Com. v. Taylor, S. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
SEAN TAYLOR
Appellant No. 1893 EDA 2014
Appeal from the Judgment of Sentence June 27, 2014
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003315-2012
CP-51-CR-0004287-2011
BEFORE: MUNDY, J., OTT, J., and STABILE, J.
MEMORANDUM BY OTT, J.: FILED DECEMBER 11, 2015
Sean Taylor appeals from the judgment of sentence imposed on June
27, 2014, in the Court of Common Pleas of Philadelphia County. On March
20, 2013, a jury convicted Taylor of rape, involuntary deviate sexual
intercourse (“IDSI”), two counts of unlawful contact with a minor,
aggravated indecent assault, two counts of indecent assault, endangering
the welfare of a child (“EWOC”), corrupting the morals of a minor (“CMOM”),
and indecent exposure.1 Subsequently, the trial court sentenced him to an
aggregate term of 25 to 50 years’ incarceration. In this appeal, Taylor
raises the following issues: (1) whether there was sufficient evidence to
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1
18 Pa.C.S. §§ 3121(a)(1), 2123(a)(1), 6318(a)(1), 3125(a)(1),
3126(a)(1), (2), 4304(a)(1), 6301(a)(1), and 3127(a), respectively.
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prove he was guilty of all charges; (2) whether the court erred in granting
the Commonwealth’s motion to consolidate the two indictments with which
he was charged; and (3) whether the court erred in finding that Taylor was a
sexually violent predator (“SVP”). Based upon the submissions by the
parties, the certified record, and the relevant law, we affirm.
We incorporate herein by reference the trial court’s detailed and
thorough summary of the factual history of this case, as set forth in its
Pa.R.A.P. 1925(a) opinion. See Trial Court Opinion, 12/4/2014, at 3-13.
We briefly summarize the background underlying this matter as follows.
Taylor’s convictions stem from the sexual abuse of two minor victims, S.R.
and C.M. S.R. was the step-daughter of Taylor’s sister. She stated she was
seven years old when Taylor began sexually abusing her. The abuse
continued and escalated until S.R. turned 14 years old when she ran away
from home after Taylor raped her. C.M. was a friend of the family, who
frequently visited the home where Taylor lived. She testified she was nine
years old when Taylor abused her.
The trial court set forth the procedural history as follows:
On February 23, 2011, [Taylor] was arrested and charged
with rape, IDSI, unlawful contact with a minor, aggravated
indecent assault, indecent assault, and EWOC. On July 26,
2011, [Taylor] was arrested and charged with a second count of
unlawful contact with a minor, a second count of indecent
assault, CMOM and indecent exposure. On September 14, 2012,
this Court granted the Commonwealth’s motion to consolidate
the two indictments filed against [Taylor].
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From March 13 to March 19, 2013, a trial was held in the
presence of a jury. On March 20, 2013, [Taylor] was found
guilty of all charges. On June 17, 2013, the Sex Offender
Assessment Board [(“SOAB”)2] conducted an assessment of
[Taylor] and found him to be a sexually violent predator. This
Court agreed with that finding. On June 27, 2014, this Court
sentenced [Taylor] to 10 to 20 years state incarceration on the
rape charge, 10 to 20 years state incarceration on the IDSI
charge, 2½ to 5 years state incarceration on the second count of
unlawful contact with a minor, 2½ to 5 years state incarceration
on the CMOM charge, and 2½ to 5 years on the indecent
exposure charge. The sentence[s] on rape, IDSI, unlawful
contact with a minor, and CMOM charges were to run
consecutively with each other, while the sentence on the
indecent exposure charge was to run concurrently with the other
charges. This Court imposed no further penalty on all remaining
charges. [Taylor] was thus sentenced to a total aggregate term
of 25 to 50 years state incarceration.
On July 1, 2014, [Taylor], through counsel, filed a Notice
of Appeal to the Superior Court. On September 3, 2014, after
receiving all the notes of testimony, this Court ordered defense
counsel to file a Concise Statement of Errors Pursuant to
Pa.R.A.P. 1925(b), and defense counsel did so on September 25,
2014.
Trial Court Opinion, 12/4/2014, at 2.
In his first claim on appeal, Taylor argues the evidence was insufficient
to sustain his convictions. Our review of such claims is well-settled:
The standard we apply in reviewing the sufficiency of the
evidence is whether viewing all the evidence admitted at trial in
the light most favorable to the verdict winner, there is sufficient
evidence to enable the fact-finder to find every element of the
crime beyond a reasonable doubt. In applying the above test,
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2
Dr. Barry Zakireh examined Taylor’s records and submitted a report. The
Sexual Offenders Registration and Notification Act (“SORNA”), 42 Pa.C.S. §§
9799.10-9799.14, replaced Pennsylvania’s Megan’s Law effective December
20, 2012.
