J-A35034-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

v. :

:

JEFFREY SCOTT PINCHOCK, :

:

Appellant : No. 135 WDA 2015

Appeal from the Judgment of Sentence December 18, 2014

in the Court of Common Pleas of McKean County,

Criminal Division, No. CP-42-CR-0000225-2013

BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.

MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 19, 2016

Jeffrey Scott Pinchock (“Pinchock”) appeals from the judgment of 

sentence imposed after a jury convicted him of indecent assault and 

corruption of minors.1 We affirm.

The female victim, W.R., met Pinchock in 2012, when she was fifteen 

years old. N.T. (trial), 12/9/13, at 6-7. At that time, Pinchock was thirtynine years old. Id. at 7. Pinchock resided in the victim’s home with her 

mother and her mother’s female romantic partner, Kristin Smithmyer 

(“Smithmyer”). Id. Smithmyer had known Pinchock for several years, and 

she let him stay in one of the rooms of her house. Id. at 61. 

The victim testified that she and Pinchock were friends, and he would 

oftentimes take her fishing, drive her to different places, and smoke 

 

1 18 Pa.C.S.A. §§ 3126(a)(1), 6301(a)(1)(i). Pinchock’s conviction of 

indecent assault was graded as a second-degree misdemeanor. Accordingly, 

we will hereinafter refer to this offense as indecent assault – M2. Pinchock’s 

corruption of minors conviction was graded as a first-degree misdemeanor.
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marijuana with her, which he supplied. Id. at 7-11. Pinchock would also 

buy the victim items such as soda and ice cream. Id. at 10. At some point, 

Pinchock began saying to the victim that she “owed” him sex in return for all 

of the things that he did for her. Id. at 10-11. According to the victim, 

“[Pinchock] would say that he did a lot for me, he drove me places, he took 

me places and he bought me things and that he deserved something in 

return.” Id. at 10; see also id. at 11 (wherein the victim stated that 

Pinchock “basically just said, you owe me, you owe me, you should do this 

for me.”).

On August 30, 2012, while the victim’s mother and Smithmyer were in 

Florida, Pinchock picked the victim up at the end of the school day, and 

drove her back to their home. Id. at 12-13. There was no one else in the 

home at the time. Id. at 13. Pinchock offered the victim a marijuana “joint” 

to smoke, but said “if I give you this, then I expect something in return.” 

Id. at 14; see also id. (wherein the victim explained that Pinchock wanted 

sex in return). The victim told Pinchock no, whereupon he began yelling at 

her, and acting aggressively. Id. The victim went to her room to get away 

from Pinchock, and took out her phone to text her friends. Id. Pinchock 

followed her to her room, grabbed her phone and threw it, and told her she 

was not going anywhere. Id. at 14-15. Pinchock continued yelling, 

repeatedly told the victim that she owed him for everything he did for her. 

Id. at 15. Eventually, the victim gave into Pinchock’s demands and took off 

her clothes. Id. at 15-16. The victim testified as to her fear that Pinchock 
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was going to hurt her. Id. at 16. The victim got onto her bed, and Pinchock 

removed his clothes. Id. at 16-17. According to the victim, “[Pinchock] got 

on top of me and put his penis in my vagina, [and] then I just closed my 

eyes.” Id. at 17; see also id. (wherein the victim said that she did not say 

anything to Pinchock because “I was scared”).

The Commonwealth also presented the testimony of Smithmyer, who 

had known Pinchock for approximately ten years. Id. at 55-56. Smithmyer 

testified that when she was fifteen or sixteen years-old, Pinchock frequently 

would take her fishing and smoke marijuana with her, which he provided. 

Id. at 56-57. Pinchock would also buy Smithmyer cigarettes and other 

items. Id. at 58. Smithmyer stated that although she and Pinchock initially 

were friends, Pinchock subsequently made comments to her indicating that 

he desired a sexual relationship. Id.; see also id. (wherein Smithmyer 

stated that “I could tell that ... he wanted something more from me ....”). 

Eventually, Pinchock directly told Smithmyer, while she was still a minor, 

that he wanted to have sex with her, and that she “owed” it to him. Id. at 

58-59; see also id. at 59 (wherein Smithmyer explained that Pinchock 

indicated that she owed him sex for “taking me fishing, [and] on a trip to 

Cabella’s,” and because “he smoked weed with me, bought me cigarettes or 

would take me to Sheetz and buy me food ....”). Smithmyer told Pinchock “I 

am not having sex with you,” and she never had sexual relations with him. 

Id. at 59.
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The victim first reported the sexual assault to her mother several 

months after it occurred, in March 2013.2 The victim testified that she did 

not report it earlier because Pinchock had threatened to kill her and/or her 

family members if she ever told anyone. Id. at 18-19.

In March 2013, the Commonwealth charged Pinchock with indecent 

assault – M2 and corruption of minors, as well as statutory sexual assault,3

sexual assault,4and felony corruption of minors – sexual nature5

(collectively, “the remaining sexual offenses”). 

Prior to trial, the Commonwealth filed a Motion in limine, seeking to 

introduce “prior bad acts” evidence to establish a common plan or scheme 

by Pinchock. Specifically, the Commonwealth sought to introduce testimony 

from Smithmyer about Pinchock’s having previously pressured her to engage 

in sexual activity with him while she was a minor. After conducting a 

hearing, the trial court entered an Opinion and Order on November 26, 

2013, granting the Motion in limine and explaining the court’s rationale 

underlying its ruling. 

 

2 The victim’s mother had kicked Pinchock out of the house approximately 

one month earlier, after discovering that Pinchock had been giving the victim 

marijuana. N.T., 12/9/13, at 76. The victim’s mother additionally stated 

that “I told ... [Pinchock] that [the victim] was afraid of him because he had 

smashed her cell phone at one point when I was out of town in Florida ....” 

