J. S55027/16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF

: PENNSYLVANIA

:

:

v. :

:

NELSON MARTINEZ :

Appellant :

: No. 1337 EDA 2015

Appeal from the Judgment of Sentence Entered April 8, 2015

In the Court of Common Pleas of Lehigh County 

Criminal Division at No(s): CP-39-CR-0002416-2013

 

BEFORE: LAZARUS, J., DUBOW, J., and STEVENS, P.J.E.*

MEMORANDUM BY DUBOW, J.: FILED NOVEMBER 10, 2016

Appellant seeks review of the Judgment of Sentence entered by the 

Court of Common Pleas of Lehigh County after a jury convicted him of Rape 

of a Child and related offenses. He challenges the discretionary aspect of his 

sentence, the sufficiency of the evidence supporting his designation as a 

sexually violent predator, and certain evidentiary rulings. The Hon. Kelly L. 

Banach has provided a thorough, well-reasoned Pa.R.A.P. 1925(a) Opinion 

that properly addresses the issues presented. We adopt that Opinion as our 

own, and affirm the Judgment of Sentence.

The trial court has set forth the facts in detail and we need not fully 

restate them here. See Trial Court Opinion, dated October 20, 2015, at 2-8. 

 

*

Former Justice specially assigned to the Superior Court.
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In sum, in the fall of 2012, on at least four occasions, Appellant sexually 

abused his 11-year-old step-daughter. Appellant, who was married but 

estranged from the victim’s mother at the time of the abuse, had known the 

victim since she was four or five years old. The victim referred to Appellant 

as “Daddy.” 

After a three-day trial at which both the victim and Appellant testified, 

the jury found Appellant guilty of one count each of Rape of a Child, 

Involuntary Deviate Sexual Intercourse with a Child (“IDSI”), Aggravated 

Indecent Assault of a Child, Sexual Assault, Corruption of Minors, and

Indecent Assault of a Child.1 Appellant underwent a Sexual Offender 

Assessment Board Evaluation (“SOAB”), and obtained his own independent 

pre-sentence psychological evaluation. The court requested a pre-sentence 

investigation (“PSI”). 

At sentencing, Appellant did not present the results of his independent 

psychological evaluation. The court stated on the record that it had 

reviewed, inter alia, the PSI report, which included numerous prior drug 

offenses, the sentencing guidelines, victim impact statements from the 

victim and her mother, the SOAB assessment, and a copy of a memo from 

the jail that indicated that Appellant had not misbehaved or participated in 

 

1 18 Pa.C.S. § 3121(c); 18 Pa.C.S. 3123(b); 18 Pa.C.S. § 3125(b);18 

Pa.C.S. § 3124.1; 18 Pa.C.S. § 6301(a)(1)(ii); and 18 Pa.C.S. § 3126(a)(7), 

respectively.
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any programs, activities or employment. See N.T. Sentencing, 4/8/15, at 5. 

The court found Appellant to be a sexually violent predator and sentenced 

him to consecutive statutory maximum sentences, for an aggregate term of 

incarceration of 431⁄2 years to 87 years.2 See N.T. Sentencing, 4/8/15, at 

52-61.

After the denial of his Post-sentence Motion, Appellant timely appealed 

to this Court. Appellant and the trial court complied with Pa.R.A.P. 1925(a).

Appellant raises the following issues for our review:

1. Whether the aggregate sentence of forty-three and one-half (43.5) 

to eighty[-]seven (87) years was excessive, unreasonable[,] and 

unduly harsh, and was an abuse of discretion?

2. Whether the trial court erred in prohibiting the testimony of juvenile 

witnesses, Noah and Moses Martinez, who would have offered 

potentially exculpatory material evidence in contradiction of the 

victim’s testimony, which prohibition was highly prejudicial to the 

Defendant?

3. Whether the trial court erred in denying the Defendant’s motion in

limine to exclude testimony of Deputy Sheriff, James E. Bonner, 

pursuant to Pennsylvania Rules of Evidence 401 and 403, as such 

testimony was irrelevant, speculative, conjectural, unsupported by 

scientific or expert opinion and was far more prejudicial to 

Defendant that it was probative?

 

2 Specifically, the court sentenced Appellant to the following terms of 

incarceration: 20 to 40 years’ incarceration on the rape conviction (count 

1); a consecutive term of 20 to 40 years on the IDSI conviction (count 2); 

two concurrent 5 to 10 year terms for the aggravated indecent assault and 

sexual assault convictions (to be served concurrently with counts 1 and 2); 

31⁄2 to 7 years for the corruption of minors conviction (consecutive to counts 

1 and 2); and 21⁄2 to 5 years for indecent assault of a child (concurrent with 

corruption of minors sentences).
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4. Whether the trial court erred in ruling that the Defendant was a 

sexually violent predator?

Appellant’s Brief at 3.

In his first issue, Appellant argues that the sentencing court’s 

imposition of “consecutive statutory maximum sentences of twenty to forty 

years ... is excessive and indicative of the Court’s ill-will against the 

Defendant[.]” Id. at 16. He contends that “the court failed to explicitly 

state adequate reasons on the record or directly address the enumerated 

sentencing factors.” Id. For the following reasons, we conclude there is no 

merit to this sentencing challenge.

The individual sentences imposed on Appellant are within the 

permissible statutory maximums and, therefore, clearly are legal sentences. 

Appellant’s appeal asks us to review the discretionary aspects of his 

sentence. See, e.g., Commonwealth v. Gonzalez, 994 A.2d 595, 597 

(Pa. Super. 2010) (acknowledging that a claim that an aggregate sentence 

was excessive after court imposed consecutive sentences challenges the 

discretionary aspects of a sentence). 

An appeal from the discretionary aspects of a sentence is not 

guaranteed as a matter of right. Commonwealth v. Mastromarino, 2 

A.3d 581, 585 (Pa. Super. 2010). Rather, where, as here, the appellant has 

preserved the sentencing challenge for appellate review by raising it at 

sentencing or in a timely post-sentence motion, the appellant must (1) 

“include in his brief a concise statement of the reasons relied upon for 
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allowance of appeal with respect to the discretionary aspects of a 

sentence[,]” pursuant to Pa.R.A.P. 2119(f); and (2) “show that there is a 

substantial question that the sentence imposed is not appropriate under the 

Sentencing Code.” Commonwealth v. Hill, 66 A.3d 359, 363-64 (Pa. 

Super. 2013).

In the instant case, Appellant filed a timely Notice of Appeal and a 

timely Post-Sentence Motion. He also included a Pa.R.A.P. 2119(f) 

Statement in his appellate brief. Although a court's exercise of discretion in 

imposing a sentence concurrently or consecutively does not ordinarily raise a 

substantial question, where an appellant avers an excessive sentence due to 

the court’s reliance on impermissible factors, the appellant has presented a 

substantial question for our review. Commonwealth v. McNabb, 819 A.2d 

54, 56-57 (Pa. Super. 2003). See, e.g., Commonwealth v. Dodge, 77 

A.3d 1263, 1273 (Pa. Super. 2013) (holding that a defendant’s challenge to 

the consecutive nature of his sentence raised a substantial question where 

the defendant articulated particular reasons why consecutive sentences were 

unreasonable); Commonwealth v. Spencer, 496 A.2d 1156, 1164 (Pa. 