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we may not weigh the evidence and substitute our judgment for
the fact-finder. In addition, we note that the facts and
circumstances established by the Commonwealth need not
preclude every possibility of innocence. Any doubts regarding a
defendant’s guilt may be resolved by the fact-finder unless the
evidence is so weak and inconclusive that as a matter of law no
probability of fact may be drawn from the combined
circumstances. The Commonwealth may sustain its burden of
proving every element of the crime beyond a reasonable doubt
by means of wholly circumstantial evidence. Moreover, in
applying the above test, the entire record must be evaluated and
all evidence actually received must be considered. Finally, the
finder of fact while passing upon the credibility of witnesses and
the weight of the evidence produced, is free to believe all, part
or none of the evidence.
Commonwealth v. Melvin, 103 A.3d 1, 39-40 (Pa. Super. 2014) (citation
omitted).
Specifically, Taylor contends, “[T]he evidence was insufficient as a
matter of law to prove each and every element of the crimes where the only
evidence was the unreliable testimony of the complainants.” Taylor’s Brief
at 14. He points to the following:
[T]he complainants[’] unreliable testimony did not make out the
elements of the sexual offenses on each of the victims as a
matter of law. S.R. was ejected from her house and waited
many years to report the alleged assaults and in fact denied it to
multiple family members and the Philadelphia Department of
Human Services. As testified to, S.R. admitted that she posted
negative Facebook [comments] including that she wanted her
father to die. She also posted that she wanted “Taylor and the
fake [] family” to stay out of her business. She admitted that
she did not tell anyone that it happened right away.
C.M. also claimed to be assaulted by [Taylor] only after
S.R. had revealed that she had been assaulted. On cross-
examination, C.M. admitted that the offenses occurred over ten
to eleven years [ago] and that she could not remember exactly
when the incidents in question occurred.
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[Taylor] testified that he never had any sexual contact with
S.R., nor did he ever attempt to have sexual contact with her.
He further testified that S.R. left a message on his phone in
March 2008. [Taylor] further testified that he never had any
inappropriate contact with C.M. [E.R.], S.R.’s father testified
that S.R. had a reputation for being untruthful among members
of the community. [E.R.] further testified that he had known
[Taylor] for approximately fifteen years. [E.R.] stated that
[Taylor] had a reputation in the neighborhood for being truthful
and law-abiding. [Taylor] had multiple other people testify
about his good and law abiding reputation in the community.
The testimony of the complainant S.R. simply did not make out
the charges. C.M. only came forward after speaking with S.R.
and it was almost ten years after the incident allegedly occurred.
Id. at 16-17 (citations omitted).
In reviewing Taylor’s argument, we note:
This argument goes to the credibility of the witness’s testimony,
and is, therefore, not an attack on the sufficiency of the
evidence, but an allegation regarding the weight it should have
been afforded. Commonwealth v. Palo, 2011 PA Super 136,
24 A.3d 1050, 1055 (Pa. Super. 2011) appeal denied, 613 Pa.
663, 34 A.3d 828 (Pa. 2011) (The appellant’s “sufficiency”
argument directed entirely to the credibility of the
Commonwealth’s chief witness challenged the weight, not the
sufficiency, of the evidence).
Commonwealth v. Griffin, 65 A.3d 932, 939 (Pa. Super. 2013).
Because Taylor failed to raise a challenge to the weight of the evidence
before the trial court,3 he has, therefore, waived it for purposes of appeal.
See Commonwealth v. Lofton, 57 A.3d 1270, 1273 (Pa. Super. 2012)
(“[A] weight of the evidence claim must be preserved either in a post-
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3
See Pa.R.Crim. 607(A).
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sentence motion, by a written motion before sentencing, or orally prior to
sentencing. Failure to properly preserve the claim will result in waiver, even
if the trial court addresses the issue in its opinion.”) (citations omitted).
Accordingly, Taylor’s first claim fails.4
Next, Taylor argues the court erred in granting the Commonwealth’s
motion to consolidate both criminal cases because they were factually
unrelated and it only served to prejudice him. Taylor’s Brief at 18.
