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Commonwealth of Pennsylvania v. David Joseph Hogentogler

September 11, 2012


Appeal from the Judgment of Sentence December 7, 2011 In the Court of Common Pleas of Dauphin County Criminal Division at No(s): CP-22-CR-0001173-2011

The opinion of the court was delivered by: Stevens, P.J.




This is an appeal from the judgment of sentence entered in the Court of Common Pleas of Dauphin County following Appellant's conviction by a jury on the charge of failure to comply with registration of sexual offenders requirements, 18 Pa.C.S.A. § 4915(a)(1). Appellant contends (1) the evidence was insufficient to sustain his conviction, (2) the trial court erred in denying his motion for a directed verdict/mistrial due to a prejudicial comment made during the prosecutor's closing argument, and (3) the trial court erred in overruling Appellant's objection to the trial judge's questioning of Parole Agent Larry Eddie Smith, Jr., as to the differences between parole and probation.*fn1 We affirm.

The relevant facts and procedural history are as follows: In 1995, Appellant was convicted of, inter alia, involuntary deviate sexual intercourse with his then six-year-old nephew, and he was sentenced to an aggregate of ten years to twenty years in prison. N.T. 12/7/11 at 300. At some point, Appellant was placed on parole with regard to his sex crimes, and inter alia, he was required to notify the state police within forty-eight hours of any changes in his residence. N.T. 12/6/11 at 70-71. Concluding Appellant failed to meet this requirement, he was charged with violating 18 Pa.C.S.A. § 4915(a)(1), and on December 6, 2011, Appellant proceeded to a jury trial with regard to the charge.*fn2 At trial, Parole Agent Leitzel testified that, beginning in 2009, she supervised Appellant while he was on parole, and she explained to him the various conditions of his parole, including the fact he was to report to her, within 48 hours, any changes in his address. N.T. 12/6/11 at 107-108. Parole Agent Leitzel additionally informed Appellant he was required to report to her at the parole office on the second Wednesday of every month between 8:30 a.m. and 4:30 p.m., and on April 28, 2010, Appellant signed a document acknowledging this specific reporting requirement. N.T. 12/6/11 at 93-95. As of April 28, 2010, Appellant had an approved residence of 203 State Street, Harrisburg, PA, which was a rooming house. N.T. 12/6/11 at 95. In addition to Appellant reporting to the parole office once a month as indicated supra, Parole Agent Leitzel randomly checked in on Appellant at the 203 State Street address. N.T. 12/6/11 at 97. Appellant's room at this residence consisted of a small refrigerator, dresser, television, clothes, basic toiletries, books, and paperwork. N.T. 12/6/11 at 98-99. Prior to October of 2010, Appellant's room looked "like he was living there." N.T. 12/6/11 at 99.

On November 10, 2010, Appellant failed to report for his monthly mandatory meeting at the parole office, and therefore, on November 15, 2010, Parole Agent Leitzel went to the 203 State Street address to look for him. N.T. 12/6/11 at 99. Using a key provided to her by the landlord, Parole Agent Leitzel went inside of Appellant's room and discovered he was not inside. N.T. 12/6/11 at 102. She also discovered that the room had "a lot less items in it" than it had on her previous visits. N.T. 12/6/11 at 102. Specifically, as of November 15, 2010, there was "only a couple pieces of clothing left in the room," and she observed no toiletries. N.T. 12/6/11 at 103. In fact, Parole Agent Leitzel testified she observed no articles of daily living in Appellant's room on November 15, 2010. N.T. 12/6/11 at 104. After her inspection, Parole Agent Leitzel left on the door of Appellant's room a bright yellow set of mandatory reporting instructions, which directed Appellant to report to her at the parole office on November 16, 2010. N.T. 12/6/11 at 101, 105.

On November 16, 2010, Appellant failed to appear at the parole office, and therefore, Parole Agent Leitzel went back to Appellant's room at 203 State Street. N.T. 12/6/11 at 105-106. Appellant was not at the rooming house, and the bright yellow reporting instructions remained on the door where Parole Agent Leitzel had left them. N.T. 12/6/11 at 106. Thus, Parole Agent Leitzel contacted Appellant's landlord, told him that Appellant was being declared delinquent, and informed the landlord that he should contact the parole office if he sees Appellant. N.T. 12/6/11 at 106.

