Com. v. Hazzard, R. ( 2017 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
RAHEEM HAZZARD,
Appellant No. 1634 EDA 2016
Appeal from the Judgment of Sentence July 20, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0001412-2015
BEFORE: SHOGAN and OTT, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY SHOGAN, J.: FILED FEBRUARY 24, 2017
Appellant, Raheem Hazzard, appeals from the judgment of sentence
entered on July 20, 2015, as made final by the order finding him to be a
sexually violent predator (“SVP”) on April 28, 2016. We affirm.
The trial court summarized the history of this case as follows:
FACTUAL HISTORY:
The instant case involves the Appellant, a 21-year old man
who has engaged in a sexually abusive course of conduct with a
child under the age of 13 who is his niece. The minor victim
reported to police that she had been sexually assaulted by the
Appellant on two occasions. The first incident occurred when she
was 11-years-old and at her father’s residence in Philadelphia,
PA. The victim stated that she was on her side sleeping on a
mattress in the home when she was awakened by pain
emanating from her vagina. She stated that her pants and
____________________________________________
*
Former Justice specially assigned to the Superior Court.
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underwear were down and that her uncle, the Appellant, had his
penis inside of her vagina. She stated that when she could no
longer tolerate the pain, she stood up and went upstairs to her
sister’s bedroom. She was crying and the Appellant came
upstairs and asked her if she was okay.
The second incident occurred when the victim was 14-
years-old during the spring of 2014, when she was visiting her
father’s new residence in Parkside, Delaware County,
Pennsylvania. The victim stated she was in the basement of the
home when the Appellant offered her an alcoholic beverage,
which she declined. The Appellant then offered her a cigar to
smoke, which she did. The Appellant asked her to sit down on
the couch where he proceeded to pull down her pants and
undergarment. The victim related that the Appellant performed
oral sex on her vagina. The victim reported that the Appellant
heard a noise and thought someone was coming so he went
upstairs to check. The victim pulled up her pants and went
upstairs. The Appellant said to the victim repeatedly: “Any time
you want me to do it just tell me.”
PROCEDURAL HISTORY:
On April 17, 2015, Jeffrey Bauer, Esquire, Assistant Public
Defender, entered his appearance on behalf of the Appellant. On
July 20, 2015, the Appellant entered a negotiated guilty plea to
Involuntary Deviate Sexual Intercourse with a Child, and was
sentenced according to the recommended sentence offered by
the Commonwealth of: 6 to 12 years SCI and 5 years
consecutive state probation.
On January 19, 2016, an SVP Hearing was held. On
January 19, 2016, the Appellant filed a “Motion for
Reconsideration of Sentencing”. On January 25, 2016, the Court
issued an Order denying the Motion for Reconsideration. On
April 28, 2016, the court filed an Order and Findings determining
that Appellant is determined to be a Sexually Violent Predator
under 42 Pa.C.S. Section 9799.24. On May 26, 2016, the
Appellant filed a timely Notice of Appeal.
***
The Sexually Violent Predator Hearing:
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After Appellant’s conviction, this Court, pursuant to the
provisions of 42 Pa.C.S. § 9799.24, ordered Appellant be
assessed by the Pennsylvania Sexual Offenders Assessment
Board (SOAB) to determine if Appellant met the criteria set forth
in the law for a Sexually Violent Predator. Upon receipt of the
Order from the Court, the Board designated Board member
Melanie Cerone, Ph.D., a licensed psychologist, to make the
assessment of Appellant to determine whether he is a Sexually
Violent Predator.
Dr. Cerone completed a written report and her findings
were submitted to the Court. In her report, she outlined the
facts she considered relevant to each factor, as more fully set
forth in her written report. After review of the Board’s report, a
Hearing was held on January 19, 2016, to assist the Court in
making an accurate determination as to whether Appellant
should be deemed a Sexually Violent Predator. Dr. Cerone’s
Report was admitted into evidence without objection as
Commonwealth’s Exhibit, C-1 at the SVP Hearing. (N.T. 1/19/16
p.24). This was uncontroverted evidence, as the Appellant
did not produce any witnesses at the SVP Hearing.
