Com. v. Kulp, J. ( 2015 )

J-S21036-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSEPH KULP, III,
Appellant No. 2707 EDA 2014
Appeal from the Judgment of Sentence July 28, 2014
in the Court of Common Pleas of Carbon County
Criminal Division at No.: CP-13-CR-0000750-2012;
CP-13-CR-0000754-2012
BEFORE: BOWES, J., JENKINS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED APRIL 21, 2015
Appellant, Joseph Kulp, III, appeals from the judgment of sentence
imposed following a jury conviction of two counts each of indecent assault
without consent and indecent assault of a person less than sixteen years of
age, defendant at least four years older.1 Specifically, he challenges his
classification as a sexually violent predator (SVP). We affirm on the basis of
the trial court opinion.
The charges in this matter arose from two separate incidents over one
year with one minor victim. In its October 27, 2014 opinion, the trial court
fully and correctly sets forth the relevant facts and procedural history of this
____________________________________________
*
Retired Senior Judge assigned to the Superior Court.
1
18 Pa.C.S.A. §§ 3126(a)(1) and (8), respectively.
J-S21036-15
case. (See Trial Court Opinion, 10/27/14, at 1-6). Therefore, we have no
need to restate them here.
Appellant raises the following issues for our review:
[1]. Whether the [t]rial [c]ourt erred by considering the
[s]exual [o]ffender[] report provided by Mary E. Muscari as this
report was provided well beyond the time limits afforded under
42 Pa.C.S.A. § 9799.24?
[2]. Whether the [t]rial [c]ourt erred in determining the
Commonwealth’s evidence was sufficient to classify [Appellant]
as a sexually violent predator?
[3]. Whether the statutory language of Sex Offender
Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §
9799.10 et. seq, as it applies to [Appellant] is unconstitutionally
vague and overbroad?
(Appellant’s Brief, at 4).
Appellant first challenges Dr. Muscari’s assessment as untimely under
section 9799.24. Therefore, he raises a question of statutory construction.
It is well-settled that “[b]ecause statutory interpretation is a question of law,
our standard of review is de novo, and our scope of review is plenary.”
Commonwealth v. Stotelmyer, 2015 WL 668038, at *3 (Pa. Feb. 17,
2015).
Appellant’s second claim raises “[q]uestions of evidentiary sufficiency[,
which] present questions of law; thus, our standard of review is de novo and
our scope of review is plenary. In conducting sufficiency review, we must
consider the evidence in the light most favorable to the Commonwealth,
-2-
J-S21036-15
which prevailed upon the issue at trial.” Commonwealth v. Meals, 912
A.2d 213, 218 (Pa. 2006) (citations and internal quotation marks omitted).
In Appellant’s third issue, he challenges the constitutionality of a
statute. Therefore, “[a]s the constitutionality of a statute is a pure question
of law, our standard of review is de novo and our scope of review is
plenary.” Commonwealth v. Omar, 981 A.2d 179, 185 (Pa. 2009)
(citation omitted).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the well-reasoned opinion of the trial court, we conclude
that there is no merit to Appellant’s first two issues and his third issue is
waived. The trial court properly disposes of all of the questions presented.
(See Trial Ct. Op., at 7-16) (finding: (1) consideration of late sexual
offender report was proper where Appellant had the SOAB report over ten
months before hearing and therefore was not prejudiced; (2)
Commonwealth presented clear and convincing evidence sufficient to classify
Appellant as SVP; and (3) Appellant’s third issue too vague for meaningful
review). We note that contrary to the trial court’s conclusion that
Appellant’s third issue is meritless, a vague claim or argument that impedes
review is waived. See Commonwealth v. Hansley, 24 A.3d 410, 4151
(Pa. Super. 2011), appeal denied, 32 A.3d 1275 (Pa. 2011). Accordingly,
we affirm on the basis of the trial court’s opinion (except for the conclusion
that Appellant’s third issue is meritless).
Judgment of sentence affirmed.
