Com. v. Halye

• Decision Date: 06 October 1998
• Parties: COMMONWEALTH of Pennsylvania, Appellee, v. Edward James HALYE, Appellant.
• Court: Pennsylvania Superior Court

719 A.2d 763

COMMONWEALTH of Pennsylvania, Appellee, v. Edward James HALYE, Appellant.

Superior Court of Pennsylvania.

Argued May 13, 1998.

Filed October 6, 1998.

Albert J. Flora, Jr., Wilkes-Barre, for appellant.

Peter Paul Olszewski, Jr., District Attorney and Frank P. Barletta, Assistant District Attorney, Wilkes-Barre, for Commonwealth, appellee.

Before McEWEN, President Judge, and DEL SOLE, KELLY, POPOVICH, FORD ELLIOTT, JOYCE, MUSMANNO, ORIE MELVIN and SCHILLER, JJ. DEL SOLE, Judge:

Following a jury trial, Appellant was convicted of two counts of involuntary deviate sexual intercourse, two counts of indecent assault, one count of corruption of minors and one count of endangering the welfare of children. Thereafter, the trial court initiated procedures to determine whether to classify Appellant as a "sexually violent predator," under the Registration of Sexual Offenders Act, 42 Pa.C.S.A. §§ 9791 - 9799.6 [the Act.] Following a report by the Sexual Offenders Assessment Board and a hearing, the court held that Appellant did not rebut the Act's presumption and, therefore, he was a "sexually violent predator." At sentencing the court also found Appellant was a "high risk dangerous offender" under 42 Pa.C.S.A. § 9714¹. In accordance with the mandatory minimum sentencing requirements of § 9714 and the mandatory maximum sentencing requirement of a life sentence under the Act, 42 Pa.C.S.A. § 9799.4, Appellant was directed to serve an aggregate term of imprisonment of 138 months to life. Appellant filed a post-sentencing motion challenging the constitutionality of the Act. The court denied it and this appeal followed. Finding merit in two of Appellant's claims, we vacate his sentence and remand for resentencing.

The questions presented for our review are whether the evidence is sufficient to sustain Appellant's conviction for endangering the welfare of children and whether the Act is constitutional. The constitutional challenge made by Appellant is based on a number of specific attacks on provisions of the Act, which are alleged to be violative of the Pennsylvania and United States Constitutions.² Because we conclude that the Act improperly places the burden of persuasion on a defendant in violation of federal procedural due process and is, therefore, unconstitutional, we need not examine the other constitutional questions raised by Appellant.

Before turning to Appellant's constitutional question, we will address his concern that the evidence presented by the Commonwealth was insufficient to sustain his conviction for endangering the welfare of children. The elements of this criminal offense are set forth in 18 Pa.C.S.A. § 4304, which provides:

Offense defined. -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 a duty of care, protection or support.

Appellant specifically alleges that he was not the parent or guardian of the child-victim and the Commonwealth did not establish that he was supervising the welfare of the child at the time of the assault. In reviewing a sufficiency of the evidence claim, we view the evidence, together with all reasonable inferences therefrom, in the light most favorable to the Commonwealth. Commonwealth v. Rose, 463 Pa. 264, 344 A.2d 824 (1975). A mere conflict in the testimony does not render the evidence insufficient, Commonwealth v. Verdekal, 351 Pa.Super. 412, 506 A.2d 415 (1986), because it is within the province of the fact finder to determine the weight to be given to the testimony and to believe all, part, or none of the evidence. Commonwealth v. Whitfield, 475 Pa. 297, 380 A.2d 362 (1977).

At trial the victim's mother testified that Appellant, who was her second or third cousin, had come to her home with her former mother-in-law for a visit. The witness stated that her husband, her son and her daughter were also at home that evening. The children were playing in a bedroom while the adults were in another part of the home. At one point, Appellant indicated that he had to go to the bathroom. When he did not promptly return, and the children became quiet, the mother testified that she became concerned and walked back to the bedroom to check on them. Her daughter was seen sitting on the edge of the bed playing a game by herself. Upon opening a closet door, Appellant was discovered with his head placed near her son's exposed privates.