Super. 1985) (vacating and remanding where sentencing judge in a robbery 

case showed bias in repeatedly referring to sixteen-year-old defendant as an 

“animal” and stating that it wished it could impose the death penalty 

because it “would gladly pull the switch on you, Chief.”). 
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Having determined that Appellant’s issue on appeal raises a substantial 

question for review, we turn to the merits of Appellant’s sentencing 

challenge, mindful of our standard of review:

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. Raven, 97 A.3d 1244, 1253 (Pa. Super. 2014) (citation 

omitted). 

“In reviewing a challenge to the discretionary aspects of sentencing, 

we evaluate the court's decision under an abuse of discretion standard.” 

Dodge, 77 A.3d at 1274 (citation omitted). Additionally, “this Court's 

review of the discretionary aspects of a sentence is confined by the statutory 

mandates of 42 Pa.C.S. § 9781(c) and (d).” Id. Section 9781(c) provides, 

in relevant part, that “[t]he appellate court shall vacate the sentence and 

remand the case to the sentencing court with instructions if it finds ... (3) the 

sentencing court sentenced outside the sentencing guidelines and the 

sentence is unreasonable. In all other cases the appellate court shall affirm 

the sentence imposed by the sentencing court.” 42 Pa.C.S. § 9781(c).

In reviewing the record, we consider:

(1) The nature and circumstances of the offense and the 

history and characteristics of the defendant.
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(2) The opportunity of the sentencing court to observe the 

defendant, including any presentence investigation.

(3) The findings upon which the sentence was based.

(4) The guidelines promulgated by the commission.

42 Pa.C.S. § 9781(d).

With respect to reviewing a sentence alleged to be “unreasonable,” the 

Pennsylvania Supreme Court has recognized that

Generally speaking, “unreasonable” commonly connotes a 

decision that is “irrational” or “not guided by sound judgment.” 

The Random House Dictionary of the English Language, 2084 

(2nd ed.1987); see 1 Pa.C.S. § 1903 (words to be construed 

according to their common and approved usage). While a 

general understanding of unreasonableness is helpful, in this 

context, it is apparent that the General Assembly has intended 

the concept of unreasonableness to be a fluid one, as 

exemplified by the four factors set forth in Section 9781(d) to be 

considered in making this determination. Indeed, based upon the 

very factors set out in Section 9781(d), it is clear that the 

General Assembly intended the concept of unreasonableness to 

be inherently a circumstance-dependent concept that is flexible 

in understanding and lacking precise definition. 

Commonwealth v. Walls, 926 A.2d 957, 963 (Pa. 2007)

We are mindful that where, as here, the trial court has the benefit of a 

PSI, “it is presumed that the court is aware of all appropriate sentencing 

factors and considerations, and that where the court has been so informed, 

its discretion should not be disturbed.” Commonwealth v. Ventura, 975 

A.2d 1128, 1135 (Pa. Super. 2009) (discussing Commonwealth v. Devers, 

546 A.2d 12, 18-19 (Pa. 1988)). Thus, if the sentencing court states that it 
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considered the PSI, the court has properly explained the basis for the 

sentence that it imposed. Ventura, supra at 1135 (citation omitted). 

Here, Appellant concludes that his sentence is “excessive and 

indicative of the Court’s ill-will against [him].” Appellant’s Brief at 16. In 

support, he quotes from the sentencing court’s colloquy, throughout which 

Appellant repeatedly interrupted to state his innocence and to argue with the 

judge. In particular, Appellant emphasizes the judge’s statements that (1) 

she was “offended ... at the vile way in which you [Appellant] speak about 

[the victim’s] mother, about the mother of your other children;” (2) “[y]ou

are a vile, heinous, aggressive, dangerous man;” (3) “you are a scary scary, 

man. You have no regard for anyone other than yourself ... [a]nd I would 

not want to meet you under other circumstances; and (4) “But you are really 

climbing to the top of my list of truly despicable human beings.” Appellant’s 

Brief at 10-14 (quoting N.T. Sentencing, 4/8/15, at 51-59). 

Based on our review of the entire record, the briefs of the parties, the 

applicable law, and the comprehensive and well-reasoned opinion of the trial 

court, we conclude that there is no merit to Appellant’s claim that his 

sentence was unreasonable or the result of the court’s bias. Moreover, 

contrary to Appellant’s contention, the court stated adequate reasons on the 

record for imposing the sentence it did after acknowledging that it had read 

the PSI report. While some of the court’s language during sentencing may 

be perceived as harsh, it was not unduly so and did not manifest such “ill-
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will” so as to render Appellant’s consecutive sentences unreasonable. As the 

jury determined, Appellant sexually abused his step-daughter and one of her 

friends; with respect to his step-daughter, he raped her anally several times, 

fondled and licked her breasts and genitals, and forced her to give him oral 

sex under threat of her “getting in trouble,” all while acting in the role of her 

father. See Trial Ct. Op., dated 10/20/15, at 9-13 (reviewing case law and 

the record before concluding that the “lengthy sentence was justified by the 

heinous and physical and emotionally damaging acts that [ ] Appellant was 

found to have committed, the need to protect the public from [ ] Appellant, [ 

]Appellant’s serious criminal history, and the [c]ourt’s opinion that total 

confinement was necessary and proper.”).

In light of the nature and circumstances of the offense, the history and 

characteristics of Appellant, the opportunity of the sentencing court to 

observe and interact with Appellant, the presentence investigation, and the 

jury’s verdict, we cannot conclude the aggregate sentence was unreasonable 

or, as Appellant contends, the result of “ill-will.” Accordingly, we affirm.

Appellant next avers that the trial court should have allowed his two 

minor sons to testify at trial to present “potentially exculpatory material 

evidence to contradict[ ] the victim’s testimony” regarding when and where 

the abuse occurred. Appellant’s Brief at 16. He contends that by quashing 

the subpoenas issued to compel the boys’ testimony, the court violated his 

“[c]onstitutional right to exercise compulsory process, thereby depriving the 
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Defense of material witness testimony in the presentation of a defense to 

the charges.” Id. at 18-19.

As Appellant notes, the Pennsylvania Constitution guarantees an 

accused the right “to have compulsory process for obtaining witnesses in his 

favor.” Pa. Const. art. I, § 9. Our Supreme Court has addressed the right 

to obtain witness testimony as follows: 

The right to compulsory process encompasses the right to meet 

the prosecution's case with the aid of witnesses, and the right to 

elicit the aid of the Commonwealth in securing those witnesses 

at trial, both of which are fundamental to a fair trial. This 

constitutional right, though fundamental, is not, however, 

absolute. Evidentiary rules based on legitimate state interests 

which exclude certain witnesses or certain testimony are not 

inconsistent nor incompatible with the right to compulsory 

process.[ ] Accordingly, where certain witnesses' testimony 

would not be admissible at trial, the Constitution does not 

require that a defendant be given the right to secure the 

attendance of witnesses which he has no right to use. 

Washington v. Texas, 388 U.S. 14, 87 S.Ct. 1920, 18 L.Ed.2d 

1019 (1967). Our inquiry is thus directed to the question of the 

admissibility of the testimony which would have been given by 

the two witnesses whom appellant requested to be subpoenaed.

Commonwealth v. Jackson, 324 A.2d 350, 354–55 (Pa. 1974) (internal 

footnote omitted).

It is well-settled that “[q]uestions regarding the admission of evidence 

are left to the sound discretion of the trial court, and we, as an appellate 

court, will not disturb the trial court's rulings regarding the admissibility of 

evidence absent an abuse of that discretion.” Commonwealth v. Russell, 

938 A.2d 1082, 1091 (Pa. Super. 2007) (citation omitted). An abuse of 

discretion is more than a mere error of judgment; rather, an abuse of 
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discretion will be found when “the law is overridden or misapplied, or the 

judgment exercised is manifestly unreasonable, or the result of partiality, 

prejudice, bias, or ill-will, as shown by the evidence or the record.” 

