Com. v. Anderson, J. ( 2016 )

J-S57023-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSH L. ANDERSON,
Appellant No. 2006 WDA 2015
Appeal from the Judgment of Sentence November 6, 2015
In the Court of Common Pleas of Warren County
Criminal Division at No(s): CP-62-CR-0000189-2014
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSH L. ANDERSON,
Appellant No. 2007 WDA 2015
Appeal from the Judgment of Sentence September 18, 2015
In the Court of Common Pleas of Warren County
Criminal Division at No(s): CP-62-CR-0000305-2014, CP-62-CR-0000306-
2014
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA LEE ANDERSON,
Appellant No. 2008 WDA 2015
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Appeal from the Judgment of Sentence September 18, 2015
In the Court of Common Pleas of Warren County
Criminal Division at No(s): CP-62-CR-0000305-2014, CP-62-CR-0000306-
2014
BEFORE: FORD ELLIOTT, P.J.E., SHOGAN and STRASSBURGER,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED NOVEMBER 03, 2016
Appellant, Josh L. Anderson, also referred to as Joshua Lee Anderson,
appeals from the judgments of sentence imposed on November 6, 2015,
docketed at 2006 WDA 2015, and September 18, 2015, docketed at 2007
WDA 2015 and 2008 WDA 2015. This Court consolidated all of the cases sua
sponte pursuant to Pa.R.A.P. 513 on January 22, 2016. We affirm.
Procedurally unusual and confusing filing actions, both below and in
this Court, have presented challenges to this disposition. The two appellate
dockets at 2007 and 2008 WDA 2015 appear to have been created due to
the manner in which the documents were transmitted to this Court. Review
of the certified record at 2007 WDA 2015, which is an appeal of lower court
docket CP-62-CR-0000305-2014, and the record at 2008 WDA 2015, which
is an appeal of lower court docket CP-62-CR-0000306-2014, appears to
indicate that Appellant’s counsel correctly filed a single notice of appeal in
the Warren County Court of Common Pleas, captioned with both lower court
docket numbers. These two lower court dockets had been consolidated for
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
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trial by Warren County Court of Common Pleas order of December 23, 2014.
Thus, a single notice of appeal at both lower court docket numbers was
proper. See Pa.R.A.P. 341 and comment thereto. Inexplicably, however,
the Warren County Clerk of Courts apparently forwarded to this Court two
notices of appeal, as if there were two separate appeals taken, with the
original filed at CP-62-CR-0000305-2014 and a true and correct photocopy
at CP-62-CR-0000306-2014. Hence, upon receipt of the two notices of
appeal, this Court issued two appellate dockets, 2007 WDA 2015 and 2008
WDA 2015, one to each notice of appeal we received. This action occurred
before we consolidated the appeals in this matter and before the certified
records were received by this Court.
Adding to the procedural irregularity, the case at 2006 WDA 2015,
involving this Appellant but having a different victim, trial, and judgment of
sentence, was not assigned its own journal number and listed consecutively;
rather, this Court consolidated it sua sponte with 2007 and 2008 WDA 2015
in accordance with Pa.R.A.P. 513 by per curiam order on January 22, 2016.
Order, 1/22/16. Thus, we have one brief from Appellant involving both
trials. In pursuit of clarity of disposition, initially, we have separated out the
appeal at 2006 WDA 2015 regarding the issue applicable only to that case.
The other issue Appellant raises relates to his sexually-violent-predator
(“SVP”) designation in both cases; thus, it is addressed subsequently.
Therefore, we have reordered the issues set forth in Appellant’s brief.
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Facts and Procedural History in 2006 WDA 2015
In the appeal docketed at 2006 WDA 2015, the trial court summarized
the facts as follows:
Appellant met Victim, a sixteen year old minor, through
Facebook. Appellant engaged in a course of conduct designed to
create, promote, and maintain a relationship with Victim.
