Com. v. Feliciano-Alacan, R. ( 2022 )

J-S35028-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RAMON FELICIANO-ALACAN :
:
Appellant : No. 635 MDA 2021
Appeal from the Judgment of Sentence entered April 27, 2021,
in the Court of Common Pleas of Berks County,
Criminal Division at No(s): CP-06-CR-0001977-2017.
BEFORE: OLSON, J., KUNSELMAN, J., and PELLEGRINI, J.*
MEMORANDUM BY KUNSELMAN, J.: FILED: JANUARY 21, 2022
Ramon Feliciano-Alacan appeals from the judgment of sentence
imposed following the entry of his guilty pleas for indecent assault (person
less than 13 years of age) and endangering the welfare of a child.1
Specifically, Feliciano-Alacan challenges the trial court’s finding that he is a
sexually violent predator (“SVP”) subject to notification requirements under
Pennsylvania’s Sexual Offender Registration and Notification Act (“SORNA”),
42 Pa.C.S.A. §§ 9799.10-9799.41. After careful consideration, we affirm.
Between 2002 and 2010, Feliciano-Alacan had indecent contact with his
minor daughter, R.S., on multiple occasions from the time R.S. was 6 or 7
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* Retired Senior Judge assigned to the Superior Court.
1 See 18 Pa.C.S.A. §§ 3126(a)(7), 4303(a)(1).
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years of age until she was thirteen or fourteen years of age. Among other
sexual abuses, Feliciano-Alacan rubbed his penis against R.S.’s vagina while
she was unclothed, touched her vagina with his hands, masturbated and
ejaculated on her on numerous occasions, sucked her breasts when they
began to develop, and, on at least one occasion, penetrated her vagina with
his penis.
In March 2017, Feliciano-Alacan was arrested and charged with
numerous sexual offenses, including rape of a child. On June 15, 2018,
Feliciano-Alacan pleaded guilty to indecent assault (person less than 13 years
of age) and endangering the welfare of a child. The trial court ordered an
assessment by the Sex Offender Assessment Board (“SOAB”) as to whether
Feliciano-Alacan should be designated as an SVP pursuant to SORNA.
Feliciano-Alacan elected not to participate in the assessment. In September
2018, the SOAB issued its recommendation that Feliciano-Alacan be
designated as an SVP. The Commonwealth motioned the trial court to conduct
a hearing on the matter. In response, Feliciano-Alacan filed motions to bar
an SVP hearing and to prevent the imposition of sex offender notification
requirements pursuant to SORNA. The trial court deferred an SVP hearing
while certain cases challenging the constitutionality of SORNA’s registration,
notification, and counseling requirements were pending before our Supreme
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Court. On August 28, 2020, following the High Court’s resolution of certain of
those cases,2 the trial court denied Feliciano-Alacan’s motions.
On March 17, 2021, the trial court conducted an SVP hearing. The
Commonwealth presented the expert report and testimony of Veronique
Valliere, Psy.D., a licensed psychologist and SOAB member. Feliciano-Alacan
presented the expert report and testimony of Christopher Lorah, Ph.D., a
licensed psychologist.3 The trial court summarized the testimony provided by
the experts at the SVP hearing as follows:
Dr. Veronique Valliere opined that [Feliciano-Alacan] meets
the criteria for Other Specified Paraphilic Disorder to children and
frotte[u]rism that served as the impetus to his offending and that
he engaged in predatory behavior as delineated in her report.
She opined that his disorder is related to a future likelihood of re-
offense. The sexual attraction was to his prepubescent daughter
when she was between the ages of six and thirteen. When an
attraction turns into behavior that disrupts somebody’s life or is
causing the individual mental and emotional distress, it becomes
a disorder. Not only was [Feliciano-Alacan] in this case attracted
to a prepubescent, but the victim was his daughter. Further, in
spite of knowing the potential consequences to himself and/or the
victim, [Feliciano-Alacan] repeated[ly] engaged in the sexual
behavior with a prepubescent child, even after being confronted
by the victim; showing that the disorder overrode his volitional
control. [Feliciano-Alacan] was willing to risk legal, social, and
familial consequences which meets the diagnostic criteria for a
paraphilic disorder. This disorder is a lifetime disorder than can
be managed but not cured. Dr. Valliere further indicated that
while this disorder may go into remission, the person still
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2 See Commonwealth v. Butler, 226 A.3d 972 (Pa. 2020) (holding that the
statutory lifetime registration, notification, and counseling requirements
applicable to SVPs did not constitute criminal punishment, and the statutory
procedure for designating SVPs was constitutionally permissible).
