Com. v. Kendall, T.

• Court: Superior Court of Pennsylvania
• Decided: April 26, 2024
• Docket: 694 MDA 2023
• Status: Unpublished

Opinion

J-A07030-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : TODD ALAN KENDALL : : Appellant : No. 694 MDA 2023

Appeal from the Judgment of Sentence Entered March 31, 2023 In the Court of Common Pleas of Wyoming County Criminal Division at No(s): CP-66-CR-0000267-2021

BEFORE: STABILE, J., SULLIVAN, J., and STEVENS, P.J.E.*

MEMORANDUM BY SULLIVAN, J.: FILED: APRIL 26, 2024

Todd Alan Kendall (“Kendall”) appeals from his judgment of sentence

for aggravated indecent assault without consent,1 and his designation as a

Sexually Violent Predator (“SVP”). We affirm.

In 2021, Kendall was arrested and charged with repeatedly raping and

sexually abusing his girlfriend’s daughter, C.B., when she was between five

and ten years old. In September 2022, Kendall entered an open guilty plea

to the offense listed above.2 In his plea, Kendall admitted he lived with C.B’s

mother and C.B., C.B. called him “Dad,” and on one occasion when C.B. was

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* Former Justice specially assigned to the Superior Court.

1 See 18 Pa.C.S.A. § 3125(a)(1).

2 The court nol prossed seven other charges related to Kendall’s sexual abuse

of C.B. See N.T., 9/19/22, at 5-7, 32. J-A07030-24

between five and ten years old, he had non-consensual sexual intercourse

with her. See id. at 32-33. The court ordered the Sexual Offenders

Assessment Board (“SOAB”) to determine if Kendall met the criteria of an SVP.

See id. at 22.

In February 2023, the court convened an SVP, and sentencing, hearing.

Paula Brust (“Brust”), an SOAB evaluator who had conducted more than 1,500

SVP evaluations, testified as an SVP-classification expert. See N.T., 2/13/23,

at 6-12. Brust testified the materials she reviewed in her assessment

established that over a period of years Kendall touched C.B.’s breasts, put his

penis in her mouth and vagina, and showed her pornography. See id. at 17.

Those materials also reported Kendall sexually assaulted his sisters when they

were between seven and nine years old and further in 2001, faced an

accusation of sexually assaulting a child. See id. at 18. Brust testified she

had reviewed the factors relevant to an SVP assessment, including Kendall’s

volunteered statement he failed a polygraph test concerning the 2001 sexual

assault, and his admissions to touching C.B.’s breasts and bribing her to allow

him to assault her. See id. at 21-22, 24-25. Brust found Kendall met the

criteria of an SVP. See id. at 25-28. Kendall stated he wanted to be

interviewed as part of the SVP determination. The court continued the

hearing. See id. at 45.

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The hearing resumed in March. Brust testified she attended a Zoom

interview with Kendall and his attorney at which Kendall denied the abuse and

blamed the victim’s older sister for the charges. See id. at 8-9. Kendall

claimed he pleaded guilty because he ran out of money. See id. at 9-10.

Brust considered Kendall’s interview and re-determined Kendall met the SVP

criteria. See id. at 11-12. Based on the unrefuted evidence and Brust’s

report, the court found Kendall to be an SVP. See id. at 20.

The parties acknowledged that Kendall’s offense had an offense gravity

score of “12,” he had no prior convictions, and the standard guidelines

sentence called for forty-eight to sixty-six months’ imprisonment. See id. at

33. In Kendall’s allocution, he claimed the lack of money, not guilt, induced

his plea. See id. at 35. The court conducted a colloquy and determined

Kendall still wished to plead guilty. See id. at 37. After hearing C.B.’s and

her sister’s victim impact statements, see id. at 44-53, the court imposed an

aggravated-range sentence of seventy-eight to two-hundred-and-forty

months’ imprisonment followed by three years’ consecutive probation. See

id. at 54-57.3 The court explained it imposed an aggravated-range sentence

because Kendall violated a duty of supervision and care to C.B., showed no

3 Although the maximum sentence for a first-degree felony is twenty years,

see 18 Pa.C.S.A. § 1103(1), a separate statute authorizes a consecutive probationary term following a mandatory term of imprisonment for certain sexual offenses. See 42 Pa.C.S.A. § 9718.5(a).

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remorse, abused C.B. for multiple years, and, as the post-sentence

investigation report (“PSI”) stated, told C.B. he would kill her if she revealed

the abuse. See id. at 56-57.

Kendall filed a petition for reconsideration of sentence, which the trial

court denied. Kendall timely appealed. Kendall and the trial court complied

with Pa.R.A.P. 1925.

Kendall submits the following issues for this Court’s review:

1. Did the lower court commit an error of law in its sentences because they were based upon insufficient evidence?

2. Did the lower court err and abuse its discretion in its imposition of an unreasonable and excessive sentence?

3. Did the lower court err and abuse its discretion by failing to consider or give appropriate weight to the circumstances of the offense, [Kendall’s] background, mitigating circumstances, and/or refusing to reduce the sentence imposed . . . and in finding [Kendall] to be a[n SVP]?