-3-
J-S21036-15
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/21/2015
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IN THE COURT OF COMMON PLEAS OF CARBON COUNTY, PENNSYLVANIA
CRIMINAL DIVISION
COMMONWEALTH OF PENNSYLVANIA
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Michael S. Greek, Esquire N
Assistant District Attorney Counsel for the Commonwea.ilth
Paul John Levy, Esquire Counsel for the Defendant
MEMORANDUM OPINION
Serfass, J. - October 27, 2014
Defendant, Joseph J. Kulp, III (hereinafter "Defendant"),
has taken this appeal from the Order of Court entered on July
28, 2014, classifying Defendant as a sexually violent predator.
We file the following Memorandum Opinion pursuant to
Pe nns y Lv an i a Rule of Appellate Procedure 1925 (a) and recommend
that the aforesaid Order of Court be affirmed for the reasons
set forth hereinafter.
FACTUAL AND PROCEDURAL HISTORY
On March 7, 2013, a jury of his peers found Defendant
guilty of two (2) counts of indecent assault without consent1 and
two (2) counts of indecent assault of a person less than sixteen
1
18 Pa. C. S . A. § 312 6 (a) ( 1) .
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years of age, defendant at least four years older.2 This Court
issued an Order on May 30, 2013, directing Defendant to be
assessed by the Sexual Offender Assessment Board (hereinafter
"SOAB"). Defendant was assessed by the SOAB on August 24, 2013,
and the subsequent report was issued on August 28, 2013. On
August 30, 2013, counsel for the Commonwealth filed a "Praecipe
to Schedule Hearing" to determine whether Defendant should be
classified as a sexually violent predator. On September 4, 2013,
this Court issued an order scheduling that hearing for October
8, 2013. Between the dates of October 7, -2013 and April 29,
2014, Defendant filed seven (7) separate motions for
continuance, all of which were unopposed by the Commonwealth and
granted by this Court. Six (6) of those continuance motions were
filed because Defendant sought to have his own sexual offender
assessment prepared for submission at the classification
hearing. Ultimately, Defendant elected not to submit a separate
assessment and the hearing to determine whether he should be
classified as a sexually violent predator was held on July 7,
2014. Following the hearing, Defendant's counsel was granted
additional time within which to submit a brief concerning the
classification of the defendant as a sexually violent predator.
Defendant's counsel submitted his brief on July 24, 2014. Upon
consideration of the hearing testimony, SOAB report and
18 Pa. C.S.A. § 3126(a) (8).
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Defendant's brief, this Court issued an Order on July 28, 2014
classifying Defendant as a sexually violent predator. Our Order
of July 28, 2014 was accompanied by a Determination of Court
which included the following Findings of Fact and Conclusions of
Law:
1. The defendant has been convicted of two -(2) counts of
indecent assault, which are sexually violent offenses as
defined in 42 Pa. C.S.A. § 9791;
2. This case involves a single minor victim. The subject
offenses against the victim, however, spanned a period of
one (1) year and included two (2) instances of indecent
assault on the victim;
3. The defendant did not exceed the force necessary to achieve
the commission of the offenses. The defendant abused his
relationship with the victim as an acquaintance and a
member of her church;
4. The defendant touched the victim's buttocks on two (2)
occasions;
5. The defendant was an acquaintance of the victim. He used
that relationship to exploit the trust of the victim and to
gain access to her. The victim was fourteen (14) years old
at the time of the offense;
6. There was no indication of sadistic behavior or unusual
cruelty in connection with these offenses;
7. There is no evidence to indicate that the victims had any
mental incapacities or physical disabilities; however, the
victim's age did make her vulnerable and incapable of
consenting to sexual activity;
8. The defendant has two (2) prior convictions for driving
under the influence and one (1) prior conviction for
indecent assault;
9. The defendant was incarcerated for his prior conviction of
indecent assault. That offense took place at the same time
period as the instant offense. There is no evidence to
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establish that the defendant has the ability to learn from
his experience or see the presence of self-defeating