Specifically, he states:
The joinder of the cases only prejudiced the outcome of the
cases. While it served judicial economy to join the cases and
have one trial against [Taylor,] having two complainants testify
together at the same trial just reenforced [sic] each other[’]s
version of events. Taken individually, as mentioned above,
there were questions regarding the motives and the credibility of
the witnesses. By joining the cases, the jury may have
convicted [Taylor] only by showing his propensity to commit
crimes, or because the jury was incapable of separating the two
different complainants and assessing their credibility on an
individual basis.
Id. at 19.
The standard of review we apply in matters concerning the court’s
granting of a motion to consolidate is as follows:
In reviewing a trial court decision to consolidate or to sever
offenses for trial, our standard is abuse of discretion.
Commonwealth v. Collins, 550 Pa. 46, 54, 703 A.2d 418, 422
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4
Even if Taylor had properly raised his argument as a sufficiency claim, the
trial court properly analyzed this issue in its Rule 1925(a) opinion; therefore,
we would affirm on the basis of its discussion. See Trial Court Opinion,
12/4/2014, at 15-23.
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(1997), cert. denied, 525 U.S. 1015, 119 S.Ct. 538, 142 L.Ed.2d
447 (1998). Offenses charged in separate informations may be
tried together if they are “based on the same act or transaction”
or if “the evidence of each of the offenses would be admissible in
a separate trial for the other and is capable of separation by the
jury so that there is no danger of confusion.” Pa.R.Crim.Pro.
582(A)(1). The court has discretion to order separate trials if “it
appears that any party may be prejudiced” by consolidating the
charges. Pa.R.Crim.Pro. 583.
Our Supreme Court has established a three part test,
incorporating these two rules, for deciding the issue of joinder
versus severance of offenses from different informations. The
court must determine
whether the evidence of each of the offenses would be
admissible in a separate trial for the other; whether such
evidence is capable of separation by the jury so as to avoid
danger of confusion; and, if the answers to these inquiries
are in the affirmative, whether the defendant will be
unduly prejudiced by the consolidation of offenses.
Commonwealth v. Lark, 518 Pa. 290, 302, 543 A.2d
491, 497 (1988) (quoted in Collins, supra at 55, 703
A.2d at 422).
Commonwealth v. Thomas, 879 A.2d 246, 260 (Pa. Super. 2005).
Here, the court found the following:
In the case at bar, consolidation of the separate
indictments filed against [Taylor] was proper because either
offense would have been admissible in the other case to show a
common scheme, plan or design and to deflect anticipated
credibility attacks against the victims. The facts of each offense
were similar enough to each other to suggest a common
scheme, plan or design. Both victims were prepubescent,
African-American females who were roughly the same age when
[Taylor] began to abuse them. Furthermore, each victim was
abused contemporaneously with the other and the abuse
occurred at the same residence. [Taylor] shared a similar
relationship with both girls, and the abuse started when [Taylor]
was babysitting each of them. In addition, the nature of the
abuse itself was similar. In both instances, the abuse began
when [Taylor] was in the same room as the victims as they
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entertained themselves with electronics. [Taylor] then initiated
contact with them by stroking their genitals or forcing them to
stroke his. In both offenses, [Taylor] continued to touch each of
the victims after they told him not to, and he initiated further
contact with them while other children were present in the room
with him and the victim. Thus, the facts of each offense were
similar enough that each would have been admissible in the
other case to show a common scheme, plan or design.
Furthermore, evidence of each offense was critical to corroborate
the victims’ testimony and to deflect anticipated attacks against
their credibility. At trial, defense counsel went to considerable
lengths to attack S.R.’s credibility and suggest that she
fabricated her allegations against [Taylor]. Furthermore, given
that the abuse in this case was not reported until years after the
last incident occurred, the testimony of each victim was the sole
direct evidence available to the Commonwealth to prosecute
[Taylor]. Evidence that [Taylor] abused another girl in a similar
manner was critical to corroborate each victim’s testimony and
to deflect [Taylor]’s repeated attacks on their credibility.
Trial Court Opinion, 12/4/2014, at 24-25.
We agree with the trial court’s well-reasoned analysis. With respect to
the first part of “consolidation test,” we note the evidence of each abuse
would have been admissible in a separate trial for other assault.
Pennsylvania Rule of Evidence 404(b)(2) allows evidence of other crimes,
wrongs, or acts when that evidence is relevant for a purpose other than
showing criminal propensity, including common plan.5 Second, the evidence
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5
Moreover, “[f]actors to be considered to establish similarity are the
elapsed time between the crimes, the geographical proximity of the crime
scenes, and the manner in which the crimes were committed.”
