Com. v. Young, M. ( 2017 )

J-S04012-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
MICHAEL YOUNG,
Appellant No. 932 EDA 2016
Appeal from the Judgment of Sentence January 22, 2016
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0004285-2015
BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED MARCH 13, 2017
Appellant, Michael Young, appeals from the judgment of sentence
entered on January 22, 2016, as made final by the order determining him to
be a sexually violent predator (“SVP”) entered on February 22, 2016. We
affirm.
The trial court summarized the history of this case as follows:
FACTUAL HISTORY:
The basis for the Appellant’s charges stemmed from an
incident that occurred on March 16, 2015, when the police were
called to a home in Upper Darby Township, Delaware County,
PA. The Victim’s Mother reported to police that she had just
witnessed Appellant at the foot of her 16-year-old daughter’s
bed rubbing his hand on the Victim’s rectum and vagina over her
clothing. At the time of the incident, the Victim’s Mother was
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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Appellant’s girlfriend. The Victim stated that the Appellant
sexually assaulted her numerous times in the past, when he
would come into her bedroom at night, touch her breasts and
vagina and expose his penis to her.
PROCEDURAL HISTORY:
On September 1, 2015, David Iannucci, Esquire, Assistant
Public Defender, entered his appearance on behalf of the
Appellant. On September 14, 2015, the Appellant entered a
negotiated guilty plea to Indecent Assault-Person Unconscious.
On January 22, 2016, following the SVP Hearing, the Appellant
was sentenced pursuant to the recommended sentence offered
by the Commonwealth: Count 1, Indecent Assault, time served
to 12 months, and four years County probation, with a lifetime
registration requirement. On January 25, 2016, an Order and
Findings were filed by the Court. On February 1, 2016, the
Appellant filed a “Motion for Reconsideration”. On February 19,
2016, the Court issued a supplemental Order with additional
Findings determining that Appellant is a[n] SVP. [The Order was
entered on the trial court’s docket on February 22, 2016.] On
March 18, 2016, the Appellant filed a timely Notice of Appeal.
***
The Sexually Violent Predator Hearing:
After Appellant’s conviction, this Court, pursuant to the
provisions of 42 Pa.C.S.§ 9799.24, ordered Appellant be
assessed by the Pennsylvania Sexual Offenders Assessment
Board (SOAB) to determine if Appellant met the criteria set forth
in the law for a Sexually Violent Predator. Upon receipt of the
Order from the Court, the Board designated Board member
Melanie Cerone, Ph.D., a licensed psychologist, to make the
assessment of Appellant to determine whether he is a Sexually
Violent Predator.
Dr. Cerone completed a written report and submitted
findings to the Court. She outlined the facts she considered
relevant to each factor, as more fully set forth in her written
report. After review of the Board’s report, a Hearing was held on
January 22, 2016, to assist the Court in making an accurate
determination as to whether Appellant should be deemed a
Sexually Violent Predator. Dr. Cerone’s Report was admitted
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into evidence without objection as Commonwealth’s Exhibit, C-1
at the SVP Hearing held January 22, 2016. (N.T. 1/22/16 p.24).
This was uncontroverted evidence, as the Appellant did not
produce any witnesses at the SVP Hearing.
In preparation for her report, Dr. Cerone reviewed inter
alia: the S.O.A.B. (sexual offenders assessment board)
investigator’s report, police report, arrest report, letter from
victim’s mother, affidavit, complaint and Appellant’s criminal
history. Dr. Cerone reported that she did not interview the
Appellant. (See Commonwealth’s Exhibit, C-1). Dr. Cerone’s
report and testimony included the following.
1. The Appellant has an extensive criminal history
including violating state parole. Appellant’s criminal
history is reflective of his antisocial nature. He has
convictions for inter alia: Burglary, Aggravated
Assault, Terroristic Threats, Possession of an
Instrument of Crime (Firearm), Theft by Unlawful
Taking, Resisting Arrest and Receiving Stolen
Property, Simple Assault, and Terroristic Threat1. A
number of these offenses were committed while he
was on probation. The totality indicates antisocial
behavior. Further, the multiple criminal offenses go
toward a mental abnormality.
1
1995 and 1999.
2. Dr. Cerone determined that the Appellant’s acts
were predatory. In the instant offense, the Appellant
entered the young victim’s bedroom while she was
sleeping, rubbed her rectum and vagina over her
clothes. The Appellant exploited the victim for his
own sexual gratification. Dr. Cerone opined that the
Appellant has established a pattern of predatory
offending and his behavior meets the statutory
definition of predatory behavior.