In preparation for her report, Dr. Cerone interviewed the
Appellant on October 2, 2015. Dr. Cerone completed a report
and submitted findings to this Court. See Commonwealth’s
Exhibit, C-1. Dr. Cerone reviewed inter alia: the S.O.A.B. (sexual
offenders assessment board) investigator’s report, court order,
defense response, investigator’s report, police criminal
complaint, affidavit of probable cause, police incident report,
victim’s medical/treatment reports, transcript of proceedings-
3/4/15, juvenile probation records, psychiatric and psychological
evaluations from August of 2013, substance abuse evaluation
from 2013, and a letter from the Appellant to the Judge.
Dr. Cerone’s report included the following:
1. The Appellant has demonstrated significant
antisocial behavior as a juvenile and adult. He has a
criminal history of multiple arrests and convictions
for a variety of criminal offenses. The Doctor noted
that the victim of both of the Appellant’s adult
assault cases was his mother. In the case of the
arrest on 6/9/12, the police report indicated
[Appellant] was found naked, on top of his mother,
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and with his hands around her neck. When
questioned about this incident, Appellant recalled
that he was getting into the shower when his mother
began bothering him to give her money. He stated
that when he refused, she broke into the bathroom
and began hitting him. He stated he did not have
time to put clothes on before restraining her in an
effort to protect himself. The totality indicates
antisocial behavior. Further, the multiple criminal
offenses go toward a mental abnormality. Appellant
meets the criteria for a DM-5 diagnosis of Antisocial
Personality Disorder.
2. Dr. Cerone concluded that the Appellant’s acts
were predatory. In the instant offense, the Appellant
sexually assaulted his 11-year-old niece while she
was sleeping. He sexually assaulted her on a second
occasion three years later. The Appellant has
repeatedly victimized this young child, and has used
his position as a trusted family member to do so, it is
indicative of predatory behavior. Dr. Cerone opined
that the Appellant has established a pattern of
predatory offending and his behavior meets the
statutory definition of predatory behavior.
3. Dr. Cerone opined that the Appellant suffers from
two mental abnormalities, deviant sexual interest
and antisocial personality disorder. The Appellant is
a 21-year old man who has engaged in a sexually
abusive course of conduct with a child under the age
of 13. The Appellant’s case involves two separate
acts of sexual abuse upon his niece, one occurring
when his niece was approximately age 11, the other
occurring at approximately age 14. Dr. Cerone
concludes that the Appellant’s sexual interest in a
child of such an age is indicative of deviant sexual
interest.
4. As to Antisocial Personality Disorder, Dr. Cerone
reported that the Appellant suffers from Antisocial
Personality Disorder as described within the DSM-5.
The Appellant has demonstrated significant antisocial
behavior as an adult. Dr. Cerone reviewed the
Appellant’s lengthy history of arrests and
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adjudications/convictions as both a juvenile and
adult. Dr. Cerone concludes that it is indicative of
antisocial personality disorder because the Appellant
continues to engage in unlawful behavior, knowing
the risks to his freedom, and in spite of the
opportunities he has had to engage in rehabilitative
measures. The Appellant advised Dr. Cerone that he
was diagnosed with Schizophrenia when he was 17
or 18 years of age. The Appellant self–reported
during his interview with Dr. Cerone, that he was
suspended from high school “over 80 times” and was
ultimately expelled at age 16 for beating another
male student to a “bloody pulp”. Dr. Cerone
concluded that the Appellant has a “history of
irritability and aggression”. Dr. Cerone found the
Appellant to be remorseless and completely without
understanding or empathy in regard to how his
actions have affected his victims.
