Com. v. Brown, L ( 2023 )

J-S39033-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
LANCE EDMOND BROWN :
:
Appellant : No. 606 MDA 2022
Appeal from the Judgment of Sentence Entered December 30, 2021
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001315-2020
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY NICHOLS, J.: FILED: FEBRUARY 23, 2023
Appellant Lance Edmond Brown appeals from the judgment of sentence
imposed after he pled guilty to aggravated indecent assault and related
offenses. Appellant argues that the trial court erred in determining that he
was a sexually violent predator (SVP). We affirm.
Briefly, Appellant was arrested and charged with multiple offenses based
on allegations that he sexually abused his minor stepdaughter multiple times
over a two-year period. The trial court summarized the subsequent procedural
history of this matter as follows:
On February 25, 2021, [Appellant] pled guilty to aggravated
indecent assault, unlawful contact with a minor, two (2) counts of
indecent assault, and corruption of minors.[1] On March 15, 2021,
we issued an order directing [Appellant] to be assessed by the
Pennsylvania Sexual Offender Assessment Board (SOAB) to
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1 18 Pa.C.S. §§ 3125(a)(8), 6318(a)(1), 3126(a)(7), (a)(8), and
6301(a)(1)(ii), respectively.
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determine if he met the criteria for classification as [an SVP]. On
December 30, 2021, we sentenced [Appellant], pursuant to a
negotiated plea agreement, to a term of incarceration of not less
than two and one-half (2 1⁄2) nor more than five (5) years in a
state correctional institution with ten (10) years of consecutive
probation.
On February 11, 2022, an SVP hearing was held at which the
Commonwealth presented the expert testimony of Dr. Robert
Stein, and [Appellant] presented the expert testimony of Dr.
Christopher Lorah. At the conclusion of the hearing, we took the
matter under advisement.
* * *
On March 24, 2022, we issued an order finding that the
Commonwealth had established, by clear and convincing
evidence, that [Appellant] is an SVP.
Trial Ct. Op., 4/27/22, at 1-2 (some formatting altered).
Appellant filed a post-sentence motion which the trial court denied.
Appellant subsequently filed a timely notice of appeal and a court-ordered
Pa.R.A.P. 1925(b) statement. The trial court issued a Rule 1925(a) opinion
addressing Appellant’s claims.
On appeal, Appellant raises the following issue for review:
Whether the trial court erred in finding [that Appellant was an
SVP] where the Commonwealth failed to prove by clear and
convincing evidence that [Appellant] is a sexually violent predator
when the Commonwealth’s expert failed to articulate the
likelihood of [Appellant] to reoffend and instead relied upon the
utility of SVP status for community safety?
Appellant’s Brief at 6.
In his sole claim, Appellant challenges the sufficiency of the evidence
supporting his SVP designation. Initially, Appellant acknowledges that Dr.
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Stein testified that Appellant suffers from a mental abnormality and that he
engaged in predatory behavior. Id. at 22-24. However, Appellant argues
that “Dr. Stein’s opinion failed to provide evidence that, based on this conduct
and the predatory conduct within this case, there was a likelihood that
[Appellant] would reoffend.” Id. at 25-26. Further, Appellant argues that
although Dr. Stein analyzed the statutory factors, “his testimony failed to
show how, taken together, there is a likelihood to reoffend other than in this
instance, there was sustained sexual deviance.” Id. at 26. Therefore,
Appellant asserts that because “the evidence failed to show that the mental
abnormality would lead to a higher likelihood that he would reoffend,” the trial
court erred in designating him as an SVP. Finally, to the extent Appellant’s
interpretation of the SVP statute is inconsistent with this Court’s precedent,
Appellant requests that we revisit our prior decisions and adopt the three-part
SVP test rejected by this Court in Commonwealth v. Dixon, 907 A.2d 533(Pa. Super. 2006).
In reviewing Appellant’s sufficiency claim, our standard of review is as
follows:
The determination of a defendant’s SVP status may only be made
following an assessment by the [SOAB] . . . and hearing before
the trial court. In order to affirm an SVP designation, we, as a
reviewing court, must be able to conclude that the fact-finder
found clear and convincing evidence that the individual is a
sexually violent predator. As with any sufficiency of the evidence
claim, we view all the evidence and [the] 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
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Commonwealth has not presented clear and convincing evidence
that each element of the statute has been satisfied.
The standard of proof governing the determination of SVP status,
i.e., “clear and convincing evidence,” has been described as an
“intermediate” test, which is more exacting than a preponderance
of the evidence test, but less exacting than proof beyond a
reasonable doubt.
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 in issue.
Commonwealth v. Morgan, 16 A.3d 1165, 1168 (Pa. Super. 2011) (citation
omitted and formatting altered). In reviewing an SVP determination, this
Court may not re-weigh the factors relied on by the fact-finder. Id. at 1173.
