Com. v. Larson, B. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
BRAD A. LARSON
Appellant No. 1564 MDA 2015
Appeal from the Judgment of Sentence August 10, 2015
In the Court of Common Pleas of Lackawanna County
Criminal Division at No(s): CP-35-CR-0000385-2015
BEFORE: GANTMAN, P.J., BOWES, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED MAY 24, 2016
Appellant, Brad A. Larson, appeals from the judgment of sentence
entered in the Lackawanna County Court of Common Pleas, following his
open guilty plea to two counts of possession of child pornography and one
count of criminal use of communication facility.1 We affirm and grant
counsel’s petition to withdraw.
The relevant facts and procedural history of this case are as follows.
On July 26, 2014, Appellant’s girlfriend turned Appellant’s cellphone over to
police after she discovered child pornography on the phone. Police obtained
a search warrant, and a search of Appellant’s phone revealed hundreds of
child pornography images and videos. On February 27, 2015, the
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1
18 Pa.C.S.A. §§ 6312(d) and 7512(a), respectively.
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Commonwealth charged Appellant with two counts of possession of child
pornography and one count of criminal use of communication facility.
Appellant entered an open guilty plea to all charged counts on March 6,
2015, in exchange for the Commonwealth’s agreement not to file additional
charges against Appellant. After accepting Appellant’s guilty plea, the court
ordered the Sexual Offender Assessment Board (“SOAB”) to assess Appellant
and determine if Appellant met the criteria for classification as a sexually
violent predator (“SVP”). SOAB member, Paula Brust, conducted Appellant’s
assessment.
The court held a SVP hearing on August 10, 2015, where Ms. Brust
testified on behalf of the Commonwealth. Appellant’s counsel stipulated to
Ms. Brust’s credentials, and the court qualified Ms. Brust as an expert in the
field of clinical psychology. Ms. Brust testified that her assessment of
Appellant revealed Appellant met the diagnostic criteria for antisocial
personality disorder, which is a chronic lifetime condition. She based this
conclusion on the following: (1) Appellant’s admission that he viewed child
pornography from 2003 to 2014; (2) Appellant’s admission that he joined a
child pornography chat room and posted a clothed picture of his own minor
daughter to join the chat room; (3) Appellant’s admission that he
downloaded and traded numerous images of child pornography; (4)
Appellant’s juvenile conviction of indecent assault against a minor; (5)
Appellant’s numerous other convictions including corruption of minors; (6)
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the protection from abuse orders issued against Appellant; and (7) the fact
that Appellant had been out of jail and on probation for only two months
before he committed the instant offenses. Ms. Brust stated all of these facts
supported her conclusion that Appellant suffered from antisocial personality
disorder because they demonstrated: (1) Appellant’s failure to conform to
social norms; (2) Appellant’s deceitfulness; (3) Appellant’s impulsivity; (4)
Appellant’s irritability and aggressiveness towards others; and (5)
Appellant’s reckless disregard for the safety of others. Ms. Brust further
testified that Appellant exhibited predatory behavior because he had viewed
child pornography regularly for a period of ten years, he had sent a picture
of his own minor child to a chat room where sexual offenders were
members, and he had a juvenile conviction of indecent assault of a minor.
Based on these findings and conclusions, Ms. Brust opined that Appellant
met the criteria for classification as a SVP. As a result, the court imposed
SVP status on Appellant because he has a chronic lifetime personality
disorder that makes him likely to engage in predatory sexually violent
offenses.
Immediately following the SVP hearing, the court sentenced Appellant
to sixteen (16) months’ to four (4) years’ imprisonment for the first
possession of child pornography conviction, twelve (12) months’ to four (4)
years’ imprisonment for the second possession of child pornography
conviction, and twelve (12) months’ to four (4) years’ imprisonment for
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Appellant’s criminal use of a communication facility conviction. The court
ordered Appellant to serve all of the sentences consecutively; thus, the court
sentenced Appellant to an aggregate term of forty (40) months’ to twelve
(12) years’ imprisonment. On August 19, 2015, Appellant timely filed a
motion for reconsideration, which the court denied the same day. Appellant
timely filed a notice of appeal on September 10, 2015. On September 17,
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 on September 28, 2015. On December 16, 2015, Appellant’s
counsel filed an Anders brief and petition for leave to withdraw as counsel.
As a preliminarily matter, counsel seeks to withdraw her
representation pursuant to Anders v. California, 386 U.S. 738, 87 S. Ct.
1396, 18 L. Ed. 2d 493 (1967) and Commonwealth v. Santiago, 602 Pa.
159, 978 A.2d 349 (2009). Anders and Santiago require counsel to: 1)
petition the Court for leave to withdraw, certifying that after a thorough
review of the record, counsel has concluded the issues to be raised are
wholly frivolous; 2) file a brief referring to anything in the record that might
arguably support the appeal; and 3) furnish a copy of the brief to the
appellant and advise him of his right to obtain new counsel or file a pro se
brief to raise any additional points the appellant deems worthy of review.
Santiago, supra at 173-79, 978 A.2d at 358-61. Substantial compliance
with these requirements is sufficient. Commonwealth v. Wrecks, 934
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A.2d 1287, 1290 (Pa.Super. 2007).
In Santiago, supra, our Supreme Court addressed the briefing
requirements where court-appointed appellate counsel seeks to withdraw
representation:
Neither Anders nor McClendon[2] requires that counsel’s
brief provide an argument of any sort, let alone the type of
argument that counsel develops in a merits brief. To
repeat, what the brief must provide under Anders are
references to anything in the record that might arguably
support the appeal.
* * *
Under Anders, the right to counsel is vindicated by
counsel’s examination and assessment of the record and
counsel’s references to anything in the record that
arguably supports the appeal.