Appellant eventually enticed Victim to spend a weekend with
him. Appellant used a motor vehicle to transport Victim from
her home to a motel. Appellant and Victim spent the weekend
at the motel and engaged in sexual conduct.
Trial Court Opinion, 3/3/16, at 1.
Appellant was convicted by a jury on August 24, 2015, of interference
with custody of children, luring a child into a motor vehicle, and corruption
of a minor, relating to this victim. Following a hearing on November 6,
2015, the trial court determined that Appellant met the criteria of an SVP.
Also on November 6, 2015, the trial court imposed an aggregate sentence of
forty-eight to 108 months of imprisonment, delineated as follows:
• For interference with custody of children, a term of incarceration of
twenty-seven to sixty months, to be served consecutively to the
sentence Appellant was serving at Warren County Docket number 305
of 2014;
• For luring a child into a motor vehicle, a term of incarceration of
twelve to twenty-four months, to be served consecutively to the
sentence imposed for interference with custody of children;
• For corruption of a minor, a term of imprisonment of nine to twenty-
four months, to be served consecutively to the sentence imposed for
luring a child into a motor vehicle.
Sentencing Order, 11/6/15, at unnumbered 1–2. Appellant filed a motion to
reconsider his sentence on November 12, 2015, which the trial court denied
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after argument on November 25, 2015. Order, 12/1/15. Appellant filed a
timely notice of appeal, and both Appellant and the trial court complied with
Pa.R.A.P. 1925.
Issue and Discussion in 2006 WDA 2015
In his brief, Appellant raises the following issue in this case:
Under Superior Court Docket[] 2006 WDA 201[5]/under Warren
County Case Number: 189 of 2014 only[:]
B. Whether the trial court erred by failing to merge the
sentences of interference with custody of children (f2) and lure
child into motor vehicle (m1) despite the fact “(1) the crimes
arose from a single criminal act; and (2) all of the statutory
elements of one of the offenses are included within the statutory
elements of the other.”
Appellant’s Brief at 4 (full capitalization omitted).
Appellant asserts that the trial court erred in failing to merge the
sentences of interference with custody of children and luring a child into a
motor vehicle. A claim that the trial court imposed an illegal sentence by
failing to merge sentences is a question of law. Commonwealth v.
Collins, 764 A.2d 1056, 1057 n.1 (Pa. 2001). Accordingly, our standard of
review is de novo and our scope of review is plenary. Commonwealth v.
Green, 2016 PA Super 214, 2672 EDA 2014 (Pa. Super. filed September 16,
2016).
We have explained the inquiry when it is asserted that convictions
should have merged for sentencing purposes, as follows:
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Section 9765 of the Pennsylvania Sentencing Code
provides as follows regarding the merger of crimes for
sentencing purposes:
No crimes shall merge for sentencing purposes
unless the crimes arise from a single criminal act and
all of the statutory elements of one offense are
included in the statutory elements of the other
offense. Where crimes merge for sentencing
purposes, the court may sentence the defendant
only on the higher-graded offense.
42 Pa.C.S. § 9765. Accordingly, merger is appropriate only
when two distinct criteria are satisfied: (1) the crimes arise from
a single criminal act; and (2) all of the statutory elements of one
of the offenses are included within the statutory elements of the
other. Id.
Commonwealth v. Jenkins, 96 A.3d 1055, 1056 (Pa. Super. 2014)
(footnote omitted), appeal denied, 104 A.3d 3 (Pa. 2014).
The Crimes Code defines interference with custody of children as
follows:
(a) Offense defined.--A person commits an offense if he
knowingly or recklessly takes or entices any child under the age
of 18 years from the custody of its parent, guardian or other
lawful custodian, when he has no privilege to do so.
18 Pa.C.S. § 2904 (a). The Crimes Code defines luring a child into a motor
vehicle or structure as follows:
(a) Offense.--Unless the circumstances reasonably indicate that
the child is in need of assistance, a person who lures or attempts
to lure a child into a motor vehicle or structure without the
consent, express or implied, of the child’s parent or guardian
commits an offense.