Kendall’s Brief at 4 (unnecessary capitalization corrected).

Kendall’s first two issues implicate the discretionary aspects of sentence.

Challenges to the discretionary aspects of sentencing do not entitle an

appellant to an appeal as of right. See Commonwealth v. Perzel, 291 A.3d

38, 46 (Pa. Super. 2023), appeal denied, 301 A.3d 426 (Pa. 2023). Before

reaching the merits of a discretionary sentencing issue:

[W]e conduct a four-part analysis to determine: (1) whether appellant has filed a timely notice of appeal[;] (2) whether the issue was properly preserved at sentencing or in a motion to reconsider and modify sentence[;] (3) whether appellant’s brief has a fatal defect[;] and (4) whether there is a substantial

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question that the sentence appealed from is not appropriate under the Sentencing Code[.]

Id. (internal citation omitted). As this Court has explained,

an appellant must set forth in his brief a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of a sentence. [Additionally], the appellant must show that there is a substantial question that the sentence imposed is not appropriate under the Sentencing Code. That is, the sentence violates either a specific provision of the sentencing scheme set forth in the Sentencing Code or a particular fundamental norm underlying the sentencing process. We examine an appellant’s [Pa.R.A.P.] 2119(f) statement to determine whether a substantial question exists. Our inquiry must focus on the reasons for which the appeal is sought, in contrast to the facts underlying the appeal, which are necessary only to decide the appeal on the merits.

Commonwealth v. Christman, 225 A.3d 1104, 1107 (Pa. Super. 2019)

(internal citation omitted; emphases in original).

Regarding a Rule 2119(f) statement setting forth the basis for the grant

of review of a discretionary sentence claim, this Court has stated:

[T]he Rule 2119(f) statement must specify where the sentence falls in relation to the sentencing guidelines and what particular provision of the Code is violated (e.g., the sentence is outside the guidelines and the court did not offer any reasons either on the record or in writing, or double-counted factors already considered). Similarly, the Rule 2119(f) statement must specify what fundamental norm the sentence violates and the manner in which it violates that norm (e.g., the sentence is unreasonable or the result of prejudice because it is 500 percent greater than the extreme end of the aggravated range).

Commonwealth v. Clary, 226 A.3d 571, 580 (Pa. Super. 2020) (internal

citation omitted). “We cannot look beyond the statement of questions

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presented and the prefatory Rule 2119(f) statement to determine

whether a substantial question exists.” Commonwealth v. Crawford,

257 A.3d 75, 78–79 (Pa. Super. 2021) (internal citation and quotations

omitted, emphasis added).

Kendall’s 2119(f) statement failed to meet the Crawford requirements.

Kendall did not state where his sentence falls in the guidelines or specify what

fundamental norm his sentence violated. Kendall simply recited the four

criteria to obtain review of a discretionary sentencing claim and claimed he

met those criteria; he provided no assertion that he set forth a substantial

question. See Kendall’s Brief at 7-8. Kendall thus did not raise a substantial

question permitting review of a discretionary sentence claim. See Clary, 226

A.3d at 580; accord Commonwealth v. Faison, 297 A.3d 810, 836 (Pa.

Super. 2023) (concluding the appellant failed to raise a substantial question

where he did not “specify what factors in particular the [sentencing] court

ignored, or why his circumstances justified the imposition of a concurrent

sentence”).4 This Court will not accept a bald statement of sentencing errors

4 Additionally, Kendall’s 2119(f) statement does not include the claims he asserts in his argument: that the trial court failed to weigh mitigating circumstances or did not adequately support the imposition of an aggravated- range sentence.

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as a sufficient demonstration of a substantial question. See Faison, 297 A.3d

at 835. Kendall’s first two claims are, accordingly, unreviewable.5

Kendall’s final issue challenges the sufficiency of the evidence regarding

the trial court’s SVP determination.

Challenges to the sufficiency of the evidence present questions of law,

and the standard of review is de novo, and the scope of review plenary. See

Commonwealth v. Meals, 912 A.2d 213, 218 (Pa. 2006); Commonwealth

v. Aumick, 297 A.3d 770, 776 (Pa. Super. 2023) (en banc). This Court must

review an undiminished record without regard to the admissibility of the

evidence. See Commonwealth v. Sanford, 863 A.2d 428, 432 (Pa. 2004).

Moreover, in reviewing the sufficiency of the evidence, this Court does not

question or reweigh the evidence. See Meals, 912 A.2d at 222-23. Rather,

our review is limited to whether the record, when viewed in a light favorable

to the Commonwealth, establishes clear and convincing evidence to sustain

5 Even were the claims reviewable, they would be meritless. The court explained its reasons for its aggravated-range sentence, including Kendall’s years-long abuse of a girl with whom he stood in a position of trust, his lack of remorse, and his threat to kill her. To the extent Kendall asserts his sentence was inconsistent with the protection of the public, his rehabilitative needs, his pre-crime conduct and life, his “past history of good conduct . . . and . . . no indication of recurrence,” see Kendall’s Brief at 11, 18, as addressed below with regard to Kendall’s SVP challenge, the court was aware of allegations Kendall had sexually abused his sisters as a child, and had been accused of sexually abusing another girl, evidence contradicting Kendall’s assertion of his prior good conduct and “no indication of recurrence.” See Kendall’s Brief at 12.

