Com. v. Wright, E. ( 2022 )

J-A18025-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
EDWARD E. WRIGHT :
:
Appellant : No. 988 WDA 2021
Appeal from the Judgment of Sentence Entered July 22, 2021
In the Court of Common Pleas of McKean County
Criminal Division at CP-42-CR-0000204-2020
BEFORE: STABILE, J., MURRAY, J., and McLAUGHLIN, J.
MEMORANDUM BY MURRAY, J.: FILED: SEPTEMBER 7, 2022
Edward E. Wright (Appellant) appeals from the judgment of sentence
imposed after he pled guilty to indecent assault (without consent), indecent
assault (complainant less than 16), and corruption of minors.1 We affirm.
The trial court summarized the case history as follows:
A.A. … began working at Wright’s Music Shed, which is
owned by [Appellant], [in 2017,] when she was 14. She
considered [Appellant] as “somewhat of a mentor.” When she
was 15 and still working at Wright’s Music Shed[, Appellant] began
complimenting her, including calling her “beautiful.” He then
began touching and massaging her. This led to him touching, or
as [A.A.] described it, “cupping,” her breasts. He also “rubbed”
her inner thigh. This behavior took place in a secluded upstairs
office. [Appellant] told A.A. that he wanted to have a relationship
with her when she turned 18. At the time [Appellant] committed
these offense[s,] he was 66 or 67 years old.
____________________________________________
1 18 Pa.C.S.A. §§ 3126(a)(1) and (8), and 6301.
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[Appellant] was previously convicted at McKean County
Docket [] 128 CR 1986 of: three (3) counts of corruption of
minors, 18 Pa.C.S. § 6301; three (3) counts of indecent exposure,
18 Pa.C.S. § 3127; and four (4) counts of indecent assault, 18
Pa.C.S. § 3126. At the time the Appellant committed these prior
offenses, he was a band director at the Bradford Area High School.
His responsibilities as a band director included instructing and
supervising male and female teenage students. He formed
relationships with several of his female students and thereafter
sexually assaulted them. There were three teenage victims at 128
CR 1986, with separate incidents of sexual assault, indecent
exposure and corruption of minors involving each of them.
Trial Court Opinion, 10/11/21, at 3-4.2
Appellant entered his guilty plea on January 7, 2021. That same day,
the trial court ordered Appellant to undergo an assessment as to whether he
met the statutory requirements for classification as a sexually violent predator
(SVP).
The trial court held an SVP hearing on July 11, 2021. Gregory A. Henry,
Esquire (Trial Counsel), appeared on Appellant’s behalf. The Commonwealth
presented testimony from (1) the investigator assigned to Appellant’s case,
an agent of Pennsylvania’s Sexual Offenders Assessment Board (SOAB); and
(2) Appellant’s SOAB evaluator, Brenda Manno, MSW, LCSW (Ms. Manno).
The court qualified Ms. Manno as an expert in the field of sex offender
assessment without objection by Appellant. N.T., 7/11/21, at 18.
____________________________________________
2Appellant also committed sex offenses against a fourth minor female in the
1980s.
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Ms. Manno testified that she evaluated Appellant and made findings with
respect to each of the SVP assessment factors set forth at 42 Pa.C.S.A. §
9799.24(b)(1)-(4). See N.T., 7/11/21, at 18-28. She opined that Appellant
“met the diagnostic criteria for unspecified paraphilic disorder as is found in
the DSM-5.”3 Id. at 28-29; see also id. at 25 (“[I]n the DSM-5, paraphilia
involves intense thoughts, fantasies or behaviors spanning at least a six-
month period.”). Ms. Manno further testified that Appellant posed a risk for
reoffending:
[H]aving the paraphilic diagnosis indicat[es] we do have an
established pattern of sexually deviant behavior with children,
that increases [Appellant’s] likelihood of offending versus other
offenders who do not have such diagnoses.
