J-S70014-14

2015 PA Super 90

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

LAFONCE LEATHERBY

Appellant No. 510 EDA 2014

Appeal from the Judgment of Sentence March 8, 2013

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0002263-2011,

CP-51-CR-0003522-2011, CP-51-CR-0003524-2011

BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*

OPINION BY LAZARUS, J.: FILED APRIL 21, 2015

Lafonce Leatherby appeals from the judgment of sentence imposed by 

the Court of Common Pleas of Philadelphia County, after a jury found him 

guilty of three counts each of unlawful contact with a minor1, endangering 

the welfare of a child2and corruption of the morals of a minor3, as well as 

two counts of indecent assault.4 These charges stemmed from Leatherby’s 

____________________________________________

* Retired Senior Judge assigned to the Superior Court.

1 18 Pa.C.S. § 6318(a)(1).

2 18 Pa.C.S. § 4304(a).

3 18 Pa.C.S. § 6301(a)(1).

4 18 Pa.C.S. § 3126(a)(7).
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sexual abuse, over the course of several years, of his wife’s three young 

daughters, aged 9 to 14. Upon careful review, we affirm in part and vacate 

in part. 

The lower court recounted the procedural history of the case as 

follows:

Leatherby was arrested on December 8, 2010, and charged with 

unlawful contact with a minor, endangering the welfare of 

children, indecent assault on a person less than thirteen (13) 

years of age, corruption of minors, simple assault, recklessly 

endangering another person (“REAP”), and aggravated assault. 

The aggravated assault charge was disposed of in the Municipal 

Court. 

On October 4, 2012, Leatherby’s oral motion to preclude the 

Commonwealth from introducing complainant’s handwritten 

letter was heard, and subsequently denied. This case then 

proceeded to trial by jury on the charges of unlawful contact

with a minor, endangering the welfare of children, indecent 

assault of a person less than thirteen (13) years of age, and 

corruption of minors. The charges of simple assault and REAP 

were nolle prossed.

On October 11, 2012, the jury convicted Leatherby of every 

charge except that of Indecent Assault with regard to M.S., on 

which he was found not guilty. Sentencing was deferred to 

March 5, 2013, pending a Pre-Sentence Investigation Report 

(“PSI”) and both mental health and Megan’s Law evaluations.

This [c]ourt bifurcated the sentencing hearing on March 5 and 

March 8, 2013, whereupon this [c]ourt made a finding that 

Leatherby was a Sexually Violent Predator (“SVP”), requiring 

Megan’s Law mandated life-long registration. This [c]ourt 

sentenced Leatherby to an aggregate of seven and one half (71⁄2) 

to fifteen (15) years of incarceration.

On March 15, 2013, Leatherby filed a pro-se Post-Sentence 

Motion for Reconsideration of Sentence.
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On May 9, 2013, Attorney Jonathan Sobel entered his 

appearance on Leatherby’s behalf.

On June 4, 2013, this Court ordered that the deadline for 

Leatherby to file Post-Sentence Motions was July 31, 2013.

On July 31, 2013, Leatherby filed a Motion for Extension of Time, 

which was granted on August 2, 2013.

On September 30, 2013, Leatherby filed a Post-Sentence Motion 

for Reconsideration of Sentence, alleging that the verdicts were 

against the sufficiency and weight of the evidence, that the 

sentence was excessive, and that the sentences for indecent 

assault and corruption of minors should have merged.

On January 17, 2014, Leatherby’s motion was denied.

Leatherby filed a notice of appeal with this Court on February 12, 

2014, followed by a court-ordered Pa.R.A.P. 1925(b) statement. 

The trial court filed its Rule 1925(a) opinion on March 13, 2014. 

Trial Court Opinion, 3/13/14, at 2-3.

On appeal, Leatherby raises the following issues for our review:

1. Defendant challenges the jury verdict of guilty on the charges 

of unlawful contact with a minor with respect to all three 

complainants, M.S., F.G., and F.G. based upon the lack of 

sufficiency of the evidence.

2. Defendant challenges the jury verdict of guilty on the charge 

of endangering the welfare of a child (EWOC) with respect to all 

three complainants, M.S., F.G., and F.G. based upon the lack of 

sufficiency of the evidence.

3. Defendant challenges the jury verdict of guilty on the charge 

of indecent assault with respect to two complainants, S.G. and 

F.G. based upon the lack of sufficiency of the evidence.