Id. at 76-77.

3 18 Pa.C.S.A. § 3122.1.

4 18 Pa.C.S.A. § 3124.1.

5 18 Pa.C.S.A. § 6301(a)(1)(ii).
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The matter proceeded to a jury trial in December 2013. At the close 

of trial, the jury found Pinchock guilty of indecent assault – M2 and 

corruption of minors, but found him not guilty of the remaining sexual 

offenses. Pinchock filed a post-trial Motion, which the trial court denied.

In February 2014, the trial court issued an Order directing that a 

member of the Sexual Offender Assessment Board (“SOAB”) assess 

Pinchock,6and issue a recommendation as to whether he meets the criteria 

of a sexually violent predator (“SVP”). The SOAB assigned Brenda Manno 

(“Manno”), a licensed social worker, to evaluate the case and prepare a 

report. Manno prepared a report (“SVP Report”), opining that Pinchock is an 

SVP. The trial court subsequently held an SVP hearing, at which Manno 

testified.7 By an Opinion and Order entered on November 24, 2014, the trial 

court directed that Pinchock be classified as an SVP.8 As a result of his SVP 

classification, Pinchock is required to register with the Pennsylvania State 

Police as a sex offender for his lifetime, pursuant to the Sex Offender 

 

6

Pinchock did not participate in the assessment.

7 As we discuss below, Manno conceded at the hearing that she made an 

error in the SVP Report concerning Pinchock’s conviction of corruption of 

minors. N.T., 10/17/14, at 41. However, Manno testified that such error did 

not contribute to her opinion that Pinchock is an SVP. Id. at 53.

8 The trial court stated that “although it had concerns regarding the basis for 

[] Manno’s conclusions/opinion[, which] initially caused the [c]ourt 

hesitation[, a]fter a review of the known facts in this case[,] the [c]ourt 

finds that [Pinchock] is an S[VP].” Opinion and Order, 11/24/14, at 5 

(unnumbered); see also id. at 6 (unnumbered) (stating that “[a]lthough [] 

Manno’s [SVP R]eport was inaccurate in some respects, the [c]ourt still 

accepts [] Manno’s opinion as accurate.”).
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Registration and Notification Act (“SORNA”).9 On December 18, 2014, the 

trial court sentenced Pinchock to an aggregate term of 15 months to 6 years 

in prison.

Pinchock timely filed a Notice of Appeal. In response, the trial court 

ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors 

complained of on appeal. Pinchock timely filed a Concise Statement, after 

which the trial court issued a Pa.R.A.P. 1925(a) Opinion.

On appeal, Pinchock presents the following issues for our review:

Should the Superior Court reverse and dismiss [Pinchock’s] 

conviction[s] where:

a. The weight of the evidence of [] record does not support 

the verdict?

b. The verdict rendered is logically and legally inconsistent 

where the jury found [that] there was no sexual 

contact[,] but found [Pinchock] guilt[y] o[f] indecent 

assault [– M2]?

c. The [trial] court improperly admitted prior bad acts of

[Pinchock] involving a remote and unrelated incident as 

to prevent [Pinchock] from receiving a fair trial[,] since 

the evidence was overly prejudicial?

d. [Pinchock] should not have been required to participate 

in [SORNA’s] reporting requirements since the Megan’s 

Law reporting requirement was not the prevailing law at 

the time the offense occurred[,] but was mandated as of 

the date of conviction?

 

9 See 42 Pa.C.S.A. § 9799, et seq. Under SORNA, Pinchock’s conviction of 

indecent assault – M2 is classified as a Tier I sexual offense. Id. 

§ 9799.14(b)(6); see also id. § 9799.15(d) (providing that “[a]n individual 

convicted of a Tier I sexual offense ... who is determined to be a sexually 

violent predator under section 9799.24 (relating to assessments) shall 

register for the life of the individual.”). 
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e. [Manno] failed to consider legally relevant and proper 

evidence in reaching [her] conclusion [that Pinchock] is

a[n SVP,] as defined under 42 Pa.C.S.A. [§] 9979?

Brief for Appellant at 15.

Pinchock first argues that “[t]he Superior Court should reverse and 

dismiss [his] conviction[s] where [the] weight of the evidence of the record 

does not support the verdict.” Id. at 29 (emphasis omitted).10 

We review a challenge to the weight of the evidence under the 

following standard:

Appellate review of a weight claim is a review of the exercise of 

discretion, not of the underlying question of whether the verdict 

is against the weight of the evidence. Because the trial judge 

has had the opportunity to hear and see the evidence presented, 

 

10 In connection with this issue, Pinchock also appears to challenge the 

sufficiency of the evidence. See Brief for Appellant at 29 (setting forth the 

standard of review for sufficiency claims); see also id. at 31 (challenging 

the “sufficiency of the victim’s testimony”). However, Pinchock did not raise 

a sufficiency challenge in either his court-ordered Pa.R.A.P. 1925(b) Concise 

Statement or his Pa.R.A.P. 2116(a) Statement of Questions Involved 

section. Moreover, sufficiency challenges are distinct from challenges to the 

weight of the evidence. See Commonwealth v. Birdseye, 637 A.2d 1036, 

1039 (Pa. Super. 1994) (differentiating between sufficiency and weight 

challenges, and observing that “in making a claim that the verdict was 

against the weight of the evidence, it is conceded that there was sufficient 

evidence to sustain the verdict.”). Accordingly, Pinchock failed to preserve 

his sufficiency claim for our review. See Pa.R.A.P. 1925(b)(4)(vii) 

(providing that “[i]ssues not included in the [Concise] Statement ... are 

waived.”); Pa.R.A.P. 2116(a) (stating that “[n]o question will be considered 

unless it is stated in the statement of questions involved or is fairly 

suggested thereby.”). Nevertheless, even if Pinchock had not waived his 

sufficiency challenge, we would conclude that it lacks merit based on the 

trial court’s analysis concerning the sufficiency of the evidence in its 

Pa.R.A.P. 1925(a) Opinion. See Trial Court Opinion, 4/23/15, at 3-4 

(unnumbered). Indeed, there was ample evidence presented for the jury to 

have properly found that the Commonwealth proved the elements of 

indecent assault – M2 and corruption of minors beyond a reasonable doubt.
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an appellate court will give the gravest consideration to the 

findings and reasons advanced by the trial judge when reviewing 

a trial court’s determination that the verdict is against the weight 

of the evidence. 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) (emphasis and 

citations omitted).