3 Both expert reports were admitted into evidence.
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possesses a predisposition or a likelihood to be reactivated if the
individual experiences internal or external situations or a lack of
structure or access to victims. The particular cognitive limitations
of [Feliciano-Alacan] were discussed as making complex self-
management more difficult and noting his treatment needs are
more particular than offenders without those limitations. Dr.
Valliere pointed out that [Feliciano-Alacan] promoted a
relationship that was secretive, assaulting his daughter while she
slept and abdicated a caretaking role to promote a relationship
for the facilitation of his sexual aggression toward her. She found
that this behavior met the statutory definition of predatory
behavior. After vigorous cross examination, Dr. Valliere
ultimately stood firm with her opinion that based on the statutory
definition, [Feliciano-Alacan] met the qualifications to be
designated a [SVP].
Dr. Lorah similarly testified as to his report. He opined that
Dr. Valliere’s diagnosis of Other Specified Paraphilic Disorder to
children and frotte[u]rism was incorrect and that the most
appropriate diagnosis is Pedophilic disorder. He found that
[Feliciano-Alacan] did not have a mental health abnormality that
satisfies the longevity and likelihood prongs of the statute which
must be proven by clear and convincing evidence to classify a
person as a [SVP]. He testified that . . . Feliciano-Alacan would
be considered in behavioral remission because he has
successfully lived in the community for over five years after the
last (known) assault of his daughter in approximately 2010. Dr.
Lorah also indicated [Feliciano-Alacan] was less than likely to
sexually re-offend because the onset of his diagnosis was when
he was in his fifties and he is now over sixty years old, an age
where statistically there is a reduced risk of sexual violence.
Trial Court Opinion, 7/2/21, at unnumbered 5-6 (footnotes omitted).
Approximately one week after the hearing, on March 25, 2021, the trial
court entered an order designating Feliciano-Alacan as an SVP. On April 27,
2021, the trial court sentenced Feliciano-Alacan. In accordance with a
negotiated plea agreement, the trial court imposed an aggregate term of
eleven and one-half months to twenty-three months in prison, followed by
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twelve years of probation. The trial court also informed Feliciano-Alacan of
his registration requirements under SORNA. Feliciano-Alacan filed a timely
notice of appeal.4 Both Feliciano-Alacan and the trial court complied with
Pa.R.A.P. 1925.
Feliciano-Alacan raises the following issue for our review:
Whether the lower court erred in designating [Feliciano-
Alacan] as a[n SVP] where the evidence was insufficient to support
a finding that [Feliciano-Alacan] has a mental abnormality or
personality disorder that makes him likely to engage in predatory
sexually violent offenses?
Feliciano-Alacan’s Brief at 12.5
A challenge to a trial court’s SVP designation is a challenge to the
sufficiency of the evidence, for which our standard of review is de novo and
our scope of review is plenary. See Commonwealth v. Meals, 912 A.2d
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4 Feliciano-Alacan indicated in his notice of appeal that he was appealing “from
the denial of the motion to bar hearing to determine if [Feliciano-Alacan] is
[an SVP] entered on August 28, 2020, the order determining [Feliciano-
Alacan] is a[n SVP] and subject to the notification requirements of SORNA
entered on March 25, 2021, and the judgment of sentence in this matter
entered on April 27, 2021.” Notice of Appeal, 6/8/21, at unnumbered 1
(unnecessary capitalization omitted). However, in a criminal action, an appeal
properly lies from the judgment of sentence made final by the denial of post-
sentence motions. See Commonwealth v. Chamberlain, 658 A.2d 395,
397 (Pa. Super 1995). We have corrected the caption accordingly.