4. Defendant challenges the jury verdict of guilty on the charge 

of corruption of the morals of a minor (CMOM) with respect to all 

three complainants, M.S., F.G., and F.G. based upon the lack of 

sufficiency of the evidence.
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5. Defendant challenges the jury verdict on all charges tried in 

this case, including unlawful contact with a minor, endangering 

the welfare of a child, indecent assault, and corruption of the 

morals of a minor based upon the weight of the evidence as to 

all three complainants, M.S., F.G., and F.G.

6. The trial court abused its discretion by imposing such an 

excessive sentence upon [d]efendant, Lafonce Leatherby. The 

defendant is challenging the discretionary aspect of his 

sentencing.

7. The trial court erred by failing to merge the conviction(s) for 

indecent assault with respect to complainants, S.G. and F.G. 

with the convictions for corruption of minors, because the 

convictions were based on the same acts.

8. The trial court erred in classifying defendant, Lafonce 

Leatherby as a sexually violent predator pursuant to 42 Pa. 

C.S.A. § 9792. 

Brief of Appellant, at 9-10.

Prior to addressing Leatherby’s appellate claims, we must consider the 

Commonwealth’s assertion that Leatherby’s appeal should be dismissed 

because it was not timely filed. See Brief of Appellee, at 11-13. In order to 

perfect a timely appeal, a defendant must file a notice of appeal within 30 

days of the imposition of his sentence, unless he files a timely post-sentence

motion within 10 days of sentencing, thereby tolling that 30-day window. 

See Pa.R.A.P. § 903; Pa.R.Crim.P. § 720(a). 

Here, Leatherby was sentenced on March 8, 2014. At the time of 

sentencing, Leatherby’s counsel stated that Leatherby could no longer afford 

his services, and requested that the trial court appoint new counsel. N.T. 

Sentencing, 3/8/14, at 69-70. The transcript of that hearing reflects that 
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Leatherby’s then-counsel, Pierre LaTour, III, Esquire, agreed to file a postsentence motion on Leatherby’s behalf within ten days of sentencing. The 

record states,

MR. LATOUR: At this time, Mr. Leatherby, do you want myself 

or your court appointed attorney to file the ten-day motion to 

ask this judge to reconsider your sentence?

THE DEFENDANT: Yes.

Q: And in addition to that, you are also requesting that the 

court-appointed attorney and I will perfect this appeal, file the 

notice of appeal with the Superior Court.

A: Yes.

Q: Just so [we] are clear. Judge, with that on the record, again, 

what I will do is perfect his post-sentencing appeal before 

Your Honor and file that motion in Mr. Leatherby’s name. 

But again, I would ask the court-appointed attorney to handle 

that matter. 

Id. at 70-71 (emphasis added).

Contrary to his promise at sentencing, Attorney LaTour never filed a 

notice of appeal nor a post-sentence motion to toll the 30-day appeal period, 

within the first ten days after the sentencing. Furthermore, the court did not 

appoint new counsel until March 18, 2014, exactly 10 days from the 

imposition of the sentence. In the interim, on March 15, 2014, Leatherby 

filed a pro se post-sentence motion in order to protect his rights. The 

Commonwealth contends that this pro se motion should be considered a 

nullity because Leatherby was represented by counsel at the time of filing, 

and such a filing would constitute improper hybrid representation. See
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Commonwealth v. Ali, 10 A.3d 282, 293 (pro se filing by a represented 

defendant constitutes “legal nullity”).

Conversely, Leatherby contends that for the ten days following his 

sentencing, he was unrepresented and, accordingly, he was required to 

preserve his own rights. See Reply Brief of Appellant, at 2-3. We are 

persuaded by his argument. It is clear from the sentencing transcripts that 

there was, at a minimum, confusion as to who would file post-sentence 

motions on Leatherby’s behalf and, indeed, trial counsel failed to file those 

motions as promised. For its part, the trial court did not appoint new 

counsel for Leatherby in time to preserve his post-sentence rights. Under 

the particular circumstances of this case, in which Leatherby was effectively 

abandoned by counsel and the trial court failed to timely appoint new 

counsel, Leatherby’s pro se filing does not offend considerations of hybrid 

representation.5 Leatherby should not be precluded from appellate review 

based on what was, in effect, an administrative breakdown on the part of 

the trial court. See Commonwealth v. Robinson, 781 A.2d 152, 158 (Pa. 