* * *
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(b) Affirmative defense.--It shall be an affirmative defense to
a prosecution under this section that the person lured or
attempted to lure the child into the structure for a lawful
purpose.
(c) Definitions.--As used in this section, the following words
and phrases shall have the meanings given to them in this
subsection:
“Child.” A person under 18 years of age.
“Motor vehicle.” Every self-propelled device in, upon or by which
any person or property is or may be transported or drawn on a
public highway.
18 Pa.C.S. § 2910 (a)–(c).
The crime of luring a child into a motor vehicle pursuant to 18 Pa.C.S.
§ 2910 sets forth three requirements that the Commonwealth must
establish: (1) the individual lured a child into a motor vehicle; (2) without
the express or implied consent of the child’s parent or guardian; and (3)
under circumstances which did not reasonably indicate the child is in need of
assistance. Commonwealth v. Hart, 28 A.3d 898, 908–909 (Pa. 2011).
Furthermore, a “lure” under this section:
does not occur upon the mere offer of a ride in a motor vehicle
to a child, but, rather, involves only situations where a child is
provided a further enticement or inducement to enter the
vehicle, in addition to the offer of the ride, particularly under
such circumstances which suggest the child is being led into a
potentially harmful situation.
Id. at 910. The crime of interference with custody of children involves the
knowing or reckless taking or enticement of a child from his parent or
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guardian’s custody without privilege to do so. There is no involvement of a
motor vehicle.
Appellant asserts that the trial court should have merged the above
offenses for sentencing because “the same elements had to be proven in
both charges.” Appellant’s Brief at 21. We disagree. Appellant claims that
it is “difficult to believe that if an individual ‘lured a child into a motor
vehicle’ and was being charged for such an act that this act also did not
include the interference of someone else’s right to custody of that child.”
Appellant’s Brief at 21. While acknowledging that luring a child into a motor
vehicle required a motor vehicle as an element, Appellant’s Brief at 22,
Appellant maintains that “the legislature did not say that both charges had
to have all of the elements of the other offense. . . .” Id. Appellant also
asserts that an examination of the criminal information supports the
conclusion that the offenses arose out of a single criminal act. Id. at 22–23.
This Court recently explained that while an appellant’s crimes may
occur during the same criminal episode, it is possible to engage in distinct
acts that constitute separate crimes for which separate sentences are
proper. We advised:
In this regard, this Court’s holding in Commonwealth v.
Pettersen, 49 A.3d 903 (Pa. Super. 2012) is instructive:
When considering whether there is a single criminal
act or multiple criminal acts, the question is not
whether there was a break in the chain of criminal
activity. The issue is whether the actor commits
multiple criminal acts beyond that which is
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necessary to establish the bare elements of the
additional crime, then the actor will be guilty of
multiple crimes which do not merge for sentencing
purposes.
Id. at 912 (quotations and citations omitted).
Green, 2016 PA Super 214, at *8–9.
Upon review, we conclude that Appellant’s argument is meritless. In
doing so, we adopt as our own the well-reasoned analysis of the trial court,
as follows:
The first requirement of merger is that the crimes arise
from the same criminal act. That is not the factual situation in
the present case. 42 Pa.C.S. § 9765. Appellant lured Victim
into his motor vehicle outside of her home. Appellant then took
Victim to a motel to engage in sexual conduct for the weekend.
Appellant completed commission of the crime of Luring a Child
into a Motor Vehicle when the Victim entered Appellant’s motor
vehicle outside of Victim’s home. Appellant then continued to
commit the crime of Interference with Custody of Children for
the remainder of the weekend. The crimes were committed at
different times and for differing lengths of time.
