Com. v. Popp, C. ( 2023 )

J-S08043-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT OP 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
CAROL MARIE POPP :
:
Appellant : No. 1403 MDA 2022
Appeal from the Judgment of Sentence Entered September 9, 2022
In the Court of Common Pleas of Dauphin County Criminal Division at
No(s): CP-22-CR-0001496-2021
BEFORE: OLSON, J., McCAFFERY, J., and COLINS, J.*
MEMORANDUM BY COLINS, J.: FILED: JUNE 1, 2023
Appellant, Carol Marie Popp, appeals from the judgment of sentence of
imposed by the Court of Common Pleas of Dauphin County following her guilty
pleas to eight counts of sexual assault, six counts of institutional sexual
assault, three counts of indecent assault, and one count of criminal
solicitation-tampering with evidence.1 For the reasons set forth below, we
affirm.
On November 22, 2021, Appellant pled guilty to the above offenses for
committing numerous sex acts with an intellectually disabled and autistic male
resident (Victim) of a group home where she was employed as an aide. N.T.
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* Retired Senior Judge assigned to the Superior Court.
1 18 Pa.C.S. §§ 3124.1, 3124.2(a), 3126(a)(1), and 902(a), respectively.
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Guilty Plea at 2-4; Written Guilty Plea Colloquy. These sex acts occurred
between February 1 and February 22, 2021 and included urination and
defecation on Victim in the course of the sexual conduct. N.T. Guilty Plea at
3-4. Following Appellant’s guilty pleas, the court ordered that Appellant be
assessed by the Sexual Offenders Assessment Board (SOAB) to determine
whether she should be classified as a Sexually Violent Predator (SVP) under
the Sexual Offender Registration and Notification Act (SORNA), 42 Pa.C.S. §
9799.10, et seq. Trial Court Order, 11/29/21.
On September 9, 2022, the trial court held a hearing on whether
Appellant should be classified as an SVP and to sentence Appellant. At this
hearing, the trial court heard testimony from the SOAB evaluator who
assessed Appellant and an expert retained by Appellant. N.T. SVP &
Sentencing Hearing at 3-61. Following this testimony, the trial court found
that Appellant was an SVP. Id. at 69. The trial court then imposed
consecutive sentences of 3 to 6 years’ incarceration and 2 to 4 years’
incarceration for two of the sexual assault convictions, concurrent sentences
of 3 to 6 years’ incarceration for the remaining six sexual assault convictions,
a consecutive sentence of 3 years’ probation for one of the institutional sexual
assault convictions, concurrent sentences of 1 to 2 years’ incarceration for the
other five institutional sexual assault convictions, concurrent sentences of 6
to 12 months’ incarceration for the indecent assault convictions, and no
further penalty for the criminal solicitation conviction, resulting in an
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aggregate sentence of 5 to 10 years’ incarceration followed by 3 years of
probation. Id. at 81-85; Sentencing Order. This timely appeal followed.
In this appeal, Appellant challenges only the trial court’s determination
that she is an SVP. A defendant may be determined to be an SVP if she has
been convicted of a sexually violent offense and, following an assessment by
an SOAB evaluator, the Commonwealth proves by clear and convincing
evidence at an SVP hearing that the defendant suffers from a mental
abnormality or personality disorder that makes her likely to engage in
predatory sexually violent offenses. 42 Pa.C.S. §§ 9799.12, 9799.24;
Commonwealth v. Hollingshead, 111 A.3d 186, 189 (Pa. Super. 2015).
Seventeen of Appellant’s convictions were offenses defined by SORNA as
sexually violent offenses on which an SVP determination can be based. 42
Pa.C.S. §§ 9799.12, 9799.14(b)(5), (6), (d)(5).
To prove the element of mental abnormality or personality disorder, “the
evidence must show that the defendant suffers from a congenital or acquired
condition that affects the emotional or volitional capacity of the person in a
manner that predisposes that person to the commission of criminal sexual acts
to a degree that makes the person a menace to the health and safety of other
persons.” Hollingshead, 111 A.3d at 189-90 (quoting Commonwealth v.
Stephens, 74 A.3d 1034 (Pa. Super. 2013)). In addition, it must be shown
that the defendant’s conduct was predatory. Hollingshead, 111 A.3d at 190.
Predatory conduct is defined as an “act directed at a stranger or at a person
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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. § 9799.12.
In performing an SVP assessment, the evaluator must consider all of the
following 15 factors:
(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.
(v) Age of the victim.
(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.
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(4) Factors that are supported in a sexual offender assessment
field as criteria reasonably related to the risk of reoffense.
42 Pa.C.S. § 9799.24(b); see also Hollingshead, 111 A.3d at 190. An
expert testifying in support of an SVP designation must opine on whether the
defendant has a propensity to reoffend, but the risk of reoffending is only a
factor that must be considered in making the SVP assessment, not a separate
requirement that must be satisfied. Hollingshead, 111 A.3d at 190, 194;
Stephens, 74 A.3d at 1038-39. In evaluating the sufficiency of the evidence
to support an SVP designation, this Court may not reweigh the factors that
are relevant to whether the defendant is an SVP and must limit its review to
whether the facts on which the SVP determination is based are supported by
sufficient evidence. Commonwealth v. Meals, 912 A.2d 213, 220-25 (Pa.
2006).