Commonwealth v. Busanet, 817 A.2d 1060, 1076 (Pa. 2002) (citation and 

quotation omitted).

In the instant case, prior to trial, the court ordered that Appellant’s 

counsel be allowed to interview the boys. The guardian ad litem conducted 

the interview by posing questions prepared by Appellant’s attorney. 

Appellant’s attorney, the children’s caseworker from Children and Youth 

Services, and Allentown Police Department detectives observed the 

interviews. Appellant’s attorney then informed the court that he still wished 

to subpoena the boys to testify at trial for Appellant, despite the guardian ad 

litem’s opposition to the subpoena. 

The court quashed the subpoenas after concluding that (1) the boys 

were unable to determine any dates at all; (2) no solid dates were provided 

either by the victim or the victim’s friend; and (3) the victim’s mother 

testified that she and the victim had been staying at Appellant’s residence 

off and on until November 7, 2012, when they moved out permanently and 

the victim did not return to Appellant’s apartment. Trial Ct. Op. at 15. 

Our review of the record indicates that the court’s decision to prohibit 

the boys’ testimony was not based on partiality, prejudice, bias, or ill-will. 

The trial court has provided a thorough review of the relevant evidence and 
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case law, and we affirm based on the trial court’s opinion. See Trial Ct. Op. 

at 14-17 (concluding, inter alia, (1) “the Court was not persuaded that the 

boys would be able to establish a timeframe either disputing the one 

testified to by the victim [] or [her mother] due to the fact that they could 

not recall specific dates or even descriptions of the residence in question;” 

and (2) “testimony by the boys, which would be speculative at best, would 

present a risk of harm to the boys, given the representation from their 

guardian ad litem that their therapist(s) believed that contact with the 

Appellant would cause additional trauma.”).

Appellant next argues that the court erred in denying his motion in 

limine to exclude testimony from Deputy Sheriff James E. Bonner. The 

testimony at issue pertained to Appellant’s behavior during the preliminary 

hearing, i.e., that while the victim was testifying about the abuse, Appellant 

was “fondling himself” with his pinkies while his hands were shackled at his 

waist. Appellant’s Brief at 22-23, quoting N.T. Trial. Appellant avers that 

the testimony was “highly and unfairly prejudicial[.]” Appellant’s Brief at 21.

The trial court has accurately and thoroughly addressed this issue and 

we affirm on the basis of its opinion. See Trial Ct. Op. at 17-19 ((1) noting, 

inter alia, the Commonwealth’s argument that the testimony was relevant 

because it tended to show that Appellant was sexually aroused by the 

victim, which was the motive behind the alleged abuse, and (2) concluding 

the prejudice here did not outweigh the probative value of the testimony.). 
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In his final issue, Appellant challenges the sufficiency of the evidence 

supporting his designation as a SVP. 

This Court will review a claim that the trial court relied upon 

insufficient evidence when designating a defendant as an SVP under the 

following standard:

A challenge to the sufficiency of the evidence is a question of law 

requiring a plenary scope of review. The appropriate standard of 

review regarding the sufficiency of the evidence is whether the 

evidence admitted at trial 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 

the elements of the offenses. As a reviewing court, we may not 

weigh the evidence and substitute our judgment for that of the 

fact-finder. Furthermore, a fact-finder is free to believe all, part 

or none of the evidence presented. 

At the 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. 

Accordingly, in 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 has been 

satisfied.

Commonwealth v. Haughwout, 837 A.2d 480, 484 (Pa. Super. 2003) 

(citations and quotations omitted).

As our Supreme Court has made clear, this Court is limited to “simply 

assessing the legal sufficiency” of the evidence presented; we may neither 

reweigh the evidence nor require greater proof than is required by the 

statute. Commonwealth v. Meals, 912 A.2d 213, 214 (Pa. 2005). In 

assessing the legal sufficiency, this Court must consider the “expert opinion 
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that, to a reasonable degree of professional certainty, [Appellant] was a 

pedophile.” Id. at 223. Our role as an appellate court does not permit us to 

pick apart, on appeal, the merits of that diagnosis. Id. The diagnosis itself 

is evidence, and any attack on the underlying merits of the opinion goes to 

“the weight, and not the sufficiency, of the expert’s evidence.” Id. at 224. 

In the instant case, Judge Banach has authored a comprehensive, 

thorough, and well-reasoned Opinion, citing to the record and relevant case 

law, and discussing each of the factors considered in an SVP determination. 

After a careful review of Appellant’s argument and the record, we affirm the 

trial court’s determination that Appellant is an SVP on the basis of that 

Opinion. See Trial Court Op. at 19-24.

The parties are instructed to append a copy of the trial court’s October 

20, 2015 Opinion to all future filings.

Judgment affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 11/10/2016
2 

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1 18 Pa.Con.Stat.Ann. §3121 §§C 

2 18 Pa.Con.Stat.Ann, §3123 §§B 

s 18 Pa.Con.Stat.Ann, §3125 §§B 

4 18 Pa.Con.Stat.Arui.§3124.1 

s 18 Pa.Con.Stat.Ann. §6301 §§Alii 

6 18 Pa.Con.Stat.Ann §3 l-"26 §§A7 

87 years of incarceration. 

sentenced to serve an aggregate sentence of not less than 43 l/2 years nor more than 

of all counts of the Information. O~ April 8, 2015, after a Hearing held before the 

undersigned, the Appellant was deemed a Sexually Violent Predator and was 

began on August 4, 2014 and on August 7, 2014, the jury found the Appellant guilty 

Indecent Assault of a Child,s graded as a Misdemeanor of the First Degree. Ajury trial 

Corruption ofMinors,s graded as a Felony of the Third Degree, and one count of 

count of Sexual Assault, 4 graded as a Felony of the Second Degree; one count of 

Aggravated Indecent Assault of a Child,3 graded as a Felony of the First Degree; one 

Intercourse with a Child.s graded as a Felony of the First Degree; one count of 

graded as a Felony ofthe First Degree; one count oflnvoluntary Deviate Sexual 

On July 7, 2013, the Appellant was arraigned on one count of Rape of a Child.! 

KELLY L, BANACH, J.: 

OPINION 

NELSON MARTINEZ, 

Appellant 

No, 2416/ 2013 

1337 EDA 2015 

I 

I 

I 

I 

I 

I 

vs. 

COMMONWEALTH OF PENNSYLVANIA 

IN THE COURT OF COMMON PLEAS OF LEfilGH COUNTY, PENNSYLVANIA 

CRIMINAL DMSION 

Circulated 10/28/2016 11:34 AM
3 

SUMMARY OF THE FACTS 

Iris Martinez, the mother of the victim in this matter, had been in a relationship 

with the Appellant since June of 2006. At that time, the victim, E.B., was four or five 

years old. After about a year of their relationship, E.B. began to refer to the Appellant 

as "Dad." In the fall of 2012, Ms. Martinez and the Appellant were spending time both 

in the same household as well as apart. As of mid-October, 2012, the Appellant was 

residing at 830 Walnut Street, Allentown, Lehigh County, Pennsylvania, with his 14 

year old son. E.B. and two additional siblings resided with Ms. Martinez. E.B. would 

visit the Appellant at his home on the weekends. 