The second requirement of merger is that all of the
statutory elements of one offense are include[d] in the statutory
elements of the other offense. Appellant’s essential argument is
that the element relating to “consent” for the crime of Luring a
Child into a Motor Vehicle and the element relating to “custody”
for the crime of Interference with Custody of Children are the
same element. Appellant failed to provide any legal support for
that contention. Conflation of the terms “consent” and “custody”
would violate the rules of statutory interpretation. Statutory
construction regarding words and phrases specifies the
following:
Words and phrases shall be construed according to
rules of grammar and according to their common
and approved usage; but technical words and
phrases and such others as have acquired a peculiar
and appropriate meaning or are defined in this part,
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shall be construed according to such peculiar and
appropriate meaning or definition.
1 Pa.C.S. § 1903(a). The terms “consent” and “custody” are
technical legal terms that have very different meanings.
Therefore, the rules of statutory interpretation require the
interpretation that the elements are distinct from one another.
Appellant failed to show that the facts and the law required
the merger of the crimes of Luring a Child into a Motor Vehicle
and Interference with Custody of Children in this case.
Trial Court Opinion in case docketed at 2006 WDA 2015, 3/3/16, at 3–4.
We also note that interfering with the custody of a child does not
involve luring and the use of a motor vehicle. Thus, the merger issue lacks
merit.
Facts and Procedural History for 2007 and 2008 WDA 2015
The factual basis for the appeals docketed at 2007 WDA 2015 and
2008 WDA 2015 involves another victim, as follows:1
1) On 7/22/14, Officers from this Department were
dispatched . . . for a report of a possible 14 year old juvenile
female having intimate contact with a known 34 year old
male, . . .[Appellant]. The complainant stated that they
witnessed the two kissing next to [Appellant’s] vehicle, which
was parked near the residence.
2) Officers arrived and spoke with the juvenile’s
mother, . . . who stated that she and the victim look alike and
it was actually her kissing [Appellant] who is her boyfriend,
not the juvenile. On 7/27/14 Officers from this Department
____________________________________________
1
Because Appellant has failed to provide the notes of testimony from trial,
and indeed, did not request their transcription, and the trial court did not
summarize the facts of the crime, we have relied upon the affidavit of
probable cause for explanation.
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were on another call . . . and witnessed [Appellant] at the
residence of the juvenile victim. The victim’s father was
confronted and he stated that [Appellant] liked his daughter
and [he] wanted him off his property and away from the
victim.
3) [Appellant] was told to leave the residence and stay away
from the juvenile victim. The victim was brought to the City
Police Department on 7/28/14 by her father and when asked
if she knew why she was brought there she stated she did.
The victim explained that she had sent [Appellant] naked
photographs of herself via cellular phone messaging and she
knew he was over the age of 18 years old.
4) On 7/30/14, your Affiant met the victim and her father at the
Offices of Warren County C & Y where the victim was
forensically interviewed. The victim revealed that she loved
[Appellant,] and he asked her to send the photos of her
naked body to [him]. The victim also admitted at this time
that they have engaged in sexual intercourse and her
mother . . . knew this and allowed it to happen.
5) On 7/31/14, your Affiant was advised that the victim in this
case was changing her story about having sexual intercourse
with [Appellant]. Your Affiant was advised this was after the
victim spoke with [her mother] and [Appellant]. The victim
was also taken from Warren by [her mother] and driven to
the Youngsville Police Department to change her story,
stating she was in love with [Appellant].
6) On 8/13/14, your Affiant met with [the victim’s mother] at
the City Police Department. [The victim’s mother] was read
the Miranda Warnings and she waived them agreeing to give
a statement at this time. [The victim’s mother] admitted that
she was involved in a sexual relationship with [Appellant]
since June of this year. [The victim’s mother] also admitted
that she and [Appellant] came up with a plan for [Appellant]
to date her juvenile daughter.
7) [The victim’s mother] admitted to your Affiant, that the first
contact with the police on July 22 2014, she lied to them
about her daughter kissing [Appellant]. [The victim’s mother]
stated that she did know that [Appellant] had sex with her
juvenile daughter and she continued to engage in sexual
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relations with [Appellant] also. [The victim’s mother] stated
that she did not have legal custody of her daughter and the
victim’s father was not advised of any of their plans.
