Com. v. Gill, J. ( 2014 )

J-S62020-14
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JAMAAL GILL,
Appellant No. 2943 EDA 2013
Appeal from the Judgment of Sentence of October 11, 2013
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0003451-2013
BEFORE: ALLEN, OLSON AND OTT, JJ.
MEMORANDUM BY OLSON, J.: FILED NOVEMBER 25, 2014
Appellant, Jamaal Gill, appeals from the judgment of sentence entered
on October 11, 2013. We affirm.
On May 14, 2013, Appellant entered a negotiated guilty plea to
indecent assault and corrupting the morals of a minor.1 During the guilty
plea colloquy, Appellant admitted to the following facts:
if called to testify, the [five-year-old c]omplainant . . . [,
who is Appellant’s] cousin, would [testify] that on or about
July [8,] 2012, [she was inside of Appellant’s Philadelphia]
house. . . . [At that time, Appellant took the complainant]
into the bathroom [and] pull[ed] down her pants. Further,
[the complainant] would [testify] that [Appellant] pulled out
his penis and tried to force the [c]omplainant’s head onto
his penis several times.
____________________________________________
1
18 Pa.C.S.A. §§ 3126(a)(2) and 6301(a)(1)(i), respectively.
J-S62020-14
N.T. Guilty Plea, 5/14/13, at 5.
The trial court accepted Appellant’s guilty plea to indecent assault and
corrupting the morals of a minor; and, since Appellant was convicted of a
sexually violent offense,2 the trial court deferred sentencing pending
Appellant’s Sexual Offenders Assessment Board (“SOAB”) evaluation, to
determine whether Appellant met the criteria for being deemed a sexually
violent predator (“SVP”). Licensed psychologist Barry Zakireh, Ph.D., of the
SOAB, conducted Appellant’s evaluation and assessment.
Appellant’s SVP hearing took place on October 11, 2013 and, during
the hearing, Appellant stipulated to Dr. Zakireh’s “expertise in the area of
forensic psychology,” as well as to “[Dr.] Zakireh’s report.” N.T. SVP
Hearing, 10/11/13, at 2-3. Dr. Zakireh’s expert report was then admitted
into evidence.
Within Dr. Zakireh’s expert report, Dr. Zakireh concluded that
Appellant met “the criteria set forth in the law for classification as [an SVP].”
Dr. Zakireh’s Report, dated 8/2/13, at 11. In relevant part, Dr. Zakireh
____________________________________________
2
42 Pa.C.S.A. § 9799.12 defines a “sexually violent offense” as “[a]n
offense specified in section 9799.14 (relating to sexual offenses and tier
system) as a Tier I, Tier II[,] or Tier III sexual offense.” 42 Pa.C.S.A.
§ 9799.12. In this case, Appellant was convicted of indecent assault by
forcible compulsion, which is classified as a “Tier II sexual offense” under 42
Pa.C.S.A. § 9799.14(c). Specifically, at the time of Appellant’s SVP hearing,
indecent assault by forcible compulsion was classified as a Tier II sexual
offense under 42 Pa.C.S.A. § 9799.14(c)(1.2).
-2-
J-S62020-14
declared that this final conclusion was based upon the following facts and
conclusions:
The victim in this case was a five year old female at the
time of the offense and related to [Appellant] as an
extended family member (second cousin). The victim and
her mother were visiting the residence of the sister of
[Appellant] and it appears that [Appellant] was staying or
residing there as well. The victim’s mother went to the
store leaving the child in the home for about ten minutes.
Upon her return, the victim reported to her that [Appellant]
took her into [the] bathroom, pulled his pants down,
exposed his penis, and attempted to force [her] mouth on
his penis several times.
. . . [Appellant] has two prior arrests and convictions for
sexual offenses. On both occasions . . . , he was convicted
of [i]ndecent [e]xposure. . . . The presence of multiple
victims has a significant relationship to a distinct paraphilic
pattern or pathway to sexual offending, or to a pattern of
disregard and insensitivity to norms or rules, including
those governing sexual relations or impulses.
...