Super. 2001), rev’d on other grounds at 837 A.2d 1157 (Pa. 2003) 

(declining to quash untimely appeal where appellant was not at fault). 

____________________________________________

5 Among the policy considerations behind the prohibition of hybrid 

representation are the desire not to overwhelm an already overburdened 

court system and the salutary effect of expert, focused appellate advocacy. 

See Commonwealth v. Ellis, 626 A.2d 1137, 1140 (Pa. 1993). Neither of 

these concerns are implicated in this case. 
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Accordingly, we find that the time within which to file an appeal was tolled 

by Leatherby’s pro se motion, and we will consider his appeal timely.6

Leatherby first challenges the sufficiency of the evidence. In reviewing 

a challenge to the sufficiency of the evidence, we must determine whether, 

viewing the evidence in the light most favorable to the Commonwealth as 

verdict winner, together with all reasonable inferences therefrom, the trier of 

fact could have found that each and every element of the crimes charged 

was established beyond a reasonable doubt. Commonwealth v. Randall, 

758 A.2d 669, 674 (Pa. Super. 2000).

Leatherby first challenges the sufficiency of the evidence to convict 

him of unlawful contact with a minor. In Pennsylvania, “[a] person commits 

an offense if he is intentionally in contact with a minor . . . for the purpose of 

engaging in activity prohibited under . . . Chapter 31 (relating to sexual 

offenses).” 18 Pa.C.S.A. § 6318(a)(1). This Court has previously elaborated 

on the crime of unlawful contact, explaining, “[unlawful contact with a 

minor] is best understood as unlawful communication with a minor.” 

Commonwealth v. Rose, 960 A.2d 149, 152 (Pa. Super. 2008).

____________________________________________

6 To conclude otherwise would result in a miscarriage of justice. See

Chartiers Valley Industrial & Commercial Dev. Authority v. City of 

Pittsburgh, 569 A.2d 405 (Pa. Cmmw. 1990) (where breakdown in court 

processes interferes with post trial proceedings resulting in expiration of 

period for appeal, justice requires appellate review of merits so as not to 

unjustly penalize appellant for circumstances beyond its control). 
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In Commonwealth v. Velez, 51 A.3d 260 (Pa. Super. 2012), this 

Court addressed the type of communication or contact necessary to sustain 

a conviction for unlawful contact. There, a woman found the defendant 

molesting her daughter, who was “lying on the bed, nude from the waist 

down, with her knees up and defendant’s head between her legs.” Id. at 

262. Because there was no evidence of verbal communication between the 

defendant and the victim, defendant argued that he did not contact the 

victim via a communicative message and that his physical touching of the 

victim, by itself, was not the type of contact contemplated by the unlawful 

contact statute. On review, this Court concluded that, despite the lack of 

evidence of overt verbal communication, it was reasonable to infer that the 

defendant communicated with the victim, either nonverbally or verbally, to 

assume the position in which she was found by her mother. Id. 

Based on the foregoing standard and upon a review of the trial 

transcript, we conclude that the Commonwealth did not present sufficient 

evidence to support Leatherby’s conviction for unlawful contact as to victim 

M.S. At trial, M.S. testified repeatedly that Leatherby engaged in a routine 

pattern of abuse, whereby he would enter her room at night, while she was 

sleeping, and grope her chest and buttocks.

Q: So when you woke up are you saying that Mr. 

[Leatherby] already had his hand like on your breasts?

A: Yes.

Q: Is he saying anything?
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A: He’s not saying anything.

N.T. Trial, 10/4/12, at 56. Leatherby would not say anything, or 

communicate with her to assume any certain position, or to submit to any 

given act, as the Court found in Velez. M.S. described this pattern, 

testifying:

Q: Always the same type of behavior where he would 

come in, not say anything, kneel down near your bed, and 

touch your breasts and touch your butt, right?

A: Yes.

Q: Wouldn’t touch anything else?

A: No.

Q: Wouldn’t say anything right?

A: No.

N.T. Trial, 10/4/12, at 59. As there was no evidence presented from which 

the jury could have inferred that Leatherby engaged in the kind of 

communication, either verbal or physical, contemplated in Velez, we find 

that there was insufficient evidence to support a conviction of unlawful 

contact as to M.S.