Affidavit of Probable Cause, 9/4/14, at 1.
At Warren County Docket Number 305 of 2014, Appellant was charged
with one count each of conspiracy to interfere with custody of children,
corruption of a minor, and obstructing administration of law or other
governmental function for crimes involving the fourteen-year-old victim. At
Warren County Docket Number 306 of 2014, Appellant was charged with one
count each of statutory sexual assault, corruption of a minor, and indecent
assault for other crimes relating to this same victim. As noted supra, prior
to trial and upon the Commonwealth’s motion, the trial court consolidated
the cases at these two Warren County docket numbers on December 23,
2014.
On January 20, 2015, a jury acquitted Appellant of obstructing
administration of law or other governmental function and convicted him of
all other charges. The trial court ordered an assessment by the Sexual
Offenders Assessment Board (“SOAB”). Following a hearing on
September 18, 2015, the trial court determined that Appellant met the
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criteria of an SVP.2 Also on September 18, 2015, the trial court sentenced
Appellant as follows:
At Warren County Docket Number 305 of 2014, the case docketed in
this Court at 2007 WDA 2015:
• For conspiracy to interfere with custody of children, a term of
incarceration of twenty-four to forty-eight months;
• For corruption of a minor, a term of incarceration of twelve to twenty-
four months, to be served consecutively to the sentence imposed for
conspiracy to interfere with custody of children.
At Warren County Docket Number 306 of 2014, the case docketed in
this Court at 2008 WDA 2015:
• For statutory sexual assault, corruption of a minor, and indecent
assault, “which merge for sentencing purposes” a “sentence[] in the
Aggravated Range as follows:”
o Incarceration of seventy-two to 144 months, to be served
consecutively to the sentence imposed at Warren County Docket
Number 305 of 2014 for corruption of a minor.
This resulted in an aggregate sentence of 108 to 216 months.
Sentencing Order, 9/18/15, at unnumbered 1–3. That same day, the trial
court amended the sentence to note that Appellant was “not Boot Camp or
____________________________________________
2
This order was dated September 18, 2015, and docketed on October 9,
2015.
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RRRI[3] eligible.” Amended Sentencing Order, 9/18/15.4
Appellant filed a motion to reconsider his sentence and a motion for a
new trial on September 28, 2015, which the trial court denied on
November 23, 2015. Appellant filed a notice of appeal on December 21,
2015; both Appellant and the trial court complied with Pa.R.A.P. 1925.
Issue and Discussion
Appellant raises the following issue that is pertinent to the cases
docketed at 2006, 2007, and 2008 WDA 2015:
Under Superior Court Dockets 2006, 2007 and 2008 WDA
201[5]/Warren County Case Numbers: 189, 305 and 306 of
2014[:]
A. Whether the trial court erred in finding the Commonwealth
proved by clear and convincing evidence that [A]ppellant is a
sexually violent predator?
Appellant’s Brief at 4 (full capitalization omitted).
Appellant challenges the sufficiency of the evidence supporting his
designation as an SVP, and he does so as it relates to both victims. 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
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3
RRRI is the acronym for Recidivism Risk Reduction Incentive. 61 Pa.C.S.
§§ 4501–4512.
4
The amended sentencing order was docketed on October 8, 2015. For
purposes of clarity, while the trial in the case docketed at 2006 WDA 2015
occurred first, the SVP designation and sentencing therein were subsequent
to the matter docketed at 2007 and 2008 WDA 2015.
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fact-finder found clear and convincing evidence that
the individual is an 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. Baker, 24 A.3d 1006, 1033 (Pa. Super.
2011), aff’d, 621 Pa. 401, 78 A.3d 1044 (2013) (citation
omitted).
This Court has explained the SVP determination process 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. 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 re-offend, 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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Commonwealth v. Stephens, 74 A.3d 1034, 1038–1039 (Pa.
Super. 2013) (internal quotation marks, ellipsis, and citations
omitted).
