J-A35034-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : JEFFREY SCOTT PINCHOCK, : : Appellant : No. 135 WDA 2015
Appeal from the Judgment of Sentence December 18, 2014 in the Court of Common Pleas of McKean County, Criminal Division, No. CP-42-CR-0000225-2013
BEFORE: BENDER, P.J.E., SHOGAN and MUSMANNO, JJ.
MEMORANDUM BY MUSMANNO, J.: FILED JANUARY 19, 2016
Jeffrey Scott Pinchock (“Pinchock”) appeals from the judgment of
sentence imposed after a jury convicted him of indecent assault and
corruption of minors.1 We affirm.
The female victim, W.R., met Pinchock in 2012, when she was fifteen
years old. N.T. (trial), 12/9/13, at 6-7. At that time, Pinchock was thirty-
nine years old. Id. at 7. Pinchock resided in the victim’s home with her
mother and her mother’s female romantic partner, Kristin Smithmyer
(“Smithmyer”). Id. Smithmyer had known Pinchock for several years, and
she let him stay in one of the rooms of her house. Id. at 61.
The victim testified that she and Pinchock were friends, and he would
oftentimes take her fishing, drive her to different places, and smoke
1 18 Pa.C.S.A. §§ 3126(a)(1), 6301(a)(1)(i). Pinchock’s conviction of indecent assault was graded as a second-degree misdemeanor. Accordingly, we will hereinafter refer to this offense as indecent assault – M2. Pinchock’s corruption of minors conviction was graded as a first-degree misdemeanor. J-A35034-15
marijuana with her, which he supplied. Id. at 7-11. Pinchock would also
buy the victim items such as soda and ice cream. Id. at 10. At some point,
Pinchock began saying to the victim that she “owed” him sex in return for all
of the things that he did for her. Id. at 10-11. According to the victim,
“[Pinchock] would say that he did a lot for me, he drove me places, he took
me places and he bought me things and that he deserved something in
return.” Id. at 10; see also id. at 11 (wherein the victim stated that
Pinchock “basically just said, you owe me, you owe me, you should do this
for me.”).
On August 30, 2012, while the victim’s mother and Smithmyer were in
Florida, Pinchock picked the victim up at the end of the school day, and
drove her back to their home. Id. at 12-13. There was no one else in the
home at the time. Id. at 13. Pinchock offered the victim a marijuana “joint”
to smoke, but said “if I give you this, then I expect something in return.”
Id. at 14; see also id. (wherein the victim explained that Pinchock wanted
sex in return). The victim told Pinchock no, whereupon he began yelling at
her, and acting aggressively. Id. The victim went to her room to get away
from Pinchock, and took out her phone to text her friends. Id. Pinchock
followed her to her room, grabbed her phone and threw it, and told her she
was not going anywhere. Id. at 14-15. Pinchock continued yelling,
repeatedly told the victim that she owed him for everything he did for her.
Id. at 15. Eventually, the victim gave into Pinchock’s demands and took off
her clothes. Id. at 15-16. The victim testified as to her fear that Pinchock
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was going to hurt her. Id. at 16. The victim got onto her bed, and Pinchock
removed his clothes. Id. at 16-17. According to the victim, “[Pinchock] got
on top of me and put his penis in my vagina, [and] then I just closed my
eyes.” Id. at 17; see also id. (wherein the victim said that she did not say
anything to Pinchock because “I was scared”).
The Commonwealth also presented the testimony of Smithmyer, who
had known Pinchock for approximately ten years. Id. at 55-56. Smithmyer
testified that when she was fifteen or sixteen years-old, Pinchock frequently
would take her fishing and smoke marijuana with her, which he provided.
Id. at 56-57. Pinchock would also buy Smithmyer cigarettes and other
items. Id. at 58. Smithmyer stated that although she and Pinchock initially
were friends, Pinchock subsequently made comments to her indicating that
he desired a sexual relationship. Id.; see also id. (wherein Smithmyer
stated that “I could tell that … he wanted something more from me ….”).
Eventually, Pinchock directly told Smithmyer, while she was still a minor,
that he wanted to have sex with her, and that she “owed” it to him. Id. at
58-59; see also id. at 59 (wherein Smithmyer explained that Pinchock
indicated that she owed him sex for “taking me fishing, [and] on a trip to
Cabella’s,” and because “he smoked weed with me, bought me cigarettes or
would take me to Sheetz and buy me food ….”). Smithmyer told Pinchock “I
am not having sex with you,” and she never had sexual relations with him.
Id. at 59.
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The victim first reported the sexual assault to her mother several
months after it occurred, in March 2013.2 The victim testified that she did
not report it earlier because Pinchock had threatened to kill her and/or her
family members if she ever told anyone. Id. at 18-19.
In March 2013, the Commonwealth charged Pinchock with indecent
assault – M2 and corruption of minors, as well as statutory sexual assault,3
sexual assault,4 and felony corruption of minors – sexual nature5
(collectively, “the remaining sexual offenses”).
Prior to trial, the Commonwealth filed a Motion in limine, seeking to
introduce “prior bad acts” evidence to establish a common plan or scheme
by Pinchock. Specifically, the Commonwealth sought to introduce testimony
from Smithmyer about Pinchock’s having previously pressured her to engage
in sexual activity with him while she was a minor. After conducting a
hearing, the trial court entered an Opinion and Order on November 26,
2013, granting the Motion in limine and explaining the court’s rationale
underlying its ruling.
