Com. v. Dierolf, A. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ANDREW JOSEPH DIEROLF
Appellant No. 1243 MDA 2015
Appeal from the Judgment of Sentence July 1, 2015
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0003824-2014
BEFORE: FORD ELLIOTT, P.J.E., PANELLA, J., and STEVENS, P.J.E.*
MEMORANDUM BY PANELLA, J. FILED APRIL 15, 2016
Appellant, Andrew Joseph Dierolf, appeals from the judgment of
sentence entered July 1, 2015, in the Court of Common Pleas of Berks
County. On appeal, Appellant challenges his designation as a sexually violent
predator (SVP) pursuant to the Sexual Offender Registration and Notification
Act (SORNA), 42 Pa.C.S.A. §§ 9799.10-9799.41. We affirm.
Appellant entered a negotiated guilty plea to one count of Unlawful
Contact with a Minor, 18 Pa.C.S.A. § 6318(a)(5), a sexually violent offense
under Section 9799.14(c)(5). At the plea hearing, Appellant admitted that
he contacted a ten-year-old minor female over the internet—his
stepdaughter—and, posing as a twelve-year-old boy, requested that the
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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victim send pictures of her breasts and vagina. See N.T., Plea Hearing,
3/6/15 at 5-6. At the time, Appellant was 31-years old. See Id. at 6.
Appellant further admitted that police discovered on his phone at least one
photograph of a juvenile female under the age of 18 depicted in a sexual
act. See id. The court scheduled sentencing and directed the Sexual
Offenders Assessment Board (SOAB) to conduct an evaluation to determine
if Appellant was an SVP. Following the SVP determination hearing, the trial
court ultimately agreed that Appellant met the SVP requirements. The trial
court thereafter sentenced Appellant to a term of six to 23 months’
imprisonment, to be followed by five years’ probation. Appellant filed a post-
sentence motion for reconsideration, which the trial court denied. This timely
appeal followed.
Our standard when reviewing the sufficiency of the evidence to
support a trial court’s SVP designation is as follows.
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[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, 125 A.3d 1199 (Pa. 2015) (citation omitted). The task of
the Superior Court on appeal of a trial court's classification of a criminal
offender as an SVP “is one of review, and not of weighing and assessing
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evidence in the first instance.” Commonwealth v. Meals, 912 A.2d 213,
218 (Pa. 2006).
An SVP is a person who has committed a sexually violent offense
under Section 9799.14 and who fits the SVP criteria set forth in Section
9799.24 “due to a mental abnormality or personality disorder that makes
the individual likely to engage in predatory sexually violent offenses.” 42
Pa.C.S.A. § 9799.12. Section 9799.12 defines a mental abnormality as:
A congenital or acquired condition of a person 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.
After conviction for a sexually violent offense and prior to sentencing,
Pennsylvania law requires the SOAB to conduct an assessment of the
convicted party and the trial court to hold a hearing to determine SVP
status. See 42 Pa.C.S.A. § 9799.24(a). In its assessment, the SOAB must
include, but is not limited to, an evaluation of the following factors.
(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:
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(i) The individual's 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).
This Court has previously stated that the “salient inquiry for the trial
court is the identification of the impetus behind the commission of the crime,
coupled with the extent to which the offender is likely to reoffend.’’
Commonwealth v. Dixon, 907 A.2d 533, 536 (Pa. Super. 2006) (internal
quotes and citation omitted).
In the instant case, Appellant pled guilty to Unlawful Contact with a
Minor, a sexually violent offense under Section 9799.14(c)(5). At the hearing
to determine Appellant’s SVP status, the SOAB expert, Veronique Valliere,
Psy.D., testified based upon her evaluation that Appellant suffers from a
mental abnormality; specifically, an Other Specific Paraphilic Disorder. See
N.T., SVP Hearing, 7/1/15 at 8. Dr. Valliere defined a paraphilic disorder as
“a deviate sexual arousal pattern that creates a maladaption [sic] in
somebody’s life, [which] either serves to victimize others or creates
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problems in the individual’s social, emotional and occupational functioning.”
Id. Dr. Valliere found clear evidence that Appellant has a sexual arousal
towards children based upon his victimization of the minor child in the
current offense, as well as his collection of child pornography. See id. at 8-
9. Dr. Valliere observed that Appellant’s disorder has persisted since his
childhood juvenile sex offending which began at age twelve. See id.Dr. Valliere also diagnosed Appellant with antisocial personality
disorder, which she described as a chronic pervasive disorder marked by a
disregard for the rules and the rights of others, failure to respond to
consequences and intervention, aggressiveness, repeated violations of the
law, and repeated resistance to negative sanctions. See id. at 9.
Dr. Valliere proceeded to analyze the fourteen factors under Section
9799.24(b) as they applied to Appellant. See id. at 12-13. She opined that
Appellant’s conduct in posing as a twelve-year-old boy in order to establish a
secret deceptive relationship with the victim, who was his stepdaughter, for
the sole purpose of victimization, clearly exhibited predatory behavior. See
id. at 10. She further stated that Appellant’s history in juvenile sexual
offender treatment and his recidivism even after treatment established
Appellant’s likelihood of re-offending to engage in predatory behavior. See
id. Based upon her evaluation of the evidence, Dr. Valliere ultimately
concluded that Appellant met the classification criteria of an SVP.
After reviewing the record, we determine that Dr. Valliere's testimony,
as well as the SVP Assessment Report prepared in this matter, adequately
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demonstrated that Appellant suffers from “a mental abnormality or
personality disorder that makes [him] likely to engage in predatory sexually
violent offenses.” 42 Pa.C.S.A. § 9799.12. Dr. Valliere diagnosed Appellant
with Other Specific Paraphilic Disorder and Antisocial Personality Disorder.
She analyzed, at length, the statutory factors set forth in Section
9979.24(b). Several of the factors worked against Appellant’s interest, such
as his history of sexual contact with multiple children, his trove of child
pornography, his solicitation of sexual images from the minor victim, the age
of the victim, Appellant’s age, Appellant’s relationship with the victim,
Appellant’s paraphilia diagnosis, his recidivism after juvenile sex offender
treatment and Appellant’s predatory conduct. See N.T., SVP Hearing, 7/1/15
at 12-13.
Appellant objects to Dr. Valliere’s reference in her report of a prior
2007 rape investigation, which was dismissed after the victim recanted her
testimony. When Appellant’s counsel questioned Dr. Valliere on the inclusion
of this event in her report at the SVP determination hearing, she stated that
the recanted rape allegation was not a significant factor in the formation of
her opinion, but opined that the fact that the investigation was not a
deterrent for recidivism spoke to Appellant’s state of mind. See N.T., SVP
Hearing, 7/1/15 at 15-16. The trial court credited the evaluator’s testimony,
see Trial Court Opinion, 9/16/15 at 4-5, and we are therefore satisfied that
the withdrawn rape allegation was not a substantial factor in Dr. Valliere’s
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analysis. Accordingly, Appellant’s effort to challenge the validity the report
on this basis fails.
Based on our review of the evidence presented at Appellant’s SVP
hearing, including the report and testimony of Dr. Valliere, and viewing that
evidence in the light most favorable to the Commonwealth, see
Hollingshead, supra, we conclude that the trial court did not err in finding,
by clear and convincing evidence, that Appellant satisfies the criteria to be
classified as an SVP.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/15/2016
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