J-S70014-14
2015 PA Super 90
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LAFONCE LEATHERBY
Appellant No. 510 EDA 2014
Appeal from the Judgment of Sentence March 8, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0002263-2011,
CP-51-CR-0003522-2011, CP-51-CR-0003524-2011
BEFORE: LAZARUS, J., MUNDY, J., and STRASSBURGER, J.*
OPINION BY LAZARUS, J.: FILED APRIL 21, 2015
Lafonce Leatherby appeals from the judgment of sentence imposed by
the Court of Common Pleas of Philadelphia County, after a jury found him
guilty of three counts each of unlawful contact with a minor1, endangering
the welfare of a child2 and corruption of the morals of a minor3, as well as
two counts of indecent assault.4 These charges stemmed from Leatherby’s
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*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S. § 6318(a)(1).
2
18 Pa.C.S. § 4304(a).
3
18 Pa.C.S. § 6301(a)(1).
4
18 Pa.C.S. § 3126(a)(7).
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sexual abuse, over the course of several years, of his wife’s three young
daughters, aged 9 to 14. Upon careful review, we affirm in part and vacate
in part.
The lower court recounted the procedural history of the case as
follows:
Leatherby was arrested on December 8, 2010, and charged with
unlawful contact with a minor, endangering the welfare of
children, indecent assault on a person less than thirteen (13)
years of age, corruption of minors, simple assault, recklessly
endangering another person (“REAP”), and aggravated assault.
The aggravated assault charge was disposed of in the Municipal
Court.
On October 4, 2012, Leatherby’s oral motion to preclude the
Commonwealth from introducing complainant’s handwritten
letter was heard, and subsequently denied. This case then
proceeded to trial by jury on the charges of unlawful contact
with a minor, endangering the welfare of children, indecent
assault of a person less than thirteen (13) years of age, and
corruption of minors. The charges of simple assault and REAP
were nolle prossed.
On October 11, 2012, the jury convicted Leatherby of every
charge except that of Indecent Assault with regard to M.S., on
which he was found not guilty. Sentencing was deferred to
March 5, 2013, pending a Pre-Sentence Investigation Report
(“PSI”) and both mental health and Megan’s Law evaluations.
This [c]ourt bifurcated the sentencing hearing on March 5 and
March 8, 2013, whereupon this [c]ourt made a finding that
Leatherby was a Sexually Violent Predator (“SVP”), requiring
Megan’s Law mandated life-long registration. This [c]ourt
sentenced Leatherby to an aggregate of seven and one half (7½)
to fifteen (15) years of incarceration.
On March 15, 2013, Leatherby filed a pro-se Post-Sentence
Motion for Reconsideration of Sentence.
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On May 9, 2013, Attorney Jonathan Sobel entered his
appearance on Leatherby’s behalf.
On June 4, 2013, this Court ordered that the deadline for
Leatherby to file Post-Sentence Motions was July 31, 2013.
On July 31, 2013, Leatherby filed a Motion for Extension of Time,
which was granted on August 2, 2013.
On September 30, 2013, Leatherby filed a Post-Sentence Motion
for Reconsideration of Sentence, alleging that the verdicts were
against the sufficiency and weight of the evidence, that the
sentence was excessive, and that the sentences for indecent
assault and corruption of minors should have merged.
On January 17, 2014, Leatherby’s motion was denied.
Leatherby filed a notice of appeal with this Court on February 12,
2014, followed by a court-ordered Pa.R.A.P. 1925(b) statement.
The trial court filed its Rule 1925(a) opinion on March 13, 2014.
Trial Court Opinion, 3/13/14, at 2-3.
On appeal, Leatherby raises the following issues for our review:
1. Defendant challenges the jury verdict of guilty on the charges
of unlawful contact with a minor with respect to all three
complainants, M.S., F.G., and F.G. based upon the lack of
sufficiency of the evidence.
2. Defendant challenges the jury verdict of guilty on the charge
of endangering the welfare of a child (EWOC) with respect to all
three complainants, M.S., F.G., and F.G. based upon the lack of
sufficiency of the evidence.
3. Defendant challenges the jury verdict of guilty on the charge
of indecent assault with respect to two complainants, S.G. and
F.G. based upon the lack of sufficiency of the evidence.