5 In his concise statement, Feliciano-Alacan stated his sufficiency challenge
somewhat differently, averring that “the Commonwealth’s expert’s diagnosis
of Other Specified Paraphilic Disorder to children and frotteurism, is not a
mental abnormality that qualifies as a lifelong condition and does not allow for
likelihood of re-offense when evaluating [his] characteristics and the facts of
this case.” Concise Statement, 5/31/21, at 1.
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213, 218 (Pa. 2006). When reviewing a trial court’s SVP determination, we
must view the evidence in a light most favorable to the Commonwealth and
may not re-weigh the evidence or substitute our judgment for that of the trial
court. Id. “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.” Commonwealth v. Geiter, 929
A.2d 648, 650 (Pa. Super. 2007).
The procedure for “determining SVP status is statutorily-mandated and
well-defined.” Commonwealth v. Dixon, 907 A.2d 533, 535 (Pa. Super.
2006). Under Revised Subchapter I of SORNA,6 after a person has been
convicted of an offense listed in 42 Pa.C.S.A. § 9799.55, the trial court orders
an assessment by the SOAB. See 42 Pa.C.S.A. § 9799.58(a). The SOAB must
assess all individuals convicted of sexually violent offenses to determine
whether they should be classified as an SVP and subject to increased
registration, notification, and counseling requirements. See id. § 9799.58(b).
When assessing whether a particular offender should be classified as an
SVP, the SOAB conducts a fifteen-factor analysis pursuant to § 9799.58(b);
see also Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. Super. 2008)
(holding that while no single factor is required or dispositive, the SOAB must
consider all factors in § 9799.58(b) in making its assessment). Specifically,
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6 Revised Subchapter I of SORNA applies to sexually violent offenses
committed on or after April 22, 1996, but before December 20, 2012.
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the SOAB must examine the facts of the current offense, including (i) whether
the offense involved multiple victims; (ii) whether the individual exceeded the
means necessary to achieve the offense; (iii) the nature of the sexual contact
with the victim; (iv) the relationship of the individual to the victim; (v) the
age of the victim; (vi) whether the offense included a display of unusual
cruelty by the individual during the commission of the crime; and (vii) the
mental capacity of the victim. See 42 Pa.C.S.A. § 9799.58(b)(1). The SOAB
must also consider the defendant’s prior offense history, including (i) the
defendant’s prior criminal record; (ii) whether the defendant completed any
prior sentences; and (iii) whether the defendant participated in available
programs for sexual offenders. Id. § 9799.58(b)(2). Additionally, the SOAB
must consider the characteristics of the defendant, including (i) age; (ii) use
of illegal drugs; (iii) any mental illness, mental disability or mental
abnormality; and (iv) behavioral characteristics that contribute to the
defendant’s conduct. Id. § 9799.58(b)(3). Finally, the SOAB must consider
factors that are supported in a sexual offender assessment field as criteria
reasonably related to the risk of re-offense. Id. § 9799.58(b)(4). After
considering these factors, the SOAB must prepare and submit a written report
of its assessment to the district attorney, who may file a praecipe for a hearing
on the matter. Id. § 9799.58(d), (e)(1).
The trial court’s inquiry at an SVP hearing is different from the SOAB’s
assessment. Whereas the SOAB must consider the fifteen factors listed in §
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9799.58(b), the trial court must determine whether the Commonwealth has
proven by clear and convincing evidence that the defendant is “a person who
has been convicted of a sexually violent offense and who is determined to be
a sexually violent predator under § 9799.58 (relating to assessments) due to
a mental abnormality or personality disorder that makes the person likely to
engage in predatory sexually violent offenses.” Id. § 9799.53; see also
Commonwealth v. Butler, 226 A.3d 972, 992 (Pa. 2020) (stating, an SVP,
in addition to having been convicted of a sexually violent offense, is a person
“who [has] been individually determined to suffer from a mental abnormality
or personality disorder such that they are highly likely to continue to commit
sexually violent offenses”). A “mental abnormality” is defined as “[a]
congenital or acquired condition . . . 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.” 42 Pa.C.S.A. § 9799.53.