On one particular weekend in mid-October, 2012, E.B. came to visit the 

Appellant. E.B. referred to the Appellant as "Dad." During her visit and while they 

were alone, the Appellant asked E.B. if she liked boys and knew how to kiss. She said 

yes and he demonstrated by kissing her hand. The Appellant laugh~d and then a.sked 

if E.B. wanted to learn how to "real" kiss. The Appellant took E.B. to the playroom 

downstairs where he proceeded to kiss her on the lip~ and attempted to "French" kiss 

her by sticking his tongue in her mouth .. E.B. stopped him by refusing to open her 

mouth. At that point, the Appellant pulled down his pants and underwear, telling her 

that that was what a boy's penis looks like. E.B. left the room and went upstairs to 

the bathroom on the second floor. 

On April 17, 2015, the Appellant filed a Post-Sentence Motion. On April 28, 

2015, the Court denied the Post-Sentence Motion. 

On May 71 2015, the Appellant filed a Notice of Appeal in this matter. The 

Appellant filed a Concise Statement of Reasons Complained of on Appeal on August 51 

2015. This Opinion follows. 
4 

the same evening, while alone with the Appellant in his bedroom, the Appellant started 

talking to E.B .. about masturbating and encouraged ~er to use the toy on herself. E.B. 

obeyed him because she was afraid 'he would tell her mother. The Appellant engaged 

the vibration function on the sex toy and moved E.B. 's hand and fingers in circles on 

her vagina. The Appellant masturbated as he watched E.B. touch herself. The 

Appellant put the lotion on E.B.'s vagina and told her how beautiful and nice she 

looked. The Appellant had ejaculated and showed E.B. the semen, telling her "this is 

inside her vagina. E.B. complied but the sex toy did not fit inside of her vagina. Later 

Later the same day, the Appellant and E.B. were alone when he asked if she 

knew about masturbation and "cum." E.B. did not tell anyone, including her mother, 

about the incidents because she was scared of being punished. by her mother and the 

Appellant and that the Appellant would hit her. 

The next time E.B. visited the Appellant, E.B. came downstairs where the 

Appellant was sitting on the couch, watching television with. his laptop on his lap. 

E.B.'s mother was in the home, but not in the room. The Appellant whispered to E.B. 

that he wanted to show her something. E.B. went over to the Appellant where he 

showed her pictures and videos pf naked girls and boys kissing and touching each 

other. The Appellant asked if anyone had licked E.B.1s genitals. When she replied no, 

he instructed E.B. to pull down her pants, and let him try so she could experience how 

it feels. E.B. complied and the Appellant started to lick E.B. 's vagina, making E.B. feel 

disgusting. E.B. did not report this incident either, scared that her mother would 

think she was dirty. 

When E.B. returned to the Appellant's house at a later date, the Appellant 

showed her a sex toy and lotion. E.B. asked what it was and the Appellant told her 

that it was a .sex toy. The Appellant told E.B. to take the sex toy and see if it would fit 
5 

At some point in time, the Appellant took E.B. to two sex stores, Cupid's 

Treasures in Bethlehem, Pennsylvania and another establishment in Allentown, 

Pennsylvania between the hours of midnight and one in the morning. At Cupid's 

Treasure, the Appellant instructed E.B. to wait in the car. When the Appellant 

returned, he had a box of chocolate, strawberry, and vanilla packets and a dildo. The 

Appellant then took E.B. to the store in Allentown. 

how a boy cums." Trial Tr. Vol. 1, 65:13~17 Aug. 5, 2014. Further, the Appellant 

discussed with E.B the intimacies of his relationship with E.B. 's mother. The 

Appellant also put his fingers inside of E.B. 's vagina. 

On another occasion, E.B's best friend, K.R., and E.B. were spending time at 

the Appellant's home. The girls were in the living room when E.B. left to go into the 

kitchen. There, the Appellant asked E.B. if she thought that K.R liked sex toys. E.B. 

told him that he was not to touch K.R., but did agree to ask K.R. if she liked sex toys. 

K.R said no. Later, after the girls went upstairs, the Appellant commented to K.R. how 

much she had grown and how her breasts were developing. The Appellant lifted K.R. 's 

shirt up and touched her breast. The Appellant then did the same to E.B. The 

Appellant commented about E.B. 's nipples and put his mouth on her breast, stating 

that he was helping them grow. E.B. did not share this information with anyone 

because she was scared and ashamed. K.R did not immediately tell anyone because 

she was scared. 

On another evening, E.B. cried to the Appellant that she did not want to 

continue having sexual contact with him. The Appellant agreed, saying that they 

would go to Hell if they continued. E.B. then fell asleep and when she woke up, her 

pants and underwear were down. The Appellant told her, "you cazne five times." Id. at 

68:24. 
6 

On yet another occasion, the Appellant placed his penis inside of E.B. 's anus. 

Though she complained that it hurt, the Appellant told her that she would get used to 

it. This happened two or three times. 

Another time, E.B. asked the Appellant if she could have a play piece to the 

game Minecraft. He replied that she had to earn it by keeping his penis in her mouth 

for one minute and thirty seconds. E.B. initially said no, but ultimately did this three 

or four times. 

E.B. 's mother, Iris Martinez, had been in a relationship with the Appellant since 

June of 2006, when E.B. was four or five years old. After about a year of their 

relationship, E.B. began to refer to the Appellant as "Dad." In the fall of 2012, Ms. 

Martinez and the Appellant were spending time both in the same household as well as 

apart. In November of 2012, Ms. Martinez began to notice that E.B. was not as social 

as she was before. 

On January 29, 2013, E.B. w.as helping the Appellant wrap a present for her 

younger brother's birthday at E.B. 's residence. At that time, the Appellant remarked 

that E.B. 's breasts were developing and E.B. became angry. The birthday party 

continued until the Appellant left the residence in the evening. Noticing that E.B. had 

been crying, Ms. Martinez asked her what was wrong. E.B. finally told ·h~r mother 

that the Appellant had been touching her. Shortly thereafter, Ms. Martinez called the 

Appellant and summoned him back to her apartment. The Appellant denied having 

ever touched E,.B. inappropriately .. 

At that time, Ms. Martinez recalled finding a pink sex toy in the Appellant's 

bedroom closet while putting laundry away during the last week of October, 2012. 

Believing that the Appellant was using it in a relationship with another woman, Ms. 

Martinez took the sex toy and brought it back to her apartment. Ms. Martinez washed 
7 

the sex toy, and at some point later in time, used the sex toy herself and then hid it in 

her closet. She did not take it back out of the closet again until detectives came to 

interview E.B. 

On February 14, 2013, Ms. Martinez contacted the authorities to report the 

abuse. Ms. Martinez also arranged for E.B. to spend time with a family friend, 

Kristine Hernandez, to see ifE.B. would reveal details of the abuse to Ms. Hernandez. 

Ms. Hernandez met with E.B. at Ms. Hernandez's apartment to speak to her a 

few days after E.B. disclosed the abuse to her mother. E.B; was extremely upset, and 

related the abuse while crying uncontrollably. Ms. Hernandez surreptitiously had 

called Ms. Martinez on the telephone so that she could hear what E.B. was describing. 

E.B. detailed the abuse for Ms. Hernandez. 

Ms. Hernandez acknowledged that she also used the sex toy on one occasion, 

prior to E.B. telling her about what had occurred with the Appellant. 

On March 5, 2013, E.B. reported to the Child Advocacy Center and underwent 

a medical examination by Megan Fairchild, a pediatric nurse practitioner. The 

medical examination included a physical examination and a medical interview, as well 

as taking photographs. Ms. Fairchild authored a report, which was reviewed by Dr. 