Relief on a weight of the evidence claim is reserved for 

extraordinary circumstances, when the [fact-finder’s] verdict is 

so contrary to the evidence as to shock one’s sense of justice 

and the award of a new trial is imperative so that right may be 

given another opportunity to prevail. On appeal, [an appellate] 

Court cannot substitute its judgment for that of the [fact-finder] 

on issues of credibility, or that of the trial judge respecting 

weight. 

Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and 

quotation marks omitted).

Pinchock argues that the jury’s guilty verdicts were against the weight 

of the evidence because the victim’s testimony was not credible. See Brief 

for Appellant at 30-31 (asserting that the victim described “the location of 

the [sexual assault] in a bedroom that was not even in existence as of 

August 2012, and [there were] numerous inconsistencies pervasive to the 

evidence presented.”).

In its Pa.R.A.P. 1925(a) Opinion, the trial court rejected Pinchock’s 

weight of the evidence claim, stating, inter alia, that “[s]ince credibility was 

left [to] the discretion of the jury to assess, [Pinchock’s] assertions 

regarding the weight of the evidence lack merit.” Trial Court Opinion, 
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4/23/15, at 4 (unnumbered); see also Sanchez, supra (stating that an 

appellate court cannot substitute its judgment for that of the fact-finder on 

issues of credibility). We discern no abuse of discretion by the trial court in 

rejecting Pinchock’s claim, nor is the jury’s verdict so contrary to the 

evidence as to shock our collective sense of justice. See Sanchez, supra. 

Accordingly, Pinchock’s first issue does not entitle him to relief.

Next, Pinchock contends that his conviction of indecent assault – M2 

must be reversed because the jury’s guilty verdict on this count was 

inconsistent with their acquittal concerning the remaining sexual offenses. 

See Brief for Appellant at 31-32. Pinchock avers that

[he] was convicted of indecent assault [– M2,] which does not 

require penetration[,] but only touching a victim in inappropriate 

places of her body[.] ... The jury’s inconsistent verdict clearly 

finds there was some measure of inappropriate touching[,] but 

obviously no penetration as defined. Thus the necessary 

elements of indecent assault [– M2] cannot be determined of 

having to occur [sic] if the jury’s verdict does not find [that 

Pinchock] engaged in any inappropriate touching. 

Id. at 32; see also id. at 15 (arguing that “[t]he verdict rendered is 

logically and legally inconsistent where the jury found [that] there was no 

sexual contact ....”).

Concerning inconsistent verdicts and acquittals, our Pennsylvania 

Supreme Court has explained as follows:

Federal and Pennsylvania courts alike have long recognized that 

jury acquittals may not be interpreted as specific factual findings 

with regard to the evidence, as an acquittal does not definitively 

establish that the jury was not convinced of a defendant’s guilt. 

Rather, ... an acquittal may merely show lenity on the jury’s 

behalf, or that “the verdict may have been the result of 
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compromise, or of a mistake on the part of the jury.” United 

States v. Dunn, 284 U.S. 390, 394, 52 S. Ct. 189, 76 L. Ed. 

356 (1932); see also [Commonwealth v.] Carter, 282 A.2d 

[375,] 376 [(Pa. 1971)]. Accordingly, the United States 

Supreme Court has instructed that courts may not make factual 

findings regarding jury acquittals and, thus, cannot “upset” 

verdicts by “speculation or inquiry into such matters.” Dunn, 

284 U.S. at 394. 

Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014); see also 

Commonwealth v. Rose, 960 A.2d 149, 158 (Pa. Super. 2008) (stating 

that “[i]nconsistent verdicts, while often perplexing, are not considered 

mistakes and do not constitute a basis for reversal. ... Thus, this Court will 

not disturb guilty verdicts on the basis of apparent inconsistencies as long as 

there is sufficient evidence to support the verdict.”).

Based upon the foregoing authority, and because we have already 

determined that Pinchock’s convictions are supported by sufficient evidence, 

his claim of an inconsistent verdict does not entitle him to relief. See 

Moore, supra; Rose, supra.

In his third issue, Pinchock contends that the trial court erred and 

deprived him of a fair trial by improperly permitting the Commonwealth to 

introduce into evidence the “prior bad acts” testimony of Smithmyer. See

Brief for Appellant at 32-34. According to Pinchock, Smithmyer’s testimony 

was “extremely prejudicial” and concerned an “unrelated prior bad act [that] 

was not sexual in nature[, and] extremely remote in time from the date of 

the alleged [] sexual [assault that] occur[ed] on August 31, 2012.” Id. at 

33, 34 (citing and relying upon Commonwealth v. Shively, 424 A.2d 
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1257, 1259 (Pa. 1981) (stating that “evidence of prior crimes is admissible[] 

to prove other like crimes by the accused so nearly identical in method as to 

earmark them as the handiwork of the accused[,]” and that “[e]ven if 

evidence of prior criminal activity is admissible said evidence will be 

rendered inadmissible if it is too remote.” (citation, emphasis and ellipses 

omitted)). 

