J-S15045-15

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

NATHANIEL GARFIELD

Appellant No. 1105 MDA 2014

Appeal from the Judgment of Sentence May 30, 2014

In the Court of Common Pleas of Dauphin County

Criminal Division at No(s): CP-22-CR-0000763-2013

BEFORE: LAZARUS, J., WECHT, J., and JENKINS, J.

MEMORANDUM BY JENKINS, J.: FILED MARCH 23, 2015

Appellant Nathaniel Garfield appeals from the judgment of sentence 

entered in the Dauphin County Court of Common Pleas following his jury trial 

convictions for statutory sexual assault, involuntary deviate sexual 

intercourse, aggravated indecent assault, indecent assault, unlawful contact 

with a minor, and corruption of minors.1 Appellant also challenges the trial 

court’s decision to designate him as a sexually violent predator (“SVP”). 

After careful review, we affirm in part, vacate in part, and remand for resentencing.

The trial court sets forth the relevant facts and procedural history of 

this appeal as follows:

____________________________________________

1 18 Pa.C.S. §§ 3122.1(a)(2), 3123(a)(7), 3125(a)(8), 3126(a)(8), 

6318(a)(1), and 6301(a)(1)(ii), respectively.
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On December 5, 2012, [Appellant] was arrested and 

charged with eleven (11) criminal offenses based on 

allegations of improper sexual activity committed upon a 

minor child. After the preliminary hearing, the following 

charges were bound over for court: Count 1 – statutory 

sexual assault: 8-11 years of age, count 2 – involuntary 

deviate sexual intercourse – person less than 16 years of 

age, Count 3 – aggravated indecent assault, Count 4 –

indecent assault of person less than 16 years of age, count 

5 – unlawful contact with a minor, count 6 – corruption of 

minors – defendant age 18 or above.

A jury trial was held on January 14-16, 2014, at which 

time Appellant was found guilty on all counts. This court 

ordered that an assessment be completed by the Sexual 

Offenders Assessment Board [(“SOAB”)] prior to 

sentencing. A pre-sentence investigation report was also 

prepared. On March 27, 2014, the Commonwealth filed a 

praecipe providing notice of its intent to have [Appellant] 

classified as [an SVP] pursuant to 42 Pa.C.S. § 9795.4. An 

SVP hearing was held on May 30, 2014, to determine the 

issue of Appellant’s classification and for imposition of 

sentence. Appellant was sentenced as follows:

Count 1 – incarceration in a state correctional 

institution for a term of not less than 21 months nor 

more than 42 months, a fine of $500 and payment of 

the costs of prosecution;

Count 2 – incarceration in a state correctional 

institution for a term of not less than 120 months 

nor more than 240 months, a fine of $1000 and 

payment of the costs of prosecution running 

concurrent with Count 1;

Count 3 – incarceration in a state correctional 

institution for a term of not less than 36 months nor 

more than 72 months, a fine of $500 and payment of 

the costs of prosecution running consecutive to 

Count 2;

Count 4 – incarceration in a state correctional 

institution for a term of not less than 12 months nor 
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more than 24 months, a fine of $100 and payment of 

the costs of prosecution running concurrent to Count 

1;

Count 5 – incarceration in a state correctional 

institution for a term of not less than 66 months nor

more than 132 months, a fine of $500 and payment 

of the costs of prosecution running concurrent to 

Count 2;

Count 6 – incarceration in a state correctional 

institution for a term of not less than 12 months nor 

more than 24 months, a fine of $100 and payment of 

the costs of prosecution running concurrent to Count 

2.

Applicable time credit was also granted.

Trial Court Opinion, filed December 3, 2014 (footnotes and unnecessary 

capitalization omitted).