With regard to S.G. and F.G., however, we find that the evidence 

presented by the Commonwealth was sufficient to sustain a conviction of 

unlawful contact. At trial, F.G. testified to the following incident:

A: When I was nine I was living with [Leatherby] and one day he 

asked me, well, he was in the bathroom, he told me to come 

here and I came. He told me to give him a hug. So I gave him 
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a hug and he started rubbing on me. And he started moaning 

and all that and he was touching me inappropriately and 

violating me. . . . And it was another time in the bathroom I had 

a skirt on, a jean skirt, and it was like a little tight. And he told 

me to give him a hug. He tried to pull my skirt up but it wasn’t 

coming up. He was like how the hell you get this thing up. And 

I had panties on. He started rubbing on my butt and on my 

private areas and whatnot. He never went inside of it. He was 

on top of it and rubbing it. He said do that feel good. I said, no, 

it don’t feel good. Then he started laughing.

N.T. Trial, 10/5/12, at 134. This testimony demonstrates the kind of 

communication contemplated by the statute. Leatherby directly engaged in 

communication, both verbal and physical, with F.G. for the purposes of 

sexual contact. As such, we find there was sufficient evidence presented to 

sustain a conviction of unlawful contact as to F.G.

Lastly, we also find that there was sufficient evidence to sustain the 

unlawful contact conviction with respect to S.G., who testified regarding the 

following incident:

Q: Okay. Did you ever try to use the bathroom and see him in 

there?

A: Yes. One night when I was going to take my shower the 

bathroom didn’t have a door anymore because the door broke so 

it was just a sheet there. So I had knocked on the side of the 

door, well, the wall, to ask if anyone was in there. I didn’t hear 

anybody say anything. So I assume if no one was in there so I 

just went in and then I saw him and I came back out and I said 

you didn’t say you were in here. And I went downstairs and I 

told my mom.

Q: What made you tell your mom about that because it sounds 

like it was just an accident right?

A: No. I felt like he wanted me to see him.
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Q: What did you see?

A: I just saw him there naked.

Q: Did you see his genitals at that time?

A: Yes.

N.T. Trial, 10/5/12, at 25-26.

From this testimony, the jury could infer that, by intentionally 

remaining silent when S.G. knocked on the door, thus causing S.G. to walk 

in on him while he was naked, Leatherby engaged in nonverbal 

communication with S.G. for the purposes of sexual contact. As such, there 

was sufficient evidence to support the conviction of unlawful contact with 

respect to S.G. 

Next, Leatherby challenges his conviction for endangering the welfare 

of a child because he was unaware of his duty to protect the children. In 

Pennsylvania, “[a] parent, guardian, or other person supervising the welfare 

of a child under 18 years of age . . . commits an offense if he knowingly 

endangers the welfare of the child by violating the duty of care, protection, 

or support.” 18 Pa.C.S.A. § 4304(a). Leatherby argues that M.S. only lived 

with him for approximately six months, and as such there was no clear duty 

of care established. Brief of Appellant, at 17-18. 

The facts do not support Leatherby’s contention. By the time 

Leatherby moved in with Martha and her daughters in 2005, he had been 

seeing Martha for two years, and they had conceived a son together. N.T. 
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Trial, 10/5/12, at 52. Accordingly, the assertion that Leatherby had no 

knowledge of his duty to care for or protect Martha’s children is simply not 

plausible. Indeed, M.S. testified that, prior to the abuse, Leatherby had 

been the only father figure she had ever known in her life. N.T. Trial, 

10/4/12, at 37. S.G. and F.G. also called Leatherby “dad”. N.T. Trial, 

10/5/12, at 186.

As this Court has stated, “[i]n an age when nontraditional living 

arrangements are commonplace, it is hard to imagine that the common 

sense of the community would serve to eliminate adult persons residing with 

a non-custodial child from the scope of a statute protecting the physical and 

moral welfare of children.” Commonwealth v. Brown, 721 A.2d 1105, 

1107 (Pa. Super. 1998) (applying section 4304 to unrelated individual 

residing with child). Accordingly, Leatherby’s claim as to the sufficiency of 

the evidence regarding his convictions for endangering the welfare of a 

minor is meritless. 