Related to the nature of sexual contact with the victim: the
sexually assaultive behaviors in this case occurred on one
occasion. [Appellant’s] behavior was intentional, deliberate,
likely anteceded by sexual impulses with a prepubescent
female (he was 30 years old) despite his previous
convictions for [] sexual offenses spanning a period of six
years. Hence, his behavior involved a prepubescent minor
in the present offense with a significant age difference as
well as significant risk-taking and obliviousness or disregard
to the likelihood of apprehension or detection. His behavior
also appears relatively similar to the prior offenses, which
involved indecent exposure with strangers or acquaintances,
but in this case he has extended the sexual behavior
problems by targeting a prepubescent female. Hence, there
is a demonstrated pattern of evolving, repetitive, and
persistent sexual offending in this case over a [12] year
-3-
J-S62020-14
period despite multiple prior sanctions and criminal justice
interventions.
In terms of relationship to the victim, [Appellant] was
related to the victim as an extended family member, but the
prior victims of his sexual offenses were unrelated or
strangers. Hence, he has had both related and unrelated
victims. Offenders who engage in sexual assaults against
strangers and/or unrelated persons may have a variety of
characteristics or clinical disorders, as do those that assault
related individuals. Both circumstances may reflect
predatory behavior and/or an underlying mental disorder,
and may reflect antisocial or sexually deviant pathways to
sexual offending. . . .
In terms of the age of the victim, she was five years old at
the time the offense occurred and [Appellant] was [30]
years old, a significant age difference. However, there is
insufficient evidence of a pedophilic behavior pattern or
impulses based on the age difference in this case, as the
offense occurred on one occasion and there is no other
indication of minor victims in his sexual offending history. . .
. [Appellant’s] behavior more likely reflects a primarily
antisocial orientation with impulse control deficits,
aggression, coercion, manipulation, and diverse victim
selection based on their availability or opportunity.
...
In terms of mental capacity of the victim, there is no
indication of specific mental or physical disability on the part
of the victim. However, she was a prepubescent child, and
significantly at [] risk of harm and negative impact given
her age and vulnerability.
In terms of prior offense history, as indicated previously,
[Appellant] has a history of two prior arrests and
convictions for sexual offenses. . . . [Appellant] also has a
history of multiple arrests resulting in sanctions or
convictions for nonsexual offenses. . . . A history of sexual
and, to a lesser extent, of non-sexual offenses represents a
higher risk for sex offense recidivism, with a prior sex
offense (charges and/or convictions) as one of the most
consistent or robust predictors associated with sex offense
-4-
J-S62020-14
recidivism. [Appellant’s] risk for sex offense recidivism is
increased due to [the] presence of two prior convictions for
sexual offenses; prior convictions for noncontact sexual
offenses [], a prior conviction for nonsexual violence [], and
the relatively high number of prior [nonsexual] convictions.
...
[Appellant] has not gained sufficient skills or applied
knowledge to manage or alter his inappropriate or harmful
sexual behavior or cognitions despite sanctions or possible
treatment.
In terms of the characteristics related to the offender,
[Appellant] is currently [31] years old, which is at the age
level associated with a higher risk of sex offense recidivism
relative to individuals ages 50 or older. . . . Research also
indicates that younger offenders, or offenders who manifest
an early onset of sexual offending, are at a higher risk of
sex offense recidivism, and an early starter pattern may
reflect a sexually deviant pathway toward sexual offending
behaviors, particularly if there is evidence of repeated
offending after an early onset. . . . [Appellant’s] first
documented sexual offense (first prior sexual offense)
occurred when he was [18] years old, which does indicate a
relatively early onset of sexually coercive behavior.
...
Furthermore, the presence of a personality disorder,
particularly Antisocial Personality Disorder, or an antisocial
orientation, is also a pathway associated with the
emergence, onset, and maintenance of sexually coercive
behavior, and has been found to correlate significantly with
sexual recidivism.
...
[There is a] (high) likelihood that [Appellant] has the
potential for, or when afforded the opportunity, to sexually
victimize individuals of varied age groups and relationships.
. . . [Appellant’s] behavior more likely reflects a primary
antisocial orientation with impulse control deficits,
aggression, coercion, manipulation, and diverse victim
-5-
J-S62020-14
selection based on their availability or opportunity. . . .
Overall, [Appellant] has shown an interest or willingness to
engage in opportunistically coercive and assaultive sexual
contact with multiple victims, a potential to cognitively
distort or justify such behavior, as well as disregard the
social standards related to sexual behavior.