This Court has explained the SVP determination process as follows:
After a person has been convicted of an offense listed in 42 Pa.C.S.
§ 9799.14, the trial court then orders an assessment to be done
by the SOAB to help determine if that person should be classified
as an SVP. An SVP is defined as a person who has been convicted
of a sexually violent offense and who has a mental abnormality or
personality disorder that makes the person likely to engage in
predatory sexually violent offenses. In order to show that the
offender suffers from a mental abnormality or personality
disorder, the evidence must show that the defendant suffers from
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. Moreover, there must be a showing that the defendant’s
conduct was predatory. Furthermore, in reaching a
determination, we must examine the driving force behind the
commission of these acts, as well as looking at the offender’s
propensity to reoffend, an opinion about which the
Commonwealth’s expert is required to opine. However, the risk
of reoffending is but one factor to be considered when making an
assessment; it is not an independent element.
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When performing an SVP assessment, a mental health
professional must consider the following 15 factors: whether the
instant offense involved multiple victims; whether the defendant
exceeded the means necessary to achieve the offense; the nature
of the sexual contact with the victim(s); the defendant’s
relationship with the victim(s); the victim(s)’ age(s); whether the
instant offense included a display of unusual cruelty by the
defendant during the commission of the offense; the victim(s)’
mental capacity(ies); the defendant’s prior criminal record;
whether the defendant completed any prior sentence(s); whether
the defendant participated in available programs for sexual
offenders; the defendant’s age; the defendant’s use of illegal
drugs; whether the defendant suffers from a mental illness,
mental disability, or mental abnormality; behavioral
characteristics that contribute to the defendant’s conduct; and any
other factor reasonably related to the defendant’s risk of
reoffending. See 42 Pa.C.S. § 9799.24(b).
Commonwealth v. Hollingshead, 111 A.3d 186, 189-90 (Pa. Super. 2015)
(some citations omitted and formatting altered).
This Court has held that although the SVP statute requires “an inquiry
into the likelihood of reoffense,” it does not require an “assessment of the
likelihood of reoffense,” or a “personal risk assessment.” Morgan, 16 A.3d at
1170, 1173 (quoting Dixon, 907 A.2d at 539 and Commonwealth v. Geiter,
929 A.2d 648, 651 (Pa. Super. 2007)). Further, the risk of reoffense is not
“an ‘independent element’ of the SVP determination, but rather, is but one
factor to be considered when making such an assessment.” Morgan, 16 A.3d
at 1173; see also Dixon, 907 A.2d at 539 (stating that although experts
must offer an opinion as to whether an individual is likely to re-offend, “the
precise manner of meeting this burden is not analyzed in terms of a strict,
three-prong test”).
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Here, the trial court concluded that there was sufficient evidence to
support Appellant’s designation as an SVP. See Trial Ct. Op. at 18. In
reaching that conclusion, the trial court explained:
In this case, an SVP assessment was conducted by a member of
the SOAB, Dr. Robert Stein, pursuant to [Section] 9799.24(b).
Dr. Stein examined the factors enumerated in that sub-section
relevant to the issues of mental abnormality and predatory
behavior.
* * *
Dr. Stein has been a member of the SOAB since 1998 and has
conducted over 2,000 SVP assessments. He estimated that eighty
percent (80%) of those assessments result in his determination
that the individual does not meet the SVP requirements. In this
case, he reviewed all the appropriate materials to conduct his
assessment, including the report from the SOAB investigator, the
criminal complaint and probable cause affidavit, Pennsylvania
State Police reports, ChildLine reports, Dauphin County Children
and Youth reports, and Dauphin County Prison reports. Based
upon his experience, preparation, and demonstration of
competence and expertise during his testimony, we find him to be
a credible witness.
Dr. Stein diagnosed [Appellant] with an “other, specified
paraphilic disorder with a specification of non-consent, a pattern
of non-consenting sexual behavior. Non-consenting because of
the young age of the child and this was not in any way a
consensual or dating type relationship. This was a predatory
relationship.” He explained that “paraphilia” is anything that
deviates from the sexual norm, even where the behavior is legal
or consensual.
However, when a “paraphilic behavior pattern victimizes another
person, now it rises to the level of a paraphilic disorder.” When
that victimization occurs for six (6) months or more, a diagnosis
of paraphilic disorder is appropriate. Such a disorder constitutes
a “mental abnormality.”
Having determined that [Appellant] suffered from a “mental
abnormality,” Dr. Stein next addressed the question of whether
[Appellant] had engaged in “predatory behavior.” He opined that
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[Appellant] “did [display predatory behavior] through multiple
acts of sexual touching. There was the establishment and the
maintenance and promotion of a sexually victimizing relationship.”