Leatherby next challenges his convictions for indecent assault. The 

crux of his claim is that the Commonwealth presented no evidence that his 

actions were carried out in an effort to arouse sexual desire in either of the 

minors. Brief of Appellant, at 23. This argument, however, misconstrues 

the language of the statute, which provides that “a person is guilty of 

indecent assault if the person has indecent contact with the complainant . . . 
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for the purposes of arousing sexual desire in the person or the complainant.” 

18 Pa.C.S.A. § 31269(a)(7) (emphasis added).

The evidence presented at trial demonstrates that Leatherby engaged 

in a regular pattern of physical and sexual abuse of three minors for his own 

sexual gratification. Contrary to Leatherby’s claim, there is no statutory 

requirement that a defendant’s actions have the purpose of arousing sexual 

desire in the victim. The plain language of the statute encompasses 

Leatherby’s conduct and his claim therefore fails. 

Leatherby also challenges his convictions for corruption of minors. His 

brief, however, does not address, in any way, the sufficiency of the evidence 

adduced against him on this charge. Instead, Leatherby argues that the trial 

court improperly instructed the jury on this charge and, therefore, his 

conviction should be overturned. As Leatherby has raised this issue in 

neither his Rule 1925(b) statement nor his statement of questions 

presented, this claim is waived. See Commonwealth v. Lord, 719 A.2d 

306 (Pa. 1998) (issues not raised in Rule 1925 concise statement are 

waived).

Even if the claim were not waived, it is meritless. Pennsylvania 

defines the offense of corruption of minors as follows:

Whoever, being of the age of 18 years and upwards, by any 

course of conduct in violation of Chapter 31 (relating to sexual 

offenses) corrupts or tends to corrupt the morals of any minor 

less than 18 years of age, or who aids, abets, entices or 

encourages any such minor in the commission of an offense 

under Chapter 31 commits a felony of the third degree. 
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18 Pa.C.S.A. § 6301.

This Court has expounded on the definition of the corruption of minors, 

holding, “[actions that] would offend the common sense of the community 

and the sense of decency, propriety and morality, which most people 

entertain,” are those which shall be considered corrupting a minor. 

Commonwealth v. Pankraz, 554 A.2d 974, 977 (Pa. Super. 1989), 

quoting Commonwealth v. Randall, 133 A.2d 276 (Pa. Super. 1957). It is 

clear that the evidence adduced at trial, demonstrating extensive physical, 

sexual, and emotional abuse by Leatherby, is sufficient to sustain his 

convictions for corruption of a minor.

Leatherby next challenges the weight of the evidence. 

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, 

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.

Brown, 23 A.3d 544, 558 (Pa. Super. 2011) (citation omitted).

Here, the trial court found that M.S., F.G., S.G., Welch, and Martha 

Leatherby all testified in a consistent manner, and that the jury placed more 

weight on their testimony than the character evidence presented by 

Leatherby’s daughter. Upon review of the record, we agree with the trial 
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court that the jury was well within its right as the ultimate fact finder to 

weigh the evidence in such a manner. Therefore, we can discern no abuse 

of discretion on the part of the trial court in concluding that the verdict was 

not against the weight of the evidence. 

Next, Leatherby asserts that he received an excessive sentence, and 

that the lower court failed to articulate the reasons for fashioning the 

sentence in that manner. Brief of Appellant, at 31. This claim implicates the 

discretionary aspects of Leatherby’s sentence, which are not appealable as 

of right. Rather, an appellant challenging the sentencing court’s discretion 

must invoke this Court’s jurisdiction by satisfying a four-part test. 

Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).

We conduct a four-part analysis to determine: (1) whether 

appellant has filed a timely notice of appeal, see Pa.R.A.P. 902 

and 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, 

see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal 

defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial 

question that the sentence appealed from is not appropriate 

under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).

Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super. 

2006). An appellate court will find a “substantial question” and review the 

decision of the trial court only where an aggrieved party can articulate clear 

reasons why the sentence imposed by the trial court compromises the 

sentencing scheme as a whole. Commonwealth v. Tuladziecki, 522 A.2d 

17 (Pa. 1987).
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Here, Leatherby has preserved his claim by filing a post-sentence 

motion and including it in his Rule 1925(b) statement. His notice of appeal 

was timely filed. Finally, Leatherby has included in his brief a statement 

pursuant to Pa.R.A.P. 2119(f), in which he claims that the trial court 

imposed an excessive sentence and failed to articulate its reasons for doing 

so.

