Com. v. Rashid, S. ( 2017 )

J-S94044-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
v.
SAMUEL F. RASHID
Appellant No. 691 MDA 2016
Appeal from the Judgment of Sentence March 31, 2016
in the Court of Common Pleas of Lebanon County Criminal Division
at No(s):
CP-38-CR-0000378-2014
CP-38-CR-0001202-2013
CP-38-CR-0001205-2013
CP-38-CR-0001210-2013
BEFORE: LAZARUS, RANSOM, AND FITZGERALD, * JJ.
MEMORANDUM BY FITZGERALD, J.: FILED JANUARY 27, 2017
Appellant, Samuel Rashid, appeals from the judgment of sentence
entered in the Court of Common Pleas of Lebanon County. Appellant claims
that the court erred in declaring him a sexually violent predator (“SVP”)
because there is insufficient evidence that he is likely to re-offend. We
affirm.
Appellant was a physician who was formerly in practice at Lebanon
Valley Family Medicine. Over a thirteen year period, Appellant engaged in a
pattern of inappropriate behavior with female patients. His victims reported
that he would fondle their breasts while listening to their heart or perform
*
Former Justice specially assigned to the Superior Court.
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unnecessary pelvic examinations, even when treating them for common
colds.
On October 30, 2015, Appellant pleaded no contest to committing the
following sexual offenses against four female patients: indecent assault in
Nos. 1202-2013, 1205-2013, and 1210-2013,1 and corruption of minors and
indecent assault2 in No. 378-2014. N.T., Sentencing Hr’g, 3/31/16, at 128-
29. The victim in No. 378-2014 was a minor at the time of the offenses. As
part of Appellant’s plea agreement, the Commonwealth nolle prossed a
charge of aggravating indecent assault in No. 378-2014. Id. at 129-30.
The court sentenced Appellant to an aggregate term of imprisonment of 6
months to 2 years less one day and a consecutive term of five years’
probation. Id. at 132.
On the date of sentencing, the court held a hearing to determine
whether Appellant was an SVP. The Commonwealth offered the report and
testimony of Dr. Robert Stein, a member of the Sexual Offenders
Assessment Board. N.T. at 7. Dr. Stein performed his assessment by
reviewing reports from board investigators, the court’s assessment order,
defense counsel’s response, the criminal complaint and affidavit of probable
cause, police reports and the transcript of the preliminary hearing. Id. at
1
18 Pa.C.S. § 3126(a)(1) in Nos. 1202-2013 and 1205-2013 and 18 Pa.C.S.
§ 3126(a)(8) in No. 1210-2013.
2
Counts 1 through 3, 18 Pa.C.S. §3125(a)(1), 18 Pa.C.S. §6301(a), and 18
Pa.C.S. §3126(a)(1), respectively.
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10. Dr. Stein did not interview Appellant, who declined to participate in the
assessment process. Id.
Although twenty-eight other possible victims lodged complaints, Dr.
Stein limited his review to the four victims involved in these cases. N.T. at
11, 19, 35-36. Dr. Stein applied the statutory criteria within 42 Pa.C.S. §
9799.24 to evaluate whether Appellant suffered from a mental abnormality
and was likely to commit predatory sexually violent crimes. Id. at 10-11.
Dr. Stein found a number of relevant factors. Appellant’s offenses
against multiple victims indicated greater practice in offending and greater
risk-taking than an assault on one victim. N.T. at 11. All four cases
involved nonconsenting sexual behavior—inappropriate sexual touching by a
medical doctor during a medical examination—a relevant factor in
determining mental abnormality. Id. at 12. All victims were unrelated to
Appellant, a sign of predatory behavior. Id. at 12-13. Appellant’s assaults
on the victims took place over the “lengthy period” of thirteen years. Id. at
13, 15. Although the victims were of normal mental capacity, one used
Suboxone, which made her unusually vulnerable because Appellant was the
only active prescriber of Suboxone in the area. Id. at 12. Another victim
was unusually vulnerable because she was only thirteen at the time of the
offenses, while Appellant was forty-five years old. Id. at 12-13.
