Com. v. King, S. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
STEPHEN KING
Appellant No. 1749 EDA 2015
Appeal from the Order Entered April 13, 2015
In the Court of Common Pleas of Lehigh County
Criminal Division at No(s): CP-39-CR-0004595-2013
BEFORE: GANTMAN, P.J., MOULTON, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED NOVEMBER 21, 2016
Appellant, Stephen King, appeals from the order entered in the Lehigh
County Court of Common Pleas, which classified Appellant as a sexually
violent predator (“SVP”). We affirm.
The relevant facts and procedural history of this case are as follows.
In July 2013, Appellant began residing with a friend’s family. During this
time, Appellant masturbated his friend’s son (“Victim”) while Appellant
fondled himself. Victim and another child, who was in the room during the
incident, reported the sexual abuse. As a result, the Commonwealth
charged Appellant on November 18, 2013, with corruption of minors and
indecent assault. On April 29, 2014, Appellant entered a nolo contendere
plea to indecent assault, and the court ordered the Sexual Offender
Assessment Board (“SOAB”) to assess Appellant and determine if Appellant
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met the criteria for SVP classification. After learning about the potential SVP
classification, Appellant filed a motion to withdraw his plea on August 29,
2014. The court subsequently granted Appellant’s motion. On October 20,
2014, Appellant again entered a nolo contendere plea to indecent assault,
and the court immediately sentenced Appellant to time served to twenty-
four (24) months’ imprisonment. The court ordered the SOAB to assess
Appellant and determine if Appellant met the criteria for SVP classification.
SOAB member, Dr. Veronique Valliere conducted Appellant’s assessment.
The court held a SVP hearing on March 27, 2015, which continued on
April 13, 2015, where Dr. Valliere testified on behalf of the Commonwealth.
Dr. Valliere testified that her assessment of Appellant revealed Appellant
met the diagnostic criteria for other-specified personality disorder.
Specifically, Dr. Valliere stated that Appellant exhibits many antisocial and
narcissistic traits. Dr. Valliere further opined that Appellant’s disorder makes
him likely to engage in future predatory behavior. Dr. Robert M. Gordon
testified on behalf of Appellant at the SVP hearing. Dr. Gordon stated
Appellant has poor impulse control due to his paranoid schizophrenia, but he
does not suffer from a personality disorder. Dr. Gordon concluded that
Appellant does not meet the criteria for SVP classification. At the conclusion
of the April 13, 2015 hearing, the court determined the Commonwealth had
proved by clear and convincing evidence that Appellant met the criteria for
SVP classification.
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On April 23, 2015, Appellant timely filed a motion to reconsider the
court’s imposition of SVP status, which the court denied on May 14, 2015.
On June 12, 2015, Appellant timely filed a pro se notice of appeal.1 On June
25, 2015, the court ordered Appellant to file a concise statement of errors
complained of on appeal pursuant to Pa.R.A.P. 1925(b), and Appellant timely
complied pro se on July 14, 2015.
Appellant raises the following issue for our review:
[WHETHER APPELLANT’S SVP CLASSIFICATION WAS
SUPPORTED BY SUFFICIENT EVIDENCE?]
(Appellant’s Brief at 2).2
Our standard review of a trial court’s SVP designation is as follows:
[T]o affirm an SVP designation, we, as a reviewing court,
must be able to conclude that the fact-finder found clear
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1
An appellant has thirty (30) days to file an appeal from a SVP
determination. See Commonwealth v. Schrader, 141 A.3d 558, 561
(Pa.Super. 2016) (explaining judgment of sentence is not appealable until
court renders SVP determination because imposition of SVP status is
component of judgment of sentence). Likewise, a post-sentence motion
filed within ten (10) days of the SVP determination tolls the appeal period
until the disposition of the post-sentence motion. Here, Appellant filed his
motion to reconsider within ten days of his SVP determination, which tolled
the appeal period. The court ultimately denied Appellant’s motion to
reconsider on May 14, 2015. Thus, Appellant’s notice of appeal, filed on
June 12, 2015, within thirty days of the court’s denial of his motion for
reconsideration, was timely.
2
Appellant filed a counseled brief, but the brief is missing a statement of
questions involved as well as a statement of both the scope of review and
the standard of review, summary of the argument, and a short conclusion
stating the precise relief sought. See Pa.R.A.P. 2111. Nevertheless, we
discern the issue from Appellant’s brief.
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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.
Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa.Super. 2015),
appeal denied, ___ Pa. ___, 125 A.3d 1199 (2015) (internal citation
omitted).
“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). Section 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.
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(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.
(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). The SOAB’s duty is to assess the defendant; it
does not perform an adjudicative function. Commonwealth v. Kopicz, 840
A.2d. 342, 351 (Pa.Super. 2003).
“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), appeal denied, 591 Pa. 709, 919 A.2d
954 (2007). See also 42 Pa.C.S.A. § 9799.12. “Secondly, the
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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
SVP status. Kopicz, supra at 351.
The 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 showing of clear and convincing evidence. Commonwealth v.
Killinger, 585 Pa. 92, 104, 888 A.2d 592, 600 (2005).
“With regard to the various assessment factors…, there is no statutory
requirement that all of them or any particular number of them be present or
absent in order to support an SVP designation. The factors are not a
checklist with each one weighing in some necessary fashion for or against
SVP designation.” Commonwealth v. Brooks, 7 A.3d 852, 863 (Pa.Super.
2010), appeal denied, 610 Pa. 614, 21 A.3d 1189 (2011). Thus, “[t]he
Commonwealth does not have to show that any certain factor is present or
absent in a particular case.” Id. Moreover, “to carry its burden of proving
that an offender is an SVP, the Commonwealth is not obliged to provide a
clinical diagnosis by a licensed psychiatrist or psychologist” of a specific
personality disorder or mental abnormality. Commonwealth v. Conklin,
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587 Pa. 140, 158, 897 A.2d 1168, 1178 (2006).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the Honorable James T.
Anthony, we conclude Appellant’s issue on appeal merits no relief. The trial
court opinion fully discusses and properly disposes of the question
presented. (See Trial Court Opinion, filed August 21, 2015, at 3-5) (finding:
Dr. Valliere opined that Appellant suffers from personality disorder with
antisocial and narcissistic traits and pattern of accusations against Appellant
indicates his sexual interest in adolescent boys; after thorough discussion of
required statutory factors, Dr. Valliere concluded Appellant suffers from
personality disorder that makes him likely to engage in future predatory
sexual behavior; defense expert, Dr. Gordon, disagreed with Dr. Valliere’s
personality disorder assessment; however, Dr. Gordon agreed Appellant
presents narcissistic-like egocentricity and antisocial behavior; some of
statutory factors weighed in Appellant’s favor, but record amply
demonstrated Appellant suffers from mental abnormality or personality
disorder that makes him likely to reoffend; thus, court concluded Appellant
meets criteria for classification as SVP). Accordingly, we affirm on the basis
of the trial court opinion.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2016
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