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 re-
offending. See 42 Pa.C.S.A. § 9799.24(b).
Commonwealth v. Hollingshead, 111 A.3d 186, 189–190 (Pa. Super.
2015), appeal denied, 125 A.3d 1199 (Pa. 2015).
As noted supra, 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. Baker, 24
A.3d at 1033. While Appellant asserts that “many of the statutory factors of
42 Pa.C.S.A. § 9795.4(b) are absent,” Appellant’s Brief at 15, he does not
identify what factors are missing. Id. Further, Appellant contends that the
discussion of predatory behavior by SOAB-certified member Brenda Manno,
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who also is a licensed clinical social worker,5 lacked any testimony that
Appellant likely would re-offend, yet he fails to indicate where in the record
such discussion exists. Appellant’s Brief at 16; N.T., 11/6/15, at 3. It is not
this Court’s responsibility to comb through the record seeking the factual
underpinnings of Appellant’s claim. Commonwealth v. Mulholland, 702
A.2d 1027, 1034 n.5 (Pa. Super. 1997). Moreover, we note that “the risk of
re-offending is but one factor to be considered when making an assessment;
it is not an independent element.” Hollingshead, 111 A.3d 189–190.
In assailing Appellant’s SVP status, counsel confusingly combines the
argument relating to Ms. Manno’s findings in both cases, even though the
witness conducted two separate evaluations. Indeed, counsel quotes
Ms. Manno’s testimony defining predatory behavior, the very testimony
alleged to be absent, but wholly fails to identify the hearing, date, or place in
the record where the testimony can be found. Appellant’s Brief at 17.
Appellant fails to specify where and in what record his contentions are
relevant, instead arguing only in general terms that the evidence supporting
the SVP finding is insufficient.
We disagree that Ms. Manno failed to testify regarding predatory
behavior in general or that Appellant was likely to re-offend, specifically. At
the November 6, 2015 hearing in the appeal docketed at 2006 WDA 2015,
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5
The parties stipulated that Ms. Manno, who testified in both cases, was
testifying as an expert witness. N.T., 11/6/15, at 4; N.T., 9/18/15, at 4.
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Ms. Manno pointed out that “there’s been victimization of three victims[6]
now, all teenage female victims” reaching back to the year 2000, which
impliedly relates to Appellant’s willingness to re-offend. N.T., 11/6/15, at
20. Specifically relating to Appellant’s predatory behavior, Ms. Manno
stated:
[T]here is a lengthy criminal history, that he already has a prior
conviction for a sex offense against a minor, yet he engages in
communication and Facebook friending a minor. He progresses
that relationship to the point that he picks her up at the
residence and takes her to a motel where he engages in sexual
activity with her. Clearly that is maintenance or promotion at
least in part to move that relationship into the sexual realm with
this child.
Id. at 23–24. The trial court in 2006 WDA 2015 noted that Appellant
presented no evidence to rebut the Commonwealth’s evidence and
concluded:
Since the only evidence presented at the hearing was the
assessment that engaged in the appropriate analysis and
concluded that Appellant has a mental abnormality or disorder
making Appellant likely to engage in predatory sexually violent
offenses, then it was proper for the Court to find that the
Commonwealth met it burden.
Trial Court Opinion in 2006 WDA 2015, 3/3/16, at 3.
At the September 18, 2015 hearing in the case docketed at 2007 and
2008 WDA 2015, Ms. Manno testified as follows:
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6
The reference to a third victim involved sexual activity prior to the instant
cases. N.T., 11/6/15, at 10.
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[Appellant’s] been in criminal situations before where he’s
been convicted of crimes and served periods of incarceration and
probation. Specifically, he already [had] a history with a 16 year
old child that he was criminally charged [with] so he clearly has
knowledge that that behavior is inappropriate, yet he continues
to promote this relationship, at least in part into the sexual
realm with this girl, and that’s predatory in nature.