2 The victim’s mother had kicked Pinchock out of the house approximately one month earlier, after discovering that Pinchock had been giving the victim marijuana. N.T., 12/9/13, at 76. The victim’s mother additionally stated that “I told … [Pinchock] that [the victim] was afraid of him because he had smashed her cell phone at one point when I was out of town in Florida ….” Id. at 76-77. 3 18 Pa.C.S.A. § 3122.1. 4 18 Pa.C.S.A. § 3124.1. 5 18 Pa.C.S.A. § 6301(a)(1)(ii).
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The matter proceeded to a jury trial in December 2013. At the close
of trial, the jury found Pinchock guilty of indecent assault – M2 and
corruption of minors, but found him not guilty of the remaining sexual
offenses. Pinchock filed a post-trial Motion, which the trial court denied.
In February 2014, the trial court issued an Order directing that a
member of the Sexual Offender Assessment Board (“SOAB”) assess
Pinchock,6 and issue a recommendation as to whether he meets the criteria
of a sexually violent predator (“SVP”). The SOAB assigned Brenda Manno
(“Manno”), a licensed social worker, to evaluate the case and prepare a
report. Manno prepared a report (“SVP Report”), opining that Pinchock is an
SVP. The trial court subsequently held an SVP hearing, at which Manno
testified.7 By an Opinion and Order entered on November 24, 2014, the trial
court directed that Pinchock be classified as an SVP.8 As a result of his SVP
classification, Pinchock is required to register with the Pennsylvania State
Police as a sex offender for his lifetime, pursuant to the Sex Offender
6 Pinchock did not participate in the assessment. 7 As we discuss below, Manno conceded at the hearing that she made an error in the SVP Report concerning Pinchock’s conviction of corruption of minors. N.T., 10/17/14, at 41. However, Manno testified that such error did not contribute to her opinion that Pinchock is an SVP. Id. at 53. 8 The trial court stated that “although it had concerns regarding the basis for [] Manno’s conclusions/opinion[, which] initially caused the [c]ourt hesitation[, a]fter a review of the known facts in this case[,] the [c]ourt finds that [Pinchock] is an S[VP].” Opinion and Order, 11/24/14, at 5 (unnumbered); see also id. at 6 (unnumbered) (stating that “[a]lthough [] Manno’s [SVP R]eport was inaccurate in some respects, the [c]ourt still accepts [] Manno’s opinion as accurate.”).
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Registration and Notification Act (“SORNA”).9 On December 18, 2014, the
trial court sentenced Pinchock to an aggregate term of 15 months to 6 years
in prison.
Pinchock timely filed a Notice of Appeal. In response, the trial court
ordered him to file a Pa.R.A.P. 1925(b) concise statement of errors
complained of on appeal. Pinchock timely filed a Concise Statement, after
which the trial court issued a Pa.R.A.P. 1925(a) Opinion.
On appeal, Pinchock presents the following issues for our review:
Should the Superior Court reverse and dismiss [Pinchock’s] conviction[s] where:
a. The weight of the evidence of [] record does not support the verdict?
b. The verdict rendered is logically and legally inconsistent where the jury found [that] there was no sexual contact[,] but found [Pinchock] guilt[y] o[f] indecent assault [– M2]?
c. The [trial] court improperly admitted prior bad acts of [Pinchock] involving a remote and unrelated incident as to prevent [Pinchock] from receiving a fair trial[,] since the evidence was overly prejudicial?
d. [Pinchock] should not have been required to participate in [SORNA’s] reporting requirements since the Megan’s Law reporting requirement was not the prevailing law at the time the offense occurred[,] but was mandated as of the date of conviction?
9 See 42 Pa.C.S.A. § 9799, et seq. Under SORNA, Pinchock’s conviction of indecent assault – M2 is classified as a Tier I sexual offense. Id. § 9799.14(b)(6); see also id. § 9799.15(d) (providing that “[a]n individual convicted of a Tier I sexual offense … who is determined to be a sexually violent predator under section 9799.24 (relating to assessments) shall register for the life of the individual.”).
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e. [Manno] failed to consider legally relevant and proper evidence in reaching [her] conclusion [that Pinchock] is a[n SVP,] as defined under 42 Pa.C.S.A. [§] 9979?
Brief for Appellant at 15.
Pinchock first argues that “[t]he Superior Court should reverse and
dismiss [his] conviction[s] where [the] weight of the evidence of the record
does not support the verdict.” Id. at 29 (emphasis omitted).10
We review a challenge to the weight of the evidence under the
following standard:
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,
10 In connection with this issue, Pinchock also appears to challenge the sufficiency of the evidence. See Brief for Appellant at 29 (setting forth the standard of review for sufficiency claims); see also id. at 31 (challenging the “sufficiency of the victim’s testimony”). However, Pinchock did not raise a sufficiency challenge in either his court-ordered Pa.R.A.P. 1925(b) Concise Statement or his Pa.R.A.P. 2116(a) Statement of Questions Involved section. Moreover, sufficiency challenges are distinct from challenges to the weight of the evidence. See Commonwealth v. Birdseye, 637 A.2d 1036, 1039 (Pa. Super. 1994) (differentiating between sufficiency and weight challenges, and observing that “in making a claim that the verdict was against the weight of the evidence, it is conceded that there was sufficient evidence to sustain the verdict.”). Accordingly, Pinchock failed to preserve his sufficiency claim for our review. See Pa.R.A.P. 1925(b)(4)(vii) (providing that “[i]ssues not included in the [Concise] Statement … are waived.”); Pa.R.A.P. 2116(a) (stating that “[n]o question will be considered unless it is stated in the statement of questions involved or is fairly suggested thereby.”). Nevertheless, even if Pinchock had not waived his sufficiency challenge, we would conclude that it lacks merit based on the trial court’s analysis concerning the sufficiency of the evidence in its Pa.R.A.P. 1925(a) Opinion. See Trial Court Opinion, 4/23/15, at 3-4 (unnumbered). Indeed, there was ample evidence presented for the jury to have properly found that the Commonwealth proved the elements of indecent assault – M2 and corruption of minors beyond a reasonable doubt.