Our standard of review concerning a challenge to the admissibility of 

evidence is as follows:

The admissibility of evidence is a matter for the discretion of the 

trial court and a ruling thereon will be reversed on appeal only 

upon a showing that the trial court committed an abuse of 

discretion. An abuse of discretion may not be found merely 

because an appellate court might have reached a different 

conclusion, but requires a result of manifest unreasonableness, 

or partiality, prejudice, bias, or ill-will, or such lack of support so 

as to be clearly erroneous.

Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and 

quotation marks omitted); see also Commonwealth v. Patterson, 91 

A.3d 55, 68 (Pa. 2014) (stating that “[t]he admission of evidence of prior 

bad acts is solely within the discretion of the trial court, and the court’s 

decision will not be disturbed absent an abuse of discretion.”).

In its Opinion and Order entered on November 26, 2013, the trial court 

thoroughly addressed Pinchock’s claim, set forth the applicable law and 

pertinent preliminary hearing testimony of the victim and Smithmyer, and 

determined that Smithmyer’s testimony would be admissible at trial to 

establish a common plan or scheme. See Opinion and Order, 11/26/13, at 
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1-7 (unnumbered). The trial court’s sound analysis is supported by the law 

and the record, and we affirm on this basis in concluding that the court 

properly exercised its discretion in admitting this evidence. See id. 

In his fourth issue, Pinchock argues that the Commonwealth failed to 

meet its burden, by clear and convincing evidence, to establish that he is an 

SVP, since the evaluation and recommendation completed by Manno was not 

based on “legally relevant and proper evidence.” Brief for Appellant at 34; 

see also id. at 36 (asserting that “Man[n]o based her findings on hearsay 

statements, inaccurate information[,] including the preliminary hearing 

transcript, outdated employment[] and mental health information[,] 

questionable drug and alcohol records, and factual inconsistencies that were 

established at trial[,] including the victim’s contradicting statements made at 

the preliminary hearing and trial.”). Additionally, Pinchock contends that his 

classification as an SVP was in error since “the Commonwealth failed to ... 

establish [that he] suffers [from] a mental health disorder that makes him 

likely to engage in predatory sexually violent offenses.” Id. at 37.

“[I]n reviewing the sufficiency of the evidence regarding the 

determination of SVP status, we will reverse the trial court only if the 

Commonwealth has not presented clear and convincing evidence sufficient to 

enable the trial court to determine that each element required by the 

statute[, i.e., the SVP provisions of SORNA,] has been satisfied.” 

Commonwealth v. Brooks, 7 A.3d 852, 860 (Pa. Super. 2010) (citation 

omitted). Additionally, this Court has stated that 
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[a] challenge to the sufficiency of the evidence to support an 

SVP designation requires the reviewing court to accept the 

undiminished record of the case in the light most favorable to 

the Commonwealth. The reviewing court must examine all of 

the Commonwealth’s evidence without consideration of its 

admissibility. A successful sufficiency challenge can lead to an 

outright grant of relief such as a reversal of the SVP designation, 

whereas a challenge to the admissibility of the expert’s opinion 

and testimony is an evidentiary question which, if successful, can 

lead to a new SVP hearing.

Commonwealth v. Prendes, 97 A.3d 337, 356 (Pa. Super. 2014) (citations 

omitted).

In its Opinion and Order entered on November 24, 2014, the trial court 

addressed Pinchock’s challenge to his SVP classification, thoroughly set forth 

the relevant law, and determined that notwithstanding the court’s “concerns 

regarding the basis for [] Manno’s conclusions/opinion,” the Commonwealth 

established, by clear and convincing evidence, that Pinchock is an SVP. See

Opinion and Order, 11/24/14, at 2-6. The trial court’s analysis is supported 

by the law and the record, and we affirm on this basis in rejecting Pinchock’s 

fourth issue. See id.

Finally, Pinchock argues that the trial court erred by “retroactively” 

applying the provision of SORNA requiring that he report as a sexual 

offender for his lifetime, where, at the time of the offense on August 30, 

2012, the version of Megan’s Law then in effect did not require a defendant 

convicted of indecent assault – M2 to register as a sexual offender. See
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Brief for Appellant at 37-38;11 see also id. at 38 (stating that “the 

commission of the crime concerning [] Pinchock occurred in August 2012[,] 

when ... indecent assault [– M2] did not require mandatory reporting under 

Megan’s Law[,] as such requirement did not take official effect until 

December [20], 2012[,] under 42 Pa.C.S.A. [§] 9799.13.”). Pinchock avers 

that this Court’s decision in Commonwealth v. Bundy, 96 A.3d 390 (Pa. 

Super. 2014), is controlling and compels a ruling that Pinchock is not 

required to register as a sexual offender. See Brief for Appellant at 37-38. 

In Bundy, the defendant pled nolo contendere to, inter alia, indecent 

assault – M2 in 2009,12 and was released on probation. Bundy, 96 A.3d at 

391. At the time of his conviction, the version of Megan’s Law then in effect 

did not require the defendant to register as a sex offender. Id. However, 

following a subsequent resentencing resulting from a probation violation, the 

defendant was informed that he would be required to register for 25 years 

pursuant to the new provisions of SORNA. Id. at 392; see also 42 

Pa.C.S.A. §§ 9799.12, 9799.13(2), 9799.14(c)(1.2). The defendant filed a 

petition with the trial court seeking relief from the registration provision. 

Bundy, 96 A.3d at 392. While the defendant’s petition was pending, an 

amendment to SORNA was enacted in March 2014, modifying 42 Pa.C.S.A. 

 

11 Pinchock does not challenge SORNA’s constitutionality concerning its 

retroactive application.

12 The defendant in Bundy was convicted of indecent assault – M2 under 18 

Pa.C.S.A. § 3126(a)(8). Pinchock’s conviction was under 18 Pa.C.S.A. 

§ 3126(a)(1). Both crimes are graded as second-degree misdemeanors. 

