Com. v. Nigro, M. ( 2022 )

J-S05017-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellee
v.
MARK ANTHONY NIGRO
Appellant No. 954 MDA 2021
Appeal from the Judgment of Sentence Entered June 28, 2021
In the Court of Common Pleas of Dauphin County
Criminal Division at No.: CP-22-CR-0001503-2019
BEFORE: PANELLA, P.J., STABILE, J., and DUBOW, J.
MEMORANDUM BY STABILE, J.: FILED APRIL 14, 2022
Appellant Mark Anthony Nigro appeals from the June 28, 2021 judgment
of sentence entered in the Court of Common Pleas of Dauphin County (“trial
court”). On appeal, Appellant challenges only his designation as a sexually
violent predator (“SVP”). Upon review, we affirm.
The facts and procedural history of this case are undisputed. Briefly,
following accusations that he sexually assaulted a four-year-old girl,
Appellant, in February 2021, was charged with aggravated indecent assault of
child, unlawful contact with minor – sexual offenses, indecent assault on
person less than 13 years of age, and corruption of minors.1 On December
21, 2020, Appellant entered a negotiated guilty plea. Under the terms of the
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1 18 Pa.C.S.A. §§ 3125(b), 6318(a)(1), 3126(a)(7), and 6301(a)(1)(ii),
respectively.
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plea agreement, the Commonwealth agreed to amend the charge of
aggravated indecent assault of child to unlawful contact with minor – open
lewdness.2 N.T., Guilty Plea, 12/21/20, at 2. Appellant pleaded guilty to all
charges and agreed to, inter alia, an aggregate sentence of 14 to 28 years’
imprisonment. Id. The trial court deferred sentencing to March 15, 2021 and
directed that an assessment be completed by the Pennsylvania Sexual
Offenders Assessment Board (“SOAB”) to determine whether Appellant be
classified as an SVP. Sentencing, subsequently, was continued twice and
rescheduled for June 28, 2021.
On April 30, 2021, the Commonwealth filed a praecipe, noticing its intent
under 42 Pa.C.S.A. § 9795.4 to classify Appellant as an SVP. The trial court
scheduled an SVP hearing for June 28, 2021, the date of sentencing. At the
hearing, only the Commonwealth presented testimony when it called to the
stand Dr. Robert Stein, a member of the SOAB. The trial court summarized
the testimony as follows:
First, Dr. Stein analyzed the facts of the current offense. He
testified that the offense involved a single victim, and the
Appellant did not exceed the means necessary to achieve the
offense. He further testified that Appellant’s contact included
penetrative sexual touching of an unrelated four (4) year old
female child, which is consistent with pedophilic interest. Dr. Stein
noted that there was no unusual cruelty.
Next, Dr. Stein analyzed any prior offenses of the Appellant.
He testified that Appellant’s prior offenses included sexual contact
with a thirteen (13) year old female in 2011. Appellant was
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2 18 Pa.C.S.A. § 6318(a)(2).
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convicted and sentenced to two and a half (2 ½) to five (5) years
at a state correctional institution. While incarcerated, Appellant
attended and completed sex offender treatment. Dr. Stein opined
that since completing treatment, Appellant would be expected to
understand the risk factors associated with future offending. In
2013, Appellant was evaluated by the Pennsylvania Board of
Probation and Parole which included a relapse prevention
interview. Appellant identified a high-risk situation in that
interview as any place where teenagers would congregate or
websites that included young women. Appellant gave himself a 5
or 6 out of 10, 10 being the highest on risk to re-offend. The 2013
report further noted that Appellant should not be permitted to
develop relationships with females that have children.
Dr. Stein also considered the characteristics of the
Appellant. He noted Appellant was substantially older than his
victim, which is also consistent with pedophilic interest.
Additionally, Appellant has a history of using illegal substances,
such as marijuana, ecstasy, cocaine, and hallucinogens.
However, Dr. Stein noted that substance abuse was not associated
with his current offense. Appellant also has a history of bipolar
disorder, but there no information that his bipolar diagnosis was
associated with his current offense.
Finally, Dr. Stein testified that having a prior sexual offense
and having an unrelated victim are both statistically associated
with risk of re-offense. He further opined that Appellant suffers
from a mental abnormality, specifically pedophilia. In 2011,
Appellant plead guilty to indecent assault, which required him to
be assessed by SOAB. At that time, Appellant was not found to
have a mental abnormality; therefore, he was not designated an
SVP. However, due to the current molestation of a four (4) year
old female, Dr. Stein opined that Appellant now suffers from a
mental abnormality.