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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.
Commonwealth v. Clay, 64 A.3d 1049, 1055 (Pa. 2013) (emphasis and
citations omitted).
Relief on a weight of the evidence claim is reserved for extraordinary circumstances, when the [fact-finder’s] verdict is so contrary to the evidence as to shock one’s sense of justice and the award of a new trial is imperative so that right may be given another opportunity to prevail. On appeal, [an appellate] Court cannot substitute its judgment for that of the [fact-finder] on issues of credibility, or that of the trial judge respecting weight.
Commonwealth v. Sanchez, 36 A.3d 24, 27 (Pa. 2011) (citations and
quotation marks omitted).
Pinchock argues that the jury’s guilty verdicts were against the weight
of the evidence because the victim’s testimony was not credible. See Brief
for Appellant at 30-31 (asserting that the victim described “the location of
the [sexual assault] in a bedroom that was not even in existence as of
August 2012, and [there were] numerous inconsistencies pervasive to the
evidence presented.”).
In its Pa.R.A.P. 1925(a) Opinion, the trial court rejected Pinchock’s
weight of the evidence claim, stating, inter alia, that “[s]ince credibility was
left [to] the discretion of the jury to assess, [Pinchock’s] assertions
regarding the weight of the evidence lack merit.” Trial Court Opinion,
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4/23/15, at 4 (unnumbered); see also Sanchez, supra (stating that an
appellate court cannot substitute its judgment for that of the fact-finder on
issues of credibility). We discern no abuse of discretion by the trial court in
rejecting Pinchock’s claim, nor is the jury’s verdict so contrary to the
evidence as to shock our collective sense of justice. See Sanchez, supra.
Accordingly, Pinchock’s first issue does not entitle him to relief.
Next, Pinchock contends that his conviction of indecent assault – M2
must be reversed because the jury’s guilty verdict on this count was
inconsistent with their acquittal concerning the remaining sexual offenses.
See Brief for Appellant at 31-32. Pinchock avers that
[he] was convicted of indecent assault [– M2,] which does not require penetration[,] but only touching a victim in inappropriate places of her body[.] … The jury’s inconsistent verdict clearly finds there was some measure of inappropriate touching[,] but obviously no penetration as defined. Thus the necessary elements of indecent assault [– M2] cannot be determined of having to occur [sic] if the jury’s verdict does not find [that Pinchock] engaged in any inappropriate touching.
Id. at 32; see also id. at 15 (arguing that “[t]he verdict rendered is
logically and legally inconsistent where the jury found [that] there was no
sexual contact ….”).
Concerning inconsistent verdicts and acquittals, our Pennsylvania
Supreme Court has explained as follows:
Federal and Pennsylvania courts alike have long recognized that jury acquittals may not be interpreted as specific factual findings with regard to the evidence, as an acquittal does not definitively establish that the jury was not convinced of a defendant’s guilt. Rather, … an acquittal may merely show lenity on the jury’s behalf, or that “the verdict may have been the result of
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compromise, or of a mistake on the part of the jury.” United States v. Dunn, 284 U.S. 390, 394, 52 S. Ct. 189, 76 L. Ed. 356 (1932); see also [Commonwealth v.] Carter, 282 A.2d [375,] 376 [(Pa. 1971)]. Accordingly, the United States Supreme Court has instructed that courts may not make factual findings regarding jury acquittals and, thus, cannot “upset” verdicts by “speculation or inquiry into such matters.” Dunn, 284 U.S. at 394.
Commonwealth v. Moore, 103 A.3d 1240, 1246 (Pa. 2014); see also
Commonwealth v. Rose, 960 A.2d 149, 158 (Pa. Super. 2008) (stating
that “[i]nconsistent verdicts, while often perplexing, are not considered
mistakes and do not constitute a basis for reversal. … Thus, this Court will
not disturb guilty verdicts on the basis of apparent inconsistencies as long as
there is sufficient evidence to support the verdict.”).
Based upon the foregoing authority, and because we have already
determined that Pinchock’s convictions are supported by sufficient evidence,
his claim of an inconsistent verdict does not entitle him to relief. See
Moore, supra; Rose, supra.
In his third issue, Pinchock contends that the trial court erred and
deprived him of a fair trial by improperly permitting the Commonwealth to
introduce into evidence the “prior bad acts” testimony of Smithmyer. See
Brief for Appellant at 32-34. According to Pinchock, Smithmyer’s testimony
was “extremely prejudicial” and concerned an “unrelated prior bad act [that]
was not sexual in nature[, and] extremely remote in time from the date of
the alleged [] sexual [assault that] occur[ed] on August 31, 2012.” Id. at
33, 34 (citing and relying upon Commonwealth v. Shively, 424 A.2d
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1257, 1259 (Pa. 1981) (stating that “evidence of prior crimes is admissible[]
to prove other like crimes by the accused so nearly identical in method as to
earmark them as the handiwork of the accused[,]” and that “[e]ven if
evidence of prior criminal activity is admissible said evidence will be
rendered inadmissible if it is too remote.” (citation, emphasis and ellipses
omitted)).