To determine whether Appellant had a disorder, Dr. Stein took into
account the actual behaviors, the duration of time over which they occurred,
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the relationship between the offender and the victims and the factors
enumerated in the SVP statute. N.T. at 17. In addition, Dr. Stein consulted
the Diagnostic and Statistical Manual of Mental Disorders (“DSM-V”), a
widely accepted tool in the mental health profession. Id. at 14-15. Based
on his review, Dr. Stein opined, within a reasonable degree of medical
certainty, that Appellant suffers from a psychiatric disorder that Dr. Stein
labeled “other specified paraphilic disorder: non-consent.” Id. at 14, 18. A
paraphilic disorder is an incurable lifetime condition. Id. at 17. The DSM-V
lists eight types of paraphilic disorders but not “other paraphilic disorder”.
Id. at 16. Nevertheless, the DSM-V permits the clinician to diagnose “other
paraphilic disorder” if he “specifies what that means.” Id. Dr. Stein defined
Appellant’s “other paraphilic disorder” as “a pattern of non-consenting sexual
behavior which took place over a period of six months or more.” Id. at 14.
Dr. Stein concluded that Appellant exhibited a “likelihood” or “risk” of
re-offending over the course of his lifetime, because he has engaged in this
behavior for six months or more. N.T. at 18, 20. According to the doctor,
Appellant presents a risk of re-offending, for despite forfeiting his
Pennsylvania license, he could seek licensure in another state or country and
resume his predatory conduct or function as a non-licensed consultant to
gain access to new victims. Id. at 30-31, 38.
Dr. Stein also opined, within a reasonable degree of medical certainty,
that Appellant engaged in “predatory behavior”, which he defined as “a
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relationship that is either established, maintained or promoted in order to
facilitate victimization.” N.T. at 21. Appellant’s acts of “sexual touching”
were not physically violent, “but they violated each of these patients
sexually.” Id.
Appellant called Dr. Timothy Foley, a licensed psychologist, as an
expert witness. Dr. Foley agreed with Dr. Stein that Appellant had engaged
in predatory behavior, but he disagreed with Dr. Stein’s diagnosis of “other
specified paraphilic disorder.” Dr. Foley opined that Appellant suffered from
frotteuristic disorder, which the DSM-V defines as “inappropriate and
nonconsenting touching of another individual.” N.T. at 48-49. Dr. Foley also
disputed Dr. Stein’s conclusion that Appellant was likely to re-offend,
because Appellant was over sixty years old, when “sexual[] recidivism
declines precipitously across the board,” and no longer had access to female
patients after surrendering his medical license. Id. at 50-52.
Dr. Stein disputes Dr. Foley’s diagnosis of frotteuristic disorder. Dr.
Stein asserted that frotteuristic disorder involves a “pattern of behavior in
crowded buses or subways” in which individuals “rub themselves to
ejaculation” on other persons. N.T. at 34-35. Appellant, Dr. Stein stated,
did not engage in this behavior. Id. at 35.
During sentencing on March 31, 2016, the court entered an order
declaring Appellant a SVP. On Monday, April 11, 2016, Appellant filed timely
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post-sentence motions.3 On April 28, 2016, while post-sentence motions
remained pending, Appellant filed a notice of appeal. On May 19, 2016,
Appellant withdrew his post-sentence motions, and the court docketed an
order memorializing the withdrawal pursuant to Pa.R.Crim.P. 720(A)(2)(c).
Appellant raises one issue in this appeal:
Whether the Commonwealth failed to present sufficient evidence
to sustain its burden of proof by clear and convincing evidence
that Appellant was a sexually violent predator, as defined in 42
Pa.C.S.[] § 9799.12, where it was not proven that Appellant was
likely to reoffend because he permanently surrendered his
medical license and each of the allegations were limited to
occurring within Appellant’s medical practice, among other
things?
Brief For Appellant, at 13.
Preliminarily, we note that Appellant’s appeal was premature. When,
as here, the defendant files timely post-sentence motions, his judgment of
sentence does not become final and appealable until the court decides the
motions. Commonwealth v. Borerro, 692 A.2d 158, 159 (Pa. Super.