3. Dr. Cerone also reported: “According to the
Childline report pertaining to the instant offense, the
victim related that a few days prior to the instant
offense, Appellant came into her bedroom while she
was asleep. The victim awoke to Appellant
attempting to remove her shorts. She stated that
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his penis was exposed. She reported that Appellant
did not say anything to her and left the room when
she woke up.” (Dr. Cerone’s Report p.3). As
previously noted, Dr. Cerone’s Report was admitted
into evidence as C-1 and [Appellant] had no
objection to the admission of the Report.
4. Dr. Cerone’s report, Commonwealth’s Exhibit, C-1,
evidenced her determination that Appellant is a
Sexually Violent Predator after taking into account
such factors that are provided in 42 Pa.C.S.
§9799.24(b). See, 42 Pa.C.S. §9799.10 et. seq.,
Dr. Cerone determined that the Appellant met the
statutory definition of a Sexually Violent Predator.
Dr. Cerone concluded: “it is this Board Member’s
professional opinion within a reasonable degree of
professional certainty that Appellant meets the
criteria to be classified as a Sexually Violent Predator
under the Act.[”] (C-1 p.11); (N.T. 1/22/16 p.23).
5. The Commonwealth proved by clear and
convincing evidence that Appellant suffers from a
mental abnormality or personality disorder that
makes Appellant likely to engage in predatory
sexually violent offenses. The evidence confirms
proof of a mental defect or personal disorder, which
is an indication of Appellant’s further dangerousness.
6. The credible testimony confirmed the following:
a. Records indicate that the Appellant’s instant
offense involved one female child victim.
b. The Appellant did not exceed the means
necessary to achieve the offense.
c. The Appellant entered the victim’s bedroom
while she was sleeping, rubbed his hand on her
rectum and vagina, over her clothing. The
Appellant exploited the victim for his own
sexual gratification.
d. The Appellant was 46 at the time of the
instant offense. His age compared to the age
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of his victim (16) is consistent with an
antisocial pattern of behavior.
e. Dr. Cerone reported that the Appellant met
DSM-5 diagnostic criteria for Antisocial
Personality Disorder. The Appellant has
demonstrated significant antisocial behavior as
an adult. He has a history of multiple arrests
and convictions for a variety of criminal
offenses. Further, the Appellant has failed to
profit from his experiences of being arrested
and sanctioned for his antisocial behavior, and
has responded poorly to parole supervision.
f. It is Dr. Cerone’s clinical opinion that the
Appellant has followed antisocial pathways to
sexual offending. Records indicate that the
Appellant has sexually abused a child victim
while she was sleeping. It is apparent that his
Antisocial Personality Disorder overrode his
judgment and behavioral control. The
Appellant’s behavior is associated
significantly with sexual offense
recidivism. (N.T. 1/22/16 p.21).
g. It is Dr. Cerone’s professional opinion within
a reasonable degree of professional certainty
that the Appellant suffers from a Mental
Abnormality/Personality Disorder as defined in
the Act. She testified at the SVP Hearing: “...I
believe he has an Anti-Social Personality
Disorder” (N.T. 1/22/16 p.21).
h. In addition, it is Dr. Cerone’s opinion, to a
reasonable degree of professional certainty,
that the Appellant currently meets the criteria
set forth in the law for Sexually Violent
Predator. (N.T. 1/22/16 p.23).
7. Dr. Cerone’s testimony was so clear, direct,
weighty and convincing to demonstrate that
Appellant suffers from a mental abnormality and
mental disorder or personality disorder that makes
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him likely to engage in predatory sexual violent
offenses.
After the Hearing, the Court, based on all the
evidence submitted at the Hearing, the Board’s
assessment, and the Court’s independent review,
concluded that Appellant met the criteria and shall
be classified as a Sexually Violent Predator. The
Commonwealth established by clear and convincing
evidence that Appellant is a Sexually Violent
Predator. 42 Pa.C.S. §9799.24.
Trial Court Opinion, 6/14/16, at 1-5 (emphasis in original). Both Appellant
and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
I) Whether the Commonwealth failed to present at the SVP
hearing held on January 22, 2016[,] clear and convincing
evidence sufficient to support the determination that [Appellant]
should be classified as a sexually violent predator where the
testimony and opinion of the Commonwealth’s expert, together
with [Appellant’s] history of record, did not demonstrate that it
was likely that [Appellant] would engage in sexually violent
offenses in the future.
Appellant’s Brief at 7 (full capitalization removed).
In his sole issue, Appellant challenges his classification as an SVP.
Appellant’s Brief at 11-16. Appellant alleges the evidence presented at the
SVP hearing was insufficient to support the trial court’s conclusion. Id. at
11-12. Appellant claims that the expert opinion that Appellant was likely to
reoffend was improperly based upon Appellant’s prior criminal record, which
contained no instances of sexual offenses. Id. at 13-14. Appellant
concludes the trial court erred in ruling the Commonwealth demonstrated by
clear and convincing evidence that he is an SVP. Id. at 16.