On June 9, 2014, Appellant filed a post-sentence motion, which the 

court denied on June 11, 2014. On July 3, 2014, Appellant filed a notice of 

appeal. The court ordered Appellant to file a concise statement of errors 

complained of on appeal pursuant to Pa.R.A.P. 1925(b), and he timely 

complied.2

Appellant raises the following issues on appeal:

I. WHETHER THE TRIAL COURT ILLEGALLY SENTENCED 

APPELLANT TO A MANDATORY MINIMUM SENTENCE OF 

TEN (10) YEARS’ IMPRISONMENT FOR INDECENT ASSAULT 

____________________________________________

2 On July 21, 2014, Appellant filed a petition to extend the time to file a 

Pa.R.A.P. 1925(b) statement, which the court granted. Appellant filed his 

concise statement on September 3, 2014.
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OF A CHILD UNDER SIXTEEN YEARS PURSUANT TO 42 

[PA.C.S. §] 9718(A)(1) WHERE THE STATUTE AT ISSUE -

42 [PA.C.S. §] 9718 - IS UNCONSTITUTIONAL AS A 

WHOLE SINCE IT VIOLATES APPELLANT’S RIGHT TO A 

JURY TRIAL UNDER ARTICLE I, SECTION IX OF THE 

PENNSYLVANIA CONSTITUTION AND THE SIXTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION?[3]

II. WHETHER THE TRIAL COURT ERRED IN DENYING 

APPELLANT’S POST[-]SENTENCE MOTION WHERE THE 

JURY’S VERDICT WAS AGAINST THE WEIGHT OF THE 

EVIDENCE SO AS TO SHOCK ONE’S SENSE OF JUSTICE 

DUE TO THE VICTIM’S INCONSISTENT, CONTRADICTORY, 

AND UNRELIABLE TESTIMONY?

III. WHETHER THE TRIAL COURT ERRED IN DENYING 

APPELLANT’S POST[-]SENTENCE MOTION WHERE 

APPELLANT’S [SVP] DESIGNATION WAS AGAINST THE 

WEIGHT OF THE EVIDENCE SO AS TO SHOCK ONE’S 

SENSE OF JUSTICE WHERE DR. STEIN’S OPINION WAS 

MANIFESTLY UNREASONABLE AND CONSTITUTED A 

MISAPPLICATION OF THE LAW?

IV. WHETHER THE TRIAL COURT ERRED IN DENYING 

APPELLANT’S POST[-]SENTENCE MOTION WHERE 

APPELLANT’S SENTENCE WAS EXCESSIVE AND 

UNREASONABLE AND CONSTITUTES TOO SEVERE A 

PUNISHMENT IN LIGHT OF APPELLANT’S NON-VIOLENT 

CRIMINAL HISTORY AND LIMITED INTELLECTUAL ABILITY 

WITH POSSIBLE MENTAL HEALTH ISSUES THAT HAVE NOT 

BEEN PROPERLY ADDRESSED PRIOR TO HIS CURRENT 

INCARCERATION, AND WHERE THE PUNITIVE MEASURES 

INHERENT IN THE SENTENCING SCHEME COULD HAVE 

BEEN ACCOMPLISHED BY THE IMPOSITION OF A LESSER 

SENTENCE?

____________________________________________

3 Although Appellant did not properly raise this issue in this Pa.R.A.P. 

1925(b) statement, challenges to the legality of a sentence on direct appeal 

cannot be waived. See Commonwealth v. Hawkins, 45 A.3d 1123, 1130 

(Pa.Super.2012), appeal denied, 53 A.3d 756 (Pa.2012).
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Appellant’s Brief at 6-7.

In his first issue, Appellant argues his sentence under section 9718 is 

unconstitutional because it requires the court to impose a mandatory 

minimum sentence based upon proof by a preponderance of the evidence. 

Appellant requests this Court to remand this matter for resentencing without 

consideration of any mandatory minimum sentence. We agree.

Our standard of review regarding the imposition of a mandatory 

sentence is as follows: 

Generally, a challenge to the application of a mandatory 

minimum sentence is a non-waiveable challenge to the legality 

of the sentence. Issues relating to the legality of a sentence are 

questions of law, as are claims raising a court’s interpretation of 

a statute. Our standard of review over such questions is de 

novo and our scope of review is plenary. 

Hawkins, supra. at 1130.

The Sentencing Code provides, in relevant part:

§ 9718. Sentences for offenses against infant 

persons

(a) Mandatory sentence.--

(1) A person convicted of the following offenses when 

the victim is less than 16 years of age shall be 

sentenced to a mandatory term of imprisonment as 

follows:

18 Pa.C.S. § 2702(a)(1) and (4) (relating to aggravated 

assault)--not less than two years.

18 Pa.C.S. § 3121(a)(1), (2), (3), (4) and (5) (relating 

to rape)--not less than ten years.
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18 Pa.C.S. § 3123 (relating to involuntary deviate 

sexual intercourse)--not less than ten years.

