Com. v. Gaydos, K.

J-S18024-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
KYLE MATTHEW GAYDOS :
:
Appellant : No. 1646 MDA 2021
Appeal from the Judgment of Sentence Entered April 12, 2021
In the Court of Common Pleas of Berks County Criminal Division at
No(s): CP-06-CR-0003068-2019
BEFORE: BENDER, P.J.E., McLAUGHLIN, J., and McCAFFERY, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED: SEPTEMBER 12, 2022
Kyle Gaydos appeals from his judgment of sentence. He argues the court
erred in designating him a Sexually Violent Predator (“SVP”)1 because the
Commonwealth’s expert did not testify that he was likely to reoffend. We
affirm.
Gaydos pleaded guilty to Corruption of Minors, Criminal Use of a
Communication Facility, and Sexual Abuse of Children (Child Pornography).2
The trial court described the underlying facts as follows.
[Gaydos] admitted that between July 18, 2018 and August 6,
2018, while [he] was present in Center Township, Berks County,
Pennsylvania, he did use various electronic devices, specifically
three Apple iPhones and an Apple iPad, to engage in conversations
with males under the age of eighteen (18). He admitted that he
did engage them in sexual conversations and did ask for those
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1 See 42 Pa.C.S.A. § 9799.24.
2 18 Pa.C.S.A. §§ 6301(a)(1)(i), 7512(a), and 6312(d), respectively.
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minors to send him unclothed pictures of themselves and that he
requested those photos for his sexual gratification. The state
police downloaded and performed a forensic evaluation of the
three devices and approximately 280 images were found. Sixteen
(16) of those images were compared to the National Center for
Missing and Exploited Children, for child identification, and did
come back as child victims that have been identified by law
enforcement as children under the age of eighteen (18). [Gaydos]
elicited photographs for children as young as twelve (12) years
old. The investigation [of Gaydos] was prompted when [Gaydos]
solicited an out-of-state minor who was twelve years old.
[Gaydos] did have a photograph of that child on his devices.
Trial Court Opinion, filed 2/3/22, at 3.
The court sentenced Gaydos in September 2020 to an aggregate
sentence of one to two days of imprisonment followed by 18½ years of
probation. The court ordered an evaluation by the Sexual Offender
Assessment Board (“SOAB”), which recommended that the court classify
Gaydos as an SVP.
Before the court was able to hold an SVP hearing, in March 2021, the
Adult Probation Office alleged Gaydos violated his probation (“VOP”). At the
VOP hearing, Gaydos admitted to having violated his probation and the court
sentenced him to restart the previously imposed term of probation.
The court held the SVP hearing in October 2021. The Commonwealth
presented the expert testimony of Dr. Veronique Valliere. The trial court
recounted her testimony as follows.
[Dr. Valliere] opined that [Gaydos] meets the criteria for Other
Specified Paraphilic Disorder (paraphilic sexual interest in children
and adolescent males) that served as the impetus to his offending
and that he engaged in predatory behavior as delineated in her
report.8
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8 Dr. Valliere’s report was admitted as Commonwealth
Exhibit 1.
In Dr. Valliere’s professional opinion, [Gaydos] targeted
prepubescent and postpubescent boys to sexually engage with
and form a relationship for sexual exploitation. [Gaydos] self-
admitted (to the state police) his arousal to children between the
ages of ten (10) to sixteen (16) years old. He masturbated to the
illegal images of child sexual abuse he collected. She described
this behavior as an entrenched deviate sexual arousal pattern
because it lasted over 6 months, thereby qualifying him for the
diagnosis rendered. She noted that he specifically enticed and
lured children online to engage with him in a sexual manner. She
found [Gaydos] to have several significant risk factors, specifically
that his intended victims are male and were strangers, that this
was not his first non-contact sex offense,9 his age,10 the lack of
‘protective’ seeking experience (being that he has never been
married or in an intimate relationship) and that he continued to
engage in sex offending behavior after police contact. [Gaydos]
was diagnosed with Autism Spectrum Disorder when he was in
second grade. Dr. Valliere acknowledged that his autism is a
complicating factor because it can be related to preoccupation and
obsessive behavior and potential failure to appreciate the impact
of his behavior on others and/or how it harms children even
though there was no direct contact. Dr. Valliere considered the
positive factors for [Gaydos]. She noted that [Gaydos] self-
identifies that what he was doing and struggling with is a problem
and that this understanding makes him a good candidate to be
motivated to manage and participate in treatment. However, she
pointed out that this is a double-edged sword as it also shows he
was unable to manage himself which demonstrates the strength
of his sexual interest.