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An SVP is defined as:
an individual convicted of [a sexually violent offense as set forth
in 42 Pa.C.S. section 9799.14 (relating to sexual offenses and
tier system) and who], is determined to be a sexually violent
predator under [42 Pa.C.S.] section 9799.24 (relating to
assessments) due to a mental abnormality or personality
disorder that makes a person likely to engage in predatory
sexually violent offenses.
42 Pa.C.S. § 9799.12. A “mental abnormality” is a “congenital or acquired
condition of a person that affects the emotional or volitional capacity of the
person in a manner that predisposes that person to the commission of
criminal sexual acts to a degree that makes the person a menace to the
health and safety of other persons.” Id. “Predatory” conduct is “an act
directed at a stranger or at a person with whom a relationship has been
instituted, established, maintained, or promoted, in whole or in part, in order
to facilitate or support victimization.” Id. The “salient inquiry for the trial
court is the identification of the impetus behind the commission of the crime,
coupled with the extent to which the offender is likely to reoffend.”
Commonwealth v. Dixon, 907 A.2d 533, 536 (Pa. Super. 2006).
However, the risk of reoffending is but one factor to be considered when
making an assessment; it is not an “independent element.”
Commonwealth v. Morgan, 16 A.3d 1165, 1170–1172 (Pa. Super. 2011)
(citations omitted).
When the defendant is convicted of an offense listed in 42 Pa.C.S. §
9799.14, the trial court orders the S.O.A.B. to evaluate whether to
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recommend classifying the defendant as an SVP. Commonwealth v.
Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015). The evaluator whom
the Board selects to perform the assessment must weigh the following
fifteen factors: whether the instant offense involved multiple victims;
whether the defendant exceeded the means necessary to achieve the
offense; the nature of the sexual contact with the victim; the defendant’s
relationship with the victim; the victim’s age; whether the instant offense
included a display of unusual cruelty by the defendant during the
commission of the offense; the victim’s mental capacity; the defendant’s
prior criminal record; whether the defendant completed any prior sentences;
whether the defendant participated in available programs for sexual
offenders; the defendant’s age; the defendant’s use of illegal drugs; whether
the defendant suffers from a mental illness, mental disability, or mental
abnormality; behavioral characteristics that contribute to the defendant’s
conduct; and any other factor reasonably related to the defendant’s risk of
reoffending. See 42 Pa.C.S. § 9799.24(b) (setting forth assessment
factors). It is not necessary for all factors, or any particular number of
them, to be present to support an SVP designation. Commonwealth v.
Feucht, 955 A.2d 377, 381 (Pa. Super. 2008).
The Board must submit its written assessment to the district attorney,
42 Pa.C.S. § 9799.24(c), who then files a praecipe to schedule an SVP
hearing. 42 Pa.C.S. § 9799.24(e)(1). The Commonwealth has the burden
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at the hearing of proving by clear and convincing evidence that the
defendant is an SVP. 42 Pa.C.S. § 9799.24(e)(3). The Commonwealth
meets its burden by submitting evidence that is “so clear, direct, weighty,
and convincing as to enable the [trier of fact] to come to a clear conviction,
without hesitancy, of the truth of the precise facts at issue.”
Commonwealth v. Meals, 912 A.2d 213, 219 (Pa. 2006).
Our standard and scope of review is well-settled:
In order to affirm an SVP designation, we, as a reviewing court,
must be able to conclude that the fact-finder found clear and
convincing evidence that the individual is a[n SVP]. As with any
sufficiency of the evidence claim, we view all evidence and
reasonable inferences therefrom in the light most favorable to
the Commonwealth. We will reverse a trial court’s determination
of SVP status only if the Commonwealth has not presented clear
and convincing evidence that each element of the statute has
been satisfied.
Hollingshead, 111 A.3d at 189.
In addressing Appellant’s issue, the trial court opined as follows:
The issue raised by the Appellant for review presents a
challenge to this Court’s order finding him a Sexually Violent
Predator. On January 22, 2016, a Hearing was held stemming
from a praecipe filed by the Assistant District Attorney for the
Commonwealth, which was based upon the evaluation of Dr.
Melanie Cerone, Ph.D., member of the Pennsylvania Sexual
Offenders Assessment Board. The Court issued an order based
upon the Sexual Offenders Assessment Board’s determination
and the Hearing during which Dr. Cerone testified. The Court
determined that Appellant had met the criteria established in 42
Pa.C.S. § 9799.24. The Commonwealth established by clear and
convincing evidence that the Appellant suffers from a mental
abnormality/personality disorder that makes him likely to
engage in predatory sexual offenses.
