regarding Caldwell’s planned employment in the frozen yogurt

business evinces the trial court’s consideration of an “immaterial” factor to



                       _______________________
(Footnote Continued)

factors and the Commonwealth waived this defect by failing to object. See
Commonwealth v. Brougher, 978 A.2d 373, 375 (Pa.Super. 2009)
(addressing discretionary aspects of sentencing claim despite appellant’s
failure to include Rule 2119(f) statement because Commonwealth did not
object to defective brief).



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sentencing, as “every job and every social situation exposes an individual to

children in some form or another.” Caldwell’s Br. at 11.

     With respect to the consideration of impermissible sentencing factors,

we have explained:

           It is an abuse of discretion, as a denial of due process
        of law, for the sentencing court to consider irrelevant
        factors during sentencing. Thus, previous sentences have
        been vacated because, in imposing sentence, the
        sentencing court relied upon, e.g.: the defendant's
        decision to stand trial rather than plead guilty,
        Commonwealth v. Bethea, . . . 379 A.2d 102, 106, 107
        ([Pa. ]1977); prior constitutionally infirm convictions,
        Commonwealth v. Calvert, . . . 344 A.2d 797
        ([Pa.Super. 1]975); the defendant’s political ideology,
        Commonwealth v. Berrigan, . . . 535 A.2d 91
        ([Pa.Super. ]1987) (en banc) . . .; unverified hearsay, id.;
        and the defendant’s status as a naturalized citizen,
        Commonwealth v. Dugan, . . . 483 A.2d 965
        ([Pa.Super.] 1984).

            It is not enough that a trial court simply entertained
        impermissible evidence in its deliberations. A court is
        “ordinarily presumed to be capable of identifying and
        properly disregarding all but the most prejudicial and
        inflammatory evidence.” Commonwealth v. Penrod,. . .
        578 A.2d 486, 491 ([Pa.Super. ]1990). Thus, a sentence
        must be vacated only where “it reasonably appears from
        the record that the trial court relied in whole or in part
        upon such [an impermissible] factor.” Commonwealth v.
        Bethea, supra, 379 A.2d at 107 (emphasis added).

Commonwealth v. Smithton, 631 A.2d 1053, 1056-57 (Pa.Super. 1993).

     We conclude that the trial court did not rely on impermissible factors in

imposing sentence.    As the trial court stated in its Pennsylvania Rule of

Appellate Procedure 1925(a) opinion:

        Although [the trial court heard testimony on] supervision
        of [Caldwell] in this jurisdiction and to a lesser extent,

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         Florida, the Court did not take into account even a scintilla
         of “the level of supervision and training of a potential
         jurisdiction”   or    [Caldwell’s]   residence   outside   of
         Pennsylvania, in arriving at its sentence in this case. This
         Court did consider the nature of the offenses, the need for
         continuing treatment so as to lessen the likelihood of re-
         offending due to the fluid risk factors as outlined by the
         treating expert, Dr. Pass, and [Caldwell]’s resistance to
         accepting responsibility for his numerous criminal
         activities, all of which are permissible factors for
         consideration in fashioning an appropriate sentence taking
         into account [Caldwell]’s rehabilitative needs, as well as
         the public’s right to be protected from criminal behavior.

Rule 1925 Opinion, 3/1/17, at 3-4 (“1925(a) Op.”). The context of the trial

court’s questioning about the supervision of sex offenders shows that, at

most, the trial court was educating itself about the supervision system to

determine how Dr. Pass could continue treating Caldwell and how treatment

providers and the Department of Corrections would address potential

violations by Caldwell.

      We also conclude that the trial did not improperly rely on Caldwell’s

employment plan in imposing sentence.          The trial court stated that it

“considered [Caldwell]’s one stated actual job opportunity, employment by

his co-defendant father in a franchise business selling a product known to be

attractive to children, only in relation to [Caldwell]’s continuing fluid risk

factors, not for any reason relative to his employability.” 1925(a) Op. at 3.

      Because Caldwell has failed to show that the trial court considered any

impermissible factors, much less relied on impermissible factors in imposing

sentence, he is not entitled to relief.

      Judgment of sentence affirmed.


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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/19/2017




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