9 [Gaydos]’s prior record was for criminal trespass where
[Gaydos] took a (neighbor) child’s underwear from his
home. The factual assertions surround[ing] this incident
were not contested and are described in Dr. Valliere’s report
beginning at the second to last paragraph on page two (2)
and continuing onto page three (3).
10[Gaydos’s] age was 24 at the age of his offense and age
27 at the time of the evaluation.
Dr. Valliere found that [Gaydos]’s behavior met the definition of
predatory behavior. After vigorous cross examination, Dr. Valliere
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stood firm with her opinion that based on the statutory definition,
[Gaydos] met the qualifications to be a designated a[n SVP].
Trial Ct. Op. at 5-6 (one footnote omitted).
The court found the Commonwealth had presented clear and convincing
evidence to support the SVP designation and issued an order designating
Gaydos an SVP. Gaydos appealed,3 and raises the following:
Did the lower court err in determining [Gaydos] to be a Sexually
Violent Predator where the Commonwealth failed to prove by clear
and convincing evidence that he has a mental abnormality or
personality disorder that makes him likely to engage in predatory
sexually violent offenses, as their expert never said that there is
a high likelihood of sexual recidivism, only said that his paraphilic
disorder is “related to a risk of reoffense”?
Gaydos’s Br. at 4
Gaydos argues that “the statute requires clear and convincing evidence
that, owing to their mental abnormality, offenders will be likely to reoffend:
but no testimony was offered to support such a conclusion about [Gaydos];
Doctor Valliere simply never said that he would be likely to reoffend.” Id. at
11 (emphasis in original). According to Gaydos, Dr. Valliere testified that she
“can’t predict [Gaydos’s] likelihood to reoffend.” Id. (quoting N.T., SVP
Hearing, at 9). And, while Dr. Valliere testified Gaydos’s paraphilic disorder is
“related to reoffense,” Gaydos argues that she did not specify how highly the
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3Although Gaydos’s notice of appeal states that he appeals from the order
designating him as a Sexually Violent Predator, which the court issued after
Gaydos’s sentencing, the judgment of sentence was not final until the SVP
determination was rendered. See Commonwealth v. Schrader, 141 A.3d
558, 561 (Pa.Super. 2016). Thus, we have amended the caption to reflect that
Gaydos’s appeals lies from his judgment of sentence.
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two are related. Id. (quoting N.T. at 9). Gaydos posits that the lack of
testimony predicting his likelihood of reoffending is fatal to the SVP
designation.
Gaydos also argues that some of Dr. Valliere’s testimony indicated
Gaydos would be amenable to treatment and not likely to reoffend. He points
out that she stated, “[H]is own self-identification that what he was doing and
what he was struggling with was a problem,” which “can be very positive in
terms of motivation to be managed and participate in treatment.” Id. at 12
(quoting N.T. at 10, 12). Gaydos further emphasizes that his offenses were
“no-contact,” he does not have an antisocial personality disorder, and he has
never had the opportunity to participate in sex-offender treatment.
A potential stumbling block to our consideration of Gaydos’s issue is the
fact that the transcript of the SVP hearing is not in the certified record. It is
the appellant’s burden to ensure the certified record is complete, and any
claims that we are unable to review due to the absence of materials from the
certified record may be deemed waived. Commonwealth v. Preston, 904
A.2d 1, 7 (Pa.Super. 2006) (en banc).
The certified record shows that Gaydos filed a request for the transcript
of the SVP hearing on October 27, 2021, and the court ordered the reporter
to transcribe the hearing. The original request and order are in the record,
and a corresponding entry is listed on the docket. However, the transcript is
not in the certified record, and the docket does not reflect that a copy of the
transcript was ever filed. Moreover, the docket reflects that a copy of the
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docket entries—showing the transcript was never filed—was sent to defense
counsel on February 10, 2022.