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Dr. Cerone testified that Appellant meets the statutory
definition of an SVP, because: (1) he has been convicted of a
sexually violent offense, as set forth in SORNA Section 42
Pa.C.S. § 9799.14(b); and (2) he suffers from a personality
disorder, namely Anti-Social Personality Disorder, that makes
him likely to engage in predatory sexually violent offenses within
the meaning of SORNA, 42 Pa.C.S. § 9799.12. (N.T. 1/22/16
p.21).
As to the first prong, Appellant has been convicted of a
sexually violent offense. Sexual assaults on children are, by
definition, “sexually violent.” The term sexually violent predator
is a legal term which basically subsumes the idea that a sexual
violation is always violent. Commonwealth v. Prendes, 2014 Pa.
Super. 151, 97 A.3d 337, 348, appeal denied, 105 A.3d 736 (Pa.
2014).
As to the second prong, Dr. Cerone concluded that
Appellant suffers from Anti-Social Personality Disorder. She
explained that Anti-Personality Disorder is one of the two major
pathways to reoffending (the other being some form of
persistent pedophilic interest that lasted more than six months -
not present here). She opined:
despite his-as I said, his past experience of being
arrested, and sanctioned, and incarcerated, and
supervised. He sexually abused the victim to gratify
his own needs at the expense of the victim’s safety
and well-being. So I believe this is sufficient
evidence of a condition that overrode his control, and
likelihood of reoffending. Again, the two pathways,
chronic anti-sociality and sexual deviancy. And
certainly, having this anti-sociality has been shown
to be a significant predictor of sexual offense
recidivism. And this is relevant for Mr. Young.
Q. And that’s the reason why...that you’ll make the
diagnosis that he’s likely to reoffend-
A. Yes. That this-because of that diagnosis, yes.
Yes.
(N.T. 1/22/16 pp.21-22). Dr. Cerone then testified as to what
predatory behavior is generally and what specifically Mr. Young
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did that satisfied this pathway. (N.T. 1/22/16 p.23). She
concluded that the fact that he has a specific, congenital disorder
and has engaged in predatory behavior is what makes him more
likely to reoffend than someone that has no disorder.
Therefore, the Court found that the Appellant was a
Sexually Violent Predator under 42 Pa.C.S. §9799.24(e)(4). On
January 22, 2016, [the trial] court issued extensive Findings of
Fact and supplemented the Order with additional Findings on
February 19, 2016. . . .
Trial Court Opinion, 6/14/16, at 5-7.
Our review of the record reflects that at Appellant’s SVP hearing the
Commonwealth presented the eleven-page expert report of Dr. Melanie
Cerone, who opined that Appellant is an SVP based upon various section
9799.24 factors. N.T., 1/22/16, at 10-11, 24. We have carefully reviewed
the evidence, including the transcript from the SVP hearing, Dr. Cerone’s
report, the trial court’s SVP order, and the thorough opinion drafted by the
trial court. Of particular note is the following testimony offered by Dr.
Cerone regarding Appellant’s predatory behavior:
Q So what goes into determining that, and I guess before
your answer, is it simply because they’re convicted of sex
offenses, that they meet that prong?
A No. The Statute defines predatory as an act directed at a
stranger or at a person with whom a relationship’s been
established, or initiated, maintained, promoted, in whole or in
part, for the purpose of victimization, to facilitate victimization.
So, no, simply because somebody has been convicted of a sexual
offense, does not necessarily mean that they are going to meet
that predatory prong. And I have had cases where I have found
that the individual did not engage in predatory behavior.
Q What was, in this particular case, why did [Appellant] meet
the predatory prong?
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A In this case, [Appellant] had access to the victim through
his relationship with the victim’s mother. He was an authority
figure. He was residing with the victim. He took advantage of
the fact that the victim was sleeping. There -- in the records it
indicated that while she was sleeping, he entered her bedroom.
He touched her genitalia, attempted to remove her shorts,
exposed his penis to the victim. These behaviors are all
predatory behaviors, the exploitive nature, he took advantage of
the victim. According to the victim, this occurred on multiple
occasions in the past. [T]he victim reported that the night prior
to the instant offense, she awoke to [Appellant] exposing his
penis to her, and attempting to remove her shorts. And those
behaviors, and in my mind, meet that Statute.
N.T., 1/22/16, at 22-23.
We agree with the trial court that the Commonwealth provided clear
and convincing evidence to determine that Appellant is an SVP. Therefore,
Appellant’s claim to the contrary fails.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/13/2017
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