. . . There is evidence of diverse sex crimes, another factor
that may serve as a pathway to repeated sexual coercion or
associated with sex offense recidivism. He has assaulted
both a related and unrelated or stranger females. His
known victims ranged in age from five to over [40]. Status
as a single individual is associated with a greater re-
offender risk. Given the information about his relational
history, his risk along this dimension does appear to be
increased as there is no indication that he ever resided with
a lover or partner in an intimate relationship for a
prolonged, consistent or substantial period.
REFERRAL QUESTION CRITERIA.
. . . [T]he [SOAB must] provide an opinion [on] whether
[Appellant] should be classified as a sexually violent
predator. Sexually violent predator is defined in statute as
a person who has been convicted of a sexually violent
offense . . . and who is determined to be a sexually violent
predator due to a mental abnormality or personality
disorder that makes the person likely to engage in
predatory sexually violent offenses. . . . Predatory is
defined as “an 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
support or facilitate victimization.”
...
Based on the present evaluation, [Appellant] meets the
criteria set forth in the Diagnostic and Statistical Manual for
Mental Disorders, Fourth Edition, Text Revision (DSM-IV-
TR), for Personality Disorder, NOS, with Antisocial Features.
This is a diagnostic category that is consistent with the legal
conception of a mental abnormality as defined by the
statutes.
-6-
J-S62020-14
...
[Appellant] has . . . [engaged] in sexual coercion and other
forms of violence or violations of social norms or rights of
others on multiple occasions over a prolonged period
including three total arrests and convictions/sanctions for
sexual offending and with respect to multiple victims or
complainants, of varied ages and in different contexts or
relationships, over a significant period (12 years) despite
apprehension, sanctions, or other interventions including
possible treatment. Hence, this pattern includes his sexual
offending behaviors in the case of the [i]nstant [o]ffense,
and indicates that [Appellant] has significant difficulty
controlling his aggressive sexual impulses, unruly behavior,
and disregard for social standards/norms, including coercive
sexual urges, impulses, and behavior. In particular, this
disorder is related to his disregard and lack of concern for
the suffering, distress, or [] impact of his actions on the
victims, and in his historical inability to modify his behavior
based on negative consequences or experiences. These
aspects indicate that due to this disorder, [Appellant] has
manifested significant difficulty controlling or exerting
adequate control over his sexual urges, impulses, and
behavior leading to significant cognitive, emotional, and
behavioral (volitional) deficits. Furthermore, the presence
of Antisocial Personality Disorder . . . is also a pathway
associated with the emergence, onset, and maintenance of
sexually coercive behavior, and has been found to correlate
significantly with sexual recidivism. From this perspective,
it is the opinion of this examiner that, in the case of this
offender, this mental condition meets the statutory
requirement for a Mental Abnormality . . . that predisposes
the person toward the commission of criminal sexual acts.
PREDATORY BEHAVIOR CRITERION
. . . In this evaluator’s opinion, the statutory criteria [for
predatory behavior] is met. . . . [Appellant’s] behavior was
intentional, deliberate, likely anteceded by sexual impulses
with a prepubescent female (he was 30 years old) despite
his previous convictions for [] sexual offenses spanning a
period of six years for the two offenses, though a period of
-7-
J-S62020-14
[12] years considering the [i]nstant [o]ffense as well.
Hence, his behavior involved a prepubescent minor in the
present offense with a significant age difference as well as
significant risk-taking and obliviousness or disregard to the
likelihood of apprehension or detection. . . . [I]t is the
opinion of this examiner that [Appellant’s] behavior during
the [i]nstant [o]ffense clearly corresponds to the legal
conception of “predatory,” as defined in the Pennsylvania
Statutes.
CONCLUSIONS/OPINION
. . . [I]t is this Board member’s professional opinion, within
a reasonable degree of psychological certainty, that
[Appellant] meets the criteria set forth in the law for
classification as a Sexually Violent Predator. . . .
Dr. Zakireh’s Report, dated 8/2/13, at 1-11.
Following the introduction of Dr. Zakireh’s report, the Commonwealth
rested its case. Appellant did not present any evidence on his behalf.