Commonwealth v. Dozzo, 991 A.2d 898, 902 (Pa. Super. 2010), quoting
Commonwealth v. Taylor, 671 A.2d 235, 240 (Pa. Super. 1996). As the
trial court points out in its findings, there were substantial similarities with
respect to the assaults on both victims.
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at issue was “capable of separation by the jury so as to avoid danger of
confusion.” Thomas, 879 A.2d at 260. Lastly, Taylor has not met his
burden of demonstrating that he was unduly prejudiced by the consolidation
of offenses. Accordingly, the court did not abuse its discretion in granting
the Commonwealth’s motion to consolidate the two criminal dockets.
Therefore, Taylor’s second argument is without merit.
In his final argument, Taylor complains the trial court erred in
classifying him as an SVP because the evidence did not support such a
finding. Taylor’s Brief at 20. Taylor points to the following: (1) he had no
prior criminal record and was 30 years old; (2) there was no indication in his
history or evaluation that supported a diagnosis of pedophilia not otherwise
specified; (3) he did not have a history of drug or alcohol abuse; and (4)
there was an absence of escalation in his offenses. Id. at 21. Additionally,
Taylor states:
Dr. Zarkireh’s [sic] conclusion that [Taylor] engaged in sexually
predatory behavior was ill-defined and unreliable because the
evaluation was based solely on police reports and information
provided by the Commonwealth. [Taylor] was not interviewed
by the evaluator so no psychological testing was conducted
which could show a propensity to re-offend. The conclusion that
[Taylor] had a mental disorder and was likely to re-offend was
not based on scientific testing or all of the facts that were
available for review.
Id.
Regarding Taylor’s challenge to his SVP classification, we are guided
by the following:
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A challenge to a determination of SVP status requires us to view
the evidence:
[I]n the light most favorable to the Commonwealth. The
reviewing court may not weigh the evidence or substitute
its judgment for that of the trial court. The clear and
convincing standard requires 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. Plucinski, 868 A.2d 20, 25 (Pa. Super.
2005) (internal citations and quotation marks omitted). The
scope of review is plenary. Commonwealth v. Brooks, 7 A.3d
852 (Pa. Super. 2010). “[A]n 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) . . . .
A challenge to the sufficiency of the evidence to support an SVP
designation requires the reviewing court to accept the
undiminished record of the case in the light most favorable to
the Commonwealth. Commonwealth v. Meals, 912 A.2d 213,
218 (Pa. 2006). The reviewing court must examine all of the
Commonwealth’s evidence without consideration of its
admissibility. Commonwealth v. Baker, 24 A.3d 1006, 1035
(Pa. Super. 2011). A successful sufficiency challenge can lead to
an outright grant of relief such as a reversal of the SVP
designation, whereas a challenge to the admissibility of the
expert’s opinion and testimony is an evidentiary question which,
if successful, can lead to a new SVP hearing. Commonwealth
v. Sanford, 863 A.2d 428, 431 (Pa. 2004) (distinguishing
concepts of sufficiency of evidence versus admissibility of
evidence, but refusing to render any opinion on whether SVP
expert’s “reliance on the affidavit of probable cause and the
charging documents somehow rendered her testimony
inadmissible as this issue is not before this court”).
…
Our task ... is one of review, not one of reweighing or assessing
the evidence in the first instance. Meals, 912 A.2d at 223.
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“After conviction but before sentencing, a court shall order an
individual convicted of a sexually violent offense to be assessed
by the [SOAB].” 42 Pa.C.S.A. § 9799.24(a). [Subs]ection
9799.24(b) provides:
§ 9799.24. Assessments
…
(b) Assessment.—Upon receipt from the court of an order
for an assessment, a member of the board ... shall conduct
an assessment of the individual to determine if the
individual should be classified as a sexually violent
predator. The board shall establish standards for
evaluations and for evaluators conducting the
assessments. An assessment shall include, but not be
limited to, an examination of the following:
(1) 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) Relationship of the individual to the victim.
(v) Age of the victim.
(vi) Whether the offense included a display of
unusual cruelty by the individual during the
commission of the crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual’s prior criminal record.
(ii) Whether the individual completed any prior
sentences.
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(iii) Whether the individual participated in available
programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age.
(ii) Use of illegal drugs.
(iii) Any mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to the
individual’s conduct.
(4) Factors that are supported in a sexual offender
assessment field as criteria reasonably related to the risk
of reoffense.
