J-S81038-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DAVID L. ZEIGAFUSE

Appellant No. 872 EDA 2016

Appeal from the Judgment of Sentence December 14, 2015

In the Court of Common Pleas of Northampton County

Criminal Division at No(s): CP-48-CR-0001557-2014

BEFORE: BOWES, J., MOULTON, J., and STEVENS, P.J.E.*

MEMORANDUM BY STEVENS, P.J.E.: FILED DECEMBER 05, 2016

This is an appeal from the judgment of sentence entered in the Court 

of Common Pleas of Northampton County following Appellant’s plea of nolo 

contendere to one count of indecent assault--less than 13 years old, one 

count of corruption of minors, one count of endangering the welfare of a 

child, and one count of indecent exposure.1 We affirm.

The relevant facts and procedural history are as follows: Appellant 

was arrested, and on September 1, 2015, represented by counsel, he 

proceeded to a hearing at which he entered a plea of nolo contendere to the 

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1 18 Pa.C.S.A. §§ 3126(a)(7), 6103(a), 4304(a), and 3127(a), respectively. 

*

Former Justice specially assigned to the Superior Court.
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charges indicated supra. At the hearing, the Commonwealth presented 

evidence of a video from Walmart depicting Appellant taking his eight-year 

old daughter into the men’s bathroom and then exiting fifteen minutes later. 

N.T., 9/1/15, at 7. The child later reported that, while in the bathroom, 

Appellant showed her his penis and had sexual contact with her. Id. 

At the conclusion of the hearing, the trial court ordered the 

Pennsylvania Sexual Offenders Board (“the Board”) to evaluate whether 

Appellant qualified as a sexually violent predator (“SVP”) under the Sexual 

Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. § 

9799.10 et seq. Id. at 8-9. The trial court further ordered a full 

presentence investigation (“PSI”) be performed. Id. at 9. 

On December 14, 2015, Appellant proceeded to a hearing at which the 

trial court initially conducted a SVP hearing. Specifically, Paula Brust, a 

member of the Board who the trial court deemed to be qualified to testify as 

an expert in the field of sexual offender assessment, indicated that she 

reviewed the pertinent police reports, affidavit of probable cause, the 

victim’s interviews, the March 1, 2015, psychiatric report prepared by Dr. 

Alex Thomas, and the May 12, 2015, psychological report prepared by Dr. 

Robert Wisser. N.T., 12/14/15, at 11. She noted the Board sent a letter to 

defense counsel requesting that Appellant participate in an interview, but 

defense counsel failed to respond. Id. at 13. She further noted that 
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Appellant’s failure to participate in the evaluation did not prevent her from 

conducting an assessment as to Appellant’s SVP designation. Id.

Ms. Brust opined that, based on her evaluation and to a reasonable 

degree of certainty, Appellant has a personality disorder or a mental 

abnormality, i.e., he meets the diagnostic criteria set forth in the Diagnostic 

and Statistical Manual, fifth edition, for the diagnosis of pedophilic disorder. 

Id. at 14, 16. Ms. Brust explained that the essential features of a pedophilic 

disorder are (1) the person has at least six monthly intense, sexually 

arousing fantasies, sexual urges, or behavior involving sexual contact with 

prepubescent children, who are generally thirteen years old or younger, (2) 

the person has acted on these sexual urges or fantasies, and (3) the person 

is at least sixteen years old and at least five years older than the victim. Id.

at 14-15. Ms. Brust opined “[Appellant] meets all [of] th[e]se diagnostic 

criteria [for] having sexually assaulted his minor daughter for a number of 

years in various ways.” Id. at 15. 

Ms. Brust noted that some of the specific facts which support her 

opinion include the fact Appellant sexually assaulted his minor daughter from 

January 2009 to December 2013. Id. Moreover, the victim was three years 

old when the assaults began and eight years old when the assaults were 

disclosed. Id. Ms. Brust noted the assaults were disclosed when someone 

witnessed the abuse and Appellant took a risk by assaulting the victim in 

public. Id. Moreover, Ms. Brust noted the victim reported that Appellant 
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sexually assaulted her in their home in various ways, including rubbing her 

genitals, exposing himself to her, and rubbing his penis on and in her vaginal 

area. Id. at 15-16. 