Our standard of review concerning a challenge to the admissibility of
evidence is as follows:
The admissibility of evidence is a matter for the discretion of the trial court and a ruling thereon will be reversed on appeal only upon a showing that the trial court committed an abuse of discretion. An abuse of discretion may not be found merely because an appellate court might have reached a different conclusion, but requires a result of manifest unreasonableness, or partiality, prejudice, bias, or ill-will, or such lack of support so as to be clearly erroneous.
Commonwealth v. Johnson, 42 A.3d 1017, 1027 (Pa. 2012) (citations and
quotation marks omitted); see also Commonwealth v. Patterson, 91
A.3d 55, 68 (Pa. 2014) (stating that “[t]he admission of evidence of prior
bad acts is solely within the discretion of the trial court, and the court’s
decision will not be disturbed absent an abuse of discretion.”).
In its Opinion and Order entered on November 26, 2013, the trial court
thoroughly addressed Pinchock’s claim, set forth the applicable law and
pertinent preliminary hearing testimony of the victim and Smithmyer, and
determined that Smithmyer’s testimony would be admissible at trial to
establish a common plan or scheme. See Opinion and Order, 11/26/13, at
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1-7 (unnumbered). The trial court’s sound analysis is supported by the law
and the record, and we affirm on this basis in concluding that the court
properly exercised its discretion in admitting this evidence. See id.
In his fourth issue, Pinchock argues that the Commonwealth failed to
meet its burden, by clear and convincing evidence, to establish that he is an
SVP, since the evaluation and recommendation completed by Manno was not
based on “legally relevant and proper evidence.” Brief for Appellant at 34;
see also id. at 36 (asserting that “Man[n]o based her findings on hearsay
statements, inaccurate information[,] including the preliminary hearing
transcript, outdated employment[] and mental health information[,]
questionable drug and alcohol records, and factual inconsistencies that were
established at trial[,] including the victim’s contradicting statements made at
the preliminary hearing and trial.”). Additionally, Pinchock contends that his
classification as an SVP was in error since “the Commonwealth failed to …
establish [that he] suffers [from] a mental health disorder that makes him
likely to engage in predatory sexually violent offenses.” Id. at 37.
“[I]n 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[, i.e., the SVP provisions of SORNA,] has been satisfied.”
Commonwealth v. Brooks, 7 A.3d 852, 860 (Pa. Super. 2010) (citation
omitted). Additionally, this Court has stated that
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[a] challenge to the sufficiency of the evidence to support an SVP designation requires the reviewing court to accept the undiminished record of the case in the light most favorable to the Commonwealth. The reviewing court must examine all of the Commonwealth’s evidence without consideration of its admissibility. A successful sufficiency challenge can lead to an outright grant of relief such as a reversal of the SVP designation, whereas a challenge to the admissibility of the expert’s opinion and testimony is an evidentiary question which, if successful, can lead to a new SVP hearing.
Commonwealth v. Prendes, 97 A.3d 337, 356 (Pa. Super. 2014) (citations
omitted).
In its Opinion and Order entered on November 24, 2014, the trial court
addressed Pinchock’s challenge to his SVP classification, thoroughly set forth
the relevant law, and determined that notwithstanding the court’s “concerns
regarding the basis for [] Manno’s conclusions/opinion,” the Commonwealth
established, by clear and convincing evidence, that Pinchock is an SVP. See
Opinion and Order, 11/24/14, at 2-6. The trial court’s analysis is supported
by the law and the record, and we affirm on this basis in rejecting Pinchock’s
fourth issue. See id.
Finally, Pinchock argues that the trial court erred by “retroactively”
applying the provision of SORNA requiring that he report as a sexual
offender for his lifetime, where, at the time of the offense on August 30,
2012, the version of Megan’s Law then in effect did not require a defendant
convicted of indecent assault – M2 to register as a sexual offender. See
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Brief for Appellant at 37-38;11 see also id. at 38 (stating that “the
commission of the crime concerning [] Pinchock occurred in August 2012[,]
when … indecent assault [– M2] did not require mandatory reporting under
Megan’s Law[,] as such requirement did not take official effect until
December [20], 2012[,] under 42 Pa.C.S.A. [§] 9799.13.”). Pinchock avers
that this Court’s decision in Commonwealth v. Bundy, 96 A.3d 390 (Pa.
Super. 2014), is controlling and compels a ruling that Pinchock is not
required to register as a sexual offender. See Brief for Appellant at 37-38.
In Bundy, the defendant pled nolo contendere to, inter alia, indecent
assault – M2 in 2009,12 and was released on probation. Bundy, 96 A.3d at
391. At the time of his conviction, the version of Megan’s Law then in effect
did not require the defendant to register as a sex offender. Id. However,
following a subsequent resentencing resulting from a probation violation, the
defendant was informed that he would be required to register for 25 years
pursuant to the new provisions of SORNA. Id. at 392; see also 42
Pa.C.S.A. §§ 9799.12, 9799.13(2), 9799.14(c)(1.2). The defendant filed a
petition with the trial court seeking relief from the registration provision.
Bundy, 96 A.3d at 392. While the defendant’s petition was pending, an
amendment to SORNA was enacted in March 2014, modifying 42 Pa.C.S.A.
11 Pinchock does not challenge SORNA’s constitutionality concerning its retroactive application. 12 The defendant in Bundy was convicted of indecent assault – M2 under 18 Pa.C.S.A. § 3126(a)(8). Pinchock’s conviction was under 18 Pa.C.S.A. § 3126(a)(1). Both crimes are graded as second-degree misdemeanors. See id. § 3126(b)(1).