N.T., 9/18/15, at 21 (emphasis added). In addressing Appellant’s argument
that he was not an SVP, the trial court in the cases docketed at 2007 and
2008 WDA 2015, stated as follows:
Appellant does not argue that the Commonwealth failed to
present necessary evidence. Instead, Appellant argues that the
assessment found that certain factors were not present. That
argument is without any merit:
In order for a person to be designated an SVP, the
crime committed in the case under consideration
need not have been predatory, although it must
have been a sexually violent one. Commonwealth v.
Fletcher, 2008 PA Super 74, 947 A.2d 776,776 (Pa.
Super. 2008). Rather, what is required is that the
person’s mental abnormality makes the person likely
to engage in predatory behavior, whether or not the
offense at issue was predatory. Id. Naturally, the
facts of the instant offense are material to the SVP
assessment. See 42 Pa.C.S.A. § 9795.4(6) now
9795.24. However, there simply is no requirement
that the charge under consideration be a predatory
offense. Fletcher, 947 A.2d at 776. Also, with
regard to the various assessment factors listed
in Section 9795.4 now 9795.24, there 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.
Commonwealth v. Meals, 590 Pa.110, 912 A.2d 213,
220 -23 (2006). 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
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more particular types of mental abnormalities. See
id.at 221. Thus, while the Board is to examine all
the factors listed under Section 9795.4 now 9795.24,
the Commonwealth does not have to show that any
certain factor is present or absent in a particular
case. Meals, 912 A.2d at 221. 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. 42 Pa.C.S.A. § 9792.
Commonwealth v. Feucht, 2008 PA Super 176, ¶¶ 15-17, 955
A.2d 377, 381 (emphasis [in original]); 42 Pa.C.S. § 9795.24.
As a Tier II sexual offense, Statutory Sexual Assault is, by
statutory definition, a sexually violent offense. 42 Pa.C.S.
§ 9799.12; 42 Pa.C.S. § 9799.14(c). Appellant does not allege
that the Sexually Violent Predator Assessment failed to consider
a necessary factor, Appellant only alleges that the assessment
found that certain factors were not present, which does not
invalidate the assessment results. The [c]ourt also notes that
Appellant did not present evidence to rebut the Commonwealth’s
evidence. Since the only evidence presented at the hearing was
the assessment that engaged in the appropriate analysis and
concluded that Appellant has a mental abnormality or disorder
making Appellant likely to engage in predatory sexually violent
offenses, then it was proper for the [c]ourt to find that the
Commonwealth met its burden.
Trial Court Opinion in cases docketed at 2007 and 2008 WDA 2015, 3/4/16,
at 1–2 (emphasis in original).
Appellant also suggests the instant cases are “similar in some
respects” to Commonwealth v. Plucinski, 868 A.2d 20 (Pa. Super. 2005).7
____________________________________________
7
But see Commonwealth v. Morgan, 16 A.3d 1165, 1173 (Pa. Super.
2011), where this Court recognized that in Meals, 912 A.2d 213, our
Supreme Court effectively overruled our decision in Plucinski.
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In describing that case, Appellant wholly fails to identify in what “respects”
the case is similar. Appellant’s Brief at 16. Our independent review of
Plucinski, however, emphasizes significant differences from the instant
cases, most importantly that therein, it was the “appellant’s first sexual
offense and that [he] had no history of failed treatment.” Id., 868 A.2d at
27. In this case, Appellant continues to re-offend and has an extensive
criminal history that includes repeated sexual behavior with teenage girls.
We have reviewed Ms. Manno’s testimony at the hearing on
September 18, 2015, in the case at 2007 and 2008 WDA 2015, as well as
her testimony at the hearing on November 6, 2015, in the case at 2006
WDA 2015. Ms. Manno presented sufficient evidence of Appellant’s
predatory nature; therefore, we conclude that Appellant’s argument is
meritless.
Judgment of sentence dated November 6, 2015, affirmed.
Judgment of sentence dated September 18, 2015, affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/3/2016
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