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the trial court’s finding that an individual meets the statutory definition of an

SVP. See id.

The dispositive issue in an SVP determination is whether the individual

convicted of a sexually violent offense has a mental abnormality or personality

disorder that makes him likely to engage in predatory sexually violent

offenses. See 42 Pa.C.S.A. § 9799.12; accord Commonwealth v. Feucht,

955 A.2d 377, 381 (Pa. Super. 2008). Subchapter H of SORNA details the

procedures to determine whether an individual is an SVP. See 42 Pa.C.S.A.

§ 9799.24. Specifically, the trial court must order the SOAB to conduct an

assessment, after which the SOAB conducts an assessment and submits its

report to the district attorney. See 42 Pa.C.S.A. § 9799.24(a), (d). The

Commonwealth may then praecipe the trial court for an SVP hearing and serve

copies of the praecipe and the SOAB report to the defense. See 42 Pa.C.S.A.

§ 9799.24(e)(1).

An assessment shall include, but not be limited to, an examination of

the following:

(1) Facts of the current offense, including:

(i) Whether the offense involved multiple victims. (ii) Whether the individual exceeded the means necessary to achieve the offense. (iii) The nature of the sexual contact with the victim. (iv) Relationship of the individual to the victim. (v) Age of the victim.

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(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) A 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 re-offense.

§ 9799.24(b)(1)-(4); Aumick, 297 A.3d at 777-78.

A SOAB expert opinion falls within the general rules regarding expert

witnesses. See id. at 778. In this regard, Pa.R.E. 702 provides:

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge is beyond that possessed by the average layperson; (b) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; and

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(c) the expert’s methodology is generally accepted in the relevant field.

Pa.R.E. 702.

Rule 703 identifies the facts and data upon which an expert may base

his or her opinion:

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted.

Pa.R.E. 703. An expert may consider the affidavit of probable cause, the

criminal information, the criminal complaint, the preliminary hearing

transcript, and the investigative report Child Protective Services prepared.

See Aumick, 297 A.3d at 781. “If the expert states an opinion, the expert

must state the facts or data on which the opinion is based.” Pa.R.E. 705; see

also Pa.R.E. 705 Cmt. (explaining that otherwise inadmissible facts and data

supporting an expert opinion are considered only to explain basis for expert’s

opinion, not as substantive evidence).

The trial court’s inquiry at an SVP hearing differs from the SOAB’s

task. The SOAB evaluator must consider the factors listed in section

9799.24(b). The trial court must determine whether the Commonwealth has

proven by clear and convincing evidence that the defendant is an individual

who has “a mental abnormality or personality disorder that makes the

individual likely to engage in predatory sexually violent offenses.” 42 Pa.C.S.A.

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§ 9799.12 (providing the definition of a “sexually violent predator”); see also

Commonwealth v. Butler, 226 A.3d 972, 992 (Pa. 2020) (stating, an SVP,

in addition to having been convicted of a sexually violent offense, is a person

“who [has] been individually determined to suffer from a mental abnormality

or personality disorder such that they are highly likely to continue to commit

sexually violent offenses”).

Kendall claims the court erroneously applied subchapter I of SORNA and

erred by imposing consequences based on “mental abnormality,” a phrase he

asserts is unconstitutionally vague. Kendall also asserts the evidence did not

show a mental abnormality, the SOAB assessor did not speak to him before

making her original SVP assessment, C.B. did not suffer physical injury, the

assessor considered charges later dismissed, and Kendall did not timely

receive the SOAB report and if he had he would have provided evidence

countering the SVP finding. See Kendall’s Brief at 17-27.6

Kendall provides no support for his assertion that the court applied

subchapter I of SORNA. The record shows the court applied subchapter H.

See N.T. 3/31/23, at 22. Kendall also fails to provide support for the

allegation that the phrase “mental abnormality” is unconstitutionally vague.

This Court has rejected a vagueness claim used in Megan’s Law, a prior statute

6 The trial court did not address this claim in its opinion.

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using the identical phrase as a criterion of an SVP determination. See

Commonwealth v. Howe, 842 A.2d 436, 444-45 (Pa. Super. 2004).

Kendall’s other challenges largely question the weight the SOAB

examiner accorded to various items of evidence. We cannot reweigh the

evidence. See Aumick, 297 A.3d at 783. Moreover, the SOAB assessor

attended Kendall’s interview before reaffirming her conclusion Kendall is an

SVP. Kendall does not articulate what evidence he allegedly would have

provided that would have defeated the sufficiency of the SOAB assessor’s

finding. Given the allegations that he had committed prior sexual abuse of

children, allegations the SOAB was permitted to consider, see Aumick, 297

A.3d at 781, and the details of Kendall’s abuse of C.B., the trial court did not

err in its SVP determination.

Judgment of sentence affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 4/26/2024

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