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§ 9799.13.13 Bundy, 96 A.3d at 392-93. This Court held that because the
defendant was convicted of indecent assault – M2 in 2009, within the
timeframe provided for in paragraph (3.1)(i)(A) of section 9799.13
13 Amended section 9799.13 provides, in relevant part, as follows:
The following individuals shall register with the Pennsylvania State Police … and otherwise comply with the provisions of this subchapter:
(1) An individual who, on or after the effective date of this section[, i.e., December 20, 2012], is convicted of a sexually violent offense and who has a residence within this Commonwealth or is a transient.
***
(2) An individual who, on or after [December 20, 2012], is, as a result of a conviction for a sexually violent offense, … being supervised by the Pennsylvania Board of Probation and Parole or county probation or parole ….
(3.1) The following:
(i) An individual who between January 23, 2005, and December 19, 2012, was:
(A) convicted of a sexually violent offense;
(ii) For purposes of this paragraph, the term “sexually violent offense” shall have the meaning set forth in section 9799.12 (relating to definitions), except that it shall not include:
(B) A conviction under 18 Pa.C.S. § 3126 (relating to indecent assault) where the crime is graded as a misdemeanor of the second degree ….
42 Pa.C.S.A. § 9799.13 (emphasis added).
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(hereinafter “the exception timeframe”), and because paragraph (3.1)(ii)(B)
excludes indecent assault, graded as a misdemeanor of the second degree,
from the definition of a “sexually violent offense” triggering registration, the
defendant was not subject to registration. Id. at 395-96.
In the instant case, there was no retroactive application of SORNA’s
registration provisions. Rather, at the time of Pinchock’s conviction of
indecent assault – M2 on December 10, 2013, this offense was classified as
a Tier I sexual offense, which required lifetime registration in light of
Pinchock’s SVP classification. See 42 Pa.C.S.A. §§ 9799.14(b)(6),
9799.15(d). Unlike the situation in Bundy, Pinchock was not convicted of
indecent assault – M2 within the exception timeframe provided for in section
9799.13(3.1)(i)(A). Moreover, to the extent that Pinchock points out that
the date of his offense, i.e., August 30, 2012, occurred within the
exception timeframe, this fact is immaterial; the date of the offender’s
conviction controls. See 42 Pa.C.S.A. § 9799.13(3.1)(i)(A); see also
Bundy, 96 A.3d at 395-96.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 1/19/2016
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- 17 - ( t -s-« 35 03t.; .i Circulated /is 12/18/2015 09:59 AM
COMMONWEALTH OF PENNSYLVANIA, IN THE COURT OF COMMON PLEAS
Plaintiff OF McKEAN COUNTY, PENNSYLVANIA
vs. CRIMINAL DIVISION
JEFFREY S. PINCHOCK, NO. 225 C.R. 2013
Defendant.
OPINION AND ORDER
The Commonwealth asserts that the testimony of Kristin Rose Smithmyer ("hereinafter
"KRS"} regarding the Defendant's alleged prior conduct directed toward her is admissible under
Pa.R.Evd. 404(b }(2}, the Common Plan or Scheme exception to the hearsay rule. The Defendant
asserts that this testimony does not fall under this exception and, therefore, is inadmissible.1 A
hearing was held and the matter is now ready for decision.
FACTUAL BACKGROUND
The central issue is whether the facts of these two allegations are significantly similar to
demonstrate that the Defendant was acting under a common plan or scheme.
1 The Defense also asserts that, since the Commonwealth failed to call Wl at the hearing to address their Motion in imine, the Commonwealth is precluded from presenting her testimony regarding prior bad acts at the time of trial. They assert that they should have been afforded the opportunity to cross examine her and fully explore all details of her allegations prior to trial. However, the issue is whether the defense has obtained appropriate notice "of the general nature of any such evidence the prosecutor intends to introduce at trial." Pa.R.Evid.404{b}(2). In Commonwealth v. Lynch, 57 A.3d 120, at 126 (Pa.Super. 2012) the Superior Court held that [p]roper notice was given where an affidavit of probable cause set forth the substance of the witnesses proffered testimony and the defense had received the affidavit of probable cause prior to trial. The Lynch Court focused on whether the defense was subject to "unfair surprise" at the time of trial. The Court finds that the statement provided by the Commonwealth as an offer of proof adequately advises the defense of the substance and details of Wl's testimony and, therefore, the defense can properly prepare for trial without "unfair surprise." Of course, if Wl's testimony at trial was not in conformance with her prior statement the Court would, if requested by the defense to do so, consider excluding some or all of this testimony and, if appropriate, granting a request for a mistrial. r; ! Circulated 12/18/2015 09:59 AM
A summary of the facts asserted by KRS are as follows: When KRS was 15 or 16
she met the Defendant through mutual friends. Since KRS's D.O.B. is 7/25/1998, this
would have been in 2003 and/or 2004; and, at that time the Defendant would have been
thirty or thirty one years old (Defendant's D.O.B. 4/15/73). After the Defendant and KRS
met she "partied" with the Defendant and others. She states "our friendship consisted of
partying together, fishing and other outdoor activities." When KRS was "seventeen or
so" the Defendant "started acting very amorous towards me (KRS) to the point of
infatuation." The Defendant told KRS she was beautiful and would "make a perfect
wife." KRS told the Defendant "no" and that she was not interested in him. After this
the Defendant confronted KRS during a "few situations." The Defendant was upset and
told KRS that she "lead him on" and that "he did so much for me like take me fishing and
smoke weed with me and buy me things." Further, he told her "for payment of all that
stuff he did for me that I should repay him with sex." KRS told the Defendant to "get
that notion out of his head for good." The Defendant then became very upset and drove
KRS home and "the situation was never discussed between us again."