Here, each of Leatherby’s sentences was within or below the standard 

range of the sentencing guidelines. “In every case where the court imposes 

a sentence outside the sentencing guidelines . . . the court shall provide a 

contemporaneous written statement of the reason or reasons for the 

deviation from the guidelines. Failure to comply shall be grounds for 

vacating the sentence and resentencing the defendant.” Commonwealth 

v. Rodda, 723 A.2d 212, 215 (Pa. Super. 1999); 42 Pa.C.S. § 9721(b). 

Thus, the trial court was not required to provide a statement of reasoning 

and this claim does not raise a substantial question. Nevertheless, the lower 

court did explain that it relied on the argument of counsel, the testimony of 

Leatherby and his witnesses, his family background, the presentence report 

and the mental health evaluation in fashioning Leatherby’s sentence. See 

N.T. Sentencing, 3/8/13, at 63; Commonwealth v. Griffin, 65 A.3d 932, 

937 (Pa. Super. 2013) (denying appeal of challenge to discretionary aspect 

of sentencing where court relied on presentence report and imposed 

sentences within the guidelines). Accordingly, this claim is meritless.
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Leatherby also claims that the court relied on impermissible factors in 

arriving at its sentence. While this claim has been found to raise a 

substantial question, Commonwealth v. Daniel, 30 A.3d 494 (Pa. Super. 

2011), Leatherby fails to expand upon this claim in the argument section of 

his brief. Accordingly, the claim is waived.

Finally, Leatherby claims that the trial court failed to consider the 

requisite statutory factors prior to imposing sentence. While this claim 

raises a substantial question, see Commonwealth v. Kelly, 33 A.3d 638 

(Pa. Super. 2011), it garners Leatherby no relief. Here, the trial judge was 

in possession of a presentence report, so we presume that she was aware of 

relevant information regarding the defendant’s character and weighed those 

considerations along with mitigating statutory factors. Commonwealth v. 

Devers, 546 A.2d 12, 18 (Pa. 1988). “Having been fully informed by the 

presentence report, the sentencing court’s discretion should not be 

disturbed.” Id.

Next, Leatherby contends that his sentences for indecent assault and 

corruption of a minor should merge for purposes of sentencing, as they are 

based on the same criminal act. Appellant’s Brief, at 36. 

Section 9765 of the Sentencing Code states that “[n]o crimes shall 

merge for sentencing purposes unless the crimes arise from a single criminal 

act and all of the statutory elements of one offense are included in the 

statutory elements of the other offense.” 42 Pa.C.S.A. § 9765. 
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With respect to the crimes of indecent assault and corruption of 

minors, this Court has stated as follows:

In order to be convicted of indecent assault, it must be shown 

that the defendant had indecent contact with the victim. 18 

Pa.C.S.A. § 3126(a)(7). An individual is guilty of corruption of 

minors if the individual, inter alia, performs any act that corrupts 

or tends to corrupt the morals of any child under the age of 18. 

18 Pa.C.S.A. § 6301(a)(1). A corruption of minors charge, 

therefore, encompasses any such act, “the consequences of 

which transcends any specific sex act and is separately 

punishable.” Commonwealth v. Hitchcock, 523 Pa. 248, 565 

A.2d 1159, 1162 (1989).

Commonwealth v. Fisher, 787 A.2d 992, 995 (Pa. Super. 2001). 

Accordingly, “by their statutory elements alone, the offense of corruption of 

a minor is not necessarily a lesser-included offense of indecent assault.” Id.

(punctuation omitted).

In Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007) (en

banc), this Court held that the defendant was properly sentenced for both 

indecent assault and corruption of minors where he had committed the 

separate acts of touching the victim’s breasts and her vagina. Similarly, 

here, Leatherby fondled the breasts and then rubbed the buttocks of S.G. 

and F.G. Accordingly, under Robinson, Leatherby was properly sentenced 

for both crimes. 

Lastly, Leatherby seeks to challenge the trial court’s decision to 

classify him as a sexually violent predator (“SVP”). Brief of Appellant, at 37.

Questions of evidentiary sufficiency present questions of law; thus, 

“our standard of review is de novo and our scope of review is plenary.” 
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Commonwealth v. Bishop, 936 A.2d 1136, 1141 (Pa. Super. 2007) 

(citations omitted). In reviewing such a claim, we consider the evidence in 

the light most favorable to the Commonwealth, which prevailed upon the 

issue at trial. Id.

