Com. v. Yannuzzi, J. ( 2021 )

J-S21020-21
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA YANNUZZI :
:
Appellant : No. 167 EDA 2021
Appeal from the Judgment of Sentence Entered December 14, 2020
In the Court of Common Pleas of Chester County Criminal Division at
No(s): CP-15-CR-0004273-2018
BEFORE: BOWES, J., OLSON, J., and COLINS, J.*
MEMORANDUM BY OLSON, J.: FILED DECEMBER 10, 2021
Appellant, Joshua Yannuzzi, appeals from the December 14, 2020
judgment of sentence imposing three to twenty-three months’ incarceration
to be followed by ten years’ consecutive probation after Appellant pleaded
guilty to one count each of obscene and other sexual materials and
performances (a first-degree misdemeanor) and invasion of privacy (a
second-degree misdemeanor), as well as three counts of interception,
disclosure or use of wire, electronic or oral communications (a third-degree
felony).1 Prior to his sentencing, the trial court designated Appellant a
sexually violent predator (“SVP”) pursuant to Pennsylvania’s Sexual Offender
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S.A. §§ 5903(a)(1), 7507.1(a)(1), and 5703(1), respectively.
J-S21020-21
Registration and Notification Act (“SORNA”), 42 Pa.C.S.A. §§ 9799-10 to
9799.41. We affirm.
The trial court summarized the procedural history as follows:
On August 28, 2019[, Appellant] tendered an open guilty plea to
[the aforementioned crimes. Appellant’s] conviction of invasion
of privacy [] is a Tier I sexual offense under SORNA, with a
prescribed registration period of fifteen [] years. See 42 Pa.C.S.A.
§§ 9799.14(b)(10)[; see also] 9799.15(a)(1).
The written guilty plea colloquy summarized the facts as follows:
"On [October] 10, 2018[, Appellant] surreptitiously recorded
victims in a private bathroom [without] their knowledge. [These
video recordings] occurred in West Chester[,] Chester County[,
Pennsylvania]." The verbal guilty plea colloquy presented the
factual predicate [in] greater detail [as follows:]
[] On October 10, 2018[,] victim number 1 reported that
she found a [cellular telephone] underneath the sink [that
was] recording video footage in a gender[-]neutral
bathroom [in a building] on the campus of [the local
university].
This is a single[-]use[r] bathroom with no stalls. Victim
number 1 noted that there was no one [in] the bathroom
besides her when she was using it. The [cellular telephone]
was pointed at the toilet and had tape covering the flash
part of the [telephone]. Victim number 1 noted that upon
retrieval[,] she double clicked on the [telephone’s] home
button [] and noticed that the [telephone] appeared to be
recording video footage via a mobile application.
Forensic examination of the cellular [telephone] resulted in
the following notable discoveries: More than ten stored user
accounts and/or email addresses reflected in the device
were owned and used by [Appellant,] including a
[university-issued] email address associated with
[Appellant]. Numerous still images and video files depicting
[Appellant] handling the device were also recovered.
Numerous user[-]generated video recordings depict[ing] in
excess of 90 individuals using at least ten unique bathrooms
were recovered. Included in this total [were] at least 45
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videos depicting individuals using gender[-]neutral
bathrooms [at the local university], including the video
depicting [victim number 1] using the bathroom on the date
of the discovery.
The beginning of that particular video recording shows
[Appellant] placing the recovered [] cellular telephone
underneath the sink in the gender[-]neutral bathroom and
position[ing] it in a manner where he could surreptitiously
record any activity or use of the toilet area. [At] the
conclusion of the video[,] the [reporting] victim was
observed finding the [cellular telephone] under the sink.
The video [] shows victim number 1 using the bathroom in
a state of undress.
The forensic search also revealed a mobile [application]
installed [on the cellular telephone] called the spy camera.