Nevertheless, we will not find waiver, as the absence of the transcript
does not hinder our review, for several reasons. First, the trial court provided
a thorough and detailed description of the testimony presented by the
Commonwealth’s expert, Dr. Valliere, and Gaydos does not disagree with the
trial court’s summary. Second, a copy of Dr. Valliere’s report, from which she
testified, and which was admitted as evidence at the SVP hearing, was filed
on the docket and is included in the certified record and corroborates the
court’s description of the testimony. Third, and perhaps most importantly,
Gaydos’s argument misconstrues the law.
We review an SVP designation to determine whether the Commonwealth
presented clear and convincing evidence that the defendant meets the
statutory definition of an SVP. Commonwealth v. Hollingshead, 111 A.3d
186, 189 (Pa.Super. 2015). “As with any sufficiency of the evidence claim, we
view all evidence and reasonable inferences therefrom in the light most
favorable to the Commonwealth.” Id. (quoting Commonwealth v. Baker, 24
A.3d 1006, 1033 (Pa.Super. 2011)).
To be classified as an SVP, the defendant must have “a mental
abnormality or personality disorder that makes [him] likely to engage in
predatory sexually violent offenses.” 42 Pa.C.S.A. § 9799.12. The statute
defines “mental abnormality” as “[a] congenital or acquired condition of a
person that affects the emotional or volitional capacity of the person in a
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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. The defendant’s conduct must also have been “predatory,”
which the statute defines as “[a]n act directed at a stranger or at a person
with whom a relationship has been instituted, established, maintained, or
promoted, in whole or in part, in order to facilitate or support victimization.”
Id.; Commonwealth v. Stephens, 74 A.3d 1034, 1038 (Pa.Super. 2013).
To determine whether the defendant meets the above definition, the
SOAB evaluates the following factors, “which are mandatory and are designed
as criteria by which the likelihood of reoffense may be gauged”:
(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:
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(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); Commonwealth v. Morgan, 16 A.3d 1165, 1168
(Pa.Super. 2011) (quoting Commonwealth v. Fuentes, 991 A.2d 935, 941-
42 (Pa.Super.2010) (en banc )).
However, although the statute requires “an inquiry into the likelihood of
reoffense,” it does not require an “assessment of the likelihood of reoffense,”
or “personal risk assessment.” Morgan, 16 A.3d at 1170, 1173 (quoting
Commonwealth v. Dixon, 907 A.2d 533, 539 (Pa.Super. 2006) and
Commonwealth v. Geiter, 929 A.2d 648, 651 (Pa.Super. 2007)). The
likelihood of reoffense is one factor to be considered, not an independent
element required for an SVP designation. Id. at 1173.
Gaydos does not contest that Dr. Valliere diagnosed him with paraphilic
disorder and testified that this served as the impetus to his having engaged
in predatory behavior. Dr. Valliere moreover testified that Gaydos’s behavior
in the instant case lasted over 6 months, that it was not his first sex offense,
and that he continued his behavior even after involvement with the police. Dr.
Valliere testified as to other factors creating a risk of reoffense, such as
Gaydos’s diagnosis of autism spectrum disorder, his age, his never having had
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an intimate relationship, and the fact that his victims had been minors who
were strangers to him. This was clear and convincing evidence that Gaydos
meets the statutory definition of an SVP. See Stephens, 74 A.3d at 1042(holding evidence of SVP sufficient when considering the facts of defendant’s
crimes in combination with a diagnosis of pedophilia).
Gaydos argues the evidence was insufficient because Dr. Valliere
testified she could not predict with certainty how likely it is that he will reoffend
and did not testify there is a “high likelihood” Gaydos will reoffend. However,
such an assessment is not required for an SVP designation. Morgan, 16 A.3d
at 1170. Rather, Dr. Valliere’s testimony that Gaydos’s paraphilic disorder is
“related to reoffense,” taken in context, is sufficient to satisfy the inquiry
required by the statute. And, while Dr. Valliere testified that Gaydos’s
awareness of his issues might indicate he may benefit from treatment, she
also testified that it might not, as Gaydos was unable to control his behavior
despite his awareness. Thus, Gaydos’s arguments that the court erred in
designating him as an SVP are without merit.
Judgment of sentence affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 09/12/2022
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