18 Pa.C.S. § 3125(a)(1) through (6) (relating to 

aggravated indecent assault)--not less than five years.

* * *

(c) Proof at sentencing.--The provisions of this section 

shall not be an element of the crime, and notice of the 

provisions of this section to the defendant shall not be 

required prior to conviction, but reasonable notice of the 

Commonwealth’s intention to proceed under this section 

shall be provided after conviction and before sentencing. 

The applicability of this section shall be determined at 

sentencing. The court shall consider any evidence 

presented at trial and shall afford the Commonwealth and 

the defendant an opportunity to present any necessary 

additional evidence and shall determine, by a 

preponderance of the evidence, if this section is applicable.

42 Pa.C.S. § 9718.

In Alleyne v. United States, __ U.S. __, 133 S.Ct 2151, 186 L.Ed 2d 

341 (2013), the Supreme Court of the United States held that the Due 

Process Clause of the Federal Constitution requires each factor that 

increases a mandatory minimum sentence to be submitted to a jury and 

found beyond a reasonable doubt. Id., 133 S.Ct., at 2163. Based upon 

Alleyne, this Court stated in dicta in Commonwealth v. Watley, that 

sections 7508 and 9712.1 of the sentencing code are unconstitutional insofar 

as they permit a judge to automatically increase a defendant’s sentence 

based on a preponderance of the evidence standard for factors other than a 

prior conviction. Watley, 81 A.3d 108, 117 n. 4 (Pa.Super.2013) (en banc), 

appeal denied, 95 A.3d 277. 
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In Commonwealth v. Newman, following our dicta in Watley, we 

held that the preponderance of the evidence standard in section 9712.1(c) is 

unconstitutional under Alleyne. Newman, 99 A.3d 86 (Pa.Super.2014) (en 

banc). We then addressed whether it was possible to continue enforcing the 

remaining subsections of section 9712.1 after severing subsection (c). We 

held that section 9712.1, as a whole, was no longer workable, because 

subsection (c) was “essentially and inseparably connected” with the 

mandatory minimum sentencing provision in subsection (a). Id. at 101. We 

cited several trial court opinions on this subject, most notably the following 

analysis by the Montgomery County Court of Common Pleas:

While the Commonwealth clearly is correct that 

unconstitutional provisions of a statute may be severed in 

order to effectuate the legislature’s intent in enacting that 

statute, the undersigned believes that this simply is not 

possible in the instant situation, where the constitutional 

and unconstitutional provisions of the mandatory minimum 

statutes are inextricably interwoven. In order to effectuate 

the legislature’s intent for the imposition of mandatory 

minimum sentences, the Commonwealth would have us 

ignore the legislature’s clear intent: that the factors 

triggering such sentences be found by a judge and not a 

jury; that the defendant need not be informed of the 

applicability of the mandatory sentence prior to 

sentencing; and that the applicable standard be one of 

preponderance of the evidence. The undersigned believes 

it is for the legislature, and not this court, to make such 

determinations. Further, and crucially, rather than asking 

this court simply to ‘sever’ unconstitutional provisions 

within the statutes, the Commonwealth is essentially 

asking this court to rewrite them, by imposing different 

burdens of proof and notification than the legislature 

imposed. 
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Id. at 103 (citing Commonwealth v. Brockington, et al. (CCP 

Montgomery Cty., March 21, 2014)). Accordingly, we vacated the 

defendant’s judgment of sentence and remanded for re-sentencing “without 

consideration of any mandatory minimum sentence provided by section 

9712.1.” Id. at 103. 

More recently, and after the trial court issued its Pa.R.A.P. 1925(a) 

opinion in the present case, this Court specifically analyzed 42 Pa.C.S. § 

9718 in Commonwealth v. Wolfe, ___ A.3d ___ (Pa.Super., Dec. 24, 

2014). We recognized that section 9718 contained the same format as 

section 9712.1, the statute struck down as unconstitutional in Newman. 

Id. at *5. We therefore determined that section 9718 was unconstitutional, 

vacated the judgment of sentence, and remanded the case for re-sentencing 

without application of the section 9718 mandatory minimum. Id. at *6. 