Id. at 28. Noting the significant age difference between Appellant and A.A.,
Ms. Manno stated, “recidivism tends to decline with age, [but Appellant]
clearly recidivated even after he was over 60 years of age.” Id. at 23; see
also id. at 39-42, 44-47 (Trial Counsel cross-examining Ms. Manno about
recidivism and elderly offenders). Ms. Manno concluded Appellant “does meet
the criteria to be deemed a sexually violent predator under statute.” Id. at
30.
A dispute arose with respect to the qualification of Appellant’s expert,
Robert Maiden, Ph.D. (Dr. Maiden), a licensed clinical psychologist and
____________________________________________
3 The Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition
(DSM-5) is a widely used manual for psychiatric diagnosis. See, e.g.,
Commonwealth v. Woeber, 174 A.3d 1096, 1107 n.11 (Pa. Super. 2017).
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professor at Alfred University in New York. Id. at 53. The trial court issued
a “split decision,” qualifying Dr. Maiden as an expert as to whether an
individual has “unspecified paraphilic disorder,” but not as to whether
an individual is an SVP. Id. at 70-71.
As we discuss in greater detail below, Dr. Maiden testified that Appellant
did not meet the diagnostic criteria for “unspecified paraphilic disorder.” Id.
at 74-75; see also id. at 79-80. In particular, Dr. Maiden opined that
Appellant did not exhibit the requisite “irresistible urge” symptoms. See id.
at 74-75.
The trial court found the Commonwealth proved that Appellant met the
requirements for classification as an SVP. Id. at 120. The court explained its
reasoning as follows:
Each side has really had me thinking today. And a big
reason for that is we have two good professionals in their field
provide different opinions. And it’s difficult because they both
have good qualifications[.] …
So it comes down to [] whose opinion should the court
accept … from these two veteran, qualified individuals. … And it
comes down to a couple points that I’m going to outline.
First, it was appropriate … [for] the defense to
emphasize that the rate of recidivism goes down with age.
That was brought up through the direct testimony of expert [Ms.]
Manno. And she provided those numbers. They’re in the record.
They’re … very low. … Almost … down to zero. But not zero. So
… that’s a factor here because I have to decide does [Appellant]
have unspecified paraphilic disorder, and will he re-offend.
….
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[A]ge is a relevant factor here[.] ... There’s no dispute
about it, that the likelihood of re-offending goes way down
with age. The studies show, as was said several times here.
….
[Appellant is] 66 and he committed the offense[s]. So
to get into the statistics, the statistics say that’s unlikely
for him to have … done that. But he did.
….
I will accept that [Appellant] will be into his 70s, or close to
it when his period of confinement is done. But if he’s this age and
he offended, the statistics from the general group don’t have a lot
of meaning because if he’s 66, when he’s 75 or 72 or whatever, is
there a lot of difference between when he was 66[?] … So the
reference to studies and the low numbers of re-offending
doesn’t have a lot of bearing as it would if [Appellant] was
30 because considering his age now, it’s difficult to apply
the statistical analysis here. …
….
And one thing that I really struggled with [is] how I should
[] analyze the assertion that well, in 1986 there were several
victims. And now we’re 30 years out and [until this case] there’s
no other victims. Now, [Dr. Maiden made] … reference to
there’s no other reports. And then I really struggled with that.
Well, that’s true, there are no other reports. [Appellant] wasn’t
convicted of any offenses since … 1986. And the court certainly
can’t consider something that isn’t in the record. So there’s no
reports. That’s a factor. I agree it is. But then [Dr. Maiden]
even went further. [] Dr. Maiden went way out on that and said
well, … in today’s world with the internet and everything, we’d
know. [W]e’d know if there w[ere] other victims. And I reject
that assertion completely. There are many victims who do not
come forward for a variety of reasons.
….