John Van Brakle, an expert in the area of pediatric medicine. On March 14, 2013, Dr, 

Van Brakle performed a physical examination of E.B's vaginal and rectal areas. He 

determined there were two lacerations in the rectal area, which would be consistent 

with anal penetration by a penis having taken place in late October or early November 

2012. Regarding the vaginal exam, Dr. Van Brakle determined that E.B.'s exam was 

normal, which would have been consistent with the time period of abuse outlined by 

E.B. 
8 

1) That the aggregate sentence issued by this Court of 

43 and% years to 87 years was "excessive, unreasonable 

and unduly harsh, and was an abuse of discretion." 

2) That the Court erred by prohibiting the testimony of 

juvenile witnesses, Noah and Moses Martinez, who would 

have offered potentially exculpatory material evidence; 

3) That the Court erred in denying the Appellant's 

Motion in Limine to Exclude Testimony of Deputy Sheriff 

James E. Bonner pursuant to Pa.R'Evid, 401 and 403, "as 

such testimony was irrelevant, speculative, conjectural, 

unsupported by scientific or expert opinion and was far 

more prejudicial to Defendant than it was probative;" and, 

The Appellant avers the following on Appeal: 

DISCUSSION AND CONCLUSIONS OF LAW 

87 years of incarceration. 

sentenced to an aggregate sentence of not less than 43 and a· half years nor more than 

Appellant was found to meet the criteria for a Sexually Violent Predator and was 

sentencing. At the conclusion of the Sentencing Hearing on April 8, 2015, the 

The results of the independent evaluation were not presented at the time of · 

funds, had an independent psychological evaluation performed by Dr. Frank Dattilio. 

as a Sexually Violent Predator. The Appellant, after requesting and being provided 

Predator. Thereafter, the Commonwealth did file a praecipe to classify the defendant 

Evaluation, which determined that he does meet the criteria for Sexually Violent 

Upon conviction, the Appellant underwent a Sexual Offender Assessment 

E.B.'s mother. 

were the result of a "woman scorned," referring to his tumultuous relationship with 

E.B. 's friend, K.R. The Appellant opined that the accusations made by E.B. and K.R. 

use a sex toy, and showing E.B. his genitals. Further, he denied having touched 

Specifically, the Appellant denied raping E.B,, touching her genitals, forcing E.B. to 

The Appellant denied ever touching E.B. inappropriately. He stated that he 

treated E.B. as his own daughter, having raised her since she was 4 years old. 
9 

without penalty, probation, fine, partial confinement, and total confinement." 

is authorized to choose one or more of five options as an appropriate sentence - guilt 

Unless a minimum period of confinement is statutorily required, "the trial court 

partiality, prejudice, bias or ill-will .. " Commsmioealih u. Smith, 673 A.2d 893, 895 (Pa. 

l 996)(internal citations omitted). 

discloses that the judgment exercised was manifestly unreasonable, or the result of 

the trial court will not be found to have abused its discretion unless the record 

(2002). '1An abuse of discretion is more than just an error in judgm.ent and, on appeal, 

statutory limits or be manifestly excessive. Mouzon, 571 Pa. at 419, 812 A.2d at 617 

constitute an abuse of discretion, the sentence imposed must either exceed the 

(1990), citing Commonwealth v. Fries, 362 Pa. Super. 163, 523 A.2d 1134 (1987). To 

discretion." Commonwealth v. Minott, 395 Pa. Super. 552, SSS, 577 A.2d 928, 929 

and a sentence will not be disturbed on appeal absent a manifest abuse of that 

"Sentencing is a matter vested in the sound discretion of the sentencing judge, 

by the Court on April 28, 2015. 

this requirement by filing a Post-Sentence Motion on April 17, 2015, which was denied 

Commonwealth v. Reeves, 778 A.2d 691 (Pa. Super. 2001}. The Appellant satisfied 

sentencing proceeding or in a post-sentence motion to modify sentence. See 

requires that an Appellant first raise specific issues of error either during the 

621 (2002). A prerequisite to a challenge of the discretionary aspects of sentencing 

aspects of a sentence. See Commonwealth v. Mouzon, 571 Pa. 419, 425, 812 A.2d 617, 

As a preliminary matter, there is no absolute right to appeal the discretionary 

Harsh and Excessive Sentence 

App. Concise Stmt., 11-4. 

4) That the classification of the Appellant as a Sexually 

Violent Predator was in error. 
10 

Commonwealth v. Tuladziecki, 522 A.2d 17, 20 {Pa. l987)(citing 42 Pa.Cons.Stat. 

§972l(a)}. In general, the sentence "should call for confinement that is consistent with 

the protection of the public, the gravity of the offense as it relates· to the impact on the 

Iife of the victim and the community, and the rehabilitative needs of the [Appellant]." · 

42 Pa.Cons.Stat. §972l(b). See Commonwealth v. Walls, 926 A.2d 957, 962 (Pa. 

2007). However, these factors are in no way exclusive, and a sentencing court is 

entitled to consider the totality of circumstances when making its decision. "The court 

shall also consider any guidelines for sentencing adopted by the Pennsylvania 

Commission on Sentencing and taking effect pursuant to section 2155 (relating to 

publication of guidelines for sentencing)." Walls at 963 (italics added). 

"Along with these general standards . . . the court is given more specific criteria 

to consider with respect to each of the alternatives. Thus, total confinement should be 

imposed if the court is of the opinion that it is necessary because of a risk that the 

[Appellant] will commit another crime, because institutionalization would provide the 

most effective correctional treatment, or because anything less would depreciate the· 

seriousness of the. crime. Further, the court's opinion is to be guided by considering 

'the nature and circumstances of the crime and the history, character and condition of 

the [Appellant]. "'42 Pa.Cons.Stat. §9725. Tuladssiecki at 20. Given the geriered outline 

of considerations provided in 42 Pa.Cons.Stat. §9721 and §9725, it is clear that the 

Pennsylvania legislature has vested broad discretion in the trial court to fashion a 

sentence that is appropriate given the particular set of facts and circumstances for the 

individual case at bar. 

Sentencing guidelines are considered to be non-binding and advisory in nature, 

.although they must be considered by the sentencing court. See Commonwealth v. 

Walls} 926 A.2d 957> 964 (Pa. 2007). Therefore> an appellant court will "vacate a 
11 

7 The Appellant and his counsel received all of the same attachments, absent the victim impact 

statements of the victim and her mother. The Appellant was provided an opportunity to review 

those statements at the time of the Sentencing Hearing. 

abnormality or conditions either and that essentially, the conclusion reached by Ms. 

abnormality or condition. He had not undergone any treatment for any mental 

Appellant's medical and criminal history did not indicate that he had a mental health 

argued that the Appellant should not be classified as a SVP based on the fact that the 

the report, but not to the content or conclusions contained therein. Defense counsel 

Counsel for the Commonwealth and for the Appellant stipulated to the ~dmissibility of 

the conclusion that the Appellant was a Sexually Violent Predator (hereinafter "SVP"). 

conducted by Paula Brust of the Sexual Offender Assessment Board, which contained 

In addition, the Court received a copy of the Sexual Offender Evaluation 

objections to certain statements contained within the PSI and brought the Court's 

attention to those objections at the time of the Sentencing Hearing. 

victim impact statement from the victim's mother." Counsel for the Appellant made 

misconducts and. did not participate in any programs, activities or employment, and a 

statement, a copy of a memo from the jail which indicated that the Appellant had no 

thereto were sentencing guidelines, the affidavit of probable cause, the victim impact 