See id. § 3126(b)(1).
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§ 9799.13.13 Bundy, 96 A.3d at 392-93. This Court held that because the 

defendant was convicted of indecent assault – M2 in 2009, within the 

timeframe provided for in paragraph (3.1)(i)(A) of section 9799.13 

 

13

 Amended section 9799.13 provides, in relevant part, as follows:

The following individuals shall register with the Pennsylvania State 

Police ... and otherwise comply with the provisions of this subchapter:

(1) An individual who, on or after the effective date of this section[,

i.e., December 20, 2012], is convicted of a sexually violent offense 

and who has a residence within this Commonwealth or is a transient.

* * *

(2) An individual who, on or after [December 20, 2012], is, as a 

result of a conviction for a sexually violent offense, ... being 

supervised by the Pennsylvania Board of Probation and Parole or 

county probation or parole ....

* * *

(3.1) The following:

(i) An individual who between January 23, 2005, and 

December 19, 2012, was:

(A) convicted of a sexually violent offense;

 * * *

(ii) For purposes of this paragraph, the term “sexually 

violent offense” shall have the meaning set forth in section 

9799.12 (relating to definitions), except that it shall not 

include:

* * *

(B) A conviction under 18 Pa.C.S. § 3126 (relating to 

indecent assault) where the crime is graded as a 

misdemeanor of the second degree ....

42 Pa.C.S.A. § 9799.13 (emphasis added).
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(hereinafter “the exception timeframe”), and because paragraph (3.1)(ii)(B) 

excludes indecent assault, graded as a misdemeanor of the second degree,

from the definition of a “sexually violent offense” triggering registration, the 

defendant was not subject to registration. Id. at 395-96.

In the instant case, there was no retroactive application of SORNA’s 

registration provisions. Rather, at the time of Pinchock’s conviction of 

indecent assault – M2 on December 10, 2013, this offense was classified as 

a Tier I sexual offense, which required lifetime registration in light of 

Pinchock’s SVP classification. See 42 Pa.C.S.A. §§ 9799.14(b)(6), 

9799.15(d). Unlike the situation in Bundy, Pinchock was not convicted of 

indecent assault – M2 within the exception timeframe provided for in section 

9799.13(3.1)(i)(A). Moreover, to the extent that Pinchock points out that 

the date of his offense, i.e., August 30, 2012, occurred within the 

exception timeframe, this fact is immaterial; the date of the offender’s 

conviction controls. See 42 Pa.C.S.A. § 9799.13(3.1)(i)(A); see also

Bundy, 96 A.3d at 395-96.

Judgment of sentence affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 1/19/2016
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1 The Defense also asserts that, since the Commonwealth failed to call Wl at the hearing to address their Motion 

in imine, the Commonwealth is precluded from presenting her testimony regarding prior bad acts at the time of 

trial. They assert that they should have been afforded the opportunity to cross examine her and fully explore all 

details of her allegations prior to trial. However, the issue is whether the defense has obtained appropriate notice 

"of the general nature of any such evidence the prosecutor intends to introduce at trial." Pa.R.Evid. 404{b}(2). In 

Commonwealth v. Lynch, 57 A.3d 120, at 126 (Pa.Super. 2012) the Superior Court held that [p]roper notice was 

given where an affidavit of probable cause set forth the substance of the witnesses proffered testimony and the 

defense had received the affidavit of probable cause prior to trial. The Lynch Court focused on whether the 

defense was subject to "unfair surprise" at the time of trial. The Court finds that the statement provided by the 

Commonwealth as an offer of proof adequately advises the defense of the substance and details of Wl's 

testimony and, therefore, the defense can properly prepare for trial without "unfair surprise." Of course, if Wl's 

testimony at trial was not in conformance with her prior statement the Court would, if requested by the defense to 

do so, consider excluding some or all of this testimony and, if appropriate, granting a request for a mistrial. 

demonstrate that the Defendant was acting under a common plan or scheme. 

The central issue is whether the facts of these two allegations are significantly similar to 

FACTUAL BACKGROUND 

hearing was held and the matter is now ready for decision. 

asserts that this testimony does not fall under this exception and, therefore, is inadmissible.1 A 

Pa.R.Evd. 404(b }(2}, the Common Plan or Scheme exception to the hearsay rule. The Defendant 

"KRS"} regarding the Defendant's alleged prior conduct directed toward her is admissible under 

The Commonwealth asserts that the testimony of Kristin Rose Smithmyer ("hereinafter 

OPINION AND ORDER 

Defendant. 

JEFFREY S. PINCHOCK, NO. 225 C.R. 2013 

vs. CRIMINAL DIVISION 

Plaintiff OF McKEAN COUNTY, PENNSYLVANIA 

COMMONWEALTH OF PENNSYLVANIA, IN THE COURT OF COMMON PLEAS 

-s-« 35 03t.; /is ( Circulated 12/18/2015 09:59 AM t .i 
While "rolling a joint" the Defendant told the victim that he "was always doing things for 

victim and the Defendant smoked marijuana together many times prior to this incident. 

asked the victim if she wanted to smoke marijuana with him. The victim said "yes." The 

permission to reside at the same home as the victim and her Mother. The Defendant 

years of age (Defendants' D.O.B. 4/15/1973). The Defendant had previously been given 

residence in McKean County. At that time the Defendant was approximately thirty nine 

old and around Labor Day, 2012, the Defendant and the victim were alone at their 

The allegations in the current case are as follows: When the victim was 15 years 

KRS home and "the situation was never discussed between us again." 

that notion out of his head for good." The Defendant then became very upset and drove 

stuff he did for me that I should repay him with sex." KRS told the Defendant to "get 

smoke weed with me and buy me things." Further, he told her "for payment of all that 

told KRS that she "lead him on" and that "he did so much for me like take me fishing and 

the Defendant confronted KRS during a "few situations." The Defendant was upset and 

wife." KRS told the Defendant "no" and that she was not interested in him. After this 

infatuation." The Defendant told KRS she was beautiful and would "make a perfect 

so" the Defendant "started acting very amorous towards me (KRS) to the point of 

partying together, fishing and other outdoor activities." When KRS was "seventeen or 

met she "partied" with the Defendant and others. She states "our friendship consisted of 

thirty or thirty one years old (Defendant's D.O.B. 4/15/73). After the Defendant and KRS 

would have been in 2003 and/or 2004; and, at that time the Defendant would have been 

she met the Defendant through mutual friends. Since KRS's D.O.B. is 7/25/1998, this 

A summary of the facts asserted by KRS are as follows: When KRS was 15 or 16 

r; 

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We are cognizant of the fact that a determination of whether evidence is 

admissible under the common plan exception must be made on a case by case 

basis in accordance with the unique facts and circumstances of each case. 