So I can’t find here that there were other victims. But
I certainly can’t find that I have to 100 percent conclude
there weren’t because no one else reported an offense. And
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that isn’t as much a factual issue as it goes to the understanding
of sexual offenses and whose opinion to accept or not.
That … really drew me to the conclusion that I’m going to
accept the opinion of expert [Ms.] Manno, her history,
training, experience. I’m not downplaying … Dr. Maiden. …
You know, his experience as outlined in his curriculum vitae shows
he does have great experience.
However, as [Dr. Maiden] said, [he is] like [a] general
practitioner. [He has] to cover a lot of areas. It’s different with
[Ms.] Manno. She’s covered this area, treatment of sex offenders,
understanding them, training regarding them, [and she has
performed] … thousands of [SVP] evaluations. More where
individuals were found not to be sexually violent predators than
where they were. So again, I accept her opinion. I believe [Ms.
Manno] has much broader and specific knowledge
regarding … sex offenses and a specific diagnosis.
I also had a real hard time with the assertion[, by Dr. Maiden
on direct examination,] that if someone has a disorder, … they
would act out all the time. Even individuals with disorders, there
are certainly those that can’t control [urges] at all, period. But
there are others that will look for opportunities and not take
risks[.] …
So I had a real problem with well, because someone doesn’t
act out all the time, they wouldn’t have this condition. I didn’t
accept that. I felt that the explanation of what is required for [an
SVP] diagnosis was clear, and more acceptable from [Ms.] Manno.
….
So I find [Appellant] is an SVP, sexual violent predator. I
find that the Commonwealth has demonstrated that by
clear and convincing evidence.
Id. at 115-20 (emphasis added).
On July 22, 2021, the trial court sentenced Appellant to an aggregate 1
– 2 years of imprisonment, followed by 4 years of probation. The court also
ordered Appellant to register as a sex offender for life, pursuant to
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Pennsylvania’s Sex Offender Registration and Notification Act (SORNA), 42
Pa.C.S.A. §§ 9799.10—9799.42.4 Appellant timely appealed. Both Appellant
and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents eight issues for review:
1.) Did the lower court err in ruling that the Appellant’s expert
could testify about whether, under the DSM-5, the Appellant
has unspecified paraphilic disorder – but could not testify
about how the Appellant’s age affected his likelihood of
reoffending?
2.) Did the lower court err in ruling that only the
Commonwealth’s expert, who it questioned on the issue,
could testify about how the Appellant’s age affected his
likelihood of reoffending?
3.) Did the lower court err in prohibiting the Appellant’s expert
from testifying about a particular study … of which he was
aware that challenged the Commonwealth’s expert’s
knowledge of recidivism rates in offenders over 60 and over
70 years of age?
4.) Did the lower court err in ruling that the Appellant’s expert
could not testify whether or not the Appellant was an SVP,
that the Appellant’s expert was not qualified to testify about
most all SVP assessment factors recited at Title 42 Pa.C.S.A.
§ 9799.58(b)(1) through (b)(4),[5] and that he could not, in
particular, testify about the assessment factor at Title 42
Pa.C.S.A. § 9799.58(b)(4)?
5.) Did the lower court err in assuming, and in concluding, that
the Appellant may have re-offended from 1986 through
____________________________________________
4 Appellant is subject to SORNA Revised Subchapter H, as he committed the
offenses against A.A. after December 20, 2012. See Commonwealth v.
Torsilieri, 232 A.3d 567, 573-74 (Pa. 2020) (explaining amendments).
5 Appellant cites SORNA Revised Subchapter I, despite being subject to
Revised Subchapter H. Regardless, the 15 statutory SVP factors apply to both
subchapters.
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November/December 2018 – even though no evidence to this
effect was introduced – thereby improperly shifting the
burden of proof from the Commonwealth to the Appellant and
diluting the clear and convincing burden of proof required?
6.) Did the lower court err in concluding that the Appellant’s
expert’s review of relevant statutes and cases demonstrated
his lack of qualifications to testify about the assessment
criteria at 42 Pa.C.S.A. § 9799.58 and about the Appellant’s
alleged SVP status?