An SVP is defined as:

A person who has been convicted of a sexually violent offense 

set forth in Section 9795.1 (relating to registration) and who is 

determined to be a sexually violent predator under 9795.4 

(relating to assessments) due to a mental abnormality or 

personality disorder that makes the person likely to engage in 

predatory sexually violent offenses. In order to show that the 

offender suffers from a mental abnormality or personality 

disorder, the evidence must show that the defendant suffers 

from a congenital or acquired condition . . . that affects the 

emotional or volitional capacity of the person in a manner that 

predisposes that person to the commission of criminal sexual 

acts to a degree that makes the person a menace to the health 

and safety of other persons. Moreover, there must be a showing 

that the defendant’s conduct was predatory. Predatory conduct 

is defined as an act directed at a stranger or at a person with 

whom a relationship has been instituted, established, 

maintained, or promoted, in whole or in part, in order to 

facilitate or support victimization. Furthermore, in reaching a 

determination, we must examine the driving force behind the 

commission of these acts, as well as looking at the offender’s 

propensity to re-offend, an opinion about which the 

Commonwealth’s expert is required to opine. However, the risk 

of re-offending is but one factor to be considered when making 

an assessment; it is not an “independent element.”

At the SVP hearing, the Commonwealth has the burden of 

proving by clear and convincing evidence that the person meets 

the criteria to be designated as an SVP. This burden of proof 

has been described as an intermediate test, falling below the 

highest level of proof, beyond a reasonable doubt, but above the 

preponderance of the evidence standard. Evidence will meet this 

level of proof if it is so clear, direct, weighty, and convincing as 

to enable the [trier of fact] to come to a clear conviction, without 

hesitancy, of the truth of the precise facts at issue.
J-S70014-14

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Commonwealth v. Stephens, 74 A.3d 1034, 1038-39 (Pa. Super. 2013) 

(citations and quotations omitted).

Leatherby’s SVP hearing took place on October 11, 2014, before the 

Honorable Nina Wright Padilla. The court accepted the Commonwealth’s 

witness, Dr. Barbara Ziv, as an expert in the field of assessment, treatment, 

and management of sexual offenders. Doctor Ziv concluded the following: 

(1) Leatherby suffers from paraphilia not otherwise specified, based on his 

abuse of his three young stepdaughters over the course of several years; (2) 

Leatherby suffers from a personality disorder not otherwise specified with 

antisocial traits, based on his extensive criminal history, use of aliases, the 

five protection from abuse orders filed against him, history of drug abuse, 

and assault convictions, as evidence of impulsivity, dishonesty, 

aggressiveness, irresponsibility, and lack of remorse; (3) either of those 

diagnoses on their own could support a finding that Leatherby is likely to 

reoffend; (4) Leatherby maintained or promoted a relationship with his 

victims, in part, for the purpose of sexual victimization.; (5) Leatherby had 

already demonstrated a propensity for recidivism based on his continued 

abuse of F.G. and S.G. after M.S. had left the house to live with her aunt. 

N.T. SVP Hearing, 3/5/13, at 18-21; 23-35. 

Leatherby challenges these conclusions, arguing that Dr. Ziv “failed to 

draw any connection between [Leatherby’s] criminal act and the likelihood 

that he will commit another sex offense.” Brief of Appellant, at 43. 
J-S70014-14

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Essentially, Leatherby argues that because he did not have a prior history of 

sexual offenses, Dr. Ziv’s conclusion that he is likely to commit sexual 

offenses in the future is wrong. We disagree.

As the trial court recognized, in reaching her conclusions, Dr. Ziv 

examined a wide swath of Leatherby’s past and current behavior, ranging 

from the time he was 15 years of age up to the present. Particularly 

compelling is Dr. Ziv’s finding that Leatherby had already demonstrated a 

propensity to reoffend by beginning to abuse F.G. and S.G. after M.S. 

removed herself from the home. Considering these facts, and the whole of 

Dr. Ziv’s conclusions, in the light most favorable to the Commonwealth, we 

agree that the Commonwealth met its burden of proving by clear and 

convincing evidence that Leatherby meets the criteria to be classified as an 

SVP. 

Judgment of sentence affirmed in part and vacated in part. Case 

remanded for resentencing in accordance with the dictates of this opinion. 

Judge Strassburger joins the Opinion.

Judge Mundy files a Dissenting Opinion.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/21/2015