J-S61025-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                   IN THE SUPERIOR COURT OF
                                                     PENNSYLVANIA
                            Appellee

                       v.

WADE CHARLES BAER

                            Appellant              No. 1982 WDA 2015


          Appeal from the Judgment of Sentence November 24, 2015
              In the Court of Common Pleas of Bedford County
             Criminal Division at No(s): CP-05-CR-0000281-2014


BEFORE: PANELLA, J., LAZARUS, J., and MUSMANNO, J.

MEMORANDUM BY LAZARUS, J.:                        FILED AUGUST 09, 2016

        Wade Charles Baer appeals from his judgment of sentence, entered in

the Court of Common Pleas of Bedford County, after pleading guilty to one

count each of rape of child,1 statutory sexual assault (11 years older),2

involuntary deviate sexual intercourse (less than 16 years of age),3 unlawful

contact with a minor (sexual offenses),4 and sexual abuse of children




____________________________________________


1
    18 Pa.C.S. § 3121(c).
2
    18 Pa.C.S. § 3122.1(b).
3
    18 Pa.C.S. § 3123(a)(7).
4
    18 Pa.C.S. § 6318(a)(1).
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(possession of child pornography).5            Baer was sentenced to an aggregate

term of 7 to 14 years’ imprisonment.6 After careful review, we affirm.

        Baer had a sexual relationship with his ex-girlfriend’s daughter

beginning in 2007, when the victim was eleven years old, and continuing

until she was fourteen years old. At the inception of their relationship, Baer

was 24 years old. The victim related to law enforcement that Baer touched,

kissed, digitally penetrated, performed oral sex on and had sexual

intercourse with her.       Baer also had the victim take naked pictures7 and

videos of herself while she was performing oral sex on him, simulating

sexual acts, and in provocative poses.             Baer and the victim had sexual

relations at least on a weekly basis from 2007 to 2010, at which point the

victim ended the relationship so that she could date boys her own age.

        After Baer entered his plea, he filed a motion for a Frye8 hearing on

expert testimony proffered by a Sexual Offender Assessment Board (SOAB)
____________________________________________


5
    18 Pa.C.S. § 6312.
6
  Each of the sentences on counts two through five were ordered to run
concurrently to Baer’s rape sentence. All of the instant offenses were
ordered to run concurrently to and conterminously with an unrelated
sentence he was already serving in federal court.
7
  The victim identified 29 photographs obtained from Baer’s computer as
being her. Fifteen of those photos depicted her either naked, in a simulated
sexual act, or in a sexual or provocative nature.
8
  Frye v. U.S., 293 F. 1013 (D.C. Cir. 1923) (standard requiring that
opinions or inferences are of a type reasonably relied upon by experts in the
particular field).



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member about his disorder, hebephilia, and whether it is a diagnosable

mental condition based upon legitimate scientific principles and methods.

The court denied Baer’s motion and, after a hearing, the court determined

that Baer should be classified as a sexually violent predator (SVP) subject to

lifetime registration under our Commonwealth’s version of Megan’s Law. 9 In

this    timely   filed   appeal,   Baer    raises   the   following   issues   for   our

consideration:

        (1)   Whether or not the Defendant’s issues are waived
              pursuant to Pa.R.A.P. 1925 and, if so, what is the proper
              remedy?

        (2)   Whether the trial court erred and/or abused its discretion
              when it found the evidence sufficient to support the mental
              abnormality prong of the statute to support a finding that
              the Appellant was a sexually violent predator.10

        (3)   Whether the trial court erred and/or abused its discretion
              when it denied a Frye hearing in this matter on the matter
____________________________________________


9
    42 Pa.C.S. § 9799.14.
10
     Our standard review of a trial court’s SVP designation is as follows:

        [T]o affirm an SVP designation, we, as a reviewing court, must
        be able to conclude that the fact-finder found clear and
        convincing evidence that the individual is a[n] [SVP]. As with
        any sufficiency of the evidence claim, we view all evidence and
        reasonable inferences therefrom in the light most favorable to
        the Commonwealth. We will reverse a trial court’s determination
        of SVP status only if the Commonwealth has not presented clear
        and convincing evidence that each element of the statute has
        been satisfied.

Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015)
(internal citation omitted).



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              of the mental abnormality and the diagnosis of hebephiliac
              paraphilia not otherwise specified.

       With regard to whether Baer has waived his issues on appeal under

Pa.R.A.P. 1925(b), we note the following relevant procedural history.        On

December 17, 2015, after Baer filed a timely notice of appeal, the trial court

ordered Baer to file a Rule 1295(b) statement of errors complained of on

appeal within 21 days.         On April 7, 2016, the trial court issued its Rule

1925(a) opinion indicating that:

       On December 17, 2015, we entered an Order directing
       Defendant to file a statement of matters complained of on
       appeal within 21 days. To date, Defendant has failed to file such
       a statement. As such, we believe Defendant has waived all
       issues on appeal. See Pa.R.A.P. 1925(b)(4)(vii). To the extent
       the appellate court would find Defendant has not waived
       all issues, we believe our discussion on the record would
       adequately address any issues preserved. See Sent. Tr.,
       pp. 65-74.

Trial Court Opinion, 4/7/16, at 2 (emphasis added). On April 8, 2016, Baer

filed his Rule 1925(b) statement of errors complained of on appeal indicating

that his attorney had not received a copy of the trial court’s 1925(b) order11

and that once counsel received a copy of the trial court’s opinion deeming all

of his client’s issues waived, he immediately filed the instant statement.

Baer’s statement includes the same issues he raises and argues in his

____________________________________________


11
    We note that pursuant to Pa.R.C.P. 236, “[t]he prothonotary shall
immediately give written notice of the entry of . . . any . . . order to each
party’s attorney of record[.]” Pa.R.C.P. 236(a)(2). In the instant case there
is no documentation in the docket that Rule 236 notice of the court’s Rule
1925(b) order was provided to Baer’s attorney of record.



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appellate    brief.     We,    therefore,      must    determine    whether     case   law

interpreting Rule 1925 deems Baer’s issues waived on appeal.

       It is well established that generally the failure to file a timely Rule

1925(b)     statement      would     constitute       waiver   of   all   issues.      See

Commonwealth v. Lord, 719 A.2d 306, 309 (Pa. 1998).                          However, in

Commonwealth v. Thompson, 39 A.3d 335 (Pa. Super. 2011), our Court

clarified the effect of counsel’s untimely filing of a Rule 1925(b) statement in

light of the 2007 amendments to Rule 1925. In Thompson, we noted that

by drafting Rule 1925(c)(3), the Supreme Court added a new procedure for

appellate courts to remedy a criminal appellant’s failure to file a Rule

1925(b) statement. Id. at 338. Just as in the present case, in Thompson

the defendant filed her 1925(b) statement after the court-ordered deadline.

Thus, at the time the trial court prepared its opinion, it did not have the

benefit of the issues defendant wished to raise on appeal, and, as a result,

the court found all issues waived on appeal. Id. at 340. Accordingly, the

Court held:12

____________________________________________



12
     Subsection 1925(c)(3) provides:

       (3) If an appellant in a criminal case was ordered to file a
       Statement and failed to do so, such that the appellate court is
       convinced that counsel has been per se ineffective, the appellate
       court shall remand for the filing of a Statement nunc pro tunc
       and for the preparation and filing of an opinion by the judge.

Pa.R.A.P. 1925(c)(3).



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      [Because] the trial court’s 1925(a) opinion in the present case
      did not address [the defendant’s] issues, as [defendant] had not
      yet filed a 1925(b) statement[,] . . . we remand for the trial
      court to file a Rule 1925(a) opinion addressing the issues raised
      in [defendant’s] untimely Rule 1925(b) statement within 30 days
      of the date of this Opinion.