The application was used in excess of 100 times between
September 17, 2018[,] and October 10, 2018. The
application is designed to secretly capture [photographs]
and video by hiding the camera interface while in use.
[Appellant] was arrested and confessed to his crimes.
During his confession[, Appellant] admitted to the following:
[H]e placed the [cellular telephone] under the
sink using [reinforced adhesive tape]. He
secretly recorded [victims] in the
gender[-]neutral bathroom on [the university]
campus 30 to 50 times. [H]e recorded
individuals in other bathrooms. [H]e recorded
those individuals in order to capture them using
the bathroom without their knowledge or
consent.
[H]e recorded these individuals for the purposes
of sexual gratification. [H]e recorded these
individuals in order to masturbate to the videos
at a later time. He never received consent from
any of the women to visually or audibly record
them. [H]e uploaded one video to [a website].
The video captured a female using the bathroom
without her knowledge or consent. He provided
his [username] and password [to access the
website].
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The video was uploaded on July 11, 2017. It
was viewed 1,097 times as of the date of the
interview. He [] uploaded the video in order for
others to access and view the video.
He [] identified victims that he secretly video
recorded from the following locations: [a
theatre] in Berwyn, Pennsylvania; a home in
Philadelphia[, Pennsylvania]; a beach house in
[Rehoboth] Beach, Delaware; a residence in
West Chester, Pennsylvania; [a theatre] at [the
university; and] a residence in Reading,
Pennsylvania.
In total[,] the Commonwealth identified 25 victims who
[Appellant] secretly recorded. In all [] the recordings[,] the
victims were in some stage of nudity [or] undress and using
the bathroom. None of them had given consent or
allowance for those recordings.
At the time of the plea, [Appellant] was a twenty-five [] year-old
male with an associate's degree in communications from [a
community college].
The [trial] court accepted [Appellant’s] plea. [Appellant] signed a
plea colloquy acknowledgement of his sex offender registration
and notification requirements, including the mandate that he
undergo a SVP assessment and the ramifications of a designation
as such. On February 12, 2020, the [trial] court ordered a
pre-sentence investigative report and a Sexual Offenders
Assessment Board evaluation.
The pre-sentence investigative report was completed on April 1,
2020. The Sexual Offenders Assessment Board evaluation and
report, conducted and prepared by Dr. Bruce E. Mapes, Ph.D.
[(“Dr. Mapes”)2], was completed on [] May 8, 2020. [Appellant]
did not participate in that assessment. Instead, [Appellant]
____________________________________________
2 As a member of the Sexual Offenders Assessment Board, Dr. Mapes is
qualified as an expert in the field of the behavior and treatment of sexual
offenders. 42 Pa.C.S.A. § 9799.35 (stating, “[t]he [Sexual Offenders
Assessment Board] shall be composed of psychiatrists, psychologists[,] and
criminal justice experts, each of whom is an expert in the field of the behavior
and treatment of sexual offenders”).
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retained his own expert, Dr. Frank M. Dattilio, Ph.D., ABPP [(“Dr.
Dattilio”)], to perform a psychological evaluation and sexual risk
assessment on [Appellant’s] behalf, in which [Appellant] did
participate. Dr. Mapes determined that [Appellant] met the
criteria to be designated [a SVP]. Dr. Dattilio, who completed his
expert report on November 19, 2020, did not [find Appellant met
the criteria to be designated a SVP].
On December 14, 2020, [the trial court] convened for
[Appellant’s] SVP hearing and sentencing. With regard to the
question of [Appellant’s] status as [a] SVP, the parties agreed to
submit their respective expert reports in lieu of testimony. After
reviewing both reports and hearing the arguments of counsel, [the
trial court] determined that [Appellant] met the criteria for
designation as [a] SVP and issued an order to that effect, directing
him to comply with SORNA's lifetime registration and notification
provisions. [Appellant] also signed a sentencing colloquy
acknowledgment of his obligations under SORNA.