The allegations in the current case are as follows: When the victim was 15 years
old and around Labor Day, 2012, the Defendant and the victim were alone at their
residence in McKean County. At that time the Defendant was approximately thirty nine
years of age (Defendants' D.O.B. 4/15/1973). The Defendant had previously been given
permission to reside at the same home as the victim and her Mother. The Defendant
asked the victim if she wanted to smoke marijuana with him. The victim said "yes." The
victim and the Defendant smoked marijuana together many times prior to this incident.
While "rolling a joint" the Defendant told the victim that he "was always doing things for Circulated 12/18/2015 09:59 AM
her" and that she should do something for him and have sex with him. The victim told
him no but the defendant persisted repeating that "he does stuff for her and she should
repay him." The victim indicated no several times but then, because she felt he was
going to harm her if she did not do it, laid on the bed while the Defendant got on top of
her and had intercourse with her. The Defendant then left and, the next day, threatened to
harm the victim if she told anyone about this incident.
AUTHORITY
It is set forth in Rule 404(b)(2) that:
(b) Other Crimes, Wrongs, or Acts, (2) Evidence of other crimes, wrongs, or acts may be admitted for purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake or accident. Pa.R.Evid. 404(b)(2). In Commonwealth v. Frank, 577 A.2d 609 (Pa. Super. Ct. 1990), the
Superior Court discussed in detail the standard to apply when addressing a 404(b)(2) issue:
We are cognizant of the fact that a determination of whether evidence is admissible under the common plan exception must be made on a case by case basis in accordance with the unique facts and circumstances of each case. However, we recognize that in each case, the trial court is bound to follow the same controlling, albeit general, principles of law. When ruling upon the admissibility of evidence under the common plan exception, the trial court must first examine the details and surrounding circumstances of each criminal incident to assure that the evidence reveals criminal conduct which is distinctive and so nearly identical as to become the signature of the same perpetrator. Relevant to such a finding will be the habits or patterns of action or conduct undertaken by the perpetrator to commit crime, as well as the time, place, and types of victims typically chosen by the perpetrator. Given this initial determination, the court is bound to engage in a careful balancing test to assure that the common plan evidence is not too remote in time to be probative. If the evidence reveals that the details of each criminal incident are nearly identical, the fact that the incidents are separated by a lapse of time will not likely prevent the offer of the evidence unless the time lapse is excessive. Finally, the trial court must assure that the probative value of the evidence is not outweighed by its potential prejudicial Circulated 12/18/2015 09:59 AM
impact of the evidence with such factors as the degree of similarity established between the incidents of criminal conduct, the Commonwealth's need to present evidence under the common plan exception, and the ability of the trial court to caution the jury concerning the proper use of such evidence by them in their deliberations.
Id. At 614.
In Commonwealth v. Aikens, 990 A.2d 1181 (Pa. Super. Ct. 2010) the Superior
Court affirmed the decision of the trial court to allow the testimony of a defendant's 32
year old daughter that, when she was 15 years old, her father made her watch a
pornographic video and then raped her. In that case the defendant's second daughter
asserted that, when she was 14, her father made her watch a pornographic video and
attempted have intercourse with her. The Superior Court held:
In the case at bar, we believe that the fact pattern involved in the two incidents was markedly similar. In both cases, the victims were of like ages: T.S. was fourteen years old, and V.B. was fifteen years old. Both victims were Appellant's biological daughters. Appellant initiated the contact during an overnight visit in his apartment. He began sexual abuse by showing the girls pornographic movies. The assaults occurred in bed at night. While Appellant raped V.B. and indecently assaulted T.S., T.S. stopped Appellant from disrobing her and committing the more serious sexual assault. In addition, Appellant mimicked the grinding movements of sexual intercourse on T.S. in order to sexually gratify himself. These matching characteristics elevate the incidents into a unique pattern that distinguishes them from a typical or routine child-abuse factual pattern. Hence, we reject Appellant's position that we are pigeonholing sexual abuse cases to such an extent that any prior instance of child abuse would be admissible in a subsequent child abuse prosecution. See also Commonwealth v. Hughes, 521 Pa. 423, 555 A.2d 1264(1989) (evidence about prior rape correctly allowed at rape-murder trial since crimes were committed in similar geographic location, at similar time, characteristics of victim matched, and defendant used same method of attack). As was the case in Hughes, the similarities at issue herein were "not confined to insignificant details that would likely be common elements regardless of who committed the crimes." Id. At 1283. Ml_At 1185-1186. (.· Circulated 12/18/2015 09:59 AM '·.
In Commonwealth v. O'Brien, 836 A.2d 966 (Pa. Super. Ct. 2003), the Superior
Court reversed the holding of the trial court that evidence of a prior sexual assault of two
different minors years earlier was not admissible in a subsequent prosecution involving a
different victim. The Superior Court held that the following similarities of the three
assaults was sufficient to demonstrate a common plan or scheme: each boy was between
eight and eleven years old; each boy knew the defendant because their parent(s) were
friends with him; each crime was committed after the defendant was alone with the
victims - and in the defendant's home; the defendant showed each victim pornographic
material; each crime involved deviate sexual intercourse; and, in each case the defendant
instructed the victims not to tell anyone. Id. at 970.
DISCUSSION
Using the language of Aikens, supra., the issue here is whether there are
"matching characteristics [that] elevate the incidents into a unique pattern that
distinguishes them from a typical or routine child-abuse factual pattern;" or, whether the
similarities between the two allegations is "confined to insignificant details that would
likely be common elements regardless of who committed the crimes." There are
similarities between the Defendant's alleged conduct toward KRS and the current victim.