However, we recognize that in each case, the trial court is bound to follow the 

same controlling, albeit general, principles of law. When ruling upon the 

admissibility of evidence under the common plan exception, the trial court must 

first examine the details and surrounding circumstances of each criminal incident 

to assure that the evidence reveals criminal conduct which is distinctive and so 

nearly identical as to become the signature of the same perpetrator. Relevant to 

such a finding will be the habits or patterns of action or conduct undertaken by the 

perpetrator to commit crime, as well as the time, place, and types of victims 

typically chosen by the perpetrator. Given this initial determination, the court is 

bound to engage in a careful balancing test to assure that the common plan 

evidence is not too remote in time to be probative. If the evidence reveals that the 

details of each criminal incident are nearly identical, the fact that the incidents are 

separated by a lapse of time will not likely prevent the offer of the evidence 

unless the time lapse is excessive. Finally, the trial court must assure that the 

probative value of the evidence is not outweighed by its potential prejudicial 

Superior Court discussed in detail the standard to apply when addressing a 404(b )(2) issue: 

Pa.R.Evid. 404(b )(2). In Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. Ct. 1990), the 

(2) Evidence of other crimes, wrongs, or acts may be admitted for purposes, such as 

proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence 

of mistake or accident. 

(b) Other Crimes, Wrongs, or Acts, 

It is set forth in Rule 404(b )(2) that: 

AUTHORITY 

harm the victim if she told anyone about this incident. 

her and had intercourse with her. The Defendant then left and, the next day, threatened to 

going to harm her if she did not do it, laid on the bed while the Defendant got on top of 

repay him." The victim indicated no several times but then, because she felt he was 

him no but the defendant persisted repeating that "he does stuff for her and she should 

her" and that she should do something for him and have sex with him. The victim told 

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Ml_At 1185-1186. 

In the case at bar, we believe that the fact pattern involved in the two 

incidents was markedly similar. In both cases, the victims were of like 

ages: T.S. was fourteen years old, and V.B. was fifteen years old. Both 

victims were Appellant's biological daughters. Appellant initiated the 

contact during an overnight visit in his apartment. He began sexual abuse 

by showing the girls pornographic movies. The assaults occurred in bed at 

night. While Appellant raped V.B. and indecently assaulted T.S., T.S. 

stopped Appellant from disrobing her and committing the more serious 

sexual assault. In addition, Appellant mimicked the grinding movements 

of sexual intercourse on T.S. in order to sexually gratify himself. These 

matching characteristics elevate the incidents into a unique pattern that 

distinguishes them from a typical or routine child-abuse factual pattern. 

Hence, we reject Appellant's position that we are pigeonholing sexual 

abuse cases to such an extent that any prior instance of child abuse would 

be admissible in a subsequent child abuse prosecution. See also 

Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264(1989) (evidence 

about prior rape correctly allowed at rape-murder trial since crimes were 

committed in similar geographic location, at similar time, characteristics 

of victim matched, and defendant used same method of attack). As was 

the case in Hughes, the similarities at issue herein were "not confined to 

insignificant details that would likely be common elements regardless of 

who committed the crimes." Id. At 1283. 

attempted have intercourse with her. The Superior Court held: 

asserted that, when she was 14, her father made her watch a pornographic video and 

pornographic video and then raped her. In that case the defendant's second daughter 

year old daughter that, when she was 15 years old, her father made her watch a 

Court affirmed the decision of the trial court to allow the testimony of a defendant's 32 

In Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. Ct. 2010) the Superior 

Id. At 614. 

impact of the evidence with such factors as the degree of similarity established 

between the incidents of criminal conduct, the Commonwealth's need to present 

evidence under the common plan exception, and the ability of the trial court to 

caution the jury concerning the proper use of such evidence by them in their 

deliberations. 

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similarities were much greater in Aikens and O'Brien, supra. The Defendant here did not 

"partied" with them before making sexual advances toward them. However, the specific 

Defendant sexually assaulted her. The Defendant provided marijuana to both girls and 

approximately 17 when he made advances toward her, and, the victim was 15 when the 

toward them. KRS was 15 or 16 when she first met the Defendant, she was 

First, the two were roughly the same age when the Defendant made sexual advances 

similarities between the Defendant's alleged conduct toward KRS and the current victim. 

likely be common elements regardless of who committed the crimes." There are 

similarities between the two allegations is "confined to insignificant details that would 

distinguishes them from a typical or routine child-abuse factual pattern;" or, whether the 

"matching characteristics [that] elevate the incidents into a unique pattern that 

Using the language of Aikens, supra., the issue here is whether there are 

DISCUSSION 

instructed the victims not to tell anyone. Id. at 970. 

material; each crime involved deviate sexual intercourse; and, in each case the defendant 

victims - and in the defendant's home; the defendant showed each victim pornographic 

friends with him; each crime was committed after the defendant was alone with the 

eight and eleven years old; each boy knew the defendant because their parent(s) were 

assaults was sufficient to demonstrate a common plan or scheme: each boy was between 

different victim. The Superior Court held that the following similarities of the three 

different minors years earlier was not admissible in a subsequent prosecution involving a 