4. Defendant challenges the jury verdict of guilty on the charge
of corruption of the morals of a minor (CMOM) with respect to all
three complainants, M.S., F.G., and F.G. based upon the lack of
sufficiency of the evidence.
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5. Defendant challenges the jury verdict on all charges tried in
this case, including unlawful contact with a minor, endangering
the welfare of a child, indecent assault, and corruption of the
morals of a minor based upon the weight of the evidence as to
all three complainants, M.S., F.G., and F.G.
6. The trial court abused its discretion by imposing such an
excessive sentence upon [d]efendant, Lafonce Leatherby. The
defendant is challenging the discretionary aspect of his
sentencing.
7. The trial court erred by failing to merge the conviction(s) for
indecent assault with respect to complainants, S.G. and F.G.
with the convictions for corruption of minors, because the
convictions were based on the same acts.
8. The trial court erred in classifying defendant, Lafonce
Leatherby as a sexually violent predator pursuant to 42 Pa.
C.S.A. § 9792.
Brief of Appellant, at 9-10.
Prior to addressing Leatherby’s appellate claims, we must consider the
Commonwealth’s assertion that Leatherby’s appeal should be dismissed
because it was not timely filed. See Brief of Appellee, at 11-13. In order to
perfect a timely appeal, a defendant must file a notice of appeal within 30
days of the imposition of his sentence, unless he files a timely post-sentence
motion within 10 days of sentencing, thereby tolling that 30-day window.
See Pa.R.A.P. § 903; Pa.R.Crim.P. § 720(a).
Here, Leatherby was sentenced on March 8, 2014. At the time of
sentencing, Leatherby’s counsel stated that Leatherby could no longer afford
his services, and requested that the trial court appoint new counsel. N.T.
Sentencing, 3/8/14, at 69-70. The transcript of that hearing reflects that
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Leatherby’s then-counsel, Pierre LaTour, III, Esquire, agreed to file a post-
sentence motion on Leatherby’s behalf within ten days of sentencing. The
record states,
MR. LATOUR: At this time, Mr. Leatherby, do you want myself
or your court appointed attorney to file the ten-day motion to
ask this judge to reconsider your sentence?
THE DEFENDANT: Yes.
Q: And in addition to that, you are also requesting that the
court-appointed attorney and I will perfect this appeal, file the
notice of appeal with the Superior Court.
A: Yes.
Q: Just so [we] are clear. Judge, with that on the record, again,
what I will do is perfect his post-sentencing appeal before
Your Honor and file that motion in Mr. Leatherby’s name.
But again, I would ask the court-appointed attorney to handle
that matter.
Id. at 70-71 (emphasis added).
Contrary to his promise at sentencing, Attorney LaTour never filed a
notice of appeal nor a post-sentence motion to toll the 30-day appeal period,
within the first ten days after the sentencing. Furthermore, the court did not
appoint new counsel until March 18, 2014, exactly 10 days from the
imposition of the sentence. In the interim, on March 15, 2014, Leatherby
filed a pro se post-sentence motion in order to protect his rights. The
Commonwealth contends that this pro se motion should be considered a
nullity because Leatherby was represented by counsel at the time of filing,
and such a filing would constitute improper hybrid representation. See
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Commonwealth v. Ali, 10 A.3d 282, 293 (pro se filing by a represented
defendant constitutes “legal nullity”).
Conversely, Leatherby contends that for the ten days following his
sentencing, he was unrepresented and, accordingly, he was required to
preserve his own rights. See Reply Brief of Appellant, at 2-3. We are
persuaded by his argument. It is clear from the sentencing transcripts that
there was, at a minimum, confusion as to who would file post-sentence
motions on Leatherby’s behalf and, indeed, trial counsel failed to file those
motions as promised. For its part, the trial court did not appoint new
counsel for Leatherby in time to preserve his post-sentence rights. Under
the particular circumstances of this case, in which Leatherby was effectively
abandoned by counsel and the trial court failed to timely appoint new
counsel, Leatherby’s pro se filing does not offend considerations of hybrid
representation.5 Leatherby should not be precluded from appellate review
based on what was, in effect, an administrative breakdown on the part of
the trial court. See Commonwealth v. Robinson, 781 A.2d 152, 158 (Pa.
Super. 2001), rev’d on other grounds at
837 A.2d 1157 (Pa. 2003)
(declining to quash untimely appeal where appellant was not at fault).