7.) Did the lower court err in concluding that the Appellant’s
expert could not testify about the Appellant’s likelihood of
reoffense, about the assessment factor at 42 Pa.C.S.A.
§ 9799.58(b)(4), and about how the Appellant’s age was
relevant to his likelihood of re-offense – after the
Commonwealth opened the door for the Appellant’s expert
testimony on those issues?
8.) Did the lower court err in questioning why the Appellant even
wanted his expert to challenge the Commonwealth’s expert’s
opinion on the recidivism rates of offenders past 70 years of
age – because the rates of recidivism recited [by] the
Commonwealth’s expert were “very low”?
Appellant’s Brief at 6-8 (footnote 5 added, some citations modified).
Though Appellant presents eight issues, he makes one argument,
without subheadings or distinction. See id. at 11-32. Pursuant to Pa.R.A.P.
2119(a):
The argument shall be divided into as many parts as there are
questions to be argued; and shall have at the head of each part--
in distinctive type or in type distinctively displayed--the particular
point treated therein, followed by such discussion and citation of
authorities as are deemed pertinent.
Id. We overlook this defect, and like Appellant, address the issues together.
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Each of Appellant’s issues implicate the trial court’s evidentiary rulings
and its qualification of Dr. Maiden. We review these claims mindful of the
following:
The admission of evidence is a matter vested within the
sound discretion of the trial court, and such a decision shall be
reversed only upon a showing that the trial court abused its
discretion. The standard for qualification of an expert witness is
a liberal one. The test to be applied when qualifying an expert
witness is whether the witness has any reasonable pretension to
specialized knowledge on the subject under investigation. If he
does, he may testify and the weight to be given to such testimony
is for the trier of fact to determine. A witness does not need
formal education on the subject matter of the testimony, and may
be qualified to render an expert opinion based on training and
experience.
Expert testimony is permitted as an aid to the jury when the
subject matter is distinctly related to a science, skill, or occupation
beyond the knowledge or experience of the average layman.
Conversely, expert testimony is not admissible where the issue
involves a matter of common knowledge.
Commonwealth v. Smith, 206 A.3d 551, 560 (Pa. Super. 2019) (citations
omitted). Further, evidence is only admissible if relevant, i.e., where it has
probative value with respect to a material fact. Pa.R.E. 402.
Pursuant to Pennsylvania Rule of Evidence 702:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average
layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue; and
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(c) the expert’s methodology is generally accepted in the
relevant field.
Pa.R.E. 702. The burden of proof is on the proponent to establish the expert
meets the criteria of Rule 702. Commonwealth v. Walker, 92 A.3d 766,
790 (Pa. 2014).
Finally, expert testimony in a criminal proceeding implicating sex
offenses is governed by 42 Pa.C.S.A. § 5920, which provides:
(b) Qualifications and use of experts.—
(1) In a criminal proceeding subject to this section, a
witness may be qualified by the court as an expert if the
witness has specialized knowledge beyond that possessed
by the average layperson based on the witness’s experience
with, or specialized training or education in, criminal justice,
behavioral sciences or victim services issues, related to
sexual violence, that will assist the trier of fact in
understanding the dynamics of sexual violence, victim
responses to sexual violence and the impact of sexual
violence on victims during and after being assaulted.
(2) If qualified as an expert, the witness may testify to facts
and opinions regarding specific types of victim responses
and victim behaviors.