Report prepared by the Lehigh County Office of Probation and Parole. Attached 

Information. In anticipation of sentencing, the Court reviewed the Pre-Sentence 

In the case at bar, the Appellant was found guilty by Jury of each count of the 

895; 42 Pa.c.s·. § 978l(c). 

appellate court shall affirm the sentence imposed by the sentencing court. n Smith at 

citing 42 Pa.C.S. § 978l(c)(3} (emphasis added). However, •[i}n all other cases the 

outside the sentencing guidelines and the sentence is unreasonable.' Smith at 895, 

sentence and remand to the sentencing court if 'the sentencing court sentenced 
12 

Brust was based on the findings of fact made by the Jury. The Commonwealth argued 

that the analysis which led to the Appellant's classification as an SVP was more than 

an examination of the facts found to be true by the Jury. Rather, the evaluator 

considered the fact that over a period of at least six months, the Appellant had 

recurrent, intense sexually arousing fantasies, sexual urges or behaviors involving 

sexual activity with a prepubescent child or children generally age 13 or younger, that 

the Appellant acted on these sexual urges or fantasies, and that the age of the 

Appellant and his victims were consistent with the criteria for Pedophilic Disorder, 

which "will cause him to experience an internal drive towards sexual offending and his 

disorder predisposes him towards committing sexual crimes in the future." See 

Exhibit C-1, p.9. The evaluator also noted that the presence of multiple victims (E.B. 

and K:R.} is sufficient but not necessary for the diagnosis. The evaluator highlighted 

that the Appellant groomed and bribed E.B. and attempted to normalize the sexual 

activity. E.B. indicated that she was afraid of the Appellant. 

At the conclusion of the Sentencing Hearing, the Court sentenced the Appellant· 

to serve an aggregate sentence of no less than 43¥2 years nor more than 87 years of 

incarceration. The Appellant is unable to show that the sentence constituted an 

abuse of discretion. The sentence did not exceed the statutory limits and was not 

"manifestly unreasonable or the result of partiality, prejudice, bias or ill will." Smith at 

895. Rather, the Court carefully weighed the sentencing factors, including the · 

protection of the public, the gravity of the offense on the victim and the community, 

and the rehabilitative needs of the Appellant. Without question, the crimes the 

Appellant was convicted of were among the most heinous and despicable. He acted on 

his own sexual urges and desires, consistent with an individual suffering from 

Pedophilic Disorder, without regard to the short and long term effect he was having on 
13 

The Court's lengthy sentence was justified by the heinous and physically and 

emotionally damaging acts that the Appellant was found to have committed, the need 

to protect the public from the Appellant, the Appellant's serious criminal history, and 

the Court's opinion that total confinement was necessary and proper. Without 

evidence of an abuse of discretion, the Appellant's claim of an excessive and harsh 

sentence ought to fail. 

E,B. and transitively, on the lives of his other children. Anything short of total 

confinement, for a substantial amount of time, would depreciate the seriousness of the 

crimes committed on the most vulnerable of victims. 

While the Appellant has no prior sexual assaults as part of his criminal history, 

this is most certainly not his first brush with serious criminal actions. Among his 

convictions are attempted burglary, conspiracy to possession with intent to deliver, 

· and possession with intent to deliver. His crimes in the past were serious and 

significant. The Court was also able to get a sense of the Appellant's character and 

condition at the time of trial and during the sentencing hearing. Although he is 

entitled to maintain his innocence even in the face of overwhelming testimonial 

evidence to the contrary, the Appellant treated the Court and the entire judicial 

process with disdain and disrespect, constantly speaking over his attorney, the 

attorney for the Commonwealth, and the Court. He spoke disparagingly of the victim's 

mother, his wife, calling her a liar. He accused the District Attorney's Office and the 

investigating agencies of fabricating evidence in order to establish high conviction 

rates. H~ took absolutely no responsibility for what happened to the 12 year old 

victim. 
14 

Testimony of Juvenile Witnesses 

The Appellant next avers that the Court erred in prohibiting the testimony of 

the Appellant's two minor children, N.M. and M.M. It is his belief that their testimony 

would have been exculpatory in nature. 

Byway of background, the Appellant's attorney, Glenn Goodge, Esquire, issued 

subpoenas to the juveniles, care of their guardian ad litem Catherine Kollet, Esquire. 

Attorney Kollet became guardian ad litern for the two boys after they were placed into 

the custody of the Lehigh County Office of Children and Youth Services on March 12, 

2013. Prior to that date, the boys were living with the Appellant, who had sole legal 

and physical custody. On March 12, 2013, it was determined that the Appellant had 

left the area in the wake of charges being filed in the instant matter. 

Attorney Goodge had requested to speak with the boys via Attorney Kollet, who 

denied him access, stating that she did not believe it would be iri the boys' best 

interest. As they were therefore "unavailable" to the defense, Attorney Goodge 

appealed to this Court to determine ifhe ought to be permitted to speak to the boys as 

material witnesses. At the time, Attorney Goodge believed that the boys would testify 

that on the dates alleged, E.B. did not visit the Appellant at the apartment at 830 

Walnut Street. 

Attorney Kollet, during a Hearing on August 4, 2014, on the eve of Trial, argued 

that she objected to the boys being interviewed because she believed it was not in their 

best interest. She cited the concept of "trauma bond," wherein the child;ren had 

experienced "such trauma that they are overly attached and it would do harm to them 

to make contact." Notes of Testimony, Aug. 4, 2014, p.10. At the conclusion of the 

hearing, the Court ordered that Attorney Goodge be provided an opportunity to 

interview the boys. 
15 

On August 6, 2014, the boys participated in an interview whereby Attorney 

Kollet posed questions prepared by Attorney Goodge. Attorney Goodge observed the 

interview, as well as a Children andYouth Caseworker and Detectives John 

Buckwalter and Melissa Gogel of the Allentown Police Department, the affiants in this 

case. After making his observations, Attorney Goodge informed the Court that he still 

wished to subpoena the boys to testify at trial for the Appellant. He further 

represented to the Court that Attorney Kollet, as guardian ad litem for the boys, 

opposed the subpoena. 

While the jury was in recess, the Court heard from Attorneys Kollet and Goodge 

regarding the subpoena for the boys' testimony. Attorney Goodge represented that 

during the Interview, both of the boys stated that E.B. did not visit the Appellant at 

830 Walnut Street after she and her mother moved out of the residence and further 

stated that K.R. had never visited .the apartment after E.B. and her mother left. 

Neither of the boys could remember specific dates nor could either describe the house 

that they lived in at the time. Attorney Goodge asserted that the boys' belief that. no 

visits had. taken place after E.B. and her mother moved out was material and relevant 

to the Appellant's case. 

The Court was able to recall from the previous days' te&tirnony that E.B. and 

K.R. were unable to testify regarding concrete dates of the incidents with the 

Appellant. · Further testimony from E.B. 's mother, Iris Martinez, indicated that 

although she had secured another residence, she and E.B. had been staying at the 

Appellant's residence off and on until November 7, 2012, when they moved out and 

E.B. did not return to the Appellant's apartment. Therefore, because the boys were 

unable to determine any dates at all, and no solid dates were provided either by E.B. 

or by K.R., the Court was not persuaded that a clear time frame had been established 
16 

regarding when the boys stopped seeing E.B. and/or K.R. at the apartment on Walnut 

Street. In the Court's belief, to compel the boys to testify to facts that were speculative 

at best presented too great a risk of additional trauma. Hence, the subpoena for the 

boys to testify was quashed. 

Under both the Pennsylvania and Federal Constitutions, "a criminal defendant 

has a right of compulsory process to obtain witnesses in his favor." Commonwealth u. 

