Com. v. Havle, 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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ROBERT JAMES HAVLE, III
Appellant No. 581 WDA 2016
Appeal from the Judgment of Sentence dated March 24, 2016
In the Court of Common Pleas of Bedford County
Criminal Division at No(s): CP-05-CR-0000066-2015
BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*
MEMORANDUM BY SOLANO, J.: FILED MAY 22, 2017
Robert James Havle, III, Appellant, appeals from the portion of his
judgment of sentence in which the trial court classified him as a sexually
violent predator (“SVP”) under the Sex Offender Registration and Notification
Act (“SORNA”), 42 Pa.C.S. §§ 9799.10 to 9799.41. We affirm.
When Appellant was 32 years old, he engaged in a sexual relationship
with the victim in this case, who had just turned 13 or 14 years old at the
time,1 and who is Appellant’s cousin. Appellant initiated and cultivated the
relationship, which lasted for approximately two years. Appellant pressured
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*
Retired Senior Judge assigned to the Superior Court.
1
The confusion about the victim’s age stems from a discrepancy in what she
told the police regarding her date of birth, the date of her first sexual
encounter with Appellant, and the age she was on that date. See N.T.,
3/24/16, at 59-69. The victim was either 12 or 13 years old during her first
sexual encounter with Appellant, and had just turned either 13 or 14 years
old when they first had intercourse.
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the victim into performing various sexual acts, and told the victim not to tell
anyone about the “relationship” because it would “break up the family,”
result in criminal charges against Appellant, and cause Appellant to commit
suicide. See Defendant’s Ex. 1 (Criminal Complaint); Commonwealth’s Ex. 2
(Report of Herbert E. Hays).
On July 9, 2015, Appellant, who was then 38 years old, pleaded guilty
to five counts of statutory assault and five counts of aggravated indecent
assault on a person less than 16 year of age.2 Pursuant to a plea agreement,
Appellant was sentenced to four to eight years’ incarceration, to be followed
by ten years’ probation.
Because the offenses of which Appellant was convicted are classified
as “sexually violent offenses” under SORNA, see 42 Pa.C.S. §§ 9799.12,
9799.14, the court was required to hold a hearing to determine whether he
is an SVP. Id. § 9799.24(e). Therefore, on March 24, 2016, immediately
prior to Appellant’s sentencing proceeding, the trial court held a separate
hearing to determine whether Appellant had that status.3
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2
18 Pa.C.S. §§ 3122.1 and 3125(a)(8), respectively.
3
Under SORNA, the defendant’s status initially is assessed by the State
Sexual Offenders Assessment Board. 42 Pa. C.S. § 9799.24(a). After that
Board prepares a report and presents it to the Commonwealth, the court
holds a hearing at which the Commonwealth must prove by clear and
convincing evidence that the SVP designation is appropriate. See
Commonwealth v. Feucht, 955 A.2d 377, 380 (Pa. Super. 2008)
(description of process under earlier version of statute that still applies
under current version).
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SORNA provides that a person may be designated an SVP because of
“a mental abnormality or personality disorder that makes the individual
likely to engage in predatory sexually violent offenses.” 42 Pa.C.S. §
9799.12. A “mental abnormality” is defined 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.” Id. “Predatory” is defined as “[a]n act
directed at a stranger or at a person with whom a relationship has been
initiated, established, maintained or promoted, in whole or in part, in order
to facilitate or support victimization.” Id. The court received expert evidence
from each party on whether Appellant should be classified as an SVP, and it
received reports by each expert into evidence.4
To support a finding that Appellant is an SVP, the Commonwealth
presented the testimony of Herbert Edwin Hays, a member of the State
Sexual Offenders Assessment Board (“the Board”), who was admitted as an
“expert in the treatment, management, and the assessment of sexual
offenders.” N.T. at 10. Mr. Hays opined that Appellant has hebephilia, a
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4
Neither party objected to the classification of the other party’s witness as
an expert. Appellant objected to the entry of the Commonwealth expert’s
report into evidence on the ground that it was hearsay and cumulative. That
objection was overruled. See N.T. at 30-31.
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sexual attraction to underage postpubescent individuals. Id. at 20-21, 24.5
Mr. Hays explained that Appellant groomed and coerced the victim before
engaging in a sexual relationship for several years, which the expert
considered to be predatory behavior covering a significant time period. Id.
at 12-15, 28.6 Mr. Hays stated that hebephilia is a lifetime condition; that
statements by the victim indicated that Appellant’s condition overrode his
control; and that because Appellant’s mental abnormality drove his sexual
misconduct, it would be likely for Appellant to reoffend. Id. at 25-27.7
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5
The expert stated that while he opined that Appellant is a hebephiliac for
purposes of the SVP statute, he was not rendering a “psychiatric or
psychological . . . diagnosis.” N.T. at 24, 27-28.