Pedophilia is a recognized mental disorder in the Diagnostic
and Statistical Manual of Mental Disorders (“DSM”) and is defined
as a period of six (6) months or more of which an individual has a
sexual interest in a young child. Dr. Stein conceded that he does
not know exactly how long the current offense went on. However,
taking into consideration his prior offense involving a thirteen (13)
year old female in the earliest stages of puberty, Dr. Stein
concluded that the statutory time period of six (6) months was
satisfied. Dr. Stein further testified that pedophilia is not curable,
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but is potentially manageable with treatment. He further opined
that the pedophilia overrode Appellant’s emotional or volitional
control because even though Appellant already received
significant consequences for his previous actions, he is still unable
to control his urges.
Trial Court Opinion, 9/20/21, at 6-8 (record citations, quotation marks and
brackets omitted). At the conclusion of the hearing, and based on Dr. Stein’s
testimony and report, the trial court determined Appellant to be an SVP and
sentenced him to 14 to 28 years’ imprisonment in accordance with the
negotiated guilty plea.3 The court additionally determined that Appellant was
entitled to a credit of 28 months for time served. Appellant did not file any
post-sentence motions, but filed this timely appeal. The trial court directed
Appellant to file a Pa.R.A.P. 1925(b) statement of errors complained of on
appeal. Appellant complied, claiming, among other things, that Dr. Stein
failed to assess the risk Appellant posed to engage in future sexual offenses.
In response, the trial court issued a Pa.R.A.P. 1925(a) opinion.
On appeal, Appellant presents a single issue for our review.
[I.] Did not the Commonwealth failed to prove [Appellant’s] status
as a “sexually violent predator” when the Commonwealth’s expert
did not undergo an independent risk assessment as to the
likelihood of reoffense and, instead, concluded in effect that all
persons who have committed hands-on sexual offenses and who
are diagnosed with pedophilic disorder, ipso facto, are “likely” to
reoffend?
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3 Appellant also was ordered to pay the cost of prosecution and a $1,000 fine.
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Appellant’s Brief at 6 (unnecessary capitalizations omitted) (emphasis in
original).4
When considering the sufficiency of evidence supporting a trial court’s
SVP designation, 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. 2015)
(citation omitted), appeal denied, 125 A.3d 1199 (Pa. 2015). On appeal
from a trial court’s classification of an offender as an SVP, this Court is to
review, not reweigh and reassess, the evidence. Commonwealth v. Meals,
912 A.2d 213, 223 (Pa. 2006). As stated, a challenge to a determination of
SVP status requires us to view the evidence in the light most favorable to the
Commonwealth. Commonwealth v. Prendes, 97 A.3d 337, 355-56 (Pa.
Super. 2014) (citation omitted)5, appeal denied, 105 A.3d 736 (Pa. 2014).
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4 A panel of this Court previously rejected this identical issue when Appellant’s
counsel raised it in an unrelated appeal. See Commonwealth v.
Carruthers, No. 1957 MDA 2015, unpublished memorandum, *2 (Pa. Super.
Filed July 8, 2016).
5Prendes was tacitly overruled on other grounds by Commonwealth v.
Hvizda, 116 A.3d 1103, 1106 (Pa. 2015).
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We may not weigh the evidence or substitute our judgment for that of the trial
court, and our scope of review is plenary. Id. Further, an expert’s opinion,
“rendered to a reasonable degree of professional certainty, is itself evidence.”
Id. (emphasis in original).
We have outlined the process for determining an SVP status under the
Sex Offender Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§
9799.10-9799.42, and explained it as follows:
After a person has been convicted of an offense listed in 42
Pa.C.S.A. § 9799.14, the trial court then orders an assessment to
be done by the SOAB to help determine if that person should be
classified as an SVP.[6] An SVP is defined as a person who has
been convicted of a sexually violent offense . . . and who has a
mental abnormality or personality disorder that makes the person
likely to engage in predatory sexually violent offenses. In order
to show that the offender suffers from a mental abnormality or
personality disorder, the evidence must show that the defendant
suffers from a congenital or acquired condition 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. Moreover, there must be a showing that
the defendant’s conduct was predatory. . . . Furthermore, in
reaching a determination, we must examine the driving force
behind the commission of these acts, as well as looking at the
offender’s propensity to reoffend, an opinion about which the
Commonwealth’s expert is required to opine. However, 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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6 After conviction for a sexually violent offense, but before sentencing, the
trial court must order the SOAB to perform an assessment to help determine
whether a defendant should be classified as an SVP. 42 Pa.C.S.A. §
9799.24(a).