After determining that [Appellant] met the criteria to be
designated as a [SVP, the trial court] turned to [sentencing
Appellant] for the offenses to which he [pleaded guilty]. On the
conviction for invasion of privacy[, the trial court] sentenced
[Appellant] to a term of three [] to twenty-three [] months'
imprisonment in Chester County Prison. On the conviction for
obscene and other sexual materials and performances[, the trial
court] sentenced [Appellant] to a term of two years' probation, to
run consecutive[ly] to the sentence imposed [for the invasion of
privacy conviction]. On [the first count] for interception,
disclosure or use of wire, electronic or oral communications[, the
trial court] sentenced [Appellant] to [a] term of five [] years'
probation, to run consecutive[ly] to the sentence imposed [for the
invasion of privacy conviction]. On [the second count for]
interception, disclosure or use of wire, electronic or oral
communications[, the trial court] sentenced [Appellant] to a term
of three [] years[’] probation to run consecutively to the sentence
imposed on [the first count of interception, disclosure or use of
wire, electronic or oral communications]. Finally, on [the third
count for interception, disclosure or use of wire, electronic or oral
communications, the trial court] sentenced [Appellant] to a term
of one [] year of probation, to run concurrent[ly] to the sentence
imposed [for the invasion of privacy conviction]. Thus,
[Appellant’s] aggregate sentence is three [] to twenty-three
months[’ incarceration] followed by ten [] years of consecutive
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probation. [The trial court] also made [Appellant] re-entry plan
eligible at the warden's discretion.
Trial Court Opinion, 3/22/21, at 1-6 (extraneous capitalization, record
citations, and original brackets omitted).
Appellant raises the following issue for our review: “Did the trial court
err when it designated [Appellant] as a [SVP]?” Appellant’s Brief at 4.
Appellant’s objection to the trial court’s SVP determination raises a
challenge to the sufficiency of the evidence; thus, our standard of review is
de novo and our scope of review is plenary.3 Commonwealth v. Meals, 912
A.2d 213, 218 (Pa. 2006).
The determination of a defendant's SVP status may only be made
following an assessment by the [Sexual Offenders Assessment]
Board and [a] hearing before the trial court. In order to affirm [a]
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 sexually violent predator. As with any
sufficiency of the evidence claim, we view all evidence and
reasonable inferences therefrom in the light most favorable to the
Commonwealth[, as the prevailing party on this issue]. 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.
____________________________________________
3 Although Appellant did not specify the element or elements of the statute he
was challenging in his sufficiency claim, a review of Appellant’s brief
demonstrates that he is challenging the sufficiency of the evidence to prove
that he was in a “relationship” with the victims in order to establish that he is
likely to engage in future predatory sexually violent offences. Appellant’s Brief
at 7-9. As discussed infra, proof that a defendant was in a “relationship” with
the victim of the underlying sexually violent offense is not a necessary element
to designate the defendant a SVP.
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Commonwealth v. Fuentes, 991 A.2d 935, 941-942 (Pa. Super. 2010) (en
banc) (citation omitted), appeal denied, 12 A.3d 370 (Pa. 2010). The clear
and convincing standard governing a determination of SVP status “requires
evidence that is so clear, direct, weighty, and convincing as to enable the
trier[-]of[-]fact to come to a clear conviction, without hesitancy, of the truth
of the precise facts in issue.” Meals, 912 A.2d at 219 (citation, original
quotation marks, and original brackets omitted).
Section 9799.12 of SORNA defines the term “sexually violent predator”
as,
[a]n individual who committed a sexually violent offense on or
after December 20, 2012, for which the individual was convicted,
[] 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; see also Commonwealth v. Butler, 226 A.3d 972,
992 (Pa. 2020) (stating, a SVP, in addition to having been convicted of a
sexually violent offense, is a person “who [has] been individually determined
to suffer from a mental abnormality or personality disorder such that they are
highly likely to continue to commit sexually violent offenses”). A “sexually
violent offense” is defined by SORNA 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 committed on or after December 20, 2012, for which
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the individual was convicted.”4 42 Pa.C.S.A. § 9799.12. “Predatory” is
defined by SORNA 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.