6
Regarding the predatory nature of Appellant’s abnormality, the expert
opined:
When [Appellant] entered a shower with the victim and then
gave her a sensual massage and also kissed her at the time he
initiated a relationship with the victim in whole or in part in order
to facilitate victimization. When he told her not to tell anyone
about their sexual relationship and if she did tell he would go to
jail and the family would “fall apart” he established, maintained
and promoted the sexual relationship with the victim in order to
facilitate continued victimization. There is sufficient evidence for
predatory behavior.
Commonwealth’s Ex. 2 at 7; see also N.T. at 28.
7
The report stated, “Considering the length of time and the persistence of
the sexual acts in the Instant Offense there is sufficient evidence that future
sexual offending is likely if given unsupervised access to young naïve
impressionable teenage girls.” Commonwealth’s Ex. 2 at 6.
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Appellant presented Dr. Timothy P. Foley, who was admitted as an
expert in the same field as that of as Mr. Hays. N.T. at 70. Dr. Foley opined
that Appellant did not meet the criteria for having a mental abnormality. Id.
at 72. He stated that hebephilia is not an accepted medical diagnosis
according to the Fifth Edition of the DIAGNOSTIC AND STATISTICAL MANUAL OF
MENTAL DISORDERS (“DSM-5”), 8 id. at 74-75, 81-82, and that Appellant’s
sexual interest in a post-pubescent girl is “just fine,” id. at 79. Regarding
the likelihood that Appellant would reoffend, Dr. Foley used an actuarial tool
called the “Static-99R,”9 and found that Appellant “has a very low risk for
future sexual misconduct.” Id. at 77. The expert reasoned that because
Appellant has had sexual relationships with persons older than 18, there is
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8
We have described the DSM as a “categorical classification system that
divides mental disorders into types based on criteria sets with defining
features” and have cited experts’ opinions that the DSM is “an authoritative
compilation of information about mental disorders and represents the best
consensus of the psychiatric profession on how to diagnose mental
disorders.” See Commonwealth v. Hollingshead, 111 A.3d 186, 186 n.4
(Pa. Super.) (citation omitted, brackets in original), appeal denied, 125
A.3d 1199 (Pa. 2015).
9
This is a classification system used to predict future recidivism. Dr. Foley
defined the Static-99R as —
a statistical method based on the records of about 30,000 sex
offenders after release to the community. The items – there are
ten [–] are generated statistically. It adheres to no theory. It’s
just measuring behavior. It allows you . . . to class[ify] the
person, put the person into a group of individuals with known
behavior five to ten years after release [in]to the community.
N.T. at 77.
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no evidence that it was “preferred or obligatory that he have sexual contact
with a minor.” Id. at 79.
At the conclusion of the hearing, the trial court ordered that Appellant
be classified as an SVP and imposed sentence. In its Pa.R.A.P. 1925(a)
opinion, the trial court explained
The Commonwealth’s witness, Herbert Hays, testified that,
based upon Defendant’s mental abnormality and the
circumstances of the case, it was his opinion that Defendant was
likely to engage in future predatory offenses. We found Mr. Hays
to be a credible witness and accepted his testimony. Upon an
examination of Defendant’s mental abnormality, the length of
Defendant’s predatory sexual behavior that occurred repeatedly
over a number of years, the nature of Defendant’s relationship
with the victim, and Defendant’s age at the time of expected
parole, we concurred with Mr. Hay[s’] opinion.
Trial Ct. Op., 7/27/16, at 3.
Appellant filed no post-sentence motion, but he filed a timely appeal
on April 22, 2016. Appellant raises the following issues:
1. The Sentencing Court erred in determining that the
Defendant, Richard Havle, III, was a Sexually Violent Predator
by failing to take into account 42 Pa.C.S.A. § 9799.12, 42
Pa.C.S.A. § 9799.24(a)(b).
2. The Sentencing Court erred in determining by clear and
convincing evidence that the Defendant meets the criteria of a
Sexually Violent Predator.