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Hollingshead, 111 A.3d at 189–90 (internal brackets omitted) (emphasis
added) (citing Commonwealth v. Stephens, 74 A.3d 1034, 1038–1039 (Pa.
Super. 2013)).
Furthermore,
When performing an SVP assessment, a mental health
professional must consider the following 15 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(s); the defendant’s
relationship with the victim(s); the victim(s)’ age(s); whether the
instant offense included a display of unusual cruelty by the
defendant during the commission of the offense; the victim(s)’
mental capacity(ies); the defendant’s prior criminal record;
whether the defendant completed any prior sentence(s); 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.A. § 9799.24(b).
Hollingshead, 111 A.3d at 189-90. There is no statutory requirement that
all statutory factors or any particular number of them be present or absent in
order to support an SVP designation. Meals, 912 A.2d at 220-23. The factors
are not a checklist with each one weighing in some necessary fashion for or
against SVP designation. Id. at 222. 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. Id. at 221. Thus, while the SOAB
is to examine all of the statutory factors, the Commonwealth does not have
to show that any certain factor is present or absent in a particular case. Id.
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Rather, the question for the trial court is whether the Commonwealth’s
evidence, including the SOAB’s assessment, demonstrates that the person
convicted of a sexually violent offense has a mental abnormality or disorder
rendering that person likely to engage in predatory sexually violent offenses.
Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. Super. 2008).
Instantly, the crux of Appellant’s argument is that the evidence
presented by the Commonwealth was insufficient to sustain an SVP
designation. Specifically, Appellant argues that the definition of SVP contains
three (3) separate and distinct elements—(1) mental abnormality; (2)
predatory act; and (3) an independent assessment, using the factors set forth
above in Section 9799.24(b), that there is a likelihood of re-offense—and that
Dr. Stein did not undergo an assessment of the risk of re-offense as an
independent element of the definition. This argument lacks merit, as it is not
supported by law. As we repeatedly have made clear, “the risk of re-offending
is merely a factor to be considered in making an SVP determination, and not
an independent element.” Stephens, supra at 1039; see Commonwealth
v. Dixon, 907 A.2d 533, 537, 539 (Pa. Super. 2006) (explaining that “every
Commonwealth expert who testifies that an individual is an SVP must
examine, and render an opinion on, whether the individual is likely to re-
offend. [However], the precise manner of meeting this burden is not analyzed
in terms of a strict, three-prong test” because neither this Court nor our
Supreme Court “has set out the SVP standard in terms of three distinct
elements”), appeal denied, 920 A.2d 830 (Pa. 2007); accord
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Commonwealth v. Geiter, 929 A.2d 648, 651 (Pa. Super. 2007), appeal
denied, 940 A.2d 362 (Pa. 2007).
Instantly, Dr. Stein thoroughly considered and assessed Appellant’s risk
of re-offending. In reviewing Dr. Stein’s report and testimony, the trial court
concluded:
What is most significant to this court is the fact that Appellant
“successfully” completed sex offender treatment after being
convicted of a prior sexual offense. In 2013, Appellant self-
identified that a high-risk situation for him involved congregation
of young adolescent females and was warned not to develop
relationships with females who have children. Despite his
completion of sex offender treatment and knowing that he should
not develop relationships with females who have children,
Appellant did exactly that. He befriended a woman who had a
four (4) year old female child. Appellant periodically stayed
overnight at their house where he abused their child.
Trial Court Opinion, 9/20/21, at 8. As the foregoing demonstrates, Appellant
not only is likely to re-offend, he in fact re-offended, despite undergoing
treatment and serving time in prison. Accordingly, viewing the evidence in
the light most favorable to the Commonwealth as the verdict winner, we agree
with the trial court’s determination that the Commonwealth presented
sufficient evidence to establish that Appellant be classified as an SVP.
Judgment of sentence affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/14/2022
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