42 Pa.C.S.A. § 5920(b)(1)-(2).
Appellant argues the trial court erred regarding its limited qualification
of Dr. Maiden. See Appellant’s Brief at 10-33. Appellant claims:
The lower court’s rulings: 1) that Dr. Maiden was not qualified
regarding sexual predator evaluations and the factors (see 42
Pa.C.S. § 9799.58(b)(1) through (b)(4)) that go into them; 2)
that Dr. Maiden was not qualified as an expert to say whether the
Appellant is, or is not, a violent sexual predator; 3) that he was
qualified only as an expert in the DSM-5 and about whether or not
the Appellant has an unspecified paraphilic disorder; and 4) that
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Dr. Maiden was not qualified to testify about recidivism rates in
elderly offenders and their application to the Appellant –
effectively permitted Dr. Maiden to testify only about [the] SVP
assessment factor [at] § 9799.58(b)(3)(iii) [(“Characteristics of
the individual, including … mental illness, mental disability or
mental abnormality”)], and no others. Most particularly, the lower
court’s rulings prohibited Dr. Maiden from testifying about any
factor, such as age, (see [id.] § 9799.58(b)(4)) that would be
reasonably related to the risk of re-offense.
Appellant’s Brief at 24-25. Appellant requests “remand[] to the lower court
for the conduct of a new SVP hearing where the Appellant’s expert is qualified
to offer an opinion and report about all assessment criteria recited at [] 42
Pa.C.S.A. § 9799.58.” Id. at 33.
In response, the Commonwealth argues:
Appellant’s complaints that the trial court would not accept
testimony about recidivism at older ages is misplaced. The trial
court accepted it a[s] true but found [Appellant] did, in fact,
reoffend in his late 60s, even if that fact is inconsistent with
general statistics.
***
[D]espite finding [Dr. Maiden] an expert in some areas but
not others, the court actually did consider Dr. Maiden’s testimony,
but it made it clear [that the court] found the opinion of Ms. Manno
to be more accurate and her qualifications more significant. This
determination was within the discretion of the court and was
supported by the record.
Commonwealth Brief at 5, 8. Upon review, we conclude the record supports
the Commonwealth’s assessment.
SORNA requires a trial court to order a defendant convicted of a
“sexually violent offense” to be assessed by the SOAB. 42 Pa.C.S.A. §
9799.24(a); see also id. § 9799.12 (defining sexually violent offense). The
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SOAB is responsible for conducting an assessment to determine whether the
individual should be classified as an SVP. Id. § 9799.24(b). The assessment
involves 15 factors, set forth at 42 Pa.C.S.A. § 9799.24(b)(1)-(4). See also
Commonwealth v. Brooks, 7 A.3d 852, 863 (Pa. Super. 2010) (all 15 factors
need not be present to support an SVP designation).
Under SORNA, an SVP is an individual who has been convicted of one of
the enumerated sex offenses, and “who is determined to be a[n SVP] under
section 9799.24 (relating to assessments) due to a mental abnormality or
personality disorder that makes the individual likely to engage in predatory
sexually violent offenses.” 42 Pa.C.S.A. § 9799.12. An act is considered
“predatory” if it is “directed at a stranger or at a person with whom a
relationship has been initiated, established, maintained or promoted, in whole
or in part, in order to facilitate or support victimization.” Id.
After the SOAB completes its assessment, the trial court holds a hearing
to “determine whether the Commonwealth has proved by clear and convincing
evidence that the individual is a[n SVP].” Id. § 9799.24(e)(3).
The specific question for … any [] expert who testifies at an SVP
hearing[] is whether the defendant satisfied the definition of
sexually violent predator set out in the statute, that is, whether
he or she suffers from “a mental abnormality or personality
disorder that makes the individual likely to engage in predatory
sexually violent offenses.”
Commonwealth v. Dixon, 907 A.2d 533, 536 (Pa. Super. 2006) (citation
omitted).
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Here, Appellant sought to present Dr. Maiden as an expert with respect
to whether Appellant was an SVP. N.T., 7/11/21, at 53. Dr. Maiden testified
that he performed a psychological evaluation of Appellant, and reviewed Ms.