5. Dr. Cerone’s report, Commonwealth’s Exhibit, C-1,
evidenced her determination that Appellant is a
Sexually Violent Predator after taking into account
such factors that are outlined in 42 Pa.C.S. §
9799.24. Dr. Cerone determined that the Appellant
met the statutory definition of a Sexually Violent
Predator. Dr. Cerone concluded: “it is this Board
Member’s professional opinion within a reasonable
degree of professional certainty that Mr. Hazzard
(Appellant) meets the criteria to be classified as a
Sexually Violent Predator under the Act.[”] (C-1
p.10).
6. After the Hearing, this Court, based on all the
evidence submitted at the Hearing, the Board’s
assessment, and this Court’s independent review,
concluded that Appellant met the criteria and shall
be classified as a Sexually Violent Predator. The
Commonwealth has proven by clear and convincing
evidence that Appellant is a Sexually Violent
Predator. 42 Pa.C.S. Section 9799.24.
7. The Commonwealth proved by clear and
convincing evidence that Appellant suffers from a
mental abnormality or personality disorder that
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makes Appellant likely to engage in predatory
sexually violent offenses. The evidence confirms
proof of a mental defect or personal disorder, which
is an indication of Appellant’s further dangerousness.
8. The credible testimony confirmed the following:
a. Records indicate that the Appellant’s instant
offense involved one female child victim.
b. The Appellant did not exceed the means
necessary to achieve the offense.
c. In the first offense, the victim awoke to the
Appellant having a vaginal intercourse with
her. On the second occasion, the Appellant
performed cunnilingus on the victim after
offering her alcohol and a cigar.
d. The Appellant is the victim’s paternal uncle.
e. The Appellant is a 21-year old man who has
engaged in a sexually abusive course of
conduct with a child under the age of 13. The
victim of the instant offense was 11 years of
age at the time of the first offense and 14
years of age at the time of the second offense.
Having prepubescent victims is consistent with
deviant sexual interest for sexual offenders.
This is indicative of predatory behavior.
f. The Appellant has a prior criminal history as
a juvenile and adult. The Appellant’s criminal
history is reflective of his antisocial nature.
g. Records indicate that the Appellant has a
history of substance and alcohol abuse.
h. Dr. Cerone reported that the Appellant
meets DSM-5 diagnostic criteria for antisocial
personality disorder. The Appellant has
demonstrated no remorse for his behavior. He
has projected blame onto his victim and
demonstrated a lack of empathy towards her.
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i. The Appellant has a history of depression
and substance abuse.
j. It is Dr. Cerone’s clinical opinion that the
Appellant has followed both sexually deviant
and antisocial pathways to sexual offending.
k. It is Dr. Cerone’s professional opinion within
a reasonable degree of professional certainty
that the Appellant suffers from a Mental
Abnormality or Personality Disorder as defined
in the Act.
l. In addition, it is Dr. Cerone’s opinion, to a
reasonable degree of professional certainty,
that the Appellant currently meets the criteria
set forth in the law for Sexually Violent
Predator.
9. Although the Appellant did not meet every one of
the factors, Dr. Cerone opined:
[t]he Act requires the Board to consider 14
factors during the course of the assessment...
the factors are not to be used for risk
assessment, the factors cannot be balanced
against each other, and SVP status may be
based upon the presence of factors, while the
absence of factors is not conclusive.
Dr. Cerone’s Report, C-1, p.7.
10. The Court found Dr. Cerone’s Report to be
credible. Dr. Cerone’s conclusion was clear, direct,
weighty and convincing and demonstrated that
Appellant suffers from a mental abnormality and
mental disorder or personality disorder that makes
him likely to engage in predatory sexual violent
offenses.
11. After the Hearing, the Court, based on all the
evidence submitted at the Hearing, the Board’s
assessment, and the Court’s independent review,
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concluded that Appellant met the criteria and shall
be classified as a Sexually Violent Predator. The
Commonwealth established by clear and convincing
evidence that Appellant is a Sexually Violent
Predator, 42 Pa.C.S. §9799.24.