Parole Agent Leitzel testified that, after November 16, 2010, she continued to make random visits at the 203 State Street room house to check on other parolees, and she never again saw Appellant at the residence. N.T. 12/6/11 at 106. In fact, Parole Agent Leitzel testified that, after Appellant reported to her at the parole office in October of 2010, she did not again see Appellant until February of 2011, when he was an inmate at the Dauphin County Prison. N.T. 12/6/11 at 106-107.

On cross-examination, Parole Agent Leitzel admitted she knew Appellant had a history of depression; however, she did not remember Appellant indicating he had run out of medicine near the time he absconded from supervision. N.T. 12/6/11 at 123. She denied knowing Appellant had a life partner living in Camp Hill. N.T. 12/6/11 at 122-123. She admitted that, "during [Appellant's] supervision, he was compliant at first, but within the last year he [was] hard to find at his residence and [was] defiant towards treatment." N.T. 12/6/11 at 124. Parole Agent Leitzel denied receiving a telephone call from the police in September of 2010 indicating Appellant had changed his residence or address. N.T. 12/6/11 at 126.

On redirect examination, Parole Agent Leitzel testified that, when she inspected Appellant's room on November 15, 2010, it did not appear to her that Appellant was living in the room. N.T. 12/6/11 at 127.

Larry Eddie Smith, Jr., who is a parole agent associated with the fugitive apprehension team with the U.S. Marshal's Fugitive Task Force, testified that Parole Agent Leitzel reported to him in late December of 2010 or early January of 2011 that Appellant was a parole absconder. N.T. 12/6/11 at 134. Parole Agent Smith indicated it is his job to locate fugitives, extract them, and place them into custody. N.T. 12/6/11 at 140. In attempting to locate Appellant, Parole Agent Smith examined various records and discovered Appellant had received a traffic citation on September 6, 2010. N.T. 12/6/11 at 136. The citation listed a Camp Hill apartment address for Appellant, and the vehicle, which Appellant was operating, was registered to "Troy Nenninger" at that address. N.T. 12/6/11 at 140-141.

On February 1, 2011, at approximately 9:30 a.m., Parole Agent Smith, along with other members of the U.S. Marshal's Fugitive Task Force, proceeded to the Camp Hill apartment. N.T. 12/6/11 at 137. No one initially answered the door; however, the marshals heard noise, which indicated some type of movement inside the apartment. N.T. 12/6/11 at 137-139. The marshals showed Appellant's photograph to neighbors, and after they affirmatively identified Appellant, the marshals, who again heard noise inside the relevant apartment, began "boot kicking" the door. N.T. 12/6/11 at 137- 139. After approximately two kicks to the door, Appellant said, "Wait a minute, wait a minute, don't break the door." N.T. 12/6/11 at 139.

However, by that time, the door's lock was jammed and the marshals finished making a forcible entry into the apartment. N.T. 12/6/11 at 139. Parole Agent Smith took Appellant, who was the sole person inside of the apartment, into custody and transported him to SCI Camp Hill. N.T. 12/6/11 at 139.

Pennsylvania State Police Trooper Mark Dean, a member of the forensic services unit, testified his unit handles the registration of sex offenders, who are required to report their residence to the unit "[y]early or within 48 hour of any change." N.T. 12/6/11 at 145-146. Trooper Dean indicated that, on September 8, 2010, Appellant provided a mailing and physical address to the unit of "203 State Street, Harrisburg." N.T. 12/6/11 at 149-150. Appellant did not provide the unit with a secondary mailing address, such as a P.O. box. N.T. 12/6/11 at 149-150. The form, which Appellant signed, contained a specific acknowledgment by Appellant that, if he changed his address, he was required to inform the Pennsylvania State Police within 48 hours. N.T. 12/6/11 at 152.