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5
Among the policy considerations behind the prohibition of hybrid
representation are the desire not to overwhelm an already overburdened
court system and the salutary effect of expert, focused appellate advocacy.
See Commonwealth v. Ellis,
626 A.2d 1137, 1140 (Pa. 1993). Neither of
these concerns are implicated in this case.
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Accordingly, we find that the time within which to file an appeal was tolled
by Leatherby’s pro se motion, and we will consider his appeal timely.6
Leatherby first challenges the sufficiency of the evidence. In reviewing
a challenge to the sufficiency of the evidence, we must determine whether,
viewing the evidence in the light most favorable to the Commonwealth as
verdict winner, together with all reasonable inferences therefrom, the trier of
fact could have found that each and every element of the crimes charged
was established beyond a reasonable doubt. Commonwealth v. Randall,
758 A.2d 669, 674 (Pa. Super. 2000).
Leatherby first challenges the sufficiency of the evidence to convict
him of unlawful contact with a minor. In Pennsylvania, “[a] person commits
an offense if he is intentionally in contact with a minor . . . for the purpose of
engaging in activity prohibited under . . . Chapter 31 (relating to sexual
offenses).” 18 Pa.C.S.A. § 6318(a)(1). This Court has previously elaborated
on the crime of unlawful contact, explaining, “[unlawful contact with a
minor] is best understood as unlawful communication with a minor.”
Commonwealth v. Rose, 960 A.2d 149, 152 (Pa. Super. 2008).
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6
To conclude otherwise would result in a miscarriage of justice. See
Chartiers Valley Industrial & Commercial Dev. Authority v. City of
Pittsburgh,
569 A.2d 405 (Pa. Cmmw. 1990) (where breakdown in court
processes interferes with post trial proceedings resulting in expiration of
period for appeal, justice requires appellate review of merits so as not to
unjustly penalize appellant for circumstances beyond its control).
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In Commonwealth v. Velez, 51 A.3d 260 (Pa. Super. 2012), this
Court addressed the type of communication or contact necessary to sustain
a conviction for unlawful contact. There, a woman found the defendant
molesting her daughter, who was “lying on the bed, nude from the waist
down, with her knees up and defendant’s head between her legs.”
Id. at
262. Because there was no evidence of verbal communication between the
defendant and the victim, defendant argued that he did not contact the
victim via a communicative message and that his physical touching of the
victim, by itself, was not the type of contact contemplated by the unlawful
contact statute. On review, this Court concluded that, despite the lack of
evidence of overt verbal communication, it was reasonable to infer that the
defendant communicated with the victim, either nonverbally or verbally, to
assume the position in which she was found by her mother.
Id.
Based on the foregoing standard and upon a review of the trial
transcript, we conclude that the Commonwealth did not present sufficient
evidence to support Leatherby’s conviction for unlawful contact as to victim
M.S. At trial, M.S. testified repeatedly that Leatherby engaged in a routine
pattern of abuse, whereby he would enter her room at night, while she was
sleeping, and grope her chest and buttocks.
Q: So when you woke up are you saying that Mr.
[Leatherby] already had his hand like on your breasts?
A: Yes.
Q: Is he saying anything?
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A: He’s not saying anything.
N.T. Trial, 10/4/12, at 56. Leatherby would not say anything, or
communicate with her to assume any certain position, or to submit to any
given act, as the Court found in Velez. M.S. described this pattern,
testifying:
Q: Always the same type of behavior where he would
come in, not say anything, kneel down near your bed, and
touch your breasts and touch your butt, right?
A: Yes.
Q: Wouldn’t touch anything else?
A: No.
Q: Wouldn’t say anything right?
A: No.
N.T. Trial, 10/4/12, at 59. As there was no evidence presented from which
the jury could have inferred that Leatherby engaged in the kind of
communication, either verbal or physical, contemplated in Velez, we find
that there was insufficient evidence to support a conviction of unlawful
contact as to M.S.
With regard to S.G. and F.G., however, we find that the evidence
presented by the Commonwealth was sufficient to sustain a conviction of
unlawful contact. At trial, F.G. testified to the following incident:
A: When I was nine I was living with [Leatherby] and one day he
asked me, well, he was in the bathroom, he told me to come
here and I came. He told me to give him a hug. So I gave him
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a hug and he started rubbing on me. And he started moaning
and all that and he was touching me inappropriately and
violating me. . . . And it was another time in the bathroom I had
a skirt on, a jean skirt, and it was like a little tight. And he told
me to give him a hug. He tried to pull my skirt up but it wasn’t
coming up. He was like how the hell you get this thing up. And
I had panties on. He started rubbing on my butt and on my
private areas and whatnot. He never went inside of it. He was
on top of it and rubbing it. He said do that feel good. I said, no,
it don’t feel good. Then he started laughing.