The victim was [Appellant’s] stepdaughter, and their relationship
likely was initially established pursuant to this dynamic. However,
the fact that a familial relationship existed does not preclude a
finding of predatory behavior because the statute defines
“predatory” as a relationship formed, in whole or in part, to
facilitate victimization. 42 Pa.C.S. § 9799.12.
At this point, we pause in our analysis of Dr. Stein’s assessment,
to briefly mention aspects of the testimony of [Appellant’s] expert,
Dr. Christopher Lorah, a forensic psychologist who assesses and
treats sexual offenders. We note that Dr. Lorah also believes
[Appellant] suffers from a paraphilic disorder. Dr. Lorah also
agrees with Dr. Stein that [Appellant] engaged in predatory
behavior. In reaching his conclusions that [Appellant] suffers
from a mental abnormality, engaged in predatory behavior, and
satisfies the criteria for an SVP, Dr. Stein examined the statutorily
prescribed factors in § 9799.24(b). He found the following
relevant to the formation of his opinions:
(a) § 9799.24(b)(1)(iii) - The nature of the sexual contact
with the victim. The nature of the contact was
physical touching, which is consistent with sexual
deviance.
(b) § 9799.24(b)(1)(iv) - Relationship of the individual to
the victim. A sexual relationship between a stepfather
and stepdaughter is outside of normal sexual behavior
and consistent with sexual deviance.
(c) § 9799.24(b)(1)(v) - Age of the victim. The victim’s
age, between twelve (12) and fourteen (14), “is a
significant factor in this case”, in that targeting a child
of that age is consistent with sexual deviance. Since
there was no evidence as to whether the victim was
pre-pubescent or post-pubescent, Dr. Stein declined
to diagnose [Appellant] with pedophilia. However, the
absence of that diagnosis does not negate the sexual
deviance of taking advantage of such a young child.
(d) § 9799.24(b)(1)(vii) - The mental capacity of the
victim. The mental capacity of the victim was relevant
to Dr. Stein because some of the offenses occurred
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while the victim was asleep. Taking advantage of
someone without the capacity to defend herself is
consistent with predatory behavior.
(e) § 9799.24(b)(3)(i) - Age of [Appellant]. [Appellant]
was a thirty-seven (37) year old mature adult,
approximately twenty-five (25) years older than the
victim. Dr. Stein stated that “such a substantial [age
difference] is consistent with sexual deviance”, and
pointed out that, while still perhaps demonstrative of
sexual deviance, the same offenses committed by an
eighteen (18) year old upon a twelve (12) year old
would be viewed differently.
(f) § 9799.24(b)(3)(iv) - Behavioral characteristics that
contribute to the individual’s conduct. The overall
pattern is consistent with sustained sexual deviance,
sustained being defined as a period of six months or
more, somewhat arbitrary but that’s the way it’s
generally defined; and the paraphilic disorder, which
is a sexually deviant interest in targeting a 12-year-
old girl and acting on that interest by the demise of a
person through contact offending.
Trial Ct. Op. at 9-13 (record citations omitted, some formatting altered).
Following our review of the record, and viewing the evidence in the light
most favorable to the Commonwealth, we agree with the trial court that there
was sufficient evidence supporting Appellant’s classification as an SVP. See
Morgan, 16 A.3d at 1168.
As noted by the trial court, Dr. Stein considered each of the statutory
factors, including those that were “reasonably related to the risk of reoffense.”
See Hollingshead, 111 A.3d at 189-90. At the SVP hearing, Dr. Stein
testified that Appellant suffered from a paraphilic disorder which “overrode
[Appellant’s] emotional and volitional control” during the two-to-three-year
period in which Appellant sexually abused his minor stepdaughter. N.T. SVP
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Hr’g, 2/11/22, at 40. Dr. Stein also found that Appellant’s conduct was
predatory in nature. Id. at 12, 16-18. Dr. Stein discussed several factors
related to Appellant’s risk of reoffense, including Appellant’s age, diagnosis,
lack of control over his impulses, and potential for rehabilitation. Id. at 20-
26. Ultimately, Dr. Stein concluded that Appellant “meets the criteria for [an
SVP].” Id. at 18.
Although Dr. Stein did not state that there was “high likelihood” that
Appellant would reoffend, such a finding is not required for an SVP
designation. See Morgan, 16 A.3d at 1170, 1173. Further, to the extent
Appellant asks us to revisit our precedent and “require an independent
assessment of likelihood to reoffend” in the SVP context, we have no basis to
do so. See Commonwealth v. Pepe, 897 A.2d 463, 465 (Pa. Super. 2006)
(stating that “[i]t is beyond the power of a Superior Court panel to overrule a
prior decision of the Superior Court” (citation omitted)). Accordingly, we
affirm.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 02/23/2023
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