The evidence at the SVP hearing in this case consisted of the testimony
of the SOAB evaluator and Appellant’s expert. The SOAB evaluator opined
that Appellant suffered from other specified paraphilic disorder, with the
specifications of non-consent, sadism, masochism, urophilia, coprophilia, and
fetish. N.T. SVP & Sentencing Hearing at 8. The SOAB evaluator testified that
this diagnosis was supported by the evidence of the persistence of the acts
(at least eight incidents over a three-week period), the intensity of the acts,
the lack of consent, and the nature of the sexual behaviors, which included
urine, feces, physical assault, humiliating Victim, having him physically assault
her, and fetishes of having Victim wear makeup, the use of whip cream, and
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Appellant dressing Victim in bras and panties. Id. at 9-12, 28-29. The SOAB
evaluator acknowledged that the conduct lasted only three weeks, that there
was no prior history of sexual crimes or abnormalities, and that the Diagnostic
and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) lists a six-
month or greater duration as a diagnostic criterion, but concluded that the
number of incidents in the three-week duration was sufficient to support the
diagnosis, given the nature of the acts. Id. at 10-12, 19-20, 23-27, 39-40.
The SOAB evaluator also opined that Appellant engaged in predatory behavior
and presents a risk of committing sex crimes, absent treatment and lifetime
counseling, basing these opinions on the fact that Appellant committed her
crimes in a caregiver relationship and on the nature of the disorder and the
nature of Appellant’s behavior. Id. at 6-7, 12-16.2 The SOAB evaluator
opined, based on these conclusions and factors, that Appellant met the criteria
to be classified as an SVP. Id. at 16-17.
Appellant’s expert opined that Appellant could not be diagnosed as
having other specified paraphilic disorder because the behavior did not persist
for six months or longer and that Appellant did not meet the criteria for
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2 The SOAB evaluator also testified concerning the other factors set forth in
SORNA, the mental capacity of Victim, which supported the SVP designation,
and the fact that there was only a single victim, the absence of a past history
of sexual crimes or abnormalities or of any criminal history other than a retail
theft more than 35 years earlier, the absence of drug use, and Appellant’s and
Victim’s ages, which did not weigh in favor of SVP status. N.T. SVP &
Sentencing Hearing at 18-23.
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classification as an SVP because without that diagnosis, the requirement of a
mental abnormality or personality disorder was not satisfied. N.T. SVP &
Sentencing Hearing at 43-50. Appellant’s expert, however, conceded that
Appellant’s behavior was predatory, that Appellant met the diagnostic criteria
for a provisional diagnosis of other specified paraphilic disorder, a conclusion
that she could be diagnosed with that disorder if the behavior continued to
the point that it satisfied the six-month requirement, and that Appellant
should never be permitted to be a caregiver again. Id. at 50, 55-58.
The trial court found the testimony of the SOAB evaluator credible and
based its SVP determination on his testimony. Trial Court Opinion at 4-6.
Appellant argues that this testimony was insufficient to prove that she has a
mental abnormality or personality disorder and that she therefore could not
be found to be an SVP. We do not agree.
The SOAB evaluator diagnosed Appellant as suffering from the mental
abnormality of other specified paraphilic disorder, with the specifications of
non-consent, sadism, masochism, urophilia, coprophilia, and fetish. N.T. SVP
& Sentencing Hearing at 8. Although the six-month duration that DSM-5 lists
as a criterion in diagnosing other specified paraphilic disorder was not
satisfied, the SOAB evaluator explained that DSM-5 does not require that
duration where the acts are persistent and intense and that the frequency and
nature of Appellant’s sexual assaults showed persistence and intensity. Id.
at 9-12, 24-27, 39-40. Moreover, the fact that Appellant’s assaults continued
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for only three weeks was not due to Appellant losing interest in or choosing to
give up this behavior. The SOAB evaluator testified that Appellant’s conduct
ceased only because it was discovered and she was removed from caring for
Victim. Id. at 16. The SOAB evaluator’s testimony was therefore sufficient
to prove that Appellant suffers from a mental abnormality or personality
disorder that makes her likely to engage in predatory sexual offenses.
Appellant also argues that the SOAB evaluator’s testimony was
insufficient because it did not show that she is likely to reoffend. This fails for
two reasons. First, it is inaccurate. The SOAB evaluator testified that
Appellant’s mental abnormality, other specified paraphilic disorder, is
treatable, but not curable, and that individuals with that disorder are a risk to
reoffend even if they are in remission. N.T. SVP & Sentencing Hearing at 12-
14. The SOAB evaluator also opined that Appellant would continue to have
the urges that led to her crimes and that she has a likelihood of reoffending if
she has access to vulnerable individuals. Id. at 14-16.
Second, even if the evidence did not support the conclusion that
Appellant’s diagnosis makes her likely to reoffend, that would not make it
insufficient to support her SVP designation. As noted above, a finding that
the defendant is likely to reoffend is not a requirement for an SVP designation.
Hollingshead, 111 A.3d at 190, 194; Stephens, 74 A.3d at 1039. Rather,
it is only a factor that must be considered in evaluating whether the defendant
is an SVP and on which the Commonwealth’s expert must opine.
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Hollingshead, 111 A.3d at 190, 194; Stephens, 74 A.3d at 1038-39. That
requirement was satisfied here, as the SOAB evaluator testified that he
considered the likelihood that Appellant would reoffend and opined on that
likelihood. N.T. SVP & Sentencing Hearing at 12-16.
For the foregoing reasons, we conclude that the issue raised by
Appellant in this appeal lacks merit. We therefore affirm Appellant’s judgment
of sentence.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/01/2023
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