Manno’s SOAB report concerning Appellant. Id. at 59-60. Dr. Maiden
responded in the affirmative to Trial Counsel asking: “[A]re you sufficiently
qualified to evaluate Ms. Manno’s conclusion about whether or not [Appellant]
has a mental abnormality or personality disorder as set forth in the DSM?”
Id. at 62. Trial counsel then sought to
qualify Dr. Maiden as an expert in the … psychological evaluation
of individuals, including individuals that have been convicted of
sex crimes, and as an expert sufficient to evaluate the conclusions
of Ms. Manno as set forth in her report …, specifically the
conclusion that [Appellant] has a mental abnormality or a
disability, that specifically being unspecified paraphilic
disorder as set forth in the DSM-5.
Id. at 62-63 (emphasis added).
Dr. Maiden testified that he resides in New York State and has “not had
any training regarding the Pennsylvania sexual assessment.” Id. at 63; see
also id. at 66 (stating he never performed an SVP assessment). Dr. Maiden
testified he had some experience evaluating sex offenders in New York. Id.
at 64-65; see also id. at 65 (Dr. Maiden testifying, “New York State has a
different type of law. But I have made … evaluations in terms of [sex
offenders’] likelihood of re-offending and their threat to society.”). In further
questioning by Trial Counsel, Dr. Maiden confirmed he had reviewed
information including case law on Pennsylvania law that dealt with
the definition of the terms mental disability and mental
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abnormality, all for the purpose of permitting [Dr. Maiden] to
assess [Appellant] and to evaluate the report of Ms. Manno[.]
Id. at 68.
The Commonwealth objected to the qualification of Dr. Maiden as an
SVP expert, arguing:
[T]his is a very particular area that [Dr. Maiden] is not
qualified to give an opinion on. By his own admission, it sounds
like he read some case law. But we’re talking about whether
somebody has … experience, knowledge, [or] something above
what other people have. And he doesn’t have any education or
experience regarding this particular issue.
There may be other things that he could be qualified as an
expert on and probably has. But what he’s being asked to give
an expert opinion [on] here is beyond his area of expertise as has
been presented.
Id. at 69. Trial Counsel argued to the contrary. See id. at 69-70.
The trial court then decided:
THE COURT: Okay. This is going to be a split decision. …
[Dr. Maiden] has never … made an SVP determination. He
indicated, … while we don’t have Megan’s Law in New York, [] I
believe that we have similar things here, the tiers and things. So
he’s not an expert, he’s not qualified regarding sexual violent
predator evaluations, the factors that go into them. So I’m not
qualifying him in that area.
What I will qualify him in … as an expert is whether
an individual, in particular [Appellant], has unspecified
paraphilic disorder. That’s part of the conclusion that [Ms.]
Manno looked at[.]
And [Dr. Maiden] is qualified as an expert in the DSM-
5 … [and] whether someone [does] or … does not have an
unspecified paraphilic disorder. He is an expert in in that field.
He can render an opinion on that. But he’s not qualified as an
expert to say [Appellant] is or isn’t [a] sexual[ly] violent predator.
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Id. at 70-71 (emphasis added). We discern no error or abuse of discretion.
On direct examination, Trial Counsel asked Dr. Maiden whether
Appellant met the criteria for “unspecified paraphilic disorder, as that term is
defined in DSM-5[.]” Id. at 74. Dr. Maiden responded:
It’s my opinion or belief that [Appellant] does not meet
that diagnosis, and because he lacks certain really key
symptoms that characterize such people.
….
[W]e do not see the intensity or the irresistible urge
symptoms in [Appellant]. I’m not in any way saying or supporting
or anything that he did was normal or acceptable. I’m just stating
that it does not meet the diagnostic criteria of the DSM-5.
Id. at 74-75 (emphasis added). Dr. Maiden agreed with Ms. Manno that
unspecified paraphilic disorder is a “lifetime, chronic condition[.]” Id. at 80.
