Com. v. Dorsey, W. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
WALLY DAVID DORSEY :
:
Appellant : No. 372 WDA 2021
Appeal from the Judgment of Sentence Entered February 19, 2021
In the Court of Common Pleas of Westmoreland County Criminal Division
at No(s): CP-65-CR-0005222-2018
BEFORE: BENDER, P.J.E., BOWES, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED: DECEMBER 29, 2021
Wally David Dorsey (Dorsey) appeals the judgment of sentence of the
Court of Common Pleas of Westmoreland County (trial court) that he qualifies
as a Sexually Violent Predator (SVP) under the Sex Offender Registration and
Notification Act (SORNA), 42 Pa.C.S. §§ 9799.10-9799.41. In 2019, Dorsey
pleaded guilty to one count of indecent assault. He was sentenced to a prison
term of one to two years and designated as an SVP. Dorsey now challenges
the SVP designation on the grounds that the trial court relied on unproven
allegations of a past sexual crime and the Commonwealth did not carry its
evidentiary burden of proof. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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Following Dorsey’s guilty plea to indecent assault, the Commonwealth
requested a hearing on whether he should be designated as an SVP. An SVP
is defined in Pennsylvania law as a person who has committed a sexually
violent offense and who suffers from “a mental abnormality or personality
disorder that makes the individual likely to engage in predatory sexually
violent offenses.” 42 Pa.C.S. §9799.12 (defining "sexually violent predator”).1
The factors to be considered by the trial court when making an SVP
assessment are statutorily enumerated as follows:
(b) Assessment-Upon receipt from the court of an order for an
assessment, a member of the [Sexual Offenders Assessment
Board] as designated by the administrative officer of the [B]oard
shall conduct an assessment of the individual to determine if the
individual should be classified as a sexually violent predator . . . .
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.
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1 “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.
Geiter, 929 A.2d 648, 650 (Pa. Super. 2007).
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(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 record.
(ii) Whether the individual completed any prior
sentences.
(iii) Whether the individual participated in available
programs for sexual offenders.
(3) Characteristics of the individuals, including:
(i) Age
(ii) Illegal use of 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)(1).
“The salient inquiry to be made by the trial court is the identification of
the impetus behind the commission of the crime and the extent to which the
offender is likely to reoffend.” Commonwealth v. Morgan, 16 A.3d 1165,
1169 (Pa. Super. 2011) (quoting Fuentes v. Commonwealth, 991 A.2d 935,
943 (Pa. Super. 2010) (emphasis omitted)). “[O]ne’s risk of re-offending is
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but one factor to be considered when making an assessment; it is not an
‘independent element.’” Commonwealth v. Stephens, 74 A.3d 1034, 1038–
39 (Pa. Super. 2013) (quoting Commonwealth v. Morgan, 16 A.3d 1165,
1170-72 (Pa. Super. 2011)).
The Commonwealth has the burden of proving by clear and convincing
evidence that a defendant qualifies as an SVP. See 42 Pa.C.S.
§ 9799.24(e)(3). “We, as an appellate court, are required to view the
evidence in the light most favorable to the Commonwealth when reviewing
the sufficiency of the evidence for an SVP determination.” Commonwealth
v. Hollingshead, 111 A.3d 186, 194 (Pa. Super. 2015).
In the present case, the trial court held an evidentiary hearing on
February 19, 2021. The Commonwealth presented the testimony of one
expert witness, Carol Hughes, a psychologist who described at length Dorsey’s
criminal and psychiatric history.2 Hughes opined that Dorsey fit the definition
of an SVP based on each of the statutorily-enumerated factors for such a
classification. She testified in pertinent part as follows:
There’s sufficient information in the case file data. This individual
was 14 years of age when he came to the attention of the juvenile
system. And that first arrest, the one charge is actually indecent
assault. It’s indecent assault and terroristic threats. The data
that I had in my data packet indicated those charges were
dismissed by the Juvenile Court in December 1983. And then at
15 years of age, he comes before the Juvenile Court again and
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2 Carol Hughes is a member of the Sexual Offender Assessment Board and in
that capacity she was qualified to assess Dorsey under the statutory SVP
assessment factors.
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this time is adjudicated delinquent on theft related charges. The
data that was available to me indicates a juvenile history of five
delinquency referrals to the Juvenile Court, as well as issues
related to parole being revoked. Then in June 1987 he’s certified
as an adult. There’s history of running away from placement
facilities, histories of detention at the Westmoreland County
Detention Center, New Castle Youth Detention Center, and
placement at Glen Mills School for Boys.
As an adult, my data was documenting 23 arrests. Most of that is
related to theft-related crime so burglary, receiving stolen
property, but there are also charges of terroristic threats and
harassment, simple assault, some drug-related offenses, prowling
at night. So the history is documenting diverse criminal history.
Once again, he’s coming to the attention of law enforcement
authorities on many, many occasions. There’s an extensive
history of being on probation, extensive history of being
incarcerated, and then of course there’s the index sex offense.
In my report I outlined the diagnostic criteria for anti-social
personality disorder . . . The data that was available to me, I’m
able to document that there’s conduct disorder behavior beginning
prior to 15 years of age. I outline the criteria that the Diagnostic
and Statistical Manual indicates as symptomatic of anti-social
personality disorder, and you have to have three or more of these
factors that are identified. The case file data for me identifies
failure to conform to lawful behavior, indicated by repeatedly
performing acts that are grounds for arrest. Deceitfulness. There
is prior evaluation that I had documentation of that refers to him
as impulsive.