…
42 Pa.C.S.A. § 9799.24(b). An SOAB board member conducts
the assessment to determine if the individual should be classified
as an SVP. Id. The SOAB merely assesses the defendant; it does
not perform an adjudicative function. Commonwealth v.
Kopicz, 840 A.2d 342, 351 (Pa. Super. 2003). The statute
dictates the factors for the expert to consider when making an
SVP analysis:
[T]he “science” here (and the SVP designation
consequences it triggers) is responsive to, indeed it is a
direct byproduct of, a specific legislatively-adopted scheme
which sets forth the relevance and contours of the
challenged evidence. The General Assembly has
determined that a sexual offender’s SVP status is
significant to the operation of the registration and
notification provisions of the law. The Assembly has
defined the triggering term (“sexually violent predator”)
and has set forth the factors to be considered in making
that determination. This scheme represents a legislative
policy judgment concerning the proper response to certain
sexual offenders. The question of SVP status is thus a
statutory question, . . . and, at least in the absence of a
challenge to the propriety of the substance of the statute,
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the question of evidentiary relevance is framed by the very
provisions of the statute itself, not some external source.
Dengler, 890 A.2d at 383 (holding: “Because the legislature
provided the framework for assessing whether an offender is an
SVP, expert testimony tracking that framework, by definition,
should be deemed generally accepted in the community of
professionals who conduct SVP assessments. . . .”). Therefore,
the salient statutory inquiry for SVP designation:
[I]s identification of the impetus behind the commission of
the offense; that is, whether it proceeds from a mental
defect/personality disorder or another motivating factor.
The answer to that question determines, at least
theoretically, the extent to which the offender is likely to
reoffend, and [S]ection [9799.24] provides the criteria by
which such likelihood may be gauged. Plucinski, supra at
26.
“To deem an individual a sexually violent predator, the
Commonwealth must first show [the individual] ‘has been
convicted of a sexually violent offense as set forth in [section
9799.14] . . . .’” Commonwealth v. Askew, 907 A.2d 624,
629 (Pa. Super. 2006); see also 42 Pa.C.S.A. § 9799.12.
“Secondly, the Commonwealth must show that the individual has
‘a mental abnormality or personality disorder that makes [him]
likely to engage in predatory sexually violent offenses.’”
Askew, supra. When the Commonwealth meets this burden,
the trial court then makes the final determination on the
defendant’s status as an SVP. Kopicz, supra.An SVP assessment is not a trial or a separate criminal
proceeding that subjects the defendant to additional
punishment. Commonwealth v. Howe, 842 A.2d 436, 445-46
(Pa. Super. 2004). SVP status, therefore, does not require proof
beyond a reasonable doubt; the court decides SVP status upon a
show of clear and convincing evidence that the offender is, in
fact, an SVP. Commonwealth v. Killinger, 888 A.2d 592, 600
(Pa. 2005).
Commonwealth v. Prendes, 97 A.3d 337, 355-58 (Pa. Super. 2014)
(footnote omitted).
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Here, the court found the following:
In the case at bar, there was clear and convincing
evidence that [Taylor] was a sexually violent predator. At the
hearing, both parties stipulated to the contents of the report
prepared by Dr. Barry Zakireh of the [SOAB], although the
defense did not stipulate to Dr. Zakireh’s conclusion. (N.T.
Sentencing 6/27/2014 p.4, 9). Defense counsel argued that
there was insufficient evidence in the report to find that [Taylor]
was a sexually violent predator, because Dr. Zakireh based his
conclusion solely on the facts of the case and did not conduct an
interview with [Taylor]. Id. at 11-16. The Commonwealth
responded that assessments were typically conducted by the
[SOAB] solely using the information provided at trial, as
defendants rarely participate in the assessment, and there was
an abundance of evidence presented at trial that [Taylor] did
meet the criteria to be a sexually violent predator. Id. at 17-18.
This Court agreed with the Commonwealth, and read the
report prepared by Dr. Zakireh into the record. According to the
report,
“[Taylor] meets the criteria set forth in the Diagnostic
and Statistical Manual for Mental Disorders, Fourth Edition
for Pedophilic Disorder, Non-Exclusive Type, and Sexually
Attracted to Female Children … [Taylor’s] reported
behaviors indicate clearly that he experienced repetitive
sexual urges, pre-assault fantasies, and behaviors toward
prepubescent female minors; was invested in the sexual
contacts; and unable to stop his apparently planned and/or
repetitively occurring deviant sexual urges.”
