Com. v. Grubb, D. ( 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
DANIEL GERARD GRUBB
Appellant No. 1205 MDA 2015
Appeal from the Order entered June 16, 2015
In the Court of Common Pleas of Bradford County
Criminal Division at No(s): CP-08-CR-0000804-2014
BEFORE: BOWES, J., LAZARUS, J., and STRASSBURGER, J.*
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 19, 2016
Daniel Gerard Grubb appeals from the order entered in the Court of
Common Pleas of Bradford County, classifying him as a sexually violent
predator (SVP) pursuant to the Sexual Offender Registration and Notification
Act (SORNA).1 Upon careful review, we affirm.
On January 19, 2015, Grubb entered a guilty plea to two counts of
corruption of minors2 and one count of indecent assault.3 The charges
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
42 Pa.C.S.A. §§ 9799.10-9799.41
2
18 Pa.C.S.A. § 6301(a)(1)(i).
3
18 Pa.C.S.A. § 3126(a)(8).
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stemmed from an incident in which Grubb initiated oral and vaginal
intercourse with a fifteen-year-old girl after providing her with marijuana
and alcohol. Following the entry of his plea, the court ordered that Grubb
undergo an SVP assessment by the Sexual Offenders Assessment Board
(“Board”) pursuant to 42 Pa.C.S.A. § 9799.24. Upon agreement of the
parties, Grubb was sentenced on March 26, 2015, prior to his SVP hearing.4
The court imposed an aggregate sentence of 26 to 72 months’
imprisonment.
Paula Brust, a member of the Board, performed Grubb’s SVP
assessment and, on June 16, 2015, the trial court held a hearing to
determine whether Grubb was an SVP. After hearing Ms. Brust’s testimony,
the court concluded that Grubb was an SVP and ordered him to register as a
Tier 2 offender. Grubb filed a motion for reconsideration of his SVP
determination, which the court denied by order entered on June 22, 2015.
Grubb filed a timely notice of appeal,5 followed by a court-ordered statement
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4
Although 42 Pa.C.S.A. § 9795.4 requires that an SVP hearing be held prior
to sentencing, a defendant may waive that requirement. See
Commonwealth v. Whanger, 30 A.3d 1212 (Pa. Super. 2011).
5
Although Grubb’s judgment of sentence was imposed on March 26, 2015,
the notice of appeal filed following his June 16, 2015 SVP determination was
timely as to his challenge to that determination. See Whanger, 30 A.3d at
1215 (“As the SVP order is collateral to the sentence, but a final order
relative to the sole issue before the SVP court, a defendant whose SVP
sentencing occurs after sentencing can obviously appeal from that order
regardless of whether it makes judgment of sentence final.”).
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of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b). The trial
court filed its Rule 1925(a) opinion on September 15, 2015.
On appeal, Grubb claims that the trial court erred in concluding that he
is an SVP. A challenge to a determination of SVP status requires us to view
the evidence presented in the light most favorable to the Commonwealth.
Commonwealth v. Prendes, 97 A.3d 337, 355 (Pa. Super. 2014). We
may not weigh the evidence or substitute our judgment for that of the trial
court. Id. The Commonwealth must establish SVP status by clear and
convincing evidence, which 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 at issue.
Id. The scope of our review is plenary. Id. at 357.
After conviction but before sentencing, the trial court is required to
order an individual convicted of a sexually violent offense to be assessed by
the Board. 42 Pa.C.S.A. § 9799.24. Such 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.
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(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.
Id.
While the Board must examine all statutory factors, there is no
requirement that all of these factors or any particular number of them be
present or absent in order to support an SVP designation. Commonwealth
v. Brooks, 7 A.3d 852, 863 (Pa. Super. 2010). Rather, the question for the
SVP court is whether the Commonwealth’s evidence, including the Board’s
assessment, shows that the person convicted of a sexually violent offense
has a mental abnormality or disorder making that person likely to engage in
predatory sexually violent offenses. Id. Based on the evidence presented,
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the court decides whether a defendant is to be designated an SVP and thus
made subject to SORNA’s registration requirements. Id.
Here, Ms. Brust performed an evaluation of Grubb and testified to a
reasonable degree of professional certainty that, based on this incident and
another incident that occurred six years prior,6 Grubb met the criteria for
Other Specified Paraphilic7 Disorder non-consent. In her report, Ms. Brust
offers the following analysis:
This disorder is evidenced by intense, sexual arousal that has
been present for at least 6 months and causes marked distress
or impairment in social, occupational or other important areas of
functioning. The arousal in this case is to the victim’s non-
consent. According to the DSM-5, “[m]any dozens of distinct
paraphilias have been identified and named, and almost any of
them could, by virtue of its negative consequences for the
individual or for others, rise to the level of a paraphilic disorder.
The diagnoses of Other Specified and Unspecified Paraphilia
Disorders are therefore indispensable and will be required in
many cases. A paraphilic disorder is a paraphilia that is
currently causing distress or impairment to the individual or a
paraphilia whose satisfaction has entailed personal harm, or risk
of harm, to others.” Mr. Grubb meets the full criteria for Other
Specified Paraphilic Disorder. He has caused harm to his minor
victim and his paraphilia has caused distress. This is the 2nd
time he has forced someone into sexual activity without their
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6
This prior incident involved Grubb physically forcing himself upon a 26-
year-old female acquaintance inside of her own home, for which he was
convicted of indecent assault without consent. SVP Assessment, 4/5/15, at
4-5.
7
“Paraphilia” is defined as a pattern of recurring sexually-arousing mental
imagery or behavior that involves unusual and especially socially
unacceptable sexual practices, such as sadism or pedophilia. See Merriam-
Webster, http://www.meriam-webster.com/dictionary/paraphilia.
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consent in 6 years and it is evident he has not been able to
manage his offending.
SVP Assessment, 4/5/15, at 6.
Ms. Brust’s report continues:
The offender talked with the victim in a sexual manner, telling
her he didn’t believe she was only 15 as she was sexy, etc. He
then plied her with alcohol and marijuana and she said she kept
drinking shots of vodka. He took advantage of this minor’s
impaired state to have sexual contact with her.
Id. Ms. Brust testified that, in her expert opinion, Grubb was sexually
aroused by his victim’s “non-consent . . . due to her age, and the fact that
she said no, and the fact that she was highly intoxicated after drinking
numerous shots.” N.T. SVP Hearing, 6/16/15, at 10.
Based on our review of the evidence presented at Grubb’s SVP
hearing, including the report and testimony of Ms. Brust, and viewing that
evidence in the light most favorable to the Commonwealth, Prendes,
supra, we conclude that the trial court did not err in finding, by clear and
convincing evidence, that Grubb satisfies the criteria to be classified as an
SVP.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/19/2016
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