In terms of irritability, aggressiveness, the offenses that relate to
assault behavior are indicative of that as well as the sexual assault
behavior, reckless disregard for the safety of others, again
assault, and — well, physical assault and sexual assault behavior,
and then irresponsibility and failure to sustain consistent work.
Sentencing Hearing Transcript, 2/19/2021, at pp. 9-11.
At the conclusion of the evidentiary hearing, the trial court detailed its
finding that Dorsey was an SVP:
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I agree with the Commonwealth. I think the Commonwealth has
set forth clear and convincing evidence that [Dorsey] is an
individual who’s committed a sexually violent offense and who is
a sexually violent predator due to a mental abnormality or
personality disorder, a mental abnormality in this case that makes
the individual likely to engage in predatory sexually violent
offenses. So, with regard to the first issue, he’s committed a
sexually violent offense. On May 30th of 2019, he pled guilty to
indecent assault, and he admitted to having indecent assault with
a 19-year old by forcible compulsion so that’s clearly a sexually
violent offense.
The next issue is probably the more difficult one to prove, but Ms.
Hughes adequately demonstrated to me that he suffers from a
mental abnormality, specifically anti-social personality disorder.
She indicated that based on the records that she reviewed, which
I think were adequate for her to make the decision, he’s had
anti-social tendencies since the age of 14 in this case. He’s
failed to conform to social norms. He’s committed acts that
show deceitfulness, impulsivity, irritability,
aggressiveness, and reckless disregard for others. So, I
believe that he suffers from that mental health
abnormality.
And then the third issue is whether he’s likely to engage in
predatory sexually violent offenses. And if you look at the
incident offense, he, I guess, didn’t break into her home, but he
came into her home without permission. This was a stranger, and
he used force and the threat of force in order to violate her with
the ultimate violation, which was the penetration so just from that
basis, I think it can be determined that he’s a sexually
violent predator, but I think Ms. Hughes went further by
reviewing his criminal history, which indicated a long
history of maybe not sexually violent predatory behavior
but certainly predatory behavior. We’ve got a very long
history here of breaking into homes, burglary, robbery, and
a three-page long history as well as some personal crimes
as well. So, I think that information indicates that he is a
predator and that as she testified people that have that
mental abnormality are likely to commit again.
Id. at p. 26 (emphases added).
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On appeal, Dorsey’s central contention is that in making an SVP
determination, the trial court relied on improper evidence – the fact that
Dorsey was charged with a sexual crime when he was 14 years old. According
to Dorsey, this erroneous consideration was an abuse of discretion, rendering
the SVP determination invalid. However, it is apparent from the record that
the trial court did not rely on unproven allegations as Dorsey claims.
As shown by the quoted transcript above, the trial court referred
generally to Dorsey’s entire record when describing his long-term pattern of
criminal and anti-social conduct. The trial court found that clear and
convincing evidence established that Dorsey suffers from a mental health
abnormality, emphasizing that “he’s had anti-social tendencies since the age
of 14.” Id. The trial court did not presume that Dorsey was guilty of a sexual
offense alleged, but not proven, when Dorsey was 14 years old.
In fact, when evaluating whether Dorsey would be likely to commit
predatory sexually violent offenses in the future, the trial court noted
specifically that Dorsey had no prior history of sexually violent or predatory
behavior. The trial judge made a finding that Dorsey would be likely to engage
in such conduct based on the undisputed facts that he had just committed a
violent sexual offense, he had a long history of criminal convictions, and he
suffers from a mental abnormality.
Although it was arguably improper for the Commonwealth’s witness to
refer to an unproven juvenile allegation as evidence that Dorsey is an SVP,
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the trial court did not, as Dorsey argues, make the alleged juvenile offense a
material component of its determination that Dorsey has a propensity to
reoffend. Additionally, Dorsey’s counsel did not object to such references
during the witness’s testimony or mention the issue in the 1925(b) statement,
waiving that discreet issue for the purposes of appeal. See Commonwealth
v. Berryman, 649 A.2d 961, 973 (Pa. Super. 1994) (“[I]ssues, even those of
constitutional dimension, are waived if not raised in the trial court.”) (citation
omitted); Commonwealth v. York, 465 A.2d 1028, 1032 (Pa. Super. 1983)
(“[A] new and different theory of relief may not be successfully advanced for
the first time on appeal.”) (citation omitted).
To the extent that Dorsey is arguing more generally that the trial court
erred because the evidence as a whole was legally insufficient to support an
SVP designation, we again find that no relief is due. As previously discussed,
the Commonwealth produced the testimony of an expert witness who credibly
opined that Dorsey has a mental abnormality and extensive criminal history
that make it likely he will reoffend in the future. It was up to the trial court
to weigh the testimony and evidence before it to determine if the
Commonwealth proved by clear and convincing evidence that Dorsey is an
SVP. See Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super.
2015). On review of a sufficiency claim, this Court must “view all evidence
and the reasonable inferences therefrom in the light most favorable to the
Commonwealth.” Commonwealth v. Baker, 24 A.3d 1006, 1033 (Pa.
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Super. 2011). An SVP designation must be affirmed if the Commonwealth
presented clear and convincing evidence that satisfies each element of the
SVP statute. See id.Here, the trial court considered evidence that would tend to establish all
statutory elements for an SVP classification. This Court cannot second-guess
the evidentiary weight assigned by the trial court in making its determination
that Dorsey is an SVP. See generally Commonwealth v. Meals, 912 A.2d
213 (Pa. 2006) (appellate court may not re-weigh SVP evidence presented to
the trial court and give more weight to factors that were absent than to those
found and relied upon by the trial court). Thus, the judgment of sentence and
SVP designation must stand.
Judgment of sentence and SVP determination affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2021
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