First, the two were roughly the same age when the Defendant made sexual advances
toward them. KRS was 15 or 16 when she first met the Defendant, she was
approximately 17 when he made advances toward her, and, the victim was 15 when the
Defendant sexually assaulted her. The Defendant provided marijuana to both girls and
"partied" with them before making sexual advances toward them. However, the specific
similarities were much greater in Aikens and O'Brien, supra. The Defendant here did not ,····
1·.:· Circulated 12/18/2015 09:59 AM
isolate KRS and the victim under almost identical manner in order to assault them
(Aikens: visits with daughters and then showed them pornographic material at his home;
O'Brien: befriended victims parents showed them pornographic material in his home).
Therefore, the Court was inclined to conclude that a "unique fact pattern" did not exist
here and any similarities between the two alleged incidents were common elements that
would exist regardless of who committed the crimes.
However, the Defendant's alleged statements to each victim are extremely
probative on the "common plan or scheme" issue. The Defendant told KRS, both directly
and through his actions, that he was upset with her because "he did so much for me like
take me fishing and smoke weed with me and buy me things;" and, "for payment of all
that stuff he did for me that I should repay him with sex." The current victim asserts that
the Defendant told her that he "was always doing things for her" and that she should do
something for him and have sex with him. When the victim told him no the defendant
persisted repeating that "he does stuff for her and she should repay him." These
statements are extremely important to this analysis because, if proven, they are an actual
admission of a common plan or scheme. When the Defendant's statements are
considered with the other facts a clear plan and scheme emerges. The Court finds that the
Defendant had a plan to party with KRS and the victim, to give them marijuana, to take
them fishing and befriend them in return for sex because the Defendant said that that was
what his plan was. He told both KRS and the victim that he had put a lot of work into his
plan and was upset when it did not appear as if his efforts were going to yield the results
he had been working for. It is immaterial that the pressure he put on KRS did not result
in the Defendant obtaining his planned goal. The issue is whether the Defendant utilized iI.. Circulated 12/18/2015 09:59 AM
a common plan in both instances,not whether the plan yielded the result the Defendant
wanted in both cases. The Defendant is the best source to know whether he had a
common plan and scheme here. The fact that he said that there was cannot be ignored.
Therefore, we enter the following: tC. I I "
Circulated 12/18/2015 09:59 AM
COMMONWEAL TH OF PENNSYLVANIA, IN THE COURT OF COMMON PLEAS
ORDER
AND NOW, this zs" day of November, 2013, the Commonwealth's Motion in
limine is granted and the Commonwealth is permitted to present the testimony of KRS
discussed in the Opinion filed contemporaneously with this order regarding prior
conduct.
BY THE COURT:
JEFFREY SCOTT PINCHOCK, NO. 225 C.R. 2013
DA Raymond Learn, Esq. For the Plaintiff
Stephanie L. Vettenburg-Shaffer, Esq. For the Defendant
Defendant Jeffrey Pinchock was charged with Statutory Sexually Assault (Fl), Sexual
Assault (F2), Corruption of Minors-Sexual Nature (F3), Corruption of Minors (Ml), and
Indecent Assault (M2).1 The matter was tried before a jury. The Defendant was found not guilty
of Statutory Sexual Assault (Fl), Sexual Assault (F2), and Corruption of Minors-Sexual Nature
(F3). The Defendant was found guilty of Corruption of Minors (Ml) and Indecent Assault (M2).
Defendant filed a post-trial motion and the motion was denied.
By order dated February 13, 2014, the Court ordered the Sexual Offender Assessment
Board ("SOAB") to conduct a sexually violent predator ("SVP") assessment of the Defendant.
A hearing was held on October 17, 2014. The matter is now ready for a decision.
1 Count 1: Statutory Sexual Assault, 18 Pa. C.S. § 3122.1, Felony 1st Degree; Count 2: Sexual Assault, 18 Pa. C.S. 3124.1, Felony 2nd Degree; Count 3: Corruption of Minors of Sexual Nature, 18 Pa. C.S. § 630l(a)(l)(ii), Felony 3rd Degree; Count 4: Corruption of Minors, 18 Pa.C.S. § 630l(a)(l)(ii), Misdemeanor 1st Degree; Count 5: Indecent Assault, 18 Pa.C.S. § 3 l 26(a)(l ), Misdemeanor 2nd Degree. Circulated 12/18/2015 09:59 AM
APPLICABLE AUTHORITY
As set forth in 42 PA C.S.A. § 9799.24, the Commonwealth may pursue a hearing where
the Court will determine if the defendant shall be classified as a sexually violent predator. The
hearing shall be scheduled upon praecipe filed by the District Attorney. The District Attorney
upon filing the praecipe shall serve a copy of same upon defense counsel together with a copy of
the report by the SOAB.
Upon receipt from the court of an order for an assessment, a member of the board as
designated by the administrative officer of the board shall conduct an assessment of the
individual to determine if the individual should be classified as a sexually violent predator. The
board shall establish standards for evaluations and for evaluators conducting the assessments.
An assessment shall include, but not be limited to, an examination of the following:
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means necessary to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of unusual cruelty by the individual
during the commission of the crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual's prior criminal record.
2 Circulated 12/18/2015 09:59 AM
(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.
(ii) Use of illegal drugs.
(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 re-offense.
42 Pa. Cons. Stat. Ann. § 9799.24.
The question for a court analyzing a SVP allegation is whether the Commonwealth's
evidence, including the state assessment board's assessment, shows that the person convicted of a
sexually violent offense has a mental abnormality or disorder making that person likely to
engage in predatory sexually violent offenses. Commonwealth v. Brooks, 7 A.3d 852, 860
(2010).