Appellant’s Brief at 3.10
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10
Appellant does not separate his brief into two sections (one in support of
each issue), in contravention of Pa.R.A.P. 2119(a). His failure to do so has
no effect on our analysis, as the issues he presents overlap. We nevertheless
remind counsel that they are required to comply with our rules of procedure
(Footnote Continued Next Page)
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Both of Appellant’s issues pose a challenge to the sufficiency of the
evidence supporting the trial court’s SVP determination. 11 Our standard of
review 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.)
(brackets in original), appeal denied, 125 A.3d 1199 (Pa. 2015).
In challenging the trial court’s ruling, Appellant does not contest the
conclusion by the Commonwealth’s expert, Mr. Hays, that Appellant is a
hebephiliac and that this condition evidences a mental abnormality or
disorder. See Appellant’s Brief at 6 (citing Hollingshead, 111 A.3d at 194).
Rather, Appellant argues that the court should have separately found that
Appellant is likely to engage in future predatory sexually violent offenses,
and that the evidence presented on that issue was insufficient to permit such
_______________________
(Footnote Continued)
and that an appeal is subject to dismissal if there is substantial
noncompliance. Pa.R.A.P. 2101.
11
Appellant’s brief also casts his argument as a challenge to the weight of
the evidence. That aspect of his argument has been waived by Appellant’s
failure to raise that claim before the trial court. See Pa.R.A.P. 302(a);
Pa.R.Crim.P. 607; Commonwealth v. Schrader, 141 A.3d 558, 566 (Pa.
Super. 2016) (holding challenge to the weight of the evidence regarding an
SVP determination must be presented to the trial court in the first instance).
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a finding. Id. According to Appellant, a hebephiliac condition in itself
provides an insufficient basis upon which to conclude that a person is likely
to engage in future predatory sexually violent behavior, particularly since
hebephilia “is not recognized as a disorder in the DSM-5.” Id. Appellant
contends that the Commonwealth was required to present additional
evidence of a future predatory likelihood, and he points to his own expert’s
assessment of that question using the Static-99R tool, which led the expert
to conclude that the possibility of such future conduct by Appellant is low.
Id. at 6, 9. Appellant also criticizes the failure by Mr. Hays to evaluate the
“Tanner Stages” of the victim when assessing Appellant’s condition. Id. at
6.12
A defendant does not need to be medically diagnosed with a
psychological or psychiatric disorder to be classified as an SVP. A finding of a
“mental abnormality” in accordance with the statutory definition is sufficient.
See Commonwealth v. Dengler, 890 A.2d 372, 383 (Pa. 2005) (“[t]he
statute does not require proof of a standard of diagnosis that is commonly
found and/or accepted in a mental health diagnostic paradigm”).
Furthermore, arguments that an expert’s testimony is unfounded or
erroneous affect the weight, not sufficiency, of the evidence. See
Commonwealth v. Fuentes, 991 A.2d 935, 944 (Pa. Super.), appeal
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12
The Commonwealth’s expert explained that the “Tanner Stages” describe
the extent to which a pubescent body is developing. N.T. at 47-48. The
expert stated that this could be a tool used to diagnose hebephilia.
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denied, 12 A.3d 370 (Pa. 2010); see also Commonwealth v. Feucht, 955
A.2d 377, 382 (Pa. Super.) (citations omitted), appeal denied, 963 A.2d
467 (Pa. 2008) (“while a defendant is surely entitled to challenge [a report
or opinion by a member of the Board] by contesting its credibility or
reliability before the SVP court, such efforts affect the weight, not the
sufficiency of the Commonwealth’s case”).13 Thus, when “the expert’s report
and testimony support the trial court’s finding that [an appellant] was an
SVP, there is no basis for granting sufficiency relief.” Fuentes, 991 A.2d at
944 (quoting Commonwealth v. Meals, 912 A.2d 213, 223 (Pa. 2006));
see also Hollingshead, 111 A.3d at 194 (holding it would not disturb trial
court’s decision to credit Commonwealth’s expert witness over defense
expert witness on a challenge to the sufficiency of an SVP determination
based on a hebephilia diagnosis).
Moreover, while the court must examine “the offender's propensity to
re-offend, an opinion about which the Commonwealth's expert is required to
opine . . . , the risk of re-offending is but one factor to be considered when
making an assessment; it is not an ‘independent element.’”
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13
Although Dengler, Feuntes, and Feucht predate the current statutes
governing assessment of a sexually violent predator, the current statutes do
not materially differ from the previous statutes governing this determination.
Accordingly, we may rely on caselaw predating the current statutes to the
extent the versions are not inconsistent. Cf. Commonwealth v. Aikens,
990 A.2d 1181, 1185 n.2 (Pa. Super.) (noting that this Court may rely on
caselaw predating the enactment of the Pennsylvania Rules of Evidence to
the extent the caselaw is consistent), appeal denied, 4 A.3d 157 (Pa.