McKenzie, 581 A.2d 655, 657 (Pa. 1990)(citing Commonwealth v. Lahoud, 488 A.2d 

307, 310 (Pa.Super. 1985) {allocatur denied}, quoting Commonwealth v. Allen, 462 

A.2d 624, 627 (Pa. 1983)). See also Commonwealth v. Jackson, 324 A.2d 350, 354~355 

(1974. A criminal defendant "'has the right to present his own witnesses to establish a 

defense. This right is a fundamental element of due process of law."' McKenzie at 657, 

citing Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019, 

1023 (1967). "[The] constitutional right, though fundamental, is not, however, 

absolute." Commonwealth v. Jackson at 355. "In order to compel the attendance ofa 

witness at trial, it must be shown that the information possessed by the witness is 

material, Le., capable of affecting the outcome of the trial, and that it is favorable to 

the defense." McKenzie at 657, citing United States v. Valenzuela--Bemal, 458 U.S. 858, 

(1982). 

"When reviewing a court's disposition of a motion to quash a subpoena, [an 

appellate court will} grant great deference to the factual findings of the trial court. [It] 

will affirm the court's decision unless [it findsJ that the court abused its discretion or 

committed an error of law." Commonwealth u. Simmons, 719 A.2d 336, 340 {Pa. Super. 

1998). "An abuse of discretion is more than just an error in judgment and, on appeal, 

the trial court will not be found to have abused its discretion unless the record 

discloses that the judgment exercised was manifestly unreasonable, or the result of 
17 

actions of the Appellant as "fondling himself," At the time, the Appellant's hands were 

numerous times with each time lasting under a minute. The deputy described the 

. his crotch area and used his two small fingers to rub himself in the crotch area> 

the Appellant, observed that while ~.B. was testifying, the Appellant reached down to 

Deputy Bohner, while standing at a 45 degree angle and an arm's length away from · . . 

Bonner's observations of the Appellant at his preliminary hearing. Specifically, 

to Appellant than it was probative. The testimony in question refers to Deputy 

conjectural, unsupported by scientific or expert opinion and was far more prejudicial 

to Pa.R.Eyid. 401 and 403, in that the testimony was irrelevant, speculative, 

Motion in Limine to Exclude Testimony of Deputy Sheriff James E. Bonner pursuant 

Next, the Appellant argues that the Court erred in denying the Appellant's 

Testimony of Deputy Sheriff 

and was not manifestly unreasonable. Therefore, this portion of the Appeal ought to be 

dismissed. 

additional trauma. The decision was not based on partiality, prejudice, bias, or ill-will 

litem that their therapist(s) believed that contact with the Appellant would cause 

present a risk of harm to the boys, given the representation from their guardian ad 

Court believed testimony by the boys, which would be speculative at best, would 

recall specific dates or even descriptions of the residence in question. Further, the 

the one testified to by E.B.> K.R., or Ms. Martinez due to the fact that they could not 

not persuaded that the boys would be able to establish a timeframe either disputing 

Here, the Court did not abuse its discretion. As stated above> the Court was 

(Pa.Super.2001). 

partiality, prejudice, bias, or ill-will." Common1:°ealth u. Jackson, 785 A.2d 117, 118 
18 

shackled to his front waist area. It continued until the deputy motioned to the 

Appellant to stop. 

"[T'[he admission of evidence is within the sound discretion of the trial court and 

will be reversed only upon a showing that the trial court clearly abused its discretion." 

Commonwealth v. Stutler, 966 A.2d 594, 599 (Pa.Super.2009), citing Commonwealth v. 

Treiber, 874 A.2d 26, 31 (Pa. 2005). "Admissibility depends on relevance and probative 

value," Id. "Evidence is relevant if it logically tends to establish a material fact in the 

case or tends to support. a reasonable inference regarding a material fact." 

Commonwealth v. Foley, 38 A.3d 882, 891 (Pa.Super. 2012). "Evidence, even if 

relevant, may be excluded if its probative value is outweighed by the potential 

prejudice." Commonwealth v. Franzen, 42 A.3d 1100, 1106 (PaSuper. 2012)(citing 

Commonwealth v. Page, 965 A.2d 1212, 1220 (Pa.Super.2.009)). 

"Determinations about the admissibility of evidence are entrusted to the sound 

discretion of the trial court and will be reversed only upon a showing that the trial 

court clearly abused its discretion." Commonwealth u. Parker, 882 A.2d 488, 492 

[Pa.Super, 200S)(citation omitted). "Discretion is abused when the course pursued 

represents not merely an error of judgment, but where the judgment is manifestly 

unreasonable or where the law is not applied or where the record shows that the 

action is a result of partiality, prejudice, bias or ill will." Commonwealth v~ Widmer, 

744 A.2d 745, 753 (Pa. 2000}(citing Coker v. S.M. Flickinger Company, Inc., 625 A.2d 

1181, 1185 (Pa. 1993). 

The Appellant is unable to show an abuse of discretion. At the Motion in 

Li.mine Hearing, held on August 4, 2014, counsel for the Appellant argued that Deputy 

Bonner's testimony was irrelevant and highly prejudicial. He asserted that the 

preliminary hearing was held over a year after the alleged incidents were to have taken 
\ 

19 

place, that there was no expert opinion regarding whether the Appellant was actually 

engaged in sexual arousal at the time he was observed by the deputy, or if he was 

merely uncomfortable. The Commonwealth argued that the testimony was relevant in 

that it tended to show that the Appellant was sexually aroused by the victim, E.B., 

which was the motive behind the alleged abuse. Further, the Commonwealth 

suggested that the deputy would only be testifying about his observations of the 

Appellant at the preliminary hearing and that other reasons behind the Appellant's 

behavior could be ferreted out on cross-examination. 

The Court determined that the testimony of the deputy was relevant to show 

that the Appellant reacted to E.B.'s testimony at the preliminary hearing by; in the 

deputy's observation and analysis, fondling himself. Defense counsel was able to 

cross examine Deputy Bonner regarding his observation of 'the Appellant and to make 

argument that the deputy's observation was erroneous. While every piece of evidence 

tending to show a defendant's guilt is prejudicial by its very nature, the prejudice here 

did not outweigh the probative value of the testimony of the deputy. The record cannot 

support the Appellant's argument that the Court's decision was based on partiality, 

bias, prejudice or ill will. Therefore, the Appellant's argument fails and this portion of 

the Appeal ought to be dismissed. 

Classification as a Sexually Violent Predator 

"[Ijn' 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 has been satisfied." Commonwealth u. Plucinski, 

868 A.2d 20, 25 (Pa.Super. 2005){citations omitted). "The clear and convincing 

standard requires evidence that is 'so clear, direct, weighty and convincing as to 
\ 

20 

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

the precise facts {in] issue." Plucinski at 25, citing Commonwealth v. Maldonado> 838 

A.2d 710, 71~ (2003)(intemal citation omitted). 

"Pennsylvania's version of Megan's Law defines an SVP as 'a person who has 

been convicted of a sexually violent offense as set forth in section 9795.1 (relating to 

registration) and who is determined to be a sexually violent predator under section 

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." 

Commonwealth v. Geiier, 929 A.2d 648, 649-650 (Pa.Super. 2007)(citing 42 Pa. 

·Cons.Stat.Ann.§ 9792). "The process of determining SVP status is statutorilymandated and well-defined. The triggering event is a conviction for one or more 

offenses specified in 42 Pa.C.S.A. § 9795.1, which, in turn, prompts the trial court to 

order an SVP assessment by the {Sexual Offenders Assessment Board)." 