With regard to the various statutory assessment factors for classification of an SVP
mentioned above, 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. Id. After conducting a hearing
and considering the evidence presented, the court decides whether a defendant should be
designated an SVP and thus made subject to the registration requirements in 42 Pa. C.S.A. §
9799.15. Id. at 863.
3 Circulated 12/18/2015 09:59 AM
"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 (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."
Commonwealth v. Killinger, 888 A.2d 592, 600 (2005).
Defendant Pinchock was convicted of Corruption of Minors (Ml) 18 Pa.C.S.
§ 6301(a)(l)(ii) and Indecent Assault (M2) 18 Pa.C.S. § 3126(a)(l) on December 10, 2013. Both
offenses are equivalent to what is called a Tier 1 offense. An individual convicted of a Tier I
sexual offense, except an offense set forth in Section 9799. l 4(b )(23) (relating to sexual offenses
and tier system), shall register for a period of 15 years with the Pennsylvania State Police
("PSP"). If a person is found to be a sexually violent predator, they must register with the PSP
for life.
As stated above, the Court must decide whether the defendant is an SVP. The Court has
to review the Commonwealth's evidence and may consider the report of the SOAB. The
Commonwealth's expert, Brenda Mano, has substantial expertise regarding SVP evaluations.
She has been a SOAB Board member since 1998 and has had extensive schooling and training/
in psychology, sociology, licensed social work, assessing sexual offenders, child abuse, ethical
issues in the assessment of sexual offenders, advanced forensic interviews training, the
psychology of criminal sexuality, and ethics concerns in sex offender commitment in the
Commonwealth of Pennsylvania. Ms. Mano has been qualified as an expert and has done
2 Examples under training section for Brenda A. Manno MSW, LCSW (Comm. Exhibit 2).
4 Circulated 12/18/2015 09:59 AM
approximately 1,401 assessments of which 925 for SVP and the remaining for pre-parole
assessments. However, the court must make the determination whether the Defendant meets the
requirements for SVP status and cannot blindly accept any expert's conclusions on this issue.
In this case, numerous concerns were raised regarding Ms. Mano's opinion. For
example, despite the fact a trial transcript was readily available on January 2, 2014, she did not
review it and instead reviewed the preliminary hearing transcript. Further, she incorrectly
concluded that the Defendant had been convicted of corruption of a minor of a sexual nature
when in fact the Defendant was not convicted of this offense. Therefore, factually she had
concluded that the Defendant had sexual intercourse with the victim when the jury rejected this
assertion.3 Ms. Manno stated that, considering all the correct information regarding what the
Defendant was found guilty of, etc., it would not change her opinion of the classifying the
Defendant as an SVP.
The concerns regarding the basis for Ms. Manna's conclusions/opinion initially caused
the Court hesitation. However, after a review of the known facts in this case the Court finds that
the Defendant is a Sexually Violent Predator. The Defendant does have a prior criminal history
that involved crimes of a sexual nature. He pied guilty to Count 1: Statutory Sexual Assault 18
Pa. C.S. § 3122.1 and Count 2: Corruption of Minors 18 Pa.C.S. § 630l(a)(l)(ii) in 1997.4
Therefore, he has a clear pattern of victimization that suggests that he could be a danger to others
and specifically to young girls who are under the age of 18. A consideration of the facts of his
3 By convicting the Defendant of counts of Corruption of Minors (Ml) 18 Pa.C.S. § 630l(a)(l)(ii) and Indecent Assault (M2) 18 Pa.C.S. § 3126(a)(l), the Jury concluded that the Defendant had inappropriately touched the victim for sexual gratification but rejected the assertion that sexual intercourse had occurred. 4 There is no record that the Defendant received any treatment as part of his sentence for his 1997 convictions.
5 Circulated 12/18/2015 09:59 AM
current and previous convictions reveal that the Defendant uses his influence to obtain sexual
favors. He developed a friendship and trust with the victims and offered them marijuana to
persuade them to go along with his requests. Further, the Court accepts Ms. Manno' s opinion
that the Defendant has a congenital or acquired condition which is the impetus to the sexual
offending that he takes part in, and this is a lifetime condition. The Court finds that the
Defendant has a very high likelihood of re-offending.
Therefore, the Commonwealth has proven the defendant is a sexually violent predator by
clear and convincing evidence. Pa. C.S.A. 9799.24(e). Although Ms. Manno's report was
inaccurate in some respects, the Court still accepts Ms. Manno' s opinion as accurate. "The
SOAB merely assesses the defendant; it does not perform an adjudicative function."
Commonwealth v. Prendes, 97 A.3d 337, 357 (2014) citing Commonwealth v. Kopicz, 840 A.2d
342, 351 (2003). In Prendes, the Superior Court held:
[A]n SOAB expert assessment falls under the general rules regarding expert witnesses and may be based on facts or data that the expert has been made aware of or personally observed, so long as experts in the particular field reasonably rely on those kinds of facts or data in forming an opinion on the subject; the facts or data consulted need not be admissible or proved beyond a reasonable doubt in order to find the expert opinion admissible.
Prendes, 337 at 363.
WHEREFORE,we enterthe following:
6 (-. Circulated 12/18/2015 09:59 AM
~ AND NOW this _U'l__ ,~ ORDER
day of November, 2014, upon consideration of the Defendant and
Commonwealth's briefs following the hearing on Sexually Violent Predator Status as well as the
Opinion filed contemporaneously with this Order, the Court ORDERS the following:
1. The Commonwealth has met its burden and the Defendant is classified as a
Sexually Violent Predator.
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