“Predatory” is defined as “[a]n act 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. A
“sexually violent offense” is defined as “a criminal offense specified in section
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9799.55 (relating to registration) committed on or after April 22, 1996, but
before December 20, 2012, for which the individual was convicted.” Id.7
Here, Feliciano-Alacan does not dispute that his guilty plea to the charge
of indecent assault (person less than 13 years of age) constitutes a conviction
for a sexually violent offense under § 9799.55. Instead, Feliciano-Alacan
claims that the trial court abused its discretion when it found him to be an SVP
based on the testimony of Dr. Valliere. Feliciano-Alacan argues that Dr.
Valliere’s opinions were flawed, biased, and based on assumptions that were
not supported by the evidence. He claims that Dr. Valliere made assumptions
regarding when R.S.’s breasts developed, that Feliciano-Alacan’s arousal to
children can transgress prepubescence, and that Feliciano-Alacan might not
be in remission even though he had been in the community for several years
without any reports of reoffending. Feliciano-Alacan further asserts that, by
opining that all sex offenders have unknown victims, Dr. Valliere essentially
concluded that he has committed undetected sexual offenses. Feliciano-
Alacan points out that, although Dr. Valliere testified that she is not able to
determine remission unless she specifically speaks with the offender or has
done further diagnostic assessments, she nevertheless opined that he is not
in remission even though she never met with him. Feliciano-Alacan contends
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7 “[T]he statute does not require proof of a standard or diagnosis that is
commonly found and/or accepted in a mental health diagnostic paradigm.”
Commonwealth v. Hollingshead, 111 A.3d 186, 190 (Pa. Super. 2015)
(citation omitted).
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that, while Dr. Valliere conceded that she did not have enough information
about him to know what kind of relationship he had with his daughter, she
opined that his actions were predatory because “he advocated a parental
relationship and promoted a new relationship with [R.S.] in order to facilitate
victimization.” Feliciano-Alacan’s Brief at 18 (quoting N.T., 3/17/21, at 12,
18).
Finally, Feliciano-Alacan asserts that Dr. Valliere’s report conceded the
absence of several of the factors listed in § 9799.58(b), including: that his
offenses did not involve multiple victims; he did not do more than was
necessary to gain compliance from R.S.; there is nothing in the offense
information to suggest that pain, cruelty, terror, or humiliation of R.S. were
sources of arousal for him; R.S. was not unusually compromised; he had no
prior criminal records, criminal sentences, or history of failed treatment; and
drugs and alcohol played no role in his offenses. Based on these arguments,
Feliciano-Alacan contends that Dr. Valliere’s assessment was not
individualized and consisted of sweeping generalizations based on the
offenders she treated in the past and the assumptions she makes about all
sex offenders.
Importantly, on a challenge to the sufficiency of the evidence supporting
an SVP determination, “an expert’s opinion, which is rendered to a reasonable
degree of professional certainty, is itself evidence.” Commonwealth v.
Fuentes, 991 A.2d 935, 944 (Pa. Super. 2010) (en banc); see also
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Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa. Super. 2008) (holding
that “a [SOAB] report or opinion that the individual has an abnormality
indicating the likelihood of predatory sexually violent offenses is itself
evidence”). Therefore, an argument that the expert’s diagnosis was not fully
explained, did not square with accepted analyses of the disorder, or was
simply erroneous, would affect the weight, and not the sufficiency, of the
expert’s evidence. See Commonwealth v. Meals, 912 A.2d 213, 223 (Pa.
2006).