Santiago, supra at 176, 177, 978 A.2d at 359, 360. Thus, the Court held:
[I]n the Anders brief that accompanies court-appointed
counsel’s petition to withdraw, counsel must: (1) provide a
summary of the procedural history and facts, with citations
to the record; (2) refer to anything in the record that
counsel believes arguably supports the appeal; (3) set
forth counsel’s conclusion that the appeal is frivolous; and
(4) state counsel’s reasons for concluding that the appeal
is frivolous. Counsel should articulate the relevant facts of
record, controlling case law, and/or statutes on point that
have led to the conclusion that the appeal is frivolous.
Id. at 178-79, 978 A.2d at 361.
Instantly, Appellant’s counsel filed a petition to withdraw. The petition
states counsel conducted a conscientious review of the record and
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2
Commonwealth v. McClendon, 495 Pa. 467, 434 A.2d 1185 (1981).
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determined the appeal is wholly frivolous. Counsel also supplied Appellant
with a copy of the brief and a letter explaining Appellant’s right to retain new
counsel or to proceed pro se to raise any additional issues Appellant deems
worthy of this Court’s attention. (See Letter to Appellant, dated 12/16/15,
attached to Petition for Leave to Withdraw as Counsel.) In the Anders brief,
counsel provides a summary of the facts and procedural history of the case.
Counsel’s argument refers to relevant law that might arguably support
Appellant’s issue. Counsel further states the reasons for her conclusion that
the appeal is wholly frivolous. Therefore, counsel has substantially complied
with the requirements of Anders and Santiago.
Counsel raises the following issue on Appellant’s behalf:
WHETHER THE [TRIAL] COURT ABUSED ITS DISCRETION
AND/OR COMMITTED AN ERROR OF LAW WHEN IT
DETERMINED THAT [] APPELLANT WAS A SEXUALLY
VIOLENT PREDATOR WHERE THE COMMONWEALTH FAILED
TO PROVE BY CLEAR AND CONVINCING EVIDENCE THAT
HE MET THE CRITERIA FOR SUCH A CLASSIFICATION?
(Anders Brief at 5).
Appellant argues his diagnosis of antisocial personality disorder by the
Commonwealth’s expert, Ms. Brust, was insufficient to show by clear and
convincing evidence that Appellant suffers from a mental abnormality or
personality disorder. Appellant asserts Ms. Brust is not qualified to
“diagnose” Appellant with a mental abnormality or personality disorder
because she is not a doctor, psychiatrist, or licensed clinician. Appellant
contends Ms. Brust’s improper diagnosis of Appellant is illustrated by the
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lack of an antisocial personality disorder diagnosis in Appellant’s extensive
mental health history. Appellant also claims the court failed to identify any
other basis for its determination that Appellant suffers from a mental
abnormality or personality disorder, which is necessary for SVP classification.
Appellant concludes the evidence was insufficient to support his SVP
designation, and this Court should reverse that decision. We disagree.
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
and convincing evidence that the individual is a [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
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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.
(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
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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
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 that the offender is, in fact,
an SVP. 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
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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 personality
disorder or mental abnormality. Commonwealth v. Conklin, 587 Pa. 140,
158, 897 A.2d 1168, 1178 (2006).
Instantly, the trial court reasoned as follows:
[Ms.] Brust performed the assessment of [Appellant] and
testified that [Appellant] met the diagnostic criteria for a
mental abnormality or personality disorder since he
admitted that he viewed child pornography from 2003 to
2014, he joined a child pornography chat room, he posted
a picture of his own minor daughter in order to join the
chat room, and he downloaded numerous images and
traded them. She also found significant that [Appellant]
had a juvenile [indecent assault] conviction, that he has
committed other crimes including corruption of minors,
that he had protection from abuse orders issued against
him, and that he was only out of jail and on probation for
[two] months when he was found to have committed the
offenses here. She specifically found that [Appellant] met
the criteria for antisocial personality disorder since he
failed to conform to social norms as shown by his
numerous arrests, convictions, and charges; he is deceitful
and engages in repeated lying, using aliases and conning
others; he acts impulsively; he has shown reckless
disregard for the safety of others in committing numerous
crimes including the crimes here. She also testified that
[Appellant] met the criteria for a predator since his
behavior was predatory, he had been adjudicated for
[indecent assault] as a juvenile, he stated that he had
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been viewing child pornography for [ten] years, and he
sent pictures of his own child to a chat room with other
sexual offenders. The court thus found that there was
clear and convincing evidence that [Appellant] met the
criteria of a [SVP] pursuant to 42 Pa.C.S.A. 9799.24.
(See Trial Court Opinion, filed October 22, 2015, at 6). The record supports
the court’s sound reasoning. See Hollingshead, supra.
Further, Appellant’s assertion, that Ms. Brust could not “diagnose” him
with antisocial personality disorder because she is not a licensed
psychologist or psychiatrist, has no merit. Appellant’s counsel stipulated to
Ms. Brust’s credentials, and the court qualified Ms. Brust as an expert in
clinical psychology prior to her testimony. Ms. Brust then explained the
facts which supported her determination that Appellant suffers from
antisocial personality disorder. Importantly, the Commonwealth was free to
rely on this testimony to prove Appellant met the SVP criteria. See
Conklin, supra. Additionally, the court was free to accept Ms. Brust’s
assessment that Appellant suffers from antisocial personality disorder. See
Kopicz, supra. Therefore, the evidence was sufficient to support
Appellant’s SVP classification. See Hollingshead, supra. Accordingly, we
affirm the judgment of sentence and grant counsel’s petition to withdraw.
Judgment of sentence affirmed; counsel’s petition to withdraw is
granted.
Judge Musmanno joins this memorandum.
Judge Bowes files a concurring statement.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/24/2016
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