N.T. Trial, 10/5/12, at 134. This testimony demonstrates the kind of
communication contemplated by the statute. Leatherby directly engaged in
communication, both verbal and physical, with F.G. for the purposes of
sexual contact. As such, we find there was sufficient evidence presented to
sustain a conviction of unlawful contact as to F.G.
Lastly, we also find that there was sufficient evidence to sustain the
unlawful contact conviction with respect to S.G., who testified regarding the
following incident:
Q: Okay. Did you ever try to use the bathroom and see him in
there?
A: Yes. One night when I was going to take my shower the
bathroom didn’t have a door anymore because the door broke so
it was just a sheet there. So I had knocked on the side of the
door, well, the wall, to ask if anyone was in there. I didn’t hear
anybody say anything. So I assume if no one was in there so I
just went in and then I saw him and I came back out and I said
you didn’t say you were in here. And I went downstairs and I
told my mom.
Q: What made you tell your mom about that because it sounds
like it was just an accident right?
A: No. I felt like he wanted me to see him.
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Q: What did you see?
A: I just saw him there naked.
Q: Did you see his genitals at that time?
A: Yes.
N.T. Trial, 10/5/12, at 25-26.
From this testimony, the jury could infer that, by intentionally
remaining silent when S.G. knocked on the door, thus causing S.G. to walk
in on him while he was naked, Leatherby engaged in nonverbal
communication with S.G. for the purposes of sexual contact. As such, there
was sufficient evidence to support the conviction of unlawful contact with
respect to S.G.
Next, Leatherby challenges his conviction for endangering the welfare
of a child because he was unaware of his duty to protect the children. In
Pennsylvania, “[a] parent, guardian, or other person supervising the welfare
of a child under 18 years of age . . . commits an offense if he knowingly
endangers the welfare of the child by violating the duty of care, protection,
or support.” 18 Pa.C.S.A. § 4304(a). Leatherby argues that M.S. only lived
with him for approximately six months, and as such there was no clear duty
of care established. Brief of Appellant, at 17-18.
The facts do not support Leatherby’s contention. By the time
Leatherby moved in with Martha and her daughters in 2005, he had been
seeing Martha for two years, and they had conceived a son together. N.T.
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Trial, 10/5/12, at 52. Accordingly, the assertion that Leatherby had no
knowledge of his duty to care for or protect Martha’s children is simply not
plausible. Indeed, M.S. testified that, prior to the abuse, Leatherby had
been the only father figure she had ever known in her life. N.T. Trial,
10/4/12, at 37. S.G. and F.G. also called Leatherby “dad”. N.T. Trial,
10/5/12, at 186.
As this Court has stated, “[i]n an age when nontraditional living
arrangements are commonplace, it is hard to imagine that the common
sense of the community would serve to eliminate adult persons residing with
a non-custodial child from the scope of a statute protecting the physical and
moral welfare of children.” Commonwealth v. Brown, 721 A.2d 1105,
1107 (Pa. Super. 1998) (applying section 4304 to unrelated individual
residing with child). Accordingly, Leatherby’s claim as to the sufficiency of
the evidence regarding his convictions for endangering the welfare of a
minor is meritless.
Leatherby next challenges his convictions for indecent assault. The
crux of his claim is that the Commonwealth presented no evidence that his
actions were carried out in an effort to arouse sexual desire in either of the
minors. Brief of Appellant, at 23. This argument, however, misconstrues
the language of the statute, which provides that “a person is guilty of
indecent assault if the person has indecent contact with the complainant . . .
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for the purposes of arousing sexual desire in the person or the complainant.”
18 Pa.C.S.A. § 31269(a)(7) (emphasis added).
The evidence presented at trial demonstrates that Leatherby engaged
in a regular pattern of physical and sexual abuse of three minors for his own
sexual gratification. Contrary to Leatherby’s claim, there is no statutory
requirement that a defendant’s actions have the purpose of arousing sexual
desire in the victim. The plain language of the statute encompasses
Leatherby’s conduct and his claim therefore fails.