behaviors;
10. The defendant has not participated in any type of treatment
to date, including sex offender treatment;
11. The defendant was thirty-eight (38) years old at the time
of his offenses. His age may be consistent with the
criteria for a personality disorder, and his age and the
age of the victim may be consistent with the criteria for
paraphilic behavior;
12. The defendant used alcohol and started smoking marijuana
during high school. Although the defendant has been
convicted of DUI on two (2) occasions, he maintained that
his alcohol use has not gotten him in trouble. There is
no evidence that he was abusing drugs or alcohol at the
time of his offenses;
13. The defendant fits the diagnostic criteria for paraphilia;
14. The defendant has a history of sexually assaulting two (2)
minor females, ages 13 and 14. One of these victims was a
stranger and the victim in this matter was an acquaintance;
15. The following facts are supportive in the Sexual Offenders
Assessment that has been filed as criteria reasonably
related to the risks of re-offending:
a. The defendant has a deviant sexual
interest in minor female .victims;
b. The defendant meets the diagnostic
criteria for paraphilia; and
c. The defendant has been convicted of a
prior act of indecent assault on a
minor female.
16. The defendant meets the diagnostic criteria for a mental
abnormality and a personality disorder; to wit, Paraphilia;
17. The defendant meets the following criteria for Paraphilia,
and in the following ways:
a. The defendant suffers from
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paraphilia. The condition may first
emerge following a crisis, but is a
lifetime disorder;
b. The defendant had ample opportunity
to· control his impulses. He saw both
victims from his car and could have
driven away to control his urges.
Defendant parked his vehicle and
approached his victims. Defendant
followed the victim of his prior
offense when she tried to avoid him.
In the instant action, Defendant
offended the victim in the presence
of another minor; and
c. Acting on these urges.
18. The defendant's offenses were motivated by his disorders or
conditions;
19. Paraphilia is a lifetime disorder;
20. Paraphilia over-rode the defendant's emotional and
volitional control, and he was not able to manage his
offending;
21. The defendant has a sexually deviant pathway to offending.
He has committed sexual offenses. Sexual deviance with a
history of sexual offending increases the likelihood of re-
offending;
22. The defendant's offenses were predatory in nature, in that
he was an acquaintance of the victim. He promoted, and
possibly established the relationship in order to support
victimization;
23. The Court finds as credible the report of Mary E. Muscari,
who completed the Sexual Offenders Assessment on behalf of
the Sexual Offenders Assessment Board;
24. The defendant does suffer from a mental abnormality or
personality disorder that makes him likely to engage in
predatory sexually violent offenses; and
25. The defendant therefore is found to be a sexually violent
predator within the meaning of Megan's Law.
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Also on July 28, 2014, we sentenced the defendant to an
aggregate term of imprisonment in the Carbon County Correctional
Facility of not less than six (6) months nor more than twenty-
four (24) months less one (1) day followed by one (1) year of
county probation. On August 26, 2014, Defendant filed a Notice
of Appeal of our sentencing orders to the Superior Court of
Pennsylvania. Pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b), this Court issued an Order on August 26,
2014, directing Defendant to file of record and serve upon the
undersigned, a concise statement of the matters complained of on
appeal. In compliance with that Order, Defendant filed and
served his Concise Statement on September 16, 2014.
ISSUES
In his Concise Statement, Defendant raises the following
issues on appeal:
1. The Trial Court erred by considering the Sexual Offender's
report provided by Mary E. Muscari as this report was
provided well beyond the time limits afforded under 42
Pa.C.S.A. Section 9799.24 (a) and (d);
2. Trial Court erred in determining the Commonwealth's
evidence was sufficient to classify Mr. Kulp a sexually
violent predator; and
3. The statutory language of the Sexually Violent Predator
Statute as it applies to Mr. Joseph Kulp is
unconstitutionally vague and overbroad and as such is in
violation of Mr. Kulp's Pennsylvania and U.S.