Trial Court Opinion, 8/19/16, at 1-6 (emphasis in original). Both Appellant
and the trial court have complied with Pa.R.A.P. 1925.
Appellant presents the following issue for our review:
Whether the evidence is insufficient to sustain the sexually
violent predator designation since the Commonwealth failed to
prove, by clear and convincing evidence, that Appellant acted
due to a mental abnormality or personality disorder that makes
him likely to reoffend or engage in predatory sexually violent
offenses?
Appellant’s Brief at 11 (italics removed).
In his sole issue, Appellant challenges his classification as an SVP.
Appellant’s Brief at 17-22. Appellant alleges that there was evidence that
supported a determination that he did not meet the SVP criteria because it
was not established that he suffers from a mental abnormality or personality
disorder. Id. at 18-20. In addition, Appellant contends that the
Commonwealth failed to establish that there is a likelihood that he would
reoffend. Id. at 20-22. Appellant concludes the trial court erred in ruling
the Commonwealth demonstrated by clear and convincing evidence that he
is an SVP. Id. at 22.
An SVP is defined as:
an individual convicted of [a sexually violent offense as set forth
in 42 Pa.C.S. section 9799.14 (relating to sexual offenses and
tier system) and who], is determined to be a sexually violent
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predator under [42 Pa.C.S.] section 9799.24 (relating to
assessments) due to a mental abnormality or personality
disorder that makes a person likely to engage in predatory
sexually violent offenses.
42 Pa.C.S. § 9799.12. A “mental abnormality” is “[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.” Id. “Predatory” conduct is “an act
directed at a stranger or at a person with whom a relationship has been
instituted, established, maintained, or promoted, in whole or in part, in order
to facilitate or support victimization.” Id. 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).
However, the risk of reoffending is but one factor to be considered when
making an assessment; it is not an “independent element.”
Commonwealth v. Morgan, 16 A.3d 1165, 1170–1172 (Pa. Super. 2011)
(citations omitted).
When the defendant is convicted of an offense listed in 42 Pa.C.S. §
9799.14, the trial court orders the Sexual Offender Assessment Board to
evaluate whether to recommend classifying the defendant as an SVP.
Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015).
The evaluator whom the Board selects to perform the assessment must
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weigh the following fifteen 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; the
defendant’s relationship with the victim; the victim’s age; whether the
instant offense included a display of unusual cruelty by the defendant during
the commission of the offense; the victim’s mental capacity; the defendant’s
prior criminal record; whether the defendant completed any prior sentences;
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) (setting forth assessment
factors). It is not necessary for all factors, or any particular number of
them, to be present to support an SVP designation. Commonwealth v.
Feucht, 955 A.2d 377, 381 (Pa. Super. 2008).
The Board must submit its written assessment to the district attorney,
42 Pa.C.S. § 9799.24(c), who then files a praecipe to schedule an SVP
hearing. 42 Pa.C.S. § 9799.24(e)(1). The Commonwealth has the burden
at the hearing of proving by clear and convincing evidence that the
defendant is an SVP. 42 Pa.C.S. § 9799.24(e)(3). The Commonwealth
meets its burden by submitting evidence that is “so clear, direct, weighty,
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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.”
Commonwealth v. Meals, 912 A.2d 213, 219 (Pa. 2006).
Our standard and scope of review is well-settled:
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.
Hollingshead, 111 A.3d at 189.
In addressing Appellant’s issue, the trial court opined as follows:
The issue raised by the Appellant for review presents a
challenge to this Court’s order finding him a Sexually Violent
Predator. On January 19, 2016, a Hearing was held stemming
from a praecipe filed by the Assistant District Attorney for the
Commonwealth, which was based upon the evaluation of Dr.
Melanie Cerone, Ph.D., member of the Pennsylvania Sexual
Offenders Assessment Board. The Court issued an order based
upon the Sexual Offenders Assessment Board’s determination
and the Hearing in which Dr. Cerone’s report was admitted
without objection as Commonwealth’s Exhibit, C-1. (N.T.