Leatherby also challenges his convictions for corruption of minors. His
brief, however, does not address, in any way, the sufficiency of the evidence
adduced against him on this charge. Instead, Leatherby argues that the trial
court improperly instructed the jury on this charge and, therefore, his
conviction should be overturned. As Leatherby has raised this issue in
neither his Rule 1925(b) statement nor his statement of questions
presented, this claim is waived. See Commonwealth v. Lord, 719 A.2d
306 (Pa. 1998) (issues not raised in Rule 1925 concise statement are
waived).
Even if the claim were not waived, it is meritless. Pennsylvania
defines the offense of corruption of minors as follows:
Whoever, being of the age of 18 years and upwards, by any
course of conduct in violation of Chapter 31 (relating to sexual
offenses) corrupts or tends to corrupt the morals of any minor
less than 18 years of age, or who aids, abets, entices or
encourages any such minor in the commission of an offense
under Chapter 31 commits a felony of the third degree.
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18 Pa.C.S.A. § 6301.
This Court has expounded on the definition of the corruption of minors,
holding, “[actions that] would offend the common sense of the community
and the sense of decency, propriety and morality, which most people
entertain,” are those which shall be considered corrupting a minor.
Commonwealth v. Pankraz, 554 A.2d 974, 977 (Pa. Super. 1989),
quoting Commonwealth v. Randall,
133 A.2d 276 (Pa. Super. 1957). It is
clear that the evidence adduced at trial, demonstrating extensive physical,
sexual, and emotional abuse by Leatherby, is sufficient to sustain his
convictions for corruption of a minor.
Leatherby next challenges the weight of the evidence.
Appellate review of a weight claim is a review of the exercise of
discretion, not of the underlying question of whether the verdict
is against the weight of the evidence. Because the trial judge
has had the opportunity to hear and see the evidence presented,
an appellate court will give the gravest consideration to the
findings and reasons advanced by the trial judge when reviewing
a trial court’s determination that the verdict is against the weight
of the evidence. One of the least assailable reasons for granting
or denying a new trial is the lower court’s conviction that the
verdict was or was not against the weight of the evidence and
that a new trial should be granted in the interest of justice.
Brown, 23 A.3d 544, 558 (Pa. Super. 2011) (citation omitted).
Here, the trial court found that M.S., F.G., S.G., Welch, and Martha
Leatherby all testified in a consistent manner, and that the jury placed more
weight on their testimony than the character evidence presented by
Leatherby’s daughter. Upon review of the record, we agree with the trial
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court that the jury was well within its right as the ultimate fact finder to
weigh the evidence in such a manner. Therefore, we can discern no abuse
of discretion on the part of the trial court in concluding that the verdict was
not against the weight of the evidence.
Next, Leatherby asserts that he received an excessive sentence, and
that the lower court failed to articulate the reasons for fashioning the
sentence in that manner. Brief of Appellant, at 31. This claim implicates the
discretionary aspects of Leatherby’s sentence, which are not appealable as
of right. Rather, an appellant challenging the sentencing court’s discretion
must invoke this Court’s jurisdiction by satisfying a four-part test.
Commonwealth v. Prisk, 13 A.3d 526 (Pa. Super. 2011).
We conduct a four-part analysis to determine: (1) whether
appellant has filed a timely notice of appeal, see Pa.R.A.P. 902
and 903; (2) whether the issue was properly preserved at
sentencing or in a motion to reconsider and modify sentence,
see Pa.R.Crim.P. 720; (3) whether appellant’s brief has a fatal
defect, Pa.R.A.P. 2119(f); and (4) whether there is a substantial
question that the sentence appealed from is not appropriate
under the Sentencing Code, 42 Pa.C.S.A. § 9781(b).
Id. at 532, citing Commonwealth v. Evans, 901 A.2d 528, 533 (Pa. Super.
2006). An appellate court will find a “substantial question” and review the
decision of the trial court only where an aggrieved party can articulate clear
reasons why the sentence imposed by the trial court compromises the
sentencing scheme as a whole. Commonwealth v. Tuladziecki,
522 A.2d
17 (Pa. 1987).
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Here, Leatherby has preserved his claim by filing a post-sentence
motion and including it in his Rule 1925(b) statement. His notice of appeal
was timely filed. Finally, Leatherby has included in his brief a statement
pursuant to Pa.R.A.P. 2119(f), in which he claims that the trial court
imposed an excessive sentence and failed to articulate its reasons for doing
so.