Unlike Ms. Manno, however, Dr. Maiden opined Appellant did not suffer from
this condition and stated, “I do not believe that [Appellant] would have been
able to function for 35 years … living a normal lifestyle and maintaining a
marriage with all kinds of children … around him” without incident. Id.;6 cf.
____________________________________________
6 Regarding Appellant’s offenses involving A.A., Dr. Maiden emphasized on
direct
the fact that [A.A.] remained [working at Appellant’s music store]
for months afterwards, after those [inappropriate] encounters,
and he did not approach her or attempt to do any kind of sexual
act. That would be almost impossible in my opinion as somebody
that has that diagnosis[, i.e., unspecified paraphilic disorder].
Id. at 76.
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42 Pa.C.S.A. § 9799.12, supra (defining an SVP as an individual, convicted
of one of the enumerated offenses, who has “a mental abnormality or
personality disorder that makes the individual likely to engage in predatory
sexually violent offenses.”).
Trial Counsel then asked Dr. Maiden whether he was “familiar with
literature on recidivism rates for individuals in their late 50s, 60s, and 70s?”
Id. at 81. The Commonwealth objected to this question as “beyond the scope
of [Dr. Maiden’s] expertise.” Id. The trial court sustained the objection,
agreeing it was “outside of [Dr. Maiden’s] qualification as an expert.” Id. at
82. Trial counsel noted his exception to the ruling. Id.
On cross-examination, the Commonwealth asked Dr. Maiden, “how do
you know [Appellant] did not attempt to victimize young women” between his
sex assaults in the 1980s and his assaults of A.A. Id. at 83. Dr. Maiden
answered:
Well, we don’t know that for 100 percent sure, right? But
we would know if criminal cases came up for people who filed
charges or complained about [Appellant’s] inappropriate
approaches. And in today’s world, I think that would occur.
Id. (emphasis added).
Regarding the DSM-5 definition for unspecified paraphilic disorder, the
Commonwealth asked Dr. Maiden:
Q. Do you agree with me that having five victims of a similar
age in a similar inferior position would denote a preferential sexual
interest in that group of characteristics?
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A. I don’t think you could say that that is his preferential area
of interest because [Appellant] states that he’s been happily
married and [has] a good sex life with his second wife.
Id. at 95.
Trial Counsel subsequently argued to the trial court:
[P]articularly since [Dr. Maiden has] been allowed to testify about
the likelihood of re-offense, if he were not permitted to testify
about studies with which he is familiar as to how [Appellant’s] age
after he is done with probation would impact upon the likelihood
of reoffense, that seems terribly illogical to me.
Id. at 100.
The trial court responded:
I’m not changing my ruling. There’s already evidence in the
record that it’s 3.8 percent in your 60s[, i.e., the statistical
recidivism rate]. And then there’s evidence that it goes down one
point to 2.8 [percent]. So why you’d want to question [Dr.
Maiden] anyway when that’s already in the record and isn’t in
dispute, I’m not sure.
Id.
The Commonwealth questioned Ms. Manno on re-direct. See id. at 102-
05. With respect to Dr. Maiden’s testimony regarding Appellant’s 35-year
period of not re-offending, Ms. Manno testified, “to say [Appellant] would
victimize anyone he had access to that was, let’s say a postpubescent female,
I think is a very inaccurate statement to make.” Id. at 103-04. The
Commonwealth asked, “does it say anything to you about [Appellant’s]
impulse control that he had been punished previously, yet did it again?” Id.
at 104. Ms. Manno replied:
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Yes. And … we have no idea about [Appellant’s] urges or fantasies.
All we know about is behavior. So we know that he engaged in this
behavior again and recidivated because we’re here today. That
doesn’t mean[] that there were urges and behaviors that he had
that perhaps were controlled over time.
Id.
At the close of testimony, Trial Counsel moved for admission of Dr.