Constitutional rights.
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DISCUSSION
A three-tiered classification system for sexual offenses is
set forth at 42 Pa. C.S.A. section 9799.14 while the period of
registration for individuals convicted of these offenses is set
forth at 42 Pa.C.S.A. section 9799.15(a). For those individuals
convicted of any of the criminal offenses set forth in section
9799.14(b) [Tier I offenses], a fifteen (15) year period of
registration with the Pennsylvania State Police is mandated. For
those individuals convicted of any of the criminal offenses
listed in section 9799.14(c) [Tier II offenses], a twenty-five
(25) year period of registration is mandated. And for those
individuals convicted of any offense listed in section
9799.14(d) [Tier III offenses], a lifetime registration is
mandated.
Individuals convicted of at least one sexually violent
offense are to be assessed by the SOAB. 42 Pa. C.S.A. section
9799.24(a). Indecent assault is a sexual offense requiring
assessment by the SOAB. 42 Pa. C.S.A. section 9799.14. The
assessment is to include, but not be limited to, an examination
of the following statutory factors:
1. Facts of the current offense, including:
a. Whether the offense involved multiple victims.
b. Whether the individual exceeded the means
necessary to achieve the offense.
c. The nature of the sexual contact with the
victim.
d. Relationship of the individual to the victim.
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e. Age of the victim.
f. Whether the offense included a display of
unusual cruelty by the individual during the
commission of the crime.
g. The mental capacity of the victim.
2. Prior offense history, including:
a. The individual's prior criminal record.
b. Whether the individual completed any prior
sentences.
c. Whether the individual participated in
available programs for sexual offenders.
3. Characteristics of the individual, including:
a. Age of the individual.
b. Use of illegal drugs by the individual.
c. Any mental illness, mental disability or mental
abnormality.
d. Behavioral characteristics that contribute to
the individual's conduct.
4. Factors that are supported in a sexual offender
assessment field as reasonably related to the
risk of reoffense.
Within ten (10) days of being convicted of a sexually
violent offense, a court shall issue an order for the convicted
individual to be assessed by the SOAB. 42 Pa. C.S.A. section
9799.24(a). The SOAB is given ninety (90) days from the date of
an individual's conviction to submit a written report containing
its assessment to the district attorney. 42 Pa. C.S.A. section
9799.24 (d). Upon the filing of a praecipe by the district
attorney, the court must hold a hearing to determine whether the
individual is a sexually violent predator. 42 Pa. C.S.A. section
9799.24(e) (1). At that hearing, the individual is given the
right to counsel, the right to call and cross-examine witnesses,
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and the right to be heard. 42 Pa. C.S.A. section 9799.24 (e) (2).
A "sexually violent predator" is defined as "an individual
convicted of an [enumerated offense] ... who ... is determined to be
a sexually violent predator under section 9799.24 (relating to
assessments) due to a mental abnormality or personality disorder
that makes the individual likely to engage in predatory sexually
violent offenses." 42 Pa. C.S.A. section 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. An individual who is
determined to be a sexually violent predator must register with
the Pennsylvania State Police for the life of the individual. 42
Pa. C.S.A. section 9799.lS(a) (6)
I. Trial Court's Consideration of Sexual Offender's Report
Defendant argues that this Court erred in considering
the written report of the Sexual Offender Assessment Board
prepared by Dr. Mary E. Muscari because that report was
submitted beyond the time limits provided under 42
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Pa.C.S.A. sections 9799.24(a) and (d). While it is
undisputed that this Court entered its Order requiring
Defendant to be assessed by the SOAB beyond the ten (10)
day time limit provided by section 9799.24(a)3, and that the
SOAB provided its report beyond the ninety (90) day time
limit provided by section 9799.24(d)4, neither section
includes a provision for the remedy or consequence of late
filings.