Here, each of Leatherby’s sentences was within or below the standard
range of the sentencing guidelines. “In every case where the court imposes
a sentence outside the sentencing guidelines . . . the court shall provide a
contemporaneous written statement of the reason or reasons for the
deviation from the guidelines. Failure to comply shall be grounds for
vacating the sentence and resentencing the defendant.” Commonwealth
v. Rodda, 723 A.2d 212, 215 (Pa. Super. 1999); 42 Pa.C.S. § 9721(b).
Thus, the trial court was not required to provide a statement of reasoning
and this claim does not raise a substantial question. Nevertheless, the lower
court did explain that it relied on the argument of counsel, the testimony of
Leatherby and his witnesses, his family background, the presentence report
and the mental health evaluation in fashioning Leatherby’s sentence. See
N.T. Sentencing, 3/8/13, at 63; Commonwealth v. Griffin,
65 A.3d 932,
937 (Pa. Super. 2013) (denying appeal of challenge to discretionary aspect
of sentencing where court relied on presentence report and imposed
sentences within the guidelines). Accordingly, this claim is meritless.
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Leatherby also claims that the court relied on impermissible factors in
arriving at its sentence. While this claim has been found to raise a
substantial question, Commonwealth v. Daniel, 30 A.3d 494 (Pa. Super.
2011), Leatherby fails to expand upon this claim in the argument section of
his brief. Accordingly, the claim is waived.
Finally, Leatherby claims that the trial court failed to consider the
requisite statutory factors prior to imposing sentence. While this claim
raises a substantial question, see Commonwealth v. Kelly, 33 A.3d 638
(Pa. Super. 2011), it garners Leatherby no relief. Here, the trial judge was
in possession of a presentence report, so we presume that she was aware of
relevant information regarding the defendant’s character and weighed those
considerations along with mitigating statutory factors. Commonwealth v.
Devers,
546 A.2d 12, 18 (Pa. 1988). “Having been fully informed by the
presentence report, the sentencing court’s discretion should not be
disturbed.”
Id.
Next, Leatherby contends that his sentences for indecent assault and
corruption of a minor should merge for purposes of sentencing, as they are
based on the same criminal act. Appellant’s Brief, at 36.
Section 9765 of the Sentencing Code states that “[n]o crimes shall
merge for sentencing purposes unless the crimes arise from a single criminal
act and all of the statutory elements of one offense are included in the
statutory elements of the other offense.” 42 Pa.C.S.A. § 9765.
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With respect to the crimes of indecent assault and corruption of
minors, this Court has stated as follows:
In order to be convicted of indecent assault, it must be shown
that the defendant had indecent contact with the victim. 18
Pa.C.S.A. § 3126(a)(7). An individual is guilty of corruption of
minors if the individual, inter alia, performs any act that corrupts
or tends to corrupt the morals of any child under the age of 18.
18 Pa.C.S.A. § 6301(a)(1). A corruption of minors charge,
therefore, encompasses any such act, “the consequences of
which transcends any specific sex act and is separately
punishable.” Commonwealth v. Hitchcock, 523 Pa. 248,
565
A.2d 1159, 1162 (1989).
Commonwealth v. Fisher,
787 A.2d 992, 995 (Pa. Super. 2001).
Accordingly, “by their statutory elements alone, the offense of corruption of
a minor is not necessarily a lesser-included offense of indecent assault.”
Id.
(punctuation omitted).
In Commonwealth v. Robinson, 931 A.2d 15 (Pa. Super. 2007) (en
banc), this Court held that the defendant was properly sentenced for both
indecent assault and corruption of minors where he had committed the
separate acts of touching the victim’s breasts and her vagina. Similarly,
here, Leatherby fondled the breasts and then rubbed the buttocks of S.G.
and F.G. Accordingly, under Robinson, Leatherby was properly sentenced
for both crimes.
Lastly, Leatherby seeks to challenge the trial court’s decision to
classify him as a sexually violent predator (“SVP”). Brief of Appellant, at 37.
Questions of evidentiary sufficiency present questions of law; thus,
“our standard of review is de novo and our scope of review is plenary.”