1/19/16 p.24). The Court determined that Appellant had met
the criteria established in 42 Pa.C.S.§ 9799.24. The
Commonwealth established by clear and convincing evidence
that the Appellant suffers from a mental abnormality/personality
disorder that makes him likely to engage in predatory sexual
offenses.
Dr. Cerone recorded that Appellant met the statutory
definition of an SVP, because: (1) he has been convicted of a
sexually violent offense, as set forth in SORNA Section 42
Pa.C.S. § 9799.14(b); and (2) he suffers from a personality
disorder, namely Anti-Social Personality Disorder, that makes
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him likely to engage in predatory sexually violent offenses within
the meaning of SORNA, 42 Pa.C.S. § 9799.12. (C-1 p.10).
As to the first prong, Appellant has been convicted of a
sexually violent offense. Sexual assaults on children are, by
definition, “sexually violent.” The term sexually violent predator
is a legal term which basically subsumes the idea that a sexual
violation is always violent. Commonwealth v. Prendes, 2014 Pa.
Super. 151, 97 A.3d 337, 348, appeal denied, 105 A.3d 736 (Pa,
2014).
As to the second prong, Dr. Cerone concluded that
Appellant suffers from Anti-Social Personality Disorder. She
opined that there are four criteria for Mental
Abnormality/Personality Disorder and applied them to the case
sub judice:
(1) The individual has a congenital or acquired “condition”
which is the impetus to the sexual offending;
She found that the Appellant suffers from Anti-Social
Personality Disorder, which is the impetus to the sexual
offending. This is considered to be a congenital or
acquired condition.
(2) The individual suffers from a lifetime “condition”;
Personality disorders are chronic, lifetime conditions.
(3) The “condition” over-rode the individual’s
emotional/volitional control;
Dr. Cerone determined that Appellant has a history of
criminal offending. Despite his past experiences of being
arrested, sanctioned and treated, his criminal behavior has
persisted over time. This is sufficient evidence of a
condition that over-rode his emotional/volitional control.
(4) Likelihood of re-offending.
There are two pathways to lifetime sexual offending-
chronic antisociality and sexual deviancy. She opined that
Appellant's behavior is consistent with an antisocial
pathway. This has been shown to be a significant
predictor of sexual offense recidivism.
(C-1 p.10). It is Dr. Cerone’s professional opinion within a
reasonable degree of professional certainty that Appellant suffers
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from a Mental Abnormality or Personality Disorder as defined in
the Act.
In the instant offense, Appellant first sexually assaulted his
11-year-old niece while she was sleeping. He sexually assaulted
the victim on a second occasion three years later. Dr. Cerone
found that Appellant has established a predatory pattern of
offending and his behavior meets the statutory definition of
predatory behavior.
It was Dr. Cerone’s opinion, to a reasonable degree of
professional certainty, that the Appellant currently meets the
criteria set forth in the law to be classified as a Sexually Violent
Predator.
Therefore, the Court found that the Appellant was a
Sexually Violent Predator under 42 Pa.C.S. §9799.24(e)(4). On
April 28, 2016, the court filed an Order and Findings determining
that Appellant was determined to be a Sexually Violent Predator
under 42 Pa.C.S. Section 9799.24. . . .
Trial Court Opinion, 8/19/16, at 7-9.
Our review of the record reflects that at Appellant’s SVP hearing the
Commonwealth presented the ten-page expert report of Dr. Melanie Cerone,
who opined that Appellant is an SVP based upon various section 9799.24
factors. N.T., 1/19/16, at 5-7, 24. We have carefully reviewed the
evidence, including the transcript from the SVP hearing, Dr. Cerone’s report,
the trial court’s SVP order, and the thorough opinion drafted by the trial
court. We agree with the trial court that the Commonwealth provided clear
and convincing evidence that Appellant is an SVP. Therefore, Appellant’s
claim to the contrary fails.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/24/2017
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