Ms. Brust also opined, to a reasonable degree of certainty, that 

Appellant has engaged in predatory behavior. Id. at 16-17. She noted 

“[p]redatory is defined as an act directed at a stranger or a person with 

whom a relationship has been maintained, established, promoted or initiated 

in whole or in part for purposes of sexual victimization.” Id. at 16. In this 

regard, she opined that Appellant assaulted his daughter for many years in 

different places, some of them to include public places, and his relationship 

with her “wasn’t a caring, loving father like he should have been.” Id. at 17. 

She noted the relationship was “twisted and altered” so he could assault her. 

Id.

Finally, Ms. Brust opined, to a reasonable degree of certainty, that 

Appellant is likely to reoffend and that his mental disorder is not curable. 

Id. In this regard, she noted the sexual assaults did not end until someone 

witnessed the abuse. 

Based on all of the aforementioned, Ms. Brust opined, to a reasonable 

degree of certainty, that Appellant meets the statutory criteria to be 

classified as a SVP. Id.

On cross-examination, Ms. Brust admitted that, in his psychiatric 

report, Dr. Thomas did not include the diagnosis of pedophilic disorder. Id.
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at 23. Further, she admitted Dr. Wisser did not reference pedophilic 

disorder in his psychological report. Id. at 24-25. 

However, on redirect-examination, Ms. Brust noted that, in his 

psychiatric report, Dr. Thomas indicated Appellant should have a sexual 

offender evaluation and, if found to be a sexually violent offender, Appellant 

should be enrolled in a sex offender program. Id. at 29-30. Moreover, Ms. 

Brust noted that, in Dr. Wisser’s psychological report, he indicated that 

Appellant should have a sexual offender evaluation and then follow through 

with any recommendations. Id. at 30. Thus, Ms. Brust testified both 

doctors contemplated that someone would evaluate Appellant for purposes 

of determining whether he is a sexually violent predator and that is precisely 

what she did. Id. at 30-31. 

At the conclusion of Ms. Brust’s testimony, the trial court indicated it 

was moving on to the sentencing hearing and the court had in its possession 

a PSI report. Id. at 36. The trial court permitted the victim’s mother to 

read into evidence a victim impact statement. Id. at 37-42. The trial court 

heard testimony from Appellant’s mother, who indicated Appellant would not 

“hurt a fly...[and would] give the shirt off his back to anybody that needed 

it.” Id. at 47. 

The trial court asked Appellant if he would like to make a statement, 

and Appellant indicated “No.” Id. at 48. The prosecutor asked the trial 

court to take into account the seriousness of the offenses, as well as 
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Appellant’s need for rehabilitation. Id. at 43. Appellant’s counsel asked for 

a standard range sentence. Id. at 48-49. 

At the conclusion of all testimony, the trial court, indicating it had 

reviewed the PSI report, the sentencing guidelines, and the plea colloquy, 

stated the following:

[Appellant], you are a very sick individual and you need 

serious, serious treatment. And clearly the County of 

Northampton is not suitable to give you that treatment.

When I balance your rehabilitative needs versus the need 

to protect society, on a whole, I come to one conclusion that you 

need to be placed in confinement for a period of time that is 

going to allow you to receive sufficient treatment, that these 

deprivations would never take place again.

***

On the first count of indecent assault I sentence you to 12 

to 84 months in a state correctional institution. 

On the corruption of minors charge I sentence you to a 

consecutive term of 12 to 84 months in a state correctional 

institution. 

On the endangering the welfare of a child, I sentence you 

to a consecutive term of 12 to 84 months in a state correctional 

institution.

I sentence you to a consecutive term of 60 months 

probation on the remaining charge of indecent exposure. 

Id. at 49-51.

The trial court then indicated it found Appellant to be a SVP and 

subject to all requirements of SORNA. Id. at 52. The trial court noted it 

made this finding based upon the experts’ reports and, in particular, found 

“the opinion of Ms. Brust is credible[.]” Id. Appellant was then provided 

with his post-sentence and appellate rights.
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On December 24, 2015, Appellant filed a timely, counseled postsentence motion, which the trial court denied, and this timely appeal 

followed. The trial court ordered Appellant to file a Pa.R.A.P. 1925(b) 

statement, Appellant timely complied, and the trial court filed a responsive 

opinion. 