Here, Dr. Valliere’s expert report and opinions, which were rendered to
a reasonable degree of professional certainty, were, in fact, evidence. Thus,
Feliciano-Alacan’s arguments that Dr. Valliere’s opinions were flawed, biased,
and based on assumptions that were not supported by the evidence go to the
weight, and not the sufficiency, of the evidence. See Feucht, 955 A.2d at
382 (holding that “while a defendant is surely entitled to challenge [a report
or opinion by a member of SOAB] by contesting its credibility or reliability
before the SVP court, such efforts affect the weight, not the sufficiency of the
Commonwealth’s case”); see also Fuentes, 991 A.2d at 944-45 (holding that
a challenge to an expert opinion rendered with a reasonable degree of
professional certainty implicates the weight of the evidence, which is properly
addressed by the trial court). As Feliciano-Alacan has not preserved any
weight of the evidence claim, his challenge to the weight to be accorded to
Dr. Valliere’s opinions is waived.
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Moreover, after a careful review, and viewing the evidence in the light
most favorable to the Commonwealth as the verdict winner, we conclude the
evidence was sufficient to support the trial court’s designation of Felciano-
Alacan as an SVP. In undertaking her assessment, Dr. Valliere reviewed
numerous documents, including the report of suspected child abuse to law
enforcement, the Childline Report of Suspected Child Abuse and Neglect, the
criminal investigation, the affidavit of probable cause, the criminal complaint,
R.S.’s journal entries, the presentence investigation report, and psychological
reports prepared by other professionals. SOAB Report, 8/22/18, at 1. Dr.
Valliere explained that, even though Feliciano-Alacan declined to participate
in the SOAB’s assessment, the absence of an interview did not preclude the
SOAB’s ability to assess his behavior through a review of the records
documenting his repeated sexual behaviors. Id. at 2-3. Dr. Valliere discussed
each of the fifteen factors listed in § 9799.58(b). Id. at 4-5.
Based on her review, Dr. Valliere concluded that Feliciano-Alacan meets
the criteria for a paraphilic disorder (mental abnormality), given that he
sought sexual gratification from a child repeatedly over six years. Id. at 5.
Dr. Valliere explained that this behavior is diagnostic of a deviant sexual
arousal pattern to children. Id. Dr. Valliere further explained that the
diagnosis of Other Specified Paraphilic Disorder to Children requires both a
deviant sexual arousal pattern to children that has persisted for six or more
months and that this disorder has motivated behavior that has victimized
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another. Id. Based on Feliciano-Alacan’s history of sexually assaulting his
daughter over six years, Dr. Valliere concluded that he met the diagnosis for
Specified Paraphilic Disorder to Children, which is considered a congenital or
acquired condition. Id. Dr. Valliere further concluded that Feliciano-Alacan’s
behavior also demonstrated an arousal to the non-consensual rubbing of his
genitals against another, which is referred to a frotteurism. Id. In making
these diagnoses, Dr. Valliere concluded that Feliciano-Alacan’s paraphilic
disorder is a lifetime condition that can be managed but not cured. Id. at 6.
She further concluded that Feliciano-Alacan’s condition overrode his emotional
and volitional control because he repeatedly engaged in sexual behavior with
a prepubescent child despite being confronted by R.S., and knowing the
potential consequences to her and to himself. Id. Finally, Dr. Valliere
concluded that Felicino-Alacan’s indecent contact with his daughter fit the
statutory definition of predatory behavior, and that he had a disorder related
to a future likelihood of re-offense. Id.
Dr. Valliere’s report, along with her testimony at the SVP hearing,8
provided the trial court with an expert opinion that Feliciano-Alacan met each
of the elements required to classify him as an SVP. Where, as here, “the
expert’s report and testimony support the trial court’s finding that [an
appellant] was an SVP, there is no basis for granting sufficiency relief.”
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8 See N.T., 3/17/21, at 7-22.
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Fuentes, 991 A.2d at 944 (quoting Meals, 912 A.2d at 223); see also
Hollingshead, 111 A.3d at 194 (holding it would not disturb trial court’s
decision to credit Commonwealth’s expert witness over defense expert witness
on a challenge to the sufficiency of an SVP determination).
Accordingly, we affirm the order of the trial court designating Feliciano-
Alacan as an SVP.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/21/2022
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