Id. at 21-23. Furthermore, “[Taylor] has acted on his deviant
urges, and due to this condition he has experienced
interpersonal difficulty and impairment or adverse effects for his
psychological well-being, that is, his loss of freedom, [and] loss
of appropriate interpersonal or family relationships.” Id. This
Court further read that
“given that his condition is so related to [Taylor’s] sexual
offense, and given that the people with this condition show
a recurrent or intense interest or arousal or contact
involving prepubescent children or minors, this examiner
came to the opinion that this disorder meets the statutory
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requirement for mental abnormality and predisposes this
defendants toward commission of criminal sexual acts.”
Id. at 23-24. This Court noted that Dr. Zakireh thus found a
disorder which met the mental abnormality requirement of the
statute, and that the other sections of the report were similarly
thorough. This Court thus found that the Commonwealth met its
burden to prove by clear and convincing evidence that [Taylor]
met the definition of a sexually violent predator. Id. at 25.
The evidence relied upon by Dr. Zakireh in arriving at the
conclusion that [Taylor] engaged in sexually predatory behavior
as a result of a mental abnormality was thorough and well-
documented. Dr. Zakireh considered the facts of the offense and
the behavioral characteristics of [Taylor] in support of his
conclusion that [Taylor] suffered from Pedophilic Disorder and
had a high potential for recidivism. The absence of an interview
with [Taylor] did not preclude Dr. Zakireh from evaluating
[Taylor]’s behavior through the available case history, including
the testimony presented at trial, for characteristics similar or
dissimilar to the criteria set forth in the law for defining a
sexually violent predator. Rather, the evidence considered by
Dr. Zakireh in his evaluation was sufficient for this Court to find
by clear and convincing evidence that [Taylor] was a sexually
violent predator and this Court’s determination should be
affirmed.
Trial Court Opinion, 12/4/2014, at 31-32.
We agree with the court’s determination. Contrary to Taylor’s
argument that he was not diagnosed with a personality disorder, Dr. Zakireh
determined Taylor suffered from a mental abnormality, namely pedophilia.
The trial court was permitted to accept Dr. Zakireh’s opinion. Additionally,
the fact that Dr. Zakireh did not personally interview Taylor is of no
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consequence.6 We emphasize “the absence of an interview does not
preclude the ability to evaluate the offender’s behavior through available
history for characteristics similar or dissimilar to the criteria set forth in the
law for defining a sexually violent predator.” Prendes, 97 A.3d at 359(citation omitted). Likewise, it is well-established that an assessor may rely
on various documents, not just transcripts, to determine whether a
defendant meets the criteria for classification as a sexually violent predator.
See id. at 362, citing Pa.R.E. 703.
Furthermore, we conclude the trial court’s findings are supported by
the record and our review of this matter finds no error in the trial court’s
determination. The Commonwealth presented clear and convincing
evidence, via Dr. Zakireh’s stipulated report, that established Taylor suffered
from pedophilia, and which made him likely to engage in predatory sexually
violent offenses. See Feucht, 955 A.2d at 863. As evidenced in his report
and the court’s discussion of the stipulated report, Dr. Zakireh accounted for
the statutory factors as set forth in Section 9795.4(b), including the facts of
the offenses at issue and his behavioral characteristics that contributed to
his conduct. Based on these factors, he then rendered an opinion,
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6
We note Taylor actually challenges the weight the trial court assigned Dr.
Zakireh’s testimony, given the absence of a personal interview. See
generally, Meals, supra.
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explaining his determination that Taylor met the criteria for classification as
an SVP.
Moreover, while Taylor may have benefitted from the absence of
several Section 9795.4(b) factors, he is essentially asking this Court to
reweigh all of the factors, which we are not permitted to do. See Meals,
912 A.2d at 222-223 (held that the reviewing court “stepped beyond its
authority when it reweighed the [SVP] evidence, giving more weight to
‘absent’ factors than to those found and relied upon by the trial court, and
ignoring the Commonwealth’s expert’s explanation of the relevance of the
absent factors”). Therefore, based upon the totality of circumstances and
information available to the trial court, we conclude there was sufficient
evidence to designate Taylor as an SVP. Accordingly, his final argument
fails, and we affirm the judgment of sentence.7
Judgment of sentence affirmed. Application for extension of time to
file brief granted.
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7
It merits mention that we received the Commonwealth’s brief before we
had the opportunity to address its second motion for extension of time to file
a brief. Therefore, we now grant the motion, and note that we have
considered the brief as part of our review.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/11/2015
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