At the conclusion of the SVP hearing, the trial court concluded that
“the Commonwealth [proved] by clear and convincing evidence that
[Appellant] does meet the criteria for a sexually violent predator.” N.T. SVP
Hearing, 10/11/13, at 18. The case proceeded to sentencing, where the trial
court sentenced Appellant to the negotiated term of two to four years in
prison, followed by three years of probation. N.T. Sentencing, 10/11/13, at
19.
Appellant filed a timely notice of appeal and Appellant now raises the
following claim to this Court:
Was not the evidence insufficient to establish that
[A]ppellant met the statutory definition of a “sexually
violent predator,” where the Commonwealth’s expert used a
-8-
J-S62020-14
standard of proof lower than that called for in the governing
statute?
Appellant’s Brief at 3.3
Appellant claims that the evidence was insufficient to support the trial
court’s SVP determination, as there was no evidence that Appellant’s mental
abnormality or personality disorder made him “likely” to engage in predatory
sexually violent offenses. Id. at 10. We review this sufficiency claim under
the following standard:
We do not weigh the evidence presented to the sentencing
court and do not make credibility determinations. Instead,
we view all the evidence and its reasonable inferences in a
light most favorable to the Commonwealth. We will disturb
an SVP designation only if the Commonwealth did not
present clear and convincing evidence to enable the court to
find each element required by the SVP statutes.
____________________________________________
3
The trial court ordered Appellant to file and serve a concise statement of
errors complained of on appeal, pursuant to Pennsylvania Rule of Appellate
Procedure 1925(b). Appellant complied with the order and, as is relevant to
the current appeal, Appellant listed the following claim in his Rule 1925(b)
statement:
the evidence was insufficient to prove SVP status as it failed
to establish a critical element, the requirement that future
predatory behavior be “likely”; to wit: Dr. Zakireh relied
upon an incorrect standard when he stated that [Appellant]
was [an] SVP because his disorder/mental condition
“increased his risk for sexual offending” rather than the
correct standard that it be [sic] “probable” or “more likely
than not” that he would re-offend. Dr. Zakireh’s ultimate
opinion was thus negated by relying upon an incorrect
definition of the word “likely.”
Appellant’s Rule 1925(b) Statement, 12/2/13, at 1-2.
-9-
J-S62020-14
We keep in mind that a [SOAB] report or opinion that the
individual has an abnormality indicating the likelihood of
predatory sexually violent offenses is itself evidence. Also,
while a defendant is surely entitled to challenge such
evidence by contesting its credibility or reliability before the
SVP court, such efforts affect the weight, not the sufficiency
of the Commonwealth’s case. Accordingly, [such claims] do
not affect our sufficiency analysis.
Commonwealth v. Feucht, 955 A.2d 377, 382 (Pa. Super. 2008) (internal
citations omitted). Further, as this Court has held, “[a]n expert’s opinion,
which is rendered to a reasonable degree of professional certainty, is itself
evidence.” Commonwealth v. Fuentes, 991 A.2d 935, 944 (Pa. Super.
2010) (en banc).
At the time of Appellant’s SVP hearing, a “sexually violent predator”
was defined, by statute, as:
An individual convicted of an offense specified in . . . [42
Pa.C.S.A. § 9799.14(c)(1.2)4] . . . 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. § 9799.12. The term “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. A “predatory”
____________________________________________
4
As noted above, at the time of Appellant’s SVP hearing, indecent assault by
forcible compulsion was classified as a Tier II sexual offense, pursuant to 42
Pa.C.S.A. § 9799.14(c)(1.2).
- 10 -
J-S62020-14
sexually violent offense is one that is “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. Finally, as this Court has explained:
in reaching [an SVP] determination, [a court] must examine
the driving force behind the commission of the[] acts, as
well as look[] 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 [SVP] assessment; it is
not an “independent element.”
Commonwealth v. Stephens, 74 A.3d 1034, 1038-1039 (Pa. Super. 2013)
(internal citation omitted).
According to Appellant, the evidence was insufficient to support the
trial court’s SVP determination. As Appellant argues, Dr. Zakireh’s report did
not declare that Appellant’s mental abnormality rendered it “likely” that
Appellant would re-offend; instead, Appellant claims, Dr. Zakireh’s report
declared “only that [Appellant’s] mental disorder ‘increase[d] the likelihood’
of re-offending.” Appellant’s Brief at 10. Therefore, Appellant claims, since
there is no evidence that Appellant’s mental abnormality made it “likely” that
he would re-offend, the evidence was insufficient to support the trial court’s
SVP determination. Id. Appellant’s claim fails, as it is belied by the facts
and the law.