Under Section 9799.24 of SORNA, after a defendant is convicted of a
sexually violent offense but before sentencing, the trial court shall order the
Sexual Offenders Assessment Board to conduct an “assessment of the
individual to determine if the individual should be classified as a [SVP.]” 42
Pa.C.S.A. § 9799.24(a) and (b). In performing its assessment, the Sexual
Offenders Assessment Board examines, inter alia the following:
(1) Facts of the current offense, including:
(i) Whether the offense involved multiple victims.
(ii) Whether the individual exceeded the means necessary
to achieve the offense.
(iii) The nature of the sexual contact with the victim.
(iv) Relationship of the individual to the victim.[5]
(v) Age of the victim.
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4 Appellant’s conviction for invasion of privacy, 18 Pa.C.S.A § 7501.1, is a
designated Tier I sexually violent offense under Section 9799.14. See 42
Pa.C.S.A. § 9799.14(b)(10).
5 Although the Sexual Offenders Assessment Board must consider all the
prescribed factors enumerated in Section 9799.24, including, inter alia, a
defendant’s relationship with the victim, there is no statutory requirement that
all factors must be present in order to designate the defendant as a SVP.
Commonwealth v. Feucht, 955 A.2d 377, 381 (Pa. Super. 2008).
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(vi) Whether the offense included a display of unusual
cruelty by the individual during the commission of the
crime.
(vii) The mental capacity of the victim.
(2) Prior offense history, including:
(i) The individual's prior criminal record.
(ii) Whether the individual completed any prior
sentences.
(iii) Whether the individual participated in available
programs for sexual offenders.
(3) Characteristics of the individual, including:
(i) Age.
(ii) Use of illegal drugs.
(iii) Any mental illness, mental disability or mental
abnormality.
(iv) Behavioral characteristics that contribute to the
individual's conduct.
(4) Factors that are supported in a sexual offender assessment
field as criteria reasonably related to the risk of reoffense.
42 Pa.C.S.A. § 9799.24(b)(1-4).
Here, Appellant concedes that he suffered from a mental abnormality,
specifically, voyeuristic disorder. Appellant’s Brief at 7, see also, N.T.,
12/14/20, at 17. Appellant further stated that he “set up a camera in a public
bathroom that captured images of any and all who entered its frame.”
Appellant’s Brief at 8. Appellant contends, however, that, in order to prove
his disorder will likely cause him to engage in future predatory sexually violent
offenses, the Commonwealth was required to prove by clear and convincing
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evidence that he had a “relationship” with the victims of his instant
convictions. Id. Within the context of the term “predatory” under SORNA,
Appellant contends,
Under rules of statutory construction, the plain meaning of
"directing an act toward" and "having a relationship with"'
someone is not present in the situation at bar. Specifically,
[Appellant] set up a camera in a public bathroom that captured
images of any and all who entered its frame. [Appellant] did not
direct any act toward any specific stranger or target[,] and he
definitely didn't establish relationships with anyone who was
recorded in the bathroom.
Id. at 7-8. Appellant asserts that “if the act of victimizing someone in and of
itself[, without proving that a defendant was in a relationship with the victim,]
qualifies as predatory, then everyone who commits a sexually violent offense
should be [a] SVP and the word ‘predatory’ would be redundant[.]” Id. at 8.
In so arguing, Appellant raises, in part, an issue involving the
interpretation of a statute, specifically the definition of “predatory” under
Section 9799.12 of SORNA, for which our scope of review is plenary, and our
standard of review is de novo. Commonwealth v. Satterfield, 255 A.3d
438, 442 (Pa. 2021). When interpreting a statute, an appellate court strives
to ascertain and effectuate the intent of the legislature in enacting the statute.
