Com. v. Karolski, C. ( 2017 )

J-S24026-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
CLIFFORD JOSEPH KAROLSKI
Appellant No. 1250 WDA 2016
Appeal from the Judgment of Sentence entered June 27, 2016
In the Court of Common Pleas of Beaver County
Criminal Division at No: CP-04-CR-0000762-2015
BEFORE: PANELLA, STABILE, JJ., and STEVENS, P.J.E.*
MEMORANDUM BY STABILE, J.: FILED JUNE 28, 2017
Appellant, Clifford Joseph Karolski, appeals from the judgment of
sentence the Court of Common Pleas of Beaver County entered on June 27,
2016. Appellant argues the Commonwealth failed to offer sufficient evidence
to prove Appellant met the Sexual Violent Predator (SVP) criteria. We
affirm.
The underlying facts and procedural history are undisputed. Briefly,
Appellant pleaded nolo contendere to one count of aggravated indecent
assault of a child less than thirteen years old. Following a hearing, the trial
court concluded Appellant met the SVP criteria, and sentenced him to not
____________________________________________
*
Former Justice specially assigned to the Superior Court.
J-S24026-17
less than 50 months nor more than 120 months’ imprisonment. This appeal
followed.
Appellant’s sufficiency of the evidence argument consists of the
following:
The absence of the number of factors in the present case
coupled with the failure of [the SOAB expert] to personally
interview [Appellant] should have cast some doubt on [the SOAB
expert’s] opinion that [Appellant] was a sexually violent
predator. Her admitted use of all the allegations made against
[Appellant] in his past cases should likewise have raised some
question[s] as to the objectivity of her determination. Her
opinion in the instant case was entirely based on hearsay[.]
Appellant’s Brief at 12-13.
For the reasons explained below, we find Appellant’s challenge
meritless.
A challenge to a determination of SVP status requires us to view
the evidence
in the light most favorable to the Commonwealth.
The reviewing court may not weigh the evidence or
substitute its judgment for that of the trial court. The
clear and convincing standard 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 [at] issue.
Commonwealth v. Plucinski, 868 A.2d 20, 25 (Pa. Super.
2005) (internal citations and quotation marks omitted). The
scope of review is plenary. Commonwealth v. Brooks, 7 A.3d
852 (Pa. Super. 2010), appeal denied, 610 Pa. 614, 21 A.3d
1189 (2011). “[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), appeal denied, 608 Pa. 645, 12 A.3d 370
(2010) (emphasis in original).
-2-
J-S24026-17
A challenge to the sufficiency of the evidence to support an SVP
designation requires the reviewing court to accept the
undiminished record of the case in the light most favorable to
the Commonwealth. Commonwealth v. Meals, 590 Pa. 110,
119, 912 A.2d 213, 218 (2006). The reviewing court must
examine all of the Commonwealth’s evidence without
consideration of its admissibility. Commonwealth v. Baker, 24
A.3d 1006, 1035 (Pa. Super. 2011). A successful sufficiency
challenge can lead to an outright grant of relief such as a
reversal of the SVP designation, whereas a challenge to the
admissibility of the expert’s opinion and testimony is an
evidentiary question which, if successful, can lead to a new SVP
hearing. Commonwealth v. Sanford, 580 Pa. 604, 608–09,
863 A.2d 428, 431 (2004) (distinguishing concepts of sufficiency
of evidence versus admissibility of evidence, but refusing to
render any opinion on whether SVP expert’s “reliance on the
affidavit of probable cause and the charging documents
somehow rendered her testimony inadmissible as this issue is
not before this court”).
As a general rule, [the] standard of review of a trial
court’s evidentiary ruling ... is limited to determining
whether the trial court abused its discretion. An
abuse of discretion may not be found merely
because an appellate court might have reached a
different conclusion, but requires a result of manifest
unreasonableness, or partiality, prejudice, bias, or
ill-will, or such lack of support so as to be clearly
erroneous.
Commonwealth v. Dengler, 586 Pa. 54, 65, 890 A.2d 372,
379 (2005) (internal citations and quotation marks omitted).
Our task in either scenario is one of review, not one of
reweighing or assessing the evidence in the first instance.
Meals, supra at 127, 912 A.2d at 223.
Commonwealth v. Prendes, 97 A.3d 337, 355-56 (Pa. Super. 2014),
appeal denied, 105 A.3d 736 (Pa. 2014).