Court reversed the holding of the trial court that evidence of a prior sexual assault of two 

In Commonwealth v. O'Brien, 836 A.2d 966 (Pa. Super. Ct. 2003), the Superior 

(.·· 

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in the Defendant obtaining his planned goal. The issue is whether the Defendant utilized 

he had been working for. It is immaterial that the pressure he put on KRS did not result 

plan and was upset when it did not appear as if his efforts were going to yield the results 

what his plan was. He told both KRS and the victim that he had put a lot of work into his 

them fishing and befriend them in return for sex because the Defendant said that that was 

Defendant had a plan to party with KRS and the victim, to give them marijuana, to take 

considered with the other facts a clear plan and scheme emerges. The Court finds that the 

admission of a common plan or scheme. When the Defendant's statements are 

statements are extremely important to this analysis because, if proven, they are an actual 

persisted repeating that "he does stuff for her and she should repay him." These 

something for him and have sex with him. When the victim told him no the defendant 

the Defendant told her that he "was always doing things for her" and that she should do 

that stuff he did for me that I should repay him with sex." The current victim asserts that 

take me fishing and smoke weed with me and buy me things;" and, "for payment of all 

and through his actions, that he was upset with her because "he did so much for me like 

probative on the "common plan or scheme" issue. The Defendant told KRS, both directly 

However, the Defendant's alleged statements to each victim are extremely 

would exist regardless of who committed the crimes. 

here and any similarities between the two alleged incidents were common elements that 

Therefore, the Court was inclined to conclude that a "unique fact pattern" did not exist 

O'Brien: befriended victims parents showed them pornographic material in his home). 

(Aikens: visits with daughters and then showed them pornographic material at his home; 

isolate KRS and the victim under almost identical manner in order to assault them 

,···· 

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Therefore, we enter the following: 

common plan and scheme here. The fact that he said that there was cannot be ignored. 

wanted in both cases. The Defendant is the best source to know whether he had a 

a common plan in both instances,not whether the plan yielded the result the Defendant 

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BY THE COURT: 

conduct. 

discussed in the Opinion filed contemporaneously with this order regarding prior 

limine is granted and the Commonwealth is permitted to present the testimony of KRS 

AND NOW, this zs" day of November, 2013, the Commonwealth's Motion in 

ORDER 

Defendant. 

JEFFREY S. PINCHOCK, NO. 225 C.R. 2013 

vs. CRIMINAL DIVISION 

Plaintiff OF McKEAN COUNTY, PENNSYLVANIA 

COMMONWEAL TH OF PENNSYLVANIA, IN THE COURT OF COMMON PLEAS 

tC. I I " 

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1 Count 1: Statutory Sexual Assault, 18 Pa. C.S. § 3122.1, Felony 1st Degree; Count 2: Sexual Assault, 18 Pa. C.S. 

3124.1, Felony 2nd Degree; Count 3: Corruption of Minors of Sexual Nature, 18 Pa. C.S. § 630l(a)(l)(ii), Felony 

3rd Degree; Count 4: Corruption of Minors, 18 Pa.C.S. § 630l(a)(l)(ii), Misdemeanor 1st Degree; Count 5: 

Indecent Assault, 18 Pa.C.S. § 3 l 26(a)(l ), Misdemeanor 2nd Degree. 

A hearing was held on October 17, 2014. The matter is now ready for a decision. 

Board ("SOAB") to conduct a sexually violent predator ("SVP") assessment of the Defendant. 

By order dated February 13, 2014, the Court ordered the Sexual Offender Assessment 

Defendant filed a post-trial motion and the motion was denied. 

(F3). The Defendant was found guilty of Corruption of Minors (Ml) and Indecent Assault (M2). 

of Statutory Sexual Assault (Fl), Sexual Assault (F2), and Corruption of Minors-Sexual Nature 

Indecent Assault (M2).1 The matter was tried before a jury. The Defendant was found not guilty 

Assault (F2), Corruption of Minors-Sexual Nature (F3), Corruption of Minors (Ml), and 

Defendant Jeffrey Pinchock was charged with Statutory Sexually Assault (Fl), Sexual 

OPINION AND ORDER 

Stephanie L. Vettenburg-Shaffer, Esq. For the Defendant 

DA Raymond Learn, Esq. For the Plaintiff 

Defendant. 

JEFFREY SCOTT PINCHOCK, NO. 225 C.R. 2013 

vs. CRIMINAL DIVISION 

Plaintiff OF McKEAN COUNTY, PENNSYLVANIA 

COMMONWEAL TH OF PENNSYLVANIA, IN THE COURT OF COMMON PLEAS 

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2 

APPLICABLE AUTHORITY 

As set forth in 42 PA C.S.A. § 9799.24, the Commonwealth may pursue a hearing where 

the Court will determine if the defendant shall be classified as a sexually violent predator. The 

hearing shall be scheduled upon praecipe filed by the District Attorney. The District Attorney 

upon filing the praecipe shall serve a copy of same upon defense counsel together with a copy of 

the report by the SOAB. 

Upon receipt from the court of an order for an assessment, a member of the board as 

designated by the administrative officer of the board shall conduct an assessment of the 

individual to determine if the individual should be classified as a sexually violent predator. The 

board shall establish standards for evaluations and for evaluators conducting the assessments. 

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. 

(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. 

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3 

With regard to the various statutory assessment factors for classification of an SVP 

mentioned above, 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. Id. After conducting a hearing 

and considering the evidence presented, the court decides whether a defendant should be 

designated an SVP and thus made subject to the registration requirements in 42 Pa. C.S.A. § 

9799.15. Id. at 863. 

(2010). 