Defendant cannot demonstrate, and he does not attempt to
argue, that he has been prejudiced as a result of the timing of
this Court's Order and the SOAB's late filing.5 Prejudice
"includes any substantial diminution of defendant's ability to
present factual information in the event of trial which has been
brought about by plaintiff's delay." American Bank & Trust Co.
v. Ritter, Todd & Haayen, 418 A.2d 408, 410 (Pa. Super. 1980)
Trial courts have broad discretion in considering procedural
issues. Allison v. Merris, 493 A.2d 738, 740 (Pa. Super. 1985)
Furthermore, "[P]rocedural rules are not ends in [and of]
themselves, and . . the rigid application of our rules does
not always serve the interests of fairness and justice." Womer
3
Defendant was convicted on March 7, 2013 an~ this Court issued its Order
directing Defendant to be assessed by the SOAB on May 30, 2013.
4
The report was issued on August 28, 2013.
5
A total of nine (9) post-verdict motions for continuance were filed in this
matter, all of which were filed by Defendant. As described hereinabove,
seven (7) of Defendant's continuance motions were filed after the SOAB issued
its assessment. Clearly, prejudice resulting from a lack of timeliness was
not an issue that was contemplated by, nor a concern of, the defendant.
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v. Hilliker, 908 A.2d 269, 276 (Pa. 2006). Moreover, it has been
the policy of the Superior Court " ... to overlook ... procedural
errors when a party has substantially complied with the
I II
requirements of the rule and no prejudice would result .
Commonwealth v. Laskaris, 561 A.2d 16, 20 (Pa. Super. 1989),
quoting Feingold v. Southeastern Pennsylvania Transp. Auth., 517
A.2d 1270, 1272 (Pa. 1986).
In the instant matter, Defendant's ability to present his
case has not been adversely affected by the late filings.
Defendant had the SOAB report for a period in excess of ten (10)
months prior to the sexual offender assessment hearing. At the
hearing, Defendant's counsel cross-examined the Commonwealth's
expert and Defendant was provided the opportunity to present his
own evidence. Furthermore, Defendant's counsel was afforded the
opportunity to submit a brief in support of his positions
following the hearing. Thus, Defendant has enjoyed the full
benefit of the procedural protections afforded to him, despite
the late filings. Accordingly, Defendant has not suffered any
prejudice and, therefore, the late filings represent harmless
errors that do not affect this Court's ability to classify
Defendant as a sexually violent predator. This is particularly
so given that Defendant's sentencing proceeding and sexual
offender assessment hearing were continued a total of nine (9)
times at the request of Defendant's counsel.
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II. The Conunonwealth's Evidence was Sufficient to Classify
Defendant as a Sexually Violent Predator
Defendant's second claim challenges this Court's
determination that he should be classified as a sexually
violent predator. Defendant asserts that the Commonwealth's
evidence was not sufficient for such a classification.
After the SOAB completes the sexual offender
assessment and submits its report to the Commonwealth, the
court conducts a hearing at which the Commonwealth bears
the burden of proving by clear and convincing evidence that
the defendant should be designated as a sexually violent
predator. 42 Pa. C.S.A. section 9799.24 (e) (3). The standard
of clear and convincing evidence means that the evidence
offered in support of the sexually violent. predator
classification must be so clear, direct, weighty, and
convincing that the fact-finder may arrive at a clear
conclusion, without hesitation, that the sexually violent
classification is proper. Commonwealth v. Meals, 912 A.2d
213, 219 (Pa. 2006).
The task of the Superior Court on appeal of a trial court's
classification of a defendant as a sexually violent predator is
one of review, and not of weighing and assessing the evidence
presented at hearing. Id. at 222. Further, the appellate court
may not make credibility determinations. Commonwealth v. Geiter,
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929 A.2d 648, 650 (Pa. Super. 2007), appeal denied, 940 A.2d 362
(Pa. 2007). Rather, the appellate court shall view all the
evidence and its reasonable inferences in a light most favorable
to the Commonwealth. Commonwealth v. Moody, 843 A.2d 402, 408
(Pa. Super. 2004), appeal denied, 882 477 (Pa. 2005).