-3-
J-S24026-17
Appellant acknowledges in his brief that there is no requirement for
the Commonwealth “to prove all the assessment factors.”1 Appellant’s Brief
at 12. Yet, Appellant is asking this Court to reverse the trial court’s SVP
determination on the ground that the Commonwealth failed to offer evidence
on some assessment factors. Additionally, Appellant is asking us to reweigh
the absent factors in his favor, and substitute our judgment for that of the
trial court. We must reject both of Appellant’s requests. See Meals, 912
A.2d at 220-24 (the Commonwealth does not have to show that any certain
factor is present or absent in a particular case; the Superior Court’s task is
one of review, and not of weighing and assessing evidence).
Next Appellant alleges that the expert’s failure to interview Appellant
somehow negatively affected the expert’s analysis and conclusions. There is
no statute or other authority (nor did Appellant cite any) requiring SOAB
members to meet with a defendant for purposes of an SVP assessment.
Similarly, there is no authority (nor did Appellant cite any) for the argument
that the absence of an interview with a defendant is to be or has been
construed against the Commonwealth. The claim is, therefore, rejected.
Appellant next alleges that the expert in the instant matter “used”
unproven allegations made against him in reaching her opinion. The record
____________________________________________
1
See 42 Pa.C.S.A. § 9799.24(b) (relating to, inter alia, noninclusive list of
factors to be considered by SOAB member in conducting an SVP
assessment).
-4-
J-S24026-17
belies Appellant’s allegation. First, the expert considered “all prior
allegations, if they were dismissed or withdrawn, what the victim stated,
what [Appellant] stated happened, and the ultimate disposition of the case.”
Trial Court Opinion, 10/07/16, at 9. “Considered” does not mean that the
expert used the allegations against him, as Appellant erroneously alleges.
Second, Appellant fails to recognize that controlling caselaw expressly allows
SOAB members to consider the “arrest warrant, affidavit of probable cause,
police reports, charge sheet, statements by the victim, etc. . . . in SOAB
evaluations.” Prendes, 97 A.3d at 362 (citing Pa.R.E. 703, 705) (emphasis
added).2 Thus, under current law, for purposes of an SVP assessment,
members of the SOAB can, and routinely do, consider information that often
contains “unproven allegations.” Defendant can challenge the unproven
allegations, but such challenges concern, as noted below, the weight, not the
sufficiency of the evidence.
____________________________________________
2
Additionally, Section 9799.24, in relevant part, states:
All State, county and local agencies, offices and entities in this
Commonwealth, including juvenile probation officers, shall
cooperate by providing copies of records and information as
requested by the [State Sexual Offender Assessment Board
(SOAB)] in connection with the court-ordered assessment and
the assessment requested by the Pennsylvania Board of
Probation and Parole or the assessment of a delinquent child
under section 6358 (relating to assessment of delinquent
children by the State Sexual Offenders Assessment Board). . . .
42 Pa.C.S.A. § 9799.24(c).
-5-
J-S24026-17
Finally, despite the heading and the wording of his argument,
Appellant actually is challenging the weight of the SOAB expert’s testimony,
seeking, in the process, reweighing of the expert’s testimony in his favor.
He is entitled to no relief. See Meals, 912 A.2d at 223-24;3 see also
Fuentes, 991 A.2d at 944 (appellant’s argument that the evidence for the
SVP determination was insufficient because expert’s opinion was based
solely on appellant’s prior criminal record and police reports was in fact a
challenge to the weight of the evidence). Additionally, as noted above,
weight of the evidence is not for us to decide. Meals, 912 A.2d at 223
(Regarding sexually violent predator assessments, “[t]he task of the
Superior Court is one of review, and not of weighing and assessing evidence
in the first instance.”). Thus, to the extent Appellant’s challenge can be
construed as a challenge to the weight of the evidence, we conclude the
challenge is unavailing.
Judgment of sentence affirmed.
____________________________________________
3
In Meals, the Supreme Court noted:
To the extent [defendant] felt that the expert’s ‘diagnosis’ was
not fully explained, did not square with accepted analyses of the
disorder, or was simply erroneous, he certainly was free to
introduce evidence to that effect and/or to argue to the
factfinder that the Commonwealth’s expert’s conclusions should
be discounted or ignored. But that argument would affect the
weight, and not the sufficiency, of the expert’s evidence.
Meals, 912 A.2d at 223-24 (footnote omitted).
-6-
J-S24026-17
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2017
-7-