Appellant first contends the trial court erred in classifying him as a SVP 

since the Commonwealth failed to prove by clear and convincing evidence 

that Appellant meets the criteria for such a classification. Specifically, 

Appellant suggests Ms. Brust’s testimony failed “to rise to the level of the 

clear and convincing standard[.]”2 Appellant’s Brief at 12.

The standards governing our review of the sufficiency of the evidence 

with respect to a SVP determination are well established:

A challenge to the sufficiency of the evidence is a question 

of law subject to plenary review. We must determine whether 

the evidence admitted at [the SVP hearing] and all reasonable 

inferences drawn therefrom, when viewed in the light most 

favorable to the Commonwealth as the verdict winner, is 

sufficient to support all elements of the [statute]. A reviewing 

court may not weigh the evidence or substitute its judgment for 

that of the trial court.

At a hearing prior to sentencing the court shall determine 

whether the Commonwealth has proved by clear and convincing 

evidence that the individual is a sexually violent predator. In 

reviewing the sufficiency of the evidence regarding the 

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2 Appellant also suggests the trial court erred in failing to announce its SVP 

determination prior to imposing Appellant’s sentence. See Appellant’s Brief 

at 11. We find this specific issue to be waived as Appellant failed to include 

it in his court-ordered Pa.R.A.P. 1925(b) statement. See Pa.R.A.P. 

1925(b)(4)(vii). 
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determination of SVP status, we will reverse the trial court only if 

the Commonwealth has not presented clear and convincing 

evidence sufficient to establish each element required by the 

statute.

Commonwealth v. Evans, 901 A.2d 528, 534 (Pa.Super. 2006) (citations 

omitted; bracketed information in original).

SORNA defines a SVP as:

[a] person who has been convicted of a sexually violent offense 

as set forth in § 9795.1 (relating to registration)3and 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.

42 Pa.C.S.A. § 9792 (footnote added). SORNA defines a “mental 

abnormality” as “[a] congenital or acquired condition of a person 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.” Id. Further, SORNA defines “predatory” as “[a]n act directed at a 

stranger or at a person with whom a relationship has been initiated, 

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

facilitate or support victimization.” Id.

Among the relevant sections of SORNA, Section 9795.4 provides:

§ 9795.4. Assessments

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3 Appellant does not dispute that he was convicted of such an offense. 
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(a) Order for assessment.—After conviction but before 

sentencing, a court shall order an individual convicted of an 

offense specified in [S]ection 9795.1 (relating to registration) to 

be assessed by the board. The order for an assessment shall be 

sent to the administrative officer of the board within ten days of 

the date of conviction.

(b) Assessment.—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.

(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 of the individual.

(ii) Use of illegal drugs by the individual.

(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 reoffense.

42 Pa.C.S.A. § 9795.4. 
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The above Section delineates a non-exclusive list of factors to consider 

in the SVP assessment of a defendant. “[However,] there is no statutory 

requirement that all of [the factors] or any particular number of them be 

present or absent in order to support an SVP designation. The factors are 

not a checklist with each one weighing in some necessary fashion for or 

against SVP designation.” Commonwealth v. Brooks, 7 A.3d 852, 863 

(Pa.Super. 2010) (quotation omitted). Thus, “[t]he Commonwealth does not 

have to show that any certain factor is present or absent in a particular 

case.” Id. (quotation omitted). Moreover, “to carry its burden of proving 

that an offender is an SVP, the Commonwealth is not obliged to provide a 

clinical diagnosis by a licensed psychiatrist or psychologist” of a personality 

disorder or mental abnormality. Commonwealth v. Conklin, 587 Pa. 140, 

158, 897 A.2d 1168, 1178 (2006).