Harrisburg Police Officer Christopher Silvio testified he issued the September 6, 2010, traffic citation to Appellant, who provided to him an address of "12-B Richland Lane, Camp Hill, PA[.]" N.T. 12/7/11 at 167. Officer Silvio acknowledged Appellant's certified driver's history from the Pennsylvania Department of Transportation listed a driver's license address of "749 Saint Joseph Street, Lancaster, PA[;]"; however, as is his routine, when the officer asked Appellant for his "current address," Appellant provided the officer with the Camp Hill address. N.T. 12/7/11 at 167-171.

Harrisburg Police Detective Victor Rivera testified he is assigned the duty of documenting the "comings and goings" of sex offenders in the city of Harrisburg, and on February 1, 2011, Parole Agent Leitzel informed him Appellant had absconded from parole. N.T. 12/7/11 at 181-182.

Approximately a week later, Detective Rivera discovered authorities had apprehended Appellant and, on February 23, 2011, at approximately 9:35 a.m., he interviewed Appellant, who stated that:

[H]e was pretty much fed up with the whole process of having to [abide by] the requirements that he had with parole once a month. He told me he was off meds. He told me he didn't particularly like the place that he lived at. And, in essence, then he told me that he went and stayed with his life partner in Camp Hill. N.T. 12/7/11 at 185.

Detective Rivera testified that, "[Appellant] pretty much established from his statement that he left State Street and went over to live with his life partner in Camp Hill." N.T. 12/7/11 at 204.

Troy Nenninger testified he lives in a 800 square foot apartment at 12- B Richland Lane, Camp Hill, PA, and he and Appellant were a couple. N.T. 12/7/11 at 211-212. He indicated he assisted Appellant financially and, in return, Appellant worked around the house and on Mr. Nenninger's car. N.T. 12/7/11 at 213. On direct examination, the following relevant exchange occurred between Mr. Nenninger and Appellant's counsel:

Q: Okay. I want to turn your attention now to generally around October, November, December through February of this particular year. So the late part of 2010 the early part of this year. Are you with me time frame wise?

A: Yes.

Q: As far as [Appellant] moving in with you, did he at any point in time switch his address, change his address and move his belongings in your house?

A: Absolutely not, no.

Q: Had you guys discussed the possibility of living together?

A: There's no way I could live with anybody in that location, bottom line. I'm not one to live with anyone. I haven't had a roommate since the '90s. There is no possibility of adding anything to my home. I can't buy anything more, I can't do anything else. I don't have the space for anything. Living together--wasn't looking to live with anybody. If I'm going to live with somebody they need to be able to put forth a home. I'm not going to carry anybody like that.

Q: At any point in time during the time frame I just specified did--did [Appellant] live with you for 30 consecutive days? Strike the word live. Did he sleep over at your place 30 consecutive days?

A: No.

Q: Since the inception of your friendship or relationship with [Appellant] has he ever slept or crashed at your place for 30 consecutive days?

A: No.

Q: Tell the jury some of the things that you, over the duration of your friendship, relationship with [Appellant], that you purchased for him.

A: I purchased the television, I purchased the DVD player, and I purchased an air conditioner for his apartment when he moved into his State Street address.

Q: At any point in time were those items placed in your apartment?

A: No.

Q: Is [Appellant] on your lease? A: No.

Q: Was--did you ever try to put him on your lease? A: No.

Q: Are you required to if you're going to have a change in your residence?

A: I would be required to actually sign a whole new lease. Q: Was [Appellant] receiving mail at your address? A: Never.

Q: Turning your attention now to February the 1st of this year. A date I assume you remember.

A: Yes.

Q: You came home to your apartment and what did you see?

A: The door looked unusual to me. It was bent slightly. And when I opened the door, I have a DVD rack that's fairly large behind the door and there were some DVDs on the floor.

[Appellant] was to clean that morning after I had left for work and the cleaning products were still sitting in the living room and it was not done.

Q: You--you thereafter learned that [Appellant] had been taken into custody, correct?

A: Correct.

N.T. 12/7/11 at 213-215.

On cross-examination, Mr. Nenninger indicated that, as of February 1, 2011, he was unaware Appellant was a convicted sex offender, on parole, or required to register his ...

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