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Commonwealth v. Bishop, 936 A.2d 1136, 1141 (Pa. Super. 2007)
(citations omitted). In reviewing such a claim, we consider the evidence in
the light most favorable to the Commonwealth, which prevailed upon the
issue at trial.
Id.
An SVP is defined as:
A person who has been convicted of a sexually violent offense
set forth in Section 9795.1 (relating to registration) and who is
determined to be a sexually violent predator under 9795.4
(relating to assessments) due to a mental abnormality or
personality disorder that makes the person likely to engage in
predatory sexually violent offenses. In order to show that the
offender suffers from a mental abnormality or personality
disorder, the evidence must show that the defendant suffers
from a congenital or acquired condition . . . that affects the
emotional or volitional capacity of the person in a manner that
predisposes that person to the commission of criminal sexual
acts to a degree that makes the person a menace to the health
and safety of other persons. Moreover, there must be a showing
that the defendant’s conduct was predatory. Predatory conduct
is defined as an act directed at a stranger or at a person with
whom a relationship has been instituted, established,
maintained, or promoted, in whole or in part, in order to
facilitate or support victimization. Furthermore, in reaching a
determination, we must examine the driving force behind the
commission of these acts, as well as looking at the offender’s
propensity to re-offend, an opinion about which the
Commonwealth’s expert is required to opine. However, the risk
of re-offending is but one factor to be considered when making
an assessment; it is not an “independent element.”
At the SVP hearing, the Commonwealth has the burden of
proving by clear and convincing evidence that the person meets
the criteria to be designated as an SVP. This burden of proof
has been described as an intermediate test, falling below the
highest level of proof, beyond a reasonable doubt, but above the
preponderance of the evidence standard. Evidence will meet this
level of proof if it is so clear, direct, weighty, and convincing as
to enable the [trier of fact] to come to a clear conviction, without
hesitancy, of the truth of the precise facts at issue.
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Commonwealth v. Stephens, 74 A.3d 1034, 1038-39 (Pa. Super. 2013)
(citations and quotations omitted).
Leatherby’s SVP hearing took place on October 11, 2014, before the
Honorable Nina Wright Padilla. The court accepted the Commonwealth’s
witness, Dr. Barbara Ziv, as an expert in the field of assessment, treatment,
and management of sexual offenders. Doctor Ziv concluded the following:
(1) Leatherby suffers from paraphilia not otherwise specified, based on his
abuse of his three young stepdaughters over the course of several years; (2)
Leatherby suffers from a personality disorder not otherwise specified with
antisocial traits, based on his extensive criminal history, use of aliases, the
five protection from abuse orders filed against him, history of drug abuse,
and assault convictions, as evidence of impulsivity, dishonesty,
aggressiveness, irresponsibility, and lack of remorse; (3) either of those
diagnoses on their own could support a finding that Leatherby is likely to
reoffend; (4) Leatherby maintained or promoted a relationship with his
victims, in part, for the purpose of sexual victimization.; (5) Leatherby had
already demonstrated a propensity for recidivism based on his continued
abuse of F.G. and S.G. after M.S. had left the house to live with her aunt.
N.T. SVP Hearing, 3/5/13, at 18-21; 23-35.
Leatherby challenges these conclusions, arguing that Dr. Ziv “failed to
draw any connection between [Leatherby’s] criminal act and the likelihood
that he will commit another sex offense.” Brief of Appellant, at 43.
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J-S70014-14
Essentially, Leatherby argues that because he did not have a prior history of
sexual offenses, Dr. Ziv’s conclusion that he is likely to commit sexual
offenses in the future is wrong. We disagree.
As the trial court recognized, in reaching her conclusions, Dr. Ziv
examined a wide swath of Leatherby’s past and current behavior, ranging
from the time he was 15 years of age up to the present. Particularly
compelling is Dr. Ziv’s finding that Leatherby had already demonstrated a
propensity to reoffend by beginning to abuse F.G. and S.G. after M.S.
removed herself from the home. Considering these facts, and the whole of
Dr. Ziv’s conclusions, in the light most favorable to the Commonwealth, we
agree that the Commonwealth met its burden of proving by clear and
convincing evidence that Leatherby meets the criteria to be classified as an
SVP.
Judgment of sentence affirmed in part and vacated in part. Case
remanded for resentencing in accordance with the dictates of this opinion.
Judge Strassburger joins the Opinion.
Judge Mundy files a Dissenting Opinion.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2015
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