Instantly, in concluding the Commonwealth carried its burden, the trial 

court reasoned as follows: 

On December 14, 2015, a [SVP] hearing was held in which 

[Ms.] Brust, who was accepted as an expert by th[e] [c]ourt, 

testified as follows to a reasonable degree of certainty[.] The 

purpose of the assessment is to determine whether or not 

[Appellant] meets the criteria set forth in the statute to be 

classified as an SVP. In formulating her opinion, she relied on 

police reports, Affidavits of Probable Cause, children’s advocacy 

interviews with the victim, psychiatric and psychological 

evaluations, among other things. Ms. Brust did not have a 

chance to interview [Appellant] personally because there was no 

response as to his participation from counsel. According to the 

statute, [Appellant] may be evaluated for SVP designation 

despite his lack of participation and must possess either a 

mental abnormality or a personality disorder that makes it likely 
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that he will engage in predatory sexual behavior. In Ms. Brust’s 

expert opinion, [Appellant] does meet the diagnostic criteria set 

forth in the Diagnostic and Statistical manual for the diagnosis of 

pedophilic disorder, which is characterized by at least six 

monthly intense sexually arousing fantasies, sexual urges or 

behaviors involving sexual contact with a prepubescent child, 

generally age 13 or younger. In order to have pedophilic 

disorder, a person must also have acted on these sexual urges 

or fantasies and be over the age of 16 and at least 5 years older 

than the victim.

Here, [Appellant] was reported to have sexually assaulted 

his minor daughter between January 2009 and December 2013. 

She was approximately three years old when the assault began 

and eight years old when it was finally disclosed. Additionally, 

the victim was interviewed and said her father would assault her 

multiple times and in multiple ways, rubbing her genital area, 

exposing himself and rubbing his penis on and in her vaginal

area. Further, the places in which [Appellant] assaulted his 

daughter included public places, which is essentially how 

[Appellant] got caught. It is Ms. Brust’s expert opinion that had 

[Appellant] not gotten caught he would have continued the 

assault and, thus, is likely to reoffend.

***

Here, Ms. Brust. . .testified that, in her expert opinion, 

[Appellant] has pedophilic disorder. As discussed [above], Ms. 

Brust identified each of the elements of this disorder and 

explained to the [c]ourt how [Appellant] meets each of these 

criteria to a degree of professional certainty. 

Trial Court Opinion, filed 4/7/16, at 2-3.

The records supports the trial court’s sound reasoning. Evans, supra. 

Additionally, we note that, as to the “predatory” element set forth under 

SORNA, Ms. Brust testified that Appellant was not a caring, loving father; 

but rather, he had a “twisted and altered” relationship with the victim which 

promoted the sexual assaults. N.T., 12/14/15, at 17. The trial court was 

free to accept Ms. Brust’s testimony, and we conclude the evidence was 
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sufficient to support Appellant’s SVP classification under the clear and 

convincing standard. 

Appellant next contends the trial court abused its discretion in 

imposing an excessive sentence where the maximum sentence is seven 

times the minimum sentence for the offenses of indecent assault, corruption 

of minors, and endangering the welfare of children. In this regard, Appellant 

concedes the minimum sentence for each offense is within the standard 

range of the sentencing guidelines, see Appellant’s Brief at 13; however, he 

argues the sentences are excessive in light of the trial court’s failure to 

consider the factors set forth in 42 Pa.C.S.A. § 9721(b) related to the 

protection of the public, the gravity of the offense, and the rehabilitative 

needs of Appellant. 4 

Appellant’s issue challenges the discretionary aspects of his sentence, 

for which there is no automatic right to appeal. Commonwealth v. 

Mastromarino, 2 A.3d 581, 585 (Pa.Super. 2010). To reach the merits of a 

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4 We note that 42 Pa.C.S.A. § 9756(b) provides that “[t]he court shall 

impose a minimum sentence of confinement which shall not exceed one-half 

of the maximum sentence imposed.” In the case sub judice, Appellant does 

not dispute that his minimum sentences do not exceed one-half of the 

maximum sentences imposed. Moreover, we note that, while “a sentencing 

court must impose a maximum sentence that is at least twice the 

minimum[,]. . .there is no restriction placed on the court's decision 

regarding the maximum sentence, aside from the statutory maximum[.]” 