2010).
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Commonwealth v. Stephens, 74 A.3d 1034, 1038–39 (Pa. Super. 2013);
accord Hollingshead, 111 A.3d at 190 (citation omitted). It is improper for
a court to base its decision solely upon an expert’s projection of recidivism.
See id. (defense expert’s focus on risk of recidivism of hebephiliac was
misplaced).
Therefore, Appellant’s arguments that Mr. Hays’ testimony was
unfounded or erroneous challenge the weight, not the sufficiency, of the
evidence. Fuentes, 991 A.2d 944. 14 Indeed, regarding the absence of
hebephilia from the DSM-5, we have previously held that “the debate
surrounding hebephilia diagnoses, and their use in SVP proceedings, goes to
the weight of the expert witness’ testimony,” not its sufficiency
Hollingshead, 111 A.3d at 193. By the same token, because Appellant has
cited no law making an examination of a victim’s “Tanner Stages” a required
element of an SVP analysis, Appellant’s argument regarding the absence of
such evidence also does not go to sufficiency. Appellant’s own expert
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14
We note the difference between challenges to the weight of the expert
evidence regarding hebephilia, and an argument that the evidence regarding
hebephilia is inadmissible or subject to a Frye hearing. See Dengler, 890
A.2d at 377-83 (citing Frye v. United States, 293 F. 1013 (D.C. Cir. 1923),
which held that, in order to be admissible, the expert’s testimony must be
based on evidence sufficiently established and accepted in the relevant
scientific community); Hollingshead, 111 A.3d at 193 n.6. While Appellant
did object at the hearing to the admission of Mr. Hays’ testimony regarding
hebephilia, claiming that it is not recognized in the field, see N.T. at 19-21,
Appellant did not ask the court to conduct a Frye hearing and does not
specifically raise an admissibility issue on appeal.
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witness, Dr. Foley, conceded that a Static-99R test also is not required or
necessary to make an SVP determination, see N.T. at 88 — a concession
that clearly is correct in light of the fact that a risk of recidivism is only one
of many factors to be considered by a court in making such a determination.
Hollingshead, 111 A.3d at 194.
Finally, Appellant claims that Mr. Hays’ testimony was insufficient
because he failed to examine the fourteen factors listed in Section 9799.24
of SORNA. Appellant’s Brief at 6, 8. Mr. Hays is a member of the SORNA
Board that makes an initial assessment of a defendant’s SVP status prior to
the determination by the court, and Section 9799.24(b) lists the following
factors that a Board member is to consider when making that assessment:
(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.
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(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. § 9799.24(b). Appellant argues that a proper evaluation of the
fourteen factors would lead to a conclusion that he is not an SVP. He notes
that there was a single victim who was 13-15 years old and had no mental
disabilities, there was a family relationship between the parties, there was
no use of physical force by Appellant, and Appellant had no prior offenses.
Id. at 9.15
In Feucht, we stated the following with regard to the fourteen factors:
. . . [T]here 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 checklist with
each one weighing in some necessary fashion for or against SVP
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15
Appellant characterizes his crime as having fallen in love and having had a
non-violent sexual relationship with a post-pubescent girl. Appellant claims
that he made the complaining witness “feel special” and that “postpubescent
. . . sexual interest in several cultures wouldn’t even be considered
predatorial.” Appellant’s Brief at 6, 9.
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designation. Rather, the presence or absence of one or more
factors might simply suggest the presence or absence of one or
more particular types of mental abnormalities.
Thus, while the Board is to examine all the factors listed
. . ., the Commonwealth does not have to show that any certain
factor is present or absent in a particular case. 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.
Feucht, 955 A.2d at 381 (citations omitted). While the presence of certain
factors indicate a mental abnormality, the absence of factors is not
conclusive of the absence of a mental abnormality. Id. In any event, the
record shows that Mr. Hays did examine the fourteen factors before arriving
at his opinion, upon which the court relied, that Appellant should be
designated an SVP. See N.T. at 13-57; Commonwealth’s Ex. 2 at 4-6.
Appellant’s argument based on Section 9799.24(b) therefore is without
merit.
We hold that there was clear and convincing evidence to establish
Appellant’s SVP determination by the trial court, and Appellant’s arguments
to the contrary regarding the sufficiency of the evidence are unavailing.
Feucht, 955 A.2d at 382.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/22/2017
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