Commonwealth u. Dixon, 907 A.2d 533, 535 (Pa.Super 2006)(citations omitted). "At 

the core of the expert's assessment is a detailed list of factors, which are mandatory 

and are designed as "criteria by which ... [the] likelihood [of reoffense] may be gauged." 

Id. at 535-536 (citing Commonwealth v. Bey, 841 A.2d 562, 566 (Pa.Super.2004)). 

"The specific question for the SOAB expert. as well as any other expert who 

testifies at an SVP hearing, is whether the defendant satisfied the definition of sexually 

violent predator set out in the statute, that is, whether he or she suffers from 'a 

mental abnormality or personality disorder that makes {him or her} likely to engage in 

predatory sexually violent offenses." Dixon at 536, citing 42 Pa.C.S.A. § 9792. 

Therefore, "the salient inquiry ... in determining SVP status is identification of the 

impetus behind commission of the offense, that is, whether it proceeds from a mental 

defect/personality disorder or another motivating factor. The answer to that question 
21 

Evaluation, which determined that he does meet the criteria for Sexually Violent 

Upon conviction, the Appellant underwent a Sexual Offender Assessment 

SVP designation." Commonwealth u. Feucht, 955 A.2d 377, 381 [Pa.Super, 2008)(citing 

Commonwealth .. v. Meals, 912 A.2d 213, 220-223 (2006)). 

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

absent in order to support an SVP designation. Meals, 912 A.2d at 220-23. The factors 

statutory requirement that all of them or any particular number of them be present or 

( 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. . 

Commonwealth v. vVhite, 2014 WL 63910881 

*4-5 (Pa.Com.Pl. 2014)) citing 42 Pa.C.S. § 

9 799. 24(b) (1)-(~). 

"[WJith regard to the various assessment factors listed in Section 9795.4, there is no 

determines, at least theoretically, the extent to which the offender is likely to reoffend." 

Bey at 566. The assessment conducted by the SOAB Evaluator shall include, but not 

be limited to, an examination of the .following: 
22 

8 The Appellant, after requesting and being provided funds, had an independent 

psychological evaluation performed by Dr. Frank Dattilio. The results of the independent 

evaluation were not presented at the time of sentencing. 

of the offenses. The Appellant's Department of Corrections (hereinafter 1'DOC") 

records indicated that he has exhibited a Low Average Range oflntelligence and that 

the age of 19. It was unknown if the Appellant was using illegal narcotics at the time 

narcotics in the past, he has abused marijuana since the age of 12 and cocaine since 

offended against his 10 year old stepdaughter and that in addition to selling illegal 

Ms. Brust considered that the Appellant was 44 years old at the tune he 

had violated probationary and parole sentences due to compliance issues. Id. at 7. 

crimes. Ms. Brust determined that the Appellant was a technical parole violator and 

The Appellant has suffered five adult convictions, none of which were sexual 

consenting to the sexual acts forced upon her. Id. 

evaluator found that the victim was vulnerable due to her age and was not capable of 

that relationship in order to satisfy his sexual deviancies." Exhibit C-1, p.6. The 

Appellant was her stepfather, a "relationship of trust and dependency and he twisted 

Brust noted that the victim was 10 years old at the time the offenses started and the 

her to comply. Medical evidence of blunt penetrating trauma existed as well. Ms. 

also noted that the Appellant was able to groom. the victim, bribe her, and intimidate 

of sexual acts and their progression from kissing to raping on repeated occasions. She 

crimes did not involve multiple victims, but did note the duration and multiple types 

that the Appellant is. indeed, an SVP. Ms. Brust acknowledged that the instant 

the Report for consideration by the Court. 

8 

~fa. Brust's report identified the specific factors leading to her determination 

Predator (hereinafter "SVP"). The Evaluation was performed by Paula Brust of the 

Sexual Offender Assessment Board and both counsel stipulated to the admissibility of 
23 

he exhibited narcissistic and delusional qualities. The DOC records found the 

Appellant to have little or no respect for social standards and that he is often in direct 

conflict with social values. Aft.er evaluating the available records, the Appellant was 

found to meet the diagnostic criteria for Pedophilic Disorder. 

Specifically, Ms. Brust considered the fact that over a period of at least six 

months, the Appellant had recurrent, intense sexually arousing fantasies, sexual 

urges or behaviors involving sexual activity with a prepubescent child or children 

generally age 13 or younger, that the Appellant acted on these sexual urges or 

fantasies, and that the age of the Appellant and his victims were consistent with the 

criteria for Pedophilic Disorder, which "will cause him to experience an internal drive 

towards sexual offending and his disorder predisposes him towards committing sexual 

crimes in the future." See Exhibit C-1 at 9. The evaluator also noted that the presence 

of multiple victims (E.B. and K.R.) is sufficient but not necessary for the diagnosis. 

The evaluator highlighted that the Appellant groomed and bribed E.B. and attempted 

to normalize the sexual activity. E.B. indicated that she was afraid of the Appellant. 

M~. Brust ultimately concluded that the Appellant met the "full criteria for 

Pedophilic Disorder, which is considered to be a congenital and/ or acquired 

condition." Exhibit C- 1 at 9. Such disorder is considered to be a lifetime disorder. In 

offending against the victim, and being aware of the potential consequences, the 

Appellant repeatedly sexually offended a child. The diagnosis of Pedophilic Disorder 

will cause the Appellant "to have ai:i internal drive toward sexual offending and 

predisposes him towards committing sexual crimes in the future." Id. 

The Appellant's actions were predatory in nature in that they were "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 
24 

Case law establishes that "every Commonwealth expert who testifies that an 

individual is an SVP must examine, and render an opinion on, whether the individual 

is likely to re-offend. (However], the precise manner of meeting this burden is not 

analyzed in terms of a strict, three-prong test." Dixon, 907 A.2d at 539 [referring to 

Commonwealth v. Krouse, 799 A.2d 835, 837 (Pa.Super.2002)). "[W]hile the Board is 

to examine all the factors listed under Section 97954.4, the Commonwealth does not 

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

Commonwealth v. Brooks, 7 A.3d 852, 863 (Pa.Super. 2010)(citing Feucht at 381). 

After careful review of the report submitted by Ms. Brust, the. Court concluded, 

by clear and convincing evidence, that the Appellant met the criteria set forth in the 

statute to be classified as a se..xually violent predator. In the report, sh~ discussed 

nearly all of the factors identified in the Megan's Law Statute and explained how the 

Appellant fit into each category. Ms. Brust was able diagnose the Appellant with · 

Pedophilic Disorder and that the offenses committed were motivated by the disorder. 

Further, Pedophilic Disorder will make the Appellant likely to reoffend. Given the 

evidence presented at the time of Sentencing, the Court did not err in designating the 

Appellant an SVP. 

victimization." Feucht at 381, citing 42 Pa.C.S.A. § 9792. The offenses demonstrated 

planning and intent and showed a "definite progression over time and a sustained 

interest in this child. He even bought a sex 'toy' for her and forced her to use it inside 

her anus and vagina at the same time:" Exhibit C-1 at 10. Further, he used grooming 

techniques to intimidate her and ensure secrecy. Id. In Ms. Brust's opinion, the 

Appellant would not have stopped his offending behavior had the offenses not come to 

light. 
' 

v: 

25 

KeliyL.Bach, J, 

By the Court: 

~f:ru.@M 

dismiss the instant Appeal. 

For all of the foregoing reasons, the Court would urge the Superior Court to 

CONCLUSION