42 Pa. Cons. Stat. Ann. § 9799.24. 

The question for a court analyzing a SVP allegation is whether the Commonwealth's 

evidence, including the state assessment board's assessment, shows that the person convicted of a 

sexually violent offense has a mental abnormality or disorder making that person likely to 

engage in predatory sexually violent offenses. Commonwealth v. Brooks, 7 A.3d 852, 860 

(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 re-offense. 

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2 Examples under training section for Brenda A. Manno MSW, LCSW (Comm. Exhibit 2). 

As stated above, the Court must decide whether the defendant is an SVP. The Court has 

to review the Commonwealth's evidence and may consider the report of the SOAB. The 

Commonwealth's expert, Brenda Mano, has substantial expertise regarding SVP evaluations. 

She has been a SOAB Board member since 1998 and has had extensive schooling and training/ 

in psychology, sociology, licensed social work, assessing sexual offenders, child abuse, ethical 

issues in the assessment of sexual offenders, advanced forensic interviews training, the 

psychology of criminal sexuality, and ethics concerns in sex offender commitment in the 

Commonwealth of Pennsylvania. Ms. Mano has been qualified as an expert and has done 

"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 (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." 

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

DISCUSSION 

Defendant Pinchock was convicted of Corruption of Minors (Ml) 18 Pa.C.S. 

§ 6301(a)(l)(ii) and Indecent Assault (M2) 18 Pa.C.S. § 3126(a)(l) on December 10, 2013. Both 

offenses are equivalent to what is called a Tier 1 offense. An individual convicted of a Tier I 

sexual offense, except an offense set forth in Section 9799. l 4(b )(23) (relating to sexual offenses 

and tier system), shall register for a period of 15 years with the Pennsylvania State Police 

("PSP"). If a person is found to be a sexually violent predator, they must register with the PSP 

for life. 

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5 

4 There is no record that the Defendant received any treatment as part of his sentence for his 1997 convictions. 

3 By convicting the Defendant of counts of Corruption of Minors (Ml) 18 Pa.C.S. § 630l(a)(l)(ii) and Indecent 

Assault (M2) 18 Pa.C.S. § 3126(a)(l), the Jury concluded that the Defendant had inappropriately touched the victim 

for sexual gratification but rejected the assertion that sexual intercourse had occurred. 

and specifically to young girls who are under the age of 18. A consideration of the facts of his 

Therefore, he has a clear pattern of victimization that suggests that he could be a danger to others 

Pa. C.S. § 3122.1 and Count 2: Corruption of Minors 18 Pa.C.S. § 630l(a)(l)(ii) in 1997.4 

that involved crimes of a sexual nature. He pied guilty to Count 1: Statutory Sexual Assault 18 

the Defendant is a Sexually Violent Predator. The Defendant does have a prior criminal history 

the Court hesitation. However, after a review of the known facts in this case the Court finds that 

The concerns regarding the basis for Ms. Manna's conclusions/opinion initially caused 

Defendant as an SVP. 

Defendant was found guilty of, etc., it would not change her opinion of the classifying the 

assertion.3 Ms. Manno stated that, considering all the correct information regarding what the 

concluded that the Defendant had sexual intercourse with the victim when the jury rejected this 

when in fact the Defendant was not convicted of this offense. Therefore, factually she had 

concluded that the Defendant had been convicted of corruption of a minor of a sexual nature 

review it and instead reviewed the preliminary hearing transcript. Further, she incorrectly 

example, despite the fact a trial transcript was readily available on January 2, 2014, she did not 

In this case, numerous concerns were raised regarding Ms. Mano's opinion. For 

requirements for SVP status and cannot blindly accept any expert's conclusions on this issue. 

assessments. However, the court must make the determination whether the Defendant meets the 

approximately 1,401 assessments of which 925 for SVP and the remaining for pre-parole 

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6 

WHEREFORE, we enter the following: 

Prendes, 337 at 363. 

[A]n SOAB expert assessment falls under the general rules regarding expert witnesses 

and may be based on facts or data that the expert has been made aware of or personally 

observed, so long as experts in the particular field reasonably rely on those kinds of facts 

or data in forming an opinion on the subject; the facts or data consulted need not be 

admissible or proved beyond a reasonable doubt in order to find the expert opinion 

admissible. 

342, 351 (2003). In Prendes, the Superior Court held: 

Commonwealth v. Prendes, 97 A.3d 337, 357 (2014) citing Commonwealth v. Kopicz, 840 A.2d 

SOAB merely assesses the defendant; it does not perform an adjudicative function." 

inaccurate in some respects, the Court still accepts Ms. Manno' s opinion as accurate. "The 

clear and convincing evidence. Pa. C.S.A. 9799.24(e). Although Ms. Manno's report was 

Therefore, the Commonwealth has proven the defendant is a sexually violent predator by 

Defendant has a very high likelihood of re-offending. 

offending that he takes part in, and this is a lifetime condition. The Court finds that the 

that the Defendant has a congenital or acquired condition which is the impetus to the sexual 

persuade them to go along with his requests. Further, the Court accepts Ms. Manno' s opinion 

favors. He developed a friendship and trust with the victims and offered them marijuana to 

current and previous convictions reveal that the Defendant uses his influence to obtain sexual 

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7 

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BY THE COURT: 

Sexually Violent Predator. 

1. The Commonwealth has met its burden and the Defendant is classified as a 

Opinion filed contemporaneously with this Order, the Court ORDERS the following: 

Commonwealth's briefs following the hearing on Sexually Violent Predator Status as well as the 

ORDER 

~ ,~ AND NOW this _U'l __ day of November, 2014, upon consideration of the Defendant and 

Defendant. 

JEFFREY SCOTT PINCHOCK, NO. 225 C.R. 2013 

vs. CRIMINAL DIVISION 

Plaintiff OF McKEAN COUNTY, PENNSYLVANIA 

COMMONWEAL TH OF PENNSYLVANIA, IN THE COURT OF COMMON PLEAS 

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