Maiden’s report. Id. at 105. The Commonwealth objected. Id. The trial
court overruled the objection, explaining:
I am going to allow it in. It’s up to [t]he [c]ourt to weigh the
report and to distinguish the portions that were allowed to be
presented, that [Dr. Maiden] was qualified as an expert for, and
those that he wasn’t. Of course, if he wasn’t qualified as an expert
in an area, and there’s an opinion in his report regarding that, it
will be disregarded by the [c]ourt because it’s outside of the area
that he was qualified as an expert in.
Id. at 105-06.
The trial court quoted Dr. Maiden’s expert report, admitted as Exhibit 6,
in further explaining:
The court did not accept the opinions and conclusions expressed
by [Appellant’s] purported expert, Dr. Robert Maiden, Ph.D. Dr.
Maiden had little prior experience regarding sexually violent
predator evaluations. Further, he utilized troubling factors in
reaching his conclusions, such as: 1) since [Appellant’s] victims
were not minors[,] as they were not under the age of 12, the
criteria to classify [Appellant] as a SVP have not been met. We
reject this assertion. The significance of [Appellant’s] pattern
here, of using his position as a supervisor over young females to
isolate and sexually assault them, is not lessened by the fact that
none of them were less than 12 years old. The goal of [SORNA]
is to require registration and notification to protect all juvenile
females, not just those under the age of 12; 2) [Appellant]
stopped pursuing the victim, A.A., after she “ignored him and
became angry;” and, “if [Appellant] was a person who suffers
from paraphilia because of the persistence and intensity of his
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feeling, he would be unable to stop or control his behavior and
would continue to pursue the Victim to engage in further and more
intense sexual behavior with him.” Ex. 6 at 7-8. We reject his
assertion.
A.A., a 15-year-old, knew that something was wrong when
a 66- or 67-year old individual was fondling her. Therefore, she
cut off contact with him. At that point[, Appellant] recognized
that, if he tried to maintain contact, it was likely A.A. would reach
out for help and contact law enforcement. He knew there was no
reason to contact A.A. because there was no chance of victimizing
her again and it would only lead to being caught. In the past[,
Appellant] moved on to other victims when the opportunity with
one of them ended, and that pattern was repeated here; 3)
“[Appellant] is a married man who is the father of four children
whom he raised along with his wife. For over 35 years[, Appellant]
maintained for all practical purposes a happy and normal marriage
and family life.” (Ex. 6 at 8). We reject this assertion. First,
other than [Appellant’s] self-serving statements to Dr. Maiden,
there is nothing in the record to support these conclusions.
Second, the assertion that [Appellant] has a good relationship
with his family and wife supports the assertion that he is unable
to control his desire to abuse juvenile females. With so much to
risk, including harm to his spouse and family, he still acted on his
urges, sexually assaulting yet another victim. His decision to act
despite the consequences to himself and others demonstrates that
he will likely act out again in the future – regardless of whether
he has a good or bad family situation; 4) “It is well known the
odds of recidivism are quite low for someone who is 69 years old
who would be 71/72 once he is released into the parole system
which would oversee him for another 6 years;” and “in fact, recent
studies indicate that recidivism occurs at [a] rate of 2 percent for
those over the age of 55 ….” (Ex. 6 at 8). [Appellant] was 66 or
67 when he sexually assaulted A.A. Therefore, by the statistics
set forth by Dr. Maiden, [Appellant] already falls in that very rare
group, the “less than 2% group, that re-offends after the age of
55.” Since [Appellant] did re-offend at a mature age already, it is
unreasonable to assume that, in a few years the urges that were
not controlled when he was 66 or 67 will suddenly vanish.
Trial Court Opinion, 10/11/21, at 5-6 (citations modified).
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After careful review, we adopt the trial court’s analysis and conclusion,
which is supported by the record and applicable law. We discern no abuse of
the court’s broad discretion in its rulings with respect to Dr. Maiden’s expert
qualification. Smith, supra. Accordingly, Appellant is not entitled to relief.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/7/2022
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