Commonwealth v. Edwards, 906 A.2d 1225, 1230 (Pa.Super. 2006).
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discretionary aspects of sentencing claim, this Court must conduct a fourpart analysis to determine:

(1) whether appellant filed a timely notice of appeal, Pa.R.A.P. 

902, 903; (2) whether the issue was properly preserved at 

sentencing or in a motion to reconsider and modify sentence, 

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.

Id. (citation omitted). A substantial question exists when “the appellant 

advances a colorable argument that the sentencing judge's actions were 

either: (1) inconsistent with a specific provision of the Sentencing Code; or 

(2) contrary to the fundamental norms which underlie the sentencing

process.” Commonwealth v. Griffin, 65 A.3d 932, 935 (Pa.Super. 2013)

(citations and quotation marks omitted).

Here, Appellant filed a timely notice of appeal, sufficiently raised the 

issue in his timely post-sentence motion,5and complied with the briefing 

requirements of Pa.R.A.P. 2119(f). Moreover, we conclude the issue 

presents a substantial question permitting our review. See Commonwealth 

v. Fullin, 892 A.2d 843, 847 (Pa. Super. 2006) (holding the argument that 

“the trial court failed to consider the factors set forth in 42 Pa.C.S.A. § 

9721(b)” presented a substantial question for our review).

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5 He also adequately presented the issue in his court-ordered Rule 1925(b) 

statement. 
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Turning to the merits, our standard of review of a sentencing challenge 

is well-settled:

Sentencing is a matter vested in the sound discretion of 

the sentencing judge, and a sentence will not be disturbed on 

appeal absent a manifest abuse of discretion. In this context, an 

abuse of discretion is not shown merely by an error in judgment. 

Rather, the appellant must establish, by reference to the record,

that the sentencing court ignored or misapplied the law, 

exercised its judgment for reasons of partiality, prejudice, bias 

or ill will, or arrived at a manifestly unreasonable decision.

Commonwealth v. Johnson, 125 A.3d 822, 826 (Pa.Super. 2015) (citation 

omitted).

When imposing a sentence, the sentencing court must 

consider the factors set out in 42 [Pa.C.S.A.] § 9721(b), that is, 

the protection of the public, gravity of offense in relation to 

impact on victim and community, and rehabilitative needs of the 

defendant. And, of course, the court must consider the 

sentencing guidelines.

Commonwealth v. Caldwell, 117 A.3d 763, 769 (Pa. Super. 2015) (en 

banc) (citation and quotation marks omitted). “Where, as here, the trial 

court has the benefit of a pre-sentence report, we presume that the court 

was aware of relevant information regarding the defendant's character and 

weighed those considerations along with any mitigating factors.” Johnson, 

125 A.3d at 827 (citation omitted). 

In the case sub judice, the trial court specifically indicated it had in its 

possession the PSI report, the reports of Drs. Thomas and Wisser, the 

sentencing guidelines, and Appellant’s plea colloquy. N.T., 12/14/15, at 36. 

The trial court accepted into evidence Appellant’s medical records and heard 
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statements from the victim’s mother, as well as Appellant’s mother. In 

imposing its sentence, the trial court specifically stated it was considering 

Appellant’s rehabilitative needs versus the need to protect society as a 

whole. Id. at 49. 

Moreover, in its opinion, the trial court noted:

[Appellant] claims that the sentence imposed upon [him] is 

excessive and an abuse of discretion where the maximum 

sentence is seven (7) times the minimum sentence for indecent 

assault, corruption of minors, and endangering the welfare of 

children. The sentences imposed, however, do not exceed the 

statutorily prescribed limits and are not so manifestly excessive 

as to constitute too severe a punishment given the alarming 

circumstances which surround the reported incidents of abuse 

(including, but not limited to: the age of the victim, the 

frequency of the abuse and [Appellant’s] relationship with the 

victim). Therefore, the sentences imposed do not transgress the 

bounds of th[e] [c]ourt’s sentencing discretion.

Trial Court Opinion, filed 4/7/16, at 4. 

We find no abuse of discretion in this regard, Johnson, supra, and for 

all of the foregoing reasons, we affirm Appellant’s judgment of sentence.

Affirmed. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/5/2016
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