Pursuant to Wolfe, because the trial court sentenced Appellant under the 

unconstitutional provision of section 9718, we must vacate Appellant’s 

judgment of sentence and remand for re-sentencing without application of 

section 9718.4

In his second issue, Appellant argues the jury’s verdict was against the 

weight of the evidence. He claims the victim made inconsistent, 

____________________________________________

4 Our determination of this issue moots Appellant’s fourth claim concerning 

the discretionary aspects of his sentence. Therefore, we will not address this 

claim.
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contradictory and unreliable accusations, first by writing to her mother that 

Appellant only engaged in anal, not vaginal, sex with her during the first 

incident, and then by telling the Children’s Resource Center that Appellant 

had engaged in vaginal, not anal, sex with her during the same incident. 

Appellant avers the discrepancies in the victim’s allegations rendered her 

testimony so incredible that the verdict was contrary to the evidence such 

that it would shock one’s sense of justice. We disagree.

We review challenges to the weight of the evidence as follows:

The weight of the evidence is exclusively for the finder 

of fact who is free to believe all, part, or none of the 

evidence and to determine the credibility of the 

witnesses. An appellate court cannot substitute its 

judgment for that of the finder of fact. Thus, we may 

only reverse the...verdict if it is so contrary to the 

evidence as to shock one's sense of justice. 

Commonwealth v. Small, 741 A.2d 666, 672–73 

(Pa.1999) [cert. denied, 121 S.Ct. 80, 148 L.Ed.2d 42 

(U.S.2000)]. Moreover, where the trial court has ruled on 

the weight claim below, an appellate court’s role is not to 

consider the underlying question of whether the verdict is 

against the weight of the evidence. Rather, appellate 

review is limited to whether the trial court palpably abused 

its discretion in ruling on the weight claim. 

Commonwealth v. Devine, 26 A.3d 1139, 1146 (Pa.Super. 2011), appeal 

denied, 42 A.3d 1059 (Pa.2012) (some internal citations omitted). 

“One of the least assailable reasons for granting or denying a new trial 

is the lower court’s conviction that the verdict was or was not against the 

weight of the evidence and that a new trial should be granted in the interest 

of justice.” Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa.2013). A 
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trial judge should not grant a new trial due to “a mere conflict in the 

testimony or because the judge on the same facts would have arrived at a 

different conclusion.” Id. Instead, the trial court must examine whether 

“‘notwithstanding all the facts, certain facts are so clearly of greater weight 

that to ignore them or to give them equal weight with all the facts is to deny 

justice.’” Id. Only where the jury verdict “is so contrary to the evidence as 

to shock one’s sense of justice” should a trial court afford a defendant a new 

trial. Id. A weight of the evidence claim concedes that the Commonwealth 

introduced sufficient evidence. Commonwealth v. Charlton, 902 A.2d 

554, 561 (Pa.Super.2006), appeal denied, 911 A.2d 933 (Pa.2006).

Here, the jury had the opportunity to assess the credibility of the 

witnesses and consider all of the evidence. The jury heard testimony from 

the victim, her mother, and a Children and Youth caseworker who worked on 

the victim’s case. Appellant had ample opportunity to cross-examine the 

child victim, and exercised his right to do so. See N.T., 1/14/14, pp. 97-

118. Following consideration of all the evidence, the jury found Appellant 

guilty on all counts. The verdict was not so contrary to the evidence as to 

shock one’s sense of justice. The trial court properly exercised its discretion 

in denying Appellant’s challenge to the weight of the evidence. See Devine, 

supra. 

In his third issue, Appellant argues his SVP designation was against 

the weight of the evidence. He complains the trial court should not have 
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believed Dr. Robert Stein, the licensed psychologist from the SOAB who 

opined Appellant was an SVP. Appellant avers Dr. Stein had no research to 

support his diagnosis and even admitted that Appellant’s prior criminal 

record did not specifically increase his risk of recidivism. He complains Dr. 

Stein’s diagnosis of other specified paraphilic disorder non-consent did not 

apply to Appellant, because this designation is reserved for those whose 

sexual satisfaction is derived from the victim’s screaming, fighting, and 

resisting. Appellant suggests the trial court should have believed Appellant’s 

expert, Dr. Timothy Foley, who testified that Appellant had a low risk of 

reoffending. We disagree. 

In Commonwealth v. Prendes, this Court observed:

“To deem an individual [an SVP], the Commonwealth must 

first show [the individual] ‘has been convicted of a sexually 

violent offense as set forth in [section 9799.14]....’” 