First, Appellant’s argument is contrary to the facts of this case. In this
case, Dr. Zakireh’s report specifically declared that Appellant suffers from
- 11 -
J-S62020-14
the mental abnormality of “Personality Disorder, NOS, with Antisocial
Features” and that, as a result of this mental abnormality, there is a “(high)
likelihood that [Appellant] has the potential for, or when afforded the
opportunity, to sexually victimize individuals of varied age groups
and relationships.” Dr. Zakireh’s Report, dated 8/2/13, at 1-11 (emphasis
added). Therefore, and contrary to Appellant’s claim on appeal, Dr. Zakireh
specifically concluded that Appellant’s mental abnormality makes it “likely”
that Appellant will re-offend. To be sure, Dr. Zakireh opined that Appellant’s
mental abnormality makes it highly likely that Appellant will re-offend.
Second, Appellant’s claim on appeal fails because it is contrary to the
law of this Commonwealth. On appeal, Appellant claims only that the
evidence was insufficient to support the trial court’s SVP determination
because there is no evidence that “it is more likely than not . . . that
[Appellant] will re-offend at some time in the future.” Appellant’s Brief at 12
(internal emphasis omitted). Yet, this Court has specifically held that “the
risk to re[-]offend is not an ‘independent element’ of the SVP determination,
but rather, is but one factor to be considered when making such an
assessment.” Commonwealth v. Morgan, 16 A.3d 1165, 1173 (Pa. Super.
2011); Stephens, 74 A.3d at 1038-1039. Instead, to prove that Appellant
is an SVP, the statute demands that the Commonwealth prove that Appellant
suffers from a “mental abnormality or personality disorder that makes the
individual likely to engage in predatory sexually violent offenses.” 42
Pa.C.S.A. § 9799.12; see also Morgan, 16 A.3d at 1173; Stephens, 74
- 12 -
J-S62020-14
A.3d at 1038-1039. Therefore, since Appellant’s claim rests upon a legally
erroneous foundation, the claim fails for a second reason.
Finally, we note the plethora of evidence that supports the trial court’s
conclusion that Appellant suffers from a “mental abnormality or personality
disorder that makes [him] likely to engage in predatory sexually violent
offenses.” 42 Pa.C.S.A. § 9799.12. Certainly, Dr. Zakireh concluded, within
a reasonable degree of psychological certainty, that Appellant is an SVP. Dr.
Zakireh’s Report, dated 8/2/13, at 11. Dr. Zakireh based this expert opinion
upon the fact that Appellant suffers from the mental abnormality of
Personality Disorder, NOS, with Antisocial Features and that, as a
consequence of this mental abnormality, Appellant: has a “pattern of
evolving, repetitive, and persistent sexual offending . . . over a [12] year
period despite multiple prior sanctions and criminal justice interventions;”
has “committed sexual offenses against both related and unrelated victims;”
has multiple arrests “resulting in sanctions or convictions for nonsexual
offenses;” “manifested an early onset of sexual offending;” has “poor
empathy or remorse;” has “an interest or willingness to engage in
opportunistically coercive and assaultive sexual contact with multiple
victims;” has “a potential to cognitively distort or justify” the assaultive
sexual contact; has a potential to “disregard the social standards related to
sexual behavior;” has “significant difficulty controlling his aggressive sexual
impulses, unruly behavior, and disregard for social standards/norms,
including coercive sexual urges, impulses, and behavior;” and, committed a
- 13 -
J-S62020-14
“predatory” sexually violent offense in the underlying case. Id. at 1-11. Dr.
Zakireh concluded that all of the above traits, actions, and events increase
the likelihood that Appellant will re-offend. Id. Further, Dr. Zakireh
concluded that, as a result of Appellant’s mental abnormality, there is a
“(high) likelihood that [Appellant] has the potential for, or when afforded the
opportunity, to sexually victimize individuals of varied age groups and
relationships.” Id. at 8.
From the above, it is apparent that the evidence was sufficient to
support the trial court’s determination that Appellant is an SVP. Therefore,
Appellant’s claim fails for this third, independent reason.
Judgment of sentence affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/25/2014
- 14 -