Appeal from the Judgment of Sentence November 26, 2012 in the Court of Common Pleas of Franklin County Criminal Division at No.: CP-28-CR-0001367-2011
BEFORE: DONOHUE, J., OTT, J., and PLATT, J. [*]
Appellant, Christopher Robert Locke, appeals from the judgment of sentence imposed after his guilty plea to statutory sexual assault and unlawful contact with a minor. Specifically, he challenges the weight of the evidence for the determination that he is a sexually violent predator (SVP). He argues there was no evidence that he targeted young girls. He also objects to the finding of force. We affirm.
On May 30, 2012, Appellant entered a counseled, negotiated guilty plea to statutory sexual assault, and unlawful contact with a minor, in exchange for the nolle prossing of rape and related charges and an agreed aggregate sentence of not less than nine nor more than twenty-three months' incarceration.
The charges arose from an incident on April 15, 2011 involving Appellant's visit to the Waynesboro house of the victim, S.S., then a 13 year old girl (born July 22, 1997), when her mother was not home, and having sexual intercourse with her, after they met through a mutual friend. The victim's mother, on returning home, found the pair in a locked bedroom inside a locked house. The house was not typically locked. Even though Appellant was twenty-one years of age (born December 11, 1989), he told the victim (and her mother) that he was seventeen. Mother called the police.
Police arranged for a hospital examination by a SANE (Sexual Assault Nurse Examiner) nurse. In her first interview with the police, the victim denied intercourse, claiming that when she asked Appellant to stop, he stopped. (See Affidavit of Probable Cause, 5/05/11, at 1, 2). However, in July of 2011, after receiving information from the State Crime Laboratory that male sperm was found both in the victim's underwear, and the vaginal swab taken during the rape examination, Waynesboro police scheduled a re- interview. (See Supplement to Waynesboro Police Incident Report, 6/24/11, at page 7 of 12).
On July 8, 2011, police interviewed S.S. at the Waynesboro police station. This time her mother agreed to wait in the hallway. (See Supplement to Waynesboro Police Incident Report, [dated 7/08/11;] filed 7/09/11, at page 7 of 12). When the police presented the victim with the lab report finding male sperm in her underwear and in the vaginal swab taken by the SANE nurse, she admitted intercourse with Appellant, explaining she had denied it previously because she didn't want her mother, or anyone, to know. (See id.). She stated Appellant "pushed her down on the bed . . . got on top of her . . . and held her down by using both his hands to hold her arms down." (Id.). S.S. told Appellant to stop; he did not. (See id.). The sex included penile penetration of the vagina and ejaculation. (See id.; see also N.T. SVP Hearing, 11/26/12, at 10-12).
At the time of the offense, Appellant was already under supervision in neighboring Adams County for a conviction resulting from a somewhat similar prior incident with another 13 year old girl, which occurred on June 22, 2010. That episode was interrupted by the girl's mother before sexual activity occurred. In the Adams County incident, Appellant was arrested on August 24, 2011, charged with display of obscene materials to a minor (he sent e-mails of his genitals to the victim), convicted, and sentenced to forty-eight months in an intermediate punishment program (IPP).
On May 30, 2012, Appellant withdrew his not guilty pleas and entered a counselled, negotiated guilty plea to statutory sexual assault, a felony of the second degree, and unlawful contact with a minor, a felony of the third degree with a predicate offense of indecent assault, 18 Pa.C.S.A. § 3126(a)(8) (complainant less than 16 years of age and person is four or more years older than complainant and complainant and person are not married to each other), as a felony of the third degree.
Plea counsel, who also represents Appellant on appeal, declined to have Appellant cooperate with Sexual Offenders Assessment Board (SOAB) member Herbert Hays. After Hays filed a written report recommending SVP designation, counsel engaged their own expert, Timothy Foley, who provided a report finding that Appellant was not a Sexually Violent Predator. The parties stipulated to the expertise of both witnesses. (See N.T. SVP Hearing, at 5). Both experts testified at the November 26, 2012 SVP hearing. The court determined Appellant to be a Sexually Violent Predator. (See Order, 12/04/12). On the same day of the hearing, the court imposed the agreed aggregate sentence of not less than nine nor more than twenty-three months' incarceration in county prison, with credit for time served. (See Order, 11/26/12).
On November 29, 2012, Appellant filed a counseled post sentence motion, subsequently amended, but substantially similar, asking the trial court, inter alia, "to vacate the SVP order and enter judgment in his favor or for such other relief as the [c]ourt deems appropriate." (Post Sentence Motion, 11/29/12, at 1). The motion challenged the sufficiency and the weight of the evidence for the SVP determination. (See id. at 1-2; see also Amended Post Sentence Motion, ...