Commonwealth v. Askew, 907 A.2d 624, 629 

(Pa.Super.2006), appeal denied, 919 A.2d 954 (Pa.2007). 

See also 42 [Pa.C.S.] § 9799.12. “Secondly, the 

Commonwealth must show that the individual has ‘a 

mental abnormality or personality disorder that makes 

[him] likely to engage in predatory sexually violent 

offenses.’” Askew, supra. When the Commonwealth 

meets this burden, the trial court then makes the final 

determination on the defendant’s status as an SVP. 

Commonwealth v. Kopicz, 840 A.2d 342, 351 

(Pa.Super.2003).

An SVP assessment is not a trial or a separate criminal 

proceeding that subjects the defendant to additional 

punishment. Commonwealth v. Howe, 842 A.2d 436, 

445–46 (Pa.Super.2004). SVP status, therefore, does not 

require proof beyond a reasonable doubt; the court 

decides SVP status upon a show of clear and convincing 

evidence that the offender is, in fact, an SVP. 
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Commonwealth v. Killinger, 888 A.2d 592, 600 

([Pa.]2005). 

* * *

Pa.R.E. 702 states that an expert may testify in the form 

of an “opinion or otherwise.” Much of the literature 

assumes that experts testify only in the form of an opinion. 

The language “or otherwise” reflects the fact that experts 

frequently are called upon to educate the trier of fact 

about the scientific or technical principles relevant to the 

case.

* * *

“With regard to the various assessment factors..., there is 

no statutory requirement that all of them or any particular 

number of them be present or absent in order to support 

an SVP designation. 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), appeal denied, 21 A.3d 

1189 ([Pa.]2011). Thus, “[t]he Commonwealth does not 

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

a particular case.” Id. Moreover, “the absence of an 

interview does not preclude the ability to evaluate the 

offender’s behavior through available history for 

characteristics similar or dissimilar to the criteria set forth 

in the law for defining a sexually violent predator.” 

Commonwealth v. Woods, 909 A.2d 372, 381 

(Pa.Super.2006), appeal denied, 919 A.2d 957 

([Pa.]2007). Likewise, “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...” Commonwealth v. Conklin, 897 A.2d 

1168, 1178 ([Pa.]2006). Additionally, the statute requires 

all state, county, and local agencies, offices or entities to 

provide copies of records and information as requested by 

the SOAB in connection with an SVP assessment. 42 

[Pa.C.S.] § 9799.24(c). Importantly, the primary purpose 

of the registration requirements is to help ensure the 

safety of the public, not to punish the offender. 

Commonwealth v. Carter, 821 A.2d 601, 606 

(Pa.Super.2003) (holding SOAB expert can review 
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confidential psychiatric examinations performed when 

defendant was juvenile to make SVP assessment).

Prendes, 97 A.3d 337, 358-59 (Pa.Super.2014), appeal denied, 105 A.3d 

736 (Pa.2014).

Instantly, Appellant stipulated that Dr. Stein, a licensed psychologist 

working with the SOAB, was qualified to testify as an expert in the 

assessment of sexual offenders. N.T., 8/14/14, at 5. Dr. Stein testified that 

he reviewed each of the fifteen statutory factors, diagnosed Appellant with 

paraphilic disorder non-consent and opined that Appellant should be 

classified as an SVP. Id. at 8-12, 13, 22.

Because Appellant challenges the weight and not the sufficiency of the 

evidence, he concedes that sufficient evidence supports the trial court’s 

finding that Appellant is an SVP. See Charlton, supra. The trial court had 

the opportunity to hear Dr. Stein’s testimony along with the testimony of 

Appellant’s expert, Dr. Foley. After reviewing the evidence, the court 

determined that Appellant was an SVP. The determination was not so 

contrary to the evidence as to shock one’s sense of justice. The trial court 

properly exercised its discretion in denying Appellant’s challenge to the 

weight of the evidence on this claim. See Devine, supra. 

In summary, we conclude that Appellant’s weight of the evidence 

claims as to the verdict and his SVP classification lack merit. However, 

because we have determined that section 9718 is unconstitutional, we must 
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vacate Appellant’s judgment of sentence and remand for re-sentencing 

without application of section 9718.

Convictions and SVP classification affirmed. Judgment of sentence 

vacated. Case remanded for resentencing. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/23/2015