Id. at 340.

      Instantly, the trial court specified in its Rule 1925(a) opinion where it

explained its rationale for its SVP and Frye rulings in the record.        See

Pa.R.A.P. 1925(a) (“judge . . . shall specify in writing the place in the record

where such reasons [for the judgment of sentence] may be found.”).

Accordingly, we have guidance for the court’s reasoning on the issues raised

on appeal and do not need to remand the matter further for an opinion. Cf.

Commonwealth v. Burton, 973 A.2d 428, 433 (Pa. Super. 2009) (en

banc) (“Thus, if there has been an untimely filing, this Court may decide the

appeal on the merits if the trial court had adequate opportunity to prepare

an opinion addressing the issues being raised on appeal. If the trial court

did not have an adequate opportunity to do so, remand is proper.”);

Thompson, supra.        Thus, we decline to find the issues waived and can

review them on the instant record.

      Baer first asserts that the trial court erred when it found that there

was sufficient evidence to support the “mental abnormality” prong of section

9792 in order to conclude that he was an SVP.




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       To deem an individual a sexually violent predator, the Commonwealth

must first show that the individual has been convicted of an offense as set

forth in section 9799.14(b), (c) or (d).13 See 42 Pa.C.S.A. § 9799.12. The

Commonwealth        must     also   show       that   the   individual   has   “a   mental

abnormality or personality disorder that makes [him] likely to engage in

predatory sexually violent offenses.”                 42 Pa.C.S. § 9792. When the

Commonwealth meets this burden, the trial court then makes the final

determination on the defendant’s SVP status. Commonwealth v. Kopicz,

840 A.2d 342, 351 (Pa. Super. 2003).

       Instantly, SOAB member Herbert E. Hays, M.A.,14 assessed that Baer’s

condition, which was the impetus for his sexual offending, is a lifetime

disorder that involves “recurrent and intense sexual arousal involving a

prepubescent child between the ages of 11 and 14 years of age that has

been present for at least 6 months and causes marked distress or

impairment in social, occupational, or other important areas of functioning.”

Sexually Violent Predator Assessment, 1/5/15, at 6.                      Ultimately, Hays
____________________________________________


13
   Baer’s offenses are all considered sexually violent offenses under section
9799.14. 42 Pa.C.S. § 9799.14(a). Under Megan’s Law, sexual offenses
shall be classified in a three-tiered system composed of Tier I, Tier II, and
Tier III sexual offenses. Id. at § 9799.14(a). All of Baer’s offenses, except
his unlawful contact with minor charge (“Tier II sexual offense”), are
classified as “Tier III sexual offenses” under section 9799.14(d). Id. at §
9799.14(c), (d).
14
   All SOAB members are experts in the field of the behavior and treatment
of sexual offenders. See 42 Pa.C.S. § 9799.3(a).



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concluded that Baer is “likely to re-offend given the opportunity,” that he

initiated the relationship with the victim, coerced her into a sexual

relationship where she created child pornography at his direction, begged

the victim not to disclose the relationship for risk of him going to jail, and

that his relationship with the victim was in whole or in part to facilitate

sexual victimization – all indicia of predatory behavior.     Id. at 7.   Under

these circumstances, Hays opined that Baer meets the criteria to be

classified as an SVP.   See Commonwealth v. Haberman, 134 A.3d 101

(Pa. Super. 2015) (finding expert witness’s testimony that hebephilia is

mental disorder for purposes of SVP classification was sufficient where

record did not contain evidence of other motivation for defendant’s sexual

abuse of stepdaughter for six years when she was twelve through eighteen

of age; where record supported hebephilia diagnosis; where defendant used

threats to achieve offense; where defendant was victim’s stepfather; and

based on nature of defendant’s sexual contact with victim).