Expert reports, along with expert testimony, may constitute
the substantive evidence to establish the statutory
prerequisites for a sexually violent predator classification.
Meals, 912 A.2d at 223. There exists no statutory requirement
that all of the assessment factors set forth at 42 Pa. C.S.A.
Section 9799.24 and listed hereinabove, or any particular set of
them, must be present in order to support a sexually violent
predator classification. Meals, 912 A.2d at 220-223. Instead,
the presence or absence of one or more factors may suggest the
presence or absence of one or more particular types of mental
abnormalities. Id. ·at 221. Thus, although the SOAB must examine
all the factors listed under Section 9799.24, the Commonwealth
is not required to show that any one factor is present, or
absent, in a particular case. Id.
To establish that Defendant should be classified as a
sexually violent predator, the Commonwealth relied upon the
assessment report prepared by Dr. Muscari, a member of the
SOAB, together with Dr. Muscari's testimony at the sexually
violent predator determination hearing. The report and
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testimony offered by Dr. Muscari referred to the factors
specified in 42 Pa. C.S.A. section 9799.24 and provided her
analysis and commentary as to how she evaluated Defendant's
background information, including the facts· pertaining to
the present offenses, in light of each factor enumerated in
the Sexually Violent Predator Statue. Further, counsel for
Defendant had the report prior to the sexual offender
assessment hearing and was offered ample opportunity to
cross-examine Dr. Muscari at that hearing.
Based upon her assessment of Defendant, Dr. Muscari
determined that Defendant met the criteria for paraphilia.
Dr. Muscari concluded that Defendant engaged in predatory
behavior and that his mental abnormality made it likely
that he would re-offend. Based upon her consideration of
the factors listed in Section 9799.24; Dr. Muscari
concluded within a reasonable degree of professional
certainty that Defendant meets the criteria to be
classified as a sexually violent predator.
Viewing Dr. Muscari's report in the light most
favorable to the Commonwealth, it is apparent that there
was clear and convincing evidence presented at the hearing
to support the Court's classification of Defendant as a
sexually violent predator. Accordingly, Defendant's claim
of insufficiency is without merit.
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III. Alleged Unconstitutionality of Statutory Language
Defendant's final claim is that the statutory language
of the "Sexually Violent Predator Statute" is
unconstitutionally vague and overbroad as applied to
Defendant and is, therefore, in violation of his rights
under the Pennsylvania and United States Constitutions.
If a concise statement is too vague as to allow the
court to identify the issues raised on appeal, such
statement is the functional equivalent of no concise
statement at all. Commonwealth v. Dowling, 778 A.2d 683,
686 (Pa. Super. 2001). If a reviewing court must "guess
what issues an appellant is appealing," then the
appellant's effort "is not enough for meaningful review."
Commonwealth v. Butler, 756 A.2d 55, 57 (Pa. Super. 2000),
citing Giles v. Douglass, 747 A.2d 1236, 1237 (Pa. Super.
2 000) .
Defendant's concise statement neither identifies any
specific provision of the "Sexually Violent Predator
Statuteµ, which we understand to be a reference to the
Registration of Sexual Offender's Act, 42 Pa. C.S.A.
section 9791 et. seq., nor explains how any section of that
statute is unconstitutionally vague and overbroad as
applied to Defendant. Accordingly, this Court would be
merely guessing as to what statutory provisions the
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defendant is making reference. Therefore, given the
vagueness of Defendant's concise statement in this regard,
this Court cannot provide a meaningful review of
Defendant's third and final claim. As a result, we deem
this claim to be meritless.
CONCLUSION
For the foregoing reasons, we respectfully recommend that
our Order of Court entered on July 28, 2014 classifying
Defendant as a sexually violent predator be affirmed.
BY THE COURT:
LSL-``
Steven R. Serfa£s, J.
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