1997). When the defendant withdraws timely filed post-sentence motions,
and the trial court enters an order memorializing the withdrawal, the
defendant may appeal within thirty days of the order. Id. This case
presents a slightly different scenario: Appellant filed timely post-sentence
3
The deadline for filing post-sentence motions was the tenth day after
sentencing, April 10, 2016. See Pa.R.Crim.P. 720(A)(1). Because this date
fell on Sunday, Appellant timely filed his post-sentence motion on Monday,
April 11, 2016. 1 Pa.C.S. § 1908 (when last day of any period of time
referred to in any statute falls on Saturday, Sunday, or legal holiday, such
day shall be omitted from computation).
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motions, then appealed prematurely (before the trial court decided
the motions), and then withdrew his motions three weeks after appealing.
The trial court then docketed an order memorializing the withdrawal of
Appellant’s motions. In this circumstance, we regard this appeal as having
been timely filed on the date of entry of the memorialization order. See
Pa.R.A.P. 905(a)(5) (“a notice of appeal filed after the announcement of a
determination but before the entry of an appealable order shall be treated as
filed after such entry and on the day thereof”); Commonwealth v. Claffey,
80 A.3d 780, 783 (Pa. Super. 2013) (finding appeal timely under identical
circumstances).
Appellant does not contest that he suffers from a sexual abnormality
and has engaged in predatory behavior. He insists, however, that the
Commonwealth failed to prove that he is likely to re-offend, because (1) he
only committed sexual offenses within the context of his medical practice,
and (2) he can no longer commit such offenses because he has surrendered
his medical license. We disagree.
We apply the following standard of review:
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
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conviction, without hesitancy, of the truth of the
precise facts [at] issue.
The scope of review is plenary. ‘[A]n expert’s opinion,
which is rendered to a reasonable degree of professional
certainty, is itself evidence.’
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. The reviewing court must examine
all of the Commonwealth’s evidence without consideration
of its admissibility. 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. Prendes, 97 A.3d 337, 355-56 (Pa. Super.) (citations
omitted), appeal denied, 105 A.3d 736 (Pa. 2014).
The basis for a determination that an individual is a SVP is statutory.
Id. at 357. Therefore, the salient statutory inquiry for a SVP designation
is 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][4] provides the criteria by which
such likelihood may be gauged.
4
Section 9799.24 provides in pertinent part:
An assessment shall include, but not be limited to, an
examination of the following:
(1) Facts of the current offense, including:
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(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.
(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.
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‘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.”‘ When the Commonwealth
meets this burden, the trial court then makes the final
determination on the defendant’s status as an SVP.
Id. at 357-58 (some citations omitted).
Viewed in the light most favorable to the Commonwealth, the record
provides clear and convincing evidence that Appellant is a SVP. In
particular, the record demonstrates that Appellant was likely to re-offend—or
in the words of section 9799.12, “likely to engage in predatory sexual
offenses”—by committing additional predatory sexually violent offenses.
Dr. Stein’s testimony establishes that Appellant suffers from a mental
abnormality, other specified paraphilic disorder, that overrides his emotional
and volitional control and has caused him to engage in predatory sexual
assaults against female patients for thirteen years. This is a lifetime
condition for which there is no cure. Although Appellant has forfeited his
Pennsylvania license, he is still free to seek licensure in other jurisdictions or
work as a non-licensed medical consultant. In either circumstance, his past
42 Pa.C.S. § 9799.24(b).
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history and his mental abnormality make it likely that he will again engage
in predatory sexually violent offenses.
In effect, Appellant asks us to credit Dr. Foley’s testimony over Dr.
Stein’s testimony, thereby viewing the evidence in the light most favorable
to him instead of the Commonwealth. We cannot take this step. The trial
court ruled in favor of the Commonwealth by accepting Dr. Stein’s opinion
instead of Dr. Foley’s,5 and we are required to construe the evidence in the
light most favorable to the Commonwealth.
For these reasons, we hold that the Commonwealth fulfilled its burden
of proving that Appellant is likely to engage in predatory sexual behavior in
the future.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 1/27/2017
5
Moreover, the trial court had ample basis to reject Dr. Foley’s opinion of
frotteuristic disorder. Dr. Stein observed that individuals with this disorder
usually rub their bodies against strangers in public places such as planes,
trains and elevators. In this case, Appellant was not a stranger to his
patients, and he assaulted them in private examination rooms. Instead of
rubbing his body against his patients, Appellant fondled their intimate zones
with his hands. N.T. at 34-35.
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