      By contrast, licensed psychologist Timothy P. Foley, Ph.D., opined that

hebephilia is not generally accepted by mental health professionals as it is

“not defined in any authoritative text and has no consistent, clearly defined

criteria, rendering is application unreliable.”   Opinion of Timothy P. Foley,

Ph.D, 6/28/15, at 5. He further opined that there was no known recidivism

data linking the condition to sexually violent acts and that any such

conclusion to the contrary from Hay’s assessment is not based on clinical

methods or assessments. Id. at 6-7.

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      In Commonwealth v. Hollingshead, 111 A.2d 186 (Pa. Super.

2015), our Court was faced with the same issue on appeal – whether the

defendant’s diagnosis of hebephilia was considered a mental abnormality for

purposes of an SOAB assessment and classifying him as an SVP.         In that

case, our Court held that hebephilia, combined with expert testimony and

the facts of the case, can satisfy mental abnormality requirement for

purposes of SVP determination. In Hollingshead, the defendant, a female

assistant coach of a girl’s high school soccer team, had a romantic

relationship with a 15-year-old player.     Two years later the defendant

initiated a romantic relationship with a 16-year-old on the team.        Both

relationships led to sexual contact (oral sex) with the defendant. Defendant

was ultimately determined to be an SVP by the court, after hearing the

testimony of an SOAB member and an expert on behalf of the defendant.

      On appeal, the defendant argued that while she conceded her conduct

was predatory, her diagnosis, hebephilia, was not a mental abnormality or

personality disorder which is a prerequisite for an SVP determination.     On

appeal, our Court acknowledged that hebephilia is not a listed disorder in the

Diagnostic and Statistical Manual of Mental Disorders (“DSM”).     The court,

however, was persuaded by case law from sister states in coming to its

decision that “the debate surrounding hebephiliac diagnoses, and their use in

SVP proceedings, goes to the weight of the expert witness’ testimony.” Id.

at 193.   Where the trial court credited the SOAB member’s testimony




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regarding hebephilia, our Court affirmed the finding that the defendant

suffered from a mental abnormality was supported in the record. Id.

       The trial court’s conclusion that hebephilia satisfies the mental

abnormality requirement under section 9792 are clearly stated in the record.

See N.T. Sentencing Hearing, 11/24/15, 64-68.                   We find that Dr. Hays’

expert testimony, which was credited by the trial judge, provided clear and

convincing    evidence     to   support    the     trial   court’s   SVP   determination.

Hollingshead, supra; Commonwealth v. Meals, 842 A.2d 448, 450 (Pa.

Super. 2004) (reviewing court may not weigh evidence or substitute its

judgment for that of trial court).15      Thus, we find no merit to this claim.

       In his final issue, Baer contends that the court erred in denying his

request for a Frye hearing on the issue of whether his diagnosis, hebephilia,

is considered a mental abnormality for purposes of an SVP designation.

Specifically, he asserts that because hebephilia is not generally accepted by

the psychology or psychiatry communities, and, therefore, is novel scientific

evidence, it should have been subjected to the Frye test.

       In Commonwealth v. Dengler, 843 A.2d 1241, 1245 (Pa. Super.

2004), our Court held that the psychological or psychiatric testimony of an


____________________________________________


15
  We note that any challenge to Hays’ SVP determination is a challenge to
the weight, not the sufficiency, of the evidence. See Commonwealth v.
Feucht, 955 A.2d 377 (Pa. Super. 2008).




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expert at an SVP proceeding is not novel scientific evidence subject to Frye.

Specifically, our Court found that because there is nothing new or novel

about expert testimony based on the application of the statutory SVP

criteria, such testimony is not subject to the Frye rule. Moreover, while Dr.

Hays’ opinion testimony on hebephilia was scientifically founded, his

methodologies used to evaluate Baer were not in any sense new or novel.

Dengler, at 1246. Therefore, this claim has no merit.

     Judgment of sentence affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/2016




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