Despite the criminal nature of Appellant's actions, which support his convictions for involuntary deviate sexual intercourse, indecent assault and corruption of minors, there is insufficient evidence of Appellant's role as a supervisor or guardian of the child to support the endangering the welfare of children conviction. No testimony was presented to indicate that Appellant was asked to supervise the children or that such a role was expected of him. Rather, Appellant was a visitor in the child's home. The child's parents were home and were supervising their children. This is evidenced by the mother's remarks that her concern for the children led her to check on them and to discover the assault by Appellant.

There is insufficient evidence to sustain a conviction for child endangerment where the Commonwealth fails to prove any statutory element. Commonwealth v. Pahel, 456 Pa.Super. 159, 689 A.2d 963 (Pa.Super.1997). In this matter, viewing the evidence in the light most favorable to the Commonwealth, we conclude that it failed in its burden of proving that Appellant was in the position of supervising the children at the time of the assault. Accordingly we reverse Appellant's conviction for endangering the welfare of children.

Appellant's conviction on the charges of involuntary deviate sexual intercourse and indecent assault led to the court's initiation of procedures to determine if Appellant was a "violent sexual predator." The court's ultimate finding and imposition of sentence, which included a mandatory maximum term of life imprisonment under the Act, caused Appellant to question its constitutionality. Among the claims made is that the Act improperly shifts the burden of persuasion to the defendant, in violation of federal procedural due process rights.

The Act, often referred to as Pennsylvania's Megan's Law, contains certain registration and notification provisions, as well as the mandatory maximum sentencing requirement, for those deemed violent sexual predators. Individuals convicted of certain specified sexually violent offenses are to be assessed by a state board composed of psychiatrists, psychologists and criminal justice experts, after conviction, but before sentencing. 42 Pa.C.S.A. § 9794(a) and § 9799.3. The Act declares that a presumption shall be applied in making this assessment. It specifically states:

An offender convicted of any offense set forth in section 9793(b)[listing certain sexually violent offenses] shall be presumed by the board and the court to be a sexually violent predator. This presumption may be rebutted by the offender by clear and convincing evidence at a hearing held in accordance with subsection (e).

42 Pa.C.S.A. § 9794(b).

Subsection (e) carries the presumption to the hearing stage of the proceeding. Within 60 days from the date of conviction, the board is required to submit a report to the court. 42 Pa.C.S.A. § 9794(d). Upon receipt of the report, and prior to sentencing, the court is directed to hold a hearing to determine if the offender is a sexually violent predator. 42 Pa.C.S.A. § 9794(e). After review of all the evidence presented at the hearing the court is to decide whether the presumption has been rebutted. Id.

Those not classified as "sexually violent predators" are required to register with the state police upon their release. The information gathered is then provided to the chief law enforcement officer of the police department of the municipality in which the offender will reside. 42 Pa.C.S.A. § 9793.

Those classified by the court as "sexually violent predators" are subject to certain registration and notification requirements under the Act which are much broader in scope than the registration and notification requirements applied to sex offenders who are not given this classification. 42 Pa.C.S.A. §§ 9795, 9797 and 9798. In addition, sexually violent predators are subject to a mandatory maximum sentence of life under 42 Pa. C.S.A. § 9799.4(a), mandatory counseling under § 9799.4(b), and mandatory life imprisonment if subsequently convicted of a sexually violent offense under § 9799.4(c). Thus, there is a discernable difference between those who are sex offenders and those classified by the court as "sexually violent predators." Van Doren v. Mazurkiewicz, 695 A.2d 967 (Pa.Cmwlth.1997).

This Court has had occasion to consider the constitutional validity of the registration provisions of the Act. Commonwealth v. Mountain, 711 A.2d 473 (Pa.Super. 1998). In Mountain, the sentencing court agreed with the report of the state board that the appellant did not fit the profile of a sexually violent predator, but nevertheless he remained subject to the registration procedures applicable to sexual offenders. The appellant challenged these procedures arguing that he was deprived of both federal and state procedural due process when a hearing was not held prior to the imposition of the registration requirements. We rejected the claim noting that this Court, in Commonwealth v. Gaffney, 702 A.2d 565 (Pa.Super.1997), held that the registration provisions of the Act are non-punitive. The panel in Mountain ruled that absent the deprivation of a liberty or property interest, a substantive or procedural due process claim will not survive. Mountain, 711 A.2d at 480.

In Gaffney a panel of this Court rejected a constitutional challenge to the Act which alleged that it violated the ex post facto clauses of the United States and Pennsylvania Constitutions. Gaffney, 702...