Commonwealth v. Smith, 234 A.3d 576, 585 (Pa. 2020); see also 1
Pa.C.S.A. § 1921(a) (stating, “The object of all interpretation and construction
of statutes is to ascertain and effectuate the intention of the General
Assembly. Every statute shall be construed, if possible, to give effect to all
its provisions.”).
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To reiterate, Section 9799.12 of SORNA defines “predatory” 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.” 42 Pa.C.S.A. § 9799.12; see also
Feucht, 955 A.2d at 381 (stating, “[a] sexually violent offense is a predatory
one if it 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” (citation and original quotation
marks omitted)), appeal denied, 963 A.2d 467 (Pa. 2008).
In order for a person to be designated [a] SVP, the crime
committed in the case under consideration need not have been
predatory, although it must have been a sexually violent
[offense]. Rather, what is required is that the person's mental
abnormality[6] makes the person likely to engage in predatory
behavior, whether or not the offense at issue was predatory.
Naturally, the facts of the instant offense are material to the SVP
assessment. However, there simply is no requirement that the
charge under consideration be a predatory offense.
Feucht, 955 A.2d at 381 (citations omitted).
A plain-reading of the definition of “predatory” demonstrates that for a
sexually violent offense to be predatory, the act (or offense) must be directed
at a stranger or at a person with whom a defendant develops a new
____________________________________________
6 A mental abnormality is “[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.”
42 Pa.C.S.A. § 9799.12.
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relationship, or already has an established relationship with, and fosters or
promotes that relationship for purpose of victimizing the person. The use of
the word “or” denotes that the act can be directed at a stranger or a person
with whom the defendant has a relationship. Therefore, the Commonwealth
is required to demonstrate by clear and convincing evidence that a defendant,
due to a mental abnormality, is likely to commit future sexually violent
offenses directed at a stranger or a person with whom the defendant has a
relationship. The Commonwealth is not required to demonstrate that the
underlying sexually violent offense was predatory by demonstrating that a
defendant was in a relationship with the victim, as suggested by Appellant.7
See Feucht, 955 A.2d at 381
In determining there was sufficient evidence to demonstrate that
Appellant’s mental abnormality was likely to cause him to commit future
predatory sexually violent offices, the trial court stated,
the Commonwealth has met its burden of proving by clear and
convincing evidence that [Appellant] meets the criteria to be
designated [a] SVP. [Appellant] is a life-long voyeur. He has
____________________________________________
7 Appellant’s brief fails to cite to any case law that is contrary to this Court’s
holding in Feucht, supra, or that supports his contention that the
Commonwealth must prove that the sexually violent offense (invasion of
privacy in the case sub judice) was predatory in order to find that he is likely
to commit future predatory sexually violent offenses as a result of a mental
abnormality. See Pa.R.A.P. 2119(a) (stating that the argument section of an
appellate brief shall include discussion of each issue with citation of
authorities). We are unpersuaded by Appellant’s argument and have found
no case law or statute in support of his argument. See Feucht, 955 A.2d at
381 (stating, “there is simply no requirement that the charge under
consideration be a predatory offense”).
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been photographing women without their knowledge and consent
for his own sexual gratification since he was thirteen years old.
Initially, he took video footage of women's body parts while they
were clothed. Over the years[,] it escalated into surreptitious
video-recording of women in various states of undress using public
or private bathrooms without stalls, where women could not avoid
the prying scope of [Appellant’s recording] device. He even
uploaded a picture of one of his victims onto the Internet where
the footage was viewed 1,097 times. [Appellant] expanded his
criminal voyeurism into two [] other states[,] as well as other
counties in Pennsylvania. His victims[, in the instant case,]
number more than ninety [] persons, some of them friends. Even
after being apprehended, [Appellant] socialized with his unwitting
victims as if nothing had happened. [Appellant] has multiple
sexually deviant paraphilias, all related to the types of activities
he [records] in the bathrooms. He knew it was wrong, knew he
was invading others' privacy, and knew he was taking great risks
himself, but blamed his behavior on his "addiction" to
pornography and rationalized it to himself as lesser than it was
because it did not involve physical contact. [Appellant’s]
diagnosis of voyeuristic disorder is a lifelong condition and
qualifies as a mental abnormality [or] personality disorder for SVP
purposes. The length of time he has had this condition, its
pervasiveness, the presence of his other sexually deviant
paraphilias, his sexual exploitation of more than ninety [] people,
strangers as well as friends, his admission that his disorder
overrides his ability or willingness to control his behavior, his
efforts to conceal his activities, his persistence even though he
knew his behavior was legally wrong, injurious to others, and risky
for himself, and his plea to a predicate sexually violent offense all
demonstrate clearly and convincingly that [Appellant] is [a] SVP,
i.e., a person convicted of a sexually violent offense who has a
mental abnormality or personality disorder that makes him likely
to engage in predatory sexually violent offenses. 42 Pa.C.S.A.
§ 9799.12.
Trial Court Opinion, 3/22/21, at 37-39 (extraneous capitalization omitted).
A review of the record demonstrates that both the Commonwealth and
Appellant concede that he was convicted of a sexually violent offense, i.e.,
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invasion of privacy, and that he suffers from voyeuristic disorder.8 Although
Appellant did not participate in Dr. Mapes’s assessment to determine if
Appellant was a SVP, Dr. Mapes noted that Appellant “reported being sexually
aroused” by several types of paraphilia that were “considered deviant sexual
interests.”9 Commonwealth Exhibit C-1 at 4. Dr. Mapes stated that
Appellant’s voyeuristic disorder was “considered a lifelong disorder which can
be treated but not cured, and the manifestation of which may wax and wane
across [his] lifetime.” Id. at 5. In providing his professional opinion within a
reasonable degree of professional certainty, Dr. Mapes stated that Appellant
was likely to commit future sexually violent offenses against strangers and
persons with whom Appellant had some degree of a relationship because
____________________________________________
8 Dr. Mapes classified Appellant as a “video voyeur,” which he defined as a
person who “set[s] up complicated equipment in bathrooms, bedrooms, or
other intimate places to see [] victims naked[,] disrobing[,] or [engaging in]
intercourse.” Commonwealth Exhibit C-1 at 5. Dr. Mapes explained that video
voyeurs “take more risks” than pseudovoyeurs, opportunistic voyeurs, or
computer voyeurs because video voyeurs “may actually visit the homes of the
victims.” Id.
9 Dr. Mapes defined “paraphilia” as a “sexual interest which may reflect
‘normal’ sexual interests or ‘deviant’ sexual interests.” Commonwealth Exhibit
C-1 at 4. Dr. Mapes stated Appellant reported he was sexually aroused by
coprophilia (arousal to feces), coproscopist (arousal from observing someone
defecating), eprectolagnia (arousal to flatulence), and urophilia (arousal to
urine). Id. Dr. Dattilio reported Appellant’s interest in these paraphiliae but
noted that Appellant stated he found them “cynically humorous but not
sexually arousing [] to the same degree that he found unobtrusively observing
or videoing women undressing or using the toilet.” Defense Exhibit D-1 at 11.
Dr. Dattilio opined that Appellant’s interests were not “deviant sexual interests
involving arousal” and did not “rise to the level of a paraphilic disorder.” Id.
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[o]ne who suffers from voyeuristic disorder, [one] who has
multiple deviant sexual interests, one who has over 90 [prior]
victims, and one who has engaged in voyeurism for at least six
months[, as is the case with Appellant,] is considered more likely
to reoffend than one who does not suffer from this disorder.
Id. (extraneous capitalization omitted).
Dr. Dattilo, upon conducting an evaluation of Appellant, in which
Appellant participated, stated that, “[w]hile [Appellant] is considered in some
ways ‘more likely to reoffend than one who does not suffer from [voyeuristic]
disorder,’ with treatment, this condition has significantly reduced in
[Appellant’s] case.”10 Defense Exhibit D-1 at 18. In assessing whether
Appellant’s voyeuristic disorder was likely to cause Appellant to engage in
future predatory sexually violent offenses, Dr. Dattilo questioned whether “the
diagnosis of voyeurism meets the statutory criteria of a ‘violent’ sexual offense
or as increasing the risk to engage in ‘violent sexual offenses’” because
voyeurism is a noncontact offense. Id. at 18-19. Dr. Dattilo stated,
I [] respectfully disagree with Dr. Mapes that [Appellant] meets
the criteria for predatory behavior in the respect that it would
qualify him to be a [SVP.] While [Appellant] clearly engaged in
____________________________________________
10 Dr. Dattilo stated,
Voyeuristic disorder can be a lifetime disorder depending on the
degree and intensity as well [as] its response to treatment. In
cases in which individuals do not invest in treatment or receive
inadequate treatment, the manifestation can wax and wane across
the lifespan but [is] likely not to do so when a strong commitment
to treatment and rehabilitation is made and they receive intensive
intervention that is effective.
Defense Exhibit D-1 at 18.
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predatory behavior, the conditions of his actions require
perspective that because of [Appellant’s] autism,[11] he is prone
to objectify the victim, separating this from any intended violent
act. Therefore, the likelihood of determination that it is
irreversibly repetitive depends on his response to treatment.
Id. at 19. Dr. Dattilio opined, “to a reasonable degree of psychological
certainty[,]” that Appellant was “a low risk to reoffend, particularly due to the
fact that he has been involved in intensive treatment and has made excellent
progress.” Id. at 21.
Viewing the evidence in the light most favorable to the Commonwealth,
as the prevailing party, we concur with the trial court that there was sufficient
clear and convincing evidence to designate Appellant as a SVP. Appellant was
convicted of a sexually violent offense as defined by SORNA, namely invasion
of privacy. Both experts agreed that Appellant suffered from voyeuristic
disorder, which is a lifelong condition that can “wax and wane” depending
upon a person’s level of and response to treatment but that cannot be cured.12
Moreover, both experts noted that Appellant’s voyeuristic disorder led to his
predatory acts of recording 90 victims in spaces in which the victims had an
____________________________________________
11 Dr. Dattilo diagnosed Appellant as suffering from an autism spectrum
disorder. Defense Exhibit D-1 at 13 (stating, Appellant “does meet the criteria
for [an] autism spectrum [disorder, specifically] what was previously referred
to in the diagnostic nomenclature as Asperger syndrome”).
12Although Dr. Dattilo acknowledged that voyeuristic disorder can be a lifelong
condition, see Defense Exhibit D-1 at 18, he stated that Appellant’s
cooperation with police and his remorse for his actions were “major
steppingstone[s] towards his complete rehabilitation.” Defense Exhibit
D-1 at 20. This statement suggests that Appellant can be cured, or fully
rehabilitated, of his voyeuristic disorder.
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expectation of privacy that Appellant invaded. Dr. Mapes, who’s assessment
report the trial court found to be credible, opined to a reasonable degree of
professional certainty that Appellant met all the criteria for classification as a
SVP under Pennsylvania law and, in particular, that Appellant was likely to
commit future predatory sexually violent offenses as a result of his voyeuristic
disorder. As such, Appellant’s sufficiency claim is without merit.13
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/10/2021
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13 [A Sexual Offenses Assessment Board] report or opinion that [an]
individual has an abnormality indicating the likelihood of predatory
sexually violent offenses[, such as Dr. Mapes’s assessment report
of Appellant,] is itself evidence. [W]hile 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, they do
not affect our sufficiency